Florida’s healthcare providers and their insurers are on the verge of a significant adjustment to the state’s medical malpractice landscape. For over three decades, a controversial provision within Florida’s medical malpractice laws limited who could file a wrongful death lawsuit involving non-economic damages, such as pain and suffering. With the passage of House Bill 6017 and Senate Bill 734 by the Florida Legislature, these limitations are poised to be repealed. If signed into law by Governor Ron DeSantis, this reform will necessitate a critical re-evaluation of risk, insurance coverage, and practice for healthcare professionals across the state.

The Repeal of a Limiting Statute: Implications for Provider Exposure

Since 1990, Florida law has uniquely differentiated medical malpractice wrongful death claims from other types of wrongful death lawsuits. This distinct provision previously offered a measure of protection for healthcare providers by limiting the scope of potential claimants. Specifically, adult children (defined as individuals 25 years of age or older under Florida Statutes § 768.18(2)) were barred from recovering non-economic damages for the death of an unmarried parent. Similarly, parents could not recover non-economic damages for the death of an adult child over 25, unless that child was married or had minor children.

This meant that in scenarios where a single adult with no dependents died due to a medical error, their parents faced limited recourse for non-economic damages. Likewise, if an unmarried parent died because of negligence, their adult children could not seek compensation for grief and loss. From a provider’s perspective, these restrictions effectively limited financial exposure in certain wrongful death cases.

The New Legislation: Expanding Liability and Repercussions

The newly passed legislation directly repeals this restrictive provision. House Bill 6017 and its Senate counterpart, SB 734, amend the state’s Wrongful Death Act (Florida Statutes § 768.16) to allow adult children to recover non-economic damages for the death of an unmarried parent caused by medical malpractice. Likewise, parents of adult children, regardless of the child’s marital status or whether they had children, would now be permitted to seek these same damages.

This change aligns Florida’s laws with those of most other states, significantly broadening the pool of potential claimants in medical negligence cases and ensuring that wrongful death actions stemming from medical negligence are treated consistently with other wrongful death claims. For providers, this means an expansion of liability exposure that has not existed for over thirty years.

Understanding the Legislative Landscape

The legislative momentum behind the reform was strong, passing the Florida House of Representatives with a 104–6 vote and the Florida Senate with a 33–4 vote. While supporters included civil justice organizations and patient advocacy groups, the medical community, insurance companies, and business groups have voiced considerable concerns about the potential consequences of this expansion of liability.

Increased Concerns for the Medical Community

Critics of the legislation argue that the change could result in more litigation and, consequently, higher malpractice insurance premiums across the board for medical providers. This anticipated increase in premiums will likely necessitate a re-evaluation of existing coverage for many providers. It’s possible that providers, especially those treating patient populations substantially impacted by these changes, may need to consider additional coverage beyond current legal minimums to adequately protect themselves and their practices or may need to find coverage from lower rated insurance carriers in order to obtain lower premiums. Further, critics have pointed out that House Bill 6017 and Senate Bill 734 could open up medical providers to wrongful death claims from children who have long been estranged from their parents.

The expansion of liability is also feared to exacerbate the strain on already burdened healthcare providers and potentially limit access to care, particularly in rural or underserved areas where the increased cost of doing business could deter practitioners. For the healthcare industry, the core challenge will be balancing the financial interests of providers and insurers with the broader legal and social implications of this reform.

Looking Ahead: Adjustments for Healthcare Providers

Should Governor DeSantis sign the bill into law, as many expect, the change would take effect immediately. Healthcare providers, hospitals, and their legal counsel will need to adapt swiftly to this new reality. This includes:

• Reviewing and adjusting malpractice insurance policies: Providers should consult with their insurers and legal advisors to understand the full implications for their coverage needs and potential premium increases.
• Revisiting risk management strategies: Internal protocols may need to be updated to account for the expanded scope of wrongful death claims.
• Understanding the expanded claimant pool: Awareness of who can now file a claim will be crucial for legal and risk assessment.

This legislative shift brings Florida into closer alignment with the standards observed in most other states, but it also ushers in a period of significant adjustment and increased scrutiny for the state’s healthcare providers.

For further information regarding Florida’s House Bill 6017 and Senate Bille 734, please contact the author at mclare@foxrothschild.com or 941-308-2676. More information can be found at www.foxrothschild.com/healthlaw.

Mark Clare is an Associate and member of the Health Law Practice Group and the Health Care Transactions Practice Group at Fox Rothschild LLP. Mark is based in Sarasota, Florida and specializes in assisting clients with corporate, health law and M&A matters.