The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Judiciary
BILL: CS/SB 248
INTRODUCER: Judiciary Committee, Senator Yarborough and others
SUBJECT: Medical Negligence
DATE: January 23, 2024 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Bond Cibula JU Fav/CS
2. AHS
3. RC
I. Summary:
CS/SB 248 expands the application of the Florida Wrongful Death Act by repealing exceptions
that prohibit certain parents and children of a deceased patient who dies due to medical
negligence from recovering noneconomic damages.
The bill also enacts limits on non-economic damages that apply to all actions for medical
negligence. The limits applicable to negligence by a practitioner are $500,000 per claimant; but
limited to $150,000 if the care was related to emergency services and the claimant and
practitioner had no existing patient-practitioner relationship, or limited to $300,000 per claimant
if services were provided to a Medicaid recipient and not provided in a wrongful manner. The
limits applicable to a nonpractitioner are $750,000 per claimant; but are limited to $300,000 per
claimant if the nonpractitioner is a hospital or ambulatory surgical center, services were provided
to a Medicaid recipient, and the services were not provided in a wrongful manner.
The bill also requires the Office of Insurance Regulation to examine the medical malpractice
premium rates in light of the changes made in this bill, and requires insurers to furnish relevant
data to the office. The bill requires the Office of Program Policy Analysis and Government
Accountability to study the efficacy of the limits on noneconomic damages created by the bill
and issue a report of its findings and recommendations by December 31, 2029.
The bill is effective July 1, 2024, and applies to causes of action accruing on or after that date.
BILL: CS/SB 248 Page 2
II. Present Situation:
History of Wrongful Death Actions
Most of the state’s tort law is derived from the common law. At common law, there was no right
to recover for the negligent wrongful death of another person.1 Over time, however, the
Legislature authorized recoveries for wrongful death and expanded the types of damages
recoverable and the classes of survivors entitled to recover. “Because wrongful death actions did
not exist at common law, all claims for wrongful death are created and limited by Florida’s
Wrongful Death Act.”2
The early versions of the state’s wrongful death laws limited the right to recover damages to a
surviving spouse, to surviving children if there was no surviving spouse, and to those dependent
upon the decedent for support if there was no one belonging to the prior two classes, and finally
to the executor of the decedent’s estate if there was no one belonging from the prior three
classes.3 To show dependence on the decedent, a claimant had to show that he or she was a
minor, physically or mentally disabled, or elderly.4 Adults who were mentally and physically
capable of providing for themselves could not recover despite having been supported by the
decedent.5 Any damages recoverable were limited to a form of economic damages.
The wrongful death law was substantially re-written in 1972.6 That law created the Florida
Wrongful Death Act, which provides the framework for current law. One of the major changes
made by this law was to consolidate or merge survival and wrongful death actions.7 A survival
action is a legal action allowed under the survival statute to continue notwithstanding the
plaintiff’s death. As merged, the 1972 law allowed the statutory survivors to recover damages for
their pain and suffering as a substitute for recoveries for the decedent’s pain and suffering under
the survival statute.8
The type of damages that a survivor is entitled to, under the 1972 law, depends upon the
classification of the survivor. The 1972 law allows all survivors to recover the value of lost
support and services, a type of economic damages. A surviving spouse may also recover loss of
marital companionship and pain and suffering, types of noneconomic damages. Minor children,
then defined as under age 219 and unmarried, may also recover loss of parental companionship
and pain and suffering. The parents of a deceased minor child may also recover pain and
suffering. Any survivor who paid them may recover final medical, funeral, and burial expenses.
The estate of the decedent may recover lost earnings from date of injury to date of death, plus net
1
Louisville & Nashville Railroad Co. v. Jones, 45 Fla. 407, 416 (Fla. 1903).
2
Chinghina v. Racik, 647 So. 2d 289, 290 (Fla. 4th DCA 1994).
3
Duval v. Hunt, 34 Fla. 85 (Fla. 1894) (discussing a wrongful death statute enacted in 1883).
4
Id. at 101-102.
5
The Court interpreted the dependency requirement in the statute as requiring a person to have a genuine inability to support
himself or herself based on the view that strong, healthy adults who are capable of earning a livelihood should not be content
to “live in idleness upon the fruits of [another’s] labor.” Id. at 101.
6
Chapter 72-35, Laws of Fla.
7
Sheffield v. R.J. Reynolds Tobacco Co., 329 So. 3d 114, 121 (Fla. 2021).
8
Martin v. United Sec. Services, Inc., 314 So. 2d 765, 767 (Fla. 1975).
9
Florida changed the age of majority from 21 to 18 in the following year, but that act did not change the reference to age 21
in the wrongful death law. Section 743.07, F.S.; chapter 73-21, Laws of Fla.
BILL: CS/SB 248 Page 3
accumulations, which is essentially an estimate of the present value of the future estate that
would have been available for inheritance.
A 1981 act expanded the definition of “minor children” to include all children of the decedent
under age 25, regardless of whether such child is married or dependent.10 The statutes did not
authorize a wrongful death action by a nondependent, adult child for the loss of a parent or an
action by a parent for the loss of an adult child.11
In 1990, the Legislature generally expanded the class of survivors entitled to recover damages
for pain and suffering for a wrongful death.12 As expanded, a decedent’s adult children may
recover damages for pain and suffering if there is no surviving spouse. The parents of an adult
decedent may also recover damages for pain and suffering if there is no surviving spouse or
surviving minor or adult children.13
However, the same law that expanded the class entitled to recover damages for pain and
suffering for a wrongful death precluded the additional class members from recovering those
damages for a wrongful death based on medical malpractice.14 Thus, a narrower group of
survivors may recover damages for pain and suffering for a wrongful death that is caused by
medical malpractice, and a broader group may recover damages for pain and suffering for death
that is caused by all other forms of negligence.
In a 2000 opinion, the Florida Supreme Court found the medical negligence exception
constitutional.15 The Court found that the exception was rationally related to the need to control
the costs of health care and medical malpractice insurance due to a medical malpractice
insurance crisis. However, Justice Pariente, in her dissenting opinion, argued that the exception
should be found to be unconstitutional because of her belief that the medical malpractice
insurance crisis, which initially justified the exception, no longer existed.16 The Florida Supreme
Court later found that the malpractice crisis was over,17 but that finding did not overrule the
ruling that the medical negligence exceptions are constitutional.18
Current Effect of the Medical Negligence Exceptions to the Wrongful Death Law
Currently, neither an adult (25+) child of an unmarried person who dies due to medical
negligence, nor the parents of an adult (25+) child who dies due to medical negligence, may
recover noneconomic damages (commonly referred to as “pain and suffering damages”). They
may, however, recover through the estate economic damages such as net accumulations, final
medical bills, and funeral and burial expenses. Plaintiff’s attorneys report that these other
10
Chapter 81-183, Laws of Fla.
11
Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040, 1042 (Fla. 2000).
12
Chapter 90-14, Laws of Fla.
13
Id. (amending s. 768.18(3) and (4), F.S.). The adult children were also authorized by the 1990 law to recover noneconomic
damages for lost parental companionship, instruction, and guidance.
14
Id. (amending s. 768.18(8), F.S.).
15
Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040, 1042 (Fla. 2000).
16
Id.
17
Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014). North Broward Hospital District v. Kalitan, 219 So. 3d 49
(Fla. 2017).
18
Santiago v. Rodriguez, 281 So. 3d 603 (Fla. 2nd DCA 2019), rev. dismissed, 2020 WL 927717 (Fla. 2020).
BILL: CS/SB 248 Page 4
damages are often insufficient to warrant the cost and time required to prosecute a medical
negligence case.19
Medical Negligence Actions
Procedures for a Medical Negligence Action
Medical negligence claims are subject to statutory presuit screening and investigation
requirements.20 A claimant may, and typically does, request the relevant medical records, which
must be furnished by the medical providers at a reasonable charge.21 The claimant must then
conduct a reasonable investigation of the claim and obtain a written opinion from a medical
expert that malpractice occurred.22 The claimant may then serve a notice of intent to initiate
litigation on every prospective defendant. The suit may not be filed until at least 90 days after
service of the notice.23 During the 90 days, the parties must engage in pretrial discovery24 and the
prospective defendant must conduct an investigation.25 If not resolved in the 90 days, the
claimant may file suit. When filing the suit, the attorney must file a certificate that he or she has
reviewed the evidence and has a good faith belief that a medical negligence case is warranted.26
Failure of the claimant to pursue the pretrial process constitutes grounds for a dismissal of the
claim. A failure of any party to the action to cooperate with the presuit process may be grounds
to strike any claim or defense raised by the non-cooperative party.27 After the presuit
requirements are met, a claim of medical negligence generally proceeds through the court system
like any other tort action.
General Statutory Limits on Noneconomic Damages in Medical Negligence Actions
Current statutes establish limits on an award of noneconomic damages in a medical negligence
action. As will be discussed shortly hereafter, these statutory limits are not currently enforced by
the courts. It is important to note that these limits do not limit an award of economic damages.
Economic damages include lost wages, medical expenses, and any other form of actual out-of-
pocket expense. The only limit on an award of economic damages is reasonableness.
The limits on noneconomic damages in a medical negligence action vary based on the status of
the negligent party and in some instances are based on the relationship between the provider and
the patient. For purposes of the limits, a negligent party is classified as either a “practitioner” or a
“nonpractitioner,” which are defined as:
 A “practitioner” includes any person licensed as a physician, physician assistant, osteopathic
physician, chiropractor, podiatrist, naturopath, optometrist, dentist, midwife, physical
19
Fasig Brooks Law Offices, Unfair and Illogical: Florida’s Wrongful Death Medical Malpractice Law,
https://www.fasigbrooks.com/2019/02/unfair-and-illogical-floridas-wrongful-death-med/, last accessed Jan. 8, 2024 (stating
that “such limited recovery would not make a malpractice lawsuit financially feasible”).
20
Sections 766.104, 766.106 and 766.203, F.S.
21
Sections 766.104(3) and 766.204, F.S.
22
Sections 766.104(1) and 766.203(2), F.S.
23
Section 766.106(4), F.S.
24
Section 766.106(6) and 766.205, F.S.
25
Section 766.203(3), F.S.
26
Section 766.104(1), F.S.
27
Section 766.106(7), F.S.
BILL: CS/SB 248 Page 5
therapist, or advanced practice registered nurse. The term “practitioner” also means any
association, corporation, firm, partnership, or other business entity under which such
practitioner practices or any employee of such practitioner or entity acting in the scope of his
or her employment. For the purpose of determining the limitations on noneconomic damages
set forth in this section, the term “practitioner” includes any person or entity for whom a
practitioner is vicariously liable and any person or entity whose liability is based solely on
such person or entity being vicariously liable for the actions of a practitioner.28
 The term “nonpractitioner” is not defined in statute nor in case law. It appears to reference
any individual or entity liable for medical negligence that does not fall within the definition
of “practitioner.”
A medical negligence claim against a practitioner is limited as follows: In general, noneconomic
damages may not exceed $500,000 per claimant, and no individual practitioner is liable for more
than $500,000 in noneconomic damages, regardless of the number of claimants.29 However:
 The total noneconomic damages recoverable from all practitioners, regardless of the number
of claimants, is $1 million if:
o The negligence resulted in a permanent vegetative state or death; or
o The trial court determines that a manifest injustice would occur unless increased
noneconomic damages are awarded, based on a finding that because of the special
circumstances of the case, the noneconomic harm sustained by the injured patient was
particularly severe; and the trier of fact determines that the defendant’s negligence caused
a catastrophic injury to the patient.30
 If the practitioner was providing emergency services and care to a patient who does not have
a then-existing patient-practitioner relationship with that practitioner, then:
o Regardless of the number of practitioner defendants, noneconomic damages may not
exceed $150,000 per claimant, and
o The total noneconomic damages recoverable by all claimants from all practitioners may
not exceed $300,000.31
 If the practitioner was providing medical services to a Medicaid recipient, regardless of the
number of such practitioner defendants providing the services and care, noneconomic
damages may not exceed $200,000 per claimant, unless the claimant pleads and proves, by
clear and convincing evidence, that the practitioner acted in a wrongful manner, in which
case damages may not exceed $300,000.32
For purposes of the Medicaid exception, the term “wrongful manner” means acting “in bad faith
or with malicious purpose or in a manner exhibiting wanton and willful disregard of human
rights, safety, or property.”33
A medical negligence claim against a nonpractitioner is limited as follows: In general,
noneconomic damages may not exceed $750,000 per claimant, and no individual nonpractitioner
28
Section 766.118(1)(c), F.S.
29
Section 766.118(2)(a), F.S.
30
Section 766.118(2)(b), F.S.
31
Section 766.118(4), F.S.
32
Section 766.118(6), F.S.
33
Section 766.118(6)(c), F.S.
BILL: CS/SB 248 Page 6
is liable for more than $750,000 in noneconomic damages, regardless of the number of
claimants.34 However:
 The total noneconomic damages recoverable by such claimant from all nonpractitioner
defendants may not exceed $1.5 million if:
o The negligence resulted in a permanent vegetative state or death, or
o The trial court determines that a manifest injustice would occur unless increased
noneconomic damages are awarded, based on a finding that because of the special
circumstances of the case, the noneconomic harm sustained by the injured patient was