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 Rules
BILL: SB 734
INTRODUCER: Senator Yarborough and others
SUBJECT: Actions for Recovery of Damages for Wrongful Death
DATE: March 25, 2025
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Bond Cibula JU Favorable
2. Gerbrandt McKnight AHS Favorable
3. Bond Yeatman RC Favorable
I. Summary:
SB 734 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 may have an indeterminate negative fiscal impact on state and local governments. See
Section V. Fiscal Impact Statement.
The bill takes effect July 1, 2025.
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
1
Louisville & Nashville Railroad Co. v. Jones, 45 Fla. 407, 416 (Fla. 1903).
2
Chinghina v. Racik, 647 So. 2d 289, 290 (Fla. 4
th
DCA 1994).
REVISED: BILL: SB 734 Page 2
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 damages 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 21
9
and unmarried, may also recover damages for loss of parental
companionship and for their pain and suffering. The parents of a deceased minor child may also
recover damage for their pain and suffering. Any survivor who pays the decedent’s final medical,
funeral, and burial expenses may recover those costs. The estate of the decedent may recover lost
earnings from date of injury to date of death, plus net 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 any 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
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.
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. BILL: SB 734 Page 3
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 a
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 child (25+) of an unmarried person who dies due to medical
negligence, nor the parents of an adult child (25+) 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
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
13
Chapter 90-14, Laws of Fla. (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).
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 visited Feb. 27, 2025, (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. BILL: SB 734 Page 4
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 discovery
24
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.
III. Effect of Proposed Changes:
The bill 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 provides that, where a wrongful death occurs as
a result of medical negligence, a decedent’s adult children may recover noneconomic damages if
there is no surviving spouse and provides that the parents of an adult decedent may recover
noneconomic damages if there is no surviving spouse or surviving minor or adult children.
The bill takes effect July 1, 2025.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The bill does not require counties or municipalities to spend funds or limit their authority
to raise revenue or receive state-shared revenues as specified in Article VII, s. 18 of the
Florida Constitution.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
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: SB 734 Page 5
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The bill may provide for wrongful death recoveries by parties who are barred by current
law and thus may correspondingly increase medical malpractice insurance premiums or
medical malpractice self-insurance costs of medical providers. Similarly, the availability
of damages for mental pain and suffering may provide a sufficient incentive for plaintiff
attorneys who work on a contingency-fee-basis to pursue more medical negligence
lawsuits.
C. Government Sector Impact:
The bill may create an indeterminate negative fiscal impact on state and local
governments to the extent that a state or a local government operates or controls a
medical care facility. Any such claims, however, would be limited by the state’s
sovereign immunity limits.
28
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 768.21, 400.023,
400.0235, and 429.295.
This bill reenacts the following sections of the Florida Statutes: 95.11 and 429.29.
28
Section 768.28, F.S. BILL: SB 734 Page 6
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.