Fetal personhood, ‘free kill,’ sovereign immunity, and phosphates: It’s tort day in the House
Legislation to expand Florida’s wrongful death laws is progressing in the state House. (iStock /Getty Images Plus)
By: Christine Sexton – January 15, 2026
The Florida House once again this year is charging ahead with sweeping changes to laws governing lawsuits, notwithstanding in some cases pressure from business groups, and now will send the bills to the Senate to face uncertain futures.
The legislation covers a range of subjects, from limits on money recoveries from lawsuits against government, medical malpractice, and the death of fetuses.
“It seems like the House leadership is hellbent on bringing more lawsuits in Florida, which will only serve to drive up costs for ordinary Floridians,” Florida Justice Reform Institute President William Large told the Florida Phoenix Thursday.
The institute focuses on lawsuit-related legislation. “Gov. DeSantis’s reforms from 2023 show tort reform is working. There is no reason to bring all this litigation-fueled legislation,” Large said.
Fetal personhood
Florida law allows would-be parents to recover for “negligent stillbirth” under common law. Those damages are limited to mental pain and anguish plus medical expenses incurred incidental to the pregnancy.
In a partisan vote Thursday, members of the House voted, 76-34, to pass CS/HB 289, a bill that would allow would-be parents to pursue wrongful death claims for the loss of developing fetuses. Wrongful death suits allow plaintiffs to seek damages for mental pain and loss of support, meaning jurors could calculate the salary the fetus might have earned over its life, as part of the monetary damages. Common law refers to a body of law developed through judicial decisions and precedents, not by statute.
Democrats offered nine amendments meant to blunt the reach of the measure, including one by Orlando Democrat Rep. Ana Eskamani that would have given a carve-out for abortion providers. (The Republican-dominated House voted down each attempt.)
“It’s really important to remember that this legislation is expanding Florida’s Wrongful Death Act to apply to fertilized eggs. There’s no way that does not impact abortion access,” Eskamani said. State law protects abortion access through six weeks’ gestation, although not after that.
Eskamani offered a second amendment that would have exempted mothers from wrongful death lawsuits involving the fertilized egg, embryo, or fetus; or against a health care provider who has not been convicted of a crime in connection with the health care — including a provider of assisted reproductive technologies — without the consent of the mother.
Jacksonville Democrat Rep. Angie Nixon offered an amendment that would have prevented lawsuits from being filed against gestational surrogates. Nixon said that, as written the bill would allow a surrogate to be sued by intended parents if she were to miscarry.
“What type of message are we sending to people who are really looking out for other folks? That’s just wrong. Y’all for real? No family looks the same. And as legislators, we should not be getting in the way of people making physical and financial sacrifices in order to have children. If y’all really are pro life, you definitely vote up on this bill,” she said.
Another amendment, offered by Rep. Robin Bartleman, a Democrat from Weston, would have barred wrongful death lawsuits by a person whose involvement with the pregnancy was by means of rape, incest, or human trafficking.
“Where would be the harm in putting this amendment in?” Bartleman asked, noting that every abortion-related bill the Legislature has passed recognizes pregnancies stemming from those crimes and treats those pregnancies differently.
Rep. Marie Paule Woodson, a Democrat from Hollywood, beseeched members to put their feelings about abortion access aside and to pass Bartleman’s amendment.
“Let’s do what’s right, because I don’t want to have to come back in this chamber and have to go back on this bill for us to realize the pain that we will be causing to those impacted,” Woodson said. “If we don’t pass this amendment, we are giving control to those abusers. That’s exactly what we will be doing.”
Former Democrat turned Republican Rep. Hillary Cassel blasted the notion that CS/HB 289 was abortion-related and instead said it was about justice for mothers.
“This is not about abortion. And too often, when we talk about a pregnant woman, it always goes to the side of the mother that didn’t want the child. But what about the mother who wants one? What about the mother and the family who wanted that baby? That’s what this bill does. Don’t make it anything more,” said Cassel, of Hollywood.
Sen. Erin Grall, a Republican from Fort Pierce, has filed similar legislation (SB 164) in the Senate. That bill cleared the Senate Judiciary Committee by a one-vote margin and has been referred to two other committees.
“Free kill”
CS/HB 289 wasn’t the only bill related to wrongful death that the House passed Thursday, with the chamber voting, 88-17, to pass HB 6003
Although damantly opposed by organized medicine, insurance, and business lobbyists, the chamber passed the bill with little-to-no debate.
The bill revamps Florida’s wrongful death laws in two ways: Parents of single, childless, adult children 25 and older could file wrongful death lawsuits arising from alleged medical malpractice; and adult children could pursue claims for single parents who die from medical malpractice. Such cases are not allowed under existing law.
Proponents of HB 6003 say it fixes Florida’s “free kill” law, a name coined to describe the different legal protections in Florida statute based on someone’s age, family, and marital status.
Opponents argue the bill would increase the number of lawsuits and result in higher medical malpractice premiums. They have coined their own name for the proposal: “jackpot justice.”
Those opponents, including Large, say they would support the measure if it were amended to limit damages that can be recovered for all medical malpractice cases, not just the newly expanded class of litigants in HB 6003.
During debate on a similar bill last year, an amendment to cap medical malpractice settlements failed in the Senate by a one-vote margin.
DeSantis ultimately vetoed the 2025 version of the bill because it didn’t contain the caps.
During a press conference Thursday, DeSantis defended his veto.
“I will say, you know, that particular legislation I vetoed, if you talk to people in healthcare, it would have caused us to lose doctors. Like, there’s no question, uh, to root, because basically, those were reforms that had been enacted in response to medical malpractice insurance crisis many years ago, well long before I was governor. And so, you would see an impact on that, no question,” DeSantis said.
Sen. Darryl Rouson, a Democrat from St. Petersburg, filed the Senate companion bill (SB 1700) last week
Sovereign immunity
A bill that would increase the state’s sovereign immunity limits, taking them from $200,000 per person to $1 million and from $300,000 per occurrence to $3 million, passed the House by a 104-7 vote.
The bill would make clear that political subdivisions could settle cases beyond those limits without having to obtain advance approval in the form of a special legislative act. And it specifically would prohibit insurance policies from conditioning payment of settlements upon the enactment of a claims bill.
In legal terms, sovereign immunity refers to the state’s authority to exempt itself as a legal sovereign from civil lawsuits, although the state does allow negligence claims against itself and its subdivisions — agencies, cities, counties, and public hospitals — within limits. Injured parties can sue for damages and collect within the liability thresholds established by law but, if they win awards in excess of the limits, they must go to the Legislature in the form of what’s called a claims bill to collect the payment.
The claims bill process is lengthy and allows the defendant to challenge a jury verdict. Once a claims bill is filed, each chamber’s presiding officer refers it to a special master, who essentially reconsiders the jury’s recommendation. Claims bills also go before House and Senate committees that consider special masters’ recommendations. Ultimately, the bills must pass in both chambers.
It’s not unusual for claims bills to take years to pass, if ever.
Sen. Jason Brodeur, a Republican from Lake Mary, filed the Senate companion bill, SB 1366. That bill takes the existing sovereign immunity limita in law and increases them to $300,000 per person and $450,000 per incident. The bill directs the Department of Financial Services to adjust the caps five years from now and every five years thereafter, to reflect the Consumer Price Index. However, the bill limits those increases to no more than 3%.
In addition to the difference in the caps, the Senate bill lacks the language in the House bill that allows political subdivisions to settle cases beyond those limits without legislative intervention.
The Senate bill was filed last week and has not yet been referred to any committees.
Phosphates
The House also passed HB 167, a priority bill for Senate President Ben Albritton and the one tort-related bill that offers increased protections to businesses that the House passed Thursday.
Offered by Rep. Lawrence McClure, R-Dover, and Rep. Richard Gentry, R-Astor, the bill would establish a defense from strict liability if the lawsuit is related to pollution caused by a former phosphate mine and certain requirements are met.
Phosphate companies have faced lawsuits filed by people who bought homes built on radioactive spoils left by mining.
This strict liability defense applies to lawsuits brought by the Department of Environmental Protection as well as lawsuits brought by any other person.
https://floridaphoenix.com/2026/01/15/fetal-personhood-free-kill-sovereign-immunity-and-phosphates-its-tort-day-in-the-house/
