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Plantation General Hospital Limited Partnership v. Division of Administrative Hearings

Florida Court of Appeals, Fourth District

April 4, 2018

DIVISION OF ADMINISTRATIVE HEARINGS and BERNARD BELZI, individually and as Personal Representative of the ESTATE OF PATRICIA BELZI, deceased, and as legal guardian and parent of A.B., a minor, Appellees. Past Years Future Years Total Component of Analysis

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the State of Florida, Division of Administrative Hearings; L.T. Case No. 15-3711MA.

          Mark Hicks and Mary Gniadek of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Carol Glasgow and John Mauro of Billing, Cochran, Lyles, Mauro & Ramsey, P.A., Fort Lauderdale, for appellant.

          Robert W. Kelley and Bonnie A. Navin of Kelley Uustal, PLC, and Paul R. Regensdorf, High Springs, for appellees.

          Warner, J.

         In this appeal from a final arbitration award for a medical malpractice claim involving the death of a woman who was both a wife and mother, the appellants contend that the arbitration panel erred in awarding economic damages for the loss of companionship and guidance to the husband and child. The panel also awarded the maximum statutory limitation as an award for non-economic damages. We reverse the award of economic damages for loss of companionship and guidance, as these are non-economic damages covered by the statutory limitation on such damages. The appellants also claim that the award for lost support should be reversed because of the introduction of inadmissible hearsay state of mind evidence. We affirm the loss of support award, as the evidence was admissible and the award was supported by competent substantial evidence. Because of our partial reversal, we also reverse the attorney's fee award for recalculation.

         The Estate of Patricia Belzi and Bernard Belzi (collectively "the Estate"), brought a medical negligence, wrongful death action against Dr. Andrew Agbi and Plantation General Hospital (collectively "the Hospital") alleging that their medical negligence caused the death of Belzi's twenty-four-year-old wife, Patricia, when she was eight months pregnant with their child, Abigail, who survived. After presuit investigation by the Hospital, the parties agreed to voluntary binding arbitration pursuant to section 766.207, Florida Statutes (2014) et seq., to determine damages. Pursuant to the statute, the damages recoverable in arbitration proceedings are limited to:

(a) Net economic damages shall be awardable, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity, offset by any collateral source payments.
(b) Noneconomic damages shall be limited to a maximum of $250, 000 per incident . . . .

§ 766.207(7), Fla. Stat. (2014). Our supreme court has interpreted section 766.207(7)(b) as permitting the $250, 000 limit on non-economic damages to apply to each claimant. St. Mary's Hosp., Inc. v. Phillipe, 769 So.2d 961, 967-68 (Fla. 2000).

         At the arbitration hearing, the Estate did not seek medical expenses, and the parties stipulated to the maximum $250, 000 each in non-economic damages for Belzi and Abigail. The damages issues presented for the arbitration panel to decide were for loss of services, support, and attorney's fees.

         The Hospital objected to two facets of the Estate's damage case which form the basis of the issues on appeal. First, it objected to the Estate's economics expert's inclusion of loss of guidance and companionship in the economic losses suffered by Belzi and his daughter, which it contended was an attempt to value non-economic damages for which they were also awarded $250, 000 each. Second, it objected to hearsay evidence offered as to Patricia's aspirations and goals. A vocational expert used this evidence in projecting Patricia's occupational trajectory, leading to the amount of lost support calculated by the economics expert.

          Both prior to trial and at trial, the Hospital objected to the Estate's expert's testimony regarding calculations on lost companionship and guidance as compensable services. It argued that this was an attempt to circumvent the statutory cap on non-economic damages in medical malpractice arbitrations by labelling non-economic losses of companionship and guidance as "economic, " thus seeking a recovery beyond the $250, 000 per claimant cap. The Chief Arbitrator overruled the Hospital's objections.

         At trial, the Estate's economic expert offered her opinion as to the economic value of the loss of companionship and guidance suffered by Belzi and Abigail. The expert reviewed the statistical data from the National Vital Statistics Reports to determine Patricia's life expectancy and retirement age. She examined how many hours per week Belzi and Abigail would have received "services" from Patricia for "companionship, advice and counsel." She talked to family and friends to determine the time Patricia spent or would have spent on these activities. However, she had no information that Belzi had utilized or was intending to accept "companionship" or "counseling" from third parties as a substitute for his wife's companionship and counsel after her death.

         The Estate's expert examined the wage rates that someone would have to pay in the marketplace to hire people to perform services, such as companions and counselors. Her focus was on determining the economic value of the services which were provided by Patricia, which were now lost. For Belzi, she calculated that Patricia and Belzi spent about twenty hours together a week. For Abigail, she calculated various numbers of hours per year based upon Abigail's age. For both Belzi and Abigail, the expert's report identified the source of value for paid companion services as a New Jersey "Market Survey of Long-Term Care Costs, Various MetLife Market Surveys of Nursing Home, Assisted Living, Adult Day Services, and Home Care Costs, and various Genworth Cost of Care Surveys, Home Care Providers, Adult Day Health Care Facilities, Assisted Living Facilities and Nursing Homes." The dollar cost in New Jersey was adjusted for Florida wages.

         To calculate the amounts for advice and counsel, the expert averaged the hourly wage of a variety of occupations which offer advice, including: child, family, and school social workers; social and human service assistants; marriage and family therapists; residential advisors; loan officers; tax preparers; post-secondary business teachers; financial managers; self-enrichment education teachers; elementary school teachers; secondary school teachers. She applied this averaged hourly rate to the hours she considered that Patricia would have counseled both her husband and her daughter. She testified that these amounts did not include any emotional loss by Belzi and Abigail. After this presentation, the Hospital again objected, and again the Chief Arbitrator overruled the objection, stating that these elements were part of the economic loss of services. In addition to loss of support, the expert calculated the value of other lost services which the Hospital does not contest.

         To determine the economic value of lost support from Patricia, who was twenty-four at the time of her death, the Estate presented the testimony of family and friends as to Patricia's aspirations and goals, to which the Hospital objected but was overruled. The Estate presented a ...

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