Estrella Estrada ("Estrada") and her husband, Carlos Estrada, appeal from an arbitration award in a medical negligence claim. The single issue raised on appeal concerns the interpretation of section 766.207(7)(a), Florida Statutes (2012), which provides for an award of loss of earning capacity in voluntary binding arbitration of medical negligence claims. Because we conclude that the arbitration panel erroneously applied the law of damages for loss of earning capacity, we reverse and remand for the arbitration panel to award Estrada damages for her loss of earning capacity based upon her pre-injury life expectancy.
I. FACTUAL AND PROCEDURAL HISTORY
In September 2007, Estrada underwent a routine mammogram at Mercy Hospital. Dr. Amisha Agarwal interpreted the results of Estrada's mammogram, and did not report evidence of microcalcifications. Two-and-a-half years later, Estrada was diagnosed with stage 3C breast cancer. Estrada has undergone extensive treatment, but currently works full time in the same profession as she did prior to her diagnosis.
Under the alternative arbitration procedure for medical negligence claims set forth in section 766.207,
The parties were in disagreement over the issue of damages for loss of earning capacity. As a result, Estrada filed a motion to determine the scope of recoverable economic damages, seeking an order establishing that she "is entitled to present evidence ... regarding her loss of future wage earning capacity based on her severely curtailed life expectancy." Mercy Hospital filed a response and a motion in limine, arguing that under Florida law Estrada was not entitled to measure her damages for loss of earning capacity based on her pre-injury life expectancy. South Florida Medical Imaging and Argawal also filed a response and motion in limine, arguing that Estrada was "essentially trying to craft a way of having a personal injury claim survive death of the injured party." The Chief Arbitrator denied Estrada's motion, and the matter proceeded to arbitration.
Despite the fact that Estrada's motion was denied, the arbitration panel permitted argument on the issue at the start of the arbitration hearing. After hearing argument, the panel stated that it would allow evidence on both theories of damages and issue its final decision in the arbitration award. Mercy argued that the award of the damages for loss of earning capacity should be limited by Estrada's shortened, post-injury life expectancy. To that end, Mercy presented testimony regarding Estrada's loss of earning capacity measured from the date she would have to stop working because of a recurrence of cancer, to her presumed date of death from the recurrence. Estrada claimed that the damages should be based on her pre-injury life expectancy, and presented testimony as to her loss of earning capacity measured from the point at which she would have to stop working because of a recurrence of cancer, to her otherwise normal life expectancy of 82.8 years. Estrada's calculation of her damages therefore included a time period after her presumed, premature death.
Both Estrada and Mercy presented evidence that the delay in diagnosis resulted in a reduction of Estrada's future life expectancy. Estrada presented testimony that there is a ninety percent chance that she will have a recurrence of cancer within three to eight years. Mercy presented testimony that there is, at best, a fifty percent chance of recurrence in the next ten years. It was undisputed that a recurrence of cancer will be fatal for Estrada.
The arbitration panel ultimately awarded Estrada and her husband a total of $1,000,603.00 in both economic and non-economic damages. Of that amount, $365,000.00 was awarded to Estrada for present value of loss of earning capacity
II. STANDARD OF REVIEW
In a medical negligence claim, an arbitration panel's award of economic damages is governed by section 766.207(7). That section states, in relevant part:
§ 766.207(7)(a), Fla. Stat. (2012). Furthermore, "economic damages," as used in section 766.207, is defined as follows:
§ 766.202(3), Fla. Stat. (2012).
An award made pursuant to section 766.207(7) is treated as final agency action. See § 766.212(1), Fla. Stat. (2012). In an appeal from final agency action, an appellate court reviews an agency's conclusions of law de novo. See § 120.68(7)(d), Fla. Stat. (2012) ("The court shall remand a case to the agency for further proceedings consistent with the court's decision or set aside agency action, as appropriate, when... [t]he agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action."); see also U.S. Blood Bank, Inc. v. Agency for Workforce Innovation, 85 So.3d 1139 (Fla. 3d DCA 2012); Dorcely v. State Dep't of Bus. & Prof'l Regulation, 22 So.3d 834 (Fla. 4th DCA 2009). Because the only issue before us concerns a legal determination made by the arbitration panel, we review the arbitration award de novo.
We find that the arbitration panel erred in measuring Estrada's loss of future earning capacity by her post-injury life expectancy. The essence of Mercy's argument is that Estrada's claim for loss of earning capacity beyond the date of her "presumed future death" is impermissible because the true beneficiaries of such an award would be her survivors and estate. This argument is erroneous as a matter of law. It is true that in a wrongful death action the decedent's survivors may recover the value of future loss of support and services and the decedent's estate may recover loss of prospective net accumulations. See § 768.21(1), (6), Fla. Stat.
Our determination on this issue is consistent with that of the majority of American courts, which calculate an award of loss of earning capacity based on the injured person's pre-injury life expectancy. As the Supreme Court stated in Sea-Land Services, Inc., v. Gaudet, 414 U.S. 573, 594, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974), "[u]nder the prevailing American rule, a tort victim suing for damages for permanent injuries is permitted to base his recovery `on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury.'"
This principle was applied in Moattar v. Foxhall Surgical Associates, 694 A.2d 435 (D.C.1997), a case analogous to the instant case. In Moattar, the plaintiff sued her physician for medical negligence, alleging that a delay in diagnosing and treating her breast cancer caused her permanent injuries and damages and would probably result in her premature death. Id. at 436. The trial court precluded the plaintiff from presenting testimony regarding the present value of her future loss of earnings, concluding that the issue was not ripe for consideration until the cancer recurred or until the plaintiff's death. Id. The Court of Appeals reversed, concluding that the trial court erred in precluding the plaintiff from presenting her claim for future economic losses. Id. at 440. In reaching its conclusion, the court stated:
Id. at 438 (emphasis added).
Similarly, in Monias v. Endal, 330 Md. 274, 623 A.2d 656 (1993), the plaintiff sued her physician for negligently failing to diagnose and treat her breast cancer. In affirming the award of "`post-premature death' loss of future earnings" the Court of Appeals stated:
330 Md. at 280-81, 623 A.2d at 659; accord Edgar v. Sec'y of Dep't of Health & Human Servs., 989 F.2d 473 (Fed.Cir.1993); Lozada v. United States, 140 F.R.D. 404 (D.Neb.1991), aff'd, 974 F.2d 986 (8th Cir. 1992); In re Joint E. & S. Dist. Asbestos Litig., 726 F.Supp. at 426; Burke v. United States, 605 F.Supp. 981 (D.Md.1985); Morrison v. State, 516 P.2d 402 (Alaska 1973); Roers v. Engebretson, 479 N.W.2d 422 (Minn.Ct.App.1992); Hall v. Rodricks, 340 N.J.Super. 264, 774 A.2d 551 (App.Div. 2001); Doe v. State of New York, 189 A.D.2d 199, 595 N.Y.S.2d 592 (App.Div. 1993). See also Restatement (Second) of Torts § 924, cmts. d, e (1979);
In addressing an award of damages for loss of earning capacity, the Supreme Court of Florida explained: "It is the function of an award of damages to place the injured party in an actual, as distinguished from a theoretical position, financially equal to that which he would have occupied had his injuries not occurred." Renuart Lumber Yards, Inc. v. Levine, 49 So.2d 97, 98 (Fla.1950). Mercy can cite to no Florida case in support of the proposition that this statement is not true where the plaintiff's life expectancy is affected by the tortfeasor's negligence. It is uncontested that Mercy's failure to timely diagnose and treat Estrada's cancer is the reason for her shortened life expectancy. Accordingly, her damages for loss of future earning capacity must be based upon her pre-injury life expectancy. To rule otherwise would result in under-compensation for Estrada, and in essence reward Mercy for its negligence.
For the above reasons, we reverse the award of loss of earning capacity, and remand with directions for the arbitration panel to recalculate the award based upon Estrada's pre-injury life expectancy.