Arbitration & Mediation

Flesh Eating Bacteria Attacks Florida's Medical Neglignce Arbitration Statute

By Christopher B. Hopkins, Esq.

In a duel involving amicus briefs from both the plaintiff bar as well as the state hospital association (the defense bar?), the Third District handed down a Christmas Eve decision which likely lead to some thoughtful post-egg nog conversations in households of Florida lawyers. We suspect the Florida Supreme Court may get its shot at this case in 2009.

Florida's Medical Negligence Statute (Chapter 766) is likely one of the worst written in the books, having been revised multiple times leading to a cobbling of poorly organized, quasi-consistent statements of law which is further hobbled by the public policy issues at play (e.g., health care, tort reform, caps on damages, the "insurance crisis" in Florida medicine). That said, its twisted wording and convoluted legislative history is job security for the few lawyers who still practice medical malpractice in Florida since the dawn of caps (2003 tort reform) and the continuing decline in insured providers.

Our focus is on the voluntary arbitration provision in Chapter 766, specifically as it relates to what economic damages are available when the alleged medical negligence involves death. In this case, it apparently involved flesh eating bacteria... and death.

The question in Lifemark Hospitals of Florida, Inc. d/b/a Palmetto General Hosptial v. Mercedes Alfonso, P.R. Estate of Alexis Afonso is whether the 2003 amendment to Florida Statute 766.203(2) and 766.207(7) limits a death claim to the damages available under the Wrongful Death Act, Florida Statute 768.81. The "Med Mal" Statute and the Wrongful Death Statute have never played well together, as evident by the amendments to both in just the last decade, but that goes beyond our scope today.

In a surprisingly pro-defense opinion from the Third DCA (Ramirez, Rothenberg, and Schwartz), the Court held that the wrongful death claimant in arbitration under the "new" Med Mal Statute is limited to Wrongful Death Statute damages. Of note, the exclusive focus in this case is on economic damages. Here's the math behind the result:

1. Section 766.202(3) defines "economic damages" [expenses and 80% of earning capacity], if the claimant is entitled to those types of damages under general law or the Wrongful Death Statute.
2. Section 766.207(7) says that voluntary arbitration under the Med Mal Statute can award damages allowable by Florida law in general, including the Wrongful Death Statute, where applicable.
3. Section 768.18(5) (WD Statute) limits damages in this kind of case to expenses, loss of support, and net accumulations.

The Plaintiff wanted all of #3 damages as well as loss of earning capacity. The arbitration panel gave it to them. The 3rd DCA took it away, noting that it found the med mal statute ambiguous ("clarity is lacking..."). The opinion did not indicate the value of that portion of the claim (or the total award) nor did it address non-economic damages.

Full post as published by Florida Arbitration Law on December 27, 2008 (boomark / email).