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Category: Case Results

Game-Changing Appellate Victory

Rissman appellate attorney Katie Gannon secured a game-changing victory for medical malpractice defendants seeking to present evidence supporting the reduction of economic damages in voluntary binding arbitration proceedings.

Medical malpractice defendants may now, according to the First District, present evidence, including expert testimony, as to a reduction in life expectancy and earning capacity before the negligence occurred in binding arbitration pursuant to Chapter 766.

The First District Court of Appeal set aside an administrative law judge’s order striking the respondent hospital’s expert witnesses and any testimony that a stroke patient was neurologically devastated prior to the provision of medical care. The appellate panel held that the hospital “cannot be prevented from making its case” and “should have been afforded the opportunity to present evidence as to [the decedent’s] reduced life expectancy and earning capacity post-stroke and pre-negligence.”

The appellate court rejected plaintiff’s argument that such evidence is “disguised causation” evidence which is inadmissible upon admission of liability and agreement to arbitrate under section 766.207, Florida Statutes.

In the underlying case, Mauricio Polifroni presented to North Shore Medical Center and, prior to admission, underwent a STAT CT scan showing he had suffered a debilitating stroke before any medical care was rendered. Rissman attorneys Richard Mangan and Kelsey Campbell, in defense of the hospital, disclosed expert witnesses to testify at the final hearing that Mr. Polifroni had suffered a neurologically devastating stroke affecting his work-life expectancy, life expectancy, and thereby all future economic damages awardable.

Polifroni’s Estate moved to strike both experts, citing prior orders in arbitration cases that “only evidence establishing what treatments claimant actually received prior to the admission is admissible to contest the damages.” See, e.g., Ferreiro v. Kendall Healthcare Grp., Ltd., Case. No. 20-1432MA (Fla. Div. Admin Hrg., Order, Sept. 29, 2020).

Four days before the final hearing, the administrative law judge (“ALJ”) entered an order striking the hospital’s experts based on the Third District opinion in Estrada v. Mercy Hospital, Inc., 121 So. 3d 51 (Fla. 3d DCA 2013). Citing Estrada, the ALJ ordered that the damages awarded in an arbitration hearing should be based on the patient’s pre-injury life expectancy, not post-diagnosis life expectancy. Further, the ALJ held that any life expectancy testimony or evidence based on the stroke was inadmissible.

During the final arbitration hearing, the Estate presented expert testimony of future economic damages based on Mr. Polifroni’s pre-stroke, normal life expectancy, work ethic, and likely advancement in his job. The panel awarded economic damages for lost services, lost money support, and net accumulations totaling $2,301,175.06, which accounted for more than eighty percent (80%) of the total award.

On appeal, the hospital argued that the panel should not have evaluated economic damages as though Mr. Polifroni were a healthy individual. It further argued that the erroneous interpretation effectively leaves a respondent unable to contest awardable damages or seek a reduction of the same in a final arbitration hearing where there is expert evidence to support the reduction.

On appeal, the First District agreed that “damages should be measured according to the decedent’s normal life expectancy, ‘unless there is evidence from which the arbitration panel could conclude that [the decedent] had a reduced life expectancy because of issues unrelated to the medical malpractice.’” North Shore Med. Ctr. v. Navarro, Case No. 1D2022-3406 (Fla. 1st DCA Jul. 10, 2024) (citing Barlow v. N. Okaloosa Med. Ctr., 877 So. 2d 655, 660 (Fla. 2004)).

The First District held that the ALJ misapplied Estrada:

The proper application of Estrada supports North Shore’s effort to demonstrate Polifroni’s condition immediately prior to the medical negligence. Unlike the defendants in Estrada, North Shore was not the cause of Polifroni’s stroke. The question for the arbitration panel was Polifroni’s earning capacity post-stroke and pre-negligence.

North Shore, Case No. 1D2022-3406 at *3.

The First District remanded the case to the arbitration panel for further proceedings and to provide North Shore the opportunity to present evidence as to Mr. Polifroni’s reduced life expectancy and earning capacity post-stroke and pre-negligence.


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