Do malpractice acts preclude recovery of wrongful death damages?

DO MEDICAL MALPRACTICE ACTS PRECLUDE THE RECOVERY OF WRONGFUL DEATH DAMAGES? That was the issue with which the Florida courts were confronted in this recent case. As indicated by the dissenting opinion in the case, there are two schools of thought. The majority in this case held that the recovery of damages under Florida's Medical Malpractice Act was the exclusive remedy without regard to what damages, if any, might be recoverable under the state's Wrongful Death Act. A dissenting judge concluded that the laws should compliment each other.

EVELYN BARLOW BROUGHT SUIT AGAINST NORTH OKALOOSA MEDICAL CENTER (NOMC). Her suit arose out of alleged medical malpractice committed by NOMC causing the death of her husband. NOMC admitted liability. The parties chose to proceed under the Alternative Arbitration Procedure for Medical Malpractice Claims set forth in Florida law. At the conclusion of the arbitration hearing, the panel awarded the plaintiff economic damages in excess of $102,000, which included approximately $93,000 for lost services and approximately $9,000 for funeral expenses. However, the panel awarded the plaintiff nothing for the loss of her husband's earning capacity and lost social security and retirement benefits, which she claimed as economic damages. The panel found that the plaintiff failed to demonstrate that the social security benefits did not fairly represent the monies that would have been required to maintain her diseased husband. Simply put, the panel decided that Florida law calls for an award of "net economic damages," and there is no apparent reason to conclude that established principles used to calculate net economic damages should not apply to the case. The plaintiff appealed. The District Court of Appeal of Florida affirmed the decision of the panel. The plaintiff appealed.

THE SUPREME COURT OF FLORIDA AFFIRMED THE JUDGMENT OF THE LOWER COURT AND HELD THAT IT WAS INAPPROPRIATE TO LOOK BEYOND THE LANGUAGE OF THE MEDICAL MALPRACTICE ACT TO DETERMINE THE DAMAGES AVAILABLE TO A CLAIMANT WHO AGREED TO BINDING ARBITRATION. The law expressly provided that economic damages awarded as a result of medical malpractice arbitration are to be reduced in only two ways. First, a claimant is entitled to only 80 percent of the decedent's wage loss and loss of earning capacity. Second, economic damages are to be offset by payments from those collateral sources expressly defined in applicable law. Thus, subject only to these reductions, claimants were entitled to a full range of economic damages, which include a net "financial losses, which would not have occurred but for the injury giving rise to the cause of action." The court recognized that during its 2003 special session, the Florida Legislature amended the applicable law to specify, inter alia, "that damages shall be awarded as provided by general law, including the Wrongful Death Act." However, the court found that these amendments became effective September 15, 2003, and the Legislature expressly stated that "the changes ... shall apply only to any medical incident for which a notice of intent to initiate litigation is mailed on or after the effective date of this act." Thus, the court concluded that these amendments did not apply to the case at bar. The court was careful to note that it expressed no opinion on their effect if any, on damages now recoverable in medical malpractice arbitration proceedings.

A STRONG DISSENTING OPINION WAS WRITTEN IN WHICH THE DISSENTING JUDGE DISAGREED WITH THE MAJORITY'S INTERPRETATION OF THE MEDICAL MALPRACTICE ACT FOR TWO REASONS. First, the majority's decision to award the plaintiff the full amount of the increase in Social Security Benefits effectively read the word "net" out of the statute. Second, damages available in voluntary arbitration under the Medical Malpractice Act should be interpreted in "conjunction with" the Wrongful Death Act and may be consistent with the damages available under that act. The dissenting judge opined that the court should "reconsider" its broader position that the Wrongful Death Act does not control the elements of damages available in a wrongful death action brought under the Medical Malpractice Act. The dissenting judge observed that the medical malpractice act is ambiguous. It does not provide a definition of "net economic damages," nor specifically detail the scope of recoverable damages, and does not specifically identify who may recover damages. Editor's Note: The time is long since passed when there should be uniformity in the law. The dissenting judge got it right! Barlow v. North Okaloosa Medical Center, 2004 WL 252036 So.2d--FL

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Providence, R.I., firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, and Who's Who in America.