A Florida woman was diagnosed with stage 3c breast cancer after her physician failed to report evidence of microcalcifications during a routine breast screening two and a half years before the diagnosis. The injured patient filed suit against the hospital, treating physician, and medical imaging company. She agreed to let an arbitration panel determine the amount of damages she was entitled to, but disagreed with their calculation of the damages for loss of earning capacity. She argued that it should be based on her life expectancy before the injury occurred and appealed the arbitration panel’s decision to the Florida Third District Court of Appeals.
All parties agreed there was a chance of the breast cancer recurring, and that the recurrence would be fatal. To determine damages, her loss of earning capacity calculation began at an anticipated date of recurrence, but the parties disputed which life expectancy length should be used. The hospital argued that Florida law required the woman’s life expectancy to be calculated based on her current, post-injury life expectancy. The doctor and imaging company argued awarding damages that calculated her loss of earning capacity based on her pre-injury life expectancy would allow a personal injury claim to survive her death. The hospital, doctor, and imaging company’s argument is based on the idea that she would benefit from an award that belonged to her survivors and estate in a wrongful death action, thus she should be limited to a post-injury life expectancy calculation.
The Court of Appeals agreed with the injured patient and ruled that she should be allowed to calculate her life expectancy based on her pre-injury estimate and not post-injury. They Court agreed that survivors and beneficiaries have a right to sue in Florida for future loss of support and services in a wrongful death action, but noted that a wrongful death action is actually precluded under Florida law when the injured party is successful in obtaining a personal injury judgment. In this case, the injured patient’s family would not be able to recover in a wrongful death action, so she is entitled to damages that calculate her pre-injury life expectancy. The Court of Appeals recognized that several courts around the United States have the same position and that a calculation considering pre-injury life expectancy is fair and necessary to make someone “whole”, or as they would have been but for the injury.
When a traumatic misdiagnosis results in a shortened life expectancy, it is important to obtain all the compensation one is entitled to so bills are paid and loved ones are cared for. The South Florida personal injury attorneys at Friedman, Rodman & Frank understand your set of unique circumstances and know that aggressive litigation is necessary to recover damages and hold the negligent parties accountable. If you have been injured due to medical malpractice, call the experienced South Florida attorneys at Friedman, Rodman & Frank today for a free, confident consultation at (877) 488-8585.
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