Before the arbitration hearing, the parties disclosed their witness lists. North Shore planned to call a neurosurgeon and a neurologist. Navarro moved to strike these two witnesses, arguing that their testimony was an attempt to introduce disguised causation evidence, which is impermissible in damages arbitration (§ 766.106(3)(b)3, Fla. Stat. – an offer to arbitrate means that “liability is deemed admitted and arbitration will be held only on the issue of damages”)…medicalmalpracticelawyers.com, $2M Medical Malpractice Arbitration Award Set Aside, September 2024
In response, North Shore argued that its neurological experts would show that before the hospital rendered any care to Polifroni, he had already suffered a devastating stroke. North Shore argued that, prior to any medical negligence, the stroke itself had reduced his physical capacity to continue working and providing services. North Shore argued this evidence was necessary to accurately demonstrate Polifroni’s future earning capacity before any medical negligence occurred.
Navarro’s motion to strike North Shore’s neurological experts was granted. The order prohibited any life expectancy testimony or evidence that considered the effects of the stroke. North Shore was therefore precluded from presenting any evidence as to Polifroni’s post-stroke, but pre-malpractice life expectancy. The arbitration panel was only permitted to consider economic scenarios in which he had a normal life expectancy and retirement age without regard to his having suffered a debilitating stroke. The panel awarded Navarro damages for lost services, lost money support, and net accumulations in excess of two million dollars.
The First District Court of Appeal State of Florida held in its decision dated July 10., 2024: “In the context of a medical malpractice arbitration, 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 was not the cause of Polifroni’s stroke. The question for the arbitration panel was Polifroni’s earning capacity post-stroke and pre-negligence. It could be, of course, that Polifroni’s stroke did not affect his life expectancy or future earning capacity. That is for the arbitration panel to decide. But North Shore cannot be prevented from making its case. North Shore should have been afforded the opportunity to present evidence as to Polifroni’s reduced life expectancy and earning capacity post-stroke and pre-negligence.”
The Florida appellate court therefore set aside the arbitration panel’s decision.