HEALTHCARE UNDERWRITERS GROUP, INC., AMARNATH VEDERE, M.D. and CARDIOLOGY PARTNERS, P.L. v. DEBORAH SANFORD, as Personal Representative of the ESTATE OF GERALD L. SANFORD

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
HEALTHCARE UNDERWRITERS GROUP, INC.,
AMARNATH VEDERE, M.D., and CARDIOLOGY PARTNERS, P.L.,
Appellants,
v.
DEBORAH SANFORD, as Personal Representative of the
ESTATE OF GERALD L. SANFORD, deceased,
Appellee.
Nos. 4D20-2023 and 4D20-2026
[March 30, 2022]
Consolidated appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; James L. Martz, Judge; L.T. Case No.
502016CA0011254.
Mark D. Tinker of Cole, Scott & Kissane, P.A., Tampa, and Adrianna de
la Cruz-Munoz of Cole, Scott & Kissane, Plantation, for appellant
Healthcare Underwriters Group, Inc.
Mark Hicks and Dinah Stein of Hicks, Porter, Ebenfeld & Stein, P.A.,
Miami, and Keith J. Puya and Hector R. Buigas of the Law Offices of Keith
J. Puya, P.A., Palm Beach Gardens, for appellants Amarnath Vedere, M.D.
and Cardiology Partners, P.L.
William Zoeller and Michael Baxter of Schuler, Halvorson, Weisser,
Zoeller & Overbeck, P.A., West Palm Beach, and Andrew A. Harris and
Grace Mackey Streicher of Harris Appeals, P.A., Palm Beach Gardens, for
appellee.
WARNER, J.
Dr. Amarnath Vedere, Cardiology Partners, P.L., and Healthcare
Underwriters Group, Inc. (collectively referred to as “Dr. Vedere”) appeal a
final judgment following a jury verdict in favor of Plaintiff Deborah Sanford,
as personal representative of the Estate of Gerald L. Sanford, in a medical
malpractice wrongful death suit. Dr. Vedere raises multiple issues: 1) the
trial was tainted by the improper inclusion on the verdict form of a former
settling defendant; 2) a new trial is required because of the admission of
prejudicial “financial motive” testimony and argument; 3) improper
argument regarding the survivor’s life expectancy resulted in a grossly
excessive award of non-economic damages to decedent’s daughter; and 4)
the court erred in awarding prejudgment interest on the entire amount of
the verdict. We conclude that issues one, two, and four do not merit
reversal, but that the closing argument requires a new trial on the issue
of the surviving daughter’s non-economic damages. We address each
issue.
Facts
The Estate brought a wrongful death action for medical malpractice
against Dr. Vedere and Palm Beach Gardens Medical Center 1 (“PBGMC”),
alleging that Dr. Vedere negligently performed a percutaneous coronary
intervention (PCI) on the decedent, causing him to go into cardiogenic
shock and respiratory arrest, leading to his death a month later. The
Estate claimed that PBGMC was responsible for Dr. Vedere’s negligence
on multiple grounds, including that PBGMC and Dr. Vedere were acting
in a joint venture while treating the decedent. PBGMC settled with the
Estate and was dismissed by court order prior to trial. The Estate’s
medical negligence claim against Dr. Vedere proceeded to jury trial.
At trial, evidence revealed that the decedent had heart issues and was
seen by a surgeon, who recommended a mitral valve repair. Not wanting
surgery, the decedent sought out another cardiologist who concluded that
he did not need surgery.
A year later, the decedent sought out the opinion of Dr. Vedere, a board-
certified interventional cardiologist, on the mitral valve repair. After
several tests, the doctor recommended continued medical therapy.
Nine months later, the decedent returned to Dr. Vedere with complaints
of heart palpitations. After conducting several tests, Dr. Vedere
recommended performing a right and left diagnostic heart catheterization.
That procedure was performed and revealed severe calcified stenosis and
narrowing of the left anterior descending artery, the most dominant and
important coronary artery. Because of the high risk for heart attack or
death, Dr. Vedere recommended a PCI procedure to open the blockage and
implant a stent. A PCI is a nonsurgical intervention (going through a hole
1Palm Beach Gardens Community Hospital, Inc., d/b/a Palm Beach Gardens
Medical Center.
2
in the skin) to open the heart arteries and keep them open. Dr. Vedere
anticipated it would be a complex procedure due to the calcification and
tortuosity of the artery, but he had performed approximately 5,000 PCIs
in a twenty-two-year period. Because of the decedent’s age, Dr. Vedere
told him that medications would not work to lessen the blockage. The
decedent agreed to an elective PCI procedure, and it was scheduled for the
following week.
The procedure went ahead as scheduled. Dr. Vedere intended to first
insert a guide catheter to open the artery and let tools in, and then use an
atherectomy device to shave off the plaque inside the artery, before opening
the artery with a balloon and placing a stent. During the first hour and a
half of the PCI procedure, Dr. Vedere made fourteen insertions, removals,
and exchanges of guide catheters and wires in an unsuccessful attempt to
use the atherectomy device. After the fourteenth attempt, the decedent’s
blood pressure suddenly dropped, and he went into cardiogenic shock and
respiratory arrest.
The decedent was immediately intubated and stabilized by the code
team. Dr. Vedere was then able to insert and inflate a balloon to compress
fifty to sixty percent of the blockage, but was unable to deploy a stent due
to the calcification. Dr. Vedere called a cardiovascular surgeon, and after
conferring with him, resumed the procedure. He then inserted an Impella
device (a device that assists with pumping blood in the heart) to stabilize
the decedent. Later, the decedent was transported to the ICU where he
stayed for several more weeks, remaining intubated and minimally
responsive. After his health deteriorated further, his wife and daughter
decided to remove him from life-support.
The Estate later filed suit for medical malpractice and wrongful death,
claiming the PCI was not medically indicated nor was it properly
performed. Dr. Vedere defended contending that the procedure was
proper, and that the decedent died of other complications.
During the trial, the Estate’s expert, a board-certified cardiologist,
testified that the PCI procedure which Dr. Vedere performed was not
justified and was below the standard of care, because the decedent was
asymptomatic, and his condition was non-life threatening. Specifically,
the expert opined that the decedent had no symptoms to improve, and the
procedure would not reduce his mortality. According to the Estate’s
expert, the decedent’s palpitations and atrial fibrillation stemmed from his
mitral valve problems and not from the coronary blockage, because the
decedent did not have symptoms of coronary artery disease.
3
Dr. Vedere disagreed. He and his expert testified that the PCI procedure
was medically indicated. They concluded that the mitral valve did not need
to be replaced, and coronary bypass surgery was inappropriate and carried
a much higher risk.
As to the standard of care, the Estate’s expert testified that he had
performed over 2,000 PCI procedures during his career and the greatest
number of attempts he had ever made to insert a guide catheter was five.
He opined Dr. Vedere may have had trouble inserting the guide catheters
because he had failed to notice during the diagnostic heart catheterization
that the decedent had an unusual anatomic feature: he had an absent left
main artery and instead had “dual ostia,” a bifurcation that causes two
small openings as opposed to one large opening from a left main artery,
which was highly unusual and would make the insertion of the catheter
much more difficult. The expert testified that the prudent thing for Dr.
Vedere to have done when he was having trouble inserting the guide
catheters was to “stop” and “back off” before “do[ing] more harm than
good.”
Conversely, Dr. Vedere and his expert testified that the decedent had a
short, but not absent, left main artery. They also testified that the number
of catheters used in the PCI procedure was not below the standard of care,
even if the decedent’s anatomy made it more challenging and ultimately
led to the unsuccessful advancement of the atherectomy device and stent.
As for causation, the Estate’s expert testified that the cardiogenic shock
and respiratory arrest resulted from Dr. Vedere’s use of fourteen catheters,
which was excessive under the circumstances and caused an impairment
of blood flow. Dr. Vedere and his expert testified that the decedent’s
coronary artery disease and atrial fibrillation were the cause of death. Dr.
Vedere also noted that the sedation was a possible cause.
The Estate advanced a theory that Dr. Vedere’s negligent performance
stemmed from financial motivation. The Estate contended that Dr. Vedere
performed an unnecessary procedure and made multiple attempts to
insert the catheters, because he wanted to be able to use a new
atherectomy device on the market, called the Diamondback Orbital 360
which was manufactured by a company called CSI. Dr. Vedere admitted
he received compensation from CSI to train technologists on how to use
the device, but he did not receive compensation for using the device itself.
Only a single payment of $2,000 was ever identified.
4
On the subject of damages, the Estate’s expert testified that, had the
decedent survived the procedure, his life expectancy would have been ten
years. Near the end of trial, the Estate read the mortality tables for
decedent (12.9 years), his surviving wife (21.9 years), and his surviving
daughter (59.7 years) into evidence. Dr. Vedere objected and moved to
strike the testimony as to the survivors on the basis that it misled the jury
because recovery for pain and suffering would be limited to their joint life
expectancy with the decedent. The court overruled the objection and ruled
that Dr. Vedere could clarify any misconceptions during closing argument.
But in closing argument, the Estate’s counsel argued to the jury, over
objection, that the daughter would have a long life expectancy and the jury
should consider how much longer she would live and have time to think
about the years she lost with her dad.
Prior to trial, the parties drafted a verdict form. After noticing that the
Estate’s draft included PBGMC in the caption, defense counsel removed it.
The parties agreed on the form except for the language in one question,
and defense counsel agreed to provide the court with copies of both
versions of the form. The court approved the Estate’s language for the
question on the first day of trial.
On the last day of trial, defense counsel provided the court with the
final verdict form during the charge conference. According to the defense,
the court alerted them during the Estate’s closing argument that there was
a numbering problem with the verdict form and that it would be fixed.
Following closing arguments and rebuttal, the judge gave the jury
instructions and then gave the bailiff the jury verdict forms. Neither party
requested to see the forms given to the bailiff. However, after the jury had
returned its verdict and was discharged, defense counsel noticed that the
verdict form included PBGMC in its caption.
The jury entered a verdict for $4,086,004.46, which included
$1,000,000 in non-economic damages for the surviving wife and
$2,500,000 in non-economic damages for the surviving daughter.
In his motion for new trial, Dr. Vedere contended that by including
PBGMC in the caption, the jury was inadvertently advised of a settling
defendant in violation of section 768.041(3), Florida Statutes (2020), and
a new trial was required. Neither party nor the trial court could explain
how the incorrect verdict form was used. Nevertheless, the trial court
ultimately concluded that this error was harmless, as the jury was not
misled into believing a settlement took place. The court denied the motion
for new trial on all grounds raised, and Dr. Vedere appeals.
5
The Verdict Form Containing a Settling Defendant in the Caption
A trial court’s evidentiary rulings and rulings on motions for mistrial
and new trial are reviewed for abuse of discretion. See R.J. Reynolds
Tobacco Co. v. Calloway, 201 So. 3d 753, 759 (Fla. 4th DCA 2016); Hurtado
v. Desouza, 166 So. 3d 831, 835 (Fla. 4th DCA 2015). A trial court abuses
its discretion if its ruling was based on an “erroneous view of the law or on
a clearly erroneous assessment of the evidence.” McDuffie v. State, 970
So. 2d 312, 326 (Fla. 2007) (quoting Cooter & Gell v. Hartmarx Corp., 496
U.S. 384 (1990)).
In the motion for rehearing and on appeal, Dr. Vedere contends that
the trial court committed reversible error by giving the jury a verdict form
with former defendant PBGMC in the case caption, in violation of section
768.041(3), Florida Statutes (2020). 2 Section 768.041(3) states that the
fact of “a release or covenant not to sue, or that any defendant has been
dismissed by order of the court shall not be made known to the jury.” Id.In Holmes v. Area Glass, Inc., 117 So. 3d 492 (Fla. 1st DCA 2013), relied
on by Dr. Vedere, the court considered the inclusion of a settling defendant
in the caption of the verdict form and whether it violated section
768.041(3). The plaintiffs filed a negligence action against Area Glass,
Inc., and their insurer, State Farm, over the replacement of a damaged
windshield on their car. Before trial, the plaintiffs settled with Area Glass
and dismissed it from the lawsuit. In preparation for trial, the parties
submitted proposed verdict forms. The plaintiffs’ form purposely did not
include Area Glass in the caption, while State Farm’s did. The court chose
to use the verdict form including Area Glass in the caption.
Once the case was tendered to the jury for deliberation, the jury
returned the question: “Why is Area Glass listed as a defendant on the top
of the verdict form?” Id. at 494. The plaintiffs asked the court to answer
that the only defendant in the case was State Farm. The court instead
chose to tell the jury that it could not answer the question and that they
should “look to the testimony and the evidence that was presented and
draw conclusions from that.” Id. A few minutes later, the jury returned a
2While the Estate contends this issue is not preserved for lack of objection, we
disagree because of the unusual facts of this case, where the error was not
discovered until after the jury deliberated, and a contemporaneous objection
could not be made. See Sayih v. Perlmutter, 561 So. 2d 309 (Fla. 3d DCA 1990).
Dr. Vedere preserved the issue by moving for a new trial. See id.6
verdict in State Farm’s favor. The plaintiffs moved for a new trial based on
the caption and stated that Area Glass’ absence from the case could only
imply that it had settled, which was an inference the jury should not have
been encouraged to make. The court denied the motion.
On appeal, although the First District noted that no rule required the
caption on the verdict form to be identical to the caption used on all
pleadings, the court also concluded that including Area Glass, a settling
defendant in the caption, violated section 768.041(3). Id. at 495. That
error was compounded when the jury asked about the inclusion, and the
court simply told the jury to draw its own conclusions from the evidence.
The court concluded that the inclusion was harmful. “Given the jury
question, and the speed with which the jury returned a verdict after the
court’s answer, it appears that the caption (and the likely inference that
appellants had already recovered from Area Glass) did, in fact, influence
the verdict.” Id. at 495.
Dr. Vedere relies on Holmes to argue for a bright-line rule that a case
caption of a verdict form containing a settling defendant constitutes
reversible error. Holmes, however, does not hold that it is per se reversible
error. It was error under the facts of the case because the jury’s question
revealed that the jury itself was influenced by the inclusion of the settling
defendant. The First District concluded that because it was apparent that
it did influence the jury, reversal was required.
In contrast to the jury in Holmes, the jury in this case did not ask about
the verdict form. In fact, nothing in the record indicates whether or not
the jury noticed PBGMC in the caption. Also, unlike in Holmes, the trial
court here did not invite the jury to draw any inferences from the verdict
form.
“[A] violation of section 768.041(3) is subject to a harmless error
analysis. Thus, a violation of the statute does not require an automatic
mistrial, or a new trial.” Samick Corp. v. Jackson, 645 So. 2d 1095, 1096
(Fla. 4th DCA 1994) (citations omitted). In Holmes, the error influenced
the jury. In this case, the trial court reasoned as follows in denying the
motion for new trial:
The issue is that there was not one scintilla of discussion.
There was not one scintilla of argument. There was nothing
that was raised during this trial that would give rise to an
error in discussing a party that had settled. No one in this
case argued anything about the medical center. Never did
7
they raise it with regard to liability, or settlement, or any
issues in it.
The court found that the error was harmless. Most significantly, and
unlike in Holmes, there is no indication that the jury even noticed the
verdict caption. “To test for harmless error, the beneficiary of the error
has the burden to prove that the error complained of did not contribute to
the verdict. Alternatively stated, the beneficiary of the error must prove
that there is no reasonable possibility that the error contributed to the
verdict.” Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256 (Fla. 2014).
The trial court, who was closest to the matter, concluded there was no
possibility that this error contributed to the verdict. We agree.
Financial Motive Evidence and Argument
At trial, the court permitted the Estate’s counsel, over vigorous defense
objections as to relevance, to question Dr. Vedere on cross-examination
and attempt to impeach him with his deposition regarding financial
compensation from atherectomy device manufacturer, CSI. The Estate
wished to use the testimony “to suggest that [Dr. Vedere] was getting paid
to use [the device] and that he’s using it and that’s his motive for doing an
unnecessary procedure and not stopping when he should have.”
In overruling the objection, the court noted that the Estate’s theory of
the case from the beginning was that Dr. Vedere performed an
unnecessary procedure not indicated by the symptoms that the patient
had. The court found it to be “wholly relevant and consistent” with the
Estate’s case that the motive for the procedure was monetary gain. The
Estate was then allowed to proceed with the questioning. Dr. Vedere
denied getting paid by CSI for the devices themselves, but he admitted to
income for previously training hospital technicians on their proper use.
The Estate was also allowed to impeach the doctor with his deposition in
which he testified that he had received compensation “for atherectomy
devices.” He reiterated that he did not get paid for the device. He did get
paid to train the technologists and had received one payment of $2,000.
The Estate’s counsel raised financial motive again in closing argument,
over Dr. Vedere’s objection. Counsel first began to discuss the new device
and stated that Dr. Vedere denied being paid for using it. The defense
immediately objected to the argument as being irrelevant and lacking a
predicate, arguing that the Estate had to show that he was making a profit
specifically from performing the procedure on the decedent. The court
overruled the objections. The Estate’s counsel then argued:
8
So he has a relationship, there’s a financial relationship with
CSI that [the decedent and his wife] had no idea about. And
Dr. Vedere did testify that the device that he was trying to use,
never successfully, it was new on the market. That’s what he
said. But the family knows nothing about that. So when you
ask yourself why did he keep going? Was he trying to be a
hero? Was he acting in the patient’s best interests? Or was
he trying to show CSI that he could get this in? You consider
that.
In this appeal, Dr. Vedere argues a new trial is independently warranted
by plaintiff’s inflammatory questioning and arguments regarding a
payment made by CSI to Dr. Vedere to train PBGMC technologists to use
the device. The Estate responds that the trial court did not abuse its
discretion in allowing this line of questioning, because the trial court
determined that this evidence was relevant to understanding why Dr.
Vedere recommended the procedure and made numerous catheter
attempts.
In order to determine whether a doctor breached the standard of care
in a medical malpractice action, a defendant doctor’s actions are measured
against the prevailing professional standard of care as testified to by a
qualified medical expert. Saunders v. Dickens, 151 So. 3d 434, 441 (Fla.
2014). Evidence offered in support of the element of breach must be
relevant in order to be admissible. See § 90.402, Fla. Stat. (2020); §
90.401, Fla. Stat. (2020) (“Relevant evidence is evidence tending to prove
or disprove a material fact.”). Relevant evidence is inadmissible if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of issues, or misleading the jury. § 90.403, Fla. Stat.
(2020).
Although the determination of relevancy is within the trial court’s
discretion, a trial court’s discretion in determining the relevancy of
evidence is limited by the rules of evidence and applicable case law.
Defilippo v. Curtin, 255 So. 3d 351, 355 (Fla. 4th DCA 2018). An appellate
court will not overturn that decision absent a clear abuse of discretion. Id.“A trial court’s discretion regarding counsel’s improper arguments to the
jury is guided by whether the comments and arguments were ‘highly
prejudicial and inflammatory.’” Fasani v. Kowalski, 43 So. 3d 805, 809
(Fla. 3d DCA 2010) (quoting SDG Dadeland Assocs., Inc. v. Anthony, 979
So. 2d 997, 1001 (Fla. 3d DCA 2008)).
9
Dr. Vedere contends that evidence of a medical practitioner’s potential
financial motive is irrelevant in all medical malpractice cases because a
doctor’s actions are measured objectively as to whether the doctor
breached the standard of care. The trial court, however, ruled that such
evidence would be relevant to the issue of whether the doctor’s
recommendation of the PCI procedure was negligent and not consistent
with the standard of care, which was hotly debated at trial.
Case law supports the use of financial motive evidence in such
circumstances. In Miller v. Affleck, 632 So. 2d 79 (Fla. 1st DCA 1993),
disapproved of on other grounds by Brown v. Est. of Stuckey, 749 So. 2d
490 (Fla. 1999), the only Florida case we could find addressing the issue,
the court found that a surgeon’s testimony that his income was in part
dependent upon the number of surgeries he performed was relevant and
admissible in a medical malpractice action where the propriety of the
surgery and whether the surgeon deviated from the standard of care were
issues in the case. “The doctor’s thought process in making this decision
is clearly relevant to this issue.” Id at 81.
Cases from other jurisdictions also allow evidence of financial gain in
malpractice suits. For instance, in Corrigan v. Methodist Hospital, 874 F.
Supp. 657, 659 (E.D. Pa. 1995), the court found that a financial tie
between a doctor and a surgical screw manufacturer was relevant in a
negligence action against the doctor. In Shea v. Esensten, 622 N.W.2d
130, 135–36 (Minn. Ct. App. 2001), although the court found the evidence
of financial incentive built into a managed care contract irrelevant, it
conceded that evidence of such financial incentive may be relevant where
there is a “plausible link” between the financial evidence and the plaintiff’s
treatment. And in Lancaster v. Kaiser Foundation Health Plan of Mid-
Atlantic States, Inc., 958 F. Supp. 1137 (E.D. Va. 1997), also concerning
managed care incentives, the court in dicta said:
[M]edical malpractice plaintiffs need only show that a
deviation from the standard of medical care occurred; they are
not required to show why it occurred. A health care provider’s
deviation from the standard of care is actionable whether it
was occasioned by inadvertence, ignorance, mistake,
superstition, or indeed for any reason at all. Yet, this does not
mean that it is never appropriate for a plaintiff to show the
cause of a negligent medical treatment decision. In this
context, for example, it may be relevant for plaintiffs to
attempt to show that the Incentive Program induced [the
doctors] to refrain from ordering diagnostic tests or a
10
neurological consult for the purpose of rebutting a claim by
[the doctors] that their decision was based solely on sound
medical consideration.
Id. at 1146 (footnote omitted). See also Paul R. Sugarman & Valerie A.
Yarashus, Admissibility of Managed Care Financial Incentives in Medical
Malpractice Cases, 34 TORT & INS. L.J. 735 (1999).
Applying the law to this case, we conclude that the trial court did not
abuse its discretion in admitting the evidence and argument concerning
financial arrangements which Dr. Vedere had with the manufacturer of
the device. While motive is not an element of a cause of action for
malpractice, the trial court did not abuse its discretion in determining
motive was relevant under the facts of this case as to the claim of
negligence in the doctor’s recommendation of the PCI procedure. This
evidence also tended to rebut the doctor’s claim that his procedure was
“based solely on sound medical consideration.” See Lancaster, 958 F.
Supp at 1146. No new trial is warranted on this ground.
Life Expectancy Evidence and Argument
As to damages, Dr. Vedere contends that the trial court erred in
allowing the survivors’ life expectancies into evidence where they extended
beyond that of the decedent, as well as arguing to the jury, over objection,
that it may consider the considerably longer life of the surviving daughter
in awarding damages. We agree that based upon the supreme court’s
determination that a surviving minor’s non-economic damages for the
wrongful death of a decedent are awardable from the date of the injury to
the time the decedent would normally have expected to die, the court erred
in overruling the objection to the closing argument, which we cannot deem
harmless beyond a reasonable doubt.
In BellSouth Telecommunications, Inc. v. Meeks, 863 So. 2d 287, 292
(Fla. 2003), the court considered whether the wrongful death statute
limited non-economic damages for a surviving minor to the period of
minority of the child. After reviewing the statute, the court held that a
“review of the four parallel subsections granting wrongful death damages
to survivors indicates that a minor child’s recovery under section 768.21(3)
should be measured by the joint life expectancy of the child and the
deceased parent.” The court’s reasoning was based in part on the fact that
because “it would be expected that a child would lose his or her parents
due to natural causes during the child’s lifetime, a child’s pain and
11
suffering damages related to a parent’s premature death should be limited
by the parent’s normal life expectancy.” Id. at 292.
Despite Meeks clear limitation on a minor’s pain and suffering damages
for the loss of a parent, the Estate’s counsel in closing argument invited
the jury to consider the surviving daughter’s entire life expectancy in
determining her entitlement to non-economic damages.
PLAINTIFF: But she lost [her] dad from age 17 to 27, and a lot
of things happened during that time and she has a long, long
life expectancy, where she can think about the decade of
things that never will happen.
DEFENSE: Excuse me, Judge, that’s not relevant.
THE COURT: Overruled.
DEFENSE: Expectancy beyond the ten years. Move to strike.
THE COURT: Overruled. I think it was the ten years.
PLAINTIFF: So for Jennie, when you consider and you
evaluate a loss of her love, she -- I don’t want to suggest that
her relationship is more valuable, or -- it’s different, but she’s
going to live longer and her -- her relationship is different,
and again, I don’t want to offend you with a number, I don’t
want to go too low and give my clients an unfair verdict, so I’m
just telling you that this is a suggestion and a suggestion only.
You do what you think, using [your] life experience and your
understanding of the evidence of that’s there but for Jennie I
would say I suggest 3 million.
(Emphasis added.) This argument plainly conflicts with Meeks. The court
erred in overruling counsel’s objection and by allowing counsel to suggest
to the jury that it should consider the daughter’s entire life expectancy in
awarding pain and suffering damages to the daughter.
Although the trial court instructed the jury that it may consider the
joint life expectancy of the surviving daughter and the decedent, that
instruction was given before closing argument. Because defense counsel’s
objection to the improper argument was overruled, the jury could have
believed that consideration of daughter’s entire life expectancy would be
appropriate.
12
The Estate has not shown that this error was harmless under the
Special standard. The surviving daughter was awarded greater damages
than the surviving spouse, even though their awards should have been
similarly limited to their joint life expectancy with the decedent, which was
either ten or twelve years. See Meeks, 863 So. 2d at 292 (“[B]ecause it
would be expected that a child would lose his or her parents due to natural
causes during a child’s lifetime, a child’s pain and suffering damages
related to a parent’s premature death should be limited by the parent’s
normal life expectancy.”).
Although Dr. Vedere also argues that it was error to admit the mortality
tables showing the life expectancy of decedent’s wife, we conclude that it
was not error to admit the tables as to the surviving spouse, particularly
because these tables were not used in closing argument to request greater
damages from the jury than Meeks authorizes. In McQueen v. Jersani, 909
So 2d 491, 496 (Fla. 5th DCA 2005), the court held that some evidence
relevant to the joint life expectancies of both the survivor and the decedent
is needed to establish damages pursuant to section 768.21(2). The
plaintiff in McQueen did not introduce mortality tables, but the court found
that this was not fatal and that the jury could use the medical evidence
regarding the decedent and their own observations of the surviving spouse
to establish the joint life expectancy. In this case, the Estate used the
mortality tables to provide that evidence. As to the surviving spouse, the
evidence was relevant, and on this record we cannot say it was prejudicial.
We thus reverse the award of non-economic damages for the surviving
daughter. We agree with the Estate, however, that a new trial should be
limited to determining the daughter’s non-economic damages. Because it
is undisputed that the daughter’s life expectancy exceeds the life
expectancy of the decedent, in any new trial, the mortality tables should
be limited to the life expectancy of the decedent.
Pre-Judgment Interest
Prior to filing suit, the Estate offered to arbitrate with Dr. Vedere,
pursuant to the voluntary binding process for medical malpractice claims
established in Chapter 766 of the Florida Statutes. Dr. Vedere refused.
After the verdict, the Estate sought pre-judgment interest, allowed under
section 766.209. The parties disagreed as to the date from which pre-
judgment interest should be calculated. The Estate argued that it should
be calculated from the date of the injury. Dr. Vedere contended that it
should be calculated from the date of the verdict for economic damages,
13
and that pre-judgment interest was not available at all for non-economic
damages, in accordance with common law. Noting that the statute was
unclear as to which date should apply, the court awarded interest from
the date on which the doctor rejected arbitration and awarded
$816,689.37 in interest. Dr. Vedere contends that this was error.
A trial court’s decision concerning a party’s entitlement to prejudgment
interest is reviewed de novo. Sterling Vills. of Palm Beach Lakes Condo.
Ass’n v. Lacroze, 255 So. 3d 870, 872 (Fla. 4th DCA 2018).
“When construing a statute, this Court attempts to give effect to the
Legislature’s intent, looking first to the actual language used in the statute
and its plain meaning.” Trinidad v. Fla. Peninsula Ins. Co., 121 So. 3d 433,
439 (Fla. 2013).
Chapter 766 establishes a voluntary binding arbitration process for
potential medical malpractice claims. The Legislature set forth its intent
in establishing arbitration in section 766.201(2)(b), which states:
Arbitration shall provide:
1. Substantial incentives for both claimants and defendants
to submit their cases to binding arbitration, thus reducing
attorney’s fees, litigation costs, and delay.
§ 766.201(2)(b), Fla. Stat. (2020). Section 766.207(7)(k) provides that “[a]
defendant who rejects a claimant’s offer to arbitrate shall be subject to the
provisions of s. 766.209(3).” § 766.207(7)(k), Fla. Stat. (2020). In turn,
section 766.209(3)(a) provides that if a defendant refuses a claimant’s offer
of voluntary binding arbitration:
The claim shall proceed to trial, and the claimant, upon
proving medical negligence, shall be entitled to recover
damages subject to the limitations in s. 766.118, prejudgment
interest, and reasonable attorney’s fees up to 25 percent of the
award reduced to present value.
§ 766.209(3)(a), Fla. Stat. (2020).
Because section 766.209(3)(a) does not state when the liability for
interest commences or the damages to which it applies, Dr. Vedere
contends that we should read common law into the statute. “[W]here a
statute is silent, the courts ‘fill in the inevitable statutory gaps’ by relying
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on the common law.” Dove v. McCormick, 698 So. 2d 585, 589 (Fla. 5th
DCA 1997).
We do not view the statute as “silent” on the issue. As the incentive of
arbitration is to avoid costs and delay, the predicate to the award of
prejudgment interest is the rejection of the claimant’s offer of arbitration,
according to the statute. Once a defendant rejects the arbitration offer,
the defendant is subject to the additional costs under section
766.209(3)(a). Therefore, prejudgment interest should run from the time
the defendant is subject to the terms of the statute, as the trial court
found.
The statute also states that claimant is entitled to recover damages,
prejudgment interest, and reasonable attorney’s fees. It does not
differentiate between the types of damages on which prejudgment interest
should apply. Therefore, for purposes of the statute, we conclude that the
prejudgment interest must accrue on all damages awarded. To hold
otherwise would require us to add words to the statute.
The Legislature’s “incentive” to accept arbitration and avoid litigation
would make no sense if it merely permitted the same award of prejudgment
interest a plaintiff would already be entitled to under common law. In
Graber v. Clarendon National Insurance Co., 819 So. 2d 840 (Fla. 4th DCA
2002), we recognized the “long-standing principle” under Florida law that
“prejudgment interest is not a penalty,” but rather “is an element of
compensatory damages” that is “traditionally imposed on liquidated
damages.” Id. at 843. However, we distinguished prejudgment interest
under section 766.209 from traditional prejudgment interest on the basis
that section 766.209 prejudgment interest “is a statutorily created
incentive” that “is not tied to the liquidation of damages.” Id. In other
words, prejudgment interest under the statute is not the same as common
law pre-judgment interest.
We accord the statute its plain meaning and agree with the trial court’s
conclusion that the statute authorizes the assessment of prejudgment
interest on all damages from the date the defendant rejects arbitration.
Otherwise, we would not effectuate the legislative intent expressed in
section 766.201(2)(b) to incentivize arbitration.
Conclusion
As set forth in this opinion, we affirm the final judgment, except for the
award of non-economic damages to the surviving daughter. On that issue,
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we reverse for a new trial. Because of the reversal of the award to the
daughter, while we affirm the trial court’s method of calculation of
prejudgment interest, the present pre-judgment award must be reduced
by the award of damages to the surviving daughter, which may be
recalculated after a new award is rendered.
Affirmed in part and reversed in part.
GROSS and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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