In what appears to be a case of first impression, the Third District Court of Appeal of Florida recently held that that a plaintiff may recover value of lost earning capacity based on life expectancy as it would have been if not shortened by injury at issue in the case. See Estrada v. Mercy Hospital, Inc., So.3d 2013 WL 1442251 (3d DCA 4-10-13).

In the Estrada case, a patient and her husband sued several health care providers due to a delay in the diagnosis of the patient’s breast cancer. The Parties agreed to binding arbitration and stipulated that the delay in the diagnosis caused the patient’s life expectancy to be reduced. As a result, the plaintiff sought an award for her loss of earning capacity based on the difference in her life expectancy as it would have been if there had been no delay in diagnosis.

The defense (health care providers) argued that the correct measure was from the time of the injury to the time of the patient’s actual anticipated death, because any award that went beyond that time would benefit the patient’s survivors. The arbitration panel agreed with the defense, and as a result the plaintiff took an appeal.

During the appeal, the Third District Court of Appeal reviewed a litany of cases from other jurisdictions. It appeared that there was no other binding or relevant Florida case law and thus the 3rd DCA cited a U.S. Supreme Court case that held “under the prevailing American rule, a tort victim suing for damages for permanent injuries is permitted to base his recovery on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury”. As such the 3rd DCA overturned the arbitrator’s decision.