Florida Appeals Court Orders Additional Damages for Failure to Diagnose Breast Cancer

Closeup image of surgical mask, stethoscope, ang gloves

If you face a significant reduction in your lifespan due to medical negligence, what kind of damages can you recover for the loss of your future earning capacity? A Florida appeals court recently addressed that question in a case involving a woman who survived breast cancer but has a better than 50% chance of a fatal recurrence due to her doctor’s failure to correctly diagnose the original cancer.

Estrella Estrada received a routine mammogram in 2007 at Miami’s Mercy Hospital. The radiologist, Dr. Amisha Agarwal, failed to report microcalcifications—tiny mineral deposits in the mammary glands that can indicate early-stage breast cancer—found on Estrada’s mammogram. By 2010, Estrada developed stage-three breast cancer, requiring her to undergo extensive treatments.

Estrada and her husband sued Mercy Hospital and Dr. Agarwal for negligence. All parties agreed to binding arbitration under Florida law. By using this procedure, the defendants admitted liability. The three-member arbitration panel only determined the amount of damages owed to Estrada.

Recovering Damages If Your Lifespan Is Significantly Reduced
Both sides disagreed on whether Estrada could recover damages for “her loss of future earning capacity based on her severely curtailed life expectancy.” Following her cancer treatment, Estrada continued to work at her previous full-time job. But medical experts hired by both sides acknowledged any recurrence of Estrada’s breast cancer would prove fatal.
The experts disagreed as to the likelihood of such a recurrence. Estrada’s expert said there was a 90% chance of fatal recurrence within eight years. The medical defendants’ expert claimed it was only a 50% chance over the next ten years. In any event, Estrada asked the arbitration panel for additional damages based on her reduced life expectancy.

The panel did award Estrada over $1 million in damages but said this did not include any compensation for loss of any earning capacity beyond her “anticipated” premature death. Estrada appealed to the Florida Third District Court of Appeals. In April 2013, a panel of that court agreed with Estrada and ordered the arbitration panel to recalculate its award.

The appeals court noted that “the majority of American courts” favor calculating awards in cases like this based on injured person’s pre-injury life expectancy. The defendants argued that it was improper to calculate damages based on Estrada’s “presumed future death” because that would be the subject of a separate wrongful death action brought by her husband or estate. The court said that wasn’t so. Most courts, in Florida and elsewhere, hold that when an injury shortens a person’s expected lifetime, any “future earning loss” is based on the life expectancy the person would have enjoyed absent the injury. Such an award during the person’s lifetime also precludes any future wrongful death award.

Estrella Estrada’s case emphasizes the importance of having an experienced Florida medical malpractice lawyer on your side. If a misdiagnosis has left you facing a shortened life expectancy and reduced earning power, then it’s critical you speak with an attorney who can fight for all the damages you are entitled to under Florida law. If you’re like to speak with an attorney right away, contact Zimmerman & Frachtman at (954) 509-1900 for a free consultation.

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