In a federal medical malpractice case in which a federal judge found the United States liable for a doctor at a federal health facility for causing the plaintiffs’ son to suffer severe and life-altering injuries at the time of his birth, the United States Court of Appeals for the Eleventh Circuit (“Federal Appellate Court”) held in its opinion filed on August 17, 2018: “We find the language of section 768.78(2) to clearly and unambiguously require payment of the full future-economic-damages award, regardless of whether the intended recipient dies before the end of the period for which damages are awarded.”
Fla. Stat. Section 768.78(2)
Fla. Stat. § 768.78(2) states, in part:
(2)(a) In any action for damages based on personal injury or wrongful death arising out of medical malpractice, . . . in which the trier of fact makes an award to compensate the claimant for future economic losses, payment of amounts intended to compensate the claimant for these losses shall be made by one of the following means:
1. The defendant may make a lump-sum payment for all damages so assessed, with future economic losses and expenses reduced to present value; or
2. The court shall, at the request of either party, enter a judgment ordering future economic damages, as itemized pursuant to s. 768.77, to be paid by periodic payments rather than lump sum.
(b) For purposes of this subsection, “periodic payment” means provision for the spreading of future economic damages payments, in whole or in part, over a period of time, as follows:
1. A specific finding of the dollar amount of periodic payments which will compensate for these future damages after offset for collateral sources shall be made. The total dollar amount of the periodic payments shall equal the dollar amount of all such future damages before any reduction to present value.
2. The defendant shall be required to post a bond or security or otherwise to assure full payment of these damages awarded. . . . If the defendant is unable to adequately assure full payment of the damages, all damages, reduced to present value, shall be paid to the claimant in a lump sum. . . . Upon termination of periodic payments, the security, or so much as remains, shall be returned to the defendant.
. . .
The Federal Appellate Court noted that a claimant may die before receiving the entire award or may outlive the award and incur losses for which the award does not account. But had the Florida legislature wished for section 768.78(2) to award only actual future economic damages, the Federal Appellate Court stated “we expect it would have omitted the word ‘intended’ and written the section to read, ‘payment of amounts to compensate the claimant for these losses.’
Furthermore, subsection (2)(a)(1) states that “[t]he defendant may make a lump-sum payment for all damages so assessed . . . .” “So assessed” refers to the “award to compensate the claimant for future economic losses” described in section 768.78(2)(a). “[A]ssessed” means “[t]o charge (a person or property) with a special payment, such as a tax or fine.” In other words, at the time the trier of fact determined the award of future economic damages, that award was “assessed,” or “charged.” Therefore, the Federal Appellate Court held “[i]t was not subject to revision.”
The Federal Appellate Court further stated that subsection (2)(a)(2) authorizes the award of future economic damages “to be paid by periodic payments rather than lump sum” and that this language suggests that the periodic payments are expected to serve as the equivalent of the “lump-sum payment for all damages so assessed” referred to in subsection (2)(a)(1). The Federal Appellate Court held: “The lump-sum payment compensates for the entire award (reduced to present value); it is not subject to revision upon the claimant’s early death.”
The Federal Appellate Court further stated that subsection (2)(b)(1) requires the “total dollar amount of the periodic payments [to] equal the dollar amount of all [assessed] future damages before any reduction to present value.” The Federal Appellate Court held: “Put simply, this subsection requires the defendant to pay the total of all assessed future economic damages, regardless of whether the defendant does so by lump sum or by periodic payment.”
In addition, subsection (2)(b)(2) requires the posting of security when a defendant chooses to make periodic payments “to assure full payment of these damages awarded,” which recognizes both that the total of all periodic payments is “awarded” at the time the factfinder makes the award of future economic damages and that “full payment” of the amount “awarded” is required, and cautions, “If the defendant is unable to adequately assure full payment of the damages, all damages, reduced to present value, shall be paid to the claimant in a lump sum.” The Federal Appellate Court held: “Once again, the statute equates the total value of all periodic payments with the present value of a lump-sum payment.”
Lastly, the Federal Appellate Court noted that no aspect of section 768.78(2) provides for any kind of reduction to the factfinder’s award of future economic damages. The statute likewise makes no contingency for if a claimant outlives his expected lifespan (and therefore his award of future economic damages). In fact, other than reduction to present value, the statute does not allow for adjustments of any kind to the actual damages award.
The Federal Appellate Court concluded: “Therefore, we conclude that the text of section 768.78(2) clearly and unambiguously precludes the award of a reversionary interest should the claimant die before expected.”
Nonetheless, the Federal Appellate Court agreed with the United States that if it is not entitled to a reversionary interest in what remains of the future-economic-damages award upon the child’s death, it is nonetheless entitled at the time of death to an interest in (1) the difference between the full value of the remaining balance in the trust and its present value, and (2) the amount of interest that the trust earns solely because the United States paid the entire future-economic-damages award into the trust up front in a lump sum, not reduced to present value.
Source Dixon v. United States Of America, Case: 17-13780.
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