DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

PLANTATION GENERAL HOSPITAL LIMITED PARTNERSHIP,

d/b/a PLANTATION GENERAL HOSPITAL,

Appellant,

v.

DIVISION OF ADMINISTRATIVE HEARINGS and

BERNARD BELZI, individually and as Personal Representative of 

the ESTATE OF PATRICIA BELZI, deceased, and

as legal guardian and parent of A.B., a minor,

Appellees.

No. 4D16-2652

[April 4, 2018]

Appeal from the State of Florida, Division of Administrative Hearings; 

L.T. Case No. 15-3711MA.

Mark Hicks and Mary Gniadek of Hicks, Porter, Ebenfeld & Stein, P.A., 

Miami, and Carol Glasgow and John Mauro of Billing, Cochran, Lyles, 

Mauro & Ramsey, P.A., Fort Lauderdale, for appellant.

Robert W. Kelley and Bonnie A. Navin of Kelley Uustal, PLC, and Paul 

R. Regensdorf, High Springs, for appellees.

WARNER, J.

In this appeal from a final arbitration award for a medical malpractice 

claim involving the death of a woman who was both a wife and mother, the 

appellants contend that the arbitration panel erred in awarding economic 

damages for the loss of companionship and guidance to the husband and 

child. The panel also awarded the maximum statutory limitation as an 

award for non-economic damages. We reverse the award of economic 

damages for loss of companionship and guidance, as these are noneconomic damages covered by the statutory limitation on such damages. 

The appellants also claim that the award for lost support should be 

reversed because of the introduction of inadmissible hearsay state of mind 

evidence. We affirm the loss of support award, as the evidence was 

admissible and the award was supported by competent substantial 
2

evidence. Because of our partial reversal, we also reverse the attorney’s 

fee award for recalculation.

The Estate of Patricia Belzi and Bernard Belzi (collectively “the Estate”), 

brought a medical negligence, wrongful death action against Dr. Andrew 

Agbi and Plantation General Hospital (collectively “the Hospital”) alleging 

that their medical negligence caused the death of Belzi’s twenty-four-yearold wife, Patricia, when she was eight months pregnant with their child, 

Abigail, who survived. After presuit investigation by the Hospital, the 

parties agreed to voluntary binding arbitration pursuant to section

766.207, Florida Statutes (2014) et seq., to determine damages. Pursuant 

to the statute, the damages recoverable in arbitration proceedings are 

limited to:

(a) Net economic damages shall be awardable, including, but 

not limited to, past and future medical expenses and 80 

percent of wage loss and loss of earning capacity, offset by any 

collateral source payments.

(b) Noneconomic damages shall be limited to a maximum of 

$250,000 per incident . . . .

§ 766.207(7), Fla. Stat. (2014). Our supreme court has interpreted section 

766.207(7)(b) as permitting the $250,000 limit on non-economic damages 

to apply to each claimant. St. Mary’s Hosp., Inc. v. Phillipe, 769 So. 2d 

961, 967-68 (Fla. 2000).

At the arbitration hearing, the Estate did not seek medical expenses, 

and the parties stipulated to the maximum $250,000 each in noneconomic damages for Belzi and Abigail. The damages issues presented 

for the arbitration panel to decide were for loss of services, support, and 

attorney’s fees. 

The Hospital objected to two facets of the Estate’s damage case which 

form the basis of the issues on appeal. First, it objected to the Estate’s

economics expert’s inclusion of loss of guidance and companionship in the 

economic losses suffered by Belzi and his daughter, which it contended 

was an attempt to value non-economic damages for which they were also 

awarded $250,000 each. Second, it objected to hearsay evidence offered 

as to Patricia’s aspirations and goals. A vocational expert used this 

evidence in projecting Patricia’s occupational trajectory, leading to the 

amount of lost support calculated by the economics expert.
3

Both prior to trial and at trial, the Hospital objected to the Estate’s

expert’s testimony regarding calculations on lost companionship and 

guidance as compensable services. It argued that this was an attempt to 

circumvent the statutory cap on non-economic damages in medical 

malpractice arbitrations by labelling non-economic losses of 

companionship and guidance as “economic,” thus seeking a recovery 

beyond the $250,000 per claimant cap. The Chief Arbitrator overruled the 

Hospital’s objections.

At trial, the Estate’s economic expert offered her opinion as to the 

economic value of the loss of companionship and guidance suffered by 

Belzi and Abigail. The expert reviewed the statistical data from the 

National Vital Statistics Reports to determine Patricia’s life expectancy and 

retirement age. She examined how many hours per week Belzi and Abigail 

would have received “services” from Patricia for “companionship, advice 

and counsel.” She talked to family and friends to determine the time 

Patricia spent or would have spent on these activities. However, she had 

no information that Belzi had utilized or was intending to accept 

“companionship” or “counseling” from third parties as a substitute for his 

wife’s companionship and counsel after her death.

The Estate’s expert examined the wage rates that someone would have 

to pay in the marketplace to hire people to perform services, such as 

companions and counselors. Her focus was on determining the economic 

value of the services which were provided by Patricia, which were now lost. 

For Belzi, she calculated that Patricia and Belzi spent about twenty hours 

together a week. For Abigail, she calculated various numbers of hours per 

year based upon Abigail’s age. For both Belzi and Abigail, the expert’s

report identified the source of value for paid companion services as a New 

Jersey “Market Survey of Long-Term Care Costs, Various MetLife Market 

Surveys of Nursing Home, Assisted Living, Adult Day Services, and Home 

Care Costs, and various Genworth Cost of Care Surveys, Home Care 

Providers, Adult Day Health Care Facilities, Assisted Living Facilities and 

Nursing Homes.” The dollar cost in New Jersey was adjusted for Florida 

wages.

To calculate the amounts for advice and counsel, the expert averaged 

the hourly wage of a variety of occupations which offer advice, including: 

child, family, and school social workers; social and human service 

assistants; marriage and family therapists; residential advisors; loan 

officers; tax preparers; post-secondary business teachers; financial 

managers; self-enrichment education teachers; elementary school

teachers; secondary school teachers. She applied this averaged hourly 

rate to the hours she considered that Patricia would have counseled both 
4

her husband and her daughter. She testified that these amounts did not 

include any emotional loss by Belzi and Abigail. After this presentation, 

the Hospital again objected, and again the Chief Arbitrator overruled the 

objection, stating that these elements were part of the economic loss of 

services. In addition to loss of support, the expert calculated the value of 

other lost services which the Hospital does not contest. 

To determine the economic value of lost support from Patricia, who was 

twenty-four at the time of her death, the Estate presented the testimony 

of family and friends as to Patricia’s aspirations and goals, to which the 

Hospital objected but was overruled. The Estate presented a vocational 

expert who opined the likely vocational path of Patricia had she not died.

Relying on the opinion of the vocational expert, the Estate’s economic 

expert opined as to the present value of lost support to Belzi. The Estate 

presented a total damage calculation to Belzi and Abigail of $4,010,314, 

broken down as follows:

The Hospital presented its own vocational expert and economics expert 

who calculated lost support at a significantly lower amount (about 

$625,000 less than the Estate’s calculation). After presentation of all the 

evidence, the arbitration panel awarded the following:

Arbitration Panel Award

Past and Present Money Value of Future Loss of Support $1,395,501.08

Past Loss of Household Services $115,379.00

Present Money Value of Future Loss of Household Services $1,696,711.20

Funeral Expenses Claim $23,385.00

Non-economic damages to Bernard Belzi $250,000.00

Non-economic damages to Abigail Belzi $250,000.00

Total Arbitration Award $3,730,976.28
5

From this award, the Hospital appeals. 

I. Standard of Review

The parties dispute the standard of review for arbitration awards. The 

Hospital contends that an arbitration award under section 766.207, 

Florida Statutes (2014), constitutes final agency action, and any appeal is 

governed by section 120.68, as provided in section 766.212(1), Florida 

Statutes (2014). (“An arbitration award and an allocation of financial 

responsibility are final agency action for purposes of s. 120.68. Any appeal

. . . shall be limited to review of the record, and shall otherwise proceed in 

accordance with s. 120.68.”). Relevant portions of section 120.68(7) 

provide the relevant standards to be applied to this appeal:

(7) The court shall remand a case to the agency for further 

proceedings consistent with the court’s decision or set aside 

agency action, as appropriate, when it finds that:

(a) There has been no hearing prior to agency action 

and the reviewing court finds that the validity of the 

action depends upon disputed facts;

(b) The agency’s action depends on any finding of fact 

that is not supported by competent, substantial 

evidence in the record of a hearing conducted pursuant 

to ss. 120.569 and 120.57; however, the court shall not 

substitute its judgment for that of the agency as to the

weight of the evidence on any disputed finding of fact;

. . . .

(d) The agency has erroneously interpreted a 

provision of law and a correct interpretation compels a 

particular action . . . .

Pursuant to subsection (d), the appellate court reviews an agency’s 

conclusions of law de novo. Estrada v. Mercy Hosp., Inc., 121 So. 3d 51, 

54 (Fla. 3d DCA 2013).

The Estate, on the other hand, argues that the court must engage in 

“limited appellate review of the arbitration award requiring a showing of 

‘manifest injustice’” to reverse. Univ. of Miami v. Echarte, 618 So. 2d 189, 

194 (Fla. 1993). Although the supreme court used that phrase in listing 

the benefits of arbitration under the statute, it was not a holding of the 
6

opinion. Moreover, the only place “manifest injustice” appears in the 

Medical Malpractice Arbitration statute is in section 766.212(2) which 

provides that an appeal does not stay an arbitration award and that “[t]he 

district court of appeal may order a stay to prevent manifest injustice, but 

no court shall abrogate the provisions of s. 766.211(2).” The Estate also 

cites St. Mary’s Hospital, Inc. v. Phillipe, 769 So. 2d 961 (Fla. 2000), which 

uses the manifest injustice language but in discussing a stay of the 

arbitration award, thus applying section 766.212(2). It also quoted from 

Echarte as to the benefits of arbitration, but again, the language is not the 

holding of the opinion.

The statute provides the standard of review for an arbitration award. 

The supreme court has never rejected the application of section 120.68(7)

in medical malpractice binding arbitration, and we will apply the statutory 

standard. 

II. Inclusion of Companionship and Guidance as Economic 

Damages

The Hospital argues that the panel’s award for lost “household services” 

erroneously included non-economic damages for lost companionship and 

lost advice, guidance and counsel, allowing the Estate to do an “end run” 

around the statutory limit on non-economic damages of $250,000 per 

claimant. Whether such damages are economic or non-economic is a 

question of the proper application of the statute, which we review de novo. 

§ 120.68(7)(d), Fla. Stat.

The Florida Legislature amended the Medical Malpractice Act in 2003 

to limit the damages recoverable in medical negligence wrongful death 

arbitration. § 766.207(7)(b), Fla. Stat. Section 766.202(3) and (8), Florida 

Statutes (2014), define economic and non-economic damages as follows:

(3) “Economic damages” means financial losses that would 

not have occurred but for the injury giving rise to the cause of

action, including, but not limited to, past and future medical 

expenses and 80 percent of wage loss and loss of earning 

capacity to the extent the claimant is entitled to recover such 

damages under general law, including the Wrongful Death 

Act.

. . . .

(8) “Noneconomic damages” means nonfinancial losses that 

would not have occurred but for the injury giving rise to the 
7

cause of action, including pain and suffering, inconvenience, 

physical impairment, mental anguish, disfigurement, loss of 

capacity for enjoyment of life, and other nonfinancial losses to 

the extent the claimant is entitled to recover such damages 

under general law, including the Wrongful Death Act.

The Wrongful Death Act allows recovery for loss of support and services,

but places loss of companionship and guidance within the same category 

as pain and suffering, which are non-economic damages. As applicable in 

this case, section 768.21 provides:

(1) Each survivor may recover the value of lost support and 

services from the date of the decedent’s injury to her or his 

death, with interest, and future loss of support and services 

from the date of death and reduced to present value . . . .

(2) The surviving spouse may also recover for loss of the 

decedent’s companionship and protection and for mental pain 

and suffering from the date of injury.

(3) Minor children of the decedent, and all children of the 

decedent if there is no surviving spouse, may also recover for 

lost parental companionship, instruction, and guidance and 

for mental pain and suffering from the date of injury . . . .

The supreme court and other courts have also categorized 

companionship and guidance as non-economic damages. In St. Mary’s,

the supreme court was asked to determine whether the $250,000 limit per 

incident on non-economic damages under section 766.207 limited the 

recovery for all claimants to $250,000 or limited each claimant’s recovery 

to $250,000. In considering the question, the court looked to how “noneconomic damages” were treated in other wrongful death cases. It pointed 

to National Railroad Passenger Corp. v. Ahmed, 653 So. 2d 1055, 1056

(Fla. 4th DCA 1995), and an award for “the loss of parental 

companionship, instruction and guidance, and [for] the child’s pain and 

suffering” for the children of the decedent in that case. St. Mary’s, 769 So. 

2d at 970 (alteration in original). Thus, it equated these losses with noneconomic damages. In addition, loss of parental guidance has been held 

to be an intangible loss. Alamo Rent-A-Car Inc. v. Clay, 586 So. 2d 394, 

395 (Fla. 3d DCA 1991); see also cases cited in “Excessiveness or Adequacy 

of Damages Awarded for Noneconomic Loss Caused by Personal Injury or 

Death of Parent,” 61 A.L.R. 4th 251 (1988) (awards in cases for loss of 

companionship and guidance). Finally, the standard jury instructions 

inform the jury of the elements of damages recoverable in a wrongful death 
8

claim, and include in one element damages for “loss of (decedent’s) 

companionship and protection, and [her] [his] mental pain and suffering 

as a result of (decedent’s) injury and death.” See Fla. Std. Jury Instr. (Civ.) 

502.2d. Likewise, the standard jury instruction for a child’s loss of a 

parent also combines “loss by (name all eligible children) of parental 

companionship, instruction and guidance, and [his] [her] [their] mental 

pain and suffering as a result of (decedent’s) injury and death.” Fla. Std. 

Jury Instr. (Civ.) 502.2e. It is clear that the statutory framework equates 

loss of companionship, protection, and guidance as non-economic 

damages and thus subject to the statutory limitation on such damages.

At common law, the loss of companionship and protection of a spouse 

was termed a “loss of consortium.” Our supreme court described such a 

claim as follows:

We are only concerned with loss of consortium, by which is 

meant, the companionship and fellowship of husband and 

wife and the right of each to the company, cooperation and aid 

of the other in every conjugal relation. Consortium means 

much more than mere sexual relation and consists, also, of 

that affection, solace, comfort, companionship, conjugal life, 

fellowship, society and assistance so necessary to a successful 

marriage.

Gates v. Foley, 247 So. 2d 40, 43 (Fla. 1971). This is separate from the 

pecuniary losses which a spouse may suffer for loss of services. In Lithgow 

v. Hamilton, 69 So. 2d 776, 778 (Fla. 1954), the court listed the damages 

recoverable by a husband for the loss of his wife allowable under the 

common law, including pecuniary services provided by the wife, which the 

husband “will have to [ ] replace [ ] by hiring services,” and loss of 

consortium. Id. Loss of consortium was not the type of service which was 

replaced by hiring services, thus the intangible and non-economic nature 

of those losses.

Similarly, the loss of parental companionship and guidance has always 

been treated as a non-economic element of damage. In Zorzos v. Rosen, 

467 So. 2d 305, 308 (Fla. 1985), the supreme court described the 

authorized damages which a minor can recover under the wrongful death 

act, which included “tangible losses such as support, and intangible losses 

such as services and parental companionship, instruction and guidance and 

mental pain and suffering.” (emphasis added); see also Fla. Std. Jury Instr. 

(Civ.) 502.2e.
9

The loss of consortium of a spouse cannot be equated, as the economics 

expert sought to do in this case, with a paid companion of a nursing home 

or assisted living patient. To do so denigrates the marital relationship. 

“Marriage is a coming together for better or for worse, hopefully enduring, 

and intimate to the degree of being sacred.” Laird v. State, 342 So. 2d 962 

(Fla. 1977) (quoting Griswold v. Connecticut, 381 U.S. 479, 486 (1965)). To 

suggest that such a relationship can be replaced by a paid companion, 

thus creating an economic loss, is contrary to all legal precedent; indeed, 

it goes against social and moral understanding of the unique and special 

nature of the marital relationship. The same may be said of the loss of 

companionship and guidance of a parent for a child. While we recognize 

that the legislative cap of $250,000 for both loss of companionship and 

pain and suffering may appear woefully inadequate in circumstances of

the death of a spouse or parent, the supreme court has held the statute 

constitutional. See Echarte. Any change in that amount must come from 

the Legislature.

We therefore hold that loss of companionship and protection for the 

spouse and loss of parental companionship and guidance for a child are 

non-economic damages. As such, they fall within the statutory limitation 

on non-economic damages. See § 766.207(d), Fla. Stat. Because the chief 

arbitrator overruled the Hospital’s objections to the economic expert’s 

testimony regarding loss of companionship, and the award for household 

services clearly included an award for such services, we reverse and 

remand for the redetermination of the amount awarded for household 

services, both past and future. The arbitrators must deduct from that 

portion of the award any portion in excess of the amount of compensable 

household services.1

II. Lost Support Award

In challenging the arbitrator’s award for future loss of support, the 

Hospital contends that the Chief Arbitrator erred in admitting evidence of 

Patricia’s intentions with respect to her future occupation under the “state 

of mind” exception to the hearsay rule. See § 90.803(3)(a)1, Fla. Stat. 

(2014). The statements were offered to prove her intent and plan, which 

were relevant to ascertaining her career progression for the purposes of 

lost support, not to prove the truth of the matter. See e.g. Everett v. State,

801 So. 2d 189, 191-92 (Fla. 4th DCA 2001) (noting that an out of court 

statement may be admissible to prove declarant’s state of mind); Blackburn 

v. Aetna Freight Lines, Inc., 368 F.2d 345, 348 (3d Cir. 1966); Whittle v. 

Schemm, 402 F. Supp. 1294, 1299 (E.D. Pa. 1975); Covell v. Colburn, 13 

 

1 The Estate’s expert allocated a total of $800,706 for these services, while the 

Hospital’s expert allocated a total of $712,046 for these services. 
10

N.W.2d 275, 277 (Mich. 1944), overruled in part by Thompson v. Ogemaw 

Cty. Bd. of Rd. Comm’rs, 98 N.W.2d 620 (Mich. 1959); cf. Overstreet v. 

Shoney’s, Inc., 4 S.W.3d 694, 705 (Tenn. Ct. App. 1999) (noting that a 

student’s career plans are relevant in determining his or her lost earning 

capacity). In addition, competent substantial evidence supported the 

arbitrator’s award. Therefore, we must affirm. See § 120.68(10), Fla. Stat. 

(“If an administrative law judge’s final order depends on any fact found by 

the administrative law judge, the court shall not substitute its judgment 

for that of the administrative law judge as to the weight of the evidence on 

any disputed finding of fact.”); Heifetz v. Dep’t of Bus. Regulation, 475 So. 

2d 1277, 1281 (Fla. 1st DCA 1985) (“It is the hearing officer’s function to 

consider all the evidence presented, resolve conflicts, judge credibility of 

witnesses, draw permissible inferences from the evidence, and reach 

ultimate findings of fact based on competent, substantial evidence.”)

III. Attorney’s Fees.

Section 766.207(7)(f), Florida Statutes (2014), governs attorneys’ fees 

in arbitration proceedings and states that “[t]he defendant shall pay the 

claimant’s reasonable attorney’s fees and costs, as determined by the 

arbitration panel, but in no event more than 15 percent of the award, 

reduced to present value.” The chief arbitrator awarded fifteen percent of 

the total amount of the award, without receiving any documentation of 

what a reasonable award should be. However, prior to the arbitrators’ 

deliberations, the chief arbitrator asked whether both parties agreed to a 

fifteen percent fee, and the Hospital’s attorney accepted. The Hospital first 

objected to the fee in its motion for rehearing, but new matters may not be 

addressed in a motion for rehearing. See Best v. Educ. Affiliates, Inc., 82 

So. 3d 143, 146 (Fla. 4th DCA 2012). Therefore, we find the Hospital’s 

challenge to the amount is unpreserved. Nevertheless, because we have 

reversed the arbitration award for recalculation, we also reverse the 

attorney’s fees award for recalculation based upon any new award entered 

in accordance with this opinion.

Conclusion

For the foregoing reasons, we reverse, in part, the arbitration award. 

We direct that the panel reconsider and remove from the past and future 

loss of household services any amounts for loss of companionship and 

guidance for either Belzi or his daughter Abigail. After readjusting the 

award, the panel should then recalculate the attorney’s fee award.

Reversed in part; remanded with instructions.
11

TAYLOR and DAMOORGIAN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.