       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 non-
economic 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
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-year-
old 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 non-
economic 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.




                                      2
   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

                                     3
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



                                           4
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

                                       5
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

                                        6
      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 “non-
economic 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 non-
economic 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

                                     7
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.




                                      8
    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

1The 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.

                                       9
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.



                                     10
TAYLOR and DAMOORGIAN, JJ., concur.

                         *        *       *

  Not final until disposition of timely filed motion for rehearing.




                                 11
