STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESTER ATHENS, as Personal ) Representative of the Estate of ) ANA VAN DIEST, deceased, and )

JOSE D. VAN DIEST, surviving )

spouse, )

)

Claimants, )

)

vs. ) CASE NO. 95-2650MA

)

JOHN BALDINO, M.D., KENDALL )

HEALTHCARE GROUP, LTD., a )

Limited Partnership, d/b/a ) KENDALL REGIONAL MEDICAL CENTER, ) ESTATE OF ROBERT BLANCO, M.D., )

EMSA LIMITED PARTNERSHIP, a )

Limited Partnership, EMERGENCY )

MEDICAL SERVICES ASSOCIATES, )

INC., a Florida Corporation, and ) HUMANA MEDICAL PLAN, INC., a )

Florida Corporation, )

)

Respondents. )

)

FINAL ARBITRATION AWARD

THIS CAUSE came before the duly confirmed Arbitration Panel of Richard Hixson, Henry Burnett, and Arno Kutner for final hearing on December 14, 1995, and the Panel having heard the evidence, upon consideration, it is

ORDERED:

1. Claimant Jose D. Van Diest is awarded non-economic damages in the amount of $200,000.00.

   
   

2. Claimant Jose D. Van Diest is awarded economic damages in the amount of

   $125,000.00 payable in periodic payments of $25,000 for five consecutive years beginning January 1, 1996.

   
   

3. Funeral expenses are awarded in the amount of $1,800.00.

   
   

4. Claimant's attorneys' fees are awarded in the amount of $57,000.00.

DONE AND ORDERED this 27th day of December, 1995, in Tallahassee, Florida.

RICHARD HIXSON

Chief Arbitrator

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1995.

Arno Kutner, Esquire Arbitrator

KUTNER, RUBINOFF & BUSH P.A.

501 Northeast First Avenue Miami, Florida 33132

(Filed with DOAH unsigned) Henry Burnett, Esquire Arbitrator

FOWLER, WHITE BURNETT & HURLEY

100 Southwest Second Street 17th Floor

Miami, Florida 33131

DISSENT

THE UNDERSIGNED respectfully dissents from that portion of the attached Award which provides for the recovery of economic damages for the following reasons:

The subject Arbitration proceeding arose pursuant to s766.207 Fla. Stat. The legislative findings and intent set forth in s766.201 Fla. Stat. explains the effort and purpose of the Legislature to reduce "high cost of medical malpractice claims" in part "by imposing reasonable limitations on damages, while preserving the right of either party to have its case heard by a jury." Both parties to the subject proceeding voluntarily agreed to proceed pursuant to the aforesaid statute and thereby waived their right to a jury trial. Rather than to rely on either the common law of Florida or earlier statutory references and definitions, the Legislature in its wisdom, pursuant to its legislative findings and intent, created and enacted certain definitions specifically applicable to s766.207. See s766.202 Fla. Stat. Included therein was the definition of "economic damages" which was legislatively determined to mean for the purposes of s766.207 "financial losses which would not have occurred but for the injury giving rise to the cause of action . ." s766.202(3). In keeping therewith, the Legislature further statutorily defined "non-economic damages" for the purposes of s766.207 as meaning "non-financial losses which would not have occurred but for the injury giving rise to the cause of action.."

The record herein establishes without dispute that the claimant, surviving husband of his deceased wife, suffered no financial loss secondary to her demise and to the contrary the award provided was based solely on testimony relating to the replacement value of services provided by the wife to the husband in the nature of cleaning, cooking, shopping, interpreting, etc. Although replacement costs secondary to loss of services is recognized in the Florida common law and decisions interpreting the Florida wrongful death statute, neither the Florida law nor the interpretation of damages available under the Florida Wrongful Death Act were subject to the statutory definitions enacted by the Legislature to apply to s766.207.

For the foregoing reason it is respectfully suggested that this record neither factually nor legally supports the attached award for economic damages.

HENRY BURNETT, ESQ. - ARBITRATOR

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESTER ATHENS, as Personal ) Representative of the Estate of ) ANA VAN DIEST, deceased, and ) JOSE D. VAN DIEST, surviving ) spouse, )

)

Claimants, )

)

vs. ) CASE NO. 95-2650MA

) JOHN BALDINO, M.D., KENDALL ) HEALTHCARE GROUP, LTD., a )

Limited Partnership, d/b/a ) KENDALL REGIONAL MEDICAL CENTER, ) ESTATE OF ROBERT BLANCO, M.D., ) EMSA LIMITED PARTNERSHIP, a )

Limited Partnership, EMERGENCY ) MEDICAL SERVICES ASSOCIATES, )

INC., a Florida Corporation, and ) HUM-A MEDICAL PLAN, INC., a )

Florida Corporation, )

)

Respondents. )

)

CORRECTED

FINAL ARBITRATION AWARD

THIS CAUSE came before the duly confirmed Arbitration Panel of Richard Hixson, Henry Burnett, and Arno Kutner for final hearing on December 14, 1995, and the Panel having heard the evidence, upon consideration, it is

ORDERED:

1. Claimant Jose D. Van Diest is awarded non-economic damages in the amount of $200,000.00.

   
   

2. Claimant Jose D. Van Diest is awarded past economic damages in the amount of $55,000.

   
   

3. Claimant Jose D. Van Diest is awarded future economic damages in the amount of $125,000.00 payable in periodic payments of $25,000 for five consecutive years beginning January 1, 1996.

   
   

4. Funeral expenses are awarded in the amount of $1,800.00.

   
   

5. Claimant's attorneys' fees are awarded in the amount of $57,000.00.

DONE AND ORDERED this 30th day of January, 1996, in Tallahassee, Florida.

RICHARD HIXSON

Chief Arbitrator

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1996.

Arno Kutner, Esquire Arbitrator

KUTNER RUBTNOFF & BUSH P.A.

501 Northeast First Avenue Miami, Florida 33132

Henry Burnett, Esquire Arbitrator

FOWLER, WHITE BURNETT & HURLEY

100 Southwest Second Street 17th Floor

Miami, Florida 33131

COPIES FURNISHED:

John B. Ostrow, P.A. Suite 1380, Miami Center

201 South Biscayne Boulevard Miami, Florida 33131

Lynn B. Audie, Esquire MCGRANE & NOSICH, P.A.

44 West Flagler Street 1600 Courthouse Tower Miami, Florida 33130

James Eckhart, Esquire CONRAD, SCHERER, JAMES

& JENNE

One International Place, Suite 2800

100 Southeast Second Avenue Miami, Florida 33131

Eugene K. Pettis, Esquire

COONEY, HALICZER, MATTSON, LANCE, BLACKBURN, PETTIS & RICHARDS, P.A.

301 East Las Olas Boulevard Fort Lauderdale, Florida 33302

Addison J. Meyers, Esquire O'CONNOR, MEYERS & LEMOS, P.A.

2801 Ponce de Leon Boulevard Coral Gables, Florida 33134

================================================================= SATISFACTION OF ARBITRATION AWARD

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESTER ATHENS, as Personal Representative of the Estate of ANA VAN DIEST, Deceased, JOSE D. VAN DIEST, surviving spouse,

Claimants,

vs. CASE NO. 95-2650MA

JOHN BALDINO, M.D.,

Respondent.

/

SATISFACTION OF ARBITRATION AWARD

KNOW ALL MEN BY THESE PRESENTS that John B. Ostrow, as attorney of record for Claimants, Jose D. Van Deist, individually and as the surviving spouse, and Ester Athens, as Personal Representative of the Estate of Ana Van Deist, deceased for and in consideration of the sum of Four Hundred Thirty Nine Thousand Three Hundred Forty Five Dollars and sixty five cents ($439,345.65), and good and valuable considerations, to me in hand paid by the Respondent, JOHN

D. BALDINO, M.D., receipt of which is hereby acknowledged, does hereby acknowledge full and complete satisfaction of that certain Corrected Final Arbitration Award dated on 30th day of January, 1996, at Tallahassee, Florida.

The Clerk of said Court is hereby directed to record this instrument as evidence of full payment and satisfaction of the arbitration award entered in the above-styled cause.

IN WITNESS WHEREOF, I have hereunto set my hand and seal this 24th day of January, 1996.

JOHN B. OSTROW, as attorney for Claimants

Signed, sealed and delivered in the presence of:

A. G. (full name unreadable)

STATE OF FLORIDA COUNTY Of BROWARD

BEFORE ME, the undersigned authority, this day personally appeared John Ostrow, who, after being duly sworn, deposes and says that he is the attorney of record for the Claimants, Jose D. Van Deist, individually and as the surviving spouse, and Ester Athens, as Personal Representative of the Estate of Ana Van Deist, deceased, and that he executed the foregoing Satisfaction of Arbitration Award, and that he has executed the same in the capacity and for the use and purpose therein expressed.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal at Dade County, Miami, Florida, this 24th day of January, 1996.

Isel M. Peno NOTARY PUBLIC

STATE OF FLORIDA AT LARGE

My Commission Expires: (stamp)

Docket for Case No: 95-002650MA

Orders for Case No: 95-002650MA