IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JULY TERM 2000

VERONICA WALKER-WHITE and KEVIN WHITE,

Appellants/Cross-Appellees,

v. CASE NO. 4D99-4367

DOAH Case No. 99-1451MA

GAIL PEZZULLO-BURGS, M.D.; DAFNA LEBOW, M.D.; JAY COHEN, M.D.; and WEST BROWARD OB/GYN ASSOCIATES, P.A.,

Appellees/Cross-Appellees.

/

Opinion filed August 23, 2000.

Appeal and cross-appeal from the State of Florida Division of Administrative Hearings; Larry J. Sartin, Administrative Law Judge, L.T. Case No. 99-1451MA.

Sally Alyce Gross of Law Of flee of Sally Alyce Gross, Miami, for appellants/cross-appellees.

James S. Haliczer and Debra B. Potter of Haliczer, Pettis & White, Fort Lauderdale, for appellees/cross-appellants.

PER CURLAM.

Veronica Walker-White and Kevin White appeal the administrative law panel's ruling provisionally awarding them

non-economic damages. Based upon the supreme court's decision in St. Mary's Hospital, Inc. v. Phillipe, Nos. SC 91894, SC 91895, SC 91896 & SC 91934,2000 WL 854258 (Fla. June 29, 2000), we

remand for entry of non-economic damages in their favor.

Kevin Walker-White, Jr., appellants' son, suffered a brachial plexus injury at birth. The Whites, on their own behalf and on behalf of their son, filed a request for arbitration against Gail Pezzullo-Burgs, M.D., Dafna Lebow, M.D., Jay Cohen, M.D., and West Broward OB/GYN Associates, P.A. (appellees) for damages under section 766.106 et seq., and sections 766.201-.212, Florida Statutes (1997). Appellants sought the maximum amount of

$250,000 in non-economic damages for their son, and they also alleged entitlement to non-economic damages of $250,000 for each of them. Pursuant to section 766.207, Florida Statutes, the arbitration panel awarded total damages on behalf of Kevin

Walker-White, Jr. of $1,529,545, and of this amount $180,000 were non-economic damages pursuant to section 766.207(7)(b), Florida Statutes. The panel stated in its award,

No award has been made for Veronica Walker-White and Kevin White, individually, or as the parents of Kevin W. White, Jr.

The issue of who may be considered a claimant for purposes of non-economic damages has been certified to the Supreme Court of Florida.[1] If this case is appealed by Claimants on this issue and the court should decide that Veronica Walker-White and Kevin White are also Claimants for purposes of non-economic damages,

the Arbitration Panel would award non-economic damages of $90,000 each to Veronica Walker-White and Kevin White.

Since the arbitration panel rendered its decision, our supreme court has decided that "the cap on non-economic damages applies to each claimant individually." St. Mary's, 2000 WL 854258, at *9. Accordingly, Veronica Walker-White and Kevin White are also Claimants for purposes of non-economic damages. We reverse that part of the arbitration panel's denial of non- economic damages to Veronica Walker-White and Kevin White and

remand with directions to award each of them non-economic damages of $90,000 as stated in its initial award.

REVERSED and REMANDED.

DELL, SHAHOOD and TAYLOR, JJ., concur.

NOT FINAL UNTIL THE DISPOSITION OF

ANY TIMELY FILED MOTION FOR REHEARING.

ENDNOTE

1/ In St. Mary's Hospital, Inc. v. Phillipe, 699 So. 2d 1017, 1026 (Fla. 4th DCA 1997), approved in part, quashed in part, 2000 WL 854258 (Fla. 2000), this court certified the following question to the supreme court:

When the alleged medical negligence results in the death of the patient, does the cap on non-economic damages of $250,000 per incident in voluntary arbitration under § 766.207

apply § each beneficiary under the Wrongful Death Act, or does the $250,000 cap apply in the aggregate to include all Wrongful Death Act beneficiaries?

Docket for Case No: 99-001451MA

Orders for Case No: 99-001451MA