Petitioner: MERCEDES AFONSO, AS SURVIVING SPOUSE AND PERSONAL REPRESENTATIVE OF THE ESTATE OF ALEXIS AFONSO, DECEASED
Respondent: LIFEMARK HOSPITALS OF FLORIDA, INC., D/B/A PALMETTO GENERAL HOSPITAL
Judges: LINDA M. RIGOT
Agency: Medical Arbitration
Locations: Miami, Florida
Filed: Oct. 10, 2006
Status: Closed
DOAH Final Order on Wednesday, July 1, 2009.
Latest Update: Aug. 12, 2009
Summary: Amended arbitration award to reflect opinion of Third District that wrongful death damages prevail over itemized damages in medical malpractice arbitration statute where wrongful death results from the medical incident.
STATE OF FLORIDASTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MERCEDES AFONSO, AS SURVIVING | ) |
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SPOUSE AND PERSONAL | ) |
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REPRESENTATIVE OF THE ESTATE OF | ) |
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ALEXIS AFONSO, DECEASED, | ) |
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Claimant, | ) |
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vs. | ) | Case | No. | 06-3916MA |
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LIFEMARK HOSPITALS OF FLORIDA, | ) |
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INC., d/b/a PALMETTO GENERAL | ) |
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HOSPITAL, | ) |
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Defendant. | ) |
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AMENDED ARBITRATION AWARD
On June 1, 2007, an Arbitration Award was entered in this cause following the arbitration hearing conducted on May 30, 2007. On August 22, 2007, a Supplemental Arbitration Award was entered as to the amount of attorney's fees and costs to be paid to the Claimant's attorney, in accordance with an agreement reached by the parties.
On March 11, 2009, the Third District Court of Appeal issued its opinion setting aside a portion of the Arbitration Award. Pursuant to that Opinion and the Mandate issued
March 27, 2009, the arbitration hearing in this cause was re- convened on June 30, 2009, before Linda M. Rigot, Chief
Arbitrator; Richard P. Cole, Arbitrator; and Gary D. Fox, Arbitrator, in Miami, Florida.
APPEARANCES
For Claimant: Charles H. Baumberger, Esquire
Lincoln J. Connolly, Esquire Rossman, Baumberger & Reboso, P.A.
44 West Flagler Street, Suite 2300 Miami, Florida 33130-1808
For Defendant: Norman M. Waas, Esquire
Glenn P. Falk, Esquire
Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A.
Two Alhambra Plaza Suite 750 Coral Gables, Florida 33134
The August 22, 2007, Supplemental Arbitration Award and the June 1, 2007, Arbitration Award are adopted and ratified in their entirety except that the award for loss of earning capacity is deleted and loss of support and loss of net accumulations are now included in the award. At the conclusion of the re-convened arbitration hearing, the amended award was announced on the record as follows:
Non-economic damages
Loss of services | $ 250,000 |
Past | 15,762 |
Future | 132,358 |
Loss of support | 394,766 |
Loss of net accumulations | 109,607 |
Total award $ 902,493
Since the Defendant has previously paid the amount of
$799,258 to the Claimant pursuant to the June 1, 2007, Arbitration Award although this cause was on appeal, the balance remaining to be paid to the Claimant pursuant to this Amended Arbitration Award is $103,235.
Defendant has agreed to pay the amount of $5,000 each to Arbitrators Cole and Fox as their arbitrator's fee for the re- convened hearing.
By agreement of the parties, Defendant shall also pay the amount of $5,000 toward Dr. Raffa's fee for his testimony at the re-convened hearing.
DONE AND ORDERED this 1st day of July, 2009, in Tallahassee, Leon County, Florida.
S
LINDA M. RIGOT, Chief Arbitrator Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 2009.
COPIES FURNISHED:
Norman M. Waas, Esquire
Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A.
Two Alhambra Plaza Suite 750 Coral Gables, Florida 33134
Charles H. Baumberger, Esquire Rossman, Baumberger & Reboso, P.A.
44 West Flagler Street, Suite 2300 Miami, Florida 33130-1808
Gary D. Fox, Esquire
Stewart, Tilghman, Fox & Bianchi, P.A. One Southeast Third Avenue, Suite 3000 Miami, Florida 33131-1764
Richard P. Cole, Esquire Cole, Scott & Kissane, P.A. 9150 South Dadeland Boulevard
14th Floor - Dadeland Centre II Miami, Florida 33156
Docket for Case No: 06-003916MA
| Issue Date |
Proceedings |
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Aug. 12, 2009 |
Notice of Filing Satisfaction of Amended Arbitration Award filed.
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Aug. 12, 2009 |
Satisfaction of Amended Arbitration Award and Joint Stipulation That Same is Without Prejudice to Pending Request for Review of the Third District Court of Appeal's Decision in the Supreme Court of Florida filed.
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Jul. 01, 2009 |
Amended Arbitration Award (hearing held June 30, 2009). CASE CLOSED.
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Jun. 30, 2009 |
CASE STATUS: Hearing Held. |
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Jun. 30, 2009 |
CASE STATUS: Hearing Held. |
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Jun. 11, 2009 |
Second Amended Notice of Arbitration Hearing (hearing set for June 30, 2009; 9:30 a.m.; Miami, FL; amended as to hearing room location).
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Jun. 10, 2009 |
Letter to Judge Rigot from L. Llorca regarding Parties' agreed upon available date for hearing filed.
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May 20, 2009 |
Amended Notice of Arbitration Hearing (hearing set for June 30, 2009; 9:30 a.m.; Miami, FL; amended as to date of hearing).
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May 15, 2009 |
Letter to Judge Rigot from G. Fox regarding available date for mediation filed.
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May 15, 2009 |
Letter to Judge Rigot from L. Llorca advising that G. Fox is unavailable for the date of June 8, 2009 filed.
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May 15, 2009 |
Notice of Re-convened Arbitration Hearing (hearing set for June 8, 2009; 9:30 a.m.; Miami, FL).
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May 14, 2009 |
Letter to Judeg Rigot from N. Waas regarding available dates for hearing filed.
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May 14, 2009 |
Letter to Judge Rigot from C. Baumberger regarding available dates to reconvene filed.
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May 12, 2009 |
Letter to Judge Rigot from L. Llorca regarding status of case filed.
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Apr. 13, 2009 |
Order Granting Extension of Time.
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Apr. 10, 2009 |
Agreed Motion for Extension of Time to Respond to Order Requiring Available Dates for Reconvening filed.
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Apr. 02, 2009 |
Order Re-opening File and Requiring Available Dates for Reconvening. CASE REOPENED.
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Apr. 01, 2009 |
Opinion filed.
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Apr. 01, 2009 |
Mandate filed.
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Jan. 26, 2009 |
THIRD DCA ORDER: the court`s mandate is recalled.
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Jan. 14, 2009 |
Opinion filed.
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Jan. 14, 2009 |
Mandate filed.
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Dec. 17, 2007 |
Notice of Change of Address filed.
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Nov. 19, 2007 |
Index, Record, and Certificate of Record sent to the District Court of Appeal.
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Oct. 11, 2007 |
Notice of Filing Partial Satisfaction of Arbitration Award of June 1, 2007 filed.
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Oct. 11, 2007 |
Notice of Filing Satisfaction of Arbitration Attorneys` Fees and Costs Award of August 22, 2007 filed.
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Sep. 04, 2007 |
Notice of Unavailability filed.
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Aug. 28, 2007 |
Invoice for the record on appeal mailed.
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Aug. 27, 2007 |
Index (of the Record) sent to the parties of record.
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Aug. 27, 2007 |
Transcript filed. |
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Aug. 27, 2007 |
Designation to Reporter and Reporter`s Acknowledgment filed.
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Aug. 22, 2007 |
Supplemental Arbitration Award. CASE CLOSED.
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Aug. 22, 2007 |
Letter to Judge Rigot from C. Baumberger advising that parties have settled attorney`s fees and cost issue filed.
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Aug. 16, 2007 |
Letter to N. Waas from C. Baumberger enclosing copies of billing records filed.
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Aug. 08, 2007 |
Letter to R. Cole and G. Fox from Ruth Gordon regarding copies of pleadings that were not sent filed.
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Aug. 07, 2007 |
Order Affording Final Opportunity.
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Aug. 07, 2007 |
CASE STATUS: Motion Hearing Held. |
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Aug. 07, 2007 |
CASE STATUS: Motion Hearing Held. |
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Jul. 24, 2007 |
Notice of Telephonic Conference (conference set for August 7, 2007; 10:00 a.m.).
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Jul. 23, 2007 |
Defendant`s Response to Order Granting Motion to Strike and Establishing Procedure for Resolving Plaintiff`s Fees and Costs Issue filed.
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Jul. 13, 2007 |
Order Granting Motion to Strike and Establishing Procedure for Resolving Claimant`s Attorney`s Fees and Costs Issue.
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Jul. 09, 2007 |
Claimant`s Response to Defendant`s Motion to Strike Mention of Settlement Offer filed.
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Jul. 09, 2007 |
Claimant`s Response to Defendant`s Objection to Claimant`s Request for Production with Incorporate Memorandum of Law filed.
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Jul. 09, 2007 |
Claimant`s Supplemental Response to Defendant`s Seventh Request for Production Served June 15,2007 filed.
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Jun. 28, 2007 |
Defendant Lifemark`s Response to Claimant`s Reply Regarding Motion for Attorney`s Fees filed.
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Jun. 28, 2007 |
Defendant Lifemark Hospitals of Florida, Inc., d/b/a Palmetto General Hospital`s Response to Claimant`s Objection to Defendant`s Seventh Request for Production Served June 15, 2007 filed.
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Jun. 28, 2007 |
Defendant Lifemark Hospitals of Florida, Inc., d/b/a Palmetto General Hospital`s Motion to Strike any Mention of Defendant`s Prior Settlement Offer filed.
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Jun. 28, 2007 |
Designation to Reporter and Reporter`s Acknowledgment filed.
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Jun. 28, 2007 |
Directions to Clerk filed.
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Jun. 26, 2007 |
Claimant`s Notice of Filing Defendant`s Response to Request for Production filed.
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Jun. 21, 2007 |
Acknowledgment of New Case, DCA Case No. 3D07-1530 filed.
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Jun. 20, 2007 |
Notice of Filing Depositions in Opposition to Motion for Attorney`s Fees.
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Jun. 19, 2007 |
Claimant`s Reply to Lifemark`s Response to Claimant`s Motion for Attorney`s Fees filed.
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Jun. 19, 2007 |
Claimant`s Response to Defendant`s Seventh Request for Production Served June 15, 2007, filed.
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Jun. 18, 2007 |
Notice of Appeal filed by P. Perry and N. Waas; Certified copy sent to the Third District Court of Appeal this date.
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Jun. 15, 2007 |
Lifemark Hospital`s Request for Production to Claimant filed.
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Jun. 15, 2007 |
Defendant Lifemark Hospitals of Florida, Inc., d/b/a Palmetto General Hospital`s Objection to Claimant`s Request for Production with Incorporated Memorandum of Law filed.
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Jun. 15, 2007 |
Defendant Lifemark Hospitals of Florida, Inc. d/b/a Palmetto General Hospital`s Response to Claimant`s Motion for Attorney`s Fees and Costs filed.
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Jun. 12, 2007 |
Letter to Judge Rigot from N. Waas regarding available dates filed.
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Jun. 11, 2007 |
Letter to Judge Rigot from C. Baumberger regarding not being able to agree on attorneys` fees and costs issue filed.
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Jun. 11, 2007 |
Claimant`s Response to Defendant Lifemark Hospitals of Florida, Inc., d/b/a Palmetto General Hospital`s Request for Production filed.
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Jun. 11, 2007 |
Claimant`s Request to Produce to Defendant Lifemark Hospitals of Florida, Inc., d/b/a Palmetto General Hospital filed.
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Jun. 07, 2007 |
Lifemark Hospital`s Request for Production to Calimant filed.
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Jun. 05, 2007 |
CASE REOPENED. |
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Jun. 05, 2007 |
Affidavit of Charles H. Baumberger filed.
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Jun. 05, 2007 |
Motion for Attorneys` Fees and Costs filed.
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Jun. 01, 2007 |
Arbitration Award (hearing held May 30, 2007). CASE CLOSED.
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May 30, 2007 |
Lifemark`s Notice of Proffer of Wrongful Death Damages filed w/judge at arbitration hearing.
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May 29, 2007 |
Order Granting Claimant`s Motion in Limine.
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May 29, 2007 |
Letter to Judge Rigot from N. Waas regarding room for arbitrations filed.
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May 25, 2007 |
Palmetto General Hospital`s Response to Claimant`s Motion in Limine Regarding Annuity Expert`s Anticipated Testimony filed.
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May 25, 2007 |
Letter to Mr. Baumberger from G. Falk regarding attorney fees filed.
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May 25, 2007 |
Claimant`s Disclosure of Exhibits filed.
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May 25, 2007 |
Notice of Telephonic Hearing filed.
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May 24, 2007 |
Claimant`s Motion in Limine Regarding Defendant`s Annuity Expert`s Anticipated Testimony at Arbitration Proceedings filed.
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May 24, 2007 |
Claimant`s Notice of Serving Courtesy Copy of Order Determinig Scope of Recoverable Economic Damages filed.
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May 23, 2007 |
Objection to Claimant`s Request to Produce at Commencement of Arbitration filed.
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May 23, 2007 |
Letter to Judge Rigot from C. Baumberger regarding no changes at this time to the joint pre-hearing stipulation filed.
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May 18, 2007 |
Claimant`s Request to Produce at Commencement of Arbitration to Defendant Lifemark Hospitals of Florida, Inc.d/b/a Palmetto General Hospital filed.
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May 15, 2007 |
Second Amended Notice of Taking Update Deposition Duces Tecum (Amended at the request of Dr. Raffa) filed.
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Apr. 30, 2007 |
Notice of Filing Certification of Potential Arbitrator filed.
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Apr. 30, 2007 |
Claimant`s Designation of Arbitrator filed.
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Apr. 27, 2007 |
Order on Pending Motions.
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Apr. 25, 2007 |
Claimant`s Agreed Motion to Correct Style and Docket filed.
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Apr. 20, 2007 |
Claimant`s Memorandum of Law in Opposition to Defendant`s Motion for Reconsideration filed.
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Apr. 20, 2007 |
Amended Notice of Taking Updated Deposition Duces Tecum filed.
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Apr. 13, 2007 |
Palmetto General Hospital`s, Motion for Reconsideration Defendant`s, Palmetto General Hospital, Motion for Reconsideration filed.
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Apr. 12, 2007 |
Lifemark`s Notice of Compliance with Request for Copies of Records filed.
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Apr. 12, 2007 |
Lifemark`s Notice of Compliance with Request for Copies of Records filed.
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Apr. 05, 2007 |
Re-Notice of Taking Update Telephone Deposition Duces Tecum filed.
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Mar. 29, 2007 |
Certification of Potential Arbitrator Pursuant to 60Q-3.007(2) Florida Administrative Rules filed.
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Mar. 29, 2007 |
Notice of Filing Certification of Potential Arbitrator filed.
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Mar. 27, 2007 |
Re-Notice of Taking Update Telephone Deposition Duces Tecum filed.
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Mar. 27, 2007 |
Palmetto General Hospital`s, Motion to Determine the Scope of Recoverable Economic Damages filed.
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Mar. 27, 2007 |
Notice of Taking Updated Deposition Duces Tecum filed.
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Mar. 26, 2007 |
Palmetto General Hospital`s Reply Memorandum in Support of It`s Motion to Determine the Scope of Recoverable Economic Damages filed.
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Mar. 23, 2007 |
Notice of Taking Update Deposition Duces Tecum filed.
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Mar. 22, 2007 |
Order Determining Scope of Recoverable Economic Damages.
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Mar. 20, 2007 |
Notice of Compliance with Request for Copies of Record filed.
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Mar. 20, 2007 |
Lifemark Hospitals of Florida`s Designation of Arbitrator filed.
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Mar. 20, 2007 |
Notice of Arbitration Hearing (hearing set for May 30 and 31, 2007; 9:30 a.m.; Miami, FL).
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Mar. 19, 2007 |
Defendant`s Disclosure of Witnesses filed.
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Mar. 19, 2007 |
Defendant`s Disclosure of Exhibits filed.
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Mar. 16, 2007 |
Claimant`s Cross-Motion to Determine that Claimant is Entitled to Recover Loss of Future Earning Capacity and Memorandum of Law in Opposition to Defendant`s Motion to Determine the Scope of Recoverable Economic Damages filed.
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Mar. 16, 2007 |
Joint Compliance with Order Granting Continuance filed.
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Mar. 16, 2007 |
Letter to C. Baumberger from N. Waas regarding available dates for arbitration filed.
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Mar. 09, 2007 |
Palmetto General Hospital`s Motion to Determine the Scope of Recoverable Economic Damages filed.
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Mar. 08, 2007 |
Joint Pre-hearing Stipulation filed.
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Mar. 08, 2007 |
Order Granting Continuance (parties to advise status by March 23, 2007).
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Mar. 08, 2007 |
Letter to Judge Rigot from N. Waas regarding availability for arbitration filed.
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Mar. 06, 2007 |
Notice of Taking Continued Telephone Deposition Duces Tecum filed.
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Mar. 05, 2007 |
Certificate of Non-objection filed.
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Mar. 01, 2007 |
Defendant`s Motion for Continuance of Arbitration Hearing filed.
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Mar. 01, 2007 |
Re-Notice of Taking Deposition Duces Tecum filed.
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Feb. 28, 2007 |
Defendant`s Disclosure of Exhibits filed.
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Feb. 27, 2007 |
Claimant`s Objection to Defendant`s Expert Bruce Debacher or in the Alternative Permission to Add Annuitist as an Expert for Claimant at the Arbitration Hearing filed.
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Feb. 27, 2007 |
Notice of Taking Deposition Duces Tecum filed.
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Feb. 27, 2007 |
Notice of Pre-Arbitration Hearing Conference filed.
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Feb. 27, 2007 |
Claimant`s Response to Defendant`s Fourth Request for Production Served January 29, 2007 filed.
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Feb. 27, 2007 |
Letter to Judge Rigot from N. Waas regarding witness list filed.
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Feb. 13, 2007 |
Response to Claimant`s Objections to Palmetto General Hospital`s Fifth Request for Production filed.
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Feb. 07, 2007 |
Claimant`s Objections to Defendant Palmetto General Hospital`s Fifth Request for Production filed.
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Feb. 06, 2007 |
Claimant`s Request for Copies filed.
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Feb. 01, 2007 |
Subpoena Duces Tecum Without Deposition (Related Companies) filed.
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Feb. 01, 2007 |
Subpoena Duces Tecum Without Deposition (Countrywide) filed.
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Feb. 01, 2007 |
Notice of Intent to Serve Subpoena for Production of Documents or Things Pursuant to Rule 1.351 filed.
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Feb. 01, 2007 |
Fifth Request for Production to Plaintiff filed.
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Jan. 29, 2007 |
Fourth Request for Produciton to Plaintiff filed.
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Jan. 29, 2007 |
Defendant`s Disclosure of Witnesses filed.
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Jan. 29, 2007 |
Subpoena Duces Tecum for Deposition filed.
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Jan. 29, 2007 |
Notice of Taking Deposition Duces Tecum filed.
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Jan. 23, 2007 |
Claimant`s Disclosure of Potential Witnesses Pursuant to January 3, 2007, Notice of Arbitration Hearing filed.
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Jan. 10, 2007 |
Notice of Taking Deposition Duces Tecum filed.
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Jan. 09, 2007 |
Order Granting Claimant`s Motion for Protective Order.
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Jan. 04, 2007 |
Claimant`s Notice of Service of Supplemental Answer to Palmetto General Hospital`s Wrongful Death Interrogatories filed.
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Jan. 03, 2007 |
Notice of Arbitration Hearing (hearing set for March 12 through 14, 2007; 9:30 a.m.; Miami, FL).
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Dec. 27, 2006 |
Joint Compliance with Order Concerning Assessment Arbitration filed.
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Dec. 22, 2006 |
Claimant`s Motion for Protective Order filed.
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Dec. 20, 2006 |
Palmetto General Hospital of Florida, Inc.`s Notice of Compliance filed.
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Dec. 18, 2006 |
Order Requiring Mutually-Available Dates (joint response shall be filed by January 2, 2007).
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Dec. 14, 2006 |
Joint Compliance with Order Concerning Assessment Arbitration filed.
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Dec. 14, 2006 |
Claimant`s Response to Defendant`s Request for Production Served November 30, 2006 filed.
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Dec. 11, 2006 |
Certificate of Non-Objection filed.
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Dec. 11, 2006 |
Notice of Taking Deposition Duces Tecum filed.
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Dec. 11, 2006 |
Subpoena Duces Tecum for Deposition filed.
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Dec. 08, 2006 |
Defendant, Palmetto General Hospital`s Answers to Claimant`s Interrogatoris filed.
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Dec. 07, 2006 |
Claimant`s Request for Copies filed.
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Dec. 06, 2006 |
Notice of Taking Deposition Duces Tecum filed.
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Dec. 06, 2006 |
Notice of Taking Deposition Testimony filed.
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Dec. 01, 2006 |
Palmetto General Hospital`s Compliance with Order as to Assessment of Arbitration filed.
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Dec. 01, 2006 |
Notice of Intent to Servce Subpoena for Production of Documents or Things Pursuant to Rule 1.351 filed.
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Dec. 01, 2006 |
Subpoena Duces Tecum Without Deposition filed.
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Dec. 01, 2006 |
Third Request for Production to Plaintiff filed.
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Nov. 21, 2006 |
Claimant`s Response to Defendant`s Request for Production Served November 15, 2006 filed.
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Nov. 20, 2006 |
Order Concerning Assessment Arbitration.
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Nov. 20, 2006 |
Order Confirming Arbitrators.
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Nov. 17, 2006 |
Certification of Potential Arbitrator Pursuant to 60Q-3.007(2) Florida Administrative Rules filed.
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Nov. 17, 2006 |
Notice of Filing Certification of Potential Arbitrator.
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Nov. 16, 2006 |
Request for Production to Plaintiff filed.
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Nov. 15, 2006 |
Claimant`s Notice of Service of Answers to Palmetto General Hospital`s Wrongful Death Interrogatories filed.
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Nov. 15, 2006 |
Certificate of Non-objection filed.
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Nov. 14, 2006 |
Claimant`s Response to Defendant, Lifemark Hospitals of Florida, Inc. d/b/a Palmetto General Hospital`s Request for Production Served October 30, 2006 filed.
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Nov. 14, 2006 |
Claimant`s Notice of Serving Interrogatories to Defendant Palmetto General Hospital filed.
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Nov. 13, 2006 |
Claimant`s Notice of Service of Answers to Palmetto General Hospital`s Expert Witness Interrogatories filed.
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Nov. 07, 2006 |
Claimant`s Objections to Defendant Palmetto General Hospital`s Wrongful Death Interrogatories filed.
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Nov. 07, 2006 |
Claimant`s Notice of Objection to Defendant`s Notice of Intent to Serve Subpoena under Fla.R.CIV.P. 1.351 Dated 10/31/06 filed.
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Nov. 03, 2006 |
Notice of Intent to Serve Subpoena for Production of Documents or Things Pursuant to Rule 1.351 filed.
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Nov. 02, 2006 |
Defendant, Palmetto General Hospital`s Expert Witness Interrogatories to Plaintiff filed.
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Nov. 02, 2006 |
Request for Production to Plaintiff filed.
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Nov. 02, 2006 |
Palmetto General Hospital`s Wrongful Death Interrogatories to Plaintiff filed.
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Nov. 02, 2006 |
Lifemark Hospitals of Florida`s Designation of Arbitrator filed.
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Oct. 27, 2006 |
Certificate of Arbitrator Selected by Claimant filed.
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Oct. 24, 2006 |
Claimant`s Selection of Arbitrator filed.
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Oct. 11, 2006 |
Certificate of Chief Arbitrator.
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Oct. 11, 2006 |
Notice Regarding Applicable Rules and Service of Pleadings.
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Oct. 11, 2006 |
Order Appointing Chief Arbitrator.
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Oct. 10, 2006 |
Request for Arbitration filed.
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Oct. 10, 2006 |
Referral Letter filed.
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Orders for Case No: 06-003916MA
| Issue Date |
Document |
Summary |
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Jul. 01, 2009 |
DOAH Final Order
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Amended arbitration award to reflect opinion of Third District that wrongful death damages prevail over itemized damages in medical malpractice arbitration statute where wrongful death results from the medical incident.
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Mar. 27, 2009 |
Second Mandate
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Mar. 11, 2009 |
Second Opinion
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Jan. 09, 2009 |
Mandate
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Dec. 24, 2008 |
Opinion
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Jun. 01, 2007 |
DOAH Final Order
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The arbitration award to the spouse of the decedent is controlled by Section 766.207, Florida Statutes, and not by the wrongful death act.
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