WALKER WHITE v. PEZZULLO BURGS OB GYN (2000)

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, 769 So.2d 961, 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 noneconomic damages applies to each claimant individually.”  St. Mary's, 769 So.2d at ----, 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.

FOOTNOTES

1.   In St. Mary's Hospital, Inc. v. Phillipe, 699 So.2d 1017, 1026 (Fla. 4th DCA 1997), approved in part, quashed in part, 769 So.2d 961, 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 to each beneficiary under the Wrongful Death Act, or does the $250,000 cap apply in the aggregate to include all Wrongful Death Act beneficiaries?

PER CURIAM.

DELL, SHAHOOD and TAYLOR, JJ., concur.