STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARLENE COTTO and WESCESLAO )

COTTO, as parents and natural ) guardians of NICHOLAS DEVIN COTTO, ) a deceased minor, )

)

Petitioners, )

)

vs. ) CASE NO. 95-4592N

) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )

)

Respondent. )

)

FINAL ORDER APPROVING STIPULATION AND JOINT PETITION FOR COMPENSATION OF CLAIM ARISING OUT OF FLORIDA BIRTH-RELATED

NEUROLOGICAL INJURY PURSUANT TO CHAPTER 766, FLORIDA STATUTES

This cause came on to be heard pursuant to Section 766.304, Florida Statutes, upon the stipulation and joint petition of the parties, filed August 2, 1996, for the entry of an order approving the resolution of a formal claim for compensation benefits heretofore filed in this cause in accordance with the provisions of Chapter 766, Florida Statutes, and a resolution of the exclusive remedy otherwise available as outlined in Chapter 766, Florida Statutes.

By the terms of their stipulation, the parties have agreed that petitioners (claimants), Marlene Cotto and Wesceslao Cotto, are the parents and natural guardians of Nicholas Devin Cotto (Nicholas), a deceased minor, that Nicholas was born a live infant on February 6, 1995, at Central Florida Regional Hospital, Sanford, Florida, and that his birth weight was in excess of 2,500 grams. The parties have further agreed that the physician delivering obstetrical services during the birth of Nicholas was Juan L. Ravelo, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Finally, by their stipulation, the parties have agreed that Nicholas suffered a "birth-related neurological injury," as that term is defined by Section 766.302(2), Florida Statutes. The medical records that accompanied the petition for

compensation, are consistent with and supportive of the parties' stipulation.

After due consideration of the interests of all parties, and being otherwise fully advised in the premises, it is

ORDERED that:

1. The stipulation of the parties, filed of record August 2, 1996, is hereby approved and the parties are directed to comply with the provisions thereof.

   
   

2. Upon payment of the award of One Hundred Thousand Dollars ($100,000.00) to the parents (claimants); the sum of Three Thousand Eight Hundred Nine Dollars and Seventy Nine Cents ($3,809.79) to H. Scott Bates, Esquire, and the sum of Six Thousand Eight Hundred Sixty Four Dollars and Thirty Three Cents ($6,864.33) to Larry Hauser, Esquire, for attorney's fees and expenses incurred on behalf of the claimants in filing the claim for compensation; and medical expenses, if any, for which the claimants have become obligated for in the past, the claims of the petitioners (claimants) shall be deemed fully satisfied and extinguished.

   
   

3. The Division of Administrative Hearings retains jurisdiction over this matter to resolve any dispute as to the interpretation of any provision of the parties' stipulation and to resolve any disputes, should they arise, regarding the parties' compliance with the terms of such stipulation.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of August, 1996.

WILLIAM J. KENDRICK, Hearing Officer 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 6th day of August, 1996.

COPIES FURNISHED:

(By certified mail)

H. Scott Bates, Esquire

MORGAN, COLLING AND GILBERT, P.A.

20 North Orange Avenue, Suite 905 Post Office Box 4979

Orlando, Florida 32802-4979

W. Douglas Moody, Jr., Esquire BATEMAN GRAHAM, P.A.

300 East Park Avenue Tallahassee, Florida 32301

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 14567 Tallahassee, Florida 32317-4567

Juan L. Ravelo, M.D.

1403 Medical Plaza Drive, Suite 102

Sanford, Florida 32771

Lawrence I. Hauser, Esquire BEST and ANDERSON, P.A.

20 North Orange Avenue, Suite 505 Orlando, Florida 32801-2438

Central Florida Regional Hospital Legal Department

1401 West Seminole Boulevard Sanford, Florida 32771

Ms. Tanya Williams

Agency for Health Care Administration Division of Health Quality Assurance Hospital Section

2727 Mahan Drive

Tallahassee, Florida 32308

Ms. Charlene Willoughby Department of Business and

Professional Regulation Consumer Services

1940 North Monroe Street Tallahassee, Florida 32399-0784

Dan Sumner, General Counsel Department of Insurance

The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See, Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So.2d 299 (Fla. 1st DCA 1992). The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.

================================================================= STIPULATION AND JOINT PETITION FOR COMPENSATION OF CLAIM

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLAIMANTS: MARLENE and WESCESLAO COTTO, parents and as

Co-Personal Representatives of the Estate of NICHOLAS DEVIN COTTO, (Deceased)

1074 Providence Ln, Oviedo, Florida 32765

Represented By: H. Scott Bates, Esquire

Morgan, Colling & Gilbert, PA

20 North Orange Ave, Ste 905 Orlando, Florida 32802-4979

ASSOCIATION: FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY

COMPENSATION ASSOCIATION

RESPONDENTS: DR. Juan L. Ravelo, Central Florida Regional

Hospital and ANY AND ALL ADDITIONAL

HEALTH CARE PROVIDERS INVOLVED IN THE BIRTH OF THE INJURED PARTY

DATE OF INJURY: February 6, 1995 DOAH CASE Number: 95-004592N

STIPULATION AND JOINT PETITION FOR COMPENSATION OF CLAIM ARISING OUT OF FLORIDA BIRTH-RELATED NEUROLOGICAL

INJURY PURSUANT TO CHAPTER 766, FLORIDA STATUTES

The Claimants and the Association (Collectively the "Parties") hereby jointly petition for entry of an Order by the

Hearing Officer of the Division of Administrative Hearings approving this Stipulation and Joint Petition for Compensation (the "Stipulation") of all claims arising out of the birth- related neurological injury (the "Injury") suffered by NICHOLAS DEVIN COTTO (deceased).

The parties hereby stipulate That the facts contained herein are true and shall be considered as established by competent, substantial evidence before the Hearing Officer of the Division of Administrative Hearings:

1. NICHOLAS DEVIN COTTO (the "Injured Party", deceased), incurred an Injury as the term is defined by Section 766.302(2), Florida Statutes, on or about February 6, 1995. The Injury occurred in Seminole County, Florida, and falls within the jurisdiction of the Hearing Officer of the Division of Administrative Hearings.

   
   

2. MARLENE and WESCESLAO COTTO (the "Claimants"), are the parents of the Injured Party (deceased), and are the Claimants as defined by Section 766.302(3), Florida Statutes.

   
   

3. Central Florida Regional Hospital is where the injury, was incurred on February, 6, 1995, as defined by Florida Statutes, Section 766.302(6).

   
   

4. Dr. Juan L. Ravelo is a participating physician as defined in Florida Statutes, Section 766.302(7).

   
   

5. The Claimants have filed a petition under Section 766.305, Florida Statutes, seeking compensation from the Association, and that petition is incorporated herein by reference in the entirety, including all attachments. Any reference made within this document to the Association encompasses, where appropriate, The Florida Birth-Related Neurological Injury Compensation Plan which the Association administers.

   
   

6. The Claimants, the Association on behalf of itself, and all Respondents, known or unknown agree that the aforementioned Injury comes within the jurisdiction of the Hearing Officer of the Division of Administrative Hearings and is governed by Section 766.301, et. seq. Florida Statutes.

   
   

7. The Claimants and the Association agree that the rights and remedies granted by this plan on account of the Injury shall exclude all other rights and remedies of such infant, his parents or next of kin at common law or otherwise, against any person or entity directly or indirectly involved with the labor, delivery or resuscitation during which time the Injury occurred, arising out of or related to a medical malpractice claim with respect to

   such injuries and shall preclude any claim for medical malpractice against any such person or entity.

   
   

8. The Claimants and the Association hereby agree as:

   
   

   1. The Claimants shall receive from the Association One Hundred Thousand Dollars (100,000.00). This payment is authorized pursuant to Section 766.3 (1)(b), Florida Statutes.

      
      

   2. The Association will pay all medical expenses as authorized by F.S. 766.31 for which the Claimants have become obligated for in the past.

      
      

   3. The Association will reimburse H. Scott Bates, Esquire, attorney for the Claimants, an agreed upon attorney's fee of

      $2,780.00, and expenses of $1,029.79, totaling $3,809.79, in full for services rendered in the filing of this claim.

      
      

   4. The Association will reimburse Larry Hauser, Esquire, attorney for the Claimants, an agreed upon attorney's fee of

   $5,000.00, and expenses of $1,864.33, totaling $6,864.33, in full for services rendered in the filing of this claim.

   
   

9. The Claimants further agree that this payment, agreed to herein above by the terms and provision of this Stipulation, is a full, complete and absolute discharge of any and all responsibility and liability of the Respondents, and the Association not only, to the Claimants in their official capacity as the parents of the Injured Party (deceased); but also a full and complete discharge of whatever liability the respondents and the Association has or may have to claimants in their personal capacity as the parents of the Injured Party, (deceased). The Claimants further acknowledge that payment in full shall result in a full and complete discharge as to any and all liability of the Respondents, or the Association, which they may have to any other relatives of the Injured Party (deceased).

   
   

10. The Claimants further agree that there is no evidence of bad faith, malicious purpose or willful and wanton disregard of human rights, safety, or property on the part of any of the parties or of any person or entity mentioned within this Stipulation that would otherwise support a civil action as provided in Section 766.303(2), Florida Statutes. The Claimants also acknowledge that no civil suit has been filed, nor will be filed and if a suit or notice of intent has been filed and/or served it will hereby be dismissed with prejudice by motion of the Claimants, against the Respondents or the Association or any other person or entity either known or unknown and so named as a result of the Birth Injury sustained by the Injured Party (deceased). Nothing herein shall preclude the Claimants from

    assisting the Department of Business and Professional Regulation in investigation or discipline of the physicians involved in the care of, or the birth of, the injured party (deceased).

    
    

11. The Claimants represent and acknowledge to the Hearing Officer of the Division of Administrative Hearings that they understand this stipulation to be a complete and final settlement in its entirety, and further represent and acknowledge that they have retained legal counsel which has provided legal advice in regard to this Stipulation, and the option of accepting this Stipulation as opposed to whatever other rights and remedies the Claimants otherwise have had, either in their official capacity or personal capacity and that their legal counsel has advised them of the legal significance of each and every part of this Stipulation. Further, the Claimants represent and acknowledge to the Hearing Officer of the Division of Administrative Hearings that they understand that the Petition which has been filed seeking compensation from the Association is hereby deemed to be satisfied in its entirety.

    
    

12. The parties to this Stipulation agree that the order approving this stipulation, if such order is entered, shall not be appealed.

    
    

13. It is understood by and between the parties that if this Stipulation is not approved by the Hearing Officer of the Division of Administrative Hearings, this Stipulation will be null, void and of no effect. It is stipulated and agreed by and between the parties that this Stipulation shall he presented to the Hearing Officer of the Division of Administrative Hearings for his consideration and for the entry of a proper Order of approval

    .

14. It is understood and agreed that when the Hearing Officer of the Division of Administrative Hearings approves this Stipulation, that this Stipulation shall not be subject to modification or change, in any way, without the express written consent of the parties to this Stipulation, unless so ordered by a court of competent jurisdiction for good cause.

    
    

15. References made in this Stipulation to the "Parties" or all "Parties" shall be deemed to include the Claimants in their capacity as parents and legal guardians of the injured Party (deceased); the Respondents and the Association and any and all medical providers involved in the birth of the Injured Party (decease).

    
    

16. In order for the Association to carry out its responsibility as provided in this Stipulation, the Claimants

    shall provide in a reasonable time from the date of approval of this Stipulation, the following:

    
    

    1. A compete list (with copies, invoices, addresses, etc.) of all known past expenses for which the Claimants seek reimbursement in accordance with the terms and provisions of this Stipulation document for medical and related expenses previously incurred; and

       
       

    2. A complete list, under oath, of any source of funds or payments of kind or nature, whether from state or federal government, prepaid health plan, health maintenance organizations, or other providers of insurance (collectively "insurance programs" and

       
       

    3. A fully executed authorization of release of any and all medical records, insurance program records, and such other authorization as may reasonably be required by the Association to complete its duties hereunder, and

       
       

    4. Such other reasonable information as may be required by the Association, regardless of when the point in time in which the information may be requested so long as this Stipulation is effective.

    
    

17. The Hearing Officer of the Division of Administrative Hearings shall retain jurisdiction to resolve any disputes as to interpretation of any provision of this Stipulation.

The foregoing has been read and is fully understood by the parties, hereto who have executed same this 29th day of July, 1996.

LYNN DICKINSON, Executive Director H. SCOTT BATES, Esquire Florida Birth-Related Neurological Morgan, Colling & Gilbert,PA Injury Compensation Association 20 N Orange Ave., Ste 905 1435 Piedmont Drive East, Suite 101 Orlando, Fl. 32802-4979

Tallahassee, Florida 32312

MARLENE COTTO, Mother WESCESLAO COTTO, Father

as Claimant and natural as Claimant and natural guardian of NICHOLAS DEVIN COTTO guardian of NICHOLAS DEVIN (deceased), a minor COTTO (deceased), a minor

Docket for Case No: 95-004592N

Orders for Case No: 95-004592N