STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANA R. BUTLER, as parent and ) natural guardian of GLYNN WILLIAM ) BUTLER, a minor, )

)

Petitioner, )

)

vs. ) Case No. 97-0634N

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

)

Respondent, )

)

and )

)

JOHN W. BUTLER, )

)

Intervenor. )

)

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 November 17, 1997, 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 Petitioner Dana R. Butler is the birth mother, and Intervenor John W. Butler is the adoptive parent and legal

guardian of Glynn William Butler (Glynn), a minor; that Glynn was born a live infant on March 8, 1995, at Cape Canaveral Hospital, a hospital located in Cocoa Beach, 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 Glynn was Arthur F. Turner, III, 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 Glynn suffered a "birth-related neurological injury," as that term is defined by Section 766.302(2), Florida Statutes.

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 November 17, 1997, is hereby approved, and the parties are directed to comply with the provisions thereof.

2. Upon payment of the lump sum award of One hundred thousand dollars ($100,000.00) in the manner set forth in the parties' stipulation, payment of past expenses, and payment of expenses of Thirty-six and 26/100 dollars ($36.36), the claims of the Petitioner and Intervenor (claimants) shall be deemed fully satisfied and extinguished, except to the extent of Respondent's (Association's) continuing obligation under the provisions of

   Section 766.31, Florida Statutes, to pay future expenses as incurred.

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 this 19th day of November, 1997, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1997.

COPIES FURNISHED:

(By certified mail)

Mr. John W. Butler

506 South Madden Shamrock, Texas 79079

Ms. Dana R. Butler 4320 Silver Lake Drive

Melbourne, Florida 32901-8648

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

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

Arthur F. Turner, III, M.D. 1980 North Atlantic, Suite 527 Cocoa Beach, Florida 32931

Cape Canaveral Hospital Legal Department

701 West Cocoa Beach Causeway Cocoa Beach, Florida 32931

Ms. Charlene Willoughby

Agency for Health Care Administration Consumer Services Unit

Post Office Box 14000 Tallahassee, Florida 32308

Daniel Sumner, General Counsel Department of Insurance

The Capitol, Lower Level 26 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.

================================================================= NICA STIPULATION

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLAIMANTS: DANA R. BUTLER, as Petitioner

and Birth Mother of

GLYNN WILLIAM BUTLER, a minor PO Box 561365

Rockledge, FL 32956-1365

and

JOHN W. BUTLER, as Intervenor and Adoptive Parent of

GLYNN WILLIAM BUTLER, a minor

506 S Madden Shamrock, TX 79079

ASSOCIATION: FLORIDA BIRTH-RELATED NEUROLOGICAL

INJURY COMPENSATION ASSOCIATION

RESPONDENTS: ARTHUR F. TURNER, III, MD, CAPE

CANAVERAL HOSPITAL, and ANY AND ALL ADDITIONAL HEALTH CARE PROVIDERS WHETHER KNOWN OR UNKNOWN INVOLVED IN THE MEDICAL TREATMENT OF THE INJURED PARTY

DATE OF INJURY: March 8, 1995 DOAH CASE No. 97 000634N

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 Administrative Law Judge of the Division of Administrative Hearings approving this Stipulation and Joint Petition for Compensation (the "Stipulation"). The parties hereby stipulate that the facts contained herein are true and shall be considered as established by competent, substantial evidence before the Administrative Law Judge of the Division of Administrative Hearings:

1. Glynn William Butler (the "Injured Party"), incurred an Injury as that term is defined by Section 766.302(2), Florida Statutes, on or about March 8, 1995. The Injury that the Injured Party incurred was the sole and proximate cause of his current medical condition. The Injury occurred in Brevard County, Florida, and falls within the jurisdiction of the Administrative Law Judge of the Division of Administrative Hearings.

   
   

2. Dana R. Butler. as Petitioner and Birth Mother, and John

   W. Butler, as Intervenor, Adoptive Parent, and Legal Guardian, (the "Claimants"), of the Injured Party, are the Claimants as defined by Section 766.302(3), Florida Statutes.

   
   

3. Cape Canaveral Hospital is the Hospital where the injury was incurred on March 8, 1995, as defined by Florida Statutes, Section 766.302(6).

   
   

4. Arthur F. Turner, III, MD, 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 Administrative Law Judge 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 person or entity.

   
   

8. The Claimants and the Association hereby agree as follows:

   
   

   1. Dana R. Butler, Petitioner and Birth Mother, shall receive from the Association

      Ten Thousand Dollars ($10,000.00). This payment is authorized pursuant to Section 766.31(1)(b), Florida Statutes.

      
      

   2. Payment shall be made by the Association to the "Butler Trust" as established with the First National Bank of Shamrock (Account #00- 7765), whose beneficiary is Glynn William Butler, in the amount of Ninety Thousand Dollars ($90,000.004).

      
      

   3. John W. Butler, Intervenor and Adoptive Parent, shall receive from the Association Thirty-Six Dollars and 26/100 ($36.26) as payment in full for expenses incurred in the filing of the Petition for Benefits.

      
      

   4. The Association will pay all benefits, past and future, as authorized by Section 766.31, Florida Statutes.

      
      

9. The Claimants further agree that payments, including future payments as outlined in Paragraph 11, agreed to herein above by the terms and provisions of the Stipulation, are a full, complete and absolute discharge of any and all responsibility and liability, the Respondents, or the Association, may have to the Claimants in their official capacity as the parents of the Injured Party. The Claimants further acknowledge that payment in full now and in the future as claims arise as provided herein above, 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.

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 upon the executing of this agreement and payment by the Association as specified in Paragraph 8 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 Injury sustained by the Injured Party. Nothing herein shall preclude the Claimants from assisting the Agency for Health Care Administration in investigation or discipline of the physicians involved in the care of, or the birth of, the Injured Party.

1. The Parties agree that the issues of the actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, residential and custodial care and service, for medically necessary drugs, special equipment and facilities, and for related travel as per Florida Statute 766.31, may be determined by the Administrative Law Judge if a dispute arises regarding the same. The Association is not aware of any specific disputes regarding the services being provided to Glynn William Butler. Further, the Claimants represent and acknowledge to the Administrative Law Judge 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, except to the extent provided as it pertains to the payment of medical expenses (as listed above) as authorized by Section 766.31, Florida Statutes.

   
   

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

   
   

3. It is understood by and between the parties that if this Stipulation is not approved by the Administrative Law Judge 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 be presented to the Administrative Law Judge of the Division of Administrative Hearings for his consideration and for the entry of a proper Order of approval without the necessity of formal notice and as such, such notice is hereby expressly waived.

14 It is understood and agreed that when the Administrative Law Judge 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; the Respondents and the Association and any and all medical providers involved in the birth of the Injured Party.

1. In order for the Association to carry out its responsibility as provided in this Stipulation, the Claimants shall provide within thirty (30) days of the date of approval of this Stipulation, the following:

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

      
      

   3. The Claimants agree that a representative of the Association may periodically visit the child with the parents' prior notification. The purpose of such visits would be to assess the child's current condition.

      
      

   4. Such other reasonable information as may be required by the Association, which relates to the provision of Glynn William Butler or habilitative care or the payment of Glynn William Butler's bills.

      
      

2. The Administrative Law Judge 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 12th day of November, 1997.

Lynn Dickinson, Executive Director Florida Birth-Related Neurological Injury Compensation Association 1435 Piedmont Drive East, Suite 101

Tallahassee, Florida 32312

Dana R. Butler, Claimant,

as Petitioner and Birth Mother of Glynn William Butler, a minor.

STATE OF FLORIDA COUNTY OF BREVARD

The foregoing instrument was acknowledged before me this 15 day of November, 1997, by Dana R. Butler, who is personally known to me or has produced DL as identification and who did (or did not) take an oath.

STUART R. MEIKLE

NOTARY PUBLIC - STATE OF FLORIDA

John W. Butler, Claimant,

as Intervenor and Adoptive Parent of Glynn William Butler, a minor.

STATE OF TEXAS

COUNTY OF Wheeler

The foregoing instrument was acknowledged before me this 12th day of November, 1997, by John W. Butler, who is personally known to me or has produced NA as identification and who did (or did not) take an oath.

CARLA J. Howard

NOTARY PUBLIC STATE OF TEXAS

Docket for Case No: 97-000634N

Orders for Case No: 97-000634N