STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HECTOR KINDA and BRIGITTE KINDA, )

as parents and natural guardians ) of MARIUS KINDA, a minor, )

)

Petitioners, )

)

vs. ) Case No. 97-0745N

) 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 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 Petitioners, Hector Kinda and Brigitte Kinda, are the parents and natural guardians of Marius Kinda (Marius), a minor; that Marius was born a live infant on August 6, 1996, at Jackson Memorial Hospital, a hospital located in Miami, Florida; and that his birth weight was in excess of 2,500 grams. The parties have

further agreed that the physicians delivering obstetrical services during the birth of Marius were participating physicians 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 Marius 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 award of One hundred thousand dollars ($100,000.00) to the parents (claimants) in the manner set forth in the parties' stipulation, payment of past expenses, and payment of attorney's fees and other expenses of Five thousand three hundred twenty-nine dollars and seventy-three cents ($5,329.73), the claims of the Petitioners (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 20th 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 20th day of November, 1997.

COPIES FURNISHED:

(By certified mail)

Bradley Winston, Esquire 7900 Peters Road, Suite B100 Plantation, Florida 33324

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

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

Salih Yasin, M.D.

8932 Southwest 97th Avenue Miami, Florida 33176

Sharon Salamat, M.D. Jackson Memorial Hospital 1611 Northwest 12th Avenue Miami, Florida 33136

Jackson Memorial Hospital Legal Department

1611 Northwest 12th Avenue Miami, Florida 33136

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: HECTOR KINDA and BRIGITT KINDA

Apt #D l0l

905 Southridge Road Delray Beach, FL 33444

Represented by: Bradley Winston, Esquire

LAW OFFICES OF BRADLEY WINSTON P.A.

7900 Peters Road, Suite Bl00 Plantation, FL 33324

ASSOCIATION: FLORIDA BIRTH RELATED NEUROLOGICAL

INJURY COMPENSATION ASSOCIATION

RESPONDENTS: SHARON MARIE SALAMAT, M.D.;

SALIH YUNIS YASIN, M.D.; and JACKSON MEMORIAL HOSPITAL.

DATE OF INJURY: August 6, 1996 DOAH CASE#: 97-0745N

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. Marius Kinda (the "Injured Party"), incurred an Injury as that term is defined by Section 766.302(2), Florida Statutes, on or about August 6, 1996. The Injury that the Injured Party incurred was the sole and proximate cause of his current medical

   condition. The Injury occurred in Dade County, Florida, and falls within the jurisdiction of the Administrative Law Judge of the Division of Administrative Hearings.

   
   

2. Hector Kinda and Brigitte Kinda (the "Claimants"), are the parents (or legal guardians) of the Injured Party, and are the Claimants as defined by Section 766.302(3), Florida Statutes.

   
   

3. Jackson Memorial Hospital is the Hospital where the injury was incurred on August 6, 1996 as defined by Florida Statutes, Section 766.302(6).

   
   

4. Sharon Marie Salamat, M.D., and Salih Yunis Yasin, M.D., were participating physicians 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, Florida Birth Related Neurological Injury Compensation Plan which the Association administers.

   
   

6. The Claimants, the Association on behalf of itself, and the Respondents, 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 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 such person or entity.

   
   

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

   
   

   1. The Claimants shall receive from the Association One Hundred Thousand Dollars ($100 000.00). This payment is authorized pursuant to Section 766.31(1)(b), Florida Statutes. Disbursement of these funds shall be as follows: to purchase a free and clear

      life estate (remainder to the parents) in a homestead for the Injured Party, minor child, Marius Kinda. The parents shall be free to purchase a joint tenancy with right of survivorship in any property in which the minor has a life estate, and may encumber their interest with purchase money mortgage(s). The child's life estate shall not be subject to encumbrance by any such purchase money mortgage(s) on the parents' interest in such residence. The parents shall be free to transfer the life estate on behalf of the minor child from one residence to another, so long as the equity of the estate is maintained.

      
      

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

      
      

   3. The Association will reimburse Bradley Winston, Esquire, attorney for the Claimants, an agreed upon attorney's fee of Four Thousand Dollars ($4,000.00) and expenses of One Thousand Three Hundred Twenty Nine Dollars and Seventy Three Cents ($1,329.73), totalling Five Thousand Three Hundred Twenty Nine Dollars and Seventy

      Three Cents ($5,329.73) in full for services rendered in the filing of this claim.

      
      

9. The Claimants further agree that payments, including future payments as outlined in Paragraph 11, agreed to hereinabove by the terms and provisions of the Stipulation, is 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 and individual 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 such person or entity 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 investigating or discipline of the physicians involved in the care of, or the birth of, the Injured party.

    
    

11. 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 services, for medically necessary drugs, special equipment and facilities, and for related travel as per Florida Statute 766.31 and for a reasonable attorney's fee and expenses, 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 Marius Kinda. The Association further acknowledges that it is obligated to pay a reasonable attorney's fee based upon the criteria set forth in Florida Statutes 766.31. The Claimants 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 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 the lump sum of $100,000.00 as set forth in Paragraph 8(a) herein, the payment of medical expense (as listed above) and attorneys' fees and expenses as authorized by Section 766.31, Florida Statutes.

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 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 hearing and as such, such hearing 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.

    
    

16. 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 for 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; and

       
       

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

17. 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 Stipulation and Joint Petition for Compensation of Claim has been read and is fully understood by the parties hereto who have executed same this 13th day of November, 1997.

Lynn Dickinson Bradley Winston, Esquire

Executive Director Attorney for Claimants

Florida Birth-Related Law Offices of Bradley Winston P.A. Neurological Injury 7900 Peters Road, Suite B100

1435 Piedmont Drive East Plantation, Florida 33324 Suite 101

Tallahassee, Florida 32312

Brigitte Kinda, Mother as Hector Kinda, Father as Claimant and Natural Claimant and Natural Guardian Guardian of Marius Kinda, of Marius Kinda, a minor

a minor

Docket for Case No: 97-000745N

Orders for Case No: 97-000745N