STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TIMOTHY SIMMONS and JORETTA SIMMONS, )

as parents and natural guardians of ) JASMIN SIMMONS, a minor, )

)

Petitioners, )

)

vs. ) Case No. 99-2597N

) 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 January 20, 2000, 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, Joretta Simmons and Timothy Simmons, are the parents and natural guardians of Jasmin Simmons (Jasmin), a minor; that Jasmin was born a live infant on January 20, 1998, at Tallahassee Memorial Regional Medical Center, a hospital located in Leon County, Florida; and that her birth weight was in excess

of 2,500 grams. The parties have further agreed that the physician delivering obstetrical services during the birth of Jasmin was Kenneth McAlpine, 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 Jasmin 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 January 20, 2000, is hereby approved, and the parties are directed to comply with the provisions thereof.

2. Petitioners, Joretta Simmons and Timothy Simmons, as the parents and natural guardians of Jasmin Simmons, a minor, are accorded a lump sum award of One hundred thousand dollars ($100,000.00), to be disbursed in accordance with the terms of the parties' stipulation.

3. Upon payment of the lump sum award of One hundred thousand dollars ($100,000.00) to the parents (claimants), and payment of past expenses, the claims of Petitioners (claimants) shall be deemed fully satisfied and extinguished, except to the extent of Respondent's continuing obligation under the provisions

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

4. 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 26th day of January, 2000, 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

(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 26th day of January, 2000.

COPIES FURNISHED:

(By certified mail)

Timothy and Joretta Simmons 2106 Wakefield Lane

Tallahassee, Florida 32303

Lynn Larson, Executive Director Florida Birth-Related Neurological

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

Kenneth McAlpine, M.D.

1401 Centerville Road, Suite 202

Tallahassee, Florida 32308

Tallahassee Memorial Regional Medical Center

Legal Department 1300 Miccosukee Road

Tallahassee, Florida 32308

Ms. Charlene Willoughby

Agency for Health Care Administration Consumer Services Unit

Post Office Box 14000 Tallahassee, Florida 32308

Daniel Y. 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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLAIMANTS: JORETTA SIMMONS and TIMOTHY SIMMONS

as parents and natural guardians of JASMIN SIMMONS, a minor

2106 Wakefield Lane

Tallahassee, Florida 32303

ASSOCIATION: FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION

RESPONDENTS: KENNETH McALPINE, M.D., TALLAHASSEE MEMORIAL REGIONAL MEDICAL CENTER, and ANY AND ALL ADDITIONAL HEALTH CARE PROVIDERS WHETHER KNOWN OR UNKNOWN INVOLVED IN THE MEDICAL TREATMENT OF THE INJURED PARTY

DATE OF INJURY: JANUARY 20, 1998

DOAH CASE #: 99-2597N

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. Jasmin Simmons (the "Injured Party"), incurred an Injury as that term is defined by Section 766.302(2), Florida Statutes, on or about January 20, 1998 The Injury that the Injured Party incurred was the sole and proximate cause of her current medical condition. The Injury occurred in Leon County, Florida, and falls within the jurisdiction of the Administrative Law Judge of the Division of Administrative Hearings.

2. Joretta Simmons and Timothy Simmons (the "Claimants"), are the parents and legal guardians of the Injured Party, and are the Claimants as defined by Section 766.302(3), Florida Statutes.

   
   

3. Tallahassee Memorial Regional Medical Center is the Hospital where the injury was incurred on January 20, 1998, as defined by Florida Statutes, Section 766.302(6).

   
   

4. Dr. Kenneth McAlpine, 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, her 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. The Claimants shall receive from the Association One Hundred Thousand Dollars ($100,000.00). This payment is authorized pursuant to Section 766.3 l(l)(b), Florida Statutes. Prior to the distribution of any funds, additional information will be provided to the Division of Administration Hearings.

      
      

   2. The Association will pay all benefits, past and future, as authorized by Section 766.31, Florida Statutes. Payment of past benefits under Section 766.3 l(l)(a), Fla. Stat., shall be subject to the provisions of Paragraph 16 of this Stipulation.

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.

    
    

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 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 Jasmin Simmons. 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 expenses under Section 766.31 (1)(a), Fla. Stat., as limited by Paragraph 16 hereof

    
    

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 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.

    
    

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 of invoices and names and addresses of providers) of all known past expenses under Section 766.31(1)(a), Fla. Stat., for which the Claimants seek reimbursement in accordance with the terms and provisions of this Stipulation. The Association is relying upon the timely submission of such claims and to the extent that any such claims for past expenses are not submitted-within the afore-described time period, the Claimant shall have intentionally and knowingly forever waived and relinquished their right to submit any such claims for payment to the Association; 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. Such other reasonable information as may be required by the Association, which relates to the provision of Jasmine Simmons habilitative care or the payment of Jasmine Simmons bills.

    
    

17. The Claimants shall seek prior authorization and approval from the Association for all actual expenses incurred

    under Section 766.31(1)(a), Fla. Stat., in advance of authorizing and obtaining any medical and hospital, rehabilitative and training, residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel. In the event the Claimants have not sought and obtained such authorization and approval in advance, the Claimants will have waived the right to recovery of such actual expenses. This provision shall not be applicable with respect to any emergency medical or hospital care required for the Injured Party, however, the Claimants shall on the next business day advise the Association that such emergency medical and hospital care has been obtained.

    
    

18. 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.

    
    

19. The Administrative Law Judge of he 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 21st day of September, 1999.

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

Tallahassee, Florida 32312

Joretta Simmons, Mother

as Claimant and natural guardian of Jasmin Simmons, a minor.

Timothy Simmons, Father

as Claimant and natural guardian of Jasmin Simmons, a minor.

Docket for Case No: 99-002597N

Orders for Case No: 99-002597N