STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUAN CARLOS GARCIA and SOUAD )

ABOUREZO GARCIA, as parents and ) natural guardians of SALIM GARCIA, ) a minor, )

)

Petitioners, )

)

vs. ) Case No. 00-0635N

) 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 May 1, 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, Juan Carlos Garcia and Souad Abourezo Garcia, are the parents and natural guardians of Salim Garcia (Salim), a minor; that Salim was born a live infant on November 21, 1998,

at St. Mary's Medical Center, a hospital located in West Palm Beach, Florida; and that Salim's birth weight was in excess of 2,500 grams. The parties have further agreed that the physician delivering obstetrical services during the birth of Salim was Frank Rodriguez, 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 Salim 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 May 1, 2000, is hereby approved, and the parties are directed to comply with the provisions thereof.

2. Petitioners (claimants), Juan Carlos Garcia and Souad Abourezo Garcia, as the parents and natural guardians of Salim Garcia, a minor, are accorded an award of One hundred thousand dollars ($100,000.00), to be used for purposes set forth in the stipulation and joint petition.

3. Upon payment of the award of One hundred thousand dollars ($100,000.00) to the claimants, payment of past

   expenses, payment of attorney's fees of Ten thousand dollars ($10,000.00), and other expenses which, if not agreed to between the parties, will be assessed at a later date, the claims of the 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 3rd day of May, 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 3rd day of May, 2000.

COPIES FURNISHED: (By certified mail)

Christopher M. Larmoyeux, Esquire Montgomery & Larmoyeux

Post Office Drawer 3086

West Palm Beach, Florida 33402-3086

Lynn Larson, Executive Director Florida Birth-Related Neurological

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

Frank Rodriguez, M.D.

560 Village Boulevard, Suite 200 West Palm Beach, Florida 33409

St. Mary's Medical Center Legal Department

901 45th Street

West Palm Beach, Florida 33409

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

CLAIMANT: JUAN CARLOS GARCIA and SQUAD ABOUREZO

GARCIA, on behalf of and as parents and natural guardians of SALIM GARCIA, a minor

6289 Lear Drive Lantana, Florida 33462

Lantana, Florida 33462

Represented By: CHRISTOPHER M. LARMOYEUX, Esquire

1016 Clearwater Place

West Palm Beach, Florida 33401

ASSOCIATION: FLORIDA BIRTH-RELATED NEUROLOGICAL

INJURY COMPENSATION ASSOCIATION

RESPONDENTS: ST. MARY'S MEDICAL CENTER, FRANK

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

DATE OF INJURY: November 21, 1998 DOAH CASE #: 00-0635N

STIPULATION AND JOINT PETITION FOR COMPENSATION OF CLAIM ARISING OUT OF FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY PURSUANT TO CHAPTER 766, FLORIDA STATUTES

The Claimant 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. SALIM GARCIA (the "Injured Party"), incurred an Injury as that term is defined by Section 766.302(2), Florida Statutes, on or about November 21, 1998. The Injury that the Injured Party incurred was the sole and proximate cause of Salim Garcia's current medical condition. The Injury occurred in Palm Beach County, Florida, and falls within the jurisdiction of the Administrative Law Judge of the Division of Administrative Hearings.

   
   

2. Juan Carlos Garcia and Squad Abourezo Garcia (the "Claimant"), is the parent (or legal guardian) of the Injured Party, and is the Claimant as defined by Section 766.302(3), Florida Statutes.

   
   

3. St. Mary's Medical Center is the Hospital where the injury was incurred on November 21, 1998, as defined by Florida Statutes, Section 766.302(6).

   
   

4. Frank Rodriguez, MD, is a participating physician as defined in Florida Statutes, Section 766.302(7).

   
   

5. The Claimant has 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 Claimant, 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 Claimant 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 Claimant and the Association hereby agree as follows:

   
   

   1. The Claimant shall receive from the Association One Hundred Thousand Dollars ($100,000). This payment is authorized pursuant to Section 766.31(1)(b), Florida Statutes. The parents wish to use these funds to purchase a home, and for other related expenses associated with the purchase of a home such as insurance, taxes, and other incidental expenses.

      
      

   2. The Association will pay all benefits, past and future, as authorized by Section 766.31, Florida Statutes. Payment of past benefits under Section 766.31(1)(a), Fla. Stat., shall be subject to the provisions of Paragraph 16 of this Stipulation.

      
      

   3. The Association will reimburse Christopher M. Larmoyeux, Esquire, attorney for the Claimant, an agreed upon attorney's fee of $10,000. Mr. Larmoyeux and the Association are attempting to negotiate expenses accrued in the filing of this claim. If negotiations in this regard are unsuccessful, either party may request a hearing to resolve allowable legal expenses in connection with the filing of this claim.

   
   

9. The Claimant further agrees that payments, including future payments as outlined in Paragraph 11, agreed to herein above by the terms and provision 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 Claimant in (his/her) official and individual capacity as the parent of the Injured Party. The Claimant further acknowledges 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 Claimant further agrees 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 Claimant also acknowledges 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 Claimant, 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 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 Salim Garcia. The Association further acknowledges that it is obligated to pay a reasonable attorney's fee based upon the criteria set forth in F.S. 766.31. The Claimant further represents and acknowledges that he has 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 Claimant otherwise has had, either in (her/his) official capacity or personal capacity and that (his/her) legal counsel has advised (him/her) of the legal significance of each and every part of this Stipulation. Further, the Claimant represents and acknowledges to the Administrative Law Judge of the Division of Administrative Hearings that he understands 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 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 Claimant in (his/her) capacity as parent and legal guardian 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 Claimant 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(l)(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 habilitative care or the payment of 's 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 Claimant agrees that a representative of the Association may periodically visit the child with the parent's prior notification. The purpose of such visits would be to assess the child's current condition.

    
    

19. 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 7th day of April, 2000.

    
    

    Lynn Larson Executive Director

    Florida Birth-Related Neurological Compensation Association

    1435 Piedmont Drive East, Suite 101

    Tallahassee, Florida 32312

    
    

    M. Larmoyeux, Esquire Attorney for Claimant 1016 Clearwater Place

    West Palm Beach, Florida 33401

    
    

    Juan Carlos Garcia

    as Claimant and natural guardian of Salim Garcia, a minor

    
    

    Squad Garcia

    as Claimant and natural guardian of Salim Garcia, a minor

    
    

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

    NEUROLOGICAL INJURY PURSUANT TO CHAPTER 766, FLORIDA STATUTES

    
    

20. However, nothing in this Stipulation shall be construed as dismissing, discharging or releasing the claims of Squad Abourezq Garcia for her personal injuries as a result of the injury to her during the birth of her son, Salim Garcia, and her husband, Juan Carlos Garcia, for his loss of consortium for the injuries to his wife, Squad Abourezq Garcia.

Lynn Larson Executive Director

Florida Birth-Related Neurological Compensation Association

1435 Piedmont Drive East, Suite 101

Tallahassee, FL 32312

Christopher M. Larmoyeux Attorney for Claimant 1016 Clearwater Place West Palm Beach, FL 33401

Juan Carlos Garcia

Claimant and natural guardian of Salim Garcia, a minor

Squad Abourezq Garcia

as Claimant and natural guardian of Salim Garcia, a minor

DATED THIS 7th DAY OF APRIL, 2000.

Docket for Case No: 00-000635N

Orders for Case No: 00-000635N