STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAGDALENA RODRIGUEZ, a single woman, ) as parent and natural guardian of ) NOEMI RODRIGUEZ, a minor, )

)

Petitioners, )

)

vs. ) Case No. 93-5556N

) 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 July 20, 1995, 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, Magdalena Rodriguez, is the parent and natural guardian of Noemi Rodriguez (Noemi), a minor, that Noemi was born a live infant on April 5, 1991, at Tampa General Hospital, Tampa, Florida, and that her birth weight was in excess of 2,500 grams. The parties have further agreed that the physicians delivering obstetrical services during the birth of Noemi were Michael T. Parsons, M.D. and J. Kell Williams, M.D., who were, at all times material hereto, 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 Noemi suffered a

"birth-related neurological injury," as that term is defined by Section 766.302(2), Florida Statutes. The record developed in this case is 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 July 20, 1995, is hereby approved and the parties are directed to comply with the provisions thereof.

   
   

2. Upon payment of the lump sum stipulated, attorney's fees and costs, and a reasonable sum for past expenses, the claims of the petitioner (claimant) 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.

   
   

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 8th day of August, 1995.

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 8th day of August 1995.

COPIES FURNISHED:

(By Certified Mail)

Dayra J. Morales, Esquire MOFFITT & VESSEL, P.A.

Suite 1011

5401 West Kennedy Boulevard Tampa, Florida 33609

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 1528

Tallahassee, Florida 32302

Ms. Charlene Willoughby Department of Business and

Professional Regulation Consumer Services

1940 North Monroe Street Tallahassee, Florida 32399-0784

Ms. Tanya Williams

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

2727 Mahan Drive

Tallahassee, Florida 32308

Dan Sumner, General Counsel Department of Insurance

The Capitol, PL-11

Tallahassee, Florida 32399-0300

Dr. Steven DeCesare

c/o Tampa General Hospital Davis Island

Post Office Box 1289 Tampa, Florida 33601

Dr. Michael T. Parsons

c/o Tampa General Hospital Davis Island

Post Office Box 1289 Tampa, Florida 33601

Dr. J. K. Williams

c/o Tampa General Hospital Davis Island

Post Office Box 1289 Tampa, Florida 33601

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

CLAIMANT: Magdalena Rodriguez 5820 N. Church Street Apt. 425

Tampa, Florida 33614

Represented By: Dayra J. Morales, Esquire Vessel & Morales, P.A. The Lincoln Center

5401 West Kennedy Boulevard Suite 1011

Tampa, Florida 33609-2450

ASSOCIATION: FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION

RESPONDENTS: Michael T. Parson, M.D., J. Kell Williams and ANY AND ALL ADDITIONAL HEALTH CARE PROVIDERS WHETHER KNOWN OR UNKNOWN INVOLVED IN THE MEDICAL TREATMENT OF THE INJURED PARTY

DATE OF INJURY: April 5, 1991

DOAH CASE #: 93-5556N

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. Noemi Rodriguez (the "Injured Party"), incurred an Injury as that term is defined by Section 766.3()2(2), Florida Statutes, on or about April 5, 1991. The Injury that the Injured Party incurred was the sole and proximate cause of her current medical condition. The Injury occurred in Hillsborough County, Florida and falls within the jurisdiction of the Hearing Officer of the Division of Administrative Hearings.

   
   

2. Magdalena Rodriguez (the "Claimant"), is the parent (or legal guardian) of the Injured Party, and is the Claimant as deemed by Section 766.302(3), Florida Statutes.

   
   

3. Tampa General Hospital, Davis Island, is the Hospital where the injury was incurred on as defined by Florida Statutes, Section 766.302(6).

   
   

4. Michael T. Parsons, M.D. and J. Kell Williams, M.D. are participating physicians 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 Hearing Officer 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, 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 Claimant and the Association hereby agree as follows:

   
   

   1. The Claimant 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. The Claimant and the Association are currently working on how this is to be paid to best benefit the Claimant. As soon as details become available, a letter will supplement plans for the disbursement of the funds. No funds will be released without prior approval of the Hearing Officer.

      
      

   2. The Association will pay all benefits, past and future, as authorized by Section 766.3l, Florida Statutes.

      
      

   3. The Association will reimburse Dayra .J. Morales, Esquire, attorney for the Claimant, an agreed upon attorney's fees and costs in full for services rendered in the filing of this claim which will be determined later.

   
   

9. The Claimant further agrees that payments, including future payments as outlined in Paragraph 11, agreed to herein above by the teens 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 their official and individual capacity as the parent of the Injured Party. The Claimant 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 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. Nothing herein shall preclude the Claimant from assisting the Department of Professional Regulation in investigation 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 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 Hearing Officer if a dispute arises regarding the same. The Association is not aware of any specific disputes regarding the services being provided to Noemi Rodriguez. The Association further acknowledges chat it is obligated to pay a reasonable attorney's fee based upon the criteria set forth in F.S. 766.31, 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 Claimant otherwise has had, either in her official capacity or personal capacity and that her legal counsel has advised her of the legal significance of each and every part of this Stipulation. Further, the Claimant represent and acknowledge to the Hearing Officer of the Division of Administrative Hearings that she 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 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 Hearing Officer of thc 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 Hearing Officer 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 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 Claimant in 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, invoices, addresses, etc.) of all known past expenses for which the Claimant seeks 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 Claimant agrees 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 habilitative care or the payment of Noemi Rodriguez's bills.

    
    

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 12 day of August, 1999.

LYNN DICKINSON, Executive Director Florida Birth-Related Neurological Injury Compensation Association Barnett Bank Building

315 South Calhoun St., Suite 312 Tallahassee, Florida 32301

Dayra J. Morales, Esquire (Attorney for Claimants) Vessel & Morales, P.A.

5401 West Kennedy Boulevard Suite 1011

Tampa, Florida 33609-2450

Magdalena Rodriguez, (mother)

as Claimant and natural guardian of Noemi Rodriguez, a minor.

Docket for Case No: 93-005556N

Orders for Case No: 93-005556N