STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IRIS DIAZ on behalf of and as ) parent and natural guardian of ) WINSTON MONTANO, a minor, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3602N

) 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 December 30, 1996, 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, Iris Diaz, is the parent and natural guardian of Winston Montano (Winston), a minor, that Winston was born a live infant on May 28, 1992, at Jackson Memorial Hospital, Miami, 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 Winston was Mary Jo O'Sullivan, 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 Winston suffered a "birth-related neurological injury," as that term is defined by Section 766.302(2), Florida Statutes. The medical records attached to the petition for compensation are 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 December 30, 1996, is hereby approved and the parties are directed to comply with the provisions thereof.

   
   

2. Upon payment of the award of Thirty thousand dollars ($30,000.00) to the parent (claimant), as set forth in the parties' stipulation, and payment of past expenses, the claim of the petitioner (claimant) 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 31st day of December, 1996, in Tallahassee, 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 31st day of December, 1996.

COPIES FURNISHED:

(By certified mail)

1. Mark Rubin, Esquire Rubin & Rubin, P.A. 2107 Hendricks Avenue

   Jacksonville, Florida 32207

   
   

2. Douglas Moody, Jr., Esquire BATEMAN GRAHAM, P.A.

300 East Park Avenue Tallahassee, Florida 32301

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

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

Mary Jo O'Sullivan, M.D.

c/o Jackson Memorial Hospital 1611 Northwest 12th Avenue Miami, Florida 33136

Jackson Memorial Hospital 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

an Sumner, General Counsel Department of Insurance The Capitol, PL-11

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.

Stipulation STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLAIMANT: IRIS DIAZ on behalf of and as parent

and natural guardian of Winston MONTANO, a minor

Represented By: I. Mark Rubin, Esquire

2107 Hendricks Avenue

Jacksonville, Florida 32207

RESPONDENTS: FLORIDA BIRTH-RELATED NEUROLOGICAL

INJURY COMPENSATION ASSOCIATION

Represented By: W. Douglas Moody, Jr., Esquire

300 East Park Avenue Tallahassee, Florida 32301

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

DATE OF INJURY: 5/28/92 DOAH CASE No.: 95-3602N

STIPULATION AND JOINT PETITION FOR COMPENSATION OF CLAIM ARISING OUR OF

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY PURSUANT TO CHAPTER 766, FLORIDA STATUTES

The Claimant and the Respondent (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. Winston Montano (the "injured Party") incurred an Injury as that term is defined by Section 766.302(2), Florida Statutes, on or about 5/28/92. 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. Iris Diaz (the "Claimant") is the parent of the Injured Party, and is the Claimant as defined by Section 766.302(3), Florida Statutes.

   
   

3. Jackson Memorial is the Hospital where the injury was incurred on or about 5/28/92 as defined by Florida Statutes, Section 766.302(6).

   
   

4. Dr. Mary Jo O'Sullivan is the 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 Respondent, and that petition is incorporated herein by reference in the entirety, including all attachments. Any reference made within this document to the Respondent encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan which the Respondent 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 Respondent 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 Respondent hereby agree as follows:

   
   

   1. The Claimant shall receive from the Respondent $30,000. This payment is authorized pursuant to Section 766.31(1)(b), Florida Statutes.

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

   3. The issue of attorney's fees has been amicably resolved between the parties.

      
      

9. The Claimant further agrees that payments, including future payments as outlined in Paragraph II, 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 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, which he 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 as provided in Section 766.301(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 Respondent as specified in Paragraph 8 with prejudice by motion of the Claimant, against the Respondents 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 medical 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 Respondent is not aware of any specific disputes regarding the services being provided to Winston Montano. The Respondent 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 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 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 represents and acknowledges to the Administrative Law Judge of the Division of Administrative Hearings that she understands that the Petition which has been filed seeking compensation from the Respondent 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) and attorney's

    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 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 her capacity as parent and legal guardian of the Injured Party, the Respondents and any and all medical providers involved in the birth of the Injured Party.

    
    

16. In order for the Respondent 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;

    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 Respondent to complete its duties hereunder;

    3. The Claimant agrees that a represent- ative of the Respondent 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; and

    4. Such other reasonable information as may be required by the Respondent, which relates to the care of Winston Montano.

       
       

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 has been read and is fully understood by the parties hereto who have executed same this 17th day of December, 1996.

LYNN DICKINSON I. MARK RUBIN, Esquire

Executive Director Attorney for Claimant

Florida Birth-Related 2107 Hendricks Avenue Neurological Injury Jacksonville, Florida 32207 Compensation Association

1435 Piedmont Drive East, Suite 101

Tallahassee, Florida 32312

IRIS DIAZ

as Claimant and natural guardian of WINSTON MONTANO, a minor

Docket for Case No: 95-003602N

Orders for Case No: 95-003602N