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RICHARD A. GILBERT, F/K/A MICHAEL MCKAUGHAN vs FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, 96-002317N (1996)

Court: Division of Administrative Hearings, Florida Number: 96-002317N Visitors: 6
Petitioner: RICHARD A. GILBERT, F/K/A MICHAEL MCKAUGHAN
Respondent: FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION
Judges: WILLIAM J. KENDRICK
Agency: Florida Birth-Related Neurological Injury Compensation Association
Locations: Tampa, Florida
Filed: May 17, 1996
Status: Closed
DOAH Final Order on Wednesday, October 11, 2000.

Latest Update: Oct. 11, 2000
Summary: This is the second occasion a claim for benefits has been filed on behalf of Michael McKaughan (Michael) under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), Sections 766.301-.316, Florida Statutes. The circumstances surrounding the first claim are addressed in Humana of Florida, Inc. v. McKaughan, 652 So. 2d 852 (Fla. 2d DCA), app'd sub nom. Florida Birth-Related Neurological Injury Compensation Association v. McKaughan, 668 So. 2d 974 (Fla. 1996), and may be summar
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96-2317.PDF

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS


RICHARD A. GILBERT, as Guardian ) Ad Litem of MICHAEL McKAUGHAN, )

a minor, )

)

Petitioner, )

)

vs. ) Case No. 96-2317N

) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

) DARLENE LACK; JAIMES McKAUGHAN; ) and AMERICAN POSTAL WORKERS UNION ) AFL-CIO HEALTH PLAN, )

)

Intervenors. )

)


FINAL ORDER


This cause came on to be heard pursuant to Section 766.304 and 766.305(6), Florida Statutes, upon the Settlement Agreement of the parties, filed October 3, 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 Section 766.301, et seq., Florida Statutes.

By the terms of their Settlement Agreement, the parties have agreed that Petitioner, Richard A. Gilbert, is the duly-appointed Guardian Ad Litem of Michael McKaughan (Michael), a minor; that

Intervenors, Jaimes McKaughan and Darlene Lack, are the parents and natural guardians of Michael; that Michael suffered a "birth- related neurological injury" as defined by Section 766.302(2), Florida Statutes; and that Michael otherwise qualifies for an award of benefits under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). The parties' agreement that Michael qualifies for coverage under the Plan is consistent with the evidence heretofore received on December 7, 1999.

After due consideration of the interests of all parties, the parties' Settlement Agreement, and the evidence heretofore received, it is

ORDERED that:


  1. The parties' Settlement Agreement, filed of record October 3, 2000, is approved, and the parties are directed to comply with the provisions thereof.

  2. Consistent with the terms of the parties' Settlement Agreement, the claim for compensation filed on behalf of Michael McKaughan, a minor, and Respondent Florida Birth-Related Neurological Injury Compensation Association's (NICA's) acceptance of the claim for compensation is approved.

  3. Consistent with the terms of the parties' Settlement Agreement, Intervenors, Jaimes McKaughan and Darlene Lack, as the parents and natural guardians of Michael McKaughan, a minor, are accorded a lump sum award of One hundred thousand dollars

    ($100,000.00). Of such award, the father, Jaimes McKaughan, shall receive Fifty thousand dollars ($50,000.00) in lump sum and the mother, Darlene Lack, shall receive Fifty thousand dollars ($50,000.00) in lump sum.

  4. Consistent with the terms of the parties' Settlement Agreement, as well as the provisions of Section 766.31, Florida Statutes, NICA shall make immediate payment of expenses previously incurred and shall pay future expenses as incurred.

  5. Consistent with the terms of the parties' Settlement Agreement, Petitioner is accorded an award of One hundred thousand dollars ($100,000.00), as reasonable expenses incurred in connection with the filing of the claim, including reasonable attorney's fees.

  6. Pursuant to Section 766.12, Florida Statutes, jurisdiction is reserved to resolve any disputes, should they arise, regarding the parties' compliance with the terms of this Final Order.

DONE AND ORDERED this 11th day of October, 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 11th day of October, 2000.


COPIES FURNISHED:

(By certified mail)


W. Douglas Moody, Jr., Esquire Graham, Moody & Sox, P.A.

101 North Gadsden Street Tallahassee, Florida 32301


Richard A. Gilbert, Esquire David D. Dickey, Esquire

de la Parte, Gilbert & Bales, P.A. Post Office Box 2350

Tampa, Florida 33601-2350


Lynn Larson, Executive Director Florida Birth-Related Neurological

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


Darryl J. Anderson, Esquire O'Donnell, Schwartz & Anderson, P.C. 1300 L. Street, Northwest, Suite 1200

Washington, D.C. 20005

Charles E. Bergmann, Esquire 4830 West Kennedy Boulevard Suite 750

Tampa, Florida 33609


Peter J. Hobson, Esquire 606 East Madison Street Post Office Box 172117 Tampa, Florida 33672-2117


Dr. William L. Capps

3500 East Fletcher Avenue Suite 202

Tampa, Florida 33613-4711


Humana Women's Hospital Legal Department

3030 West Martin Luther King, Jr., Boulevard Tampa, Florida 33607


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.


Docket for Case No: 96-002317N
Issue Date Proceedings
Oct. 11, 2000 Order issued. (petition for leave to intervene filed on behalf of D. Lack, J. McKaughan, and the APWU are granted).
Oct. 11, 2000 Final Order issued. CASE CLOSED.
Oct. 03, 2000 Settlement Agreement filed.
Oct. 02, 2000 (Joint) Settlement Agreement filed.
Oct. 02, 2000 Notice of Telephonic Hearing filed by R. Gilbert.
Oct. 02, 2000 Notice of Filing, Order Granting Guardian ad Litem`s Petition for Approval of Settlement Agreement filed.
Oct. 02, 2000 Page 8 of Settlement Agreement (filed via facsimile).
Oct. 02, 2000 APWU`s Petition to Intervene filed.
Sep. 08, 2000 Parent`s Petition to Intervene filed.
Sep. 05, 2000 Parent`s Petition to Intervene filed.
Aug. 28, 2000 Notice of Telephonic Hearing filed.
Aug. 28, 2000 Petition for Approval of Settlement Agreement, Joint Settlement Agreement filed.
Aug. 22, 2000 Order Re-Scheduling Hearing on Compensability issued (hearing set for October 24 and 25, 2000; 8:30 a.m.; Tampa, Fl.)
Apr. 27, 2000 Notice of Filing (Neurology Evaluation) filed (not available for viewing).
Mar. 21, 2000 Order Granting Continuance and Re-scheduling Hearing by Video Teleconference sent out. (hearing set for May 30 and 31, 2000; 8:30 a.m.; Tampa and Tallahassee, FL)
Mar. 03, 2000 Joint Motion to Reschedule Hearing (filed via facsimile).
Jan. 14, 2000 (Petitioner) Notice of Cancelling Deposition filed.
Jan. 03, 2000 (R. Gilbert) Notice of Taking Deposition Duces Tecum of Corporate Representative(s) for Florida Birth-Related Neurological Injury Compensation Association (NICA) filed.
Dec. 23, 1999 (D. Dicky) Subpoena Duces Tecum; Affidavit of Service filed.
Dec. 20, 1999 (Petitioner) Exhibit 17; Cover Letter filed.
Dec. 17, 1999 (Petitioner) Notice of Taking Deposition; Subpoena Duces Tecum filed.
Dec. 16, 1999 NICA Medical Records filed (not available for viewing).
Dec. 16, 1999 (D. Dickey) Exhibits (3 Boxes) w/cover letter filed. (NICA Medical Records filed, not available for viewing.)
Dec. 14, 1999 (R. Gilbert) Amended Notice of Taking Deposition Duces Tecum filed.
Dec. 08, 1999 CASE STATUS: Hearing Partially Held, continued to March; Tampa)
Dec. 07, 1999 Amendment to Prehearing Stipulation Agreed to by the Parties at the Hearing on 12/7/99 filed.
Dec. 06, 1999 Petitioners` Third Request for Production to NICA filed.
Dec. 03, 1999 (Respondent) Response to Request for Admissions filed.
Dec. 03, 1999 (R. Gilbert, W. Moody) Prehearing Stipulation (filed via facsimile).
Dec. 02, 1999 Notice of Location of Hearing sent out.
Dec. 02, 1999 (R. Gilbert) Notice of Taking Deposition; (3) Subpoena Duces Tecum filed.
Nov. 23, 1999 Order Rescheduling Hearing on Compensability and Resolving Pending Motions to Compel Discovery sent out. (hearing set for Dec. 7, 1999; 8:30am; Tampa and March 21-23, 2000)
Nov. 12, 1999 Petitioner`s Motion to Partially Reschedule the Hearing filed.
Nov. 12, 1999 Petitioner`s Notice of Serving Third Set of Interrogatories to NICA filed.
Nov. 12, 1999 (R. Gilbert) Notice of Taking Deposition Duces Tecum filed.
Nov. 12, 1999 Petitioners` First Request for Admissions to NICA filed.
Nov. 12, 1999 Joint Motion to Partially Reschedule Hearing (filed via facsimile).
Nov. 08, 1999 Petitioner`s Second Motion to Compel Discovery From NICA filed.
Nov. 01, 1999 Petitioner`s Motion to Compel Discovery From NICA filed.
Oct. 29, 1999 Respondent, Florida Birth Related Neurological Injury Compensation Association`s Notice of Serving Answers to Interrogatories filed.
Sep. 20, 1999 Petitioner`s Notice of Serving Second Set of Interrogatories to NICA filed.
Sep. 20, 1999 Petitioners` Second Request for Production to NICA filed.
Sep. 10, 1999 Notice of Location of Video Portion of Hearing sent out. (site for video portion scheduled on Dec. 8-10, 1999 and Dec. 15-17, 1999, will be held at DMS)
Aug. 19, 1999 Petitioners` Notice of Serving First Set of Interrogatories to NICA filed.
Aug. 19, 1999 Petitioners` First Request for Production to NICA filed.
Jul. 14, 1999 Notice of Location of Hearing sent out.
May 20, 1999 Order sent out. (joint Motion for substitution of counsel is granted)
May 19, 1999 Joint Motion for Substitution of Counsel filed.
May 03, 1999 Prehearing Order sent out.
Apr. 30, 1999 Pre-hearing Order sent out.
Apr. 30, 1999 Notice of Hearing sent out. (hearing set for December 6, at 9:00am, December 7 at 8:30am; December 13 at 9:00am, December 14 at 8:30am, December 8-10 at 8:30am, December 15-17 at 8:30am; Tampa)
Apr. 14, 1999 Joint Stipulation Regarding Setting Matter for Hearing (filed via facsimile).
Mar. 30, 1999 Order sent out. (within 14 days of the date of this order the parties shall advise the undersigned as to the earliest date they will be prepared to proceed to hearing)
Mar. 25, 1999 CASE REOPENED.
Mar. 22, 1999 Notice of Noncompensability and Request for Evidentiary Hearing on Compensability (W. Douglas Moody) (filed via facsimile).
Mar. 22, 1999 Notice of Appearance (W. Douglas Moody) (filed via facsimile).
Feb. 16, 1999 Opinion filed.
Feb. 16, 1999 Mandate filed.
Jan. 27, 1999 Letter to L. Dickinson from J. Culpepper attaching the Gilbert decision filed.
Jan. 25, 1999 BY ORDER of the COURT (Counsel for appellant filed a Motion for attorneys` fees, Motion is hereby denied as untimely) rec`d
Mar. 18, 1998 Index, Record, Certificate of Record sent out. (contains NICA Medical Records, not available for viewing).
Feb. 20, 1998 Payment in the amount of $46.00 for indexing filed. (not available for viewing).
Feb. 09, 1998 Invoice for indexing in the amount of $46.00 sent out.
Feb. 09, 1998 Index sent out.
Jan. 02, 1998 Certificate of Notice of Administrative Appeal sent out.
Dec. 30, 1997 Notice of Administrative Appeal (Filed by Richard Gilbert) filed.
Dec. 10, 1997 Order Correcting Scrivener Error issued.
Dec. 04, 1997 Note to docket: Summary Final Order.
Dec. 04, 1997 CASE CLOSED. Summary Final Order of Dismissal sent out. (Motion hearing held)
Nov. 21, 1997 Respondent`s Response to Intervenor`s Motion to Strike or for Protective Order filed.
Nov. 19, 1997 Order sent out. (intervenor`s Motion to strike or for protective order is denied)
Nov. 18, 1997 Joinder in Joint Stipulation Motion to Strike or for Protective Order (filed via facsimile).
Nov. 05, 1997 Order sent out. (telephone conference call set for 11/17/97; 1:00pm)
Oct. 20, 1997 Petitioner`s Request for Oral Argument on NICA`s Motion for Final Summary Order (filed via facsimile).
Oct. 20, 1997 Petitioners` Memorandum of Law in Response to NICA`s Motion for Final Summary Order (filed via facsimile).
Oct. 20, 1997 Joint Stipulation filed.
Oct. 13, 1997 Order sent out. (parties to file stipulated record & Petitioner to file response to Motion for final summary order by 10/20/97)
Oct. 10, 1997 Petitioner`s Unopposed Motion for Time Extension (filed via facsimile).
Sep. 22, 1997 Order sent out. (scheduling dates for documents)
Sep. 19, 1997 (Petitioner) Response to Request for Production of Documents filed.
Sep. 15, 1997 (Respondent) Response to Petition and Motion for Final Summary Order filed.
Aug. 21, 1997 Order sent out. (William L. Capps no longer party to proceeding)
Aug. 19, 1997 (Intervenor) Notice of Withdrawal (filed via facsimile).
Aug. 18, 1997 Order (for judge signature); Cover Letter filed.
Aug. 15, 1997 Order sent out. (Respondent to file response to the petition (claim) for compensation within 30 days)
Aug. 13, 1997 Letter to Judge Kendrick from D. Dickey Re: Response to 7/30/97 filed.
Aug. 13, 1997 (Petitioner) Notice of Telephonic Conference (8/15/97; 9:30am) filed.
Jul. 30, 1997 Order sent out. (order of abeyance is vacated; parties to file status report within 14 days)
Jul. 15, 1996 Order sent out. (Motion to Withdraw from D. Moody is Granted)
Jul. 08, 1996 Order sent out. (Intervention Status Granted for: Humana of Florida & William Capps; Humana`s Motion for Reconsideration is Denied)
Jul. 02, 1996 (W. Douglas Moody) Notice of Substitution of Counsel filed.
Jun. 26, 1996 (Capps) Petition to Intervene filed.
Jun. 24, 1996 Notice of Telephone Hearing (set for 7-3-96; 10:30am) filed.
Jun. 21, 1996 (From T. Sullivan) Motion for Reconsideration of Order Denying Abatement of Proceedings filed.
Jun. 21, 1996 (Respondent) Notice of Mootness of Women`s Hospital`s Motion to Abate filed.
Jun. 18, 1996 (Intervenor) Motion to Abate Proceedings filed.
Jun. 18, 1996 (Humana of Florida) Petition to Intervene filed.
Jun. 14, 1996 (Bruce Culpepper) Notice of Appearance filed.
Jun. 11, 1996 Order sent out. (Petitioner`s request for abeyance denied)
May 17, 1996 NICA Medical Records filed (not available for viewing).
May 17, 1996 Motion to Abate Proceeding filed.
May 17, 1996 Notification card sent out.
May 17, 1996 Cover Letter from D. Dickey; Petition Seeking Compensation Under Florida Birth-Related Neurological Injury Compensation Plan; $15.00 Filing Fee (Ck# 2264); Medical Records filed.
May 17, 1996 Ltr. to L. Dickinson + interested parties from MHL encl. NICA claim for compensation with medical records sent out.

Orders for Case No: 96-002317N
Issue Date Document Summary
Oct. 11, 2000 DOAH Final Order Final Order approvving association`s acceptance of the claim for compensation.
Feb. 10, 1999 Mandate
Jan. 22, 1999 Opinion
Dec. 10, 1997 DOAH Final Order
Dec. 04, 1997 DOAH Final Order By pursuing civil action to conclusion albeit by settlement against participating physician, Claimant made an election of remedies.
Source:  Florida - Division of Administrative Hearings

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