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
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 summarized, as follows:Final Order approvving association`s acceptance of the claim for compensation.
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96-2317.PDFSTATE 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:
The parties' Settlement Agreement, filed of record October 3, 2000, is approved, and the parties are directed to comply with the provisions thereof.
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.
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.
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.
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.
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).
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Oct. 11, 2000 |
Final Order issued. CASE CLOSED.
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Oct. 03, 2000 |
Settlement Agreement filed.
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Oct. 02, 2000 |
(Joint) Settlement Agreement filed.
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Oct. 02, 2000 |
Notice of Telephonic Hearing filed by R. Gilbert.
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Oct. 02, 2000 |
Notice of Filing, Order Granting Guardian ad Litem`s Petition for Approval of Settlement Agreement filed.
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Oct. 02, 2000 |
Page 8 of Settlement Agreement (filed via facsimile).
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Oct. 02, 2000 |
APWU`s Petition to Intervene filed.
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Sep. 08, 2000 |
Parent`s Petition to Intervene filed.
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Sep. 05, 2000 |
Parent`s Petition to Intervene filed.
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Aug. 28, 2000 |
Notice of Telephonic Hearing filed.
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Aug. 28, 2000 |
Petition for Approval of Settlement Agreement, Joint Settlement Agreement filed.
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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)
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Mar. 03, 2000 |
Joint Motion to Reschedule Hearing (filed via facsimile).
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Jan. 14, 2000 |
(Petitioner) Notice of Cancelling Deposition filed.
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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.
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Dec. 23, 1999 |
(D. Dicky) Subpoena Duces Tecum; Affidavit of Service filed.
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Dec. 20, 1999 |
(Petitioner) Exhibit 17; Cover Letter filed.
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Dec. 17, 1999 |
(Petitioner) Notice of Taking Deposition; Subpoena Duces Tecum filed.
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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.
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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.
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Dec. 03, 1999 |
(R. Gilbert, W. Moody) Prehearing Stipulation (filed via facsimile).
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Dec. 02, 1999 |
Notice of Location of Hearing sent out.
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Dec. 02, 1999 |
(R. Gilbert) Notice of Taking Deposition; (3) Subpoena Duces Tecum filed.
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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)
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Nov. 12, 1999 |
Petitioner`s Motion to Partially Reschedule the Hearing filed.
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Nov. 12, 1999 |
Petitioner`s Notice of Serving Third Set of Interrogatories to NICA filed.
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Nov. 12, 1999 |
(R. Gilbert) Notice of Taking Deposition Duces Tecum filed.
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Nov. 12, 1999 |
Petitioners` First Request for Admissions to NICA filed.
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Nov. 12, 1999 |
Joint Motion to Partially Reschedule Hearing (filed via facsimile).
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Nov. 08, 1999 |
Petitioner`s Second Motion to Compel Discovery From NICA filed.
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Nov. 01, 1999 |
Petitioner`s Motion to Compel Discovery From NICA filed.
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Oct. 29, 1999 |
Respondent, Florida Birth Related Neurological Injury Compensation Association`s Notice of Serving Answers to Interrogatories filed.
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Sep. 20, 1999 |
Petitioner`s Notice of Serving Second Set of Interrogatories to NICA filed.
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Sep. 20, 1999 |
Petitioners` Second Request for Production to NICA filed.
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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)
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Aug. 19, 1999 |
Petitioners` Notice of Serving First Set of Interrogatories to NICA filed.
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Aug. 19, 1999 |
Petitioners` First Request for Production to NICA filed.
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Jul. 14, 1999 |
Notice of Location of Hearing sent out.
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May 20, 1999 |
Order sent out. (joint Motion for substitution of counsel is granted)
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May 19, 1999 |
Joint Motion for Substitution of Counsel filed.
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May 03, 1999 |
Prehearing Order sent out. |
Apr. 30, 1999 |
Pre-hearing Order sent out.
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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).
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Mar. 22, 1999 |
Notice of Appearance (W. Douglas Moody) (filed via facsimile).
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Feb. 16, 1999 |
Opinion filed.
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Feb. 16, 1999 |
Mandate filed.
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Jan. 27, 1999 |
Letter to L. Dickinson from J. Culpepper attaching the Gilbert decision filed.
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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
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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.
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Dec. 30, 1997 |
Notice of Administrative Appeal (Filed by Richard Gilbert) filed.
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Dec. 10, 1997 |
Order Correcting Scrivener Error issued.
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Dec. 04, 1997 |
Note to docket: Summary Final Order. |
Dec. 04, 1997 |
CASE CLOSED. Summary Final Order of Dismissal sent out. (Motion hearing held)
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Nov. 21, 1997 |
Respondent`s Response to Intervenor`s Motion to Strike or for Protective Order filed.
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Nov. 19, 1997 |
Order sent out. (intervenor`s Motion to strike or for protective order is denied)
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Nov. 18, 1997 |
Joinder in Joint Stipulation Motion to Strike or for Protective Order (filed via facsimile).
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Nov. 05, 1997 |
Order sent out. (telephone conference call set for 11/17/97; 1:00pm)
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Oct. 20, 1997 |
Petitioner`s Request for Oral Argument on NICA`s Motion for Final Summary Order (filed via facsimile).
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Oct. 20, 1997 |
Petitioners` Memorandum of Law in Response to NICA`s Motion for Final Summary Order (filed via facsimile).
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Oct. 20, 1997 |
Joint Stipulation filed.
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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)
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Oct. 10, 1997 |
Petitioner`s Unopposed Motion for Time Extension (filed via facsimile).
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Sep. 22, 1997 |
Order sent out. (scheduling dates for documents)
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Sep. 19, 1997 |
(Petitioner) Response to Request for Production of Documents filed.
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Sep. 15, 1997 |
(Respondent) Response to Petition and Motion for Final Summary Order filed.
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Aug. 21, 1997 |
Order sent out. (William L. Capps no longer party to proceeding)
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Aug. 19, 1997 |
(Intervenor) Notice of Withdrawal (filed via facsimile).
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Aug. 18, 1997 |
Order (for judge signature); Cover Letter filed.
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Aug. 15, 1997 |
Order sent out. (Respondent to file response to the petition (claim) for compensation within 30 days)
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Aug. 13, 1997 |
Letter to Judge Kendrick from D. Dickey Re: Response to 7/30/97 filed.
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Aug. 13, 1997 |
(Petitioner) Notice of Telephonic Conference (8/15/97; 9:30am) filed.
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Jul. 30, 1997 |
Order sent out. (order of abeyance is vacated; parties to file status report within 14 days)
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Jul. 15, 1996 |
Order sent out. (Motion to Withdraw from D. Moody is Granted)
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Jul. 08, 1996 |
Order sent out. (Intervention Status Granted for: Humana of Florida & William Capps; Humana`s Motion for Reconsideration is Denied)
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Jul. 02, 1996 |
(W. Douglas Moody) Notice of Substitution of Counsel filed.
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Jun. 26, 1996 |
(Capps) Petition to Intervene filed.
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Jun. 24, 1996 |
Notice of Telephone Hearing (set for 7-3-96; 10:30am) filed.
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Jun. 21, 1996 |
(From T. Sullivan) Motion for Reconsideration of Order Denying Abatement of Proceedings filed.
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Jun. 21, 1996 |
(Respondent) Notice of Mootness of Women`s Hospital`s Motion to Abate filed.
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Jun. 18, 1996 |
(Intervenor) Motion to Abate Proceedings filed.
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Jun. 18, 1996 |
(Humana of Florida) Petition to Intervene filed.
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Jun. 14, 1996 |
(Bruce Culpepper) Notice of Appearance filed.
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Jun. 11, 1996 |
Order sent out. (Petitioner`s request for abeyance denied)
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May 17, 1996 |
NICA Medical Records filed (not available for viewing). |
May 17, 1996 |
Motion to Abate Proceeding filed.
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May 17, 1996 |
Notification card sent out.
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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.
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May 17, 1996 |
Ltr. to L. Dickinson + interested parties from MHL encl. NICA claim for compensation with medical records sent out.
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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
|
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Dec. 04, 1997 |
DOAH Final Order
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By pursuing civil action to conclusion albeit by settlement against participating physician, Claimant made an election of remedies.
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