STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANNY EDWIN MICHAEL, SR., and )

SHARON MICHAEL, as parents and ) natural guardians of DANNY EDWIN ) MICHAEL, II, a minor, )

)

Petitioners, )

)

vs. ) CASE NO. 96-4423N

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

)

Respondent. )

)

FINAL ORDER APPROVING COMPENSATION OF CLAIM ARISING OUT OF FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY PURSUANT TO CHAPTER 766, FLORIDA STATUTES

On April 14, 1997, a hearing was held in the above-styled case pursuant to Sections 766.304 and 766.305(6), Florida Statutes, to approve the Florida Birth-Related Neurological Injury Compensation Association's (Association's) acceptance of the claim for compensation.

At hearing, the parties stipulated to the following facts:

1. Danny Edwin Michael, Sr., and Sharon Michael, are the parents and natural guardians of Danny Edwin Michael, II, (Danny), a minor. Danny was born a live infant on October 16, 1995, at Lakeland Regional Medical Center, a hospital located in Lakeland, Florida, and his birth weight exceeded 2,500 grams.

2. The physician providing obstetrical services during the birth of Danny was Jeffrey L. Puertz, M.D., who was, at all times material hereto, a "participating physician" in the Florida

Birth-Related Neurological Injury Compensation Plan (Plan), as defined by Section 766.302(7), Florida Statutes.

The parties further agreed that, in resolving whether the Association's acceptance of the claim for compensation should be approved, the undersigned should consider the medical records filed with the Division of Administrative Hearings on September 23, 1996, as well as the report of neurology evaluation by Michael S. Duchowny, M.D., filed January 30, 1997. The medical records and report have been reviewed, and they are consistent with the Association's conclusion that Danny suffered a "birth- related neurological injury" within the meaning of Section 766.302(2), Florida Statutes, and that the subject claim should be accepted for compensation.

At the conclusion of the hearing of April 14, 1997, it was announced on the record that the Association's acceptance of the claim was approved, and all that remained to be resolved before the entry of a final order was the manner of payment of the parental award of One Hundred Thousand Dollars ($100,000.00).

Consequently, the parties were advised to confer and advise the undersigned if a consensus could be reached. Apparently that was not possible, and on May 22, 1997, a hearing was held to address whether distribution of the parental award in the manner set forth in the letter of petitioner's counsel dated May 2, 1997, filed May 20, 1997, should be approved. At hearing the Association offered no objection to the distribution of the

parental award, as requested by petitioner's counsel. As requested, distribution is consistent with the provisions of the Plan and the interests of all parties.

Based on the foregoing, it is ORDERED that:

1. The claim for compensation filed by Danny Edwin Michael, Sr., and Sharon Michael, as parents and natural guardians of Danny Edwin Michael, II, a minor, and the Association's acceptance of the claim for compensation be and the same is hereby approved.

2. Consistent with the provisions of Section 766.31(1)(a), Florida Statutes, the Association shall make immediate payment of all expenses previously incurred and shall make payment for future expenses as incurred.

3. Danny Edwin Michael, Sr., and Sharon Michael, as parents and natural guardians of Danny Edwin Michael, II, a minor, are hereby awarded One Hundred Thousand Dollars ($100,000.00) pursuant to Section 766.31(1)(b), Florida Statutes, to be paid in the manner and for the purposes set forth in the letter of petitioner's counsel dated May 2, 1997, filed May 20, 1997. Checks drawn by the Association, as directed by this order, may be delivered to the claimant's counsel, who is responsible for delivery to the various payees. Upon payment of the award in such manner, the parental award shall be deemed fully satisfied.

4. The claimants are entitled to an award of reasonable expenses incurred in connection with the filing of the claim,

   including reasonable attorney's fees. The parties are accorded thirty (30) days from the date of this order to resolve, subject to approval by the Administrative Law Judge, the amount of such award. If not resolved within such period, the parties will so advise the Administrative Law Judge, and a hearing will be scheduled to resolve such issue.

5. Pursuant to Section 766.312, 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 23rd day of May, 1997, 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 23rd day of May, 1997.

COPIES FURNISHED:

(By certified mail)

Thomas L. Hurst, Esquire Proenza & Roberts, P.A. Suite 700 Grove Plaza 2900 Middle Street

Miami, Florida 33133

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

101 North Gadsden Street Tallahassee, Florida 32301

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

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

Jeffrey L. Puertz, M.D.

1733 Lakeland Hills Boulevard Lakeland, Florida 33805

Lakeland Regional Medical Center Legal Department

1324 Lakeland Hills Boulevard Lakeland, Florida 33805

Ms. Charlene Willoughby

Agency for Health Care Administration Consumer Services Unit

Post Office Box 14000 Tallahassee, Florida 32308

Dan 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: 96-004423N

Orders for Case No: 96-004423N