STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORA BRANCH, as parent and natural ) guardian of LAUREN SEAL, a minor, )

)

Petitioner, )

)

vs. ) Case No. 97-2148N

) 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 August 21, 1997, 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, Nora Branch, is the mother and natural guardian of Lauren Seal (Lauren), a minor; that Lauren was born a live infant on January 12, 1995, at Columbia Memorial Hospital, Duval County, Florida; and that her birth weight was in excess of 2,500 grams. The parties have further agreed that the physician

delivering obstetrical services during the birth of Lauren was Neil Sager, D.O., 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 Lauren suffered a "birth-related neurological injury," as that term is defined by Section 766.302(2), Florida Statutes.

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

   
   

   August 21, 1997, is hereby approved, and the parties are directed to comply with the provisions thereof.

2. Upon payment of the award of Ninety-five thousand dollars ($95,000.00) to the parent (claimant) in the manner set forth in the parties' stipulation, payment of past expenses, and payment of attorney's fees and other expenses of Seven thousand dollars ($7,000.00), 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 and Respondent's contingent obligation, as set forth in the parties' stipulation, to pay a further award of Five thousand dollars ($5,000.00) to the parent.

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 25th day of August, 1997, 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

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1997.

COPIES FURNISHED:

(By certified mail)

Kevin Patrick Bailey, Esquire Post Office Drawer 193 Orlando, Florida 32802-0193

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

Neil Sager, O.D.

Building 17

4131 University Boulevard South Jacksonville, Florida 32216

Columbia Memorial Hospital Legal Department

3625 University Boulevard

Jacksonville, Florida 32216

Ms. Charlene Willoughby

Agency for Health Care Administration Consumer Services Unit

Post Office Box 14000 Tallahassee, Florida 32308

Daniel 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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLAIMANT: NORA BRANCH

6226 Barnes Road South

Park View Place, Apartment 2 Jacksonville, Florida 32216

Represented By: Kevin Patrick Bailey, Esquire

PO Drawer 193

Orlando, Florida 32802-0193

ASSOCIATION: FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION

RESPONDENTS: NEIL SAGER, DO, COLUMBIA MEMORIAL HOSPITAL, and ANY AND ALL ADDITIONAL HEALTH CARE PROVIDERS WHETHER KNOWN OR UNKNOWN INVOLVED IN THE MEDICAL TREATMENT OF THE INJURED PARTY

DATE OF INJURY: January 12, 1995

DOAH CASE#: 97-002148N

STIPULATION AND JOINT PETITION FOR COMPENSATION OF CLAIM ARISING OUT OF FLORIDA BIRTH RELATED NEUROLOGICAL INJURY PURSUIT TO CHAPTER 766, FLORIDA STATUTES

The Claimant 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. Lauren Seal (the "Injured Party"), incurred an Injury as that term is defined by Section 766.302(2), Florida Statutes, on or about January 12, 1995. The Injury that the Injured Party incurred was the sole and proximate cause of her current medical condition. The Injury occurred in Duval County, Florida, and falls within the jurisdiction of the Administrative Law Judge of the Division of Administrative Hearings.

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

   
   

3. Columbia Memorial Hospital is the Hospital where the injury was incurred on January 12, 1995, as defined by Florida Statutes, Section 766.302(6).

   
   

4. Neil Sager, DO, is a 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 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 Administrative Law Judge ofthe 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 Ninety Five Thousand dollars ($95,000.00). This payment is authorized pursuant to Section 766.3 l(l)(b), Florida Statutes. Ms. Branch intends to use the money for housing and related expenses, and purchase of an automobile and related expenses. Remainder of funds would remain to be distributed for continuing expenses associated with home ownership and ownership of a vehicle. Five Thousand Dollars ($5,000.00) is to be set aside for any other

      potential claims that may be filed prior to the five year statute of limitations. If any claims are received, Nora Branch, the legal guardian may present her claim for entitlement to the remaining $5,000.00 at that time. However, if no other claims are filed prior to January 12, 2000, the Association shall make the remaining funds ($5,000.00) available to Nora Branch, the legal guardian, as approved by order of the Administrative Law Judge in the best interest of the parties.

      
      

   2. The Association will pay all benefits, past and future, as authorized by Section 766.31, Florida Statutes. c) The Association will reimburse Kevin Patrick Bailey, Esquire, attorney for the Claimant, an agreed upon attorney's fee of Four Thousand Dollars ($4,000.00) and expenses of Three Thousand Dollars ($3,000.00), totaling Seven Thousand Dollars ($7,000.00) in full for services rendered in the filing of this claim.

      
      

9. The Claimant further agrees that payments, including future payments as outlined in Paragraph 11, 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, 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 Agency for Health Care Administration 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 Administrative Law Judge if a dispute arises regarding the same. The Association is not aware of any specific disputes regarding the services being provided to Lauren Seal. The Association 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 Claimant further represents and acknowledges that she has 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 Association is hereby deepened to be satisfied in its entirety, except to the extent provided as it pertains to the payment of medical expense (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 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 parent's 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 Lauren Seal's bills.

       
       

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 Stipulation and Joint Petition For Compensation of Claim has been read and is fully understood by the parties hereto who have executed same this 15th day of August, 1997.

Lynn Dickinson Kevin Patrick Bailey, Esquire

Executive Director Attorney for Claimant Florida Birth-Related Neurological PO Drawer 193

Injury Compensation Association Orlando, FL 32802-0193 1435 Piedmont Drive East, Suite 101

Tallahassee, FL 32312

Nora Branch, Mother

as Claimant and natural guardian of Lauren Seal, a minor.

Docket for Case No: 97-002148N

Orders for Case No: 97-002148N