STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICK LEE and TATI LEE, as parents ) and natural guardians of TARITA LEE, ) a deceased minor, )

)

Petitioners, )

)

vs. ) Case No. 97-3043N

) 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 November 7, 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 Petitioners, Rick Lee and Tati Lee, are the parents and natural guardians of Tarita Lee (Tarita), a deceased minor; that Tarita was born a live infant on July 6, 1996, at Cape Canaveral Hospital, Cocoa Beach, 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 Tarita was Colin M. Muir, 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 Tarita 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 November 7, 1997, is hereby approved, and the parties are directed to comply with the provisions thereof.

2. Upon payment of the lump sum award of One hundred thousand dollars ($100,000.00) to the parents (claimants), payment of past expenses, and payment of attorney's fees and other expenses of Five thousand three hundred fifty-nine and 57/100 dollars ($5,359.57), the claims of the Petitioners (claimants) shall be deemed fully satisfied and extinguished.

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 12th day of November, 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 12th day of November, 1997.

COPIES FURNISHED:

(By certified mail)

Robert A. Rush, Esquire 726 Northeast First Street

Gainesville, Florida 32601

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

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

Colin M. Muir, M.D.

Cape Royal Building, No. 527 1980 North Atlantic Avenue Cocoa Beach, Florida 32931

Cape Canaveral Hospital Legal Department

701 Cocoa Beach Causeway, West Cocoa Beach, Florida 32931

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

CLAIMANTS: RICK LEE and TATI LEE, as parents and as

Co-Personal Representatives of the Estate of TARITA LEE (deceased)

1031-A S Orlando Avenue Cocoa Beach, FL 32931

Represented By: Robert A Rush, Esquire

726 NE 1st St Gainesville, FL 32601

ASSOCIATION: FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION

RESPONDENTS: COLIN M MUIR, MD, CAPE CANAVERAL

HOSPITAL and ANY AND ALL ADDITIONAL HEALTH CARE PROVIDERS INVOLVED IN THE BIRTH OF THE INJURED PARTY

DATE OF INJURY: July 6, 1996 DOAH CASE #: 97-003043N

STIPULATION AND JOINT PETITION FOR COMPENSATION OF CLAIM ARISING OUT OF FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY

PURSUANT TO CHAPTER 766, FLORIDA STATUTES

The Claimants 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) of all claims arising out of the birth-related neurological injury (the "Injury") suffered by Tarita Lee (deceased). 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. Tarita Lee (the "Injured Party", deceased), incurred an Injury as the term is defined by Section 766.302(2), Florida Statutes, on or about July 6, 1996. The Injury occurred in Brevard County, Florida and falls within the jurisdiction of the Administrative Law Judge of the Division of Administrative Hearings.

2. Rick Lee and Tati Lee (the "Claimants"), are the parents of the Injured Party (deceased), and are the Claimants as defined by Section 766.302(3), Florida Statutes.

3. Cape Canaveral Hospital is where the injury was incurred on July 6, 1996, as defined by Florida Statutes, Section 766.302(6).

   
   

4. Colin M Muir, MD, is a participating physician as defined in Florida Statutes, Section 766.302(7).

   
   

5. The Claimants have 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 Claimants, 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 Claimants 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 such person or entity.

   
   

8. The Claimants and the Association hereby agree as follows:

   
   

   1. The Claimants shall receive from the Association One Hundred Thousand Dollars ($100,000.00). This payment is authorized pursuant to Section 766.31(1)(b), Florida Statutes.

      
      

   2. The Association will pay all medical expenses as authorized by F.S. 766.31 for which the Claimants have become obligated for in the past.

      
      

   3. The Association agrees that a total of Five Thousand Three Hundred Fifty-Nine and 57/100 Dollars ($5,359.57), which includes fees ($4,680.00) and expenses ($679.57) incurred

      in the representation of the Claimants in this case, will be paid to Robert A Rush, Esquire, the attorney for the claimants.

      
      

9. The Claimants further agree that this payment, agreed to herein above by the terms and provision of this Stipulation, is a full, complete and absolute discharge of any and all responsibility and liability of the Respondents, and the Association not only to the Claimants in their official capacity as the parents of the Injured Party (deceased); but also a full and complete discharge of whatever liability the respondents and the Association has or may have to the claimants in their personal capacity as the parents of the Injured Party (deceased). The Claimants further acknowledge that payment in full 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 (deceased).

   
   

10. The Claimants further agree 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 Claimants also acknowledge 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 with prejudice by motion of the Claimants, against the Respondents or the Association or any other person or entity either known or unknown and so named as a result of the Birth Injury sustained by the Injured Party (deceased). Nothing herein shall preclude the Claimants 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 (deceased).

    
    

11. The Claimants represent and acknowledge to the Administrative Law Judge of the Division of Administrative Hearings that they understand this stipulation to be a complete and final settlement in its entirety; and 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 Claimants otherwise have had, either in their official capacity or personal capacity and that their legal counsel has advised them of the legal significance of each and every part of this Stipulation. Further, the Claimants represent and acknowledge to the Administrative Law Judge of the Division of Administrative Hearings that they understand that the Petition which has been filed seeking compensation from the Association is hereby deemed to be satisfied in its entirety.

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.

    
    

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 Claimants in their capacity as parents and legal Guardians of the Injured Party (deceased); the Respondents and the Association and any and all medical providers involved in the birth of the Injured Party (deceased).

    
    

16. In order for the Association to carry out its responsibility as provided in this Stipulation, the Claimants shall provide in a reasonable time from 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 Claimants seek reimbursement in accordance with the terms and provisions of this Stipulation document for medical and related expenses previously incurred; and

       
       

    2. A complete list, under oath, of any source of funds or payments of any kind or nature, whether from state or federal government, pre-paid health plan, health maintenance organizations, or other providers of insurance (collectively "insurance programs"; and

       
       

    3. A fully executed authorization of release of any and all medical records, insurance program records, and such other authorization as may reasonably be required by the Association to complete its duties hereunder, and d) Such other reasonable information as may be required by the Association,

       regardless of when the point in time in which the information may be requested so long as this Stipulation is effective.

       
       

17. The Administrative Law Judge of he 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 5th day of November, 1997.

Lynn Dickinson, Executive Director Florida Birth-Related Neurological Injury Compensation Association 1435 Piedmont Drive East, Suite 101

Tallahassee, Florida 32312

Robert A Rush, Esquire 726 NE 1st St Gainesville, FL 32601

Tati Lee, Mother

as Claimant and natural guardian of Tarita Lee (deceased), a deceased minor

Rick Lee, Father

as Claimant and natural guardian of Tarita Lee (deceased), a deceased minor

Docket for Case No: 97-003043N

Orders for Case No: 97-003043N