STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH BASEY and LISA BASEY, as )

parents and natural guardians of ) SAMANTHA BASEY, a minor, )

)

Petitioners, )

)

vs. ) Case No. 98-5009N

) 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 January 12, 1999, 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, Joseph Basey and Lisa Basey, are the parents and natural guardians of Samantha Basey (Samantha), a minor; that Samantha was born a live infant on December 9, 1997, at Helen Ellis Memorial Hospital, a hospital located in Tarpon Springs, 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 Samantha was Theresa L. Conrad, 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 Samantha 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 January 12, 1999, is hereby approved, and the parties are directed to comply with the provisions thereof.

2. The Petitioners (claimants) Joseph Basey and Lisa Basey, as the parents and natural guardians of Samantha Basey, a minor, are hereby accorded a lump sum award of One hundred thousand dollars ($100,000.00).

3. Upon payment of the lump sum award of One hundred thousand dollars ($100,000.00) to the claimants, payment of past expenses, and payment of attorney's fees and other expenses incurred in the representation of the parents in this case which, if not agreed to between the parties, will be assessed at a later date, the claims of the Petitioners (claimants) shall be deemed

   fully satisfied and extinguished, except to the extent of Respondent's continuing obligation under the provisions of Section 766.31, Florida Statutes, to pay future expenses as incurred.

4. 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 14th day of January, 1999, 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 14th day of January, 1999.

COPIES FURNISHED:

(By certified mail)

Tony Cunningham, Esquire Cunningham, Clark & Greiwe, P.A.

100 South Ashley Drive, Suite 100 Tampa, Florida 33602

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

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

Theresa L. Conrad, M.D.

1200 South Pinellas Avenue, Suite 11 Tarpon Springs, Florida 34689

Helen Ellis Memorial Hospital Legal Department

1395 South Pinellas Avenue Tarpon Springs, Florida 34689

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.

================================================================= NICA STIPULATION

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLAIMANTS: JOSEPH BASEY and LISA BASE

of and as parents and natural guardians of SAMANTHA BASEY, a minor

13609 Deventer Court Hudson, Florida

Represented By:

Tony Cunningham, Esquire Cunningham, Clark & Greiwe, P.A.

100 Ashley Drive South, Suite 100 Tampa, Florida 33602

ASSOCIATION: FLORIDA BIRTH-RELATED NEUROLOGICAL

INJURY COMPENSATION ASSOCIATION

RESPONDENTS: THERESA L. CONRAD, M.D., HELEN ELLIS

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: December 9, 1997 DOAH CASE #: 98-5009N

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"). 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. Samantha Basey (the "Injured Party"), incurred an Injury as that term is defined by Section 766.302(2), Florida Statutes, on or about December 9, 1997. The Injury that the Injured Party incurred was the sole and proximate cause of her current medical condition. The Injury occurred in Pinellas County, Florida, and falls within the jurisdiction of the Administrative Law Judge of the Division of Administrative Hearings.

   
   

2. Joseph Basey and Lisa Basey (the "Claimants"), are the parents and legal guardians of the Injured Party, and are the Claimants as defined by Section 766.302(3), Florida Statutes.

   
   

3. Helen Ellis Memorial Hospital is the Hospital where the injury was incurred on December 9, 1997 as defined by Florida Statutes, Section 766.302(6).

   
   

4. Theresa L. Conrad, M.D. 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 person or entity.

   
   

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

   1. The Claimants shall receive from the Association a lump sum of One Hundred Thousand Dollars ($100,000.00). The parents would like to have this payment made payable to them in a lump sum. The Association has no objection to this payment. This payment is authorized pursuant to Section 766.31(1)(b), Florida Statutes.

      
      

   2. The Association will pay all benefits, past and future, as authorized by Section 766.31, Florida Statutes. Payment of past benefits under Section 766.31(1)(a), Fla. Stat., shall be subject to the provisions of Paragraph 16 of this Stipulation.

      
      

   3. The Association will reimburse Tony Cunningham, Esquire, attorney for the Claimants, an agreed upon attorney's fee and expenses to be determined for services rendered in the

      filing of this claim.

      
      

9. The Claimants further agree that payments, including future payments as outlined in Paragraph 11, agreed to herein above by the term 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 Claimants in their official and individual capacity as the parents of the Injured Party. The Claimants further acknowledge 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 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 upon the executing of this agreement and payment by the Association as specified in Paragraph 8 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 Injury sustained by 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 Samantha Basey. 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 Claimants 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, except to the extent provided as it pertains to the payment of expenses under Section 766.3 l(l)(a), Fla. Stat., as limited by Paragraph 16 hereof.

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 is 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 Claimants in their capacity as parents and legal guardians 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 Claimants shall provide within thirty (30) days of the date of approval of this Stipulation, the following:

    
    

    1. A complete list (with copies of invoices and names and addresses of providers) of all known past expenses under Section 766.31(1)(a), Fla. Stat., for which the Claimants seek reimbursement in accordance with the terms and provisions of this Stipulation. The Association is relying upon the timely submission of such claims and to the extent that any such claims for past expenses are not submitted within the afore- described time period, the Claimant shall have intentionally and knowingly forever waived and relinquished their right to submit any such claims for payment to the Association; 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. Such other reasonable information as may be required by the Association, which relates to the provision of habilitative care or the payment of Samantha Basey's bills.

       
       

17. The Claimants shall seek prior authorization and approval from the Association for all actual expenses incurred under Section 766.31(1)(a), Fla. Stat., in advance of authorizing and obtaining any medical and hospital, rehabilitative and training, residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel. In the event the Claimants have not sought and obtained such authorization and approval in advance, the Claimants will have waived the right to recovery of such actual expenses. This provision shall not be applicable with respect to any emergency medical or hospital care required for the Injured Party, however, the Claimants shall on the next business day advise the Association that such emergency medical and hospital care has been obtained.

    
    

18. The claimants agree that a representative of the Association may periodically visit the child with the parents'

    prior notification. The purpose of such visits would be to assess the child's current condition

    
    

19. 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 7 day of January, 1999.

Lynn Dickinson Executive Director

Florida Birth-Related Neurological Injury Compensation Association 1435 Piedmont Drive East, Suite 101

Tallahassee, Florida 32312

Tony Cunningham, Esquire Attorney for Claimants Cunningham, Clark & Greiwe, P. A.

100 Ashley Drive South, Suite 100 Tampa, Florida 33602

Lisa Basey, Mother

as Claimant and natural guardian of Samantha Basey, a minor

Joseph Basey, Father

as Claimant and natural guardian of Samantha Basey, a minor

Docket for Case No: 98-005009N

Orders for Case No: 98-005009N