STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REVIENNE CHERY and REYNOLD CHERY, )

as parents and natural guardians ) of JESULA CHERY, a deceased minor, )

)

Petitioners, )

)

vs. ) Case No. 99-2829N

) 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 10, 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, Revienne Chery and Reynold Chery, are the parents and natural guardians of Jesula Chery (Jesula), a deceased minor; that Jesula was born a live infant on January 21, 1996, at Jackson Memorial Hospital, a hospital located in Dade 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 Jesula was

Makbib Diro, 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 Jesula 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 10, 1999, is hereby approved, and the parties are directed to comply with the provisions thereof.

2. Petitioners, Revienne Chery and Reynold Chery , as the parents and natural guardians of Jesula Chery, a deceased minor, are accorded a lump sum award of One hundred thousand dollars ($100,000.00).

3. Upon payment of the lump sum 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 Eleven thousand five hundred dollars ($11,500.00), the claims of the Petitioners (claimants) shall be deemed fully satisfied and extinguished.

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 16th day of November, 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 16th day of November, 1999.

COPIES FURNISHED:

(By certified mail)

Stephen G. Fischer, Esquire The Fischer Law Firm

Two Datran Center, Suite 1903 9130 South Dadeland Boulevard Miami, Florida 33156

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

101 North Gadsden Street Tallahassee, Florida 32301

Lynn Larson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 14567 Tallahassee, Florida 32317-4567 Makbib Diro, M.D.

c/o University of Miami

Department of Obstetrics-Gynecology (R116) Post Office Box 016960

Miami, Florida 33101

Jackson Memorial Hospital Legal Department

1611 Northwest 12th Avenue Miami, Florida 33128

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLAIMANTS: REVIENNE CHERY and REYNOLD CHERY, on

behalf of and as parents and natural guardians of JESULA CHERY (deceased) 13335 N.E. 6th Avenue, Apt. 41

Miami, Florida 33161

Represented By: Stephen G. Fischer, Esquire

The Fischer Law Firm

Two Datran Center, Suite 1903 9130 S. Dadeland Blvd.

Miami, Florida 33156

ASSOCIATION: FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION

RESPONDENTS: MAKBIB DIRO, M.D., JACKSON MEMORIAL HOSPITAL and ANY AND ALL ADDITIONAL HEALTH CARE PROVIDERS INVOLVED IN THE BIRTH OF THE INJURED PARTY

DATE OF INJURY: January 21, 1996

DOAH CASE #: 99 2829N

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 Jesula Chery (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. Jesula Chery (the "Injured Party", deceased), incurred an Injury as the term is defined by Section 766.302(2), Florida Statutes, on or about January 21, l 996. The Injury occurred in Dade County, Florida and falls within the jurisdiction of the Administrative Law Judge of the Division of Administrative Hearings.

2. Revienne Chery and Reynold Chery (the "Claimants"), are the parents of the Injured Party (deceased), and are the Claimants as defined by Section 766.302(3), Florida Statutes.

   
   

3. Jackson Memorial Hospital is where the injury was incurred on January 21, 1996, as defined by Florida Statutes, Section 766.302(6).

   
   

4. Makbib Diro, 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 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 ($100,00(3.00) in a lump sum payment. This payment is authorized pursuant to Section 766.31(1)(b), Florida Statutes. The Association has no objection to this payment.

      
      

   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. Payment of past benefits under Section 766.3 l(l) (a), Fla. Stat., shall be subject to the provisions of Paragraph 16 of this Stipulation.

      
      

   3. The Association agrees that Eleven Thousand Five Hundred Dollars ($ I 1,500.00), which includes fees and expenses incurred in thc representation of the Claimants in this case,

      will be paid to "Stephen Fischer, 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 thc 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 thc Birth injury sustained by 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 within thirty (30) days from 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(l)(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 Claimants shall have intentionally and knowingly forever waived and relinquished their right to submit any such claims for payment to the Association, 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

       
       

    4. 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 t le 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 21 day of October, 1999.

*against the Association and the Respondents ONLY.

*See No. 18 below.

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

Tallahassee, Florida 32312

Stephen Fischer, Esquire The Fischer Law Firm

Two Datran Center, Suite 1903 9130 S. Dadeland Blvd.

Miami, Florida 33156

Revienne Chery, Mother

as Claimant and natural guardian of Jesula Chery, a deceased minor

Reynold Chery , Father

as Claimant and natural guardian of Jesula Chery, a deceased minor

*18. Reservation of Rights: The parties agree that this Stipulation and Joint Petition for Compensation is a release of all claims against the Association and Respondents ONLY, arising out the birth-related neurological injury suffered by Jesula Chery on January 21, 1996. The parties understand and agree that Claimants specifically reserve their rights to proceed against the Dade County School Board or others, for Jesula's death on August 31, 1999, that occurred at school, and the parties agree that this release specifically does not release the Dade County School Board or any other person, firm or corporation responsible for Jesula's death on August 31, 1999. The claimants specifically reserve their rights to proceed on that claim against any person, firm, entity or party other than the parties released herein, the Association and Respondents.

THE FISCHER LAW FIRM

A PROFESSIONAL ASSOCIATION

OCT 21, 1999

Lynn Larson, Executive Director Florida Birth Related Neurological

Injury Compensation Association Post Office Box 14567 Tallahassee, Florida 32317

Re: NICA Claim by Revienne Chery and Reynold Chery on behalf of and as parents and natural guardians of Jesula Chery (deceased) Date of birth: January 21, 1996

Dear Ms. Larson:

Please consider this our request and authorization for you to issue the $100,000.00 lump sum payment from the Florida Birth- Related Neurological Injury Compensation Association to Reynold Chery and Revienne Chery, on behalf of and as parents and natural guardians of Jesula Chery (deceased), and The Fischer Law Firm, our attorney.

Sincerely,

Reynold Chery

Revienne Chery

Docket for Case No: 99-002829N

Orders for Case No: 99-002829N