STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANIQUE DOUGLAS, as parent and natural ) guardian of DANEISHIA FLORNOY, a minor, )

)

Petitioner, )

)

vs. ) Case No. 99-3598N

) 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 October 25, 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 Petitioner, Danique Douglas, is the parent and natural guardian of Daneishia Flornoy (Daneishia), a minor; that Daneishia was born a live infant on March 2, 1999, at Baptist Medical Center, a hospital located in Jacksonville, 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 Daneishia was Martin A. Garcia, 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 Daneishia 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 October 25, 1999, is hereby approved, and the parties are directed to comply with the provisions thereof.

2. Petitioner, Danique Douglas, as the parent and natural guardian of Daneishia Flornoy, a minor, is accorded a lump sum award of One hundred thousand dollars ($100,000.00), to be disbursed in accordance with the terms of the parties' stipulation.

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

   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 28th day of October, 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 28th day of October, 1999.

COPIES FURNISHED:

(By certified mail)

Rodney S. Margol, Esquire Margol & Pennington, P.A.

One Independent Drive, Suite 1700 Jacksonville, Florida 32202-5005

Lynn Larson, Executive Director Florida Birth-Related Neurological

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

Martin A. Garcia, M.D. 836 Prudential Drive

Jacksonville, Florida 32207

Baptist Medical Center Legal Department

800 Prudential Drive

Jacksonville, Florida 32207

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: DANIQUE DOUGLAS, on behalf

of and as parent and natural guardian of DANEISHIA FLORNOY, a minor

8217 Provincial Circle S Jacksonville, Florida 32277

Represented By: Rodney S. Margol, Esquire

Margol & Pennington, P.A.

One Independent Drive, Suite 1700 Jacksonville, Florida 32202

ASSOCIATION: FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION

RESPONDENTS: MARTIN A. GARCIA, M.D., BAPTIST MEDICAL

CENTER and ANY AND ALL ADDITIONAL HEALTH CARE PROVIDERS WHETHER KNOWN OR UNKNOWN INVOLVED IN THE MEDICAL TREATMENT OF THE INJURED PARTY

DATE OF INJURY: March 2, 1999

DOAH CASE #: 99-3598N

STIPULATION AND JOINT PETITION FOR COMPENSATION OF CLAIM ARISING OUT OF FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY PURSUANT 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. Daneishia Flomoy (the "Injured Party"), incurred an Injury as that term is defined by Section 766.302(2), Florida Statutes, on or about March 2, 1999. 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. Danique Douglas (the "Claimant"), is the parent and legal guardian of the Injured Party, and is the Claimant as defined by Section 766.302(3), Florida Statutes.

   
   

3. Baptist Medical Center is the Hospital where the injury was incurred on March 2, 1999 as defined by Florida Statutes, Section 766.302(6).

   
   

4. Martin A. Garcia, M.D. 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 of the 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 a lump sum of One Hundred Thousand Dollars ($100,000 00). This payment is authorized pursuant to Section 766.31(1)(b), Florida Statutes. Details on the disbursement of these funds will be provided to the Division of Administration Hearings prior to the disbursement of any funds.

   2. The Association will pay all benefits, past and future, as authorized by Section 766.31, Florida Statutes. Payment of past benefits under Section 766.3 l(l)(a), Fla. Stat., shall be subject to the provisions of Paragraph 16 of this Stipulation.

      
      

   3. The Association will reimburse Rodney S. Margol, Esquire, attorney for the Claimant, an agreed upon attorney's fee and expenses to be determined 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.

1l. 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 Daneishia Flornoy. 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 may have 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 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.

1. 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.

   
   

2. 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.

   
   

3. 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 of invoices and names and addresses of providers) of all known past expenses under

      Section 766.3 l(l)(a), Fla. Stat., for which the Claimant seeks 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 her 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 Daneishia Flomoy's bills.

      
      

4. The Claimant 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 Claimant has not sought and obtained such authorization and approval in advance, the Claimant 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 Claimant shall on the next business day advise the Association that such emergency medical and hospital care has been obtained.

   
   

5. The Claimant agrees 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

   
   

6. The Administrative Law Judge of 1 1e 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 20th day of October, 1999.

Lynn Larson Executive Director

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

Tallahassee, Florida 32312

Rodney S. Margol, Esquire Attorney for Claimant Margol & Pennington, P.A.

One Independent Drive, Suite 1700 Jacksonville, Florida 32202

Danique Douglas, Mother

As Claimant and natural guardian of Daneishia Flornoy, a minor

Docket for Case No: 99-003598N

Orders for Case No: 99-003598N