STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERESA BARRUSO JAMES and JESSE JAMES, )

as parents and natural guardians of ) JESUS BARRUSO JAMES, a deceased minor, )

)

Petitioners, )

)

vs. ) Case No. 99-4166N

) 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 28, 2000, 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, Teresa Barruso James and Jesse James, are the parents and natural guardians of Jesus Barruso James (Jesus), a deceased minor; that Jesus was born a live infant on October 3, 1996, at Jackson Memorial Hospital, Dade County,

Florida; and that his birth weight was in excess of 2,500 grams. The parties have further agreed that the physician delivering obstetrical services during the birth of Jesus was Jaime Pablo Nahmias, 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 Jesus 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 28, 2000, is hereby approved, and the parties are directed to comply with the provisions thereof.

2. Petitioners, Teresa Barruso James and Jesse James, as the parents and natural guardians of Jesus Barruso James (Jesus), a deceased minor, are 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 parents (claimants), payment of past expenses, and payment of attorney's fees and other expenses incurred in the representation of the parents

   in this case 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 1st day of February, 2000, in Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge Division of Administrative

Hearings

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

this 1st day of February, 2000.

COPIES FURNISHED:

(By certified mail)

Joel R. Wolpe, Esquire Wolpe & Leibowitz, L.L.P.

520 Biscayne Building

19 West Flagler Street Miami, Florida 33131

Lynn Larson, Executive Director Florida Birth-Related Neurological

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

Jaime Pablo Nahmias, M.D. Post Office Box 016960 Miami, Florida 33101

Jackson Memorial Hospital Legal Department

1611 Northwest 12th Avenue Miami, Florida 33136-1094

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: TERESA BARRUSO JAMES and JESSE JAMES, on

behalf of and as parents and natural guardians of JESUS BARRUSO JAMES (deceased)

Represented by: Joel R. Wolpe, Esquire

Wolpe & Leibowitz, L.L.P. Suite 520, Biscayne Building

19 West Flagler Street Miami, Florida 33130

ASSOCIATION: FLORIDA BIRTH-RELATED NEUROLOGICAL

INJURY COMPENSATION ASSOCIATION

RESPONDENTS: JAIME PABLO NAHMIAS, M.D., JACKSON

MEMORIAL HOSPITAL and any and all additional healthcare providers involved in the birth

of

the injured party

DATE OF INJURY: October 3, 1996 DOAH CASE#: 99-4166N

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 State of Florida Date of Injury: October 3, 1996

Division of Administrative Hearings DOAH Case #: 99-4166N neurological injury (the "Injury") suffered by Jesus Barruso James (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. Jesus Barruso James (the "Injured Party," deceased), incurred an injury (the "Injury") as the term is defined in Section 766.302(2), Florida Statutes, on or about October 3, 1996. The Injury occurred in Dade County, Florida and falls within the jurisdiction of the Administrative Law Judge of the Division of Administrative Hearings.

   
   

2. Teresa Barruso James and Jesse James (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 October 3, 1996, as defined by Florida Statutes, Section 766.302(6).

   
   

4. Jaime Pablo Nahmias, 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 its entirety, including all attachments. Any reference made within this document to the Association encompasses, where appropriate, The Florida Birth-Related Neurological Injury Compensation Plan (the "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 State of Florida Date of Injury: October 3, 1996 Division of Administrative Hearings DOAH Case #: 99-4166N 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 the Plan on account of the Injury shall exclude all other rights and remedies of such infant, his 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 sustained by the infant and-shall preclude any claim for medical malpractice against any such person or entity to recover damages for the Injury.

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) 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 766.31(1)(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 ($11,500.00), which includes fees and expenses incurred in the representation of the Claimants in this case, will be paid to Joel R. Wolpe, 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 Injury 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), for the Injury. 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), for the Injury. The Association agrees that nothing in this Stipulation serves to preclude or limit the Claimants' right to pursue an action for medical malpractice against the Respondents for personal injuries sustained by TERESA BARRUSO NAMES on or about October 3, 1996, and that the payment agreed to herein does not serve to confer a discharge of any responsibility and liability of the Respondents for personal injuries sustained by TERESA BARRUSO JAMES.

10. The Claimants further agree that there is no evidence of bad faith, malicious purpose or willful and wanton disregard o f 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 State of Florida Date of Injury: October 3, 1996, Division of Administrative Hearings DOAH Case #: 99-4166N entity either known or unknown and so named as a result of the 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(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 completed 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 the 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 25th day of January, 2000.

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

Tallahassee, Florida 32312

___________________________________ Joel R. Wolpe, Esquire

Wolpe & Leibowitz, L.L.P. Injury Compensation Assoc. Suite 520, Biscayne Building

19 West Flagler Street Miami, Florida 33130

___________________________________ Teresa Barrusi, Mother

as Claimant and natural guardian Jesus Barruso James, a deceased minor

___________________________________ Jesse James, Father

as claimant and natural guardian of Jesus Barruso James, a deceased minor

Docket for Case No: 99-004166N

Orders for Case No: 99-004166N