STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BASSAM ABIFARAJ and RAYYA )

ABIFARAJ, as parents and ) natural guardians of SAMER ) ABIFARAJ, a deceased minor, )

)

Petitioners, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

JOHN L. RINELLA, M.D. AND ) RINELLA, HUDANICH, GREENBERG, ) RALPH & SIJIN, P.A.; JOAQUIN ) TARANCO, M.D. AND TARANCO & ) ASSOCIATES ANESTHESIOLOGY ) GROUP, P.A., d/b/a PLANTATION- ) TAMARAC ANESTHESIA GROUP, P.A.; ) and PLANTATION GENERAL )

HOSPITAL, )

)

Intervenors. )

Case No. 00-4406N

)

AMENDMENT TO AMENDED FINAL ORDER AND AWARD

On December 10, 2002, an Amended Final Order and Award was rendered in the above-styled case. That order was appealed to the District Court of Appeal, First District, State of Florida, and assigned Case No. lD03-0334.1

On May 28, 2003, a Mandate issued from the First District Court of Appeal commanding "that further proceedings, if required, be had in accordance with . . . [the Court's opinion of May 9, 2003], the rules of Court, and the laws of the State of Florida." Of note, the Court's opinion of May 9, 2003, resolved that the Amended Final Order and Award, dated December 10, 2002, was not final because "the order did not make findings as to the amount of the previously incurred expenses which . . . [the Association] was ordered to pay."

On September 4, 2003,2 a hearing was held to address the Mandate. At hearing, the parties agreed that, should Petitioners elect to accept benefits under the Plan, Petitioners be awarded

$1,000.00 for previously incurred expenses, and $11,500.00 for attorney's fees ($10,000.00) and other expenses ($1,500.00) incurred in connection with the filing of the claim. Also, of note, as reflected in the Amended Final Order and Award, dated December 10, 2002, the parties had previously agreed that, should Petitioners elect to accept benefits under the Plan, Petitioners receive a lump sum award of $100,000.00.

Given the foregoing, the Conclusion portion of the Amended Final Order and Award rendered December 10, 2002, is amended to read, as follows:

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that the claim for compensation filed by Bassam Abifaraj and Rayya Abifaraj, as parents and natural guardians of Samer Abifaraj, a deceased minor, and NICA's

proposal to accept the claim for compensation be and the same are hereby approved.

IT IS FURTHER ORDERED that the participating physician complied with the notice provision of the Plan, but the hospital did not.

IT IS FURTHER ORDERED that the following benefits are awarded:

1. Petitioners, Bassam Abifaraj and Rayya Abifaraj, are accorded an award of $1,000.00 for expenses previously incurred. Section 766.31(1)(a).3 Such award shall be paid immediately. Section 766.31(2).

2. Petitioners, Bassam Abifaraj and Rayya Abifaraj, are accorded a lump sum award of $100,000.00. Section 766.31(1)(b).

3. Petitioners, Bassam Abifaraj and Rayya Abifaraj, are accorded an award of $11,500.00 for attorney's fees ($10,000.00) and other expenses ($1,500.00) incurred in connection with the filing of the claim. Section 766.31(1)(c).

IT IS FURTHER ORDERED that pursuant to Section 766.312, jurisdiction is reserved to resolve any disputes, should they arise, regarding the parties' compliance with the terms of this Final Order.

DONE AND ORDERED this 12th day of September, 2003, in Tallahassee, Leon County, Florida.

S

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 12th day of September, 2003.

ENDNOTES

1/ The appeal was initially lodged in the District Court of Appeal, Third District, State of Florida, but on motion was transferred to the First District.

2/ A status conference was first held on July 21, 2003; however, at hearing, the parties agreed to defer any further discussion on the Mandate until September 4, 2003.

3/ All citations are to Florida Statutes (2002) unless otherwise indicated.

COPIES FURNISHED:

(By certified mail)

Mayer Gattegno, Esquire Mayer Gattegno, P.A.

2825 University Drive, Suite 350 Coral Springs, Florida 33065

Kenney Shipley, Executive Director Florida Birth-Related Neurological

Injury Compensation Association 1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308

Kenneth J. Plante, Esquire Wilbur E. Brewton, Esquire Roetzel & Andress, LPA

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

Nancy W. Gregoire, Esquire Darlene Stosik, Esquire Bunnell, Woulfe, Kirschbaum,

Keller & McIntyre, P.A. Post Office Drawer 030340

Fort Lauderdale, Florida 33303-0340

Esther E. Galicia, Esquire Merrilee A. Jobes, Esquire Liana Silsby, Esquire

George, Hartz, Lundeen & Fulmer

524 South Andrews Avenue

Justice Building East, Third Floor Fort Lauderdale, Florida 33301

Hal B. Anderson, Esquire John W. Mauro, Esquire

Billing, Cochran, Heath, Lyles & Mauro, P.A.

888 Southeast Third Avenue, Suite 301 Fort Lauderdale, Florida 33316

Barbara Green, Esquire 1320 South Dixie Highway Suite 450, Gables One Tower

Coral Gables, Florida 33146

John L. Rinella, M.D.

4101 Northwest 4th Street, No. 104

Plantation, Florida 33317

Plantation General Hospital

401 Northwest 42nd Avenue Plantation, Florida 33317

Ms. Charlene Willoughby Department of Health

4052 Bald Cypress Way, Bin C-75 Tallahassee, Florida 32399-3275

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 the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, 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.

Docket for Case No: 00-004406N

Orders for Case No: 00-004406N