STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JESSICA CONOVER AND CLIFF )

CONOVER, individually and as ) parents and next friends of ) ALEXANDER CONOVER, a minor, )

)

Petitioners, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

) BAYFRONT MEDICAL CENTER, INC., ) AND ELENA DOLSKAYA, M.D., )

)

Intervenors. )

Case No. 12-2871N

)

FINAL ORDER APPROVING STIPULATION FOR ENTRY OF AWARD

This cause came on for consideration pursuant to sections

766.304 and 766.305(7), Florida Statutes, upon the Stipulation and Joint Petition for Compensation of Claim Arising out of Florida Birth-Related Neurological Injury Pursuant to Chapter 766, Florida Statutes (Stipulation and Joint Petition), filed with the Division of Administrative Hearings on March 22, 2013, for the entry of an order approving the resolution of a claim for compensation benefits filed in accordance with the provisions of

chapter 766 and a resolution of the exclusive remedy otherwise available as outlined in chapter 766.

By the terms of their stipulation, Petitioners,

Jessica Conover and Cliff Conover, individually, and as parents and next friends of Alexander Conover (Alexander), a minor; Respondent, the Florida Birth-Related Neurological Injury Compensation Association (NICA); and Intervenors, Bayfront Medical Center, Inc., and Elena Dolskaya, M.D. (collectively, the Parties), have agreed that Jessica Conover and Cliff Conover are the parents and legal guardians of Alexander, a minor; that Alexander was born a live infant on February 20, 2012, at Bayfront Medical Center, a “hospital” as defined by section 766.302(6) located in St. Petersburg, Florida; and that Alexander's birth weight was 2,860 grams. The Parties have further agreed that Dr. Dolskaya, provided obstetrical services at Alexander's delivery and was a “participating physician” in the Florida Birth-Related Neurological Injury Compensation Plan (Plan), as defined by section 766.302(7). The Parties have agreed that Alexander suffered a “birth-related neurological injury,” as that term is defined by section 766.302(2), which was the sole and proximate cause of Alexander's permanent and substantial mental and physical impairments.

Paragraph 12 of the Joint Stipulation and Petition provides:

The Petitioners disagree as to NICA's interpretation of Section 766.31(1)(b)1, Florida Statutes, with respect to the payment of the parental award. Section 766.31(1)(b)1, Florida Statutes, states:

Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth related neurological injury, which award shall not exceed $100,000.

However, at the discretion of the administrative law judge, such award may be made in a lump sum.

The issues on which the Parties disagree are whether Section 766.31(1)(b)1, Florida Statutes, only entitles two parents to a single parental award of $100,000 in the aggregate, and, if so, whether that statute is constitutional. At this time, those issues are currently pending before the Florida Supreme Court in Samples v. NICA (SC 10-1295). The Parties to the instant case request that this case be abated only with regard to the above issues until a decision is reached in Samples, so that the Administrative Law Judge may later award Petitioners a second $100,000 parental award if the Samples case should determine that Section 766.31(1)(b)1 entitles them to it, as well as any attorney fees and costs that may be due in connection with the second parental award.

It is ORDERED:

1. The Stipulation and Joint Petition filed on March 22, 2013, is hereby approved, and the Parties are directed to comply with the provisions of the Stipulation and Joint Petition.

   
   

2. Petitioners, Jessica Conover and Cliff Conover, as the parents and legal guardians of Alexander, a minor, are awarded one hundred thousand dollars ($100,000.00), pursuant to section 766.31(1)(b)1, to be paid as a lump sum; payment of benefits up to and including the effective date of the Joint Stipulation and Petition pursuant to section 766.31(1)(a), subject to the provisions of paragraph 20 of the Stipulation and Joint Petition; and payment of future expenses as incurred.

3. Respondent shall pay the McMillen Law Firm, A Professional Association, attorneys for Petitioners, Ten thousand dollars ($10,000.00) for attorney's fees and Six hundred thirty- five dollars and thirty-one cents ($635.31) for expenses, totaling Ten thousand six hundred thirty-five dollars and thirty-one cents ($10,635.31) in full, for services rendered in the filing of Petitioners' claim.

4. Upon the payment of the award of $100,000.00, attorney's fees and other expenses totaling $10,635.31 incurred in connection with the filing of this claim, and past benefit/expenses, the claims of Petitioners shall be deemed fully satisfied and extinguished, except for the issues reserved in paragraph 12 of the Joint Stipulation and Petition and Respondent's continuing obligation under section 766.31(2) to pay future expenses as incurred.

   
   

5. The Division of Administrative Hearings retains jurisdiction over this matter to resolve any disputes, should they arise, regarding the parties’ compliance with the terms of this Order and the issues reserved in paragraph 12 of the Joint Stipulation and Petition.

DONE AND ORDERED this 27th day of March, 2013, in Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 2013.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association 2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0003 4463 9054)

Allison C. McMillen, Esquire McMillen Law Firm

608 East Central Boulevard Orlando, Florida 32801

(Certified Mail No. 7011 1570 0003 4463 1325)

Elizabeth Dudek, Secretary Health Quality Assurance

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0003 4462 1370)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See

§ 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).

Docket for Case No: 12-002871N

Orders for Case No: 12-002871N