STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FINAL ORDER

On July 6, 2020, Petitioner and Respondent filed a 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). Petitioner and the Florida Birth-Related Neurological Injury Compensation Association (NICA) seek entry of an order approving the resolution of the claim for benefits filed in accordance with the provisions of chapter 766. Intervenors, Heidi Disalvo, D.O.; Mariel Carolina Rotundo- Patino, D.O.; MaryAnne Colalilli, M.D.; Women’s Care, Florida; and Galencare, Inc., d/b/a Brandon Regional Hospital have not filed an objection

to the Stipulation and Joint Petition, and the time for doing so pursuant to Florida Administrative Code Rule 28-106.204 has passed.

PRELIMINARY STATEMENT

On February 13, 2019, Petitioner Cristen Jean Brown, Individually and as personal representative of the Estate of Levi Jace Brown, filed a Petition for Determination of Jurisdiction of NICA Plan and in the Alternative Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. (“In Protest”)(The Petition). The Petition named Heidi Disalvo, D.O.; MaryAnne Colalillo, M.D.; and Mariel Carolina Rotundo-Patino, D.O., as the physicians providing obstetrical services, and Brandon Regional Hospital as the facility where Levi was born. Drs. DiSalvo and Rotundo-Patino moved to intervene on February 13, 2019, which was granted on March 1, 2019.

On February 26, 2019, NICA, all three physicians, and Brandon Regional Hospital were notified by certified mail that the Petition had been filed.

Certified mail return receipts filed with the Division indicate that all but Dr. DiSalvo received the copies of the Petition served by the Division.

However, as noted above, Dr. DiSalvo and Dr. Rotundo-Patino had requested intervention before the certified copies were sent, so it is clear that they had notice of the proceeding.

On March 22, 2019, Dr. Colalillo and Women’s Care filed a motion to intervene, and the motion was granted April 1, 2019. Finally, Galencare, Inc., d/b/a Brandon Regional Hospital petitioned to intervene on April 24, 2019, and the request was granted on May 7, 2019.

On April 8, 2019, NICA filed a Response to Petition for Benefits, stating that NICA agreed that the injury was compensable, and offering the benefits permitted by section 766.31. The same day, NICA moved for a protective

order regarding the confidential documents submitted with the response to the petition, which was granted by separate Order.

This case has a lengthy procedural history, and repeating it in this Final Order will not add anything necessary to the disposition of the proceeding. A review of the docket reveals the discovery taken, motions filed, and Orders issued prior to the Stipulation and Joint Petition.

FINDINGS OF FACT

Based on the stipulation of Petitioner and NICA, which Intervenors have not challenged, the following facts are found:

1. Cristen Jean Brown is the mother of Levi Jace Brown (Levi), and is the “Claimant” as defined in section 766.302(3).

2. Levi incurred a “birth-related neurological injury” (the injury) as that term is defined in section 766.302(2), on or about August 28, 2015, which was the sole and proximate cause of his death on September 2, 2015.

3. At birth, Levi weighed 3,190 grams.

4. Heidi E. Disalvo, D.O. and MaryAnne Colalillo, M.D., rendered obstetrical services in the delivery of Levi and, at all material times, each was a “participating physician” as defined in section 766.302(7).

5. Brandon Regional Hospital is a hospital located in Brandon, Florida, and is the “hospital” as that term is defined in section 766.302(6), where Levi was born.

6. On February 11, 2019, Petitioner filed the Petition, seeking compensation from NICA, and that Petition is incorporated by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth- Related Neurological Injury Compensation Plan (the Plan).

   CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding pursuant to section 766.301.

8. Section 766.305(7) requires the presiding administrative law judge to approve the settlement of any claim where NICA determines that the injury is compensable.

CONCLUSION

Based upon the Findings of Fact and Conclusions of Law, it is ORDERED:

1. The Stipulation and Joint Petition filed July 6, 2020, is approved, and the parties are directed to comply with the provisions of the Stipulation and Joint Petition.

2. Petitioner, Cristen Jean Brown, as mother and personal representative of the Estate of Levi Jace Brown, is awarded One Hundred Thousand Dollars ($100,000.00), to be paid as a lump sum as authorized by section 766.31.

3. Petitioner shall also receive from NICA a death benefit for Levi in the amount of Ten Thousand Dollars ($10,000.00), as authorized by section 766.31, as well as payment of benefits/past expenses pursuant to section 766.31(1)(a), subject to the provisions of paragraph 19 of the Stipulation and Joint Petition.

4. NICA will reimburse Harold L. Sebring, III, Esquire, and the law firm of Sebring Law, attorneys for Petitioner, an agreed-upon attorney’s fee of Ten Thousand Dollars ($10,000.00) and expenses of Eighty-Eight Dollars and Seventy-Three Cents ($88.73), totaling Ten Thousand and Eighty-Eight Dollars and Seventy-Three Cents ($10,088.73), in full, for services rendered related to the filing of this claim.

5. Upon payment of the award of $100,000.00; the death benefit of

   $10,000.00; past benefits/expenses; and payment of attorney’s fees and costs

   awarded to Petitioner’s counsel, Petitioner’s claims will be deemed fully satisfied and extinguished.

6. 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.

DONE AND ORDERED this 16th day of July, 2020, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 16th day of July, 2020.

COPIES FURNISHED:

(via certified mail)

Harold L. Sebring, III, Esquire Sebring Law, P.A.

Suite 480

1001 3rd Avenue West Bradenton, Florida 34205 (eServed)

(Certified Mail No. 7015 0640 0001 2706 9389)

Kenney Shipley, Executive Director Florida Birth-Related Neurological Injury Compensation Association Suite 1

2360 Christopher Place

Tallahassee, Florida 32308 (eServed)

(Certified Mail No. 7015 0640 0001 2706 9396)

Erin M. Diaz, Esquire

Wicker, Smith, O'Hara, McCoy & Ford, P.A. Suite 1800

100 North Tampa Street Tampa, Florida 33602 (eServed)

(Certified Mail No. 7015 0640 0001 2706 9402)

Gabrielle Osborne, Esquire Beytin, McLaughlin, McLaughlin,

O'Hara, Kinman & Bocchino, P.A. 1706 East Eleventh Avenue Tampa, Florida 33605

(eServed)

(Certified Mail No. 7015 0640 0001 2706 9419)

Tracy M. Falkowitz, Esquire Banker Lopez Gassler, P.A. Suite 1700

501 East Kennedy Boulevard Tampa, Florida 33602 (eServed)

(Certified Mail No. 7015 0640 0001 2706 9426)

Brooke M. Gaffney, Esquire

Smith, Stout, Bigman & Brock, P.A. Suite 900

444 Seabreeze Boulevard Daytona Beach, Florida 32118 (eServed)

(Certified Mail No. 7015 0640 0001 2706 9433)

Elizabeth A. Myers, Esquire Smith Bigman Brock, P.A.

444 Seabreeze Boulevard Daytona Beach, Florida 32118 (eServed)

(Certified Mail No. 7015 0640 0001 2706 9440)

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

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

(Certified Mail No. 7015 0640 0001 2706 9457)

Mary C. Mayhew, Secretary Health Quality Assurance

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308 (eServed)

(Certified Mail No. 7015 0640 0001 2706 9464)

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: 19-000927N

Orders for Case No: 19-000927N