02-002214N Dajuanda Alexander, Individually And As A Parent And Natural Guardian Of Elliott L. Davis, Iii, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, July 12, 2004.

Summary: Final Order awarding Florida Birth-Related Neurological Injury Compensation Plan benefits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAJUANDA ALEXANDER, )

individually and as parent and )

natural guardian of ELLIOTT L. )

DAVIS, III, a minor, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2214N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Res pondent, )

)

and )

)

ORLANDO REGIONAL HEALTHCARE )

SYSTEM INC., d/b/a ARNOLD )

PALMER HOSPITAL FOR CHILDREN )

AND WOMEN, and JEROME L. ADAMS, )

M.D. and JEROME L. ADAMS, M.D., )

P.A., )

)

Intervenors. )

)

AWARD AND FINAL ORDE R

Pursuant to notice, the Division of Administrative

Hearings, by Administrative Law Judge William J. Kendrick, held

a hearing in the above - styled case on June 21, 2004, by video

teleconference, wit h sites in Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: Ronald S. Gilbert, Esquire

Morgan, Colling & Gilbert, P.A.

20 North Orange Avenue, Suite 1600

Post Office Box 4979

Orlando, Florida 32802 - 4979

For Respondent: Lynn Walker Wright, Esquire

2716 Rew Circle, Suite 102

Ocoee, Florida 34761

For Intervenor Orlando Regional Healthcare System, Inc.,

d/b/a Arnold Palmer Hospital for Children and Women:

Richard L. Allen, Jr., Esquire

Mateer & Harbert, P.A.

108 East Central Boulevard

Post Office Box 2854

Orlando, Florida 32802 - 2854

For Intervenors Jerome L. Adams, M.D.,

and Jerome L. Adams, M.D., P.A.:

Ruth C. Osborne, Esquire

McEwan, Martinez & Dukes, P.A.

Post Off ice Box 753

Orlando, Florida 32802 - 0753

STATEMENT OF THE ISSUES

At issue is the amount and manner of payment of the

parental award, the amount owing for attorney's fees and costs

incurred in pursing the claim, and the amount owing for past

expenses.

PRELIMINARY STATEMENT

On February 11, 2004, an Order on Compensability and Notice

was entered in the above - styled case which resolved that the

claim was compensable and that, with regard to the participating

physician, the notice provis ions of the Florida Birth - Related

Neurological Plan (Plan) were satisfied, but with regard to the

hospital, they were not. Pertinent to this proceeding, the

Order concluded:

Where, as here, the administrative law judge

determines that the infant has susta ined a

birth - related neurological injury and that

obstetrical services were delivered by a

participating physician at birth, he is

required to make a determination as to how

much compensation, if any, should be

awarded. § 766.31, Fla. Stat.[ 1 ] In this

ca se, the issues of compensability and the

amount of compensation to be awarded were

bifurcated. Accordingly, absent agreement

by the parties, and subject to the approval

of the administrative law judge, a hearing

will be necessary to resolve any disputes

r egarding the amount and manner of payment

of "an award to the parents or legal

guardians of the infant," the "[r]easonable

expenses incurred in connection with the

filing of . . . [the] claim . . .

including reasonable attorney's fees," and

the amount owing for "expenses previously

incurred." § 766.31(1), Fla. Stat.

Consequently, it was ordered that:

. . . the parties are accorded 30 days from

the date of this order to resolve, subject

to approval by the administrative law judge,

the amount and manne r of payment of an award

to the parents or legal guardians, the

reasonable expenses incurred in connection

with the filing of the claim, including

reasonable attorney's fees, and the amount

owing for expenses previously incurred. If

not resolved within su ch period, the parties

shall so advise the administrative law

judge, and a hearing will be scheduled to

resolve such issues. Once resolved, a final

award will be entered consistent with

Section 766.31, Florida Statutes.

Here, the parties were unable to reach agreement. Therefore, a

hearing was scheduled for June 21, 2004, to resolve the issues.

On June 15, 2004, the parties filed their Pre - Award Hearing

Stipulation which, together with the parties' stipulations at

hearing, resolved the factual matters addressed in paragraph 1

of the Findings of Fact. At hearing, Petitioner,

Dajuanda Alexander, testified on her own behalf. No other

witnesses were called and no exhibits were offered.

The transcript of the hearing was filed July 8, 2004.

Although offere d the opportunity to do so, the parties waived

the opportunity to submit proposed orders.

FINDINGS OF FACT

1. Here, the parties have stipulated that Petitioner,

Dajuanda Alexander, as the parent of Elliott L. Davis, III

(Elliott), a minor, be awarded $10 0,000.00, to be paid in lump

sum, as well as $10,000.00 for attorney's fees and $500.00 for

costs incurred in connection with the filing of the claim. The

parties have further agreed that, apart from a claim for travel -

related expenses, discussed infra , n o monies are owing and no

claim is made by Petitioner for past expenses.

2. With regard to the claim for travel - related expenses,

Petitioner seeks to recover "approximately $27,000.00," based

upon her estimate that she incurred, on average, costs of

$6, 000.00 per year in travel - related expenses associated with

Elliott's medical needs, including "going to and from doctors'

offices, various visits for neurology, eye doctor, ER visits,

hospital to and from, prosthesis, vision therapy, Nemours

Clinic, pulmon ary, occupational therapy, [and] physical

therapy." (Transcript, page 8) Notably, however, not one iota

of proof was offered to demonstrate the dates of travel, the

distance traveled, the method of travel, the purposes of travel,

or any other factor on w hich a conclusion could be drawn that

the expenses claimed were reasonable in amount and were incurred

for travel related to medically necessary care, treatment or

other needs, as required for reimbursement under the Plan.

§ 766.31(1)(a), Fla. Stat. Cons equently, the proof fails to

support an award for travel - related expenses.

CONCLUSIONS OF LAW

3. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings. § 766.301, et seq ., Fla. Stat.

4. Pertinent to this case, Section 766.31(1), Florida

Statutes, provides that where, as here, a claim for compensation

has been approved, "the administrative law judge shall make an

award providing compensation for the following items relative to

such injur y:"

(a) 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 . . . .

* * *

Expenses included under this paragraph shall

be limited to reasonable charges prevailing

in the same community for similar treatment

of injured persons when such treatment is

paid for by the injured person.

(b) 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.

(c) Rea sonable expenses incurred in

connection with the filing of a claim under

ss. 766.301 - 766.316, including reasonable

attorney's fees, which shall be subject to

the approval and award of the administrative

law judge. In determining an award for

attorney's fe es, the administrative law

judge shall consider the following factors:

1. The time and labor required, the

novelty and difficulty of the questions

involved, and the skill requisite to perform

the legal services properly.

2. The fee customarily char ged in the

locality for similar legal services.

3. The time limitations imposed by the

claimant or the circumstances.

4. The nature and length of the

professional relationship with the claimant.

5. The experience, reputation, and

ability of the la wyer or lawyers performing

services.

6. The contingency or certainty of a fee.

5. Here, the parties agreed that Petitioner,

Dajuanda Alexander, as the parent of Elliott L. Davis, III, a

minor, be awarded $100,000.00, to be paid in lump sum, as well

as $10,000.00 for attorney's fees and $500.00 for costs incurred

in pursing the claim. The parties' agreement, being reasonable

in nature and amount is approved; however, Petitioner's claim

for travel - related expenses must, for reasons appearing in the

Find ings of Fact, be denied.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the following benefits are awarded:

1. Petitioner, Dajuanda Alexander, as the parent of

Elliott L. Davis, III, a minor, is awarded $100 ,000.00, to be

paid in lump sum.

2. Petitioner, Dajuanda Alexander, as the parent of

Elliott L. Davis, III, a minor, is also awarded $10,000.00 for

attorney's fees and $500.00 for costs incurred in connection

with the filing of the claim.

3. Petitioner's claim for past expenses is denied.

DONE AND ORDERED this 12th day of July, 2004, in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallaha ssee, 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 July, 2004.

ENDNOTE

1/ All citations are to Florida Statutes (19 99), unless

otherwise indicated.

COPIES FURNISHED :

(via Certified Mail)

Ronald S. Gilbert, Esquire

Morgan, Colling & Gilbert, P.A.

20 North Orange Avenue, Suite 1600

Post Office Box 4979

Orlando, Florida 32802 - 4979

Kenney Shipley, Executive Director

F lorida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32308

Lynn Walker Wright, Esquire

2716 Rew Circle, Suite 102

Ocoee, Florida 34761

Richard L. Allen, Jr. , Esquire

Mateer & Harbert, P.A.

108 East Central Boulevard

Post Office Box 2854

Orlando, Florida 32802 - 2854

Thomas E. Dukes, III, Esquire

Ruth C. Osborne, Esquire

McEwan, Martinez & Dukes, P.A.

Post Office Box 753

Orlando, Florida 32802 - 0753

Ms. Charl ene 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 co py,

accompanied by filing fees prescribed by law, with the

appropriate District Court of Appeal. See § 766.311, Fla. Stat.,

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.