07-003011N Valencia Pemberton And Anthony Somersall, On Behalf Of And As Parents And Natural Guardians Of Tyrece O. Somersall, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, June 16, 2008.

Summary: Final Order approving Association`s acceptance of the claim for compensation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VALENCIA PEMBERTON AND ANTHONY )

SOMERSALL, ON BEHALF OF AND AS )

PARENTS AND NATURAL GUARDIANS )

OF TYRECE O. SOMERSALL, A )

MINOR, )

)

Petitioners, )

)

vs. ) Case No. 07-3011N

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

FLORIDA HEALTH SCIENCES CENTER, )

INC., d/b/a TAMPA GENERAL )

HOSPITAL AND BOARD OF TRUSTEES )

FOR THE UNIVERSITY OF SOUTH )

FLORIDA, )

)

Intervenor. )

)

FINAL ORDER APPROVING AMENDED 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 Sections 766.304

and 766.305(7), Florida Statutes, upon the Amended Stipulation

and Joint Petition of the parties, filed June 12, 2008, 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 Valencia Pemberton and Anthony Somersall are the parents

and legal guardians of Tyrece O. Somersall (Tyrece), a minor;

that Tyrece was born a live infant on July 20, 2002, at Tampa

General Hospital, a "hospital" as defined by Section 766.302(6),

Florida Statutes, located in Tampa, Florida; and that Tyrece's

birth weight exceeded 2,500 grams. The parties have further

agreed that Karen L. Bruder, M.D., Odette C. Daley, M.D.,

Kristen Helm, M.D., and Jonathan H. Griner, M.D., delivered

obstetrical services at Tyrece's birth, and at all times

material hereto, were "participating physician[s]" 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 Tyrece 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 Amended Stipulation and Joint Petition of the

parties, filed June 12, 2008, is hereby approved, and the

parties are directed to comply with the provisions thereof.

2. Petitioners, Valencia Pemberton and Anthony Somersall,

as the parents and legal guardians of Tyrece O. Sommersall, a

minor, are awarded One hundred thousand dollars ($100,000.00),

pursuant to Section 766.31(1)(b)1., Florida Statutes, to be paid

in lump sum.

3. Upon payment of the award of One hundred thousand

dollars ($100,000.00), attorney's fees and other expenses of Ten

thousand five hundred dollars ($10,500.00), and past expenses,

the claims of Petitioners (Claimants) shall be deemed fully

satisfied and extinguished, except for Respondent's continuing

obligation under Section 766.31(2), Florida Statutes, to pay

future expenses as incurred.

4. 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 Final Order.

DONE AND ORDERED this 16th day of June, 2008, in

Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of June, 2008.

COPIES FURNISHED :

(Via Certified Mail)

Scott Borders, Esquire

Morgan and Morgan, P.A.

One Tampa Center

201 North Franklin Street, Seventh Floor

Tampa, Florida 33602

(Certified Mail No. 7005 1820 0002 9840 9148)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7005 1820 0002 9840 9155)

Edward J. Carbone, Esquire

Buchanan Ingersoll, P.A.

2500 Suntrust Financial Centre

401 East Jackson Street

Tampa, Florida 33602

(Certified Mail No. 7005 1820 0002 9840 9162)

David C. Banker, Esquire

220 South Franklin Street

Tampa, Florida 33602

(Certified Mail No. 7005 1820 0002 9840 9179)

Robert J. Grace, Jr., Esquire

Stiles, Taylor & Grace, P.A.

Post Office Box 460

Tampa, Florida 33606

(Certified Mail No. 7005 1820 0002 9840 9186)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7005 1820 0002 9840 9087)

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.