09-002532N Nikki Smith, As Mother And Natural Guardian Of Nyhkia Lewis, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, October 8, 2010.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NIKKI SMITH, as mother and )

natural guardian of NYHKIA )

LEWIS, a minor , )

)

Petitioner , )

)

vs. ) Case No. 09 - 2532N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent, )

)

and )

)

ST. PETERSBURG GEN ERAL )

HOSPITAL, )

)

Intervenor . )

)

ORDER APPROVING STIP ULATION AND JOINT PE TITION

FOR COMPENSATION OF CLAIM ARISING OUT OF FLORIDA BIRTH - RELATED

NEUROLOG ICAL INJURY PURSUANT TO CHAPTER 766, FLOR IDA STATUTES

This cause came on for consideration pursuant to Sections

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

and J oint P etition of the parties, filed October 1, 2010 , 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 Chapt er 766, Florida Statutes.

By the terms of their stipulation, the parties have agreed

that Nikki Smith is the mother and natural guardian of Nyhkia

Lewis (Nyhkia), a minor; that Nyhkia was born a live infant on

or about April 13, 2006, at St. Petersburg Gen eral Hospital, a

"hospital" as defined by Section 766.302(6), Florida Statutes,

located in St. Petersburg, Florida; and that Nyhkia's birth

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

that Wilfredo Lorenzo, M.D., delivered obstetrical ser vices at

Nyhkia's birth, and at all times material hereto, was a

"participating physician" in the Florida Birth - Related

Neurological Injury Compensation Plan, as defined by Section

766.302(7), Florida Statutes. Fin ally, by their stipulation,

the parties h ave agreed that Nyhkia 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

ORDERE D that:

1. The Stipulation and Joint Petition, filed October 1,

2010, is hereby approved, and the parties are directed to comply

with the provisions thereof. 1

2. Petitioner, Nikki Smith, as the mother and natural

guardian of Nyhkia Lewis, a minor, is awa rded 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 , and

past benefit s/ expenses, the claims of Petitioner ( C laimant)

shall be deemed fully satisfied and extinguished, except for the

issues reserved in the parties' Stipulation and Joint Petition

filed October 1, 2010, including attorney's fees and costs the

Petitioners may b e entitled to as a result thereof, and

Respondent's continuing obligation under Section 766.31(2),

Florida Statutes, to pay future expenses as incurred.

4. With regard to the issues reserved in the parties'

Stipulation, including but not limited to any di spute regarding

past benefits/expenses and attorney's fees and other expenses of

the claim, a hearing will be scheduled by a separate notice of

hearing to address those issues. As for the date of hearing,

the parties shall, within 45 days of the date of t his Order,

advise the undersigned Administrative Law Judge, with

specificity, of the matters remaining in dispute, of several

mutually agreeable dates for hearing, and of the time required

for such hearing.

5. The Division of Administrative Hearings retai ns

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 8th day of October , 2010 , in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

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 t he

Division of Administrative Hearings

this 8th day of October , 2010 .

ENDNOTE

1/ A prior Stipulation and Joint Petition filed May 11, 2010,

was not approved , and by its terms is "null and void" due to

non - approval.

COPIES FURNISHED :

(Via Certified Ma il)

William E. Hahn, Esquire

William E. Hahn, P.A.

310 South Fielding Avenue

Tampa, Florida 33606 - 2225

(Certified Mail No. 7010 1670 0000 3105 8908)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7010 1670 0000 3105 8915)

George Stark, Esquire

708 East Jackson Street

Tampa, Florida 33602

(Certified Mail No. 7010 1670 0000 3105 8922)

Randy J. Ogden, Esquire

Ogden & S ullivan, P.A.

113 South Armenia Avenue

Tampa, Florida 33609

(Certified Mail No. 7010 1670 0000 3105 8939)

Robert J. Grace, Jr., Esquire

Stiles, Taylor & Grace, P.A.

Post Office Box 460

Tampa, Florida 33601

(Certified Mail No. 7010 1670 0000 3105 8946)

Wilfredo Lorenzo, M.D.

Gulfcoast OB/GYN

6700 Crosswind Drive, North

Suite 200A

St. Petersburg, Florida 33710

(Certified Mail No. 7010 1670 0000 3105 8953)

Amy Rice, Acting Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypres s Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7010 1670 0000 3105 8960)

Elizabeth Dudek, Deputy Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Cert ified Mail No. 7010 1670 0000 3105 8977)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this F inal O rder 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

a ppropriate 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

rendi tion of the order to be reviewed.