10-003119N Courtney G. Martinez And Edward Martinez, As Executor De Son Tort Of Madison Bailey Martinez, Deceased vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, October 15, 2010.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COURTNEY G. MARTINEZ AND EDWARD )

MARTINEZ, as executor de son )

tort of MADISON BAILEY )

MARTINEZ, deceased , )

)

Petitioners , )

)

vs. ) Case No. 10 - 3119N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

R espondent . )

)

ORDER APPROVING AMEN DED STIPULATION AND JOINT PETITION

FOR COMPENSATION OF CLAIM ARISING OUT OF FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY PURSUANT TO C HAPTER 766, FLORIDA STATUTES

This cause came on for consideration pursuant to Sections

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

Stipulation and J oint P etition of the parties, filed October 4,

2010, for the entry of an order approving th e 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 Sta tutes.

By the terms of their Amended Stipulation, the parties have

agreed that Courtney G. Martinez and Edward Martinez, were the

parents and legal guardians of the deceased infant, Madison

Bailey Martinez, born a live infant on or about July 29, 2009,

a t Florida Hospital Celebration , a "hospital" as defined by

Section 766.302(6), Florida Statutes ; and that Madison 's birth

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

that Jennifer Swoboda , M.D., delivered obstetrical services at

Madison '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. Finally, by their stipulation,

the parties have agreed that M adison incurred a "birth - related

neurological injury," as that term is defined by Section

766.302(2), Florida Statutes , and died on July 30, 2009 .

After due consideration of the interests of all parties,

and being otherwise fully advised in the premises, i t is

ORDERED that:

1. The Amended Stipulation and J oint P etition, filed

October 4, 2010 , is hereby approved, 1 and the parties are

directed to comply with the provisions thereof.

2. Petitio n ers, Courtney G. Martinez and Edward Martinez,

a s the parents and legal guardians of the deceased minor,

Madison Bailey Martinez, 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 , and Ten thousand

dollars ($10,000.00) pursuant to Secti on 766.31(1)(b)2, the

death benefit.

3. NICA shall forthwith reimburse Edmund A. Normand,

Esquire, attorney for Petitioners, an agreed attorney's fee of

Ten thousand dollars ($10,000.00) and expenses of Five hundred

dollars ($500.00) totaling Ten thousand five hundred dollars

($10,500.00) for services rendered in the filing of this claim .

4 . Upon payment of the award of One hundred thousand

dollars ($100,000.00), the award of Ten thousand dollars

$10,000.00), ( death benefit ) , agreed attorney's fees and

ex penses, and past benefits/expenses, the claims of Petitioners

( C laimants) shall be deemed fully satisfied and extinguished,

except for the issues reserved in paragraph 1 3(a) of the

parties' Amended Stipulation and Joint Petition (the

interpretation of Sect ion 766.31(1)(b)1, Florida Statutes),

including attorney's fees and costs the Petitioners may be

entitled to as a result thereof.

5 . No provision is made under Section 766.31(2), Florida

Statutes, to pay future benefits/expenses because the child,

Madison , is deceased.

6 . With regard to the issues reserved in paragraph 1 3 (a)

of the parties' Amended Stipulation, and with regard to any

dispute regarding past benefits/expenses, a hearing will be

scheduled by a separate notice of hearing to address those

issu es. As for the date of hearing, the parties shall, within

4 5 days of the date of this Order, advise the undersigned

Administrative Law Judge, with specificity, of the matters

remaining in dispute, of several mutually agreeable dates for

hearing, and of th e time required for such hearing.

7 . 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 15th day o f 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) 4 88 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of October , 2010 .

ENDNOTE

1/ A prior Stipulation and Joint Petition filed September 17,

2010, was not approved, and by its terms, is null and void.

COPIES FURNISHED :

(Via certified mail)

Edmund Normand, Esquire

Wooten, Kimbrough, Gibson,

Doherty & Normand, P.A.

Post Office Box 568188

Orlando, Florida 32856 - 8188

(Certified Mail No. 7010 1670 0000 3105 9066)

Kenney S hipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7010 1670 0000 3105 9073)

Florida Hospital Celebration

400 Celebration Place

Ce lebration, Florida 34747

(Certified Mail No. 7010 1670 0000 3105 9080)

Jennifer Swoboda, M.D.

741 Front Street, Suite 210

Celebration, Florida 34747

(Certified Mail No. 7010 1670 0000 3105 9097)

Amy Rice, Acting Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7010 1670 0000 3105 9103 )

Elizabeth Dudek, Deputy Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mai l Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7010 1670 0000 3105 9110 )

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

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 ap peal must be filed within 30 days of

rendition of the order to be reviewed.