10-010913N Darcy Brookshier And Sean Brookshier, As Parents And Natural Guardians Of Sera Brookshier, A Deceased Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, May 27, 2011.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DARCY BROOKSHIER AND SEAN )

BROOKSHIER, as parents and )

natural guardians of SERA )

BROOKSHIER, a deceased minor , )

)

Petitioners , )

)

vs. ) Case No. 10 - 10913N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent, )

)

and )

)

SOUTH FLORIDA BAPTIST HOSPITAL )

AND CHUMPHOL MAHAPAURYA, M.D., )

)

Intervenor s . )

)

FINAL ORDER APPROVING 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 for consideration, pursuant to s ections

766.304 and 766.305(7), Florida Statutes, upon the Stipulatio n

and J oint P etition of the parties, filed April 6, 2011, 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 c hapter 766, Florida Statutes,

and a resolution of the exclusive remedy otherwise available as

outlined in c hapter 766.

By the terms of their S tipulation, the parties have agreed

that Petitioners, Darcy Brookshier and Sean Brookshier , are the

natural parents of Sera Brookshier (Sera), a d eceased minor;

that Sera was born a live infant on July 18, 2010 , at South

Florida Baptist Hospital , a "hospital," as defined by s ection

766.302(6); and that Sera's birth weight was 3, 780 grams,

exceeding the statutory 2,500 grams. The parties have furthe r

agreed that Carol S. Thompson, CNM, delivered obstetrical

services under the supervision of Chumphol Mahapaurya, M.D., and

that at all t imes material hereto, Dr. Mahapaurya was a

"participating physician" in the Florida Birth - Related

Neurological Injury Compensation Plan, as defined by s ection

766.302(7). Finally, by their stipulation, the parties have

agreed that Sera suffered a "birth - related neurological injury,"

as that term is defined by s ection 766.302(2), and died on

August 15, 2010 .

After due con sideration of the interests of all parties,

and being otherwise fully advised in the premises, it is

ORDERED that:

1. The Stipulation and Joint Petition of the parties,

filed April 6, 2011 , as clarified by a telephonic hearing and

correspondence , is hereb y approved, and the parties are directed

to comply with the provisions of the Stipulation and Joint

Petition as filed .

2. Petitioners, Darcy Brookshier and Sean Brookshier, as

the parents of Sera Brookshier, a deceased minor, are awarded

One hundred thous and dollars ($100,000.00), pursuant to s ection

766.31(1)(b)1., and a death benefit of Ten thousand dollars

($10,000.00), pursuant to s ection 766.31(1)(b)2., to be paid in

lump sum , at this time .

3. Upon payment of the award of One hundred thousand

dollars ($100,000.00), a death benefit of Ten thousand dollars

($10,000.00), and attorney's fees and other expenses, t he claims

of Petitioners (claimants) shall be deemed fully satisfied and

extinguished , except for the issues reserved in paragraph 12 of

the part ies' Stipulation and Joint Petition ( a potential second

parental award of $100,000.00), including attorney's fees and

costs the Petitioners may be entitled to as a result thereof .

4. No provision is made pursuant to s ection 766.31(2), for

past unsubmitted benefits/expenses which have been waived . N o

provision is made to pay future benefits/expenses because the

child, Sera , is deceased.

5. With regard to the issues reserved in paragraph 12 of

the parties' Stipulati on and Joint Petition (the potential of a

second parental award of $100,000.00) and with regard to any

dispute regarding attorney's fees and other expenses of the

claim , a hearing (or hearings, if the parties elect to address

fees and expenses to date in advance of an appellate ruling in

Samples v. NICA (SC 10 - 1295) ) will be scheduled by separate

notice (s) of hearing (s) to address those issue(s). As for the

date of the hearing (s) , the parties shall , within 35 days of the

date of this Order, advise the undersigned Administrative Law

Judge, with sp ecificity, of the matters remaining in dispute, of

whether they intend to determine fees and costs to date or to

reserve the issue of fees and costs to date until after the

decision in Samples v. NICA (SC 10 - 1295) , and several mutually

agreeable dates for hearing if appropriate.

6. By the parties' express agreement, this case will be

abated as to the issues reserved in paragraph 12 of the parties'

Stipulation and Joint Petition and fees and expenses related

thereto until after the decision in Samples v. NI CA (SC 10 -

1295). The parties are charged with providing the undersigned

with a copy of that appellate decision within 20 days of its

rendition.

7 . The Division of Administrative Hearings retains

jurisdiction over this matter to resolve any dispute as to the

interpretation of any provision of the parties' stipulation, and

to resolve any disputes should they arise, regarding the

parties' compliance with the terms of such stipulation and this

Final Order.

DONE AND ORDERED this 27th day of May , 2011 , in

Tall ahassee, 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 the

Division of Administrative Hearings

this 27th day of May , 2011 .

COPIES FURNISHED :

(Via Certified Mail)

Allison C. McMillen, Esquire

McMillen Law Firm

390 North Orange Avenue, Suite 140

Orlando, Florida 32801

(Certified Mail No. 7010 1670 0000 3097 1406)

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 3097 1413)

David S. Nelson, Esquire

Barr, Murman & Tonell, P.A.

201 East Kennedy Boulevard, Suite 1700

Tampa, Florida 33602

(Certified Mail No. 7010 1670 0000 3097 1420)

Robert J. Grace, Jr., Esquire

Stiles, Taylor & Grace, P.A.

Post Office Box 46 0

Tampa, Florida 33601

(Certified Mail No. 7010 1670 0000 3097 1437)

Susan S. Thompson, CNM

1603 West Reynolds Street

Plant City, Florida 33563

(Certified Mail No. 7010 1670 0000 3097 1444)

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 3097 1451)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tal lahassee, Florida 32308

(Certified Mail No. 7010 1670 0000 3097 1468)

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 s ections 120.68 and 766.311,

Florida Statutes. Re view 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 s ection 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.