11-003001N Bibi Khan And Michael Devine, Individually And As Parents And Next Friends Of Cyra Devine, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, October 12, 2011.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BIBI KHAN AND MICHAEL DEVINE, )

individually and as parents and )

next friends of CYRA DEVINE, a )

minor , )

)

Petitioners , )

)

vs. ) Case No. 11 - 3001N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

R espondent, )

)

and )

)

ORLANDO HEALTH, INC., d/b/a )

WINNIE PALMER HOSPITAL FOR )

WOMEN & BABIES , AND PETER )

PERRY, M.D., )

)

Intervenor s . )

)

FINAL ORDER AP PROVING 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 Stipulation

and J oint P etition of the parties, filed October 3, 2011, 1 / 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, Bibi Kahn and Michael Devine, are the natural

parents of C yra Devine (Cyra ), a m inor; that Cyra was born a

live infant on June 30, 2007 , at Winnie Palmer Hospital for

Women & Babies, a "hospital," as defined by s ection 766.302(6);

and that Cyra 's birth weight was 4 , 100 grams, exceeding the

statutory 2,500 grams. The parties have further agreed that

Peter Perry, M.D., delivered obstetrical services, and that at

all t imes material hereto, Dr. Perry was a "participating

physician" in the Florida Birth - Related Neurological Injury

Compensation Plan, as defined by s ect ion 766.302(7). Finally,

by their stipulation, the parties have agreed that Cyra suffered

a "birth - related neurological injury," as that term is defined

by s ection 766.302(2).

After due consideration of the interests of all parties,

and being otherwise fu lly advised in the premises, it is

ORDERED that:

1. The Stipulation and Joint Petition of the parties,

filed October 3, 2011 , is hereby approved, and the parties are

directed to comply with the provisions of the Stipulation and

Joint Petition as filed .

2. Petitioners, Bibi Kahn and Michael Devine , as the

parents of Cyra Devine, a minor, are awarded One hundred

thousand dollars ($100,000.00), pursuant to s ection

766.31(1)(b)1., to be paid forthwith in lump sum.

3. Upon payment of the award of One hundred thousand

dollars ($100,000.00), and past benefits (benefits up to and

including the effective date of their Stipulation and Joint

Petition), the claims of Petitioners (claimants) shall be deemed

fully satisfied and extinguished , except for (a) the issues

r eserved in paragraph 12 of the parties' 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 ; (b) future benefits and

expenses pursuant to section 766.31(2); and (c) past attorney's

fees and costs (expenses).

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

the parties' Stipulation and Joint Petition (the potential of a

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

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 60 days of the

date of this Order, advise the undersigned Administrative Law

Judge, with specificity, 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.

5 . By the parties' express agreeme nt, 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. NICA (SC 10 -

1295). The parties are charged with providing th e undersigned

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

rendition.

6 . The Division of Administrative Hearings retains

jurisdiction over this matter to resolve any dispute as to the

interpretation of any provision of the parties' stipula tion, 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 12th day of October , 2011 , 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 the

Division of Administrative Hearings

this 12th day of October , 2011 .

ENDNOTE

1/ It is noted that the parties' Stipulation and Joint Petition

refers, in Paragraph 6, to a petition "and amended petition."

However, there has been no amended petition f iled in the instant

cause. The undersigned assumes the phrase to be a typographical

error, as it does not affect the parties' agreement/stipulation.

COPIES FURNISHED :

(Via Certified Mail)

Allison C. McMillen, Esquire

McMillen Law Firm

608 East Central Boulevard

Orlando, Florida 32801

(Certified Mail No. 7010 3090 0000 0717 1598)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7010 3090 0000 0717 1604)

Bradley Paul Blystone, Esquire

Marshall, Dennehey, Warner, Coleman & Goggin

315 East Robinson Street, Suite 550

Orlando, Florida 32801

(Certified Mail No. 7010 3090 0000 0717 1611)

Robert J. Grace, Jr., Esquire

Stiles, Taylor and Grace, P.A.

Post Office Box 460

Tampa, Florida 33601

(Certified Mail No. 7010 3090 0000 0717 1628)

Am ie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

( Certified Mail No. 7010 3090 0000 0717 1635)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7010 3090 0000 0717 1642)

NOTICE OF RIGH T 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. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such procee dings 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 § 766.311, F la. Stat. , and Fl a. Birth - Related

Neurological Injury Comp . Ass 'n 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.