11-003285N Joshua Wilmering And Ashley Wilmering, On Behalf Of And As Parents And Natural Guardians Of Riley Wilmering, Deceased vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, September 13, 2011.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSHUA WILMERING AND ASHLEY )

WILMERING, on behalf of and as )

parents and natural guardians )

of RILEY WILMERING, deceased , )

)

Petitioners , )

)

vs. ) Case No. 11 - 3285N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION A SSOCIATION , )

)

Respondent, )

)

and )

)

BAYFRONT MEDICAL CENTER, INC., )

AND MARILYN W. FUDGE, M.D., )

)

Intervenor s . )

)

FINAL ORDER APPROVIN G STIPULATION AND JOINT PETITION

FOR COMPENSATION OF CLAIM ARISING OUT OF FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY PURSUANT TO CHAPTER 766, FLORIDA STATUTE S

This cause came on for consideration pursuant to s ections

766.304 and 766.305(7), Florida Statutes, upon the Stipu lation

and J oint P etition of the parties, filed September 7, 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 Statu tes,

and a resolution of the exclusive remedy otherwise available as

outlined in c hapter 766.

By the terms of their stipulation, the parties have agreed

that Joshua Wilmering and Ashley Wilmering are the parents and

legal guardians of Riley Wilmering (Ril ey), a deceased minor;

that Riley was born a live infant on or about August 10, 2010,

at Bayfront Medical Center, a "hospital" as defined by section

766.302(6), located i n St. Petersburg , Florida; that Riley's

birth weight exceeded 2,500 grams ; and that Ri ley also died on

August 10, 2010. The parties have further agreed that

Marilyn Fudge , M.D., d elivered obstetrical services at Riley 's

birth, and at all times material hereto, 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 Riley

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 fully advised in the premises, it is

ORDERED that:

1. The Stipulation and J oint P etition of the parties,

filed September 7, 2011, is hereby approved, and the parties are

directed to comply with the provisions thereof.

2. Petitioner s, Joshua Wilmering and Ashley Wilmering, as

the parents and legal guardians of Riley Wilmering, a deceased

minor, are awarded One hundred thousand 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 section

766.31(1)(b)2., all to be paid in lump sum.

3. Petitioners' attorney, Charles T. Moore, Esquire, is

awarded an agreed attorney's fee of Eight thousand five hundred

fifty dollars ($8, 55 0.00) and expenses of F our t housand one

hundred eighty - eight hundred dollars and sixty - nine cents

($ 4,188.69 ), totaling Twelve thousand seven hundred thirty - eight

dollars and sixty - nine cents ($ 12,738.69 ) , in full , for services

rendered in the filing of this claim, also to be paid in lump

sum, forthwith.

4 . Upon payment of the award of One hundred thousand

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

( $ 10,000.00), and past benefits under section 766.31(1)(a), t he

claims of Petitioner s ( C laimant s ) shall be deemed ful ly

satisfied and extinguished. No provision is made for the

payment of future expenses, as Riley is deceased.

5 . The Division of Administrative Hearings retains

jurisdiction over this matter to resolve any disputes , including

but not limited to past expe nses, should disputes arise,

regarding the parties' compliance with the terms of this Final

Order.

DONE AND ORDERED this 13th day of September , 2011 , in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administra tive 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

th is 13th day of September , 2011 .

COPIES FURNISHED :

( Via Certified Mail)

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 1390)

Charles T. Moore, Esquire

Morgan and Morgan, P.A.

One Tampa City Center

201 North Franklin Street, 7th Floor

Tampa, Florida 33602

(Certified Mail No. 7010 3090 0000 0717 1406)

David S. Nelson, Esquire

Barr, Murman and Tonell, P.A.

201 East Kennedy Boulevard, Suite 1700

Tampa, Florida 33602

(Certified Mail No. 7010 3090 0000 0717 1413)

Amy Rice, Acting Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 3239 9 - 3275

(Certified Mail No. 7010 3090 0000 0717 1420)

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 1437)

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. Suc h 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 § 766.31 1, Fla. Stat.,

and Fla. 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.