12-002871N Jessica Conover And Cliff Conover, Individually And As Parents And Next Friends Of Alexander Conover, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, August 16, 2019.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JESSICA CONOVER AND CLIFF )

CONOVER, individually and as )

parents and next friends of )

ALEXANDER CONOVER, a minor , )

)

Petitioners , )

)

vs. ) Case No. 12 - 2871N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent, )

)

and )

)

BAYFRONT MEDICAL CENTER, INC., )

AND ELENA DOLSKAYA, M.D., )

)

Intervenor s . )

)

FINAL ORDER APPROVING STIPULATION FOR ENTRY OF AWARD

This cause came on for consideration pursuant to sections

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

and Joint Petition for Compensation of Claim Arising out of

Florida Birth - Related Neurological Injury Pursuant to Chapter 766,

Flori da Statutes (Stipulation and Joint Petition), filed with the

Division of Administrative Hearings on March 22 , 2013, for the

entry of an order approving the resolution of a claim for

compensation benefits filed in accordance with the provisions of

chapter 7 66 and a resolution of the exclusive remedy otherwise

available as outlined in chapter 766.

By the terms of their stipulation, Petitioners,

Jessica Conover and Cliff Conover, individually, and as parents

and next friends of Alexander Conover (Alexander), a minor;

Respondent, the Florida Birth - Related Neurological Injury

Compensation Association (NICA); and Intervenors, Bayfront

Medical Center, Inc. , and Elena Dolskaya, M.D. (collectively, the

Parties) , have agreed that Jessica Conover and Cliff Conover are

the parents and legal guardians of Alexander, a minor; that

Alexander was born a live infant on February 20, 2012, at

Bayfront Medical Center, a ÐhospitalÑ as defined by section

766.302(6) located in St. Petersburg, Florida; and that

Alexander's birth wei ght was 2 , 860 grams. The Parties have

further agreed that Dr. Dolskaya, provided obstetrical services

at Alexander's delivery and was a Ðparticipating physicianÑ in

the Florida Birth - Related Neurological Injury Compensation Plan

(Plan), as defined by sect ion 766.302(7). The Parties have

agreed that Alexander suffered a Ðbirth - related neurological

injury,Ñ as that term is defined by section 766.302(2), which was

the sole and proximate cause of Alexander's permanent and

substantial mental and physical impai rments.

Paragraph 12 of the Joint Stipulation and Petition provides:

The Petitioners disagree as to NICA's

interpretation of Section 766.31(1)(b)1,

Florida Statutes, with respect to the payment

of the parental award. Section

766.31(1)(b)1, Florida Stat utes, states:

Periodic payments of an award to

the parents or legal guardians

of the infant found to have

sustained a birth related

neurological injury, which award

shall not exceed $100,000.

However, at the discretion of the

administrative law judge , such

award may be made in a lump sum.

The issues on which the Parties disagree are

whether Section 766.31(1)(b)1, Florida

Statutes, only entitles two parents to a

single parental award of $100,000 in the

aggregate, and, if so, whether that statute

is co nstitutional. At this time, those

issues are currently pending before the

Florida Supreme Court in Samples v. NICA (SC

10 - 1295). The Parties to the instant case

request that this case be abated only with

regard to the above issues until a decision

is rea ched in Samples , so that the

Administrative Law Judge may later award

Petitioners a second $100,000 parental award

if the Samples case should determine that

Section 766.31(1)(b)1 entitles them to it, as

well as any attorney fees and costs that may

be due i n connection with the second parental

award.

It is ORDERED:

1. The Stipulation and Joint Petition filed on March 22,

2013, is hereby approved, and the Parties are directed to comply

with the provisions of the Stipulation and Joint Petition.

2. Petitio ners, Jessica Conover and Cliff Conover, as the

parents and legal guardians of Alexander, a minor, are awarded one

hundred thousand dollars ($100,000.00), pursuant to section

766.31(1)(b)1, to be paid as a lump sum; payment of benefits up to

and including the effective date of the Joint Stipulation and

Petition pursuant to section 766.31(1)(a), subject to the

provisions of paragraph 20 of the Stipulation and Joint Petition;

and payment of future expenses as incurred.

3. Respondent shall pay the McMillen La w Firm, A

Professional Association, attorneys for Petitioners, T en thousand

dollars ($10,000.00) for attorney's fees and S ix hundred thirty -

five dollars and thirty - one cents ($635.31) for expenses, totaling

T en thousand six hundred thirty - five dollars and thirty - one cents

($10,635.31) in full, for services rendered in the filing of

Petitioners' claim.

4. Upon the payment of the award of $100,000.00, attorney's

fees and other expenses totaling $10,635.31 incurred in connection

with the filing of this cla im, and past benefit/expenses, the

claims of Petitioners shall be deemed fully satisfied and

extinguished, except for the issues reserved in paragraph 12 of

the Joint Stipulation and Petition and Respondent's continuing

obligation under section 766.31(2) t o pay future expenses as

incurred.

5. The Division of Administrative Hearings retains

jurisdiction over this matter to resolve any disputes, should they

arise, regarding the partiesÓ compliance with the terms of this

Order and the issues reserved in parag raph 12 of the Joint

Stipulation and Petition.

DONE AND ORDERED this 27th day of March , 2013 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

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 March , 2013 .

COPIES FURNISHED:

(via ce rtified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0003 4463 9054)

Allison C. McMillen, Esquire

M cMillen Law Firm

608 East Central Boulevard

Orlando, Florida 32801

(Certified Mail No. 7011 1570 0003 4463 1325)

David S. Nelson, Esquire

Barr, Murman and Tonell, P.A.

Suite 1700

201 East Kennedy Boulevard

Tampa, Florida 33602

(Certified Mail No. 7011 1 570 0003 4462 1349)

C. Howard Hunter, Esquire

Hill, Ward and Henderson, P.A.

Suite 3700

101 East Kennedy Boulevard

Tampa, Florida 33602

(Certified Mail No. 7011 1570 0003 4462 1356)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of H ealth

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7011 1570 0003 4462 1363 )

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Flori da 32308

(Certified Mail No. 7011 1570 0003 4462 1370 )

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

by appeal to the District Court of Appeal pursuant to section

766.311(1), Florida Statutes. Revi ew proceedings are governed by

the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original notice of administrative appeal

with the agency clerk of the Division of Administrative Hearings

within 30 days of rendition of the order to be reviewed, and a

copy, accompanied by filing fees prescribed by law, with the

clerk of the appropriate District Court of Appeal. See

§ 766.311(1), Fla. Stat., and Fla. Birth - Related Neurological

Injury Comp. Ass'n v. Carreras , 598 So. 2d 29 9 (Fla. 1st DCA

1992).