12-003665N Lancia Fontes And Lionel Davila, On Behalf Of And As Parents And Natural Guardians Of, Israel Davila-Fontes, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, April 18, 2013.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LANCIA FONTES AND LIONEL )

DAVILA, on behalf of and as )

parents and natural guardians )

of, ISRAEL DAVILA - FONTES, a )

minor , )

)

Petitioners , )

)

vs. ) Case No. 12 - 3665N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION AS SOCIATION , )

)

Respondent, )

)

and )

)

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

WINNIE PALMER HOSPITAL FOR )

WOMEN & BABIES AND PAMELA )

CATES - SMITH, 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, Florida Statutes (Stipulation and Joint Petition), filed

with the Division of Administrative Hearings on April 9, 2013,

for the entry of an order approving the resolution of a claim

for compensatio n benefits filed in accordance with the

provisions of chapter 766 and a resolution of the exclusive

remedy otherwise available as outlined in chapter 766.

By the terms of their stipulation, Petitioners,

Lancia Fontes and Lionel Davila on behalf of and as p arents and

natural guardians of Israel Davila - Fontes, a minor, and

Respondent, the Florida Birth - Related Neurological Injury

Compensation Association (NICA) have agreed that Lancia Fontes

and Lionel Davila are the parents and legal guardians of Israel

Davi la - Fontes (Israel), a minor; that Israel was born a live

infant on or about February 26, 2011, at Winnie Palmer Hospital

for Women and Babies, a ÐhospitalÑ as defined by section

766.302(6) located in Orlando, Florida; and that Israel's birth

weight exceede d 2,500 grams. The Parties have further agreed

that Pamela Cates - Smith, M.D., provided obstetrical services at

Israel's delivery and was a Ðparticipating physicianÑ in the

Florida Birth - Related Neurological Injury Compensation Plan, as

defined by section 766.302(7). The Parties have agreed that

Israel 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 Israel 's permanent and substantial mental and

physical impairments.

Pa ragraph 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 Statutes, 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 m ay 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 constitutional. 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 reached in Sample s , 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 in connection w ith the second

parental award.

It is ORDERED:

1. The Stipulation and Joint Petition filed on April 9,

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

with the provisions of the Stipulation and Joint Petition.

2. Petitioners, Lancia Fon tes and Lionel Davila, as the

parents and legal guardians of Israel Davila - Fontes, a minor, are

awarded one hundred thousand dollars ($100,000.00), pursuant to

section 766.31(1)(b)1, to be paid as periodic payments and for

use for home, vehicle, or related expenses; 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 Hector More, Esquire, attorney for

Petitioners, t en thousand dollars ($10,000.00) for attorney's

fees and t wo thousand four hundred nine dollars and thirty cents

($2,409.30) for expenses, totaling t welve thousand four hu ndred

nine dollars and thirty cents ($12,409.30) 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 $12,409.30 incurred in

connection with the filing of this claim, 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) to 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 issue s reserved in paragraph 12 of the Joint

Stipulation and Petition.

DONE AND ORDERED this 18th day of April, 2013, in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Administr ative 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 18th day of April , 2013 .

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. 7012 3050 0000 1251 9743)

Hector Anto nio More, Esquire

Morgan and Morgan, P.A.

Post Office Box 4979

Orlando, Florida 32802 - 4979

(Certified Mail No. 7012 3050 0000 1251 9750)

Bradley Paul Blystone, Esquire

Marshall, Dennehey, Warner,

Coleman and Goggin

315 East Robinson Street, Suite 550

Orlando, Florida 32801

(Certified Mail No. 7012 3050 0000 1251 9767)

Karissa L. Owens, Esquire

Rissman, Barrett, Hurt,

Donahue and McLain, P.A.

Suite 1500

201 East Pine Street

Orlando, Florida 32801

(Certified Mail No. 7012 3050 0000 1251 9774)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7012 3050 0000 1251 9781)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Ca re Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7012 3050 0000 1251 9798 )

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. Review 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 D ivision 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 299

(Fla. 1st DCA 1992).