19-000927N Cristen Jean Brown (Mother), Individually And As Personal Representative Of The Estate Of Levi Jace Brown (Deceased) vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, July 16, 2020.

Summary: The Stipulation and Joint Petition is approved.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

C RISTEN J EAN B ROWN (M OTHER ),

I NDIVIDUALLY A ND A S P ERSONAL

R EPRESENTATIVE OF T HE E STATE OF L EVI

J ACE B ROWN (D ECEASED ) ,

Petitioner ,

vs. Case No. 19 - 0927N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SS OCIATION ,

Respondent,

and

H EIDI E. D ISALVO , D.O.; M ARIEL C AROLINA

R OTUNDO - P ATINO , D.O.; M ARYANNE

C OLALILLO , M.D.; W OMEN ' S C ARE

F LORIDA ; A ND G ALENCARE , I NC ., D/B/A

B RANDON R EGIONAL H OSPITAL ,

Intervenors .

/

F INAL O RDER

On July 6, 2020, Petitioner and Respondent filed a 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). Petitioner and the Florida Birth - Related Neurological

Injury Compensation Association (NICA) seek entry of an order approving

the resolution of the claim for benefits filed in accordance with the pro visions

of chapter 766. Intervenors, Heidi Disalvo, D.O. ; Mariel Carolina Rotundo -

Patino, D.O. ; MaryAnne Colalilli, M.D. ; WomenÔs Care, Florida ; and

Galencare, Inc., d/b/a Brandon Regional Hospital have not filed an objection

to the Stipulation and Joint P etition, and the time for doing so pursuant to

Florida Administrative Code Rule 28 - 106.204 has passed.

P RELIMINARY S TATEMENT

On February 13, 2019, Petitioner Cristen Jean Brown, Individually and as

personal representative of the Estate of Levi Jace Brown, filed a Petition for

Determination of Jurisdiction of NICA Plan and in the Alternative Petition

for Benefits Pursuant to Florida Statute Section 766.301 et seq. (ÑIn

ProtestÒ)(The Petition). The Petition named Heidi Disalvo , D.O. ; MaryAnne

Colalillo, M.D. ; and Mariel Carolina Rotundo - Patino, D.O., as the physicians

providing obstetrical services, and Brandon Regional Hospital as the facility

where Levi was born. Drs. DiSalvo and Rotundo - Patino moved to intervene

on February 13, 2019, which was granted on M arch 1, 2019.

On February 26, 2019, NICA, all three physicians, and Brandon Regional

Hospital were notified by certified mail tha t the Petition had been filed.

Certified mail return receipts filed with the Div ision indicate that all but

Dr. DiSalvo recei ved the copies of the Petition served by the Division.

However, as noted above, Dr. DiSalvo and Dr. Rotundo - Patino had requested

intervention before the certified copies were sent, so it is clear that they had

notice of the proceeding.

On March 22, 2019, Dr. Colalillo a nd WomenÔs Care filed a motion to

intervene, and the mot ion was granted April 1, 2019. Finally, Galencare, Inc . ,

d/b/a Brandon Regional Hospital petitioned to intervene on April 24, 2019,

and the request was granted on May 7, 2019.

On April 8, 2019, NICA filed a Response to Petition for Benefits, stating

that NICA agreed that the injury was compensable, and offering the benefits

permitted by section 766.31. The same day, NICA moved for a protective

order regarding the confidential documents submitted with the response to

the petition, which was granted by separate O rder.

This case has a lengthy procedural history, and repeating it in this Final

Order will not add anything necessary to the disposition of the proceeding. A

review of the docket reveals the discovery taken, motions filed, and O rders

issued prior to the Stipulation and Joint Petition.

F INDINGS OF F ACT

Based on the stipulation of Petitioner and NICA, which Intervenors have

not challenged, the following facts are found:

1. Cristen Jean Brown is the mother of Levi Jace Brown (Levi) , and is the

ÑClaimantÒ as defined in section 766.302(3).

2. Levi incurred a Ñbirth - related neurological injuryÒ (the injury) as that

term is defined in section 766.302(2), on or about August 28, 2015, whic h was

the sole and proximate cause of his death on September 2, 2015.

3. At birth, Levi weighed 3,190 grams.

4. Heidi E. Disalvo, D.O. and MaryAnne Colalillo, M.D., rendered

obstetrical services in the delivery of Levi and, at all material times, each

was a Ñparticipating physicianÒ as defined in section 766.302(7).

5. Brandon Regional Hospital is a hospital located in Brandon, Florida,

and is the ÑhospitalÒ as that term is defined in section 766.302(6), where Levi

was born.

6. On February 11, 2019, Petitio ner filed the Petition, seeking

compensation from NICA, and that Petition is incorporated by reference in its

entirety, including all attachments. Any reference made within this

document to NICA encompasses, where appropriate, the Florida Birth -

Related Neu rological Injury Compensation Plan (the Plan).

C ONCLUSIONS OF L AW

7. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties to this proceeding pursuant to section 766.301.

8. Section 766.305(7) requires the presi ding administrative law judge to

approve the settlement of any claim where NICA determines that the injury

is compensable.

C ONCLUSION

Based upon the Findings of Fact and Conclusions of Law, it is

ORDERED:

1. The Stipulation and Joint Petition filed July 6, 2020, is approved, and

the parties are directed to comply with the provisions of the Stipulation and

Joint Petition.

2. Petitioner, Cristen Jean Brown, as mother and personal representative

of the Estate of Levi Jace Brown, is awarded One Hundred Thousa nd Dollars

($100,000.00), to be paid as a lump sum as authorized by section 766.31.

3. Petitioner shall also receive from NICA a death benefit for Levi in the

amount of Ten Thousand Dollars ($10,000.00), as authorized by section

766.31, as well as payment of benefits/past expenses pursuant to section

766.31(1)(a), subject to the provisions of paragraph 19 of the Stipulation and

Joint Petition.

4. NICA will reimburse Harold L. Sebring, III, Esquire, and the law firm

of Sebring Law, attorneys for Petitioner, an agreed - upon attorneyÔs fee of Ten

Thousand Dollars ($10,000.00) and expenses of Eighty - Eight Dollars and

Seventy - Three Cents ($88.73), totaling Ten Thousand and Eighty - Eight

Dollars and Seventy - Three Cents ($10,088.73), in full, for services rendered

r elated to the filing of this claim.

5. Upon payment of the award of $100,000.00; the death benefit of

$10,000.00; past benefits/expenses; and payment of attorneyÔs fees and costs

awarded to PetitionerÔs counsel, PetitionerÔs claims will be deemed fully

sa tisfied and extinguished.

6. The Division of Administrative Hearings retains jurisdiction over this

matter to resolve any disputes, should they arise, regarding the partiesÔ

compliance with the terms of this Order.

D ONE A ND O RDERED this 16th day of July , 2020 , in Tallahassee, Leon

County, Florida.

S

L ISA S HEARER N ELSON

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.s tate.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of July , 2020 .

C OPIES F URNISHED :

(via certified mail)

Harold L. Sebring, III, Esquire

Sebring Law, P.A.

Suite 480

1001 3rd Avenue West

Bradenton, Florida 34205

(e Served)

(Certified Mail No. 7015 0640 0001 2706 9389)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7015 0640 0001 2706 9396)

Erin M. Diaz, Esquire

Wicker, Smith, O'Hara, McCoy & Ford, P.A.

Suite 1800

100 North Tampa Street

Tampa, Florida 33602

(eServed)

(Certified Mail No. 7015 0640 0001 2706 9402)

Gabrielle Osborne, Esquire

Beytin, McLaughlin, McLaughli n,

O'Hara, Kinman & Bocchino, P.A.

1706 East Eleventh Avenue

Tampa, Florida 33605

(eServed)

(Certified Mail No. 7015 0640 0001 2706 9419)

Tracy M. Falkowitz, Esquire

Banker Lopez Gassler, P.A.

Suite 1700

501 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

(Certified Mail No. 7015 0640 0001 2706 9426)

Brooke M. Gaffney, Esquire

Smith, Stout, Bigman & Brock, P.A.

Suite 900

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified Mail No. 7015 0640 0001 2706 9433)

Elizabeth A. Myers, Esquire

Smith Bigman Brock, P.A.

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified Mail No. 7015 0640 0001 2706 9440)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7015 0640 0001 2706 9457)

Mary C. Mayhew, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mai l No. 7015 0640 0001 2706 9464)

N OTICE OF R IGHT T O J UDICIAL R EVIEW

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 govern ed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original notice of

administrative appeal with the a gency c lerk 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 299

(Fla. 1st DCA 1992).