19-004319N Estate Of Asmi Gajera, Deceased, By And Through The Natural Parents, Heli Patel, And Ishan Gajera vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, January 24, 2020.

Summary: The stipulation of the parties pursuant to a determination of compensability is approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESTATE of ASMI GAJERA, deceased,

by and through the natural

parents, HELI PATEL, and ISHAN

GAJERA ,

Petitioner s ,

vs. Case No. 19 - 4319N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION ,

Respondent ,

and

ORLANDO HEALTH, INC., d/b/a

WINNIE PALMER HOSPITAL,

Intervenor .

/

FINAL ORDER APPROVING STIPULATIO N

On January 7, 2020, the parties filed a Stipulation and

Joint Petition for Compen sation of Claim Arising Out of Florida

Birth - Related Neurological Injury Pursuant to Chapter 766,

Florida Statutes (Stipulation and Joint Petition). Petitioners,

the Florida Birth - Related Neurological Injury Compensation

Association (NICA), and Intervenor , Orlando Health, Inc., d/b/a

Winnie Palmer Hospital (Winnie Palmer Hospital) seek entry of an

order approving the resolution of the claim for benefits filed

in accordance with the provisions of chapter 766, Florida

Statutes.

PRELIMINARY STATEMENT

On Augus t 2, 2019, the estate of Asmi Gajera (Asmi), by and

through Heli Patel and Ishan Gashera, filed a Petition for

Determination of NICA Compensability (Petition), seeking

benefits from NICA, for injuries related to Asmi’s birth. The

Petition identified Dr. T errence Carter, M.D., as the physician

providing obstetrical services, and Winnie Palmer Hospital as

the hospital where Asmi was born.

The Petition was served by certified mail to NICA,

Dr. Carter, and Winnie Palmer Hospital on August 19, 2019. On

August 29, 2019, Winnie Palmer Hospital moved to intervene, and

on August 30, 2019, NICA filed a Motion to Act as Qualified

Representative. Both motions were granted.

On October 8, 2019, NICA filed a Response to Petition for

Benefits, notifying Petitioner that it had determined the claim

to be compensable, and was prepared to provide benefits as

authorized by section 766.31.

On October 17, 2019, an Order Requiring Status Report was

issued, directing the parties to file a s tatus r eport no later

than November 8, 2019, advising whether a hearing on the

Petition would be necessary. When no response was filed, on

January 6, 2020, an Order to Show Cause was issued. That same

date, the Stipulation and Joint Petition was filed.

FINDINGS OF FACT

Based upon Petitio ners and Respondent’s stipulation, the

following facts are found:

1. Heli Patel and Ishan Gajera (Petitioners) are the

pare nts and legal guardians of Asmi , and are the “claimants” as

defined by section 766.302(3).

2. Asmi incurred a “birth - related neurol ogical injury”

(the injury) as that term is defined in section 766.302(2), on

or about November 27, 2018, which was the sole and proximate

cause of Asmi’s death.

3. At birth, Asmi weighed 3,400 grams.

4. Terrance Carter, M.D., rendered obstetrical servic es in

Asmi’s delivery and, at all material times, was a “participating

physician” as defined in section 766.302(7).

5. Asmi was born at Winner Palmer Hospital, which is a

hospital located in Orlando, Florida, and is the “hospital” as

that term is defined in section 766.302(6).

6. Asmi died on December 1, 2018.

7. Petitioners filed a petition pursuant to section

766.305, seeking compensation from NICA, and that Petition is

incorporated by reference in its entirety, including all

attachments. Any referenc e made within this document to NICA

encompasses, where appropriate, the Florida Birth - Related

Neurological Injury Compensation Plan (the Plan).

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

proceeding pursuant to section 766.301.

9. Section 766.305(7) requires the presiding

administrative law judge to approve the settlement of any claim

where NICA determines that the injury is compensable.

CONCLUSION

Based upon the Findings o f Fact and Conclusions of Law, it

is

ORDERED:

1. The Stipulation and Joint Petition filed January 7,

2020, is approved, and the parties are directed to comply with

the provisions of the Stipulation and Joint Petition.

2. Petitioners, Heli Patel and I shan Gajera, as parents

and natural guardians of Asmi Gajera, are awarded one hundred

thousand dollars ($100,000.00), to be paid in a lump sum,

pursuant to section 766.31(1)(b)1., and a ten thousand dollar

($10,000.00) death benefit authorized by section 7 66.31(1)(b)2.

Petitioners are also awarded payment of benefits for past

expenses as authorized by section 766.31(1)(a), subject to the

provisions of paragraph 20 of the Petition and Joint

Stipulation.

3. NICA will reimburse Richard Bates, Esquire, attor ney

for Petitioners, an agreed - upon attorney’s fee of Twelve

Thousand Five Hundred Dollars ($12,500.00) and expenses of Four

Thousand Eight Hundred Twenty - Six Dollars and Seventy - Eight

Cents ($4,826.78), totaling in full Seventeen Thousand Three

Hundred Tw enty - Six Dollars and Seventy - Eight Cents ($17,326.78),

for services rendered in this proceeding.

4. Upon payment of the award of $100,000, the death

benefit of $10,000, benefits/expenses as outlined in paragraph

20 of the Joint Petition and Stipulation, and payment of the

attorney’s fees and costs awarded to Petitioners’ counsel,

Petitioners’ claims shall be deemed fully satisfied and

extinguished.

5. The Division of Administrative Hearings retains

jurisdiction over this matter to resolve any disputes, should

they arise, regarding the parties’ compliance with the terms of

this Order.

DONE AND ORDERED this 2 4th day of January , 2020 , in

Tallahassee, Leon County, Florida.

LISA SHEARER NELSON

Administrative Law Judge

Di vision 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 2 4th day of Ja nuary , 2020 .

COPIES FURNISHED:

(via certified mail)

Richard W. Bates, Esquire

Morgan & Morgan, P.A.

Suite 1600

20 North Orange Avenue

Orlando, Florida 32801

(eServed)

(Certified Mail No. 7018 3090 0000 2189 3485)

Kenney Shipley, Executive Director

Flo rida Birth - Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7018 3090 0000 2189 3492)

Joseph P. Menello, Esquire

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

Suite 1000

390 North Orange Avenue

Orlando, Florida 32801

(eServed)

(Certified Mail No. 7018 3090 0000 2189 3508)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3 275

(Certified Mail No. 7018 3090 0000 2189 3515)

Mary C. Mayhew , Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7018 3090 0000 2189 3522)

Terrence Carter, M.D.

Suit e 103

22 Lake Beauty Drive

Orlando, Florida 32806

(Certified Mail No. 7018 3090 0000 2189 3539)

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 se ction 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 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 Inju ry Comp. Ass'n v. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).