19-006417N Rebecca Rivera And Hector Rivera, Individually And As Natural Parents And Guardians Of Everleigh Rivera, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, April 13, 2020.

Summary: Petitioners, NICA, and Intervenors entered into stipulation as to compensability and ALJ approved award.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

R EBECCA R IVERA A ND H ECTOR R IVERA ,

I NDIVIDUALLY A ND A S N ATURAL P ARENTS

A ND G UARDIANS OF E VERLEIGH R IVERA , A

M INOR ,

Petitioners , Case No. 19 - 6417N

vs.

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCI ATION ,

Respondent,

and

A DVENTIST H EALTH S YSTEM /S UNBELT ,

I NC ., D / B / A W INTER P ARK M EMORIAL

H OSPITAL ; S TEVEN L. D UKES , M.D., AND

W OMEN Ô S C ARE F LORIDA ,

Intervenors .

/

F INAL O RDER

On April 2, 2020, Petitioners Rebecc a Rivera and Hector Rivera,

Individually and as Natural Parents and Guardians of Everleigh Rivera, a

Minor, Respondent Florida Birth - Related Neurological Injury Compensation

Association, and I ntervenors Adventist Health System/Sunbelt Inc., d/b/a

Winter Park Memorial Hospital, Steven L. Dukes, M.D., and WomenÔs Care

Florida, filed a Stipulation and Joint Petition for Compensation of Claim

Arising Out of Florida Birth - Related Neurological Injury Pursuant to

Chapter 766, Florida Statutes (ÑStipulation and Joint PetitionÒ). The Parties

jointly seek the entry of an order approving the resolution of the claim for

benefits, consistent with the provisions of chapter 766, Florida Statutes. 1

F INDINGS OF F ACT

Based upon the Stipulation and Joint Petition, the undersigned makes the

following findings of fact:

1. Rebecc a Rivera and Hector Rivera (Ñ Petitioners Ò) are the parents and

legal guardians of Everleigh Rivera ( Ñ Everleigh Ò ) and are the Ñclaimants,Ò as

defined in s ection 766.302(3), Florida Statutes.

2. Everleigh suffered a Ñ birth - related neurological injury Ò ( Ñ Injury Ò ) , as

defined in s ection 766.302(2), on or about February 16, 2018 . The Injury

solely and proximately caused Everleigh Ô s current medical condition.

3. At bi rth , Everleigh weighed 3400 grams.

4. Steven Dukes, M.D., rendered obstetrical services in the delivery of

Everleigh and, at all material times, was a Ñ participating physician ,Ò as

defined in s ection 766.302(7) .

5. Adventist Health Syste m/Sunbelt, Inc., d/b/a Winter Park Memorial

Hospital (Ñ Advent Health Winter Park Ò) , located in Orlando, Florida, is the

Ñ hospital, Ò as defined in s ection 766.302(6) , where Everleigh was born .

6. On November 22, 2019, Petitioner s filed a petition seeking

co mpensation from the Florida Birth - Related Neurological Injury

Compensation Association (ÑNICAÒ), pursuant to section 766.305 , Florida

Statutes . The Petition is incorporated herein by reference in its entirety,

including all attachments. Any reference to NI CA made within th at

document encompasses, where appropriate, the Florida Birth - Related

Neurological Injury Compensation Plan ( Ñ Plan Ò ).

1 All references to the Florida Statutes are to the 201 7 version. The relevant provisions of

chapter 766 have not been amended in any way material to this proceeding since 2017 .

C ONCLUSIONS OF L AW

7. The Division of Administrative Hearings (Ñ DOAH Ò) has jurisdiction over

the parties and exclusive j urisdiction over the subject matter of these

proceedings pursuant to sect ion 766.304, Florida Statutes.

8. Pursuant to s ection 766.305 , the presiding administrative law judge

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

injury is compensable. This is such a case.

C ONCLUSION

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

hereby

ORDERED:

1. The Stipulation and Joint Petition, filed on April 2, 2020, is approved

and the parties are directed to comply with th e provisions thereof.

2. Petitioners , Rebecca Rivera and Hector Rivera , as the parents and legal

guardians of Everleigh Rivera, are awarded One Hundred Thousand D ollars

($100,000 .00 ), to be paid to Petitioners as periodic payments, pursuant to

section 766. 31(1)(b), Florida Statutes. Petitioners are also awarded payment

of benefits as authorized in section 766.31(1)(a), subject to the provisions of

paragraph 19 of the partiesÔ Stipulation and Joint Petition.

3. NICA will reimburse Hector More Ô, Esquire, coun sel for Petitioners, an

agreed - upon attorneyÔ s fee of Twelve Thousand Five Hundred D ollars

($12, 500.00) and expenses of F our Thousand Two Hundred Twenty - Six

Dollars and Thirty Cents ($4,226.30), totaling Sixteen Thousand Seven

Hundred Twenty - Six Dollars an d Thirty Cents ($16,726.30) in full , for

services rendered in the filing of this claim.

4. Upon the payment of the award of $100,000.00, past benefits/expenses,

and the total attorneyÔs fees awarded to PetitionersÔ counsel, PetitionersÔ

claims alleged in their Petition shall be deemed fully satisfied and

extinguished, except for NICAÔs continuing obligation to pay future expenses

as incurred, as required by section 766.31(2).

5. DOAH retains jurisdiction over this matter to resolve any disputes,

should th ey arise, regarding the partiesÔ compliance with the terms of this

Order.

D ONE A ND O RDERED this 13th day of April , 2020 , in Tallahassee, Leon

County, Florida.

S

A NDREW D. M ANKO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buil ding

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 13th day of April , 2020 .

C OPIES F URNISHED :

(via certified ma il)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified No. 7019 2280 0000 5623 63 42 )

Hector Antonio More Ô , Esquire

Morg an and Morgan, P.A.

16th Floor

20 North Orange Avenue

Orlando, Florida 32801

(eServed)

(Certified No. 7019 2280 0000 5623 63 59 )

Travase Lloyd Erickson, Esquire

Saalfield Shad, PA

Suite 400

245 Riverside Avenue

Jacksonville, Florida 32202

(eServed)

(Cert ified No. 7019 2280 0000 5623 6 366 )

Gabrielle Osborne, Esquire

Beytin, McLaughlin, McLaughlin,

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

1706 East Eleventh Avenue

Tampa, Florida 33605

(eServed)

(Certified No. 7019 2280 0000 5623 6 373 )

Amie Rice, Investigation M anager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified No. 7019 2280 0000 5623 6 380)

Mary C. Mayhew, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Maha n Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified No. 7019 2280 0000 5623 6 397 )

N OTICE O F 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 pursuan t 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 a gency c lerk of the Division of Administr ative

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).