20-004359N Lisa M. Cutley And Robert Cutley, Individually And As Natural Parents Of Onazjah Cutley, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, January 5, 2021.

Summary: Parties stipulated that baby suffered compensable neurological birth-related injury, resulting in statutory award.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

L ISA M. C UTLEY A ND R OBERT C UTLEY ,

I NDIVIDUALLY A ND A S N ATURAL P ARENTS

OF O NAZJAH C UTLEY , A M INOR ,

(D ECEASED ) Case No. 20 - 4359N

Petitioners ,

vs.

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent .

/

F INAL O RDER

On December 11, 2020 , Petitioners Lisa M. Cutley and Robert Cutley ,

Individually and as Natural Parents of Onazjah Cutley, a Mino r

(ÑPetitionersÒ), and Respond ent Florida Birth - Related Neurological Injury

Compensation Association (ÑNICAÒ) , 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 seek 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 Pe tition, the u ndersigned makes the

following Findings of F act:

1. Petitioners are the natural parents of Onazjah Cutley (Ñ Onazjah Ò) and

are the Ñclaimants,Ò as defined in section 766.302(3), Florida Statutes .

1 All references to the Florida Statutes are to the 2019 versions, none of which have

materially cha nged since 2019 .

2. Onazjah suffered a Ñbirth - related neurologica l injuryÒ (ÑInjuryÒ), as

defined in section 766.302(2), on or about December 2 , 2019. The Injury solely

and proximately caused Onazjah Ôs medical condition , which resulted in her

death on December 14, 2019 .

3. At birth, Onazjah weighed 3, 165 grams.

4. Steph en W. Tobia , M.D., rendered obstetrical services in the delivery of

Onazjah and, at all material times, was a Ñparticipating physician,Ò as

defined in section 766.302(7).

5. Health FirstÔs Holmes Regional Medical Center , in Melbourne , Florida,

is the Ñhosp ital,Ò as defined in section 766.302(6), where Onazjah was born.

6. On September 22, 2020, Petitioners filed a P etition seeking

compensation from NICA , pursuant to section 766.305, Florida Statutes. The

Petition is incorporated herein by reference in its e ntirety, including all

attachments. Any reference to NICA made within that document

encompasses, where appropriate, the Florida Birth - Related Neurological

Injury Compensation Plan (ÑPlanÒ).

C ONCLUSIONS OF L AW

7. The Division of Administrative Hearings (ÑD OAHÒ) has jurisdiction over

the parties and exclusive jurisdiction over the subject matter of these

proceedings pursuant to section 766.304, Florida Statutes .

8. Pursuant to section 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 December 11 , 202 0, is

approved and the parties are directed to comply with the provisions thereof.

2. Petitioners are awarded One Hundred Thousand Dollars ($100,000.00),

to be paid in a lump sum payment , pursuant to section 766.31(1)(b) 1. , Florida

Statutes , payment of a d eath benefit in the amount of Ten Thousand Dollars

($10,000.00), as authorized in section 766.31(1)(b)2 ; and payment of past

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

paragraph 19 of the Stipulation and Joint Petition.

3 . NICA will reimburse Ronald S. Gilbert , Esquire, counsel for Petitioners,

an agreed - upon attorneyÔs fee of Ten Thousand Dollars ($10,000.00) and

expenses of Five Hundred Dollars ($500.00) , totaling Ten Thousand Five

Hundred Dollars ($1 0,500.00 ) in full, f or services rendered in the filing of this

claim.

4. Upon the payment of the award of $100,000.00, the death benefit, past

benefits/expenses, and the total attorneyÔs fees and expenses 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 they ari se, regarding the compliance with the terms of this Order.

D ONE A ND O RDERED this 5th day of January , 2021 , in Tallahassee, Leon

County, Florida.

S

A NDREW D. M ANKO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apa lachee 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 5th day of January , 2021 .

C OPIES F URNISHED :

(via certified mail)

Ronald S . Gilbert, Esquire

Colling Gilbert Wright & Carter, LLC

801 North Orange Avenue , Suite 830

Orlando, Florida 32801

(eServed)

(Certified No. 7020 1290 0001 6309 9591)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensat ion Association

2360 Christopher Place , Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified No. 7020 1290 0001 6309 9607)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified No. 7020 1290 0001 6309 9614)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified No. 7020 1290 0001 6309 9621)

Shevaun L. Harris , Acting Secretary

Heal th Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(Certified No. 7020 1290 0001 6309 9638)

Health FirstÔs Holmes Regional Medical Center

Attention: Risk Management

1350 South Hickory Stre et

Melbourne, Florida 32901

(Certified No. 7020 1290 0001 6309 9645)

Stephen W. Tobia, M.D.

1223 Gateway Drive , Suite 1D

Melbourne, Florida 32901

(Certified No. 7020 1290 0001 6309 9669)

N OTICE O F R IGHT T O J UDICIAL R EVIEW

Review of a final order o f 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 ori ginal 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 Dist rict 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).