21-000949N Don Michel And Marie Petit Homme, As Parents And Natural Guardians Of Amber Michel, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, September 23, 2021.

Summary: The settlement reflected in the Stipulation and Joint Petition is approved.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D ON M ICHEL A ND M ARIE P ETIT H OMME ,

A S P ARENTS A ND N ATURAL G UARDIANS OF

A MBER M ICHEL , A M INOR ,

Petitioners ,

vs. Case No. 21 - 0949N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Responden t,

and

F LORIDA H EALTH S CIENCES C ENTER , I NC .,

D / B / A T AMPA G ENERAL H OSPITAL ; K ATIE E.

P ETERSON , A PRN , C NM ; K ARI Z INKOVICH ,

A PRN , C NM ; M & D C ARE , I NC ., D / B / A

W OMEN ' S H EALTH C ARE ; A ND U NIVERSITY

OF S OUTH F LORIDA B OARD OF T RUSTEES ,

Intervenors .

/

F INAL O RDER A PPROVING S TIPULATION

On September 15, 2021, Petitioners and Respondent filed a Stipulation

and Joint Petition for Compensation of Claim Arising Out of F lorida Birth -

Related Neurological Injury Pursuant to Chapter 766, Florida Statutes

(Stipulation and Joint Petition). Petitioners and the Florida Birth - Related

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

approving the resoluti on of the claim for benefits filed in accordance with the

provisions of chapter 766. The Stipulation and Joint Petition does not

mention Intervenors, and does not make a representation whether the

Intervenors agree with or oppose the approval of the Stipul ation and Joint

Petition. However, Intervenors did not oppose the entry of the Partial

Summary Final Order issued July 29, 2021, and have not filed a response

opposing the Stipulation and Joint Petition within the time - frame permitted

by Florida Administra tive Code Rule 28 - 106.204.

P RELIMINARY S TATEMENT

On March 15, 2021, Petitioners, Don Michel and Marie Petit Homme, as

parents and natural guardians of Amber Michel (Amber) , filed a Petition for

Benefits Pursuant to Florida Statute Section 766.301 et seq. (Petition) with

the Florida Division of Administrative Hearings (DOAH). Petitioners

identified Kristen Turner, M.D., as the physician providing obstetrical

services, and Tampa General Hospital as the hospital where Amber was

born. NICA, Dr. Turner, and Tam pa General Hospital were served copies of

the Petition by certified mail, and certified mail receipts indicate that all

parties received the Petition. The Petition does not challenge the notice

provided to Petitioners.

Florida Health Sciences Center, Inc ., d/b/a Tampa General Hospital, as

well as Katie Peterson, APRN, CNM; Kari Zinkovich, APRN, CNM; M&D

Care, Inc., d/b/a WomenÔs Health Care; and University of South Florida

Board of Trustees all filed motions to intervene, which were granted by

Orders date d April 13 and 23, 2021.

On June 15, 2021, NICA responded to the Petition, stating that, based

upon the opinion s of its experts, Amber had suffered a birth - related

neurological injury and that her injury was compensable under the NICA

Plan. NICA requeste d a hearing on the issue of compensability, and on

June 16, 2021, an Order was issued directing the parties to provide available

dates for conducting a hearing and an estimate regarding how long the

hearing would take.

On July 9, 2021, NICA filed a Status Report indicating that the parties

did not believe that a hearing was necessary, and that NICA would be filing

an Unopposed Motion for Summary Final Order, which it did on July 12,

2021. A Partial Summary Final Order was issued on July 29, 2021, finding

th at the childÔs injury was compensable, and directing the parties to resolve,

subject to the undersignedÔs approval, the amount and manner of payment of

an award to Petitioners, or to file a joint status report advising that a hearing

would be required. Aft er requesting and receiving a short extension of time,

the Stipulation and Joint Petition was filed.

F INDINGS OF F ACT

The Partial Summary Final Order issued July 29, 2021, contained

Findings of Fact, which are incorporated by reference. In addition, it is found:

1. Don Michel and Marie Petit Homme are the parents and legal

guardians of Amber, and are the Claimants as that term is defined in section

766.302(3).

2. Amber incurred a Ñbirth - related neurological injuryÒ as that term is

defined in section 766.30 2(2), on or about February 23, 2019, which was the

sole and proximate cause of her injury.

3. Florida Health Services, Inc., d/b/a Tampa General Hospital, is a

hospital located in Tampa, Florida, and is the ÑhospitalÒ as that term is

defined in section 766 .302(6) where Amber was born.

4. Petitioners filed a petition to initiate this claim pursuant to section

766.305, and that Petition is incorporated by reference in its entirety,

including all attachments. Any reference made in this document to NICA

encompa sses, where appropriate, the Florida Birth - Related Neurological

Injury Compensation Plan (the Plan).

C ONCLUSIONS OF L AW

5 . DOAH has jurisdiction over the subject matter and the parties to this

proceeding pursuant to section 766.301.

6 . 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.

C ONCLUSION

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

O RDERED :

1. The Stipulation and Joint Pet ition filed September 15, 2021, is

approved. The parties are directed to comply with the provisions of the

Stipulation and Joint Petition.

2. Petitioners, Don Michel and Marie Petit Homme, as the parents and

natural guardians of Amber Michel, are awarded T wo Hundred and Fifty

Thousand Dollars ($250,000) to be paid to the parents as a lump sum or

periodic payments, as authorized by section 766.31(1)(b).

3. Petitioners are also awarded payment of past benefits and expenses

authorized by section 766.31(1)(a), subject to the provisions of paragraph 19

of the Stipulation and Joint Petition.

4. NICA will pay future expenses as incurred, as authorized by section

766.31(2), and will resolve any dispute with respect to the payment of future

expenses as set forth in p aragraph 22 of the Stipulation and Joint Petition.

5. NICA will resolve any Medicaid liens.

6. NICA will reimburse Scott Borders, Esquire, and the law firm of

Morgan & Morgan, P.A., attorneys for Petitioners, an agreed upon attorneyÔs

fee of Ten Thousand D ollars ($10,000) and expenses of Four Thousand Nine

Hundred and Twenty - Two Dollars and ninety cents ($4,922.90), totaling

Fourteen Thousand Nine Hundred Twenty - Two Dollars and ninety cents

($14,922.90), in full, for services rendered in the filing of this claim.

7. DOAH 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 23rd day of September , 2021 , in Tallahassee,

Leon County, Florida.

S

L ISA S HEARER N ELSON

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of September , 2021 .

C OPIES F URNISHED :

(v ia certified mail)

Amie Rice, Investigation Manager Simone Marstiller , Secretary

Consumer Services Unit Agency for Health Care Administration

Department of Health 2727 Mahan Drive, Mail Stop 1

4052 Bald Cypress Way, Bin C - 75 Tallahassee, Florida 32308

Tallahassee, Florida 32399 - 3275 (Certified No. 7020 0090 0000 8715 2667)

(Certified No. 7020 0090 0000 8715 2674)

Tho mas M. Hoeler, Esquire

Kim Kellum, Esquire Agency for Health Care Administration

Agency for Health Care Administr ation 2727 Mahan Drive, Mail Stop 3

2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308

Tallahassee, Florida 32308 (Certified No. 7020 2450 0002 1970 6326)

(Certified No. 7020 2450 0002 1970 6319)

Kenney Shipley, Executive Director

Scott Borders, Esquire Florida Birth - Related Neurological

Morgan and Morgan, P.A. Injury Compensation Ass ociation

One Tampa Center Suite 1

201 North Franklin Street, 7th Floor 2360 Christopher Place

Tampa, Florida 33602 Tallahassee, Florida 32308

(Certified No. 7020 2450 00 02 1970 6333) (Certified No. 7020 2450 0002 1970 6340)

Andrew R. Hudson, Esquire Gabrielle Osborne, Esquire

La Cava Jacobson & Goodis, P.A. Beytin, McLaughlin, McLaughlin, O'Hara,

501 East Kennedy Boulevard Kinman & Bocchino, P.A.

Tampa, Florida 33602 1706 East Eleventh Avenue

(Certified No. 7020 2450 0002 1970 6357) Tampa, Florida 33605

(Certi fied No. 7020 2450 0002 1970 6364)

Carissa Brumby, Esquire

Beytin, McLaughlin, Mclaughlin, O'Hara, Elizabeth A. Myers, Esquire

Kinman & Bocchino, P.A. Smith Bigman Brock, P.A.

170 6 East Eleventh Avenue 444 Seabreeze Boulevard

Tampa, Florida 33605 Daytona Beach, Florida 32118

(Certified No. 7020 2450 0002 1970 6371) (Certified No. 7020 2450 0002 1970 6388)

N OTICE OF R IGHT T O J UDICIAL R EVIEW

Review of a final order of an adm inistrative 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 no tice 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 Cou rt 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).