21-002005N Jasmine And Dwight Ebron, Individually And As Parents And Natural Guardians Of Kyrie Ebron, Minor Child vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, November 22, 2021.

Summary: Final Order issued based on stipulation that child suffered birth-related neurological injury.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

J ASMINE A ND D WIGHT E BRON ,

I NDIVIDUALLY A ND A S P ARENTS A ND

N ATURAL G UARDIANS OF K YRIE E BRON ,

M INOR C HILD , Case No. 21 - 2005N

Petitioners ,

vs.

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent,

and

W AYNE C OHEN , M.D . , A NGELA V .

L ENCHINSKY , C .N.M. , S ARASOTA O B / GYN

A SSOCIATE S , P.A., A ND S ARASOTA C OUNTY

P UBLIC H OSPITAL D ISTRICT , D/B/A

S ARASOTA M EMORIAL H OSPITAL ,

Intervenors .

/

F INAL O RDER

On November 17 , 2021, Petitioners, Jasmine and Dwight Ebron

(ÑPetitionersÒ), individually and as parents and natural guardians of Kyrie

Ebron (ÑKyrieÒ), a minor, Respondent, Florida Birth - Related Neurol ogical

Injury Compensation Association (ÑNICAÒ), and Intervenors, Wayne Cohen,

M.D . , Angela V . Lenchinsky, C.N.M., Sarasota OB/GYN Associates, P.A., and

Sarasota County Public Hospital District d/b/a Sarasota Memorial Hospital,

filed a Stipulation and Join t Petition for Compensation of Claim Arising Out

of Florida Birth - Related Neurological Injury Pursuant to Chapter 766,

Florida Statutes (ÑStipulation and Joint Petition Ò). The Parties seek the entry

of an order approving the resolution of the claim for ben efits, consistent with

the provisions of chapter 766, Florida Statutes. 1

F INDINGS OF FACT

Based upon the Stipulation and Joint Petition, the u ndersigned makes the

following Findings of F act:

1. Petitioners are the parents of Kyrie and are the Ñclaimants,Ò as defined

in section 766.302(3), Florida Statutes .

2. Kyrie suffered a Ñbirth - related neurological injuryÒ (ÑInjuryÒ), as defined

in section 766.302(2), on or about March 23, 2020 .

3. At birth, Kyrie weighed in excess of 2,500 grams.

4. Angela Lenchinsk i, C.N.M. (ÑMidwife LenchinskiÒ), rendered obstetrical

services in the delivery of Kyrie under the supervision of Wayne Cohen, M.D.

Neither Midwife Lenchinski nor Dr. Cohen were participating physicians at

the time of the delivery. However, Sarasota Memori al HospitalÔs (ÑHospitalÒ)

OB hospitalist, Francisco Battaglia, M.D., also provided obstetrical services

in the delivery of Kyrie and was at all material times a Ñparticipating

physician,Ò as defined in section 766.302(7).

5. The Hospital , located in Saras ota , Florida, is the Ñhospital,Ò as defined

in section 766.302(6), where Kyrie was born.

6. On May 25, 2021 , Petitioners filed a petition seeking compensation

from NICA, pursuant to section 766.305. 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).

1 All references to the Florida Statutes are to the 2021 version.

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 .

8. Pursuant to section 766.305, the presiding administrative law judge

may approve the settlement of any claim wher e 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:

9 . The Stipulation and Joint Petition, filed on November 17, 2021, is

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

10. Petitioners are awarded Two Hundred Fifty Thousand Dollars

($250,000.00), to be paid as a lump sum, pursuant to section 766.31(1)(d)1.a.

Petitioners are also awarded payment of benefits as authorized in section

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

and Joint Petition.

11. NICA will reimburse Armando T. Lauritano, Esquire, counsel for

Petitioners, an agreed - upon attorneyÔs fee of Twelve Thousand Five H undred

Dollars ($12,500.00) and expenses of Three Thousand Seven Hundred and

Seventy - Eight Dollars and Sixty - One Cents ($ 3,778.61 ), totaling Sixteen

Thousand Two Hundred and Seventy - Eight Dollars and Sixty - One Cents

($16,278.61) in full, for services rende red in the filing of this claim.

12. Upon the payment of the award of $250,000.00, past benefits/expenses,

and the total attorneyÔs fees and expenses awarded to PetitionersÔ counsel,

PetitionersÔ claims alleged in their Petition shall be deemed fully sati sfied

and extinguished, except for NICAÔs continuing obligation to pay future

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

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

should they arise, regarding the compliance with the terms of this Order.

D ONE A ND O RDERED this 22nd day of November, 2021, in Tallahassee,

Leon County, Florida .

S

A NDREW D. M ANKO

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

File d with the Clerk of the

Division of Administrative Hearings

this 22nd day of November , 2021 .

C OPIES F URNISHED :

(via 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 2450 0000 1058

(Certified No. 7020 2450 0000 1058 51 68 )

5106)

Thomas M. Hoeler, E squire

Kim Kellum, Esquire Agency for Health Care Administration

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308

Tallahassee, Florida 32308 (Certified No. 7020 2450 0000 1058

(Certified No. 7020 2450 0000 1058 51 75 )

5113 )

Armando T. Lauritano, Esquire Kenney Shipley, Executive Director

Morgan & Morgan Florida Birth - Related Neurological

201 North Franklin Street , 7 th Floor Injury Compensation Association

Tampa, Florida 33602 P ost Office Box 14567

(Certified No. 7020 2450 0000 1058 Tallahassee, Florida 32317

5120 ) (Certified No. 7020 2450 0000 1058

5182)

Jennifer L. Grosso, Esquire

Bentley Law Firm, P.A. Tana D. Storey, Esquire

783 South Orange Avenue , Third Floor Rutledge Ecenia, P.A.

Sarasota, Florida 34236 119 South Monroe Street , Suite 202

(Certified No. 7020 2450 0000 1058 Tallahassee, Florida 32301

51 37 ) (Certified No. 7020 2450 0000 1058

5199)

Ralph L. Marchbank, Esquire

Dickinson & Gibbons, P.A. Angela Lench insky, CNM

401 North Cattlemen Road , Suite 300 Sarasota Memorial Hospital

Sarasota, Florida 34232 1700 South Tamiami Trial

(Certified No. 7020 2450 0000 1058 Sarasota, Florida 34239

51 44 ) (Certified No. 7020 2450 0000 1058

5205)

Sarasota Memorial Hospital

Attention: Risk Management

1700 South Tamiami Trail

Sarasota, Florida 34239

(Certified No. 7020 2450 0000 1058

51 51 )

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 Distri ct 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 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.

B irth - Related Neurological Injury Comp. Ass'n v. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).