STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHELLE BROMPTON, a minor, by )

through her parents and natural ) guardians WENDI BROMPTON and ) ROGER BROMPTON, and WENDI BROMPTON )

and ROGER BROMPTON, individually, )

)

Petitioners, ) CASE NO. 93-5804N

)

vs. )

) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )

)

Respondent. )

)

SUMMARY FINAL ORDER

This cause came on to be heard upon respondent's motion for summary final order, filed pursuant to Rule 60Q-2.030, Florida Administrative Code.

STATEMENT OF THE CASE

l. By petition filed October 6, 1993, petitioners, Michelle Brompton a minor, by and through her parents and natural guardians Wendi Brompton and Roger Brompton, and Wendi Brompton and Roger Brompton, individually, sought benefits pursuant to Sections 766.301-766.316, Florida Statutes, the "Florida Birth- Related Neurological Injury Compensation Plan." Such petition affirmatively averred that Linda D. Green, M.D., Celina Poy-Wing, M.D., Carol McKenzie, M.D., and Andrew H. Krinsky, M.D., were the physicians providing obstetrical services who were present at birth.

1. In response to such petition, respondent, Florida Birth- Related Neurological Injury Compensation Association (NICA), filed a notice of noncompensability and request for evidentiary hearing on compensability. As a basis for its suggestion of noncompensability, NICA asserted that the physicians petitioner averred provided obstetric services were not at the time participating physicians within the meaning of Sections 766.302(7), Florida Statutes.

   
   

2. On October 28, 1993, NICA, pursuant to Rule 60Q-2.030, Florida Administrative Code, filed a motion for summary final order of dismissal, which was supported by affidavits. Such motion and affidavits support the conclusion that Linda D. Green, M.D. Celina Poy-Wing, M.D., Carol McKenzie, M.D., and Andrew H. Krinsky, M.D. the physicians alleged to have provided obstetrical services in this case, were not "participating physicians" as that term is defined by Section 766.302(7).

3. Petitioners did not file a response to the motion for summary final order, and at hearing did not dispute that Linda D. Green, M.D. Celina Poy- Wing, M.D., Carol McKenzie, M.D., and Andrew H. Krinsky, M.D., were not "participating physicians" as that term is defined by law.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject of, these proceedings. Section 766.301, et seq., Florida Statutes, as amended by Chapter 93-251, Laws of Florida.

   
   

5. The Florida Birth-Related Neurological Compensation Plan (the "Plan") was established by the Legislature "for the purpose of providing compensation, irrespective of fault, for birth- related neurological injury claims" relating to births occurring on or after January 1, 1989. Section 766.303(1), Florida Statutes.

   
   

6. The injured "infant, his personal representative, parents, dependents, and next of kin," may seek compensation under the Plan by filing a claim for compensation with the Division of Administrative Hearings within five years of the infants birth. Sections 766.302(3), 766.303(2), 766.305(1), and 766.313, Florida Statutes. The Florida Birth-Related Neurological Injury Compensation Association (NICA), which administers the Plan, has "45 days from the date of service of a complete claim . . . in which to file a response to the petition and to submit relevant written information relating to the issue of whether the injury is a birth-related neurological injury." Section 766.305(3), Florida Statutes.

   
   

7. If NICA determines that the injury alleged in a claim is a compensable birth-related neurological injury, it may award compensation to the claimant, provided that the award is approved by the Hearing Officer to whom the claim has been assigned. Section 766.305(6), Florida Statutes. If, on the other hand, NICA disputes the claim, as it has in the instant case, the dispute must be resolved by the assigned Hearing Officer in accordance with the provisions of Chapter 120, Florida Statutes. Sections 766.304, 766.307, 766.309 and 766.31, Florida Statutes.

   
   

8. In discharging this responsibility, the Hearing Officer must make the following determinations based upon the available evidence:

   
   

   1. Whether the injury claimed is a birth- related neurological injury. If the claimant has demonstrated, to the satisfaction of the hearing officer, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.302(2).

   2. Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital; or by a certified nurse midwife in

      a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital.

      
      

      Section 766.309(1), Florida Statutes. An award may be sustained only if the Hearing Officer concludes that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth." Section 766.31(1), Florida Statutes.

      
      

9. Pertinent to this case, "participating physician" is defined by Section 766.302(7), Florida Statutes, to mean:

   
   

   . . . a physician licensed in Florida to practice medicine who practices obstetrics or performs obstetrical services either full- time or part-time and who had paid or was exempted from payment at the time of injury the assessment required for participation in the birth-related neurological injury compensation plan for the year in which the injury occurred. . .

   
   

10. Here, pursuant to Rule 60Q-2.030, Florida Administrative Code, NICA has filed a motion for summary final order, with supporting affidavits, which facially demonstrates that the medical doctors alleged to have provided obstetric services during the birth of the infant, Michelle Brompton, were not "participating physicians" as that term is defined by Section 766.302(7), Florida Statutes. Petitioners did not file a response in opposition to the motion, and at hearing offered no proof or response in opposition to the motion. Under such circumstances, there exists no despite as to such issue, and the subject claim is non-compensable under the Plan. Sections 766.309(2) and 766.31(1), Florida Statutes.

    
    

11. Where, as here, "the hearing officer determines that . . . obstetrical services were not delivered by a participating physician at the birth, he [is required to] enter an order [to such effect] and . . . cause a copy of such order to be sent immediately to the parties by registered or certified mail." Section 766.309(2), Florida Statutes. Such an order constitutes final agency action subject to appellate court review. Section 766.311(1), Florida Statutes.

CONCLUSION

Based on the foregoing findings of fact and conclusions of law, it is ORDERED that the petition for compensation filed by petitioners, Michelle

Brompton, a minor, by and through her parents and natural guardians Wendi Brompton and Roger Brompton, and Wendi Brompton and Roger Brompton, individually, be and the same is hereby denied with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 13th day of December 1993.

WILLIAM J. KENDRICK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of December 1993.

COPIES FURNISHED:

(By Certified Mail)

Gary M. Cohen, Esquire SHELDON J. SCHLESINGER, P.A.

1212 Southeast Third Avenue Fort Lauderdale, Florida 33316

W. Douglas Moody, Jr., Esquire Post Office Box 11189 Tallahassee, Florida 32302-3189

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 1528

Tallahassee, Florida 32302

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules Of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk Of The Division Of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court Of Appeal, First District, or with the District Court Of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 93-005804N

Orders for Case No: 93-005804N