STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CINDY and LARRY EWING, on behalf ) of and natural guardians of ) DEREK DWAYNE EWING, a minor, )

)

Petitioners, )

)

vs. ) CASE NO. 94-0850N

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

)

Respondent. )

)

FINAL ORDER

This cause came on for consideration of the Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq., respondent's response to the petition for benefits, and the parties' stipulation filed April 29, 1994.

STATEMENT OF THE CASE

1. By petition filed February 18, 1994, petitioners, Cindy Ewing and Larry Ewing, on behalf of and natural guardians of Derek Dwayne Ewing, a minor, sought benefits pursuant to Sections

   766.301 - 766.316, Florida Statutes, the "Florida Birth-Related Neurological Injury Compensation Plan."

   
   

2. In reply to such petition, respondent, Florida Birth- Related Neurological Injury Compensation Association (NICA), filed a response contending that the subject claim was not compensable because the infant did not suffer a birth-related neurological injury as defined by law.

   
   

3. By stipulation filed April 29, 1994, petitioners and NICA stipulated as follows:

   
   

   1. That pursuant to Chapter 766.301-766.316, Florida Statutes, a claim was filed on behalf of the above-styled infant against the Florida Birth-Related Neurological Injury Compensation Association (the "Association") on behalf of Derek Ewing, and Cindy Ewing, and Larry Ewing (the "Petitioners") for benefits under chapter 766.301-766.316, F.S.

   2. That a timely filed claim for benefits complying with the requirements of F.S.

      766.305 was filed by the Petitioners and a timely denial was filed on behalf of the Association.

   3. That the Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim.

   4. That Section 766.302(2), Florida Statutes, requires an infant to suffer both a permanent and substantial mental and physical impairment to fall within the definition of a

      "Birth-related neurological injury" making said infant eligible for coverage by the Florida Birth-Related Neurological Injury Compensation Plan.

   5. The parties agree that the infant, Derek Ewing, does not exhibit substantial physical impairment resulting from a brain or spinal cord injury so as to fit within the strict definition of claims covered by the Florida Birth-Related Neurological Injury Compensation Association under Section 766.302(2), Florida Statutes.

   6. That the infant, Derek Ewing was born at St. Mary's Hospital on April 11, 1990 and that the said hospital was a licensed Florida hospital and the attending physicians were participating physicians within the meaning of Chapter 766, Florida Statutes.

      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 (1993).

   
   

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 the 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 infant's birth. Sections 766.302(2), 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. 1/ 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, "birth-related neurological injury" is defined by Section 766.302(2), Florida Statutes, to mean:

   
   

   . . . injury to the brain or spinal cord of a live infant weighing at least 2,500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically

   impaired. This definition shall apply to live births only and shall not include congenital abnormality.

   
   

10. Here, the parties have stipulated that the attending physician who provided obstetric services during the birth of Derek Ewing was a "participating physician" as that term is defined by Section 766.302(7), Florida Statutes, and as that term is used in Sections 766.301 through 766.316, Florida Statutes. However, the parties have further stipulated that Derek has not suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. As noted in the findings of fact, the parties have stipulated that Derek has not suffered a "substantial physical impairment resulting from a brain or spinal cord injury." Accordingly, the subject claim is non-compensable under the Plan. Sections 766.302(2), 766.309(1) and 766.31(1), Florida Statutes.

11. Where, as here, "the hearing officer determines that .

. . the injury alleged is not a birth-related neurological injury

. . . 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 Cindy Ewing an Larry Ewing, on behalf of and natural guardians of Derek Dwayne Ewing, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of May 1994.

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 20th day of May 1994.

ENDNOTE

1/ Where, as here, NICA disputes the claim, the burden rests on the claimant to demonstrate entitlement to compensation. Section 766.309(1)(a), Florida Statutes. See also, Balino v. Department of Health and Rehabilitative Services, 348 So.2d 3489, 350 (Fla. 1st DCA 1977), ("The burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal").

COPIES FURNISHED:

(By certified mail)

Charles C. Powers, Esquire 4365 Northlake Boulevard

Palm Beach Gardens, Florida 33410-6253

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 1528

Tallahassee, Florida 32302

Anthony J. McNicholas, III, Esquire Northbridge Centre, Suite 1600

515 North Flagler Drive

West Palm Beach, Florida 33401

Stephan Le Clainche, Esquire Esperante - 6th Floor

222 Lakeview Avenue

West Palm Beach, Florida 33401

St. Mary's Hospital Legal Department 900 45th Street

West Palm Beach, Florida 33407

Sue Foster, Chief Bureau of Complaints Department of Business

and Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Ms. Tanya Williams

Division of Health Quality Assurance Hospital Section

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Bill O'Neil, Esquire General Counsel Department of Insurance The Capitol, PL-11

Tallahassee, Florida 32399-0300

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 appropriate District Court of Appeal. See, Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So.2d 299 (Fla. 1st DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

=================================================================

DISTRICT COURT ORDER

=================================================================

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOUTH DISTRICT, P. O. BOX 3315, WEST PALM BEACH, FL 33402

LOUIS H. ANDERSON, JR., M.D., et al.

Appellant(s),

vs. CASE NO. 94-01713

L.T. CASE NO. 94-850N

CINDY and LARRY EWING, et al. PALM BEACH

Appellee(s), July 28, 1994

/

BY ORDER OF THE COURT:

ORDERERD that Appellants' July 27, 1994, Notice of Voluntary Dismissal is granted, and the above-styled appeal is hereby dismissed.

I hereby certify that the foregoing is a true copy of the original court order.

MARILYN BEUTTENMULLER CLERK

cc: Charles C. Powers

Anthony J. McNicholas, III Tanya Williams

Bill O'Neil Kenneth J. Miller

Div. of Administrative Hearing Jane Dreusler-Walsh

Paul A. Nugent

Docket for Case No: 94-000850N

Orders for Case No: 94-000850N