STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KRISTIE DEDECKER, as parent and ) natural guardian of KARLIE JO ) DEDECKER, a minor, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2955N

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

)

Respondent. )

)

SUMMARY FINAL ORDER

This cause came on for consideration of the affidavit, filed June 30, 1995, and the order of August 11, 1995, directing that petitioner show good cause in writing, if any she could, as to why a summary final order of dismissal should not be rendered.

STATEMENT OF THE CASE

1. On February 3, 1995, petitioner, Kristie Dedecker, as parent and natural guardian of Karlie Jo Dedecker, a minor, filed a petition with the Division of Administrative Hearings (DOAH) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan). The petition affirmatively averred that on February 12, 1994 the infant, Karlie Jo Dedecker, suffered the injury for which benefits are sought and that the physician providing obstetrical services at birth was Dr. David

   A. Turner.

   
   

2. DOAH served respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), with a copy of the petition on June 14, 1995. In response, NICA filed a motion for summary judgment and/or motion to dismiss, pursuant to Rule 60Q-2.030(1), Florida Administrative Code, on June 28, 1995, averring that David Allen Turner, M.D., was not a "participating physician" as defined by Section 766.302(7), Florida Statutes, and therefore the infant's injuries were not covered under the Plan. To support its motion, NICA filed an affidavit on June 30, 1995, which provided:

   1. I am Judy Duell, Custodian of Records for the Florida Birth-Related Neurological Injury Compensation Association. I have personal and specific knowledge as to all events and matters attested to herein.

      
      

   2. One of my official duties as Custodian of Records is to maintain official records relative to the status of physicians who have timely paid the $5,000.00 assessment prescribed in Section 766.314(4)(c), Fla. Stat. and are therefore entitled to status as "participating physician" in accordance with the Florida Birth-Related Neurological Injury Compensation Plan, ss. 766.301-316, Fla. Stat. (1991).

      
      

   3. That a search of the records of the Association reveals that David Alan Turner, M.D. was not a "participating physician" in the Florida Birth- Related Neurological Injury Compensation Plan as defined in 766.312(7), [(sic) 766.302(7)], Fla. Stat. (1991) on February 12, 1994, the date upon which Dr. David Alan Turner participated in the delivery of the Claimant, Karlie Jo Dedecker, as indicated in the Claimants' Petition for Benefits.

      
      

      Petitioner did not respond to the motion for summary judgment and/or motion to dismiss.

      
      

3. On August 11, 1995, an order to show cause was entered which provided:

   
   

   On June 28, 1995, respondent filed a motion for summary judgment and/or motion to dismiss which averred that the physician providing obstetrical services at birth, David Alan Turner, M.D., "was not [a] participating physician as defined [by law], as he had not paid the assessment required for participating or was not exempt from payment

   at the time the alleged injury occurred." Attached to the motion was an affidavit attesting to the fact that such physician was not a "participating physician" as defined by Section 766.312(7),

   Florida Statutes. To date, petitioners have not responded to the subject motion. Accordingly, it is

   
   

   ORDERED that petitioners are accorded fourteen (14) days from the date of this order to show good cause, if any they can, as to why a summary final order should not be rendered denying their claim.

   00Petitioner did not respond to the order to show cause.

   
   

4. Based on the motion and affidavit of record, it is concluded that there is no genuine issue of fact regarding the status of David Alan Turner, M.D., on February 12, 1994, and that he was not, at that time, 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.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 766.301, et seq; Florida Statutes (1993).

   
   

6. The Florida Birth-Related Neurological Injury 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.

   
   

7. The injured "infant, his personal representative, parents, dependent, 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 infant's birth. Sections 766.032(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 766.350(3), Florida Statutes.

   
   

8. 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 and 766.31, Florida Statutes.

   
   

9. In discharging this responsibility, the Hearing Officer must make the following determination 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 jury 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.

   
   

10. 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. . . .

    
    

11. Here, it is undisputed that the physician providing obstetrical services during the birth of the infant, Karlie Jo Dedecker, was not 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. Accordingly, the subject claim is not compensable under the Plan. Sections 766.309(2) and 766.31(1), Florida Statutes.

    
    

12. 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 Kristie Dedecker, as parent and natural guardian of Karlie Jo Dedecker, a minor, be and the same is hereby dismissed with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 18th day of September 1995.

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 18th day of September 1995.

COPIES FURNISHED:

(By Certified Mail)

Rainey C. Booth, Esquire

316 South Baylen Street, Suite 180 Pensacola, Florida 32501

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 1528

Tallahassee, Florida 32302

Dr. David Alan Turner

Cordova Medical & Dental Center Suite 1, 5120 Bayou Boulevard

Pensacola, Florida 32503

Sacred Heart Hospital Legal Department

5151 North 9th Avenue Pensacola, Florida 32503

Ms. Charlene Willoughby Department of Business

and Professional Regulation Consumer Services Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0750

Ms. Tanya Williams Division of Health Quality

Assurance Hospital Section

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Dan Sumner

Acting General Counsel Department of Insurance The Capitol PL LL

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.

Docket for Case No: 95-002955N

Orders for Case No: 95-002955N