STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CATINA WATKINS on behalf of and ) as natural guardian of JORDAN ) ZIMBALIST, a minor, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5310N

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

)

Respondent. )

___________________________________)

SUMMARY FINAL ORDER

This cause came on for consideration of respondent's motion for summary judgment and/or motion to dismiss, filed November 9, 1995, and the order of November 13, 1995, according petitioners until November 27, 1995, to respond to respondent's motion.

STATEMENT OF THE CASE

1. On November 1, 1995, petitioner Catina Watkins, as mother and natural guardian of Jordan Zimbalist, 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 Jordan Zimbalist (Jordan) was born August 6, 1993, that Jordan suffered neurological injuries during the course of his birth, and that the physician providing obstetrical services at birth was Dr. Louis Gutierrez.

   
   

2. DOAH served respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), with a copy of the petition on November 2, 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 November 9, 1995, averring that Louis Gutierrez, 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, an affidavit was submitted, 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 Louis Gutierrez, 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 August 6, 1993, the date upon which Dr. Luis Gutierrez participated in the delivery of the

      Claimant, Jordan Zimbalist, as indicated in the Claimants' Petition for Benefits.

      
      

3. On November 13, 1995, an order was entered which provided:

   
   

   By motion served November 6, 1995, respondent requests that a final summary order be rendered in the above-styled case or, alternatively, that the claim be dismissed predicated on its contention that the physician who provided obstetrical services at birth was not a "participating physician" as defined by law.

   The premises considered, it is

   
   

   ORDERED that, pursuant to Rules 60Q-2.016 and 60Q-2.030, Florida Administrative Code,

   petitioners are accorded leave until November 27, 1995, to respond to respondent's motion.

   
   

   Notwithstanding such order, petitioners did not respond to the motion for summary judgment and/or motion to dismiss.

   
   

4. Based on the motion and affidavit of record, it is concluded that there is no genuine issue of fact regarding the status of Luis Gutierrez, M.D., on August 6, 1993, 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 766.305(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 as 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.

   
   

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, Jordan Zimbalist, 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 Catina Watkins, as the mother and natural guardian of Jordan Zimbalist, a minor, be and the same is hereby dismissed with prejudice.

DONE AND ORDERED this 5th day of December 1995 in Tallahassee, Florida.

___________________________________ 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 5th day of December 1995.

COPIES FURNISHED:

(By certified mail)

James J. Traitz, Esquire Freshman, Freshman & Traitz Two Datran Center, Suite 1701 9130 South Dadeland Boulevard Miami, Florida 33156

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association 1435 Piedmont Drive East, Suite D Post Office Box 14567 (32317-4567)

Tallahassee, Florida 32312

Luis Gutierrez, M.D.

10261 Southwest 15th Street Pembroke Pines, Florida 33025

Parkway Regional Hospital Legal Department

160 Northwest 170th Street

North Miami Beach, Florida 33169

Ms. Tanya Williams

Agency for Health Care Administration Division of Health Quality Assurance Hospital Section

2727 Mahan Drive

Tallahassee, Florida 32308

Ms. Charlene Willoughby Department of Business and

Professional Regulation Consumer Services

1940 North Monroe Street Tallahassee, Florida 32399-0784

Dan Sumner, 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.

Docket for Case No: 95-005310N

Orders for Case No: 95-005310N