STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

GRETTER MONTERO, as parent and ) natural guardian of LISSETT VALLE, ) a minor, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4153N

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

)

Respondent. )

)

SUMMARY FINAL ORDER

This cause came on for consideration of the motion for summary judgment filed September 10, 1996, and the order of September 16, 1996, directing that petitioner show good cause in writing, if any he could, as to why a summary final order of dismissal should not be rendered.

STATEMENT OF THE CASE

1. On September 3, 1996, petitioner, Gretter Montero, as parent and natural guardian of Lissett Valle, 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 September 15, 1995, the infant, Lissett Valle, suffered the injury for which benefits are sought, and that the physicians providing obstetrical services at birth were Susan Fox, D.O., and Scott Dunkin, D.O.

   
   

2. DOAH served respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), with a copy of the petition on September 4, 1996. 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 September 10, 1996, averring that Susan Fox, D.O., and Scott Dunkin, D.O., were not "participating physicians" 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, 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 Scott Dunkin, D.O., and Susan Fox, D.O., were not "participating physicians" in the Florida Birth-Related Neurological Injury Compensation Plan as defined in 766.302(7), Fla. Stat. (1991) on September 15, 1995, the date upon which Dr. Scott Dunkin and Dr. Susan Fox participated in the delivery of . . . Lissett Valle, as indicated in the . . . Petition for Benefits.

      
      

3. On September 13, 1996,, an order was entered which provided:

   
   

   On September 10, 1996, respondent filed a motion for summary judgment and/or motion to dismiss, with supporting affidavit, wherein it averred that the physicians who delivered

   the infant were not "participating physicians, " as defined by law, "as they had not paid the assessment required for participating or were not exempt from payment at the time the alleged injury occurred." Under the circumstances, it is

   ORDERED that petitioners show good cause in writing, if any they can, within fourteen

   (14) days of the date of this order as to

   why respondent's motion should not be granted.

   Petitioner did not respond to the motion for summary judgment or 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 Scott Dunkin, D.O. and Susan Fox, D.O., on September 15, 1995, and that they were not, at that time, "participating physicians" 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.

   
   

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 Administrative Law Judge 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 Administrative Law Judge 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 Administrative Law Judge 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 . . .[administrative law judge], 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 Administrative Law Judge 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 physicians providing obstetrical services during the birth of the infant, Lissett Valle, were not "participating physicians" 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 . . . [administrative law judge] 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 Gretter Montero, as parent and natural guardian of Lissett Valle, a minor, be and the same is hereby dismissed with prejudice.

DONE AND ORDERED this 11th day of October, 1996 in Tallahassee, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1996.

COPIES FURNISHED:

(By certified mail)

David S. Auslander, Esquire Nemiroff and Auslander, P.A. SunTrust Building, Suite 100 777 Brickell Avenue

Miami, Florida 33131

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 14567 Tallahassee, Florida 32317-4567

Susan Fox, D.O.

3520 West 18th Avenue Hialeah, Florida 33012

Scott Dunkin, D.O.

North Shore Medical Center 1100 Northwest 95th Street Miami, Florida 33150

North Shore Medical Center Legal Department

1100 Northwest 95th Street Miami, Florida 33150

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, Plaza Level 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: 96-004153N

Orders for Case No: 96-004153N