STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL CANO and SUSAN D. CANO, )

as parents and natural guardians ) of TIMOTHY LEE CANO, a minor, )

)

Petitioners, )

)

vs. ) CASE NO. 96-4696N

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

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

This cause came on for consideration of respondent's motion to dismiss, filed October 18, 1996.

STATEMENT OF THE CASE

1. By petition filed October 3, 1996, petitioners, Michael Cano and Susan D. Cano, as parents and natural guardians of Timothy Lee Cano (Timothy), a minor, sought benefits pursuant to Section 766.301, et seq., Florida Statutes, the "Florida Birth- Related Neurological Injury Compensation Plan." The medical records attached to the petition affirmatively reflected that Timothy was born October 6, 1994, at Shands Hospital, Gainesville, Florida, and that his weight at birth was 1,972 grams.

   
   

2. In response to such petition, the respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), filed a motion to dismiss. As the basis for its motion to dismiss, NICA observed that, based on the medical records which accompanied the petition, the claim is not a "birth-related neurological injury" within the meaning of Section 766.302(2), Florida Statutes, inasmuch as the infant, Timothy Lee Cano, weight 1,972 grams at birth, thus failing to meet the statutorily mandated minimum weight requirement of 2,500 grams as set forth in Section 766.302(2), Florida Statutes.

3. By order of October 22, 1996, an order to show cause was rendered which provided:

   
   

   By motion filed October 18, 1996, respondent requests that the subject claim be dismissed. The predicate for such motion is that the medical records attached to the petitioner for benefits reflect that the infant's weight at birth was 1972 grams, which is less than

   the minimum birth weight of 2500 grams required for coverage under the Florida Birth-Related Neurological Injury Compensation Plan. Sections 766.302(2), Florida Statutes. Under the circumstances, it is:

   Ordered that petitioners show good cause in writing, if any they can, within ten (10) days of the date of this order as to why respondent's motion should not be granted.

   
   

4. Petitioners have filed no response to the motion to dismiss or the order to show cause.

   
   

   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, 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 infant's 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.

   
   

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, 766.309 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 has 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. 1/ 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, "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 disability or death caused by genetic or congenital abnormality.

    
    

11. Here, it affirmatively appears from the medical records which accompanied the petition that Timothy's weight at birth was 1,972 grams. Such weight is less than the statutorily mandated minimum weight requirement of 2,500 grams and, therefore, any injury Timothy may have suffered was not a "birth-related neurological injury" as defined as law. Sections 766.320(2) and 766.309(2), Florida Statutes.

    
    

12. Where, as here, the Administrative Law Judge 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 Michael Cano and Susan D. Cano, as parents and natural guardians of Timothy Lee Cano, a minor, be and the same is hereby dismissed with prejudice.

DONE AND ORDERED this 2nd day of December, 1996, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1996.

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 349, 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)

Al J. Cone, Esquire

125 Northeast First Avenue, Suite 2 Ocala, Florida 34470

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

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

Ted N. Saha, M.D.

150 Southeast 17th Street, Suite 602 Ocala, Florida 32671

Shands Hospital Legal Department

1600 Southwest Archer Road Gainesville, Florida 32610

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: 96-004696N

Orders for Case No: 96-004696N