STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONNA M. STUTMANN, as parent ) and natural guardian of ANTONIO ) JOHN STUTMANN, a minor, )

)

Petitioner, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

Case No. 00-2345N

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by Administrative Law Judge William J. Kendrick, held a final hearing in the above-styled case on February 26, 2001, by video teleconference, with sites in Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: George H. Moss, Esquire

Moss, Henderson, Blanton, Lanier, Kretschmer & Murphy, P.A.

817 Beachland Boulevard Post Office Box 3406

Vero Beach, Florida 32964-3406

For Respondent: W. Douglas Moody, Esquire

Graham, Moody & Sox, P.A.

215 South Monroe Street, Suite 600 Post Office Box 2174

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue in this proceeding is whether obstetrical services were rendered by a "participating physician" during the birth of Antonio John Stutmann.

PRELIMINARY STATEMENT

On June 5, 2000, Donna Stutmann, as the mother and natural guardian of Antonio John Stutmann (Antonio), a minor, filed a petition (claim) with the Division of Administrative Hearings (DOAH) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan).

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on June 6, 2000. NICA reviewed the claim and on July 20, 2000, filed a Motion for Summary Judgment and/or Motion to Dismiss.

The predicate for Respondent's motion was its assertion that the physician who provided obstetrical services during Antonio's birth (Dr. Diane Kelly) was not a "participating physician," as defined by the Plan, since she had not paid the assessment required for participating and was not exempt from payment at the time the alleged injury occurred. Accordingly, Respondent concluded the infant's injuries could not qualify for coverage under the Plan. Sections 766.309(1) and 766.31(1), Florida Statutes.

By order of August 17, 2000, ruling on Respondent's motion was deferred for a period of 45 days to accord Petitioner an opportunity to undertake any discovery she deemed appropriate to test the representations contained in Respondent's motion and supporting affidavit, and to discern whether any other persons participated in the infant's birth who may have been participating physicians in the Plan. The order further provided that Petitioner would file any additional response to Respondent's motion or any motion to amend her claim within 45 days from the date of the order.

Following a number of extensions, Petitioner ultimately filed an Amended Petition on November 6, 2000. In response, Respondent again moved to dismiss the claim based on its perception that Dr. Kelly was not a participating physician and therefore the claim was not compensable under the Plan. By order of January 4, 2001, Respondent's motion was denied; however, since the issue of whether obstetrical services were rendered by a participating physician at birth could be dispositive of the claim, it was resolved to schedule a hearing to address that issue. Such a hearing was held on February 26, 2000.

At hearing, the parties stipulated to the factual matters set forth in paragraphs 1 and 2 of the Findings of Fact.

Petitioner's Exhibit 1 (the medical records attached to the Amended Petition as Exhibit B), Exhibit 2 (the medical records

attached to the Amended Petition as Exhibit C), Exhibit 3 (the medical records attached to the Amended Petition as Exhibit D), Exhibit 4 (the medical records attached to the Amended Petition as Exhibit E), Exhibit 5 (the deposition of Heidar Heshmati, M.D.), and Exhibit 6 (the deposition of Diane Kelly, M.D.), were received into evidence. Respondent's Exhibit 1 (a summary of payments made by Dr. Kelly and others under the Florida Birth- Related Neurological Injury Compensation Plan) was also received into evidence. No witnesses were called, and no further exhibits were offered.

The transcript of the hearing was filed March 26, 2001, and the parties were accorded 10 days from that date to file proposed final orders. Petitioner elected to file such a proposal and it has been duly considered.

FINDINGS OF FACT

Fundamental findings

1. Donna Stutmann is the mother and natural guardian of Antonio John Stutmann, a minor. Antonio was born a live infant on July 2, 1998, at Holmes Regional Medical Center, a hospital located in Brevard County, Florida, and his birth weight exceeded 2,500 grams.

2. The physician providing obstetrical services during Antonio's birth was Diane Kelly, M.D. At the time, Dr. Kelly was a full-time employee of the State of Florida whose practice was

   confined to a county health department (the Brevard County Health Department).

   Dr. Kelly's status under the Plan

   
   

3. Dr. Kelly, also known as Diane Kelly Morrill, M.D., (license number ME0047018) was employed full-time by the State of Florida from 1989 through 1999, and confined her practice to the Brevard County Health Department. During that period, from 1989 through 1997, Dr. Kelly paid the $250 assessment required of all physicians, other than "participating physicians." Section 766.314(4)(b) and (c), Florida Statutes (1989). For the years 1997 and 1998, following an amendment to Subsection 766.314(4)(b)4f, Dr. Kelly, as a full-time employee of the State of Florida whose practice was confined to a county health department, was exempted from payment of the $250 annual assessment. Subsection 766.314(4)(b)4f, Florida Statutes (1997). For the year 2000, following termination of employment with the State of Florida, Dr. Kelly again paid the $250 annual assessment required of all physicians, other than "participating physicians." At no time did Dr. Kelly ever elect to participate in the Plan or pay the assessment of $5,000 required for participation. Consequently, for reasons appearing more fully in the Conclusions of Law which follow, Dr. Kelly was not, at the time of Antonio's birth or at any other time, a participating physician in the Plan.

   CONCLUSIONS OF LAW

   
   

4. 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.

5. The Florida Birth-Related Neurological Injury Compensation 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 next of kin," may seek compensation under the Plan by filing a claim for compensation with the Division of Administrative Hearings. Sections 766.302(3), 766.303(2), 766.305(1), and 766.313, Florida Statutes. The Florida Birth-Related Neurological Injury Compensation Association, 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 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.

   
   

8. 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. 766.303(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.

9. 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 the injury the assessment required for participation in the birth-related neurological injury compensation plan for the year in which the injury occurred . . . .

   
   

10. Pertinent to this case, Section 766.314, Florida Statutes, established certain assessments used to finance the Plan, including the assessment required for participation in the Plan, as follows:

    * * *

    
    

    1. The following persons and entities shall pay into the association an initial assessment in accordance with the plan of operation:

       
       

       * * *

       
       

       1. On or before October 1, 1988, each hospital licensed under chapter 395 shall pay an initial assessment of $50 per infant delivered in the hospital during the prior calendar year, as reported to the Agency for Health Care Administration; provided,

          however, that a hospital owned or operated by the state or a county, special taxing district, or other political subdivision of the state shall not be required to pay the initial assessment or any assessment required by subsection (5) . . . .

          
          

       2. 1. On or before October 15, 1988, all physicians licensed pursuant to chapter 458 or chapter 459 as of October 1, 1988, other than participating physicians, shall be assessed an initial assessment of $250, which must be paid no later than December 1, 1988.

          
          

          * * *

          
          

          1. However, if the physician is a physician specified in this subparagraph, the assessment is not applicable:

             1. A resident physician, assistant resident physician, or intern in an approved postgraduate training program, as defined by the Board of Medicine or the Board of Osteopathic Medicine by rule;

          
          

          * * *

          
          

          f. A physician who is employed full time by the State of Florida and whose practice is confined to state-owned correctional institutions, a county health department, or state-owned mental health or developmental services facilities, or who is employed full time by the Department of Health.

          
          

       3. On or before December 1, 1988, each physician licensed pursuant to chapter 458 or chapter 459 who wishes to participate in the Florida Birth-Related Neurological Injury Compensation Plan and who otherwise qualifies as a participating physician under ss. 766.301-766.316 shall pay an initial assessment of $5,000. However, if the physician is either a resident physician, assistant resident physician, or intern in an approved postgraduate training program, as defined by the Board of Medicine or the Board

    of Osteopathic Medicine by rule, and is supervised by a physician who is participating in the plan, such resident physician, assistant resident physician, or intern is deemed to be a participating physician without the payment of the assessment . . . . (Emphasis added.)

    
    

    As heretofore noted, Subsection 766.314(4)(b)4f was amended, effective July 1, 1997, to exempt physicians employed full-time by the State of Florida and whose practice was confined to a county health department. Previously, that subsection read, as follows:

    f. A physician who is employed full time by the State of Florida whose practice is confined to state-owned correctional institutions and state-owned mental health facilities.

    
    

11. As enacted, the Plan provides for optional (voluntary) participation by physicians who practice obstetrics or perform obstetrical services. To participate, the physicians who practice obstetrics pay a fee of $5,000; all other physicians, whether providing obstetrical services or not, pay a fee of $250.1 Only resident physicians, assistant resident physicians, and interns under the supervision of a participating physician are deemed participating physicians without payment of the $5,000 assessment.

12. As the claimant, the burden rested on Petitioner 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),

    
    

    ("[T]he burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal").

13. Here, the proof demonstrated that the physician who provided obstetrical services at birth was not a "participating physician," as that term is defined by Section 766.302(7), Florida Statutes. Consequently, the proof failed to demonstrate that the claim was compensable under the Plan2. Sections 766.302(7), 766.309(1), and 766.31(1), Florida Statutes.

14. 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 Donna Stutmann, as mother and natural guardian of Antonio John

Stutmann, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 10th day of April, 2001, 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

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2001.

ENDNOTES

1/ Under the Plan, it was contemplated that the initial fees ($5,000 for participating physicians and $250 for all other physicians) would be reviewed on a regular basis and if required to maintain the Plan on an actuarially sound basis would be subject to adjustment. Apparently there has been no need to adjust the contribution rate since it has remained $5,000 for participating physicians and $250 for all other physicians.

2/ Here, contrary to Petitioner's contention, the language chosen by the legislature to define "participating physician" is plain and unambiguous. Consequently, there is no need for any construction or interpretation of the statute, and it is only necessary to give effect to the plain meaning of the statutory terms or provisions. State v. Egan, 287 So. 2d 1 (Fla. 1973).

COPIES FURNISHED:

(By certified mail)

George H. Moss, Esquire

Moss, Henderson, Blanton, Lanier, Kretschmer & Murphy, P.A.

817 Beachland Boulevard Post Office Box 3406

Vero Beach, Florida 32964-3406

Lynn Larson, Executive Director Florida Birth-Related Neurological

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

W. Douglas Moody, Jr., Esquire Graham, Moody & Sox, P.A.

215 South Monroe Street Post Office Box 2174 Tallahassee, Florida 32301

Diane Kelly, M.D.

1350 South Hickory Street Melbourne, Florida 32901

Holmes Regional Medical Center 1350 South Hickory Street Melbourne, Florida 32901

Ms. Charlene Willoughby

Agency for Health Care Administration Consumer Services Unit

Post Office Box 14000 Tallahassee, Florida 32308

Mark Casteel, General Counsel Department of Insurance

The Capitol, Lower Level 26 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: 00-002345N

Orders for Case No: 00-002345N