STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAGALY N. MARINEZ, on behalf of, as mother and natural guardian of EMMANUEL JARED MARINEZ, a minor, deceased,

Petitioner,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent,

and

ORLANDO REGIONAL HEALTHCARE SYSTEM, INC., d/b/a ORLANDO REGIONAL SOUTH SEMINOLE HOSPITAL,

Intervenor.

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FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by Administrative Law Judge William J. Kendrick, held a hearing in the above-styled case on December 16, 2003.

APPEARANCES

For Petitioner: Ronald S. Gilbert, Esquire

Morgan, Colling & Gilbert, P.A.

20 North Orange Avenue, Suite 1600 Post Office Box 4979

Orlando, Florida 32802-4979

For Respondent: Wilbur E. Brewton, Esquire

Roetzel & Andress, LPA

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

For Intervenor: Susan Savell, Esquire

Gurney & Handley, P.A. Post Office Box 1273

Orlando, Florida 32802-1273 STATEMENT OF THE ISSUES

1. Whether Emmanuel Jared Marinez, a deceased minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).

2. If so, the amount and manner of payment of the parental award, the death benefit, the amount owing for attorney's fees and costs, and the amount owing for past expenses.

PRELIMINARY STATEMENT

On July 11, 2003, Alodia Margarita Gonzalez, as Personal Representative of the Estate of Emmanuel Jared Marinez (Emmanuel), a deceased minor, filed a petition (claim) with the Division of Administrative Hearings (DOAH) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan.

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on July 11, 2003. Thereafter, Petitioner requested, with the agreement of Magaly N. Marinez, leave to file an amended petition, substituting Magaly N. Marinez, as mother and natural

guardian of Emmanuel Jared Marinez, a deceased minor, as the claimant. By order of August 4, 2003, the motion was granted and, consistent with the granting of that motion, the style of the case is hereby amended to reflect the substitution of parties.

Thereafter, on August 19, 2003, Orlando Regional Healthcare System, Inc., d/b/a Orlando Regional South Seminole Hospital, was accorded leave to intervene, and on August 20, 2003, NICA gave notice that it had concluded that the claim was compensable.

Accordingly, a hearing was held on December 16, 2003, to address whether NICA's proposal to accept the claim should be approved and, if so, an appropriate award.

At hearing, the parties stipulated to the factual matters contained in paragraphs 1, 2, 4, and 6 of the Findings of Fact, and Petitioner's Exhibit 1 (the medical records filed with DOAH on July 11, 2003) and Exhibit 2 (the report of Donald Willis, M.D., filed with DOAH on August 25, 2003) were received into evidence. No witnesses were called and no further exhibits were

offered.

FINDINGS OF FACT

Findings related to compensability

1. Magaly N. Marinez is the natural mother of Emmanuel Jared Marinez, a deceased minor. Emmanuel was born a live infant on December 26, 2001, at Orlando Regional South Seminole

   Hospital, a hospital located in Longwood, Florida, and his birth weight exceeded 2,500 grams. Emmanuel expired January 6, 2002, following removal from life support.

2. The physician providing obstetrical services at Emmanuel's birth was Stephen Phillips, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.1

3. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also

   §§ 766.309 and 766.31, Fla. Stat.

   
   

4. Here, the parties have stipulated, and the proof is otherwise compelling, that Emmanuel suffered a severe brain injury caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital that rendered him permanently and substantially mentally and physically impaired and which, following removal from life support, resulted in death. Consequently, the proof demonstrates that Emmanuel suffered a

   "birth-related neurological injury" and, since obstetrical services were provided by a participating physician at birth, the claim is compensable. §§ 766.309(1) and 766.31(1), Fla. Stat.

   Findings related to the award

   
   

5. Where, as here, it has been resolved that a claim qualifies for coverage under the Plan, the administrative law judge is required to make a determination of how much compensation should be awarded. § 766.31(1), Fla. Stat. Pertinent to this case, Section 766.31 provides for an award providing compensation for the following items:

   1. Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, family residential or custodial care, professional residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel. However, such expenses shall not include:

      
      

      1. Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law.

         
         

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   2. 1. Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum.

      
      

      1. Death benefit for the infant in an amount of $10,000.

      
      

   3. Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge . . . .

      
      

6. At hearing, the parties agreed that Petitioner receive a parental award of $100,000.00, to be paid in lump sum; a death benefit for the infant of $10,000.00; an award of $10,500.00 for attorney's fees ($10,000.00) and other expenses ($500.00) incurred in connection with the filing of the claim; and no award for past expenses, since any such expenses have been paid by a collateral source. Such agreement is reasonable, and is approved.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. § 766.301, et seq, Fla. Stat.

8. 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. § 766.303(1), Fla. Stat.

9. The injured "infant, her or 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. §§ 766.302(3), 766.303(2), 766.305(1), and 766.313, Fla. Stat. 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."

   § 766.305(3), Fla. Stat.

   
   

10. 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. § 766.305(6), Fla. Stat.

11. 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.

       
       

       § 766.309(1), Fla. Stat. 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."

       § 766.31(1), Fla. Stat.

       
       

12. Pertinent to this case, "birth-related neurological injury" is defined by Section 766.302(2), 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 postdelivery 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.

    
    

13. Here, it has been established that the physician who provided obstetrical services at Emmanuel's birth was a "participating physician," as that term is defined by the Plan, and that Emmanuel suffered a "birth-related neurological injury," as that term is defined by the Plan. Consequently, Emmanuel's injury qualifies for coverage under the Plan, and Petitioner is

    entitled to an award of compensation. § 766.31(1), Fla. Stat. In this case, the parties have stipulated to an award of compensation, as set forth in paragraph 6 of the Findings of Fact, which was reasonable and approved.

14. Where, as here, the administrative law judge determines that a claim is compensable and makes an award, he is required to immediately send "[a] copy of the award . . . by registered or certified mail to each person served with a copy of the petition under s. 766.305(2)." § 766.31(3), Fla. Stat. Such an award (order) constitutes final agency action subject to appellate court review. § 766.311(1), Fla. Stat.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that the claim for compensation filed by Magaly N. Marinez, as mother and natural guardian of Emmanuel Jared Marinez, a deceased minor, and NICA's proposal to accept the claim as compensable be and the same are hereby approved.

It is FURTHER ORDERED that Petitioner is awarded the following benefits:

1. A parental award of $100,000.00, to be paid in lump sum.

   
   

   § 766.31(1)(b)1, Fla. Stat.

   
   

2. A death benefit for Emmanuel in the amount of

   
   

   $10,000.00. § 766.319(1)(b)2, Fla. Stat.

3. An award of $10,500.00 for attorney's fees ($10,000.00) and other expenses ($500.00) incurred in pursuing the claim.

   § 766.31(1)(c), Fla. Stat.

   
   

4. There being no past medical expenses recoverable under Section 766.31(1)(a), Florida Statutes, no award is made for past medical expenses.

It is FURTHER ORDERED that the Division of Administrative Hearings retains jurisdiction over this matter to resolve any disputes, should they arise, regarding the parties' compliance with the terms of this Final Order. § 766.312, Fla. Stat.

DONE AND ORDERED this 17th day of December, 2003, in Tallahassee, Leon County, Florida.

S

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 17th day of December, 2003.

ENDNOTE

1/ All citations are to Florida Statutes (2003), unless otherwise indicated.

COPIES FURNISHED:

(By certified mail)

Ronald S. Gilbert, Esquire Morgan, Colling & Gilbert, P.A.

20 North Orange Avenue, Suite 1600 Post Office Box 4979

Orlando, Florida 32802-4979

Wilbur E. Brewton, Esquire Roetzel & Andress, LPA

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

Kenney Shipley, Executive Director Florida Birth-Related Neurological

Injury Compensation Association 1435 Piedmont Drive, East, Suite 101 Post Office Box 14567

Tallahassee, Florida 32308-4567

Susan Savell, Esquire

Francis E. Pierce, III, Esquire Gurney & Handley, P.A.

Post Office Box 1273 Orlando, Florida 32802-1273

Stephen Phillips, M.D. Clyde H. Climer, M.D., P.A.

521 East State Road 434, Suite 204 Longwood, Florida 32750

South Seminole Hospital

555 West State Road 434 Longwood, Florida 32750

Ms. Charlene Willoughby Department of Health

4052 Bald Cypress Way, Bin C-75 Tallahassee, Florida 32399-3275

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 the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, 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: 03-002502N

Orders for Case No: 03-002502N