STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HATTIE WHITE, on behalf of and ) as parent and natural guardian ) of DASIYAH WHITE, a minor, )

)

Petitioner, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

Case No. 04-0442N

)

FINAL ORDER

This cause came on for consideration of the parties' Stipulation of Non-Compensability, filed February 3, 2005.

STATEMENT OF THE CASE

1. On February 9, 2004, Hattie White, on behalf of and as parent and natural guardian of Dasiyah White (Dasiyah), a minor, filed a petition (claim) with the Division of Administrative Hearings (DOAH) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).

2. DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on February 10, 2004, and on November 29, 2004, following a number of extensions of time within which to do so, NICA gave notice that it was of the view that Dasiyah did not suffer a

   "birth-related neurological injury," as defined by Section 766.302, Florida Statutes, and requested that a hearing be set to resolve whether the claim was compensable.

3. By Notice of Hearing, dated December 20, 2004, a hearing was scheduled for February 11, 2005, to resolve whether the claim was compensable; however, on February 3, 2005, the parties filed a Stipulation of Non-Compensability and requested the entry of a final order finding the claim non-compensable. The parties' stipulation included the following agreement:

   Petitioner, Hattie White, as parent and natural guardian of Dasiyah White, and the Florida Birth-Related Neurological Injury Compensation Association ("NICA") (collectively, the "Parties"), hereby stipulate, agree, and jointly petition for entry of a Final Order by the Administrative Law Judge approving this Stipulation and finding the claim non-compensable under the Plan.

   
   

   The Parties hereby stipulate that the facts contained herein are true and shall be considered as established by competent, substantial evidence before the Administrative Law Judge:

   
   

   1. Hattie White (the "Petitioner"), is the parent and legal guardian of Dasiyah White, and is the "Claimant" as defined by Section 766.302(3), Florida Statutes.

      
      

   2. Dasiyah White was born on October 13, 2002.

      
      

   3. At birth, Dasiyah White weighed over 2500 grams.

   4. Jimmy B. Hooper, M.D., rendered obstetrical services in the delivery of Dasiyah White and, at all material times was a "participating physician" as defined in Section 766.302(7), Florida Statutes.

      
      

   5. Bartow Memorial Hospital (the "Hospital"), is a hospital located in Bartow, Florida, and is the "hospital" as that term is defined in Section 766.302(6), Florida Statutes, where Dasiyah, was born.

      
      

   6. The Petitioner has filed a Petition pursuant to Section 766.305, Florida Statutes, seeking compensation from NICA, and that Petition is incorporated herein by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (the "Plan").

      
      

      Based on the foregoing, the Parties further agree as follows:

      
      

   7. The Petitioner and NICA agree that Dasiyah White does not suffer a birth- related neurological injury as that term is defined in Section 766.302(2), Florida Statutes, as Dasiyah does not suffer from an injury due to oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate postdelivery period in a hospital. See attached reports by Michael S. Duchowny, M.D. and Donald C. Willis, M.D., and the medical records for both Hattie White and Dasiyah White.

      
      

   8. By signing this Stipulation, the Petitioner acknowledges that neither she nor Dasiyah are entitled to compensation under the Plan.

      
      

4. Notably, the reports of Doctors Duchowny and Willis, as well as the medical records of Hattie White and Dasiyah White,

   are consistent with the parties' agreement that Dasiyah did not suffer a "birth-related neurological injury" because she did not suffer an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring during the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital." § 766.302(2), Fla. Stat.

   CONCLUSIONS OF LAW

   
   

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

6. 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.

7. 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.

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. § 766.305(6), Fla. Stat. 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. §§ 766.304, 766.309, and 766.31, Fla. Stat.

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. 766.303(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.

10. 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 for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 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.

    
    

11. Here, indisputably, Dasiyah's neurologic impairment was not the result of an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation. Consequently, given the provisions of Section 766.302(2), Florida Statutes, Dasiyah does not qualify for coverage under the Plan. See also

    Humana of Florida, Inc. v. McKaughan, 652 So. 2d 852, 859 (Fla. 2d DCA 1995)("[B]ecause the Plan . . . is a statutory substitute for common law rights and liabilities, it should be strictly construed to include only those subjects clearly embraced within its terms."), approved, Florida Birth-Related Neurological Injury Compensation Association v. McKaughan, 668 So. 2d 974, 979 (Fla. 1996).

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."

§ 766.309(2), Fla. Stat. Such an order constitutes final agency action subject to appellate court review. § 766.311(1), Fla.

Stat.

CONCLUSION

Based on the foregoing Statement of the Case and Conclusions of Law, it is

ORDERED that:

1. The parties' Stipulation of Non-Compensability, filed February 3, 2005, is approved, and the parties are directed to comply with the provisions thereof.

2. The claim for compensation filed by Hattie White, on behalf of and as parent and natural guardian of Dasiyah White, a minor, is dismissed with prejudice.

3. The hearing scheduled for February 11, 2005, is cancelled.

DONE AND ORDERED this 9th day of February, 2005, 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 9th day of February, 2005.

COPIES FURNISHED:

(By certified mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association 1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308

Hattie White

590 North Oak Avenue, Apartment B Bartow, Florida 33830

Wilbur E. Brewton, Esquire Tana D. Storey, Esquire Roetzel & Andress, L.P.A.

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

Jimmy B. Hopper, M.D.

2250 Osprey Boulevard, Suite 102

Bartow, Florida 33830

Bartow Memorial Hospital 2200 Osprey Boulevard

Bartow, Florida 33830

Charlene Willoughby, Director Consumer Services Unit - Enforcement 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: 04-000442N

Orders for Case No: 04-000442N