STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AARON SOLOMON, by and through his mother and next friend, EAKITA PAULK, by and through her mother and next friend, PAULA AUGUSTUS, and

individually,

Petitioners,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

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) Case No. 04-1851N

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SUMMARY FINAL ORDER OF DISMISSAL

This cause came on to be heard on Respondent's Unopposed Motion for Summary Final Order, filed August 10, 2004.

STATEMENT OF THE CASE

1. On May 24, 2004, Aaron Solomon, a minor, by and through his mother and next friend, Eakita Paulk, by and through her mother and next friend Paula Augustus, and individually, 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 May 25, 2004, and on June 16, 2004, NICA filed a Motion for Summary Final Order, pursuant to Section 120.57(1)(h), Florida Statutes (2003). The predicate for NICA's motion was its assertion that, indisputably, the physicians (Andrea Bayer, M.D., and Keith Aqua, M.D.), as well as the certified nurse midwife (Sarah Garlie, C.N.M.), named in the petition as having provided obstetrical services at the infant's birth, were not "participating physician[s]," as defined by law, since they had neither paid the assessment required for participation nor were they exempt from payment of the assessment. § 766.302(7),

   Fla. Stat. (1999)1 Attached to the motion was an affidavit of the Custodian of Records for NICA attesting to the fact that, at the time of the infant's birth, Doctors Bayer and Aqua, as well as Certified Nurse Midwife Garlie, had not paid the assessment required for participation, but failed to negate the likelihood that the physicians were exempt from payment of the assessment. Consequently, by Order of June 28, 2004, NICA's Motion for Summary Final Order was denied, without prejudice.

3. On August 10, 2004, NICA filed an Unopposed Motion for Summary Final Order. Again, the predicate for NICA's motion was its assertion that the physicians (Andrea Bayer, M.D. and

   Keith Aqua, M.D.), as well as the certified nurse midwife (Sarah Garlie, C.N.M.), named in the petition as having provided obstetrical services at the infant's birth, were not

   "participating physician[s]," as defined by law, since they had neither paid the assessment required for participation nor were they exempt from payment of the assessment. Again, attached to the motion was an affidavit of the Custodian of Records for NICA attesting to the fact that, at the time of the infant's birth, Doctors Bayer and Aqua, as well as Certified Nurse Midwife Garlie, had not paid the assessment required for participation, but, again, the affidavit failed to negate the likelihood that the physicians were exempt from payment of the assessment.

   Nevertheless, given the lack of opposition to the motion, a hearing was held on August 12, 2004, to discuss NICA's motion.

4. At hearing, given the noted deficiencies in its affidavit, NICA requested, and without objection, was accorded leave to supplement its motion. Pertinent to the pending motion, NICA's supplement, filed August 18, 2004, included the following allegations:

   1. Pursuant to Section 766.314, Florida Statutes, the only exemption from the requirement that a physician pay the $5,000 NICA assessment to be considered a participating physician in the Plan is as follows:

      
      

      . . . 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. Participating physicians also include any employee of the Board of Regents who has paid the assessment required by this paragraph and paragraph (5)(a), and any certified nurse midwife supervised by such employee. Participating physicians include any certified nurse midwife who has paid 50 percent of the physician assessment required by this paragraph and paragraph (5)(a) and who is supervised by a participating physician who has paid the assessment required by this paragraph and paragraph (5)(a) ]2

      
      

      See § 766.314(4)(c), Florida Statutes.

      
      

   2. Dr. Bayer and Dr. Aqua, who were the attending physicians in this case, are both licensed physicians and are not residents, assistant residents, or interns . . . .

      
      

   3. The only other exemptions specified in the Sections 766.314, Florida Statutes, relate solely to the exemption from payment of the $250 NICA assessment which is paid by all physicians and does not equate with participation in the Plan. See

      § 766.314(4)(b), Fla. Stat.

      
      

   4. Dr. Bayer and Dr. Aqua are not exempt from payment of the $5,000 NICA assessment required for participation in the Plan. Neither Dr. Bayer nor Dr. Aqua paid the requirement assessment so as to be deemed participating physicians in 1999 when Aaron Solomon was born. Thus, they are "not participating physicians" as that term is defined in Section 766.302(7), Florida Statutes.

      
      

   5. As a matter of law, the instant claim is not compensable because there was no participating physician who rendered

      obstetrical services during labor, deliver, or in the immediate post delivery resuscitative period.

      
      

      Attachments to the supplement included an affidavit of the Custodian of Records for NICA, as well as Health Care Provider Information from the Florida Department of Health, which established that Doctors Bayer and Aqua, who were both board- certified in obstetrics and gynecology, were not exempt from payment of the $5,000 assessment required for participation in the Plan because they were not residents, assistant residents, or interns in a postgraduate training program.

5. In their response to NICA's Unopposed Motion for Summary Final Order, Petitioners averred that:

   The Petitioners have no objection to the entry of a Summary Final Order that no participating physician rendered obstetrical services during the labor, delivery or resuscitation in the immediate post-delivery period with regard to AARON SOLOMON. Additionally, Sarah Garlie, CNM, did not qualify as a "participating physician" pursuant to Florida Statutes 766.314(4)(c), nor was she supervised by a participating physician. Because there is no participating physician involved in the birth of AARON SOLOMON this claim is not compensable.

   
   

   Petitioners did not respond to NICA's supplement to its Unopposed Motion for Summary Final Order.

6. Given the record, there is no genuine issue of fact regarding the status of the physicians and certified nurse

   midwife who provided obstetrical services during the infant's birth and they were not, at the time, "participating physician[s]," as that term is defined by Section 766.302(7), Florida Statutes. Consequently, NICA's Unopposed Motion for Summary Final Order is, for reasons appearing more fully in the Conclusions of Law, meritorious.

   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. 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, 766.307, 766.309, and 766.31, 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, "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 exempt 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.

    
    

13. Here, it is undisputed that the physicians alleged to have provided obstetrical services during the birth of the infant, as well as the certified nurse midwife, were not "participating physician[s]" 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. Consequently, NICA's Motion for Summary Final Order should be granted. §§ 120.57(1)(h), 766.309(1) and (2), and 766.31(1), Fla. Stat.

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." § 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 Statement of the Case and Conclusions of Law, it is

ORDERED that the claim for compensation filed by Aaron Solomon by and through his mother and next friend, Eakita Paulk, by and through her mother and next friend,

PAULA AUGUSTUS, and individually, be and the same is dismissed with prejudice.

DONE AND ORDERED this 30th day of August, 2004, 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 30th day of August, 2004.

ENDNOTES

1/ All citations are to Florida Statutes (1999) unless otherwise indicated.

2/ Here, given the infant's date of birth (July 21, 1999), NICA inappropriately referenced the statute as amended, effective June 7, 2002. Ch. 2002-401, § 7, Laws of Fla. According, the statutory language as it existed at the time of the infant's birth has been interlineated.

COPIES FURNISHED:

(Via certified mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association 1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308

Samuel J. Simon, Esquire Cohen & Cohen, P.A.

2525 North State Road 7

Hollywood, Florida 33021

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

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

Andrea Bayer, M.D.

10115 Forrest Hill Boulevard, Suite 400

Wellington, Florida 33414

Keith Aqua, M.D.

560 Village Boulevard, Suite 315 West Palm Beach, Florida 33409

Sara Garlie, C.N.M.

10115 Forrest Hill Boulevard, Suite 400

Wellington, Florida 33414

Wellington Regional Medical Center 10101 Forrest Hill Boulevard

West Palm Beach, Florida 33414

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: 04-001851N

Orders for Case No: 04-001851N