STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGEL BOSTICK AND JOHN BOSTICK, )

on behalf of and as parents and ) natural guardians of COOPER ) BOSTICK, a minor, )

)

Petitioners, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

Case No. 04-4340N

)

FINAL ORDER

With the parties' agreement, this case was heard on an agreed record.

STATEMENT OF THE ISSUE

At issue is whether Cooper Bostick, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).

PRELIMINARY STATEMENT

On December 6, 2004, Angel Bostick and John Bostick, on behalf of and as parents and natural guardians of Cooper Bostick (Cooper), a minor, filed a petition (claim) with the Division of Administrative Hearings (DOAH) for compensation under the Plan.

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on December 7, 2004, and on May 3, 2005, following a number of extensions of time within which to do so, NICA filed its response to the claim, and gave notice that it was of the view that Cooper did not suffer a "birth-related neurological injury," as defined by Section 766.302(2), Florida Statutes, and requested that a hearing be scheduled to resolve whether the claim was compensable.

By Notice of Hearing, dated May 27, 2005, a hearing was scheduled for August 5, 2005, to resolve whether the claim was compensable; however, on July 27, 2005, the parties filed a Pre- Hearing Stipulation, wherein they requested that the claim be resolved on a stipulated record. By Order of August 2, 2005, it was resolved that:

ORDERED that the parties' request is granted, and this case will be resolved on the Parties' Pre-Hearing Stipulation, filed July 27, 2005, and their joint exhibits, to be filed at a later date. The record will be deemed closed when the parties file their joint exhibits, and they are accorded 10 days from that date to file written argument or proposed final orders.

The parties' Joint Exhibits 1-9 were filed August 8, 2005, and the parties were accorded 10 days from that date to file written argument or proposed final orders. Respondent elected to file a proposed final order, and it has been duly considered.

FINDINGS OF FACT

Stipulated findings

1. Angel Bostick and John Bostick are the natural parents of Cooper Bostick, a minor. Cooper was born a live infant on September 23, 2002, at North Florida Regional Medical Center, a licensed hospital located in Gainesville, Florida, and his birth weight exceeded 2,500 grams.

2. The physician providing obstetrical services at Cooper's birth was Eduardo Marichal, 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.

   Coverage under the Plan

   
   

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 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."

   §§ 766.302(2), Fla. Stat. See also §§ 766.309(1) and 766.31(1).

   
   

4. In this case, the parties are in agreement that Cooper did not suffer a "birth-related neurological injury," as defined

   by Section 766.302(2), Florida Statutes. On this issue, Petitioners stated their position, as follows:

   It is the Petitioners' position that Cooper suffered an injury to his brain caused by oxygen deprivation in the course of labor, delivery or resuscitation in the immediate post-delivery period. It is also the Petitioners' position that Cooper has sustained a permanent and substantial mental impairment as a result of the injury to his brain, but the only evidence available to the Petitioners at this time supports the Respondent's position that he has not sustained a permanent and substantial physical impairment. Accordingly, Cooper does not qualify for coverage under the NICA plan. [Pre-Hearing Stipulation, page 2.]

   
   

   In contrast, NICA stated its position, as follows:

   
   

   [I]t is NICA's position that Cooper did not suffer an injury to his brain caused by oxygen deprivation or mechanical injury in the course of labor, delivery or resuscitation in the immediate post delivery period. Furthermore, NICA contends that Cooper does not suffer from a permanent and substantial physical impairment regardless of the timing or etiology of his brain injury, if any. Because the Plan requires both a permanent and substantial mental and physical injury, Cooper does not quality for coverage. [Pre-Hearing Stipulation, page 2.]

   
   

5. Here, consistent with the parties' agreement, the records related to Cooper's birth and subsequent development, including the report of neurologic evaluation (conducted April 15, 2005) by Michael Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital,

   demonstrate that Cooper is not substantially physically impaired. Consequently, for reasons appearing more fully in the Conclusions of Law, the claim is not compensable, and it is unnecessary to resolve the degree of Cooper's mental impairment, if any, or whether Cooper's impairments resulted from a brain injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation, or whether his impairments are attributable to another etiology.

   CONCLUSIONS OF LAW

   
   

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

7. 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. § 766.303(1), Fla. Stat.

8. 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.

9. 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.

10. 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.

11. 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 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.

    
    

12. Here, the proof demonstrated that Cooper was not permanently and substantially physically impaired. Consequently, given the provisions of Section 766.302(2), Florida Statutes, Cooper does not qualify for coverage under the

    Plan. See also Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative

    Hearings, 686 So. 2d 1349 (Fla. 1997)(The Plan is written in the conjunctive and can only be interpreted to require both substantial mental and physical impairment.); 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).

13. 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 Findings of Fact and Conclusions of Law, it is

ORDERED that the claim for compensation filed by

Angel Bostick and John Bostick, on behalf of and as parents and natural guardians of Cooper Bostick, a minor, is dismissed with prejudice.

DONE AND ORDERED this 22nd day of August, 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 22nd day of August, 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

(Certified No. 7099 3400 0010 4399 2260)

Rodney D. McGalliard, Esquire McGalliard & Brady

1216 Northwest 8th Avenue Gainesville, Florida 32601-2947

(Certified No. 7099 3400 0010 4399 2253)

M. Mark Bajalia, Esquire Brennan, Manna & Diamond

76 South Laura Street, Suite 1700 Jacksonville, Florida 32202

(Certified No. 7099 3400 0010 4399 2246)

Eduardo Marichal, M.D.

6440 West Newberry Road, Suite 502

Gainesville, Florida 32605

(Certified No. 7099 3400 0010 4399 2239)

Donald V. Eitzman, M.D.

c/o North Florida Regional Medical Center 6500 Newberry Road

Gainesville, Florida 32605

(Certified No. 7099 3400 0010 4399 2222)

P.J. Jernigan, R.T.

c/o North Florida Regional Medical Center 6500 Newberry Road

Gainesville, Florida 32605

(Certified No. 7099 3400 0010 4399 2215)

Michael Fugate, R.T.

c/o North Florida Regional Medical Center 6500 Newberry Road

Gainesville, Florida 32605

(7099 3400 0010 4399 2208)

North Florida Regional Medical Center 6500 Newberry Road

Gainesville, Florida 32605

(Certified No. 7099 3400 0010 4399 2185)

Charlene Willoughby, Director Consumer Services Unit - Enforcement Department of Health

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

(Certified No. 7099 3400 0010 4399 2192)

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: 04-004340N

Orders for Case No: 04-004340N