STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DORIAN BLAKE, ON BEHALF OF AND ) AS PARENT AND NATURAL GUARDIAN ) OF MARKIA MITCHELL, A MINOR, )

)

Petitioner, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

Case No. 06-1342N

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on to be heard on Respondent's Motion for Summary Final Order, filed November 6, 2006.

STATEMENT OF THE CASE

1. On April 17, 2006, Dorian Blake, on behalf of, and as parent and natural guardian of Markia Mitchell, 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 April 18, 2006, and on September 15, 2006, NICA filed a Motion for Summary Final Order, pursuant to Section 120.57(1)(h), Florida Statutes.1 The predicate for NICA's motion

   was its contention that Markia's birth weight was 2,479 grams, less than the statutory minimum of 2,500 grams required for coverage under the Plan for a single gestation. That motion was addressed by Order of September 20, 2006, as follows:

   ORDERED that Respondent's motion is denied. Bifulco v. State Farm Mutual Automobile Insurance Co., 693 So. 2d 707 (Fla. 4th DCA 1997)(The documents attached to motion for summary judgment could not be considered since they were not sworn to or certified, were not accompanied by an affidavit of the records custodian or other proper person attesting to their authenticity or correctness, and were not admissible.); Lenhal Realty, Inc. v. Transamerica Commercial Finance Corp., 615 So. 2d 207,

   209 (Fla. 4th DCA 1993)("[A]n affidavit in support of a motion for summary judgment is defective if it fails to be made on personal knowledge, set forth facts that would be admissible in evidence, and affirmatively show that the affiant is competent to testify as to the matters stated in the affidavit.")

   
   

   It is further ORDERED that Respondent file its response to the Petition for Benefits within 10 days of the date of this Order.

   
   

3. NICA filed its Response to Petition for Benefits on September 27, 2006, and gave notice that it was of the view that Markia did not suffer a "birth-related neurological injury," as defined by Section 766.302(2), Florida Statutes, because her birth weight did not meet the statutory minimum for coverage under the Plan, and requested "the weight threshold issue be determined prior to any other issues of compensability."

4. By Notice of Hearing, dated September 29, 2006, a hearing was scheduled for November 17, 2006, to resolve whether Markia's birth weight met the minimum weight required for coverage under the Plan. Thereafter, on November 6, 2006, NICA again filed a Motion for Summary Final Order predicated on its contention that, indisputably, Markia's birth weight did not meet the statutory minimum for coverage under the Plan. However, this time NICA attached an affidavit of the records custodian of Wolfson Children's Hospital/Baptist Health (Baptist Medical Center), the hospital at which Markia was born, attesting to the authenticity of the medical records (attached to the affidavit) for Markia Mitchell's birth on August 29, 2005, and immediate postnatal course, which demonstrated that Markia was the product of a single gestation, and that her birth weight was 2,479 grams.

5. Subsequently, on November 14, 2006, NICA filed a motion to continue the hearing scheduled for November 17, 2006, "until resolution of the pending Motion for Summary Final Order." There being no objection, NICA's motion was granted by Order of November 16, 2006.

6. Petitioner did not file a response to the Motion for Summary Final Order. Consequently, an Order to Show Cause was entered on November 21, 2006, which provided:

   On November 6, 2006, Respondent served a Motion for Summary Final Order. To date, Petitioner has not responded to the motion. Fla. Admin. Code R. 28-106.204(4).

   Accordingly, it is

   
   

   ORDERED that within 10 days of the date of his Order, Petitioner show cause in writing, if any she can, why the relief requested by Respondent should not be granted.

   
   

7. On November 30, 2006, Petitioner responded to the Motion for Summary Final Order, as follows:

   1. The facts in this case do not affirmatively establish from the medical records alone the time that the birth weight was determined. Section 766.302(2), F.S. includes the definition for a "birth-related neurological injury" to an infant weighing "at least 2500 grams." It is unclear from the medical records that this infant weighed 2500 grams at some point in this baby's hospital stay.

      
      

   2. The birth weight criteria to establish a "birth-related neurological injury" is an arbitrary weight that bears no relationship to the legislative intent of this statute. Accordingly, this statute is vague and ambiguous, arbitrary and capricious, denies due process, denies equal protection under the law, and denies access to the courts without any rational basis to the birth weight.

      
      

   3. The medical records include a birth weight of 2479 grams, but there is no time noted for the determination of this weight. The statute is silent as to when this weight should be determined.

      
      

      Accordingly, there are genuine issues of material fact regarding the weight of this infant and Summary Final Judgement should be denied.

      
      

8. Here, the medical records demonstrate, indisputably, that Markia was the product of a single gestation, and that her birth weight was 2,479 grams. Consequently, since Petitioner offered no evidence to the contrary, NICA's Motion for Summary Final Order is well-founded. Turner Produce Company, Inc. v. Lake Shore Growers Cooperative Association, 217 So. 2d 856, 861 (Fla. 4th DCA 1969)(When, as here, the "moving party presents evidence to support the claimed non-existence of a material issue, he . . . [is] entitled to a summary judgment unless the opposing party comes forward with some evidence which will change the result; that is, evidence to generate an issue of material fact. It is not sufficient for an opposing party merely to assert that an issue does exist."). Accord Roberts v. Stokley, 388 So. 2d 1267 (Fla. 2d DCA 1980); Perry v. Langstaff,

   383 So. 2d 1104 (Fla. 5th DCA 1980). Moreover, the administrative law judge does not have jurisdiction to consider or determine constitutional issues. Florida Hospital v. Agency for Health Care Administration, 823 So. 2d 844, 849 (Fla. 1st

   DCA 2002).

   
   

   CONCLUSIONS OF LAW

   
   

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

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

    
    

15. Here, indisputably, Markia was the product of a single gestation, with a birth weight of 2,479 grams. Consequently, given the provisions of Section 766.302(2), Florida Statutes, Markia 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).

16. 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

Dorian Blake, on behalf of, and as parent and natural guardian of Markia Mitchell, a minor, is dismissed with prejudice.

DONE AND ORDERED this 5th day of December, 2006, 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 5th of December, 2006.

ENDNOTE

1/ Pertinent to this case, Section 120.57(1)(h), Florida Statutes, provides:

(h) Any party to a proceeding in which an administrative law judge of the Division of Administrative Hearings has final order authority may move for a summary final order when there is no genuine issue as to any material fact. A summary final order shall be rendered if the administrative law judge determines from the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that no genuine issue as to any material fact exists and that the moving party is entitled as a matter of law to the entry of a final order . . . .

COPIES FURNISHED:

(Via Certified Mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association 2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

Ronald S. Gilbert, Esquire Colling, Gilbert, Wright & Carter

2301 Maitland Center Parkway, Suite 240

Maitland, Florida 32751

(Certified Mail No. 7099 3400 0010 4399 2543)

Jan Kepler, CNM Baptist Medical Center 800 Prudential Drive

Jacksonville, Florida 32207

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: 06-001342N

Orders for Case No: 06-001342N