STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVELYN MILLER AND WAYNE MILLER,

on behalf of and as parents and natural guardians of BRADLEY MILLER, a minor,

vs.

Petitioners,

Case No. 16-6518N

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's Motion for Summary Final Order, filed on December 15, 2016.

STATEMENT OF THE CASE

On October 31, 2016, Petitioners, Evelyn Miller and

Wayne Miller, on behalf of and as parents and natural guardians of Bradley Miller (Bradley), a minor, filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. (Petition) with the Division of Administrative Hearings (DOAH) for determination of compensability under the Florida Birth- Related Neurological Injury Compensation Plan (Plan). The Petition named Faith Carlin, M.D., as the physician who provided

obstetric services at the birth of Bradley at Medical Center of Trinity on March 27, 2014.

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the Petition on November 9, 2016. DOAH served Medical Center of Trinity and Faith Carlin, M.D., on November 10, 2016.

As of the date of this Summary Final Order of Dismissal, neither Medical Center of Trinity nor Dr. Carlin has petitioned to intervene in this proceeding.

On December 15, 2016, NICA filed a Motion for Summary Final Order, stating that, at the time of Bradley’s birth, Dr. Carlin was not a “participating physician” as that term is defined by section 766.302(7), Florida Statutes (2015). No response to the Motion for Summary Final Order was filed by Petitioners.

On December 30, 2016, an Order to Show Cause was entered which allowed Petitioners until January 17, 2017, to inform the undersigned in writing as to why the motion should not be granted and a summary final order be entered finding Petitioners’ claim is not compensable. To date, no response has been filed by Petitioners to the Motion or to the Order to Show Cause.

FINDINGS OF FACT

1. The Petition named Dr. Carlin as the physician providing obstetric services at Bradley’s birth on March 27, 2014.

   
   

2. Attached to the Motion for Summary Final Order is an affidavit of NICA's custodian of records, Tim Daughtry, attesting to the following, which has not been refuted:

   One of my official duties as Custodian of Records is to maintain NICA’s official records relative to the status of physicians as participating physicians in the Florida Birth-Related Neurological Compensation Plan who have timely paid the Five Thousand Dollar ($5,000.00) assessment prescribed in Section 766.314(4)(c), Florida Statutes, and the status of physicians who may be exempt from payment of the Five Thousand Dollar ($5,000.00) assessment pursuant to Section 766.314(4)(c), Florida Statutes. Further, I maintain NICA's official records with respect to the payment of the Two Hundred Fifty Dollar ($250.00) assessment required by Section 766.314(4)(b)1., Florida Statutes, by all non-participating, non-exempt physicians.

   
   

   * * *

   
   

   As payments of the requisite assessments are received, NICA compiles data in the “NICA CARES” database for each physician. The “NICA CARES physician payment history/report” attached hereto for Dr. Faith Carlin indicates that in the year 2014, the year in which Dr. Carlin participated in the delivery of Bradley Miller, as indicated in the Petitioners’ Petition for Benefits,

   Dr. Carlin did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth-Related Neurological Injury Compensation Plan.

   
   

   Further, it is NICA’s policy that if a physician falls within the exemption from payment of the Five Thousand Dollar ($5,000) assessment due to their status as a resident physician, assistant resident physician or intern as provided in Section 766.314(4)(c), Florida Statutes, annual documentation as to

   
   

   such exempt status is required to be provided to NICA. NICA has no records with respect to Dr. Carlin in relation to an exempt status for the year 2014. To the contrary, the attached "NICA CARES physician payment history/report shows that in 2014, Dr. Carlin paid the Two Hundred and Fifty Dollar ($250) assessment required by Section 766.314(4)(b)1., Florida Statutes, for non- participating, non-exempt licensed physicians.

   
   

3. The physician payment history/report for Dr. Carlin supports Mr. Daughtry’s affidavit.

4. Petitioners have not offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. Carlin had not paid her $5,000 assessment for 2014.

5. At the time of the birth of Bradley, Dr. Carlin was not a participating physician in the Plan.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. §§ 766.301-766.316, 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), and 766.305(1), Fla. Stat. NICA, 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(4), 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(7), 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 postdelivery 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 postdelivery 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, "participating physician" is defined by section 766.302(7), 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 exempted from payment at the time of the injury the assessment required for participation in the birth-related neurological injury compensation plan for the year in which the injury occurred.

    
    

12. Dr. Carlin had not paid her assessment of $5,000 at the time Bradley was born; therefore, she was not a participating physician at the time of Bradley’s birth. No evidence was submitted that, at the time of Bradley’s birth, Dr. Carlin was excluded from paying the $5,000 assessment required for

    
    

    participating physicians. To the contrary, the physician payment history/report shows that in 2014, Dr. Carlin paid the $250 assessment required by section 766.314(4)(6)1., for non- participating, non-exempt licensed physicians.

13. The obstetrical services provided during Bradley's birth were not provided by a participating physician. Thus, the claim on behalf of Bradley is not compensable under the Plan.

CONCLUSION

Based on the Findings of Fact and Conclusions of Law, it is ORDERED that Respondent's Motion for Summary Final Order is

granted, and the Petition is dismissed with prejudice.

DONE AND ORDERED this 25th day of January, 2017, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2017.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

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

(Certified Mail No. 7016 0910 0001 7981 0170)

Justin Senior, Interim Secretary Health Quality Assurance

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308 (eServed)

Medical Center of Trinity Attention: Risk Management 9330 State Road 54

Trinity, Florida 34655

(Certified Mail No. 7016 0910 0001 7981 0217)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See

§ 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).

Docket for Case No: 16-006518N

Orders for Case No: 16-006518N