STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEANETTE CAMACHO, as parent and natural guardian of ELIZABETH RIVERA, a minor,

Petitioner,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

/

Case No. 18-3487N

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for Summary Final Order (Respondent’s Motion) filed by Respondent, Florida Birth-Related Neurological Injury Compensation Association, on August 8, 2018.

STATEMENT OF THE CASE

On June 21, 2018, Petitioner filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. (Petition) with the Division of Administrative Hearings (DOAH) for a determination of compensability under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). The Petition named Mark Spence, M.D., as the physician who provided obstetric services for the birth of Elizabeth Rivera (Elizabeth) on

November 26, 2011, at North Shore Medical Center, in Miami, Florida.

On July 11, 2018, DOAH mailed a copy of the Petition to Respondent by certified mail. Respondent was served with the same on or before July 20, 2018. On July 11, 2018, DOAH mailed copies of the Petition by certified mail to North Shore Medical Center and Mark Spence, M.D.

On August 8, 2018, Respondent’s Motion was filed, wherein Respondent contends that Dr. Spence was not a participating physician at the time of Elizabeth’s birth, and, therefore, Petitioner’s claim does not meet the statutory requirements of the Plan and is not compensable. Said motion further avers that the Petition is barred by the applicable statute of limitations governing such claims. Petitioner did not file a timely response.

On August 22, 2018, the undersigned issued an Order to Show Cause directing Petitioner to show cause in writing why Respondent’s Motion should not be granted and a summary final order entered finding that Petitioner’s claim is not compensable. Petitioner did not respond to the Order to Show Cause.

FINDINGS OF FACT

1. Elizabeth was born on November 26, 2011, at North Shore Medical Center. The subject Petition was filed on June 21, 2018, which is more than five years after Elizabeth’s birth.

   
   

2. Dr. Mark Spence was the physician providing obstetric services and who was present at Elizabeth’s birth.

3. Attached to Respondent’s Motion is the affidavit of Respondent’s Records Custodian, Tim Daughtry. Mr. Daughtry attests in his affidavit that, in 2011, Dr. Spence did not pay the five thousand dollar ($5,000.00) assessment prescribed in section 766.314(4)(c), Florida Statutes, required for participation in the Plan. Mr. Daughtry’s affidavit further provides that Respondent has no records to suggest that

   Dr. Spence is otherwise exempt from payment. To the contrary, Dr. Spence paid the two hundred fifty dollar ($250.00) assessment required by section 766.314(4)(b)1., for non-participating, non- exempt licensed physicians.

4. Dr. Spence was not a participating physician in the Plan at the time of Elizabeth’s birth.

   CONCLUSIONS OF LAW

   
   

5. DOAH has jurisdiction over the parties to and the subject matter of these proceedings. §§ 766.301-766.316, Fla. Stat.

6. 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.

   
   

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 DOAH.

   §§ 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.

8. Respondent has determined that Petitioner does not have a claim that is compensable under the Plan and filed Respondent’s Motion, requesting that an order be entered finding that the claim is not compensable.

9. In determining a claim for benefits, section 766.309 sets forth certain determinations that the undersigned must make. Said section provides, in pertinent part to this matter, as follows:

   1. The administrative law judge shall make the following determinations based upon all available evidence:

      
      

      * * *

      
      

      (b) 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.

      
      

      * * *

   2. If the administrative law judge determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at the birth, she or he shall enter an order and shall cause a copy of such order to be sent immediately to the parties by registered or certified mail.

      
      

10. The term “participating physician” is defined in section 766.302(7), as follows:

    [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. Such term shall not apply to any physician who practices medicine as an officer, employee, or agent of the Federal Government.

    
    

11. Section 766.314 sets forth the requisite assessments and the conditions for exemption from payment under the Plan. The unrefuted evidence establishes that Dr. Spence was not a participating physician, as defined in section 766.302(7), at the

    time of the Elizabeth’s birth; and, therefore, Petitioner’s claim does not meet the statutory requirements of the Plan.

    Accordingly, Petitioner’s claim is not compensable.

    
    

12. Additionally, pursuant to section 766.313, “[a]ny claim for compensation under ss. 766.301-766.316 that is filed more than 5 years after the birth of an infant alleged to have a

birth-related neurological injury shall be barred.” Here, it is undisputed that the subject Petition was filed more than five years after Elizabeth’s birth, and, therefore, Petitioner is precluded from compensation.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition is dismissed with prejudice.

DONE AND ORDERED this 20th day of September, 2018, in Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

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 20th day of September, 2018.

COPIES FURNISHED:

(via certified mail)

Jeanette Camacho

27106 Southwest 135 Avenue

Homestead, Florida 33032

(Certified Mail Number 7018 0040 0000 9779 0125)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

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: 18-003487N

Orders for Case No: 18-003487N