STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LA SHANTA HACKING and JONATHAN

HACKING, individually and as parents and next friends of LANIYAH HACKING, a minor,

vs.

Petitioners,

Case No. 19-0929N

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

/

SUMMARY FINAL ORDER OF DISMISSAL

This matter came before the undersigned on Respondent’s Motion for Summary Final Order (Respondent’s Motion), filed

April 11, 2019.

STATEMENT OF THE CASE

On February 11, 2019, Petitioners filed a Petition for Determination of NICA Compensability (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 Charles Zollicoffer, M.D., as the physician who provided obstetric services for the birth of Laniyah Hacking (Laniyah) on

November 19, 2017, at St. Lucie Medical Center in St. Lucie, Florida.

The Petition further alleged that, on information and belief, at the time of Laniyah’s birth, Dr. Zollicoffer was not a participating provider under the Plan. Petitioners also allege that “[a] certified nurse midwife, Charlyn A. Coleman, was also present and providing obstetrical services at Laniyah’s birth.”

On February 26, 2019, DOAH mailed a copy of the Petition by certified mail to Respondent; Dr. Zollicoffer; Charlyn Coleman, APRN; and St. Lucie Medical Center. On February 27, 2019, Respondent was served with a copy of the Petition.

On April 11, 2019, Respondent’s Motion was filed, wherein Respondent contends that Dr. Zollicoffer was not a participating physician at the time of Laniyah’s birth, and, therefore, Petitioners’ claim does not meet the statutory requirements of the Plan and is not compensable. Petitioners did not file a response to Respondent’s Motion.

FINDINGS OF FACT

1. Petitioners allege that Laniyah was born on November 19, 2017, at St. Lucie Medical Center in St. Lucie, Florida.

   
   

2. Petitioners allege that Dr. Zollicoffer was the physician providing obstetric services and who was present at Laniyah’s birth.

3. Petitioners allege that a certified nurse midwife, Charlyn A. Coleman, was also present and providing obstetrical services at Laniyah’s birth. Petitioners do not allege that Charlyn A. Coleman was supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a teaching hospital.

4. Attached to Respondent’s Motion is the affidavit of Respondent’s record’s custodian, Tim Daughtry. Mr. Daughtry attests in his affidavit that, in 2017, Dr. Zollicoffer 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. Zollicoffer is otherwise exempt from payment. To the contrary, Dr. Zollicoffer paid the two hundred fifty dollar ($250.00) assessment required by section 766.314(4)(b)1., for non-participating, non-exempt licensed physicians.

5. Dr. Zollicoffer was not a participating physician in the Plan at the time of Laniyah’s birth.

   
   

   CONCLUSIONS OF LAW

   
   

6. DOAH 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 DOAH.

   §§ 766.302(3), 766.303(2), and 766.305(1), Fla. Stat.

   
   

   Respondent, 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. Respondent has determined that Petitioners do 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.

10. In determining a claim for benefits, section 766.309 sets forth certain threshold 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.

       
       

11. 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.

    
    

12. Section 766.314 sets forth the requisite assessments and the conditions for exemption from payment under the Plan. The unrefuted evidence establishes that Dr. Zollicoffer was not a participating physician, as defined in section 766.302(7), at the time of Laniyah’s birth. Additionally, Petitioners failed to present any evidence to establish that Charlyn A. Coleman was otherwise supervised by a participating physician while providing obstetrical services in the course of labor, delivery, or resuscitation in the immediate postdelivery period. Accordingly, Petitioners’ claim does not meet the statutory requirements of the Plan, and, therefore, is not compensable.

CONCLUSION

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

DONE AND ORDERED this 25th day of April, 2019, 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 25th day of April, 2019.

COPIES FURNISHED:

(via certified mail)

Allison C. McMillen, Esquire McMillen Law Firm, P.A.

608 East Central Boulevard Orlando, Florida 32801 (eServed)

(Certified Mail No. 7018 0040 0000 9774 0601)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association

Mary C. Mayhew, Secretary

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

Tallahassee, Florida 32308 (eServed)

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: 19-000929N

Orders for Case No: 19-000929N