STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon the Motion for Summary Final Order (Motion) filed by Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), on May 12, 2020. The Motion relies on the infant’s medical records provided by Orlando Health Winnie Palmer Hospital (Winnie Palmer Hospital), submitted to NICA as part of Petitioner’s submission of her claim.

STATEMENT OF THE CASE

On August 26, 2019, Petitioner Katelyn Boehm, as parent and natural guardian of Maximilian Boehm (Maximilian), 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 a determination of compensability under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).

The Petition identified Alana McGee, M.D., as the physician who provided obstetric services at the birth of Maximilian on October 26, 2017, at Winnie Palmer Hospital, located in Orange County, Florida.

DOAH served Dr. McGee, Winnie Palmer Hospital, and NICA with a copy of the Petition on September 11, 2019.

On May 12, 2020, NICA filed its Motion , contending that Maximilian’s weight at birth was 1900 grams, and thus did not meet the statutory requirements of the Plan. Having received no response from Petitioner to the Motion within the seven-day time period for a response set forth in Florida Administrative Code Rule 28-106.204(4), the undersigned issued an Order to Show Cause on May 22, 2020, ordering Petitioner to show cause, on or before June 5, 2020, in writing, why NICA’s Motion should not be granted and a summary final order entered finding that Petitioner’s claim is not compensable. On June 8, 2020, the undersigned issued a Second Order to Show Cause, noting that the Order to Show Cause may have been sent to an outdated address, and ordering Petitioner to show cause, on or before June 19, 2020, in writing, why NICA’s Motion should not be granted and a summary final order entered. Petitioner has not responded to NICA’s Motion, the Order to Show Cause, or the Second Order to Show Cause.

FINDINGS OF FACT

1. Maximilian was born on October 26, 2017, at Winnie Palmer Hospital, located in Orange County, Florida.

2. According to the medical records from Winnie Palmer Hospital, Maximilian weighed four pounds and three ounces, or 1900 grams, at birth.

   CONCLUSIONS OF LAW

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

4. The Legislature established the Plan “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.

5. 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.

6. 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.

7. 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.

8. Section 766.302(2), Florida Statutes, defines the term “birth-related neurological injury” as follows:

   
   

   “Birth-related neurological injury” means 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. (emphasis added).

   
   

9. If the administrative law judge determines that the infant meets the statutory weight threshold and has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury, and finds that as a result of the injury, the infant was rendered permanently and substantially

   mentally and physically impaired, then section 766.309(1) provides that there is a rebuttable presumption that the injury is a birth-related neurological injury.

10. In this case, the evidence does not support such a finding. The undisputed evidence presented indicates that Maximilian weighed 1900 grams at birth, below the threshold weight specified in section 766.302(2). The finding that Maximilian’s birth weight is below the statutory threshold is dispositive with respect to compensability. Based upon the evidence presented in support of the Motion, Maximilian did not sustain a birth- related neurological injury as defined in section 766.302(2), and is not eligible for benefits under the Plan.

CONCLUSION

Based on the Findings of Fact and the Conclusions of Law, NICA’s Motion for Summary Final Order is GRANTED, and Petitioner’s claim is found to be not compensable. Accordingly, the Petition for Benefits is DISMISSED with prejudice.

DONE AND ORDERED this 30th day of June, 2020, in Tallahassee, Leon County, Florida.

S

ROBERT J. TELFER III

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 30th day of June, 2020.

COPIES FURNISHED:

(via certified mail)

Katelyn Boehm Flo Boehm

5559 Remsen Cay Lane Windermere, Florida 34786

(Certified No. 7019 1640 0000 2208 6910)

Kenney Shipley, Executive Director Florida Birth-Related Neurological Injury Compensation Association Suite 1

2360 Christopher Place

Tallahassee, Florida 32308 (eServed)

(Certified No. 7019 1640 0000 2208 6927)

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

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

(Certified No. 7019 1640 0000 2208 6934)

Mary C. Mayhew, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308 (eServed)

(Certified No. 7019 1640 0000 2208 6941)

Alana McGee, M.D.

3438 Lawton Road, Suite 1B Orlando, Florida 32803

(Certified No. 7019 1640 0000 2208 6958)

Winnie Palmer Hospital Attention: Risk Management 83 West Miller Street Orlando, Florida 32806

(Certified No. 7019 1640 0000 2208 6965)

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: 19-004602N

Orders for Case No: 19-004602N