STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JORGE SOTO and ANAHI SOTO, )

o/b/o and natural guardians of ) ANA MARIE SOTO, a minor, )

)

Petitioners, )

)

vs. ) CASE NO. 93-3027N

) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )

)

Respondent. )

)

FINAL ORDER

This cause came on for consideration of the "Petition for Benefits Pursuant to Florida Statutes Section 766.301, et seq.," respondent's notice of noncompensability, and the parties' joint stipulation filed October 5, 1993.

STATEMENT OF THE CASE

1. By petition filed May 21, 1992, petitioners, Jorge Soto and Anahi Soto, on behalf of and natural guardians of Ana Marie Soto, a minor, sought benefits pursuant to Sections 766.301-766.316, Florida Statutes, the "Florida Birth-Related Neurological Injury Compensation Act."

   
   

2. In response to such petition, respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), filed a notice of noncompensability and request for evidentiary hearing on compensability. As a basis for its suggestion of noncompensability, NICA asserted, inter alia, that the physician petitioner averred provided obstetric services to the child, Ana Marie Soto, was not at the time a participating physician within the meaning of Sections 766.301(7) and 766.314(4)(c), Florida Statutes.

   FINDINGS OF FACT

   
   

3. By stipulation filed October 5, 1993, petitioners and respondent stipulated as follows:

   COMES NOW, Jorge Soto and Anahi Soto, as natural guardians of Ana Marie Soto, a minor, and the Respondent, Florida Birth-Related Neurological Injury Compensation Association, by and through their undersigned attorneys and hereby stipulate to the following matters of record as evidenced by Claimant's Petition for Benefits, the medical records of the Claimants, and the affidavit of the Association's Records Custodian, Judy Duell, and hereby stipulate as follows:

   1. That the Petitioner filed a claim for compensation ("Petition") on May 21, 1992.

   2. That the Petition relates to the birth of ANA MARIE SOTO, which occurred on March 4, 1990, at Jackson North Maternity Hospital, Miami, Dade County, Florida.

   3. That the medical doctor providing obstetric services during the birth of Ana Marie Soto on March 4, 1990 was Dr. Alvaro Gordo, M.D.

   4. That a review of the records of the Respondent as evidenced in the Duell affidavit clearly indicates that as of March 4, 1990, Dr. Alvaro Gordo, M.D. was not a participating physician within the meaning of Section 766.301(7) and Section 766.314(c), Fla. Stat. (1991).

      WHEREFORE, the parties stipulate to the matters above for the purpose of providing a factual predicate upon which the Court may dispose of this claim without resort to further proceedings.

      CONCLUSIONS OF LAW

      
      

4. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject of, these proceedings. Section 766.301, et seq., Florida Statutes, as amended by Chapter 93-251, Laws of Florida.

   
   

5. The Florida Birth-Related Neurological Compensation Plan (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. Section 766.303(1), Florida Statutes.

   
   

6. The injured "infant, 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 within five years of the infant's birth. Sections 766.302(3), 766.303(2), 766.305(1), and 766.313, Florida Statutes. The Florida Birth-Related Neurological Injury Compensation Association (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." Section 766.305(3), Florida Statutes.

   
   

7. 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 Hearing Officer to whom the claim has been assigned. Section 766.305(6), Florida Statutes. If, on the other hand, NICA disputes the claim, as it has in the instant case, the dispute must be resolved by the assigned Hearing Officer in accordance with the provisions of Chapter 120, Florida Statutes. Sections 766.304, 766.307, 766.309 and 766.31, Florida Statutes.

   
   

8. In discharging this responsibility, the Hearing Officer must make the following determinations 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 hearing officer, 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. 766.302(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.

   Section 766.309(1), Florida Statutes. 1/ An award may be sustained only if the Hearing Officer concludes that the

   "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth." Section 766.31(1), Florida Statutes.

   
   

9. Pertinent to this case, "participating physician" is defined by Section 766.302(7), Florida Statutes, 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 injury the assessment required for participation in the birth-related neurological injury compensation plan for the year in which the injury occurred. . . .

   
   

10. Here, the parties have stipulated that Alvaro Gordo, M.D., the medical doctor providing obstetric services during the birth of Ana Marie Soto, was not a "participating physician" as that term is defined by Section 766.302(7), Florida Statutes, and as that term is used in Sections

    766.301 through 766.316, Florida Statutes. Accordingly, the subject claim is non-compensable under the Plan. Sections 766.309(2) and 766.31(1), Florida Statutes

    
    

11. Where, as here, "the hearing officer determines that . . . obstetrical services were not delivered by a participating physician at the birth, 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." Section 766.309(2), Florida Statutes. Such an order constitutes final agency action subject to appellate court review. Section 766.311(1), Florida Statutes.

CONCLUSION

Based on the foregoing findings of fact and conclusions of law, it is

ORDERED that the petition for compensation filed by Jorge Soto and Anahi Soto, on behalf of and natural guardians of Ana Marie Soto, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 14th day of October 1993.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of October 1993.

ENDNOTE

1/ Where, as here, NICA disputes the claim, the burden rests on the claimant to demonstrate entitlement to compensation. Section 766.309(1)(a), Florida Statutes. See also, Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349, 350 (Fla. 1st DCA 1977), ("the burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal").

COPIES FURNISHED:

Theodore R. Dempster, Esquire 1492 South Miami Avenue Miami, Florida 33130

(By Certified Mail)

W. Douglas Moody, Jr., Esquire Suite 250

225 South Adams Street Tallahassee, Florida 32302 (By Certified Mail)

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Barnett Bank, Suite 312

315 Calhoun Street Tallahassee, Florida 32302 (By Certified Mail)

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 one copy of a notice of appeal with the Agency Clerk Of The Division Of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court Of Appeal, First District, or with the District Court Of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 93-003027N

Orders for Case No: 93-003027N