STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BENJAMIN MARQUEZ, JR. and )

DIANA MARQUEZ, on behalf of and ) natural guardians of EMMANUEL ) MARQUEZ, a minor, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4865N

)

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

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

This cause came on to be heard upon respondent's motion to dismiss, filed October 28, 1993.

STATEMENT OF THE CASE

1. By petition filed August 24, 1993, petitioners, Benjamin Marquez, Jr., and Diana Marquez, on behalf of and natural guardians of Emmanuel Marquez, a minor, sought benefits pursuant to Sections 766.301-766.316, Florida Statutes, the "Florida

   Birth-Related Neurological Injury Compensation Plan."

   
   

2. By motion filed October 28, 1993, respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), moved to dismiss the subject petition based on its contention that the medical records attached to the motion demonstrated that the infant Emmanuel Marquez failed to meet the criteria established by Section 766.302(2), Florida Statutes, based on the undisputed fact that the infant weighed less than 2,500 grams at birth.

   
   

3. At hearing, the parties stipulated that the infant's birth weight was 1800 to 1814 grams, as set forth in the motion to dismiss.

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Pursuant to the provisions of Sections 766.301-766.316, Florida Statutes, the "Florida Birth-Related Neurological Injury Compensation Plan," compensation, irrespective of fault, is provided for "birth-related neurological injury" claims for births occurring on or after January 1, 1989. Section 766.303(1), Florida Statutes.

   
   

6. Section 766.302(2), Florida Statutes, defines a "Birth- related neurological injury" to mean:

   
   

   . . . injury to the brain or spinal cord of a live infant weighing at least 2,500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the

   immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired . . . (Emphasis supplied)

   
   

7. Here, it is established that the weight of the infant Emmanuel Marquez was less than 2,500 grams at birth. Under such circumstances, the infant failed to sustain a "birth-related neurological injury" as defined by law, and is not eligible for compensation under the provisions of the "Florida Birth-Related Neurological Injury Compensation Plan."

CONCLUSION

Based on the foregoing stipulated facts and the conclusions of law, it is

ORDERED that the petition for benefits filed by Benjamin Marquez, Jr., and Diana Marquez, on behalf of and natural guardians of Emmanuel Marquez, a minor, pursuant to the "Florida Birth-Related neurological Injury Compensation Plan," Sections

766.301 - 766.316, Florida Statutes, be and the same is hereby dismissed with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of November 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 8th day of November 1993.

COPIES FURNISHED:

(By certified mail)

Eric C. Pinkard, Esquire 15310 Amberly Dr. No. 170

Tampa, Florida 33647

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Barnett Bank, Suite 312

315 Calhoun Street Tallahassee, Florida 32302

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: 93-004865N

Orders for Case No: 93-004865N