STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES D. PURNELL and TONI J. )

PURNELL, on behalf of and as ) natural guardians of, CHARLES ) "LEE" PURNELL, a minor, )

)

Petitioners, )

)

vs. ) CASE NO. 95-0002N

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

)

Respondent. )

)

FINAL ORDER

This cause came on for consideration of the affidavit, filed January 13, 1995, amended affidavit, filed January 17, 1995, and the order of January 31, 1995, directing that the parties show good cause in writing, if any they could, as to why a summary final order of dismissal should not be rendered.

STATEMENT OF THE CASE

1. On January 6, 1995, petitioners Charles D. Purnell and Toni J. Purnell, on behalf of and as natural guardians of Charles "Lee" Purnell, a minor, filed a petition with the Division of Administrative Hearings (DOAH) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan). The petition affirmatively averred that the infant, Charles "Lee" Purnell, suffered the injury for which benefits are sought on March 12, 1993, and that the physicians providing obstetrical services at birth were Anthony Inserillo, M.D., and Diane Morrill, M.D.

   
   

2. DOAH served respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the petition on January 9, 1995. In response, NICA filed an affidavit on January 13, 1995, and an amended affidavit on January 17, 1995. 1/ Pertinent to this case, the amended affidavit provided:

   
   

   Before the undersigned authority appeared

   Judy M. Duell, who after being duly sworn does deposeth and say as follows:

   1. I am Judy Duell, Custodian of Records for the Florida Birth-Related Neurological

      Injury Compensation Association. I have personal and specific knowledge as to all events and matters attested to herein.

   2. One of my official duties as Custodian of Records is to maintain official records relative to the status of physicians who have timely paid the $5,000.00 assessment prescribed in Section 766.314(4)(c), Fla. Stat. and are therefore entitled to status as "participating physician" in accordance with the Florida Birth-Related Neurological Injury Compensation Plan, ss. 766.301-316, Fla. Stat. (1991).

   3. That a search of the records of the Association reveals that Dr. Anthony Inserillo and Dr. Diane Morrill were not "participating physicians" in the Florida Birth-Related Neurological Injury Compensation Plan as defined in 766.302(7), Fla. Stat. (1991) on March 12, 1993, the date upon which Dr. Anthony Inserillo

      and Dr. Diane Morrill participated in the delivery of the Claimant, Charles "Lee" Purnell, as indicated in the Claimants' Petition for Benefits.

3. On January 31, 1995, an order to show cause was entered which provided:

   
   

   This cause came on for consideration of the affidavit, filed January 13, 1995, and amended affidavit, filed January 17, 1995, attesting that Dr. Anthony Inserillo and Dr. Diane Morrill were not "participating physician[s]" as that term is defined by Section 766.302(7), Florida Statutes. Under such circumstances, it is ORDERED that the parties show good cause in writing, if any they can, within fourteen (14)

   days of the date of this order as to why a summary final order of dismissal should not be rendered.

   
   

4. Petitioners did not respond to the order, and offered no opposition to the ultimate fact raised by respondent's affidavit (that Anthony Inserillo, M.D., and Diane Morrill, M.D. were not a "participating physician" as defined by law) or to the entry of a summary final order of dismissal. Accordingly, it is concluded that there is no genuine issue of fact regarding the status of Anthony Inserillo, M.D., and Diane Morrill, M.D., on March 12, 1993, and that they were not, at that time, 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.

   CONCLUSIONS OF LAW

   
   

5. 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 (1993).

   
   

6. The Florida Birth-Related Neurological Injury Compensation Plan (the "Plan") was established by the Legislature "for the purpose of providing compensation, irrespective of faulty, for birth-related neurological injury claims" relating to births occurring on or after January 1, 1989. Section 766.303(1), Florida Statutes.

   
   

7. The injured "infant, his personal representative, parents, dependent, 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.

   
   

8. 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 and 766.31, Florida Statutes.

   
   

9. In discharging this responsibility, the Hearing Officer 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 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. 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.

   
   

10. 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 compen- sation plan for the year in which the injury occurred. . . .

    
    

11. Here, it has been demonstrated, without dispute, that the physicians providing obstetrical services during the birth of the infant, Charles "Lee" Purnell, were 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 not compensable under the Plan. Sections 766.309(2) and 766.31(1), Florida Statutes.

12. 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 Charles

D. Purnell and Toni J. Purnell, on behalf of and as natural guardians of Charles "Lee" Purnell, a minor, be and the same is hereby dismissed with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 1st day of March 1995.

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 1st day of March 1995.

ENDNOTE

1/ Both affidavits were identical except the amended affidavit corrected a scrivener's error in paragraph 3 of the first affidavit. That error, which referenced Section 766.312(7), Florida Statutes, as the provision which defined "participating physician" was amended to reflect the correct statutory provision, to wit: Section 766.302(7), Florida Statutes.

COPIES FURNISHED:

(By Certified Mail)

Ronnie H. Walker, Esquire

135 North Magnolia Avenue Orlando, Florida 32801

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Barnett Bank, Suite 312

315 South Calhoun Street Post Office Box 1528 (32302) Tallahassee, Florida 32301

Dr. Anthony Inserillo 1350 South Hickory Street Melbourne, Florida 32901

Dr. Diane Morrill

1350 South Hickory Street Melbourne, Florida 32901

Holmes Regional Medical Center Legal Department

1350 South Hickory Street Melbourne, Florida 32901

Ms. Charlene Willoughby Department of Business

and Professional Regulation Consumer Services

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0750

Ms. Tanya Williams

Division of Health Quality Assurance Hospital Section

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Dan Sumner

Acting General Counsel Department of Insurance The Capitol PL LL

Tallahassee, Florida 32399-0300

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 appropriate District Court of Appeal. See, Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So.2d 299 (Fla. 1st DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 95-000002N

Orders for Case No: 95-000002N