STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GUISELLE ARIAS and LUIS F. )

SALAZAR, as parents and natural ) guardians of JULIANA SALAZAR, a ) minor, )

)

Petitioners, )

)

vs. ) CASE NO. 95-0714N

) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION )

)

Respondent. )

)

FINAL ORDER

This cause came on for consideration of the Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq., respondent's response to the petition for benefits, and the parties' stipulation filed April 4, 1995.

STATEMENT OF THE CASE

1. By petition filed February 20, 1995, petitioners, Guiselle Arias and Luis F. Salazar, as parents and natural guardians of Juliana Salazar, a minor, sought benefits pursuant to Sections 766.301 - 766.316, Florida Statutes, the "Florida Birth-Related Neurological Injury Compensation Plan."

   
   

2. In reply to such petition, respondent, Florida Birth- Related Neurological Injury Compensation Association (NICA), filed a response on March 16, 1995, contending that the subject claim was not compensable because the infant did not suffer a birth-related neurological injury as defined by law.

   
   

3. By stipulation filed April 4, 1995, petitioners and NICA stipulated as follows:

   
   

   1. That pursuant to Chapter 766.301-766.316, Florida Statutes, a claim was filed on behalf

      of the above-styled infant against the Florida Birth-Related Neurological Injury Compensation Association (the "Association") by Guiselle Arias and Luis F. Salazar (the petitioners) for benefits under chapter 766.301-766.316, F.S.

   2. That a timely filed claim for benefits complying with the requirements of F.S. 766.305 was filed by the Petitioners and a timely denial was filed on behalf of the Association.

   3. That the Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim.

   4. The parties agree that the infant, Juliana Salazar, does not exhibit substantial mental impairment so as to fit within the strict definition of claims covered by the Florida Birth-Related Neurological Injury Compensation Association under Section 766.302(2), Florida Statutes.

   5. That the infant, Juliana Salazar, was born at Jackson Memorial Hospital on March 20, 1992, and that the said hospital was a licensed Florida hospital and the attending physicians were participating physicians within the meaning of Chapter 766, Florida Statutes.

      
      

4. The parties' stipulation that Juliana Salazar does not suffer a substantial mental impairment, as required by Section 766.302(2), Florida Statutes, to qualify for benefits under the Florida Birth-Related Neurological Injury Compensation Plan is consistent with the reports attached to respondent's notice of noncompensability, filed March 16, 1995.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject of, these proceedings. Section 766.301, et seq., Florida Statutes (1993).

   
   

6. 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.

   
   

7. The injured "infant, his personal representative, parents, dependents, and the 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(2), 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, 766.309 and 766.31, Florida Statutes.

   
   

9. 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.

   
   

10. Pertinent to this case, "birth-related neurological injury" is defined by Section 766.302(2), Florida Statutes, 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. This definition shall

    apply to live births only and shall not include congenital abnormality.

    
    

11. Here, the parties have stipulated that the attending physician who provided obstetric services during the birth of Juliana Salazar (Juliana) was 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. However, the parties have further stipulated that Juliana has not suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. As noted in the statement of the case, the parties have stipulated that Juliana has not suffered a "substantial mental impairment." Accordingly, the subject claim is non- compensable under the Plan. Sections 766.302(2), 766.309(1) and 766.31(1), Florida Statutes.

    
    

12. Where, as here, "the hearing officer determines that .

. . the injury alleged is not a birth-related neurological injury . . . 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 Guiselle Arias and Luis F. Salazar, as parents and natural guardians of Juliana Salazar, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of April 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 6th day of April 1995.

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 3489, 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:

(By Certified Mail)

Carole Gardiner, Esquire Suite 1775

2601 South Biscayne Boulevard Miami, Florida 33133

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 1528

Tallahassee, Florida 32302

Daniel F. Beasley, Esquire FOWLER, WHITE, BURNETT, et al

International Place, 17th Floor

100 Southeast Second Street Miami, Florida 33131-1101

Jaime Sepulveda, M.D. Isidro Cardella, M.D. Jackson Memorial Hospital University of Miami Complex 14701 Northwest 27th Avenue Miami, Florida 33167

Jackson North Maternity Center Legal Department

14701 Northwest 27th Avenue Miami, Florida 33167

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: 95-000714N

Orders for Case No: 95-000714N