STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA NUNEZ and CESAR )

ALBARENGA, on behalf of and as ) natural guardians of JANINE )

NICOLE NUNEZ, individually, )

)

Petitioners, )

)

vs. ) CASE NO. 95-0768N

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

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

Pursuant to Rule 60A-2.106, Florida Administrative Code, respondent's motion to dismiss, filed March 2, 1995, was considered.

STATEMENT OF THE CASE

1. By petition filed February 22, 1995, petitioners Patricia Nunez and Cesar Albarenga, on behalf of and as natural guardians of Janine Nichole Nunez (Janine), a minor, sought benefits pursuant to Sections 766.301-766.316, Florida Statutes, the "Florida Birth-Related Neurological Injury Compensation Plan." The medical records attached to such petition affirmatively reflected that Janine was born May 17, 1993, at Jackson Memorial Hospital, Miami, Florida, and that her weight at birth was 2,350 grams.

   
   

2. In response to such petition, respondent, Florida Birth- Related Neurological Injury Compensation Association (NICA), filed a motion to dismiss. As the basis for its motion to dismiss, NICA observes that, based on the medical records attached to the petition, the claim is not a "birth-related neurological injury" within the meaning of Section 766.302(2), Florida Statutes (1993).

   
   

3. Petitioners have filed no response to the motion to dismiss.

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings had jurisdiction over the parties to, and the subject of, these proceedings. Section 766.301, et seq., Florida Statutes.

   
   

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, "birth-related neurological injury" is defined by Section 766.302(2), Florida Statutes, as follows:

   
   

   "Birth-related neurological injury" means injury to the brain or spinal cord of alive 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 disability or death caused by genetic or congenital abnormality.

   
   

10. Here, it affirmatively appears from the medical records which accompanied the petition that Janine's weight at birth was 2,350 grams. Such weight is less than the statutorily mandated minimum weight requirement of 2,500 grams and, therefore, any injury Janine may have suffered was not a "birth-related neurological injury" as defined by law. Sections 766.320(2) and 766.309(2), 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 petitioners, Patricia Nunez and Cesar Albarenga, on behalf of and as natural guardians of Janine Nichole Nunez, a minor be and the same is hereby dismissed with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th 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 30th day of March 1995.

COPIES FURNISHED:

(BY CERTIFIED MAIL)

Ramon Malca, Esquire Malca and Jacobs, P.A. 866 South Dixie Highway

Coral Gables, Florida 33146

Lynn Dickerson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 1528

Tallahassee, Florida 32302

DR. Edward Fidalgo DR. Cherry Hammnersoy

c/o Jackson Memorial Hospital 1661 Northwest 12th Avenue Miami, Florida 33136

Jackson Memorial Hospital Legal Department

1611 Northwest 12th Avenue Miami, Florida 33136

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 Summer

Acting General Counse; 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: 95-000768N

Orders for Case No: 95-000768N