STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LORIANE FORD BAYLARK and STEVE RAY )

BAYLARK, as parents and natural ) guardians of CRYSTAL BAYLARK, a ) minor, )

)

Petitioners, )

)

vs. ) Case No. 98-5622N

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

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

This cause came on for consideration of Respondent's Motion for Summary Judgement and/or Motion to Dismiss filed February 9, 1999; the Order to Show Cause rendered February 11, 1999; and the Order of March 24, 1999, according Petitioners an extension of time to respond to the Order to Show Cause.

STATEMENT OF THE CASE

1. On December 23, 1998, Petitioners, Loriane Ford Baylark and Steve Ray Baylark, as parents and natural guardians of Crystal Baylark (Crystal), 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). Pertinent to the pending motions, the petition affirmatively averred that on September 29, 1996, Crystal

   suffered an injury for which benefits were sought under the Plan, and that the physician who provided obstetrical services at birth was Cordell Mitchell, M.D. (Dr. Mitchell).

2. DOAH served Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), with a copy of the claim on December 28, 1998. In response, NICA filed a Motion for Summary Judgement and/or Motion to Dismiss on February 9, 1999. The predicate for Respondent's motions was its assertion that, indisputably, Dr. Mitchell was not a "participating physician," as defined by law, since he had not

   paid the assessment required for participation and was not exempt from payment at the time of the alleged injury. Attached to the motions was an affidavit attesting to the fact that Dr. Mitchell was not a "participating physician," as defined by Section 766.302(7), Florida Statutes.

3. By order of February 11, 1999, Petitioners were accorded

   
   

   14 days to respond to Respondent's motions and to show good cause in writing, if any they could, why the requested relief should not be granted. Thereafter, at Petitioners' request, the deadline was extended to May 7, 1999. Pertinent to this case, the order according Petitioners an extension of time was entered March 24, 1999 (memorializing the results of a hearing held on March 1, 1999), and provided:

   1. Petitioners' motion for extension of time to respond to Respondent's Motion for Summary Judgment and/or Motion to Dismiss, as

      well as the Order to Show Cause entered February 11, 1999, is granted, and they are accorded until May 7, 1999, to file their responses to Respondent's motion and to the Order to Show Cause.

      
      

   2. Should the issue of whether the physician providing obstetrical services during the course of the infant's birth not be resolved by Petitioners' response or, stated differently, there remain disputed factual issues, a hearing will be held on May 28, 1999, by video teleconference, in accordance with the Notice of Hearing by Video issued contemporaneously with this order.

   3. Petitioners filed no response to Respondent's motions or to the Order to Show Cause. Under the circumstances, given that there is no genuine issue of fact regarding the status of

      Dr. Mitchell on September 29, 1996, and that he was not, at the time, a "participating physician," as that term is defined by Section 766.302(7), Florida Statutes, Respondent's Motion for Summary Judgement and/or Motion to Dismiss is, for reasons appearing more fully in the Conclusions of Law, meritorious.

      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.

   5. The Florida Birth-Related Neurological Injury 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. 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 administrative law judge 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 administrative law judge 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 administrative law judge 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 administrative law judge, 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. 766.303(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 administrative law judge 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, it is undisputed that the physician alleged to have provided obstetric services during the birth of infant, Crystal Baylark, 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. Under the circumstances, Respondent's motion for a final summary order of dismissal should be granted. Sections 766.309(1) and (2) and 766.31(1), Florida Statutes.

   11. Where, as here, the administrative law judge 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 Loriane Ford Baylark and Steve Ray Baylark, as parents and natural

guardians of Crystal Baylark, a minor, be and the same is hereby dismissed with prejudice.

DONE AND ORDERED this 2nd day of June, 1999, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1999.

COPIES FURNISHED:

(By certified mail)

Ronald S. Gilbert, Esquire Morgan, Colling & Gilbert, P.A. Post Office Box 4979

Orlando, Florida 32802-4979

W. Douglas Moody, Jr., Esquire Graham & Moody, P.A.

101 North Gadsden Street Tallahassee, Florida 32301

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 14567 Tallahassee, Florida 32317-4567

Mitchell Cordell, M.D. 974 Douglas Avenue

Altamonte Springs, Florida 32714-2054

Florida Hospital Legal Department

201 North Park Avenue Apopka, Florida 32703

Ms. Charlene Willoughby

Agency for Health Care Administration Consumer Services Unit

Post Office Box 14000 Tallahassee, Florida 32308

Daniel Y. Sumner, General Counsel Department of Insurance

The Capitol, Lower Level 26 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: 98-005622N

Orders for Case No: 98-005622N