STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEAN TAVARES and DANYETTA TAVARES, )

as parents and natural guardians ) of TORRANCE TAVARES, a minor, )

)

Petitioners, )

)

vs. ) Case No. 99-1403N

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

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

This cause came on for consideration of Respondent's Motion for Summary Judgment and/or Motion to Dismiss, filed April 26, 1999, and the Order to Show Cause, rendered April 27, 1999.

STATEMENT OF THE CASE

1. On March 26, 1999, Petitioners, Dean Tavares and Danyetta Tavares, as parents and natural guardians of Torrance Tavares (Torrance), 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 February 2, 1995, Torrance suffered an injury for which benefits were sought and that the physician providing obstetrical services at birth was Jerome L. Adams, M.D. (Dr. Adams). Also pertinent to the pending motions, the medical records attached to the petition affirmatively reflect that

   Torrance was delivered prematurely (at 28 and 1/2 weeks gestation), with a birth weight of 910 grams.

2. DOAH served Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), with a copy of the claim on March 29, 1999. In response, NICA filed a Motion for Summary Judgement and/or Motion to Dismiss on April 26, 1999. The predicate for Respondent's motion was two-fold. First, Respondent asserted that, indisputably, Dr. Adams was not a "participating physician" as defined by Section 766.302(7), Florida Statutes, since he had not paid the assessment required for participating, and was not exempt from payment at the time the alleged injury occurred. Attached to the motion was an affidavit attesting to the fact that Dr. Adams was not a "participating physician," as defined by law. Second, NICA observed that, based on the medical records which accompanied the petition, the claim was not a "birth-related neurological injury" within the meaning of Section 766.302(2), Florida Statutes, inasmuch as the infant, Torrance Tavares, weighed 910 grams at birth, and therefore failed to meet the statutorily mandated minimum weight requirement of 2,500 grams.

3. By order of April 27, 1999, Petitioners were accorded 14 days to respond to Respondent's motion and to show good cause in writing, if any they could, why the relief requested should not be granted. Petitioners have filed no response to the Respondent's motion or the Order to Show cause.

   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. Also, 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 disability or death caused by genetic or congenital abnormality.

11. Here, it is undisputed that the physician alleged to have provided obstetrical services during the birth of the infant, Torrance Tavares, 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. Moreover, it affirmatively appears from the medical records which accompanied the petition that Torrance's weight at

    birth was 910 grams. Such weight is less than the statutorily mandated minimum weight requirement of 2,500 grams and, therefore, any injury Torrance may have suffered was not a "birth-related neurological injury" as defined by law. Sections 766.02(2) and 766.309(1) and (2), Florida Statutes. Under the circumstances, Respondent's Motion for Summary Judgement and/or Motion to Dismiss is meritorious. Section 766.309(1) and (2), Florida Statutes.

12. Where, as here, the administrative law judge 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 Dean Tavares and Danyetta Tavares, as parents and natural guardians of Torrance Tavares, a minor, be and the same is hereby dismissed with prejudice.

DONE AND ORDERED this 25th day of May, 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 25th day of May, 1999.

COPIES FURNISHED:

(By certified mail)

Mark V. Morsch, Esquire

5598 North Orange Blossom Trail Orlando, Florida 32810

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

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

Jerome L. Adams, M.D.

101 West Kaley Street Orlando, Florida 32806

Arnold Palmer Hospital for Children and Women Orlando Regional Medical Center

Legal Department

1414 South Kuhl Avenue Orlando, Florida 32806

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: 99-001403N

Orders for Case No: 99-001403N