STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CINDY L. FOOTT AND FREDERICK )
FOOTT, individually, on behalf ) of, as parents and natural ) guardians of TYLER FOOTT, a ) minor, )
)
Petitioners, )
)
vs. )
)
FLORIDA BIRTH-RELATED )
NEUROLOGICAL INJURY )
COMPENSATION ASSOCIATION, )
)
Respondent. )
Case No. 02-4344N
)
SUMMARY FINAL ORDER OF DISMISSAL
This cause came on to be heard on Respondent's Motion for Summary Final Order, filed July 9, 2003, and the Order to Show Cause, entered August 4, 2003.
STATEMENT OF THE CASE
On November 4, 2002, Cindy L. Foott and Frederick Foott, individually, on behalf of, and as parents and natural guardians of, Tyler Foott (Tyler), a minor, filed a petition (claim) with the Division of Administrative Hearings (DOAH) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim
on November 8, 2002, and on March 20, 2003, NICA filed a Motion for Summary Final Order, pursuant to Section 120.57(1)(h), Florida Statutes. The predicate for NICA's motion was its assertion that, indisputably, the claim was time-barred. Section 766.313, Florida Statutes ("Any claim for compensation . . . that is filed more than 5 years after the birth of an infant alleged to have a birth-related neurological injury shall be barred.").
Petitioners did not respond to NICA's Motion for Summary Final Order. Consequently, an Order to Show Cause was entered on April 11, 2003, which provided:
On March 20, 2003, Respondent filed a Motion for Summary Final Order, which it had served on Petitioners March 19, 2003. To date, Petitioners have not responded to the motion. Rule 28-106.204(4), Florida Administrative Code. Accordingly, it is
ORDERED that within 10 days of the date of this Order, Petitioners show good cause in writing, if any they can, why the relief requested by Respondent should not be granted.
Petitioners did not file a response to the Order to Show Cause. Consequently, given that it was undisputed that Tyler was born April 11, 1997 (as evidenced by a copy of his certificate of birth attached to the petition), and this claim was filed November 4, 2002, a Summary Final Order of Dismissal was entered April 29, 2003, which granted Respondent's motion and dismissed Petitioners' claim.
Thereafter, on May 7, 2003, Petitioners filed a Motion to Vacate the Summary Final Order of Dismissal, and, good cause having been shown, the motion was granted by Order of May 13, 2003. The Order provided:
ORDERED that Petitioners' Motion to Vacate Final Order is granted, and the Summary Final Order of Dismissal entered April 29, 2003, is vacated.
It is further ORDERED that Respondent's Motion for Summary Final Order will be addressed, anew, by separate order.
Respondent's Motion for Summary Final Order was subsequently addressed by Order of May 13, 2003. That Order
provided:
This cause came on for consideration of Respondent's Motion for Summary Final Order, filed March 20, 2003, and Petitioners' Response to Order to Show Cause, filed May 7, 2003.
Here, given the provisions of Section 766.313, Florida Statutes, which provides "[a]ny claim for compensation
. . . that is filed more than 5 years after the birth of an infant alleged to have a birth-related neurological injury shall be barred," and the undisputed fact that Tyler Foott as born April 11, 1997, and the subject claim was not filed until November 4, 2002, Respondent is entitled to a partial summary judgment, as requested, which resolves that, notwithstanding that the claim may be compensable, Petitioners may not pursue or recover an award of benefits. However, since Plan immunity may be a viable defense to a civil suit, and the administrative law judge has exclusive
jurisdiction to resolve whether a claim is compensable, it is still necessary, as in this case, to resolve whether the claim is compensable. See Sections 766.301(1)(d), 766.303(2), and 766.304,
Florida Statutes, and O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624 (Fla. 5th DCA 2000). (Endnote omitted) Accordingly, it is
ORDERED that:
Respondent's Motion for Summary Judgment is granted to the extent that, as requested, it is resolved that the subject claim is time-barred, and Petitioners may not pursue or recover an award of benefits.
It is further resolved, under the circumstances of this case, that the administrative law judge has jurisdiction to resolve, and is obligated to resolve, whether the claim is compensable. Consequently, Respondent shall file its response to the claim for benefits within 10 days of the date of this Order.
On May 20, 2003, Respondent filed its Response to Petition, and averred Tyler did not suffer a "birth-related neurological injury," as defined by Section 766.302(2), Florida Statutes. Respondent further averred that since "this is not a 'birth-related neurological injury' it appears that this would not be a potentially compensable incident . . ., and for the Order entered herein on May 13, 2003, that the claim is time- barred and the Petitioners may not pursue or recover an award of benefits."
On June 6, 2003, consistent with the Order of May 13, 2003, a hearing was scheduled for August 28, 2003, to resolve whether the claim was compensable. Thereafter, on July 7, 2003, Respondent served, and on July 9, 2003, filed, another Motion for Summary Final Order. The predicate for this motion was, inter alia, Respondent's assertion that, indisputably, Tyler was neither substantially mentally nor physically impaired. Attached to Respondent's motion was an affidavit of Michael Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital, who, based on his review of Tyler's medical records and his evaluation of Tyler on February 19, 2003, concluded, within a reasonable degree of medical probability, that Tyler did not have "a substantial mental or motor impairment."
Petitioners did not respond to Respondent's Motion for Summary Final Order. Consequently, an Order to Show Cause was entered on August 4, 2003, which provided:
On July 9, 2003, Respondent filed a Motion for Summary Final Order. To date, Petitioners have not responded to the motion. Rule 28-106.204(4), Florida Administrative Code. Accordingly, it is
ORDERED that within 10 days of the date of this Order, Petitioners show good cause in writing, if any they can, why the relief requested by Respondent should not be granted.
On August 6, 2003, Petitioners filed their response to the Motion for Summary Final Order and the Order to Show Cause.
Their response was, as follows:
The Petitioners hereby declare that they have no objection to the entry of a Summary Final Order in accordance with the Motion for Summary Final Order filed by the FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, dated July 7, 2003.
Given the record, it is undisputed that Tyler is not substantially mentally or physically impaired. Consequently, NICA's Motion for Summary Final Order, served July 7, 2003, is well-founded. Sections 120.57(1)(h) and 766.309, Florida Statutes.
CONCLUSIONS OF LAW
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.
The Florida Birth-Related Neurological Injury Compensation 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.
The injured "infant, her or 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, 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.
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, 766.309, and 766.31, Florida Statutes.
In discharging this responsibility, the administrative law judge must make the following determination based upon the available evidence:
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).
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.
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.
Here, indisputably, Tyler's neurologic presentation does not disclose permanent and substantial mental and physical impairment. Consequently, given the provisions of Section 766.302(2), Florida Statutes, he does not qualify for coverage under the Plan. See also Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of
Administrative Hearings, 686 So. 2d 1349 (Fla. 1997)(The Plan is written in the conjunctive and can only be interpreted to require both substantial physical and mental impairment.)
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 Statement of the Case and Conclusions of Law, it is
ORDERED that the claim for compensation filed by Cindy L. Foott and Frederick Foott, individually, on behalf of, and as parents and natural guardians of, Tyler Foott, a minor, be and the same is dismissed with prejudice.
DONE AND ORDERED this 11th day of August, 2003, in Tallahassee, Leon County, Florida.
S
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 11th day of August, 2003.
COPIES FURNISHED:
(Via certified mail)
Mark A. Miller, Esquire Sheldon J. Schlesinger, P.A. 1212 Southeast Third Avenue Fort Lauderdale, Florida 33316
Kenney Shipley, Executive Director Florida Birth-Related Neurological
Injury Compensation Association 1435 Piedmont Drive, East, Suite 101 Post Office Box 14567
Tallahassee, Florida 32312
Paul R. Larkin, Jr., Esquire Conrad & Scherer
Post Office Box 14723
Fort Lauderdale, Florida 33302
Lawrence M. Siff, Esquire Marlow, Connell, Valerius,
Abrams, Adler & Newman
1 East Broward Boulevard, Suite 1505 Fort Lauderdale, Florida 33301
Ms. Charlene Willoughby Department of Health
4052 Bald Cypress Way, Bin C75 Tallahassee, Florida 32399-3275
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 the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, 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.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 11, 2003 | DOAH Final Order | Indisputably, infant was not substantially mentally or physically impaired. Therefore, Association`s Motion for Summary Final Order of Dismissal is granted. |
| May 13, 2003 | Other | |
| Apr. 29, 2003 | DOAH Final Order | Motion for Summary Final Order granted. Claim for compensation is more than five years after the birth of the infant who claims to have the neurological injury. CASE CLOSED. |
