STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUZANNE JAMES, on behalf of and ) as parent and natural guardian ) of ALYSSA MARIE VAIL, a minor, )

)

Petitioner, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

Case No. 03-2994N

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on to be heard on Respondent's Motion for Summary Final Order, filed September 3, 2003, and the Order to Show Cause entered September 16, 2003.

STATEMENT OF THE CASE

1. On July 7, 2003, Suzanne James, on behalf of, and as parent and natural guardian of Alyssa Marie Vail (Alyssa), 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).

2. DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on August 21, 2003,1 and on September 3, 2003, NICA filed a

   Motion for Summary Final Order, pursuant to Section 120.57(1)(h).2 The predicate for NICA's motion was its assertion that, indisputably, as reflected by the delivery records, Alyssa's birth weight was 2,049 grams and, consequently, did not meet the minimum birth weight of 2,500 grams for a single gestation required for coverage under the Plan. See Sections 766.302(2), 766.309(1), and 766.31(1).

3. Petitioner did not respond to NICA's Motion for Summary Final Order. Consequently, an Order to Show Cause was entered on September 16, 2003, which provided, as follows:

   On September 2, 2003, Respondent served a Motion for Summary Final Order. To date, Petitioner has 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, Petitioner show good cause in writing, if any she can, why the relief requested by Respondent should be granted.

4. Petitioner responded to the Order to Show Cause by letter dated September 24, 2003, filed September 26, 2003, as

   follows:

   
   

   I am writing this letter to dispute your decision regarding my daughter, Alyssa Marie Vail (Case No. 03-2994N).

   
   

   As you are aware my daughter was born March 03, 2003 at Shands Hospital in Jacksonville, Florida, and as a result of the birth process she has suffered serious brain damage.

   During her stay in the NICU the attending physician, Dr. Garrison, advised that we were without a doubt eligible for benefits under NICA due to her condition. The Doctors have told me that Alyssa will most likely need

   therapy and assistance the rest of her life. If I understand correctly the only reason I have been denied relief is the birth weight requirement. Alyssa weighed 2049 grams and the requirement is 2500 grams. Surely there can be some flexibility with the difference being only one gram.

   
   

   We are in desperate need of financial assistance as I have not been able to return to work because of Alyssa's condition.

   Without this assistance we are left on our own. Please reconsider your decision as I do not know what else I can do as we are in desperate need.

   
   

5. Given the record, it is indisputable that Alyssa's birth weight was 451 grams below that required for coverage under the Plan. Consequently, NICA's Motion for Summary Final Order is well-founded. Sections 120.57(1)(h), 766.302(2), 766.309(1) and 766.31(1).

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 766.301, et seq.

7. 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).

8. 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. 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).

9. 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). 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.

10. 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). 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).

11. Pertinent to this case, "birth-related neurological injury" is defined by Section 766.302(2), to mean:

    injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery 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.

    
    

12. Here, indisputably, Alyssa's birth weight was 2049 grams. Consequently, given the provisions of Section 766.302(2), she does not qualify for coverage under the Plan. See also Humana of Florida, Inc., v. McKaughan, 658 So. 2d 852, 859 (Fla. 5th DCA 1995)("[B]ecause the Plan . . . is a statutory substitute for common law rights and liabilities, it should be strictly construed to include only those subjects clearly embraced within its terms."), approved, Florida Birth-Related Neurological Injury Compensation Association v. McKaughan, 668 So. 2d 974, 979, (Fla. 1996).

13. 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). Such an order constitutes final agency action subject to appellate court review. Section 766.311(1).

CONCLUSION

Based on the Statement of the Case and Conclusions of Law, it is

ORDERED that the claim for compensation filed by Suzanne James, on behalf of, and as parent and natural guardian of, Alyssa Marie Vail, a minor, be and the same is dismissed with prejudice.

DONE AND ORDERED this 7th day of October, 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 7th day of October, 2003.

ENDNOTES

1/ Consistent with Section 766.305(2), DOAH also served the physicians (James L. Jones, M.D., and James Baten, M.D.) named in the petition as having provided obstetrical services at the infant's birth, as well as the hospital (Shands Jacksonville Medical Center) named in the petition as the facility at which the infant's birth occurred. To date, neither the physicians nor hospital has requested leave to intervene or otherwise sought leave to participate in these proceedings.

2/ All citations are to Florida Statutes (2002) unless otherwise indicated.

COPIES FURNISHED: BY CERTIFIED MAIL

Suzanne James

157 Lee Road

Jacksonville, Florida 32225

Kenney Shipley, Executive Director Florida Birth-Related Neurological

Injury Compensation Association 1435 Piedmont Drive, East, Suite 101 Post Office Box 14567

Tallahassee, Florida 32308

James L. Jones, M.D.

LRC Building, Third Floor 653-1 West Eighth Street Jacksonville, Florida 32209

James Baten, M.D.

Shands Jacksonville Medical Center 655 West Eighth Street Jacksonville, Florida 32209

Shands Jacksonville Medical Center Legal Department

655 West Eighth Street Jacksonville, Florida 32209

Ms. Charlene Willoughby Department of Health

4052 Bald Cypress Way, Bin C-75 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.

Docket for Case No: 03-002994N

Orders for Case No: 03-002994N