STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WEBSTER EMMANUEL and MARIA

PREVOST, on behalf of and as parents and natural guardians of JULIUS EMMANUEL, a minor,

Petitioners,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

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) Case No. 03-3216N

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SUMMARY FINAL ORDER OF DISMISSAL

This cause came on to be heard on Respondent's Motion for Summary Final Order, filed on January 13, 2004, and the Order to Show Cause, entered April 8, 2004.

STATEMENT OF THE CASE

1. On September 9, 2003, Webster Emmanuel and

   
   

   Maria Prevost, on behalf of and as parents and natural guardians of Julius Emmanuel (Julius), 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 September 9, 2003,1 and on January 13, 2004, NICA filed a Motion for Summary Final Order, pursuant to Section 120.57(1)(h), Florida Statutes (2000).2 The predicate for NICA's motion was its assertion that, while Julius' neurologic presentation reveals evidence of permanent and substantial mental and physical impairment, the cause of such impairment was not associated with the birthing process or, stated otherwise, was not caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation.

   Attached to NICA's motion was an affidavit of Donald Willis, M.D., an obstetrician, and Michael Duchowny, M.D., a pediatric neurologist, who, based on their review of Julius' medical records, were of the opinion that Julius' neurologic impairment was not associated with oxygen deprivation or mechanical injury during labor, delivery, or resuscitation.

3. Petitioners did not respond to NICA's Motion for Summary Final Order, but by letter of February 2, 2004, requested "an extension of sixty (60) days . . . to obtain additional records which may impact the petition for NICA coverage." By Order of February 5, 2004, Petitioners' request was granted, and they were accorded until April 6, 2004, to file their response to NICA's Motion for Summary Final Order.

4. Notwithstanding the extension of time to do so, Petitioners did not respond to NICA's Motion for Summary Final

   Order. Consequently, an Order to Show Cause was entered on April 8, 2004, which provided as follows:

   By Order of February 5, 2004, Petitioners were accorded until April 6, 2004, to file their response to Respondent's Motion for Summary Final Order. To date, no response has been filed. 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 respond to the Order to Show Cause.

   
   

5. Given the record, there is no dispute Julius' neurologic impairment was not caused by oxygen deprivation or mechanical injury that occurred during labor, delivery, or resuscitation. Consequently, NICA's Motion for Summary Final Order is well-founded. §§ 120.57(1)(h) and 766.309, Fla. Stat.

   CONCLUSIONS OF LAW

   
   

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

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. § 766.303(1), Fla. Stat.

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. §§ 766.302(3), 766.303(2), 766.305(1), and 766.313, Fla. Stat. 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." § 766.305(3), Fla. Stat.

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. § 766.305(6), Fla. Stat. 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. §§ 766.304, 766.309, and 766.31, Fla. Stat.

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.

       
       

       § 766.309(1), Fla. Stat. 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." § 766.31(1), Fla. Stat.

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, Julius' neurologic impairment was not caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation. Consequently, given the provisions of Section 766.302(2), Florida Statutes, he 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."

§ 766.309(2), Fla. Stat. Such an order constitutes final agency action subject to appellate court review. § 766.311(1), Fla.

Stat.

CONCLUSION

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

ORDERED that the petition for compensation filed by Webster Emmanuel and Maria Prevost, on behalf of and as parents and natural guardians of Julius Emmanuel, a minor, be and the same is dismissed with prejudice.

DONE AND ORDERED this 4th day of May, 2004, 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 4th day of May, 2004.

ENDNOTES

1/ Consistent with Section 766.305(2), Florida Statutes, (2000), DOAH also served the physicians (Angela Lal, M.D., and Mark Wheeler, M.D.) named in the petition as having provided obstetrical services at the infant's birth, as well as the hospital (Tallahassee Memorial Hospital) named in the petition as the facility at which the infant's birth occurred. To date, neither the participating physician nor the hospital have

requested leave to intervene or otherwise sought leave to participate in these proceedings.

2/ All citations are to Florida Statutes (2000) unless otherwise indicated.

COPIES FURNISHED:

(via Certified Mail)

Webster Emmanuel Maria Prevost

307 Mabry Street, Apartment A Tallahassee, Florida 32304

Kenney Shipley, Executive Director Florida Birth-Related Neurological

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

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: 03-003216N

Orders for Case No: 03-003216N