STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAQUEL D. OLIVER AND ANTONIO

SOLOMON, individually and on behalf of and as parents and natural guardians of DIAMOND SOLOMON, a minor,

Petitioners,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

)

)

)

)

)

)

)

)

) Case No. 04-4246N

)

)

)

)

)

)

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration of the parties' Joint Motion to Accept Stipulation of Facts and Motion for Summary Final Order, filed February 24, 2005, and the parties' Supplemental Joint Stipulation of Facts, filed March 2, 2005.

STATEMENT OF THE CASE

1. On November 18, 2004, Raquel D. Oliver and Antonio Solomon, individually and on behalf of and as parents and natural guardians of Diamond Solomon (Diamond), a minor, filed a petition (claim) with the Division of Administrative Hearings (DOAH) to resolve whether Diamond suffered an injury compensable under the Florida Birth-Related Neurological Injury Compensation Plan (Plan), and whether the physicians who provided obstetrical

   services during Diamond's birth and the hospital at which the birth occurred complied with the notice provisions of the Plan.

2. DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on November 19, 2004, and on February 4, 2005, following a number of extensions of time within which to do so, NICA gave notice that it was of the view that Diamond did not suffer a "birth-related neurological injury," as defined by Section 766.302(2), Florida Statutes (2001),1 and requested that a hearing be scheduled to address the issue of compensability.

3. Given NICA's response to the claim, and the issues raised by the petition, an Order was entered on February 10, 2005, which directed that:

   . . . the parties shall confer and advise the undersigned in writing no later than February 24, 2005, as to the earliest date they will be prepared to proceed to hearing on the issue of compensability and notice, their estimate of the time required for hearing, and their choice of venue.

   
   

4. Responding to the Order of February 10, 2005, the parties filed a Joint Motion to Accept Stipulation of Facts and Motion for Summary Final Order on February 24, 2005, whereby they requested "the entry of an Order accepting t[he] attached Stipulation of Facts . . . and the entry of a Summary Final Order [, pursuant to Section 120.57(1)(h), Florida Statutes,] denying the instant claim." The predicate for the parties'

   Motion for Summary Final Order was their perception that, indisputably, Diamond's neurologic impairment was not precipitated by an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital," as required for coverage under the Plan.

5. By their Joint Stipulation of Facts, filed February 24, 2005, the parties stipulated that the following facts "are true and shall be considered as established by competent, substantial evidence before the administrative law judge of the Division of Administrative Hearings":

   1. On November 18, 2004, the Petitioners, as parents and natural guardians of Diamond Solomon, a minor, filed a claim with the Division of Administrative Hearings ("DOAH") for compensation under the Florida Birth- Related Neurological Injury Compensation Plan (the "Plan"). Such Petition is fully incorporated herein by reference.

      
      

   2. Diamond Solomon was born on January 13, 2002, at Shands Jacksonville Medical Center, 655 West 8th Street, Jacksonville, FL 32209.

      
      

   3. Raquel D. Oliver and Antonio Solomon, currently of 653 Monument Road, Jacksonville, FL 32225, are the parents and natural guardians of Diamond Solomon.

      
      

   4. John F. Huddleston, M.D., and Deborah D. Lyon, M.D., provided obstetrical services during the delivery of Diamond Solomon.

   5. John F. Huddleston, M.D., and Deborah D. Lyon, M.D., were "participating physicians" as defined in Section 766.302(7), Florida Statutes, at the time of Diamond Solomon's delivery on January 13, 2002.

      
      

   6. The Parties stipulate that the attached medical records are true and correct copies of the medical records kept in the normal course of business and which were submitted to NICA with the Petition.

      
      

   7. The Parties stipulate that at birth, Diamond Solomon weighed 2765 grams.

      
      

   8. The Petitioners do not dispute that there was no apparent oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate postdelivery period in a hospital, which rendered the infant permanently and substantially mentally and physically impaired so as to qualify as a "birth- related neurological injury," as that term is defined in Section 766.302(2), Florida Statutes. See attached reports of Donald C. Willis, M.D., and Michael S. Duchowny, M.D.

      
      

6. By their Supplemental Joint Stipulation of Facts, filed March 2, 2005, the parties stipulated to the following facts:

   1. Donald C. Willis, M.D., is board- certified in obstetrics and gynecology and maternal fetal medicine and is qualified as an expert to render an opinion as to the nature of the injury suffered by Diamond Solomon.

      
      

   2. The Parties stipulate that Dr. Willis' opinion regarding the injury suffered by Diamond Solomon represents the current opinion of Dr. Willis with respect to the issue of compensability of the instant claim. A true and correct copy of

      Dr. Willis' opinion is attached hereto as Exhibit A.

   3. Michael S. Duchowny, M.D., is board- certified in pediatrics[,] neurology with special competence in child neurology, and clinical neurophysiology, and is qualified as an expert to render an opinion as to the nature of the injury suffered by Diamond Solomon.

      
      

   4. The Parties stipulate that

      Dr. Duchowny's opinion regarding the injury suffered by Diamond Solomon represents the current opinion of Dr. Duchowny with respect to the issue of compensability of the instant claim. A true and correct copy of Dr. Duchowny's opinion is attached hereto as Exhibit B.

      
      

7. Here, the parties' Joint Stipulation of Facts, and Supplemental Joint Stipulation of Facts, including the records related to Diamond's birth and subsequent development (filed with the parties' Joint Stipulation of Facts on February 24, 2005), as well as the opinions of Michael Duchowny, M.D., an expert in pediatric neurology, and Donald Willis, M.D., an expert in obstetrics and maternal-fetal medicine, demonstrate, indisputably, that Diamond's neurologic impairment was not the result of a brain or spinal cord injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital. Therefore, the parties' request that their Joint Stipulation of Facts, and Supplemental Joint Stipulation of Facts, be accepted is appropriate, and the

   parties' Joint Motion for Summary Final Order is well-founded.

   
   

   §§ 120.57(1)(h), 766.302(2), and 766.309, Fla. Stat.2

   
   

   CONCLUSIONS OF LAW

   
   

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

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

    
    

14. Here, indisputably, Diamond's neurologic impairment was not the result of a brain or spinal cord injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, deliver, or resuscitation in the immediate postdelivery period in a hospital. Consequently, given the provisions of Section 766.302(2), Florida Statutes, Diamond does not qualify for coverage under the Plan. See also Humana of

    Florida, Inc. v. McKaughan, 652 So. 2d 852, 859 (Fla. 2d 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).

15. 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 Findings of Fact and Conclusions of Law, it is

ORDERED that the parties' Joint Stipulation of Facts and Supplemental Joint Stipulation of Facts are accepted.

It is further ORDERED that the parties' Joint Motion for Summary Final Order is granted, and the claim for compensation filed by Raquel D. Oliver and Antonio Solomon, individually and on behalf of and as parents and natural guardians of

Diamond Solomon, a minor, is dismissed with prejudice.

DONE AND ORDERED this 7th day of March, 2005, 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 March, 2005.

ENDNOTES

1/ All citations are to Florida Statutes (2001) unless otherwise indicated.

2/ Given the conclusion that Diamond did not suffer a "birth- related neurologic injury," as defined by the Plan, it is unnecessary to address whether the healthcare providers complied with the notice provisions of the Plan.

COPIES FURNISHED:

(Via certified mail)

C. Rufus Pennington, III, Esquire Margol and Pennington

One Independent Drive, Suite 1700 Jacksonville, Florida 32202

Tana D. Storey, Esquire Roetzel & Andress

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

Kenney Shipley, Executive Director Florida Birth-Related Neurological

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

John F. Huddleston, M.D. 653-1 West 8th Street

Charlene Willoughby, Director Consumer Services Unit - Enforcement 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: 04-004246N

Orders for Case No: 04-004246N