STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIA HERNANDEZ AND JOSE R. )

HERNANDEZ, on behalf of and as ) parents and natural guardians ) of NATALIE IVETTE HERNANDEZ, )

)

Petitioners, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

Case No. 05-1139N

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by Administrative Law Judge William J. Kendrick, held a hearing in the above-styled case on November 10, 2005, in

St. Petersburg, Florida.

APPEARANCES

For Petitioners: Maria Hernandez, pro se

8090 68th Street North Pinellas Park, Florida 33781

For Respondent: Tana D. Storey, Esquire

Roetzel & Andress

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue is whether Natalie Ivette Hernandez, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).

PRELIMINARY STATEMENT

On March 28, 2005, Maria Hernandez and Jose R. Hernandez, on behalf of and as parents and natural guardians of

Natalie Ivette Hernandez (Natalie), a minor, filed a petition (claim) with the Division of Administrative Hearings (DOAH) for compensation under the Plan.

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on March 29, 2005, and on May 19, 2005, NICA responded to the claim, and gave notice that it was of the view that Natalie did not suffer a "birth-related neurological injury," as defined by Section 766.302(2), Florida Statutes, and requested that a hearing be scheduled to resolve whether the claim was compensable. Such a hearing was ultimately held on November 10, 2005.

At hearing, no testimony was offered. However, Petitioners' Exhibit 1 and Respondent's Exhibits 1-3 were received into evidence.1

The transcript of the hearing was filed November 29, 2005, and the parties were accorded 10 days from that date to file

written argument or proposed orders. Respondent elected to file a proposed order, and it has been duly considered.

FINDINGS OF FACT

Preliminary findings

1. Maria Hernandez and Jose R. Hernandez, are the natural parents and guardians of Natalie Ivette Hernandez, a minor. Natalie was born a live infant on April 7, 2000, at Bayfront Medical Center, a hospital located in St. Petersburg, Florida, and her birth weight exceeded 2,500 grams. (Respondent's Exhibit 1.)

2. The physician providing obstetrical services at Natalie's birth was Guillermo E. Calderon, M.D. (Respondent's Exhibit 1.)

   Coverage under the Plan

   
   

3. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as 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, which renders the infant permanently and substantially mentally and physically impaired."

   § 766.302(2), Fla. Stat. See also §§ 766.309(1) and 766.31(1), Fla. Stat.

4. Here, it is undisputed that Natalie evidences no physical impairment. (Transcript, pages 11-13; Respondent's Exhibit 3.) Consequently, for reasons appearing more fully in the Conclusions of Law, the claim is not compensable, and it is unnecessary to resolve whether Natalie is permanently and substantially mentally impaired and, if so, whether such impairment resulted from a brain or spinal cord injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation. It is likewise unnecessary to resolve whether at the time of Natalie's birth, Dr. Calderon was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.

   CONCLUSIONS OF LAW

   
   

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

6. In resolving whether a claim is compensable, 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.

      766.302(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.

7. 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 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.

8. Here, the proof demonstrated that Natalie was not permanently and substantially physically impaired. Consequently, given the provisions of Section 766.302(2), Florida Statutes, Natalie 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); 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 mental and physical impairment.).

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that the claim for compensation filed by

Marie Hernandez and Jose R. Hernandez, on behalf of and as the parents and natural guardians of Natalie Ivette Hernandez, a minor, is dismissed with prejudice.

DONE AND ORDERED this 20th day of December, 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 20th day of December, 2005.

ENDNOTE

1/ Respondent's Exhibit 3 is an Affidavit of Michael S. Duchowny, M.D., with a copy of a report of his May 4, 2005, neurological evaluation of Natalie. Such exhibit is hearsay, and was received into evidence subject to the limitations of Section 120.57(1)(c), Florida Statutes. ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.")

COPIES FURNISHED:

(Via certified mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association 2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7003 1010 0001 2044 4487)

Maria Hernandez Jose R. Hernandez

8090 68th Street North Pinellas Park, Florida 33781

Guillermo E. Calderon, M.D.

6700 Crosswinds Drive North, Suite 200-A St. Petersburg, Florida 33710

(Certified Mail No. 7003 1010 0001 2044 4517)

Bayfront Medical Center, Inc. 701 6th Street South

St. Petersburg, Florida 33701

(Certified Mail No. 7003 1010 0001 2044 4524)

Charlene Willoughby, Director Consumer Services Unit - Enforcement Department of Health

4052 Bald Cypress Way, Bin C-75 Tallahassee, Florida 32399-3275

(Certified Mail No. 7003 1010 0001 2044 4531)

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: 05-001139N

Orders for Case No: 05-001139N