STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHERI R. SPRADLIN, on behalf of ) and as parent and natural ) guardian of CHASON D. SPRADLIN, ) a minor, )

)

Petitioner, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

DAVID O'BRYAN, M.D.; A.J. ) BRICKLER, III, M.D.; and NORTH ) FLORIDA WOMEN'S CARE, )

)

Intervenors. )

Case No. 05-2168N

)

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 January 11, 2006, in

Tallahassee, Florida.

APPEARANCES

For Petitioner: No appearance at hearing.

For Respondent: Tana D. Storey, Esquire

Roetzel & Andress

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

For Intervenors: Robert G. Churchill, Jr., Esquire

Dennis, Jackson, Martin & Fontela, P.A. Post Office Box 15589

Tallahassee, Florida 32317-5589 STATEMENT OF THE ISSUE

At issue is whether Chason D. Spradlin, a minor, qualifies for coverage under the Florida Birth-Related Neurological Compensation Plan (Plan).

PRELIMINARY STATEMENT

On June 15, 2005, Sheri R. Spradlin, on behalf of, and as parent and natural guardian of Chason D. Spradlin (Chason), 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 June 16, 2005, and on October 14, 2005, following a number of extensions of time within which to do so, NICA gave notice that it was of the view that Chason 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. In the interim,

David O'Bryan, M.D., A.J. Brickler, III, M.D., and North Florida Women's Care were granted leave to intervene, and by Notice of Hearing dated November 2, 2005, a hearing was scheduled for January 11, 2006, to resolve whether the claim was compensable.

At hearing, neither Petitioner nor anyone on her behalf appeared, and no evidence was offered to support Petitioner's claim. Respondent offered Respondent's Exhibit 1 (medical records, which were authenticated by an affidavit of

Katherine Alexander, Custodian of Records for NICA, as "a true and correct copy of the medical records relating to

Chason Spradlin and Sheri Spradlin as submitted to NICA by Petitioners pursuant to Section 766.305, Florida Statutes.") and Exhibit 2 (an affidavit, with attached report of neurological evaluation of Chason Spradlin by Michael Duchowny, M.D.).

Respondent's exhibits were hearsay, and subject to the limitations of Section 120.57(1)(c), Florida Statutes. No witnesses were called, and no further exhibits were offered.

Following the hearing, an Order to Show Cause was entered on January 12, 2006, which provided:

Pursuant to notice, a hearing was held in Tallahassee, Florida, on January 11, 2006, to resolve whether Chason D. Spradlin, a minor, suffered a birth-related neurological injury and whether obstetrical services were delivered by a participating physician during Chason's birth. Notably, neither Petitioner nor anyone on her behalf appeared at hearing, and no proof was offered to support her claim. Accordingly, it is

ORDERED that Petitioner is accorded until January 27, 2006, to show good cause in writing, if any she can, why a final order

should not be entered dismissing her claim with prejudice.

Petitioner did not respond to the Order to Show Cause.

Given that Petitioner did not respond to the Order to Show Cause, the parties were accorded until February 6, 2006, to file proposed orders. Respondent elected to file such a proposal, and it has been duly considered.

FINDINGS OF FACT

1. As observed in the Preliminary Statement, neither Petitioner nor anyone on her behalf appeared at hearing, and no proof was offered to support her claim. Consequently, there being no competent proof, the record failed to demonstrate that Chason suffered a "birth-related neurological injury," as defined by the Plan.

   CONCLUSIONS OF LAW

   
   

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

3. The 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.

4. 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.

5. 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.

6. 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.

7. Pertinent to this case, "birth-related neurological injury" is defined by Section 766.302(2), Florida Statutes (2000), 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. As the claimant, the burden rested on Petitioner to demonstrate that Chason suffered a "birth-related neurological injury," as defined by the Plan. § 766.309(1)(a), Fla. Stat. See also Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349, 350 (Fla. 1st DCA 1977)("[T]he burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal.") By failing to appear and offer proof, Petitioner failed to sustain that burden. Accordingly, Petitioner's claim has not been shown to be compensable.

9. 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 the claim for compensation filed by Sheri R. Spradlin, on behalf of and as parent and natural guardian of Chason D. Spradlin, a minor is dismissed with prejudice.

DONE AND ORDERED this 8th day of February, 2006, 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 8th day of February, 2006.

COPIES FURNISHED:

(Via certified mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association

Sheri R. Spradlin

280 McGinty Road Moultrie, Georgia 31768

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 4975)

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: 05-002168N

Orders for Case No: 05-002168N