STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHAMEKA MOSLEY, ON BEHALF OF AND AS PARENT AND NATURAL GUARDIAN OF CHARLES EDWARD TYSON, A MINOR,

Petitioner,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

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) Case No. 07-2535N

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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 July 6, 2007, and Renewed Motion for Summary Final Order, filed August 3, 2007.

STATEMENT OF THE CASE

1. On June 6, 2007, Shameka Mosley, on behalf of and as parent and natural guardian of Charles Edward Tyson (Charles), 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 June 8, 2007, and on July 6, 2007, NICA filed a Motion for Summary Final Order, pursuant to Section 120.57(1)(h), Florida Statutes. The predicate for NICA's motion was its assertion that, indisputably, the physician (Gale Santa Maria, M.D.) named in the petition as having provided obstetrical services at Charles' birth, as well as Debra Jones, M.D., and Janet Wingkun, M.D., named in the medical records as having also been present at Charles' birth, were not "participating physician[s]," as defined by law, since they had neither paid the assessment required for participation nor were they exempt from payment of the assessment. § 766.302(7), Fla. Stat. See also

   § 766.314(4)(c), Fla. Stat. Attached to the motion was an affidavit of the Custodian of Records for NICA attesting to the fact that Doctors Santa Maria, Jones, and Wingkun had not paid the assessment required for participation in the year 2005, the year in which Charles was born, and that they were not exempt from payment of the assessment.

3. Petitioner did not respond to NICA's Motion for Summary Final Order. Consequently, an Order to Show Cause was entered on July 19, 2007, which provided:

   On July 6, 2007, Respondent served a Motion for Summary Final Order. To date, Petitioner has not responded to the motion. Fla. Admin. Code R. 28-106.204(4).

   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 not be granted.

   
   

4. Petitioner filed a response to the Motion for Summary Final Order on July 25, 2007. However, Petitioner did not dispute NICA's showing that Doctors Santa Maria, Jones, and Wingkun were not participating physicians in the Plan, or offer any evidence to cast doubt on NICA's showing that none of the physicians who were present at Charles' birth were participating physicians in the Plan. But, on July 30, 2007, Petitioner filed a Response to Order to Show Good Cause Why Relief Requested by Respondent Should Not Be Granted, and requested an extension of time to investigate the accuracy of Respondent's contention that Doctors Gale Santa Maria, Debra Jones, and Janet Wingkun were not participating physicians in the year 2005, as well as the accuracy of the exhibits attached to the Motion for Summary Final Order. Respondent then filed a Response and Renewed Motion for Summary Final Order on August 3, 2007.

5. Petitioner's Response to Order to Show Cause and Respondent's Response and Renewed Motion for Summary Final Order were addressed by Order of August 6, 2007, as follows:

   This cause came on to be heard on Petitioner's Response to Order to Show Good Cause Why Relief Requested by Respondent Should Not Be Granted, filed July 30, 2007, and Respondent's Response and Renewed Motion

   for Summary Final Order, filed August 3, 2007. Upon consideration, it is

   
   

   ORDERED Petitioner's request for an extension of time to investigate the accuracy of Respondent's contention that Doctors Ga[le] Santa Maria, Debra Jones, and Janet Wingkun were not participating physicians in the year 2005, as well as the accuracy of the exhibits attached to the Motion for Summary Order, is granted, and she is accorded until October 1, 2007, to complete such investigation and file any further response to Respondent's Motion for Summary Final Order and Renewed Motion for Summary Final Order.

   
   

   It is further ORDERED that after October 1, 2007, Respondent's Motion for Summary Final Order and Renewed Motion for Summary Final Order will be addressed without further delay.

   
   

6. Petitioner filed a Further Response to Respondent's Motion for Summary Final Order and Renewed Motion for Summary Final Order on September 12, 2007, with additional filings on September 17, 2007, September 20, 2007, and September 26, 2007. However, again, Petitioner did not dispute NICA's showing that Doctors Santa Maria, Jones, and Wingkun were not participating physicians in the Plan, much less offer any evidence to cast doubt on NICA's showing that none of the physicians who were present at Charles' birth were participating physicians in the Plan.

7. Given the record, there is no dispute that the physicians who provided obstetrical services during Charles'

   birth were not "participating physician[s]," as that term is defined by Section 766.302(7), Florida Statutes. Consequently, NICA's Motion for Summary Final Order is, for reasons appearing more fully in the Conclusions of Law, well-founded.1

   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), and 766.305(1), 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(4), 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(7), 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 postdelivery 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 postdelivery 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, "participating physician" is defined by Section 766.302(7), Florida Statutes, to mean:

    . . . a physician licensed in Florida to practice medicine who practices obstetrics or performs obstetrical services either full-time or part-time and who had paid or was exempt from payment at the time of the injury the assessment required for participation in the birth-related neurological injury compensation plan for the year in which the injury

    occurred . . . .

    
    

14. Here, indisputably, the physicians shown to have provided obstetrical services during Charles' birth were not "participating physician[s]," as that term is defined by Section 766.302(7), Florida Statutes, and as that term is used in Sections 766.301 through 766.316, Florida Statutes. Consequently, Charles does not qualify for coverage under the Plan.

15. Where, as here, the administrative law judge determines that ". . . obstetrical services were not delivered by a participating physician at the birth, . . . 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 Statement of the Case and Conclusions of Law, it is

ORDERED that Respondent's Motion for Summary Final Order is granted, and the petition for compensation filed by

Shameka Mosley, on behalf of and as parent and natural guardian of Charles Edward Tyson, a minor, is dismissed with prejudice.

DONE AND ORDERED this 3rd day of October, 2007, 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 3rd day of October, 2007.

ENDNOTE

1/ Where, as here, the "moving party presents evidence to support the claimed non-existence of a material issue, he . . . [is] entitled to a summary judgment unless the opposing party comes forward with some evidence which will change the result; that is, evidence to generate an issue of material fact." Turner Produce Company, Inc. v. Lake Shore Growers Cooperative Association, 217 So. 2d 856, 861 (Fla. 4th DCA 1969). Accord Roberts v. Stokley, 388 So. 2d 1267 (Fla. 2d DCA 1980); Perry v. Langstaff, 383 So. 2d 1104 (Fla. 5th DCA 1980).

COPIES FURNISHED:

(Via Certified Mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association 2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

St. Mary's Medical Center 901 45th Street

West Palm Beach, Florida 34407

(Certified Mail No. 7002 0860 0000 9191 7356)

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

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

(Certified Mail No. 7002 0860 0000 9191 7363)

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: 07-002535N

Orders for Case No: 07-002535N