STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on to be heard on Respondent's Motion for Summary Final Order, filed July 9, 2009.

STATEMENT OF THE CASE

1. On June 3, 2009, Lauri George and Christopher George, and behalf of and as parents and natural guardians of

   Tyler George (Tyler), a minor, and Lauri George and Christopher George, individually, filed a petition with the Division of Administrative Hearings (DOAH) to resolve, inter alia, whether Tyler qualified for coverage 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 petition on June 4, 2009, and on July 9, 2009, NICA served a Motion for Summary Final Order, pursuant to Section 120.57(1)(h), Florida Statutes.1 In the interim,

   Mark Scheinberg, M.D. (the physician named in the petition as having provided obstetrical services at Tyler's birth),

   Mark Scheinberg, M.D., P.A., and West Boca Medical Center (the hospital named in the petition as the facility at which the birth occurred), were granted leave to intervene.

3. The predicate for NICA's Motion for Summary Final Order was its assertion that, indisputably, none of the physicians named in the petition (Mark Scheinberg, M.D., OB/GYN; or

   Penna Reddy, M.D., Otto Aldana Centeno, M.D., Feyshiola Awonusonu, M.D., and Jorge Perez, M.D.,

   neonatologists), as having provided care during or following Tyler's birth, or any other physician named in the medical records (Doctors Susan Benhaim and Stuart Leaderman), as having been involved with Tyler's birth, were "participating

   physician[s]," as defined by law, because 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 Scheinberg, Reddy, Centeno, Awonusonu, Perez, Benhaim, and Leaderman, had not paid the assessment required for participation in calendar year 2005, the year in which Tyler was born, and that they were not exempt from payment of the assessment.

4. Neither Petitioners nor Intervenors responded to NICA's Motion for Summary Final Order. Consequently, an Order to Show Cause was entered on July 22, 2009, which provided:

   On July 9, 2009, Respondent served a Motion for Summary Final Order. To date, Petitioners and Intervenors have not responded to the motion. Fla. Admin. Code R. 28-106.103 and 28-106.204(4).

   Nevertheless, and notwithstanding they have been accorded the opportunity to do so, it is

   
   

   ORDERED that by August 3, 2009, Petitioners and Intervenors show good cause in writing, if any they can, why the relief requested by Respondent should not be granted.

   
   

   Neither Petitioners nor Intervenors responded to the Order to Show Cause.

5. Given the record, it is undisputed that the physician alleged to have provided obstetrical services during Tyler's

   birth, and the other physicians who provided care during or following Tyler's 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.2

   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), 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.

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(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.

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 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.

11. 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 . . . .

    
    

12. Here, indisputably, the physician named in the petition as having provided obstetrical services at Tyler's birth, as well as the other physicians who provided care during or following Tyler's 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, Tyler does not qualify for coverage under the Plan.

13. 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 Lauri George and Christopher George, individually, and on behalf of and as parents and natural guardians of Tyler George, a minor, is dismissed with prejudice.

DONE AND ORDERED this 12th day of August, 2009, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 2009.

ENDNOTES

1/ Section 120.57(1)(h), Florida Statutes, provides:

(h) Any party to a proceeding in which an administrative law judge of the Division of Administrative Hearings has final order authority may move for a summary final order when there is no genuine issue as to any material fact. A summary final order shall be rendered if the administrative law judge determines from the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that no genuine issue as to any material fact exists and that the moving party is entitled as a matter of law to the entry of a final order . . . .

2/ When, 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 a material fact. It is not sufficient for an opposing party merely to assert that an

issue does exist." 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

Otto Aldana Centeno, M.D. 21644 State Road 7

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

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

(Certified Mail No. 91 7108 2133 3935 7992 4772)

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: 09-003014N

Orders for Case No: 09-003014N