STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's Motion for Summary Final Order, served November 10, 2009.

STATEMENT OF THE CASE

1. On July 20, 2009, a Petition for Benefits, styled, “Dantra Clay and Johnathan Trevor Murphy, Sr., on Behalf of and as Parents and Natural Guardians of Johnathan Trevor Murphy, Jr., a Minor v. Florida Birth-Related Neurological Injury Association,” was filed with the Division of Administrative Hearings (DOAH), for compensation under the Florida Birth- Related Neurological Injury Compensation Plan (Plan), for injuries allegedly associated with birth on December 8, 2007.

2. DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on July 22, 2009, and served the potential intervenors named in the Petition as described at paragraph 6, infra.

3. On October 7, 2009, following an extension of time in which to do so, NICA served its Response to the Petition and gave notice that it was of the view that the minor child, Johnathan Trevor Murphy, Jr., did not suffer "a birth-related neurological injury," which renders an infant "permanently and substantially mentally and physically impaired," per Section 766.302(2), Florida Statutes. NICA requested that a hearing be scheduled to resolve the issue of compensability. On October 9, 2009, a scheduling order was entered to permit the parties to select hearing dates and otherwise advise the undersigned concerning their needs regarding a hearing on compensability.

   On November 10, 2009, Respondent served and filed the subject Motion for Summary Final Order.1

4. Petitioners did not file a timely response in opposition to the pending Motion as permitted by Florida Administrative Code Rules 28-106.103 and 28-106.204(4).

5. In an abundance of caution, on November 25, 2009, an Order to Show Cause why the Motion for Summary Final Order should not be granted was entered. No timely response to the Order to Show Cause was filed.

6. In the course of considering the Motion for Summary Final Order, the undersigned discovered that although one potential intervenor, Sacred Heart Hospital, had been properly served on July 23, 2009, William Lile, M.D. (also a potential intervenor), had not been served with the Petition by certified mail and further noted that Johnathan Trevor Murphy, Sr., had not signed the original Petition. On December 16, 2009, Orders were entered to correct those procedural and jurisdictional flaws.2 DOAH’s case file currently reflects that Dr. Lile was served by certified mail with all orders, pleadings, and papers of record in this case as of December 21, 2009.3 Neither potential intervenor has moved to intervene.

7. DOAH's file further reflects that on December 28, 2009, the mother, Dantra Clay, filed a letter dated December 23, 2009, which demonstrated that Johnathan Trevor Murphy, Sr., had never participated in Johnathan Trevor Murphy, Jr.'s (the child’s) life; that Johnathan Trevor Murphy, Sr., had not signed the Petition; and that the mother could not locate or contact Johnathan Trevor Murphy, Sr., for purposes of his signing the Petition. That letter also suggested that Johnathan Trevor Murphy, Jr.'s only physical and/or mental problems are asthma and sleep walking.

8. On January 8, 2010, an Order to Show Cause was entered granting all parties to, and until, January 19, 2010, to show

   cause why the style of this cause should not be amended to reflect that the sole Petitioner is Dantra Clay, on Behalf of, and as Mother and Natural Guardian of Johnathan Trevor Murphy, Jr. No one responded to the foregoing Order.

9. On February 12, 2010, an Order Amending Style of Case and Providing for Oral Argument on the Pending Motion for Summary Final Order was entered. That Order read, as to the Motion for Summary Final Order, as follows:

   On November 10, 2009, Respondent, Florida Birth-Related Neurological Injury Compensation Association, (NICA), served its Motion for Summary Final Order which, if granted, would result in a dismissal of this cause. Petitioners [sic] filed no timely response in opposition to the Motion for Summary Final Order as permitted by Florida Administrative Code Rules 28-106.103 and 28-

   106.204.

   
   

   On November 25, 2009, an Order to Show Cause was entered, permitting Petitioners [sic] a further opportunity until December 9, 2009, in which to file any written opposition to the Motion for Summary Final Order. Petitioners again filed no timely written response in opposition to the Motion for Summary Final Order.

   
   

   * * *

   
   

   On December 28, 2009, Dantra Clay, the infant’s mother, filed a letter, dated December 23, 2009, . . . . That letter is also subject to the interpretation that the mother, Dantra Clay, has not perceived the nature of NICA’s Motion for Summary Final Order and the potential finality of this proceeding if NICA’s Motion is granted.

   
   

   THEREFORE . . .

   * * *

   
   

   * * *

   
   

   2. Respondent’s Motion for Summary Final Order remains under consideration.

   
   

   The February 12, 2010, Order also amended the style of this cause as stated above to reflect the true parties in interest and to require NICA’s attorney to arrange with Petitioner Dantra Clay for oral argument on the Motion for Summary Final Order before the undersigned via telephone.

10. On March 1, 2010, Respondent NICA filed a Status Report suggesting that Petitioner had not cooperated in the scheduling of oral argument, so by Order and Notice dated

    March 4, 2010, the undersigned scheduled and noticed a March 23, 2010, telephonic hearing via a toll-free telephone number, for oral argument of the Motion for Summary Final Order.

11. At the date and time appointed for the telephonic oral argument on NICA’s Motion for Summary Final Order, March 23, 2010, at 9:30 a.m., Petitioner did not call in, and after waiting a grace period of 15 minutes, the undersigned heard oral argument from NICA without Petitioner being present.

    ISSUES, FINDINGS OF FACT, AND CONCLUSIONS OF LAW

    
    

12. The predicate for the Motion for Summary Final Order is NICA's contention that, indisputably, the minor, Johnathan

    Trevor Murphy, Jr.’s physical and mental problems are not birth- related, that no obstetrical event resulted in a loss of oxygen or mechanical trauma, and that he is neither permanently and substantially mentally impaired nor permanently and substantially physically impaired.

13. Attached to NICA's Motion was an affidavit of

    
    

    Dr. Raymond J. Fernandez, M.D., a pediatric neurologist, who evaluated Johnathan on September 29, or September 30, 2009,

    (Dr. Fernandez uses one date in his affidavit and the other date in his narrative letter which he incorporated into his affidavit by reference.) Based on that evaluation,4 as well as a review of Johnathan’s medical records and those of his mother,

    Dr. Fernandez concluded, within a reasonable degree of medical probability, that Johnathan’s neurological problems were within the broad range of normal for his age and that Johnathan Trevor Murphy, Jr.'s neurodevelopmental examination was normal, as specifically set out in Dr. Fernandez’s affidavit, dated November 6, 2009, which states, in pertinent part:

    I evaluated JOHNATHAN TREVOR MURPHY, JR. on

    September 30, 2009.

    * * *

    
    

    In summary, there is no evidence in the medical record for an hypoxic event or mechanical injury during labor, delivery or the immediate postnatal period and there is no evidence based on history and physical examination for substantial mental or motor impairment. Johnathan’s neurodevelopmental

    examination is normal. While his speech is somewhat indistinct it is within the broad range of normal for his age.

    
    

    * * *

    
    

    It is my opinion that JOHNATHAN TREVOR MURPHY, JR. is not permanently and substantially mentally impaired nor is her [sic] permanently and substantially physically impaired. Further, I do not believe that any part of his current condition is due to oxygen deprivation or mechanical injury occurring during the course of labor, delivery or the immediate post-delivery hospital [sic] during the birth of JOHNATHAN TREVOR MURPHY, JR.

    (emphasis in original.)

    
    

14. Also attached to NICA's Motion was the affidavit and report of Donald C. Willis, M.D., an obstetrician specializing in maternal-fetal medicine, who reviewed the medical records NICA had received concerning Johnathan's mother. Dr. Willis’ November 3, 2009, affidavit adopts his September 21, 2009, letter-report, and states, within a reasonable degree of medical probability that:

    * * *

    
    

    In summary, labor progressed normally, no fetal distress was recorded during labor, and the child was not depressed at birth. There was no apparent obstetrical event that would suggest oxygen deprivation or mechanical trauma to the child’s brain during labor, delivery or the immediate

    post-delivery period.

    
    

    As such, it is my opinion that there was no oxygen deprivation or mechanical injury occurring in the course of labor, delivery

    or resuscitation in the immediate post- delivery period in the hospital. Further, in that there was no oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period in the hospital, then accordingly, there was no causal event which could have rendered JOHNATHAN MURPHY, JR. permanently and substantially mentally and physically impaired (which conditions I am not even implying exist) as a result of same.

    
    

15. No party having filed any timely response in opposition to the November 10, 2009, Motion for Summary Final Order, as provided for in Florida Administrative Code Rules 28-

    106.103 and 28-106.204; there being no timely response to the November 25, 2009, Order to Show Cause; Petitioner having not appeared for oral argument on March 23, 2010; and the only conditions named by Petitioner in the letter filed December 28, 2009, being "asthma" and "sleep walking," neither of which conditions was suggested by Petitioner to be neurological in nature, and there being nothing argued in that letter which refutes, or even directly disputes, the assessments of

    Dr. Willis and Dr. Fernandez, there appears to be no reasonable, and certainly no medically based, opposition to the Motion for Summary Final Order.

16. Given the record, it is undisputed that Johnathan’s problems, whatever they may be, are not the result of oxygen deprivation or mechanical injury, are not birth-related, and do

    not amount to material and substantial physical impairment and material and substantial mental impairment. Consequently, for reasons appearing more fully in the Conclusions of Law, NICA's Motion for Summary Final Order is well-founded.5

    CONCLUSIONS OF LAW

    
    

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

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

    
    

23. Here, indisputably, Johnathan Trevor Murphy Jr.’s problems, do not appear to be neurologic in nature and further affirmatively appear not to have been "caused 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." Consequently, given the provisions of Section 766.302(2), Florida Statutes, Johnathan Trevor Murphy, Jr., does

    not qualify for coverage under the Plan. See also Humana of Fla., 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, Fla. Birth-Related Neurological Injury Comp. Ass'n v. McKaughan, 668 So. 2d 974, 979 (Fla. 1996).

24. Where, as here, the administrative law judge determines that ". . . the injury alleged is not a birth-related neurological injury . . . she or he shall enter an order [to such effect] and shall 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.

    
    

25. The issue of notice was not raised in the Petition and the claim has been determined to be non-compensable. For both reasons, it is not necessary for this Summary Final Order to address any issue of notice.

CONCLUSION

Based on the foregoing Statement of the Case and Conclusions of Law, it is

ORDERED that Respondent Florida Birth-Related Neurological Injury Compensation Association's Motion for Summary Final Order

is granted, and the Petition for Compensation filed herein naming Johnathan Trevor Murphy, Jr., as the child addressed by Sections 766.31-766.301, Florida Statutes, be and the same is dismissed with prejudice.

DONE AND ORDERED this 1st day of April, 2010, in Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

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 1st day of April, 2010.

ENDNOTES

1/ Section 120.57(1)(h), Florida Statutes (2009), 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. A summary final order shall consist of findings of fact, if any, conclusions of law, a disposition or penalty, if applicable, and any other information required by law to be contained in the final order.

2/ The December 16, 2009, Procedural and Jurisdictional Order advised the parties that the Motion for Summary Final Order would be taken under advisement while new service was attempted upon Dr. Lile, and while Johnathan Trevor Murphy, Sr., was given an opportunity to sign the Petition and alternatively the parents would be required to show cause why the style of this cause should not be corrected to show the mother, Dantra Clay, the sole signator of the Petition, as the sole Petitioner. The December 16, 2009, Order to Show Cause provided an opportunity to Dantra Clay and Johnathan Trevor Murphy, Sr., to clarify the pleadings as aforesaid.

3/ The Notice entered herein on January 8, 2010, incorrectly recited that service occurred December 28, 2009, but the certified return shows service on Dr. Lile on December 21, 2009. See also n.1, of the February 12, 2010, Order Amending Style of Case and Providing for Oral Argument on the Pending Motion for Summary Final Order, which is described at Finding of Fact 9, of this Summary Final Order of Dismissal.

4/ See, e.g., Vero Beach Care Center v. Ricks, 476 So. 2d 262,

264 (Fla. 1st DCA 1985)("Lay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observable."); Ackley v. Gen. Parcel Servs., 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The determination of the cause of a non-observable medical condition, such as a psychiatric illness, is essentially a medical question."); Wausau Ins. Co. v. Tillman, 765 So. 2d 123,

124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obligated to present expert medical evidence establishing that causal connection.").

5/ 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 that 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 Co., Inc. v. Lake Shore

Growers Coop. Ass'n, 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

(Certified Mail No. 7005 3110 0002 0289 9427)

Martin P. McDonnell, Esquire

Rutledge, Ecenia, Purnell & Hoffman, P.A.

109 South Monroe Street Post Office Box 551 Tallahassee, Florida 32302

William Lile, M.D.

5153 North 9th Street, Suite 205

Pensacola, Florida 32504

(Certified Mail No. 7005 3110 0002 0289 9410)

Amy Rice, Acting Investigation Manager Consumer Services Unit

Department of Health

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

(Certified Mail No. 7005 3110 0002 0289 9489)

Elizabeth Dudek, Deputy Secretary Health Quality Assurance

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7005 3110 0002 0289 9496)

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: 09-003843N

Orders for Case No: 09-003843N