STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALEENA AND ORIAN BENNETT, on

behalf of and as parents and natural guardians of ETHAN KAREEM BENNETT, a minor,

Petitioners,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

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SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's Motion for Summary Final Order served July 28, 2010.

STATEMENT OF THE CASE

1. On April 13, 2010, Petitioners Aleena Bennett and Orian Bennett, on behalf of and as parents and natural guardians of Ethan Kareem Bennett (the child), filed a Petition (claim) with the Division of Administrative Hearings (DOAH) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (Plan), for injuries allegedly associated with Ethan's birth on September 2, 2009, and at some unspecified later date1 at Plantation General Hospital.

   
   

2. DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on April 15, 2010.

3. Plantation General Hospital and Dr. Isabel Otero were each respectively served on April 16, 2010. Neither has intervened herein.

4. After several extensions in which to file the response required by Section 766.305(4), Florida Statutes, NICA served, on July 28, 2010, a Motion for Summary Final Order, which was filed at DOAH on the same day. It is presumed that Motion for Summary Final Order constitutes NICA's response as required by statute.

5. NICA's Motion for Summary Final Order is supported by an Affidavit of Records Custodian, made upon personal knowledge by the affiant Jennifer Sullivan, Records Custodian for Plantation General Hospital, to the effect that the portion of medical records attached thereto were retrieved by Ms. Sullivan personally and that they pertain to Ethan Bennett (child), and further that:

   . . . The medical records attached to this Affidavit are true and correct copies of the medical records from the Hospital's records for Ethan Bennett. . . . The medical records attached hereto were made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person having knowledge of those matters. . . . The medical records

   
   

   attached hereto are kept in the normal course of the regularly conducted business activity at the Hospital. . . . The medical records attached hereto were made as a regular practice in the course of the regularly conducted business activity at the Hospital.

   
   

6. The predicate for the Motion for Summary Final Order is that Ethan was a single gestation and at birth weighed less than the 2,500 grams required by statute as the threshold for NICA claim/eligibility. See § 766.302(2), Fla. Stat.

7. The supporting documentation for NICA's position shows, per an NICU Transfer Summary, that on September 2, 2009,

   Aleena Bennett gave birth at Plantation General Hospital to a Baby Boy, weighing 2.450 kg,2 which was confirmed by physical examination; and that the child was a "single liveborn," delivered by C-section. Accordingly, because of the C-section and the absence of any notation of other simultaneous children/births, it is clear that Ethan was the result of a single gestation and weighed 2,450 grams at birth.

8. Petitioners did not file a timely response in opposition to NICA's Motion for Summary Final Order as provided- for in Florida Administrative Code Rules 28-106.103 and 28- 106.204, so on August 10, 2010, an Order to Show Cause provided:

   On July 28, 2010, Respondent served a Motion for Summary Final Order. To date, Petitioners have not responded to the motion. See Fla. Admin. Code. R. 28-106.103 and 28-106.204(4). Nevertheless, and

   
   

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

   
   

   ORDERED that by August 20, 2010, Petitioners shall show good cause in writing, if any they can, why the relief requested by Respondent should not be granted.

   
   

9. No timely response to the August 10, 2010, Order to Show Cause has been filed.

10. Given the record, there is no dispute of material fact. Specifically, there is no dispute regarding Ethan's live birth on September 2, 2009, that he was the result of a single gestation, and that he weighed only 2,450 grams at birth.

    CONCLUSIONS OF LAW

    
    

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

12. 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.

13. 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.

14. 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.

15. 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. 766.302(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.

16. 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. (Emphasis added).

    
    

17. Here, indisputably, Ethan's birth weight was 2,450 grams. Consequently, given the provisions of Section

    
    

    766.302(2), Florida Statutes, Ethan 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).

18. Where, as here, the Administrative Law Judge determines that "the injury alleged is not a birth-related neurological injury . . . she . . . 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.

CONCLUSION

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

ORDERED that the claim for compensation filed by

Aleena Bennett and Orian Bennett, on behalf of and as parents and natural guardians of Ethan Kareem Bennett, a minor, is dismissed with prejudice.

DONE AND ORDERED this 25th day of August, 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 25th day of August, 2010.

ENDNOTES

1/ Sections 766.301-766.316, Florida Statutes, and this proceeding only address birth-related neurological injury. See definition at Section 766.302(2), and scope of determination at 766.309(1)-(2), Florida Statutes.

2/ The NICU Transfer Summary specifies "WEIGHT 2.450 Kg." "Kg" is an abbreviation for "kilograms." A kilogram equals 1,000 grams. 2.450 Kg. translates as 2,450.000 grams.

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. 7010 0290 0001 2352 0208)

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. 7010 0290 0001 2352 0611)

Elizabeth Dudek, Deputy Secretary Health Quality Assurance

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

Tallahassee, Florida 32308

(Certified Mail No. 7010 0290 0001 2352 0628)

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: 10-001956N

Orders for Case No: 10-001956N