STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TABITHA AND SHAWN COMIS, on

behalf of and as parents and natural guardians of TANNER COMIS, a minor,

Petitioners,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

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) Case No. 11-0542N

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SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent Florida Birth-Related Neurological Injury Compensation Association's (NICA's) Motion for Summary Final Order, filed and served May 11, 2011.

STATEMENT OF THE CASE

1. On January 31, 2011, Petitioners Tabitha and

   
   

   Shawn Comis, on behalf of and as parents and natural guardians of Tanner Comis (Tanner), 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), for injuries allegedly associated with Tanner's birth on January 7, 2010, at "Sacred Heart Health System," which

   
   

   appears to be the organizational umbrella that includes Sacred Heart Hospital, the hospital where Tanner was born.

   Brian Sontag, M.D., was named as the physician delivering obstetrical services at Tanner's birth.

2. DOAH served NICA with a copy of the claim on February 3, 2011.

3. Brian Sontag, M.D., was served on February 4, 2011, and Sacred Heart Hospital was served on February 7, 2011. Neither physician nor hospital has intervened herein.

4. On May 11, 2011, NICA served a Motion for Summary Final Order, which motion was also filed with DOAH on May 11, 2011. The premise for this motion was that the child, Tanner, was born live at less than the statutory minimum weight for a single gestation. See § 766.302(2) Fla. Stat.1/

5. NICA's Motion for Summary Final Order is supported by a "certificate" executed by Allison Turner, a Custodian of Records for Sacred Heart Health System. The "certificate" is sworn and subscribed in the same manner as an affidavit and is here treated as an affidavit. It represents that the attached records are kept in the office of Sacred Heart Hospital in

   Ms. Turner's custody; that Ms. Turner is the legal custodian and keeper of said records, which are required by Florida law to be kept; that the attached records were made in the regular course of business of Sacred Heart Hospital; and that it was in the

   
   

   regular course of business for such records to be made at the time of the events, transactions, or occurrences to which they refer or within a reasonable time thereafter.

6. The "Patient Information" sheet or "Coding Summary Report" (the item bears both titles) attached to the custodian's certificate/affidavit shows that "COMIS BABYBOY" was a "single liveborn" who suffered extreme immaturity or respiration. The attached Discharge Summary reveals that, "COMIS, BABYBOY [was born] January 7, 2010 at 1715 <10%ile (gms)," and that at hospital discharge on January 29, 2010, he still only weighed 1,930 grams. The attached Newborn Screening Laboratory Report shows Tanner Comis, whose mother is Tabitha Comis, had a birth weight of only 1,715 grams. The attached Delivery Record Summary shows Tabitha Comis delivered by caesarian a 1,715 gram male infant. Together, the several records show that only a single infant was delivered at approximately 34 weeks' gestation and that single infant, Tanner Comis, who is the result of a single gestation, weighed only 1,715 grams at his live birth.

7. Petitioners did not file a 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

   May 25, 2011, an Order to Show Cause provided:

   
   

   On May 11, 2011, Respondent served a Motion for Summary Final Order. To date, Petitioners have not responded to the

   
   

   motion. 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 June 10, 2011, Petitioners shall show good cause in writing, if any they can, why the relief requested by Respondent should not be granted.

   
   

8. No timely response to the May 25, 2011, Order to Show Cause has been filed.

9. Given the record, there is no dispute of material fact.

   
   

   Specifically, there is no dispute regarding Tanner's live birth on January 7, 2010; that he was the result of a single gestation; or that he weighed only 1,715 grams at birth.2/

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. §§ 766.301-766.316, Fla. Stat.

11. 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.

12. 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 DOAH. §§ 766. 302(3), 766.303(2), 766.305(1), and 766.313,

    
    

    Fla. Stat. NICA, 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.

13. 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 (ALJ) 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 ALJ in accordance with the provisions of chapter 120, Florida Statutes.

    §§ 766.304, 766.309, and 766.31, Fla. Stat.

    
    

14. In discharging this responsibility, the ALJ 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 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 ALJ 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.

15. 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).

    
    

16. Here, indisputably, Tanner's birth weight was only 1,715 grams. Consequently, given the provisions of section 766.302(2), Tanner 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, Florida Birth-Related Neurological Injury Compensation Association v. McKaughan, 668 So. 2d 974, 979 (Fla. 1996).

CONCLUSION

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

ORDERED that: The claim for compensation filed by Tabitha Comis and Shawn Comis on behalf of and as parents and natural guardians of Tanner Comis, a minor, is dismissed with prejudice.

DONE AND ORDERED this 13th day of June, 2011, 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 13th day of June, 2011.

ENDNOTES

1/ Section 120.57(1)(h), Florida Statutes (2010), 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/ Where, as here, the "moving party presents evidence to support the claimed non-existences 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 338 So. 2d 1267 (Fla.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. 7010 1670 0000 3097 1864)

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 1670 0000 3097 1901)

Elizabeth Dudek, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308

(Certified Mail No. 7010 1670 0000 3097 1918)

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 § 766.311, Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n 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: 11-000542N

Orders for Case No: 11-000542N