STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL AND ASHLEY RICHARDSON,

on behalf of and as parents and natural guardians of SOPHIA DIOLINDA RICHARDSON, a minor,

vs.

Petitioners,

Case No. 13-3179N

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for Summary Final Order filed by Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), on October 8, 2013.

STATEMENT OF THE CASE

On August 19, 2013, Petitioners, Michael Richardson and Ashley Richardson, on behalf of and as parents and natural guardians of Sophia Diolinda Richardson (Sophia), a minor, filed a Petition for Benefits Pursuant to Florida Statutes Section

766.301 et seq. (Petition) with the Division of Administrative Hearings (DOAH) for a determination of compensability under the Florida Birth-Related Neurological Injury Compensation Plan

(Plan). The Petition named Jairan Duke-Elmore, D.O., as the physician who provided obstetric services for the birth of Sophia. The Petition stated that Sophia was born at Sacred Heart Hospital, in Pensacola, Florida.

DOAH served NICA with a copy of the Petition on August 23, 2013. DOAH served Sacred Heart Hospital with a copy of the Petition on August 22, 2013. DOAH served a copy of the Petition on Dr. Duke-Elmore on September 16, 2013. As of the date of this Summary Final Order of Dismissal, neither Sacred Heart Hospital nor Dr. Duke-Elmore has petitioned to intervene in this proceeding.

On October 8, 2013, NICA filed a Motion for Summary Final Order, requesting that a Summary Final Order be entered finding that the claim was not compensable because Sophia did not meet the minimum statutory birth weight as required by section 766.302(2), Florida Statutes.

As of the date of this Summary Final Order of Dismissal, Petitioners have not filed a response to the Motion for Summary Final Order.

FINDINGS OF FACT

1. Sophia Diolinda Richardson was born on April 8, 2013, at Sacred Heart Hospital in Pensacola, Florida. She was a single gestation.

   
   

2. Based on the medical records from Sacred Heart Hospital, Sophia weighed 2,480 grams at birth. There is no dispute that Sophia did not weigh at least 2,500 grams.

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

   §§ 766.301-766.316, Fla. Stat.

   
   

4. The 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.

5. 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), and 766.305(1), 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(4), Fla. Stat.

6. NICA has determined that Sophia does not have a claim that is compensable under the Plan and has filed a Motion for Summary Final Order, requesting that an order be entered finding that the claim is not compensable.

   
   

7. In ruling on the motion, 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).

      
      

      § 766.309(1), Fla. Stat.

      
      

8. The term "birth-related neurological injury" is defined in section 766.302(2) as follows:

   "Birth-related neurological injury" means 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.

   
   

9. The evidence, which is not refuted, established that Sophia was a single gestation and did not weigh at least 2,500 grams at birth. Thus, Sophia has not sustained a birth-related neurological injury because she did not meet the minimum

statutory weight as set forth in the definition of "birth-related neurological injury," in section 766.302(2).

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition filed by Michael Richardson and Ashley Richardson, on behalf of and as parents and natural guardians of Sophia Diolinda Richardson, is dismissed with prejudice.

DONE AND ORDERED this 24th day of October, 2013, in Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

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 24th day of October, 2013.

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. 7012 1010 0001 8358 3718)

Michael Richardson Ashley Richardson 1911 Bay Pine Circle

Gulf Breeze, Florida 32563

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See

§ 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).

Docket for Case No: 13-003179N

Orders for Case No: 13-003179N