STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEVIN AND MEGAN KEARNEY, on

behalf of and as parents and natural guardians of ELIJAH KEARNEY, a minor,

vs.

Petitioners,

Case No. 14-0203N

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's Motion for Summary Final Order, filed on March 3, 2014.

STATEMENT OF THE CASE

On January 6, 2014, Petitioners, Kevin Kearney and

Megan Kearney, on behalf of and as parents and natural guardians of Elijah Kearney (Elijah), a minor, filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. (Petition) with the Division of Administrative Hearings (DOAH) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). The Petition named Jeffrey B. Brooks, M.D., as the physician who provided obstetric services at

the birth of Elijah at Florida Hospital Deland on October 10, 2012.

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the Petition on January 17, 2014. Florida Hospital Deland was served with a copy of the Petition on January 21, 2014. On January 16, 2014, DOAH sent a copy of the Petition to Dr. Brooks by certified mail, numbered 7012 1640 0000 7868 5508. DOAH did not receive a green card from the United States Postal Service (USPS) showing receipt by Dr. Brooks; however, a review of the website for the USPS at www.usps.com, shows that the Petition was delivered on

January 21, 2014. In an abundance of caution, DOAH sent another copy of the Petition to Dr. Brooks at the address of Florida Hospital Deland. The Petition was delivered by the USPS, but was returned to DOAH by Florida Hospital Deland. Neither Dr. Brooks nor Florida Hospital Deland has petitioned to intervene in this proceeding.

On March 3, 2014, NICA filed a Motion for Summary Final Order, stating that, at the time of Elijah’s birth, Dr. Brooks was not a "participating physician" as that term is defined by section 766.302(7), Florida Statutes (2012). Although, the motion referenced a physician payment history/report, no such document was attached to the motion. On April 17, 2014, NICA filed a copy of the physician payment history/report. No

response to the Motion for Summary Final Order was filed by

Petitioners.

FINDINGS OF FACT

1. The Petition named Dr. Brooks as the physician providing obstetric services at Elijah’s birth on October 10, 2012.

2. Attached to the Motion for Summary Final Order is an affidavit of NICA's custodian of records, Tim Daughtry, attesting to the following, which has not been refuted:

   One of my official duties as Custodian of Records is to maintain NICA’s official records relative to the status of physicians as participating physicians in the Florida Birth-Related Neurological Compensation Plan who have timely paid the Five Thousand Dollar ($5,000.00) assessment prescribed in Section 766.314(4)(c), Florida Statutes, and the status of physicians who may be exempt from payment of the Five Thousand Dollar ($5,000.00) assessment pursuant to Section 766.314(4)(c), Florida Statutes. Further, I maintain NICA's official records with respect to the payment of the Two Hundred Fifty Dollar ($250.00) assessment required by Section 766.314(4)(b)1., Florida Statutes, by all non-participating, non-exempt physicians.

   
   

   * * *

   
   

   As payments of the requisite assessments are received, NICA compiles data in the “NICA CARES” database for each physician. The “NICA CARES physician payment history/report” attached hereto for Jeffrey B. Brooks, M.D., indicates that in the year 2012, the year in which Dr. Brooks participated in the delivery of Elijah Kearney, as indicated in the Petitioner’s [sic] Petition for Benefits, Dr. Brooks did not pay the Five Thousand Dollar ($5,000) assessment required for

   
   

   participation in the Florida Birth-Related Neurological Injury Compensation Plan.

   
   

   Further, it is NICA’s policy that if a physician falls within the exemption from payment of the Five Thousand Dollar ($5,000) assessment due to their status as a resident physician, assistant resident physician or intern as provided in Section 766.314(4)(c), Florida Statutes, annual documentation as to such exempt status is required to be provided to NICA. NICA has no records with respect to Dr. Brooks in relation to an exempt status for the year 2012.

   
   

3. The physician payment history/report for Dr. Brooks supports Mr. Daughtry’s affidavit.

4. Petitioners have not offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. Brooks had not paid his $5,000 assessment for 2012.

5. At the time of the birth of Elijah, Dr. Brooks was not a participating physician in the Plan.

   CONCLUSIONS OF LAW

   
   

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

7. 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.

   
   

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), 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. Dr. Brooks had not paid his assessment of $5,000 at the time Elijah was born; therefore, he was not a participating physician at the time of Elijah’s birth. No evidence was submitted that, at the time of Elijah’s birth, Dr. Brooks was excluded from paying the $5,000 assessment required for participating physicians.

13. The obstetrical services provided during Elijah's birth were not provided by a participating physician. Thus, the claim of Elijah is not compensable under the Plan.

CONCLUSION

Based on the Findings of Fact and Conclusions of Law, it is ORDERED that Respondent's Motion for Summary Final Order is

granted, and the Petition is dismissed with prejudice. DONE AND ORDERED this 30th day of April, 2014, 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 30th day of April, 2014.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

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

(Certified Mail No. 7012 3050 0000 1250 8563)

Elizabeth Dudek, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308

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: 14-000203N

Orders for Case No: 14-000203N