STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NADEGE JEAN-MICHEL, on behalf of and as parent and natural guardian of CHERICA FREMOND, a minor,

vs.

Petitioner,

Case No. 15-1194N

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 April 20, 2015.

STATEMENT OF THE CASE

On March 6, 2015, Petitioner, Nadege Jean-Michel, on behalf of and as parent and natural guardian of Cherica Fremond (Cherica), 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). On March 24, 2015, Petitioner filed an Amended Petition for Benefits. The Amended Petition named Sameh Fayez Wanis, M.D., as the physician who provided obstetric services at the

birth of Cherica at Bethesda Memorial Hospital East on February 17, 2014.

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the Petition on March 11, 2015. Bethesda Memorial Hospital East was served with a copy of the Petition on March 12, 2015. On March 16, 2015, DOAH received a receipt from the United States Postal Service that Sameh Fayez Wanis, M.D., had been served with a copy of the Petition. Neither Dr. Wanis nor Bethesda Memorial Hospital East has petitioned to intervene in this proceeding.

On April 20, 2015, NICA filed a Motion for Summary Final Order, stating that, at the time of Cherica’s birth, Dr. Wanis was not a "participating physician" as that term is defined by section 766.302(7), Florida Statutes (2014). No response to the Motion for Summary Final Order was filed by Petitioner.

FINDINGS OF FACT

1. The Amended Petition named Dr. Wanis as the physician providing obstetric services at Cherica’s birth on February 17, 2014.

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 Dr. Sameh F. Wanis, indicates that in the year 2014, the year in which Dr. Sameh F. Wanis participated in the delivery of Cherica Fremond, as indicated in the Petitioner’s Petition for Benefits,

   Dr. Sameh F. Wanis 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. Sameh F. Wanis in relation to an exempt status for the year 2014. To the contrary, the attached "NICA CARES physician payment history/report shows that in 2014, Dr. Sameh

   F. Wanis paid the Two Hundred and Fifty Dollar ($250) assessment required by Section

   
   

   766.314(4)(b)1., Florida Statutes, for non- participating, non-exempt licensed physician.

   
   

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

4. Petitioner has not offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. Wanis had not paid his $5,000 assessment for 2014.

5. At the time of the birth of Cherica, Dr. Wanis 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 exempted 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. Wanis had not paid his assessment of $5,000 at the time Cherica was born; therefore, he was not a participating physician at the time of Cherica’s birth. No evidence was submitted that, at the time of Cherica’s birth, Dr. Wanis was excluded from paying the $5,000 assessment required for participating physicians. To the contrary, the physician payment history/report shows that in 2014, Dr. Wanis paid the $250

    
    

    assessment required by section 766.314(4)(6)1., for non- participating, non-exempt licensed physicians.

13. The obstetrical services provided during Cherica's birth were not provided by a participating physician. Thus, the claim of Cherica 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 12th day of May, 2015, in Tallahassee,

Leon County, Florida.

S

BARBARA J. STAROS

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 12th day of May, 2015.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association

Elizabeth Dudek, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308

Bethesda Memorial Hospital East Attention: Risk Management 2815 South Seacrest Boulevard Boynton Beach, Florida 33435

(Certified Mail No. 7014 2120 0003 1053 0630)

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: 15-001194N

Orders for Case No: 15-001194N