STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OLIVIA BROWN, on behalf of and as parent and natural guardian of A’MAYAH WHATLE, a deceased minor,

vs.

Petitioner,

Case No. 16-3700N

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent,

and

ROMEO ACOSTA, JR., M.D., AND GULFCOAST INSTITUTE OF OB/GYN, LLC,

Intervenors.

/

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 July 26, 2016.

STATEMENT OF THE CASE

On June 27, 2016, Petitioner, Olivia Brown, on behalf of and as parent and natural guardian of A’Mayah Whatley (A’Mayah), a deceased 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 Emanuel Javate, M.D., as the physician who provided obstetric services for the birth of A’Mayah at St. Petersburg General Hospital in St. Petersburg, Florida, on May 20, 2016. Petitioner filed an Amended Petition for Benefits on July 20, 2016, which named Romeo Acosta, M.D., as the physician providing obstetric services at the birth of A’Mayah.

DOAH served NICA with a copy of the Petition on July 1, 2016. DOAH served a copy of the Petition on St. Petersburg General Hospital on July 5, 2016. On July 12, 2016, DOAH received a return receipt from the United States Postal Service showing that Emanuel Javate, M.D., was served with a copy of the Petition.

On July 26, 2016, NICA filed a Motion for Summary Final Order, requesting that a summary final order be entered finding that the claim was not compensable because A’Mayah did not meet the requisite minimum statutory birth weight as required by section 766.302(2), Florida Statutes.

On July 28, 2016, Romeo Acosta, Jr., M.D., and Gulfcoast Institute of OB/GYN, LLC, filed a Motion to Intervene, which was granted by Order dated August 10, 2015. As of the date of the

Summary Final Order of Dismissal, St. Petersburg General Hospital has not petitioned to intervene in this proceeding.

An Order to Show Cause was entered on August 10, 2016, which allowed Petitioner until August 25, 2016, to inform the undersigned in writing as to why a summary final order of fismissal should not be entered and the case closed. To date, no response has been filed to the Motion for Summary Final Order or to the Order to Show Cause.

FINDINGS OF FACT

1. A’Mayah Whatley was born on May 20, 2016, at

   
   

   St. Petersburg General Hospital in St. Petersburg, Florida. She was a single gestation.

2. NICA attached to its motion a certification of medical records signed by the Custodian of Records from St. Petersburg General Hospital, and a one-page discharge record for A’Mayah. The medical record shows that A’Mayah’s birth weight was less than 2,500 grams.

3. A review of the file reveals that no contrary evidence was presented to dispute the medical record from St. Petersburg General Hospital showing that A’Mayah’s birth weight was less than 2,500 grams.

   
   

   CONCLUSIONS OF LAW

   
   

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

   §§ 766.301-766.316, Fla. Stat.

   
   

5. 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.

6. 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.

7. NICA has determined that Petitioner 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.

8. 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.

      
      

9. 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.

   
   

10. The evidence, which is not refuted, established that A’Mayah was a single gestation and did not weigh at least 2,500 grams at birth. Thus, A’Mayah did not sustain 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 Olivia Brown, individually and as natural parent of A’Mayah Whatley, a deceased minor, is dismissed with prejudice.

DONE AND ORDERED this 30th day of August, 2016, 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 30th day of August, 2016.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association 2360 Christopher Place, Suite 1

Tallahassee, Florida 32308 (eServed)

(Certified Mail No. 7015 0640 0001 2701 0923)

Olivia Brown

3890 7th Avenue North, Unit 2 St. Petersburg, Florida 33713

(Certified Mail No. 7015 0640 0001 2701 0930)

Ethen R. Shapiro, Esquire Hill Ward Henderson

Post Office Box 2231 Tampa, Florida 33601 (eServed)

(Certified Mail No. 7015 0640 0001 2701 0947)

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

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

(Certified Mail No. 7015 0640 0001 2701 0954)

Elizabeth Dudek, Secretary Health Quality Assurance

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308 (eServed)

(Certified Mail No. 7015 0640 0001 2701 0961)

St. Petersburg General Hospital Attention: Risk Management 6500 38th Avenue North

St. Petersburg, Florida 33710

(Certified Mail No. 7015 0640 0001 2701 0978)

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: 16-003700N

Orders for Case No: 16-003700N