STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUMMARY FINAL ORDER

Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), filed a Motion for Summary Final Order on June 19, 2019, which is due for consideration. The motion relies upon the Petition for Benefits and medical records Petitioner provided to NICA from St. Joseph’s Women’s Hospital (St. Joseph’s).

STATEMENT OF THE ISSUES

The issues to be determined are whether the infant, Lucia Cura (Lucia), suffered a birth-related neurological injury as that term is defined by section 766.302, Florida Statutes (2011), and whether Petitioner’s claim for compensation is barred by the application of section 766.313.

PRELIMINARY STATEMENT

On December 6, 2018, Petitioner filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq., on behalf of and as parent and natural guardian of Lucia Cura, a minor, for a determination of compensability under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). The Petition names Silvia Bevilacqua, M.D., as the physician who provided obstetrical services at Lucia’s birth, and named

St. Joseph’s Hospital as the hospital where Lucia was born, on October 5, 2011.

On January 2, 2019, the Petition was served by certified mail on NICA, Dr. Bevilacqua, and St. Joseph’s. Certified returns were received on January 14 and 22, 2019, for

St. Joseph’s and NICA, respectively. Copies of the Petition served on Dr. Bevilacqua at all known addresses came back as undeliverable.

NICA asked for, and received, three extensions of time to respond to the Petition. The final Order Granting Extension of Time extended the deadline to June 7, 2019. Accordingly, on June 19, 2019, an Order to Show Cause was issued, directing NICA to file a response no later than June 24, 2019, or explain why a response could not be granted. The Order to Show Cause advised that the failure to respond to the Order would result in the scheduling of a hearing to determine compensability.

On June 19, 2019, NICA filed a Motion for Summary Final Order, as well as a Motion for Entry of a Protective Order Regarding Confidential Documents Related to Petitioner’s Medical Records (Motion for Protective Order). By separate Order, the Motion for Protective Order has been granted. The Motion for Summary Final Order relies upon the discharge summary records from St. Joseph’s provided by Petitioner, and the Petition itself.

Petitioner did not respond to the Motion for Summary Final Order. On July 1, 2019, a second Order to Show Cause was issued, directing Petitioner to file a response to the Motion for Summary Final Order no later than July 8, 2019. The Order advised that failure to timely file a response “will lead to the conclusion that Petitioner does not dispute the assertions made in the motion, and does not object to the entry of a final order dismissing the petition.”

To date, Petitioner has not filed a response of any kind.

All references to Florida Statutes are to the 2011 codification unless otherwise specified. The relevant provisions of chapter 766 have not been amended in any way relevant to this claim since 2011.

FINDINGS OF FACT

1. On October 5, 2011, at 6:43 p.m., Dana Cura gave birth to a baby girl named Lucia Cura.

2. A certified copy of the birth certificate was submitted by Petitioner as an attachment to the Petition for Benefits.

   The birth certificate is a record of vital statistics, and as such, is an exception to the hearsay rule pursuant to section 90.803(9), Florida Statutes (2019). The birth certificate lists Lucia’s weight at birth as four pounds, six ounces.

3. The discharge summary from St. Joseph’s lists Lucia’s weight at birth as 1,995 grams. At the time of her discharge on October 18, 2011, Lucia’s birth weight was 2,280 grams.

4. Petitioner has submitted nothing to refute the birth certificate and discharge summary’s record of Lucia’s birth weight. Likewise, Petitioner has not disputed that Lucia’s birth weight was below the 2,500 grams required for eligibility for NICA benefits for a baby born of a single gestation, or the 2,000 grams required for a multiple gestation birth, as the term “birth-related neurological injury” is defined in section 766.302(2).

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings (DOAH) has jurisdiction over the parties and to the subject matter of these proceedings pursuant to sections 120.569, 120.57(1), and 766.304, Florida Statutes.

6. The Plan was established by the Legislature “for the purpose of providing compensation, irrespective of fault, for

   birth-related neurological injury claims” related to births occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

7. An injured infant, his or her 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. Section

   
   

   766.305(4) provides that NICA, which administers the Plan, has

   
   

   45 days from the date that a complete claim is served 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.

8. If NICA determines that the alleged injury is a birth- related neurological injury that is compensable under the Plan, it may award compensation to the claimant, provided that the award is approved by the assigned administrative law judge.

   § 766.305(7), Fla. Stat. If NICA disputes the claim, as it does in this case, the dispute must be resolved by the assigned administrative law judge in accordance with chapter 120, Florida Statutes. §§ 766.304, 766.30, and 766.31, Fla. Stat.

9. The first inquiry is whether the infant has sustained a birth-related neurological injury as defined by section 766.302(2), which provides:

   (2) “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. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality. (emphasis supplied).

   
   

10. If the administrative law judge determines that the infant meets the statutory weight threshold and has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury, and finds that as a result of the injury the infant was rendered permanently and substantially mentally and physically impaired, then section 766.309(1) provides that there is a rebuttable presumption that the injury is a birth-related neurological injury.

11. In this case, the evidence does not support such a finding. The undisputed evidence presented indicates that at birth, Lucia weighed 1,995 grams, well below the threshold weight specified in the definition in section 766.302(2). This issue is dispositive with respect to compensability. Based upon this evidence, Lucia did not sustain a birth-related neurological injury as defined in section 766.302(2), and is not eligible for benefits under the Plan.

12. Petitioner’s claim is also time-barred. Section

    
    

    766.313 provides that any claim for compensation under sections

    
    

    766.301 through 766.316 that is “filed more than 5 years after the birth of an infant alleged to have a birth-related neurological injury shall be barred.” Lucia was born October 5, 2011, and the Petition in this case was filed December 6, 2018, well past the five-year deadline.

13. Section 95.11(4)(b), Florida Statutes, provides that medical malpractice actions brought on behalf of a minor may be brought on or before the child’s eighth birthday. However, section 95.11(4) specifically excludes cases brought pursuant to sections 766.301 through 766.316.

14. Sections 766.301 through 766.316 are the provisions governing NICA claims. Therefore, while section 95.11(4)(b) extends the statute of limitations for any civil action brought on Lucia’s behalf, and that limitation is tolled pursuant to section 766.306 while this claim has been pending at DOAH, Petitioner’s claim for benefits under the NICA Plan is barred.

CONCLUSION

Based upon the Findings of Fact and Conclusions of Law, NICA’s Motion for Summary Final Order is granted. Petitioner’s claim for benefits under the Plan is found to be time-barred, and her injury is determined to not be compensable.

Accordingly, the Petition for Benefits is dismissed with prejudice.

DONE AND ORDERED this 15th day of July, 2019, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 15th day of July, 2019.

COPIES FURNISHED:

(via certified mail)

Dana Cura

5004 West Dickens Avenue Tampa, Florida 33629

(Certified Mail No. 7014 2120 0003 1053 8087)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association Suite 1

2360 Christopher Place

Tallahassee, Florida 32308 (eServed)

(Certified Mail No. 7014 2120 0003 1053 8094)

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

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

(Certified Mail No. 7014 2120 0003 1053 8100)

Mary C. Mayhew, Secretary

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

Tallahassee, Florida 32308 (eServed)

St. Joseph’s Women’s Hospital Attention: Risk Management

3030 West Dr. MLK Jr. Boulevard Tampa, Florida 33607

(Certified Mail No. 7014 2120 0003 1053 8148)

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: 18-006734N

Orders for Case No: 18-006734N