STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAMANTHA MERCADO, on behalf of and as parent and natural guardian of NEVAEH RUBIO, a minor,

vs.

Petitioner,

Case No. 19-1268N

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came for consideration on a Motion for Summary Final Order filed by Respondent, Florida Birth-Related Neurological Injury Compensation Association (“NICA”), on June 19, 2019.

STATEMENT OF THE CASE

On February 28, 2019, Petitioner, Samantha Mercado, as parent and natural guardian of Nevaeh Rubio (“Nevaeh”), a minor, filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. (the “Petition”), with the Division of Administrative Hearings (“DOAH”) for the determination of compensability under the Florida Birth-Related Neurological Injury Compensation Plan (the “Plan”).

In the Petition, Petitioner identified Luisa Vanegas, M.D., as the physician who provided obstetric services at Nevaeh’s birth on January 4, 2019, at AdventHealth Winter Park (“AdventHealth Hospital”) in Winter Park, Florida.

DOAH served Dr. Vanegas with a copy of the Petition on

March 19, 2019, and served the Hospital that same date. DOAH also served NICA with a copy of the Petition on March 19, 2019.

In its Motion for Summary Final Order, NICA asserts that Dr. Vanegas was not a participating physician in the Plan at the

time of Nevaeh’s delivery. Consequently, NICA requests DOAH enter a summary final order denying the claim as not compensable because the injury does not meet the requirements under section 766.309 to qualify as a “birth-related neurological injury.”

As of the date of this Order, Petitioner has not responded to NICA’s motion.

FINDINGS OF FACT

1. Nevaeh was born on January 4, 2019, at AdventHealth Hospital located in Winter Park, Florida.

2. In the Petition, Petitioner identified Dr. Luisa Vanegas as the physician who provided obstetrical services to Nevaeh. No evidence was presented that names another physician who participated in the course of labor, delivery, or resuscitation in the postdelivery period for Nevaeh.

   
   

3. To support its motion, NICA produced from its official records a payment history which shows that, for 2019, Dr. Vanegas did not pay to NICA the annual $5,000 assessment required from physicians who elect to participate in the Plan. See

   § 766.314(4)(c), Fla. Stat. On the contrary, Dr. Vanegas’ payment history reveals that she paid $250 to NICA, which is the specific assessment for physicians who elect not to participate in the Plan. See § 766.314(4)(b)1., Fla. Stat. Further, no evidence was

   offered demonstrating that Dr. Vanegas was exempt from paying the assessment for 2019.

4. Therefore, based on the evidence in its records, NICA determined that Petitioner’s claim did not meet the statutory requirements for compensability under the Plan. NICA subsequently filed the Motion for Summary Final Order. Petitioner has not responded in opposition to NICA’s motion or representations.

   CONCLUSIONS OF LAW

   
   

5. The undersigned, as an Administrative Law Judge, has exclusive jurisdiction over the subject matter of this proceeding.

   § 766.304, Fla. Stat.

   
   

6. The Florida Legislature established the Plan “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.

   
   

7. 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, then 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.

8. 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.

9. In this matter, however, NICA determined that Petitioner’s claim is not compensable under the Plan. Therefore, NICA filed a Motion for Summary Final Order, requesting an order be entered finding that the claim is not compensable.

10. In ruling on NICA’s motion, section 766.309(1) provides that the Administrative Law Judge must make the several determinations “based upon all available evidence,” including:

    (b) 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.

    
    

11. The term “participating physician” is defined in section 766.302(7) and means:

    1. 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. (emphasis added).

       
       

12. Thereafter, “[i]f the administrative law judge determines that . . . obstetrical services were not delivered by a participating physician at the birth, she or he shall enter an order and shall cause a copy of such order to be sent immediately to the parties by registered or certified mail.” § 766.309(2), Fla. Stat.

13. Based upon “all available evidence,” the obstetrical services Nevaeh received at birth were not delivered by a “participating physician” as defined in section 766.302(7). Therefore, Petitioner’s claim does not meet the requirements for compensation under the Plan, and Nevaeh is not eligible for NICA

benefits.

DISPOSITION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition is dismissed, with prejudice.

DONE AND ORDERED this 16th day of July, 2019, in Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER 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 16th day of July, 2019.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association Suite 1

2360 Christopher Place

Tallahassee, Florida 32308 (eServed)

(Certified No. 7014 2400 0000 8929 6737)

Samantha Mercado Apartment 206

582 Willow Pond Court Orlando, Florida 32825

(Certified No. 7017 2400 0000 8929 6744)

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

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

(Certified No. 7017 2400 0000 8929 6751)

Mary C. Mayhew, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308 (eServed)

(Certified No. 7017 2400 0000 8929 6768)

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: 19-001268N

Orders for Case No: 19-001268N