STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CORY M. IRVIN, a minor, by and through his natural parents, CORAL PERDOMO and REGINALD L.

IRVIN, Individually,

vs.

Petitioners,

Case No. 19-1269N

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

/

SUMMARY FINAL ORDER

Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), has filed a Motion for Summary Final Order (Motion), which is due for consideration. The Motion relies upon the Petition for Determination of Eligibility for Benefits and a certified copy of the Discharge Summary for Winnie Palmer Hospital for Women and Babies (Winnie Palmer).

STATEMENT OF THE ISSUE

The issue to be determined is whether the infant, Cory M. Irvin (Cory), suffered a birth-related neurological injury as that term is defined by section 766.302, Florida Statutes (2016).

PRELIMINARY STATEMENT

On March 1, 2019, Cory Irvin, by and through his natural parents, Coral Perdomo and Reginald L. Irvin (collectively, Petitioners), filed a Petition for Determination of Eligibility for NICA Benefits Pursuant to Florida Statutes Section 766.305 (Petition). Petitioners did not seek the benefits available under the Florida Birth-Related Neurological Injury Compensation Plan (Plan), but rather, a determination that Cory is not eligible for benefits, which would leave Petitioners free to pursue any civil remedies available to them. Petitioners alleged that 1) Cory was ineligible because of his weight at birth; and 2) Winnie Palmer did not provide the required notice of NICA benefits.

The Petition names Megan Gray, M.D., as the attending physician, and Winnie Palmer as the hospital where Cory was born.

An Amended Petition for Determination of Eligibility for NICA Benefits (Amended Petition) was filed March 12, 2019, which omitted the claim regarding notice.

NICA, Dr. Gray, and Winnie Palmer were each served with the Amended Petition by certified mail on March 19, 2019. Certified Return Receipts were filed on March 22 and 27, 2019, indicating that NICA and Dr. Gray were served on March 20 and 25, 2019,

respectively. No receipt of service has been filed with respect to Winnie Palmer.

NICA asked for, and received, two extensions of time in which to respond to the Amended Petition. On July 8, 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. The Motion for Entry of a Protective Order is granted by separate Order.

Florida Administrative Code Rule 28-106.204 allows seven days for the filing of a response to a motion. To date, Petitioners, who are represented by counsel, have not responded to the Motion, and the time for doing so has expired.

All references to Florida Statutes are to the 2016 codification unless otherwise specified. The relevant provisions of chapter 766 have not been amended in any way relevant to this proceeding since 2016.

FINDINGS OF FACT

1. On July 10, 2016, Coral Perdomo gave birth to a baby boy named Cory.

2. Both the Amended Petition and the Discharge Summary from Winnie Palmer list Cory’s birth weight as 1,552 grams.

   CONCLUSIONS OF LAW

   
   

3. 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.

4. 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.

5. 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 regarding whether the injury suffered is a birth- related neurological injury.

6. 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.

   
   

7. Whether the infant has sustained a birth-related neurological injury is determined by the definition in 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 added).

   
   

8. 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.

9. In this case, the evidence does not support such a finding. The undisputed evidence presented indicates that at birth, Cory weighed 1,552 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, Cory did not sustain a birth-related neurological injury as defined in section 766.302(2), and is not eligible for

benefits under the Plan.

CONCLUSION

Based upon the Findings of Fact and Conclusions of Law, NICA’s Motion for Summary Final Order is granted, and Petitioners’ claim is found to be not compensable. Accordingly, Petitioner’s Amended Petition is dismissed with prejudice.

DONE AND ORDERED this 24th 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 24th day of July, 2019.

COPIES FURNISHED:

(via certified mail)

Christina Figueroa, Esquire Hogan, P.A.

5734 South Semoran Boulevard Orlando, Florida 32822 (eServed)

Mary C. Mayhew, Secretary

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

Tallahassee, Florida 32308 (eServed)

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: 19-001269N

Orders for Case No: 19-001269N