STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NINA GRAHAM, parent and natural guardian of NALA MUHAMMAD, a minor,

Petitioner,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

/

Case No. 19-4861N

SUMMARY FINAL ORDER OF DISMISSAL

This matter came before the undersigned on Respondent’s Motion for Summary Final Order (Respondent’s Motion), filed January 6, 2020.

STATEMENT OF THE CASE

On August 26, 2019, Petitioner filed a Petition for Determination of NICA Compensability (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 Louis Gutierrez, M.D., as the physician who provided obstetric services for the birth of Nala Muhammad (Nala) on May 23, 2019, at Jackson Memorial North Medical Center in Miami, Florida. On

September 16, 2019, the matter was assigned to the undersigned for all further proceedings.

On September 17, 2019, DOAH mailed a copy of the Petition by certified mail to Respondent, Dr. Gutierrez, and Jackson Memorial North Medical Center. On September 18, 2019, Respondent was served with a copy of the Petition.

On November 4, 2019, Respondent filed a Motion for Extension of Time in Which to Respond to Petition (Motion for Extension).

On November 18, 2019, Respondent’s Motion for Extension was granted. On January 6, 2019, Respondent’s Motion was filed, wherein Respondent contends that Dr. Gutierrez was not a participating physician at the time of Nala’s birth, and, therefore, Petitioner’s claim does not meet the statutory requirements of the Plan and is not compensable. Petitioner did not file a response to Respondent’s Motion.

FINDINGS OF FACT

1. Petitioner alleges that Nala was born on May 23, 2019, at Jackson Memorial North Medical Center in Miami, Florida.

2. Petitioner alleges that Dr. Gutierrez was the physician providing obstetric services and who was present at Nala’s birth.

3. Attached to Respondent’s Motion is the affidavit of

   
   

   Tim Daughtry, custodian of records for Respondent. Mr. Daughtry attests in his affidavit that, in 2019, Dr. Gutierrez did

   
   

   not pay the $5,000.00 assessment prescribed in section 766.314(4)(c), Florida Statutes, required for participation in the Plan. Mr. Daughtry’s affidavit further provides that Respondent has no records to suggest that Dr. Gutierrez is otherwise exempt from payment. To the contrary, Dr. Gutierrez paid the $250.00 assessment required by Section 766.314(4)(b)1., for non-participating, non-exempt licensed physicians.

4. Dr. Gutierrez was not a participating physician in the Plan at the time of Nala’s birth.

   CONCLUSIONS OF LAW

   
   

5. DOAH has jurisdiction over the parties to and the subject matter of these proceedings. §§ 766.301-766.316, Fla. Stat.

6. 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.

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.

   
   

   Respondent, 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.

8. Respondent has determined that Petitioner does not have a claim that is compensable under the Plan and filed Respondent’s Motion, requesting that an order be entered finding that the claim is not compensable and dismissing the claim with prejudice.

9. In determining a claim for benefits, Section 766.309 sets forth certain threshold determinations that the undersigned must make. Said section provides, in pertinent part to this matter, as follows:

   1. The administrative law judge shall make the following determinations based upon all available evidence:

      
      

      * * *

      
      

      (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; 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.

      
      

      * * *

      
      

   2. If the administrative law judge determines that the injury alleged is not a birth-related neurological injury or 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.

      
      

10. The term “participating physician” is defined in section 766.302(7) as follows:

    [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. Such term shall not apply to any physician who practices medicine as an officer, employee, or agent of the Federal Government.

    
    

11. Section 766.314 sets forth the requisite assessments and conditions for exemption from payment under the Plan. The unrefuted evidence establishes that Dr. Gutierrez was not a participating physician, as defined in section 766.302(7), at the time of Nala’s birth. Accordingly, Petitioner’s claim does not meet the statutory requirements of the Plan, and, therefore, is not compensable.

CONCLUSION

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

DONE AND ORDERED this 21st day of January, 2020, in Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

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 21st day of January, 2020.

COPIES FURNISHED:

(via certified mail)

Nina Graham Apartment 209

16450 Northwest 2nd Avenue Miami, Florida 33169

(Certified Mail No. 7018 3090 0002 1880 7882)

Kenney Shipley, Executive Director Florida Birth-Related Neurological

Injury Compensation Association

Mary C. Mayhew, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308 (eServed)

(Certified Mail No. 7018 3090 0002 1880 7899)

Jackson Memorial North Medical Center Attention: Risk Management

160 Northwest 170th Street Miami, Florida 33169

(Certified No. 7018 3090 0002 1880 7912)

Louis Gutierrez, M.D.

160 Northwest 170th Street Miami, Florida 33169

(Certified No. 7018 3090 0002 1880 7905)

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: 19-004861N

Orders for Case No: 19-004861N