STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AIYANNA MALCOLM (A MINOR), BY AND THROUGH HER PARENTS AND NATURAL GUARDIANS, DUVAL MALCOLM AND SHAWNTEL GORDON,

Petitioner,

Case No. 19-5911N

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

/

SUMMARY FINAL ORDER

This cause came before the undersigned on a Motion for Summary Final Order filed by Respondent, Florida Birth-Related Neurological Injury Compensation Association (“NICA”), on February 14, 2020, to which Petitioners, Duval Malcolm and Shawntel Gordon, on behalf of and as parents and natural guardians of Aiyanna Malcolm (“Aiyanna”), a minor, filed no response in opposition.

STATEMENT OF THE ISSUE

The issue to be determined is whether Aiyanna suffered a “birth-related neurological injury,” as defined in section 766.302, Florida Statutes (2015).

PRELIMINARY STATEMENT

On November 5, 2019, Petitioners filed a Petition for Determination of Availability of NICA Coverage (“Petition”), with the Florida Division of Administrative Hearings (“DOAH”), primarily seeking a determination that

Aiyanna was not eligible for benefits under the Florida Birth-Related Neurological Injury Compensation Plan (“Plan”).

The Petition named Amy Jo Gabriel, M.D., as the obstetrician who delivered Aiyanna on September 25, 2015, and Bayfront Medical Center’s Baby Place at John Hopkins All Childrens Hospital (“Hospital”), as the hospital where Aiyanna was born. As reflected in the Certified Return Receipts, DOAH served NICA with a copy of the Petition on November 18, 2019, and served the Hospital with a copy of the Petition on November 19, 2019. DOAH served Dr. Gabriel with a copy of the Petition and received the signed, Certified Return Receipt on January 22, 2020, though the recipient failed to note the date of service.

NICA received one extension of time to respond to the Petition. On February 14, 2020, NICA filed a Motion for Summary Final Order (“Motion”) requesting that the undersigned dismiss the Petition on grounds that the claim is not compensable because Dr. Gabriel was not a participating physician in the Plan at the time of the birth.

Petitioners’ response to the Motion was due by February 21, 2020. Fla.

Admin. Code R. 28-106.204. Counsel for Petitioners informed the undersigned’s office that they would not be filing a response. By failing to do so, Petitioners have conceded to the allegations made and the relief sought therein.

On February 17, 2020, the undersigned issued an order to show cause requiring the parties to file supporting documentation concerning Aiyanna’s delivery date and the name of the physician providing obstetric services. On February 21, 2020, the parties filed a Joint Stipulation Regarding Date of Birth and Obstetrician.

In addition to the Joint Stipulation Regarding Date of Birth and Obstetrician, the available evidence in this cause includes an affidavit by Tim Daughtry, NICA’s custodian of records, in which he avers that Dr. Gabriel was not a participating physician in the Plan at the time of birth and attaches a payment history document reflecting that Dr. Gabriel has paid the

$250 minimum annual fee required as a non-participating physician. The affidavit is attached to the Motion.

All references to the Florida Statutes are to the 2015 version unless otherwise specified. The relevant provisions of chapter 766, Florida Statutes, have not been amended in any way relevant to this proceeding since 2015.

FINDINGS OF FACT

1. On March 20, 2016, the Hospital admitted Shawntel Gordon and she gave birth to a baby girl named Aiyanna on March 21, 2016.

2. As stipulated by the parties, the medical records demonstrate that Amy Jo Gabriel, M.D. provided obstetric services relative to the birth of Aiyanna.

3. Based on the affidavit of NICA’s records custodian, Tim Daughtry, and the official payment history attached thereto, Dr. Gabriel never paid the annual $5,000 assessment required by physicians who elect to participate in the Plan to NICA. NICA lacked any documentation from Dr. Gabriel that she was exempt from paying the $5,000 assessment as a resident physician, assistant resident physician, or intern. Rather, Dr. Gabriel paid $250 to NICA in 2016—the annual assessment for physicians who do not qualify for an exemption and nevertheless elect not to participate in the Plan.

   
   

   CONCLUSIONS OF LAW

4. DOAH has jurisdiction over the parties and exclusive jurisdiction over the subject matter of these proceedings pursuant to sections 120.569, 120.57(1), and 766.304, Florida Statutes.

   
   

5. 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. NICA administers the Plan. § 766.302(1), Fla. Stat.

6. The 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. NICA 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.

7. If NICA determines that the alleged injury 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. 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. §§ 766.304, 766.30, and 766.31, Fla. Stat.

8. Section 766.309(1)(b), Florida Statutes, requires the administrative law judge to determine the following “based upon all available evidence”:

   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.

   
   

9. Section 766.302(7) defines “participating physician” 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.

   
   

10. Under section 766.314(4)(c), Florida Statutes, physicians who wish to participate in the Plan are required to pay an annual assessment of $5,000. A “resident physician, assistant resident physician, or intern in an approved postgraduate training program” is deemed a participating physician and is exempt from the $5,000 annual assessment. Id.

11. Conversely, under section 766.314(4)(b)1., non-participating physicians are required to pay an annual assessment of $250.

12. If the administrative law judge determines that the physician was not a participating physician at the time of 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 on the findings of fact above, Dr. Gabriel was not a participating physician in the Plan at the time she delivered Aiyanna. This issue is dispositive with respect to compensability.

14. Accordingly, based on the undisputed available evidence, Aiyanna is not eligible for benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of Law, NICA’s unopposed Motion for Summary Final Order is granted because Petitioners’ claim is not compensable. Petitioners’ Petition is dismissed with prejudice.

DONE AND ORDERED this 5th day of March, 2020, in Tallahassee, Leon County, Florida.

S

ANDREW D. MANKO

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 5th day of March, 2020.

COPIES FURNISHED:

(via certified mail)

Jordan A. Dulcie, Esquire

Searcy, Denney, Scarola Barnhart and Shipley, P.A. 2139 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33409 (eServed)

(Certified No. 7019 2280 0000 5623 6182)

Kenney Shipley, Executive Director Florida Birth-Related Neurological Injury Compensation Association 2360 Christopher Place, Suite 1

Tallahassee, Florida 32308 (eServed)

(Certified No. 7019 2280 0000 5623 6199)

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

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

(Certified No. 7019 2280 0000 5623 6205)

Mary C. Mayhew, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308 (eServed)

(Certified No. 7019 2280 0000 5623 6212)

Bayfront Baby Place Attention: Risk Management 550 6th Street South

St. Petersburg, Florida 33701

(Certified No. 7019 2280 0000 5623 6229)

Amy Jo Gabriel, M.D. Community Health etc. 1344 22nd Street South

St. Petersburg, Flordia 33712

(Certified No. 7019 2280 0000 5623 6236)

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: 19-005911N

Orders for Case No: 19-005911N