STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHEENA PUGH, ON BEHALF OF AND AS PARENT AND NATURAL GUARDIAN OF REGINA SINGLETON, A MINOR,

vs.

Petitioner,

Case No. 21-0786N

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

/

SUMMARY FINAL ORDER

Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), filed a Motion for Summary Final Order on March 17, 2021, which is due for consideration. The Motion for Summary Final Order relies upon the Petition for Benefits and the birth certificate attached to the Petition for Benefits.

STATEMENT OF THE ISSUES

The issues to be determined are whether the infant, Regina Singleton (Regina), suffered a birth-related neurological injury as that term is defined by section 766.302, Florida Statutes (2014), and whether Petitioner’s claim for compensation is barred by the application of section 766.313.

PRELIMINARY STATEMENT

On December 18, 2020, 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 Regina, a minor, for a determination of compensability

under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). The filing fee was paid February 22, 2021.

The Petition names Leonardo A. Santana, M.D., as the physician who provided obstetrical services at Regina’s birth, and named Winnie Palmer Hospital for Women and Babies (Winnie Palmer Hospital) as the hospital where Regina was born, on October 18, 2014.

On March 8, 2021, copies of the Petition were served by certified mail on NICA, Dr. Santana, and Winnie Palmer Hospital. On March 17, 2021, NICA filed a Motion for Summary Final Order, asserting that the claim was time- barred and that the infant was not eligible for benefits because she does not meet the birth-weight requirement in section 766.302(2). Petitioner did not respond to the Motion for Summary Final Order, and on March 29, 2021, an Order to Show Cause was issued, giving Petitioner until April 9, 2021, to file any response. The Order to Show Cause advised that the failure to respond would result in the conclusion that Petitioner does not object to the undersigned granting the Motion for Summary Final Order. To date, no response has been filed.

All references to Florida Statutes are to the 2014 codification unless otherwise specified. The relevant provisions of chapter 766 have not been amended in any way relevant to this claim since that time.

FINDINGS OF FACT

1. Regina was born on October 18, 2014, at Winnie Palmer Hospital.

2. The Motion for Summary Final Order indicates that Regina’s medical records are attached to the Motion for Entry of Protective Order Regarding Confidential Documents Related to Petitioner’s Medical Records. There are no medical records attached to the Motion for Entry of Protective Order.

   
   

   Similarly, the Motion for Entry of Protective Order speaks in terms of confidential documents attached to the Motion for Summary Final Order. The only document attached is the Birth Certificate for Regina, which is also attached to the Petition. Notwithstanding that no medical records referenced in the Motion for Summary Final Order are actually attached, there is sufficient information in the birth certificate, which is provided and is already of record, to support the Motion for Summary Final Order.

3. The birth certificate indicates that the infant’s weight at birth was five

   pounds, seven ounces, which is less than 2,500 grams.

4. Petitioner has not disputed that Regina’s birth weight was below the 2,500-gram threshold established in section 766.302(2) for eligibility for NICA benefits.

   
   

   CONCLUSIONS OF LAW

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

6. The Legislature established the Plan “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 and certain other identified people, including the

   infant’s parents, may seek compensation under the Plan by filing a claim for compensation with the Division of Administrative Hearings. §§ 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 related to whether the child has suffered a birth-related neurological injury.

   
   

8. If NICA determines that there 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 administrative law judge in accordance with chapter 120. §§ 766.304, 766.30, and 766.31, Fla. Stat.

9. The initial inquiry is whether the infant has suffered a birth-related neurological injury as that term is defined 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 in 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).

   
   

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 a rebuttable presumption that the injury is a birth-related neurological injury.

11. The evidence presented does not support such a finding in this case. The undisputed evidence indicates that at birth, Regina weighed five pounds, seven ounces, which is below the threshold weight of 2,500 grams established in section 766.302(2). This issue is dispositive as to compensability.

    
    

    Accordingly, Regina did not suffer a birth-related neurological injury as that term is 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 five years after the birth of an infant alleged to have a birth- related neurological injury shall be barred.” Regina was born October 18, 2014, and the Petition in this case was filed December 18, 2020, more than five years after her birth.

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 from this longer limitation period those 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 Regina’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 Plan is barred.

CONCLUSION

Based on 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 the injury is determined not to be compensable.

DONE AND ORDERED this 21st day of April, 2021, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

(via certified mail)

S

LISA SHEARER NELSON

Administrative Law Judge 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings this 21st day of April, 2021.

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

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

Certified No. 7020 2450 0000 1058 7254

Sheena Pugh

483 Plymouth Rock Place Apopka, Florida 32712

Certified No. 7020 2450 0000 1058 7278

Winnie Palmer Hospital Attention: Risk Management 83 West Miller Street Orlando, Florida 32806

Certified No. 7020 2450 0000 1058 7292

Simone Marstiller, Secretary

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

Tallahassee, Florida 32308

Certified No. 7020 2450 0000 1058 7261

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

2360 Christopher Place

Tallahassee, Florida 32308

Certified No. 7020 2450 0000 1058 7285

Leonardo Alexander Santana, M.D. 83 West Miller Street

Orlando, Florida 32806

Certified No. 7020 2450 0000 1058 7308

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: 21-000786N

Orders for Case No: 21-000786N