Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
Findings Of Fact Based on the stipulation of Petitioners and Respondent, the following facts are found: Elizabeth Midland and Christopher Midland (Petitioners) are the parents and legal guardians of Jolee Harper Midland (Jolee), and are the “Claimants” as defined by section 766.302(3). Jolee incurred a “birth-related neurological injury” as defined in section 766.302(2), on or about January 18, 2018, which was the sole and proximate cause of Jolee’s current medical condition. At birth, Jolee weighed 2,850 grams. Stephanie Caywood, M.D., rendered obstetrical services in the delivery of Jolee and, at all times material to this proceeding, was a “participating physician” as defined in section 766.302(7). Fort Walton Beach Medical Center is a hospital located in Fort Walton Beach, Florida, and is the “hospital” as that term is defined in section 766.302(6). Petitioners filed a petition pursuant to section 766.305, seeking compensation from the Florida Birth-Related Neurological Injury Compensation Association (NICA), and that petition is incorporated herein by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
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).
Findings Of Fact On March 20, 2016, the Hospital admitted Shawntel Gordon and she gave birth to a baby girl named Aiyanna on March 21, 2016. As stipulated by the parties, the medical records demonstrate that Amy Jo Gabriel, M.D. provided obstetric services relative to the birth of Aiyanna. 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.
The Issue At issue in this proceeding is whether obstetrical services were rendered by a "participating physician" during the birth of Antonio John Stutmann.
Findings Of Fact Fundamental findings Donna Stutmann is the mother and natural guardian of Antonio John Stutmann, a minor. Antonio was born a live infant on July 2, 1998, at Holmes Regional Medical Center, a hospital located in Brevard County, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services during Antonio's birth was Diane Kelly, M.D. At the time, Dr. Kelly was a full-time employee of the State of Florida whose practice was confined to a county health department (the Brevard County Health Department). Dr. Kelly's status under the Plan Dr. Kelly, also known as Diane Kelly Morrill, M.D., (license number ME0047018) was employed full-time by the State of Florida from 1989 through 1999, and confined her practice to the Brevard County Health Department. During that period, from 1989 through 1997, Dr. Kelly paid the $250 assessment required of all physicians, other than "participating physicians." Section 766.314(4)(b) and (c), Florida Statutes (1989). For the years 1997 and 1998, following an amendment to Subsection 766.314(4)(b)4f, Dr. Kelly, as a full-time employee of the State of Florida whose practice was confined to a county health department, was exempted from payment of the $250 annual assessment. Subsection 766.314(4)(b)4f, Florida Statutes (1997). For the year 2000, following termination of employment with the State of Florida, Dr. Kelly again paid the $250 annual assessment required of all physicians, other than "participating physicians." At no time did Dr. Kelly ever elect to participate in the Plan or pay the assessment of $5,000 required for participation. Consequently, for reasons appearing more fully in the Conclusions of Law which follow, Dr. Kelly was not, at the time of Antonio's birth or at any other time, a participating physician in the Plan.
Findings Of Fact The Petition named Dr. Castellon as the physician providing obstetric services at Jayden's birth on October 2, 2010. Attached to the motion is an affidavit of NICA's custodian of records, Tim Daughtry, attesting to the following, which has not been refuted: One of my official duties as Custodian of Records is to maintain NICA's official records relative to the status of physicians as participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan who have timely paid the Five Thousand Dollar ($5,000) assessment prescribed in Section 766.314(4)(c), Florida Statutes, and the status of physicians who may be exempt from payment of the Five Thousand Dollar ($5,000) assessment pursuant to Section 766.314(4)(c), Florida Statutes. I maintain NICA's official records with respect to the payment of the Two Hundred Fifty Dollar ($250.00) assessment required by Section 766.314(4)(b)1., Florida Statutes, by all non-participating, non- exempt physicians. * * * As payments of the requisite assessments are received, NICA compiles data in the "NICA CARES" database for each physician. The "NICA CARES physician payment history/report" attached hereto for Dr. Celestino Castellon indicates that in the year 2010, the year in which Dr. Castellon participated in the delivery of Jayden Dewayne Norris, as indicated in the Petitioners' Petition for Benefits, Dr. Castellon did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth-Related Neurological Injury Compensation Plan. Further, it is NICA's policy that if a physician falls within the exemption from payment of the Five Thousand Dollar ($5,000) assessment due to their status as a resident physician, assistant resident physician or intern as provided in Section 766.314(4)(c), Florida Statutes, annual documentation as to such exempt status is required to be provided to NICA. NICA has no records with respect to Dr. Castellon in relation to an exempt status for the year 2010. To the contrary, the attached "NICA CARES physician payment history/report" shows that in 2010, Dr. Castellon paid the Two Hundred and Fifty Dollar ($250) assessment required by Section 766.314(4)(b)1., Florida Statutes, for non- participating, non-exempt physicians. The NICA CARES statement attached to the affidavit of Mr. Daughtry supports the representations made in the affidavit. Petitioners have not offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. Castellon was not a participating physician in the Plan at the time of Jayden's birth. In her response to the Order to Show Cause, Ms. Louis did not dispute that Dr. Castellon did not participate in the Plan in 2010, but argued that his non-participating status should not be a bar to finding that the claim is compensable. Dr. Castellon was not a participating physician at the time of Jayden's birth on October 2, 2010.
Findings Of Fact The Petition named Dr. Winger as the physician providing obstetric services at River's birth on July 25, 2010. Attached to the motion is an affidavit of NICA's custodian of records, Tim Daughtry, attesting to the following, which has not been refuted: One of my official duties as Custodian of Records is to maintain NICA's official records relative to the status of physicians as participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan who have timely paid the Five Thousand Dollar ($5,000) assessment prescribed in Section 766.314(4)(c), Florida Statutes, and the status of physicians who may be exempt from payment of the Five Thousand Dollar ($5,000) assessment pursuant to Section 766.314(4)(c), Florida Statutes. I maintain NICA's official records with respect to the payment of the Two Hundred Fifty Dollar ($250.00) assessment required by Section 766.314(4)(b)1., Florida Statutes, by all non-participating, non- exempt physicians. * * * As payments of the requisite assessments are received, NICA compiles data in the "NICA CARES" database for each physician. The "NICA CARES physician payment history/report" attached hereto for Dr. Douglas Winger indicates that in the year 2010, the year in which Dr. Winger participated in the delivery of River Hawley, as indicated in the Petition for Benefits, Dr. Winger did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth- Related Neurological Injury Compensation Plan. Further, it is NICA's policy that if a physician falls within the exemption from payment of the Five Thousand Dollar ($5,000) assessment due to their status as a resident physician, assistant resident physician or intern as provided in Section 766.314(4)(c), Florida Statutes, annual documentation as to such exempt status is required to be provided to NICA. NICA has no records with respect to Dr. Winger in relation to an exempt status for the year 2010. To the contrary, the attached "NICA CARES physician payment history/report" shows that in 2010, Dr. Winger paid the Two Hundred and Fifty Dollar ($250) assessment required by Section 766.314(4)(b)1., Florida Statutes, for non- participating, non-exempt physicians. The NICA CARES statement attached to the affidavit of Mr. Daughtry supports the representations made in the affidavit. No party has offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. Winger was not a participating physician in the Plan at the time of River's birth. Neither Petitioners nor Intervenors have requested additional discovery time, and Petitioners have not moved for leave to amend the Petition to name any additional physician as rendering obstetrical services in connection with River's birth. Dr. Winger was not a participating physician at the time of River's birth on July 25, 2010.
