Findings Of Fact The Petition named Dr. Bankert as the physician providing obstetric services at Gavin's birth on June 30, 2009. 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 ($5,000.00) 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 ($5,000.00) assessment pursuant to Section 766.314(4)(c), Florida Statutes. Further, 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. Glenn Bankert indicates that in the year 2009, the year which Dr. Bankert participated in the delivery of Gavin King, as indicated in the Petitioner's [sic] Petition for Benefits, Dr. Bankert 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. Bankert in relation to an exempt status for the year 2009. To the contrary, the attached "NICA CARES physician payment history/report" shows that in 2009, Dr. Bankert paid the Two Hundred and Fifty Dollar ($250) assessment required by Section 766.314(4)(b)1., Florida Statutes, for non- participating, non-exempt licensed 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. Bankert was not a participating physician in the Plan at the time of Gavin's birth. Petitioners have not 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 Gavin's birth. Dr. Bankert was not a participating physician at the time of Gavin's birth on June 30, 2009.
The Issue At issue in this proceeding is whether Katherine E. Shearl, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings 1. Katherine E. Shearl (Katherine) is the natural daughter of Barbara Jacobs. She was born a live infant on June 25, 1990, at HCA Northwest Regional Hospital, a hospital located in Margate, Broward County, Florida, and her birth weight was in excess of 2500 grams. 2. The physician providing obstetrical services during the birth of Katherine was Jeffrey Schwartz, M.D., who was not, at the time, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Prenatal Care 3. Ms. Jacobs’ prenatal care was provided by Lherisson Domond, M.D., who was, at all times Material hereto, a participating physician in the Plan. 4. Ms. Jacobs fist sought prenatal care from Dr. Domond on March 29, 1990, and saw him on four occasions thereafter prior to June 25, 1990. Her prenatal course was uneventful, and her estimated date of confinement was established as July 2, 1990. 5. On the morning of June 25, 1990, Ms. Jacobs, accompanied by her boyfriend, Richard Shearl, the father of Katherine, drove 3 to Dr. Domond’s office for the purpose of picking up a prescription for a toothache Ms. Jacobs had been suffering. Upon arrival at Dr. Domond’s office Mr. Shearl went inside to pick up the prescription and while he was gone Ms. Jacobs, who was waiting in the car, suddenly experienced profuse vaginal bleeding. 6. Thereafter, Ms. Jacobs entered Dr. Domond’s office, at which time she continued to hemorrhage significantly. Dr. Domond comforted Ms. Jacobs and monitored the baby with a fethoscope, while an emergency call was placed to 911. Ms. Jacobs was not in labor at the time and Dr. Domond did not conduct a pelvic examination or render any specific gynecological or obstetrical services to her because he was of the opinion that she had sustained an abruption of the placenta. 7. Ms. Jacobs was transported by ambulance to HCA Northwest Regional Hospital, the closest facility to Dr. Domond’s office, and Dr. Domond followed. Dr. Domond did not, however, have staff privileges at that hospital and he did not render any medical services to her in the hospital. Significantly, Dr. Domond remained at the nurses’ station, did not enter the delivery room, and did not participate in the delivery or the provision of any medical care for Ms. Jacobs or Katherine while they were patients in the hospital. 8. Upon arrival at the hospital Ms. Jacobs continued to bleed, but her membranes were intact. She was diagnosed with vaginal bleeding, with deceleration of fetal heart rate, and an emergency caesarian section was performed. The physician providing such services, as heretofore noted, was Dr. Jeffrey Schwartz. The post-operative diagnosis reflected vaginal bleeding-decelerations of the fetal heart rate, abruption of the placenta, and nuchal cord X2.
Conclusions For Petitioner: Barbara Jacobs 609 Northeast ist Street Pompano Beach, Florida 33060 For Respondent: David W. Black, Esquire Frank, Effman & Weinberg, P.A. 8000 Peters Road Plantation, Florida 33324
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 one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See, Section 120.68(2), 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. 10
Findings Of Fact Based upon Petitioners and Respondent’s stipulation, the following facts are found: Kieara Johnson and Joshua Maier (Petitioners) are the parents and legal guardians of Kayden Maier (Kayden), and are the “Claimants” as defined by section 766.302(3), Florida Statutes. Kayden incurred a birth-related neurological injury as that term is defined in section 766.302(2), which was the sole and proximate cause of Kayden’s injury. At birth, Kayden weighed 3,830 grams. Jose Llinas Messeguer, M.D., and Richard Strathmann, M.D., rendered obstetrical services in the delivery of Kayden, and at all times material to these proceedings, were “participating physicians” as defined in section 766.302(7). Brandon Regional Hospital is a hospital located in Brandon, Florida, and is the “hospital” as that term is defined in section 766.302(6), where Kayden was born. Petitioners filed a petition pursuant to section 766.305, seeking compensation from NICA, and that Petition is incorporated by reference in its entirety, including any attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact By stipulation filed October 5, 1993, petitioners and respondent stipulated as follows: COMES NOW, Jorge Soto and Anahi Soto, as natural guardians of Ana Marie Soto, a minor, and the Respondent, Florida Birth-Related Neurological Injury Compensation Association, by and through their undersigned attorneys and hereby stipulate to the following matters of record as evidenced by Claimant's Petition for Benefits, the medical records of the Claimants, and the affidavit of the Association's Records Custodian, Judy Duell, and hereby stipulate as follows: That the Petitioner filed a claim for compensation ("Petition") on May 21, 1992. That the Petition relates to the birth of ANA MARIE SOTO, which occurred on March 4, 1990, at Jackson North Maternity Hospital, Miami, Dade County, Florida. That the medical doctor providing obstetric services during the birth of Ana Marie Soto on March 4, 1990 was Dr. Alvaro Gordo, M.D. That a review of the records of the Respondent as evidenced in the Duell affidavit clearly indicates that as of March 4, 1990, Dr. Alvaro Gordo, M.D. was not a participating physician within the meaning of Section 766.301(7) and Section 766.314(c), Fla. Stat. (1991). WHEREFORE, the parties stipulate to the matters above for the purpose of providing a factual predicate upon which the Court may dispose of this claim without resort to further proceedings.
Findings Of Fact The Petition named Dr. Decker as the physician providing obstetric services at Jeovani’s birth on January 18, 2008. Attached to the Motion for Summary Final Order 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 Compensation Plan who have timely paid the Five Thousand Dollar ($5,000.00) 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 ($5,000.00) assessment pursuant to Section 766.314(4)(c), Florida Statutes. Further, 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. Lawrence Decker, indicates that in the year 2008, the year in which Dr. Decker participated in the delivery of Jeovani Morataya, as indicated in the Petitioner’s Petition for Benefits, Dr. Decker 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. Decker in relation to an exempt status for the year 2008. To the contrary, the attached "NICA CARES physician payment history/report shows that in 2008, Dr. Decker paid the Two Hundred and Fifty Dollar ($250) assessment required by Section 766.314(4)(b)1., Florida Statutes, for non- participating, non-exempt licensed physicians. The physician payment history/report for Dr. Decker supports Mr. Daughtry’s affidavit. Petitioners have not offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. Decker had not paid his $5,000 assessment for 2008. At the time of the birth of Jeovani, Dr. Decker was not a participating physician in the Plan. The Petition was filed on August 11, 2015, which is more than five years after Jeovani’s birth.
