00-004811N Samuel Broughton And Angela Broughton, On Behalf Of And As Parents And Natural Guardians Of Emmanuel Broughton, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, April 20, 2001.

Summary: Proof demonstrates that infant`s birth-weight was less than required 2,500 grams. Consequently, claim was not compensable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAMUEL BROUGHTON and ANGELA )

BROUGHTON, as parents and natural )

guardians of EMMANUEL BROUGHTON, )

a deceased minor, )

)

Petiti oners, )

)

vs. ) Case No. 00 - 4811N

)

FLORIDA BIRTH - RELATED NEUROLOGICAL )

INJURY COMPENSATION ASSOCIATION, )

)

Respondent. )

____________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings,

by Administrative Law Judge William J. Kendrick, held a final

hearing in the above - st yled case on March 14, 2001, by video

teleconference, with sites in Pensacola and Tallahassee, Florida.

APPEARANCES

For Petitioner: Samuel W. Bearman, Esquire

1015 North 12th Avenue

Pensacola, Florida 3250 1

For Respondent: James Bruce Culpepper, Esquire

Akerman, Senterfitt & Eidson, P.A.

301 South Bronough Street, Suite 200

Post Office Box 10555

Tallahassee, Flori da 32302 - 2555

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Emmanuel Broughton, a

deceased minor, weighed at least 2,500 grams at birth.

PRELIMINARY STATEMENT

On December 1, 2000, Samuel Broughton and Angela Broughton,

as parents and na tural guardians of Emmanuel Broughton, a

deceased minor, filed a claim with the Division of Administrative

Hearings (DOAH) for compensation under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan).

DOAH served the Florida Birth - Related Neurological Injury

Compensation Association (NICA) with a copy of the claim on

December 5, 2000. NICA reviewed the claim, and on December 19,

2000, gave notice that it had "determined that such claim is not

a 'birth related neurological injury' within th e meaning of

Section 766.302(2), Florida Statutes (1993), inasmuch as the

infant . . . did not weigh at least 2,500 grams at birth," and

requested that "an order [be entered] setting a hearing in this

cause on the issue of the compensability of this claim. " Such a

hearing was held on March 14, 2001.

At hearing, the parties stipulated to the facts set forth in

paragraphs one and two of the Findings of Fact. Petitioners

called no witnesses; however, Petitioners' Exhibit 1 (the medical

records, Tabs 6 - 10, fi led with DOAH on December 5, 2000) was

received into evidence. Respondent called no witnesses and

offered no exhibits.

The transcript of the hearing was filed April 9, 2001, and

the parties were accorded ten days from that date to file

proposed final orde rs. The parties elected to file such

proposals and they have been duly considered.

FINDINGS OF FACT

1. Samuel Broughton and Angela Broughton, are the parents

and natural guardians of Emmanuel Broughton (Emmanuel), a

deceased minor. Emmanuel was born a live infant on March 19,

1997, at Sacred Heart Hospital, a hospital located in Pensacola,

Florida, and he died March 21, 1997.

2. Emmanuel's weight at birth was 1,395 grams. 1

CONCLUSIONS OF LAW

3. The Division of Administrative Hearings has jurisdiction

over the parties to, and the subject matter of, these

proceedings. Section 766.301, et seq. , Florida Statutes.

4. The Florida Birth - Related Neurological Injury

Compensation Plan (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. Section

766.303(1), Florida Statutes.

5. The injured "infant, his personal representative,

parents, dependents, and next of kin," may seek compensation

under the Plan by filing a claim for compensation with the

Division of Administrative Hearings within five years of the

infant's birth. Sections 766.302(3), 766.303(2), 766.305(1), and

766.313, Florida Statutes. Th e Florida Birth - Related

Neurological Injury Compensation Association (NICA), 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."

Section 766.305(3), Florida Statutes.

6. If NICA determines that the injury alleged in a claim is

a compensable birth - related neurological injury, it may award

compensat ion to the claimant, provided that the award is approved

by the administrative law judge to whom the claim has been

assigned. Section 766.305(6), Florida Statutes. If, on the

other hand, NICA disputes the claim, as it has in the instant

case, the dispute must be resolved by the assigned administrative

law judge in accordance with the provisions of Chapter 120,

Florida Statutes. Sections 766.304, 766.307, 766.309, and

766.31, Florida Statutes.

7. Pertinent to this case, "birth - related neurological

injury " is defined by Section 766.302(2), Florida Statutes, to

mean:

. . . injury to the brain or spinal cord of a

live infant weighing at least 2,500 grams at

birth caused by oxygen deprivation or

mechanical injury occurring in the course of

labor, delivery, or resuscitation in the

immediate post - delivery 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 b y genetic or

congenital abnormality.

8. As the claimants, the burden rested on Petitioners to

demonstrate entitlement to compensation. Section 766.309,

Florida Statutes. See also Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 34 9, 350 (Fla. 1st DCA 1977),

("[T]he burden of proof, apart from statute, is on the party

asserting the affirmative issue before an administrative

tribunal.") Here, Petitioners failed to sustain that burden.

9. As heretofore noted in the Findings of Fact, the parties

stipulated and the proof otherwise demonstrated that Emmanuel's

birth weight was 1,395 grams. At such weight, Emmanuel was below

the 2,500 gram minimum established by Section 766.302(2), Florida

Statutes. Consequently, Emmanuel's injury was not shown to be a

"birth - related neurological injury" as defined by law, and the

subject claim is not compensable under the Plan. 2 Sections

766.302(2) and 766.309(1), Florida Statutes.

10. Where, as here, the administrative law judge determines

that " . . . the injury alleged is not a birth - related

neurological injury . . . he [is required to] enter an order [to

such effect] and . . . cause a copy of such order to be sent

immediately to the parties by registered or certified mail."

Section 766.309(2), Fl orida Statutes. Such an order constitutes

final agency action subject to appellate court review. Section

766.311(1), Florida Statutes.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the petition for compens ation filed by

Samuel Broughton and Angela Broughton, as parents and natural

guardians of Emmanuel Broughton, a deceased minor, be and the

same is hereby denied with prejudice.

DONE AND ORDERED this 20th day of April, 2001, in

Tallahassee, Leon County, Flo rida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of April, 2001.

ENDNOTE

1/ Emmanuel was one of twin boys delivered March 19, 1997, to

Mrs. Broughton. Emmanuel (identified as Twin A in the medical

records) weighed 1,395 grams at birth and Samuel O'Neil Broughton,

III (identified as Twin B in the medical records) weighed 1,365

grams at birth.

2/ In reaching such conclusion, Petitioners' argument that in the

case of multiple births the combined weight of the infants, as

opposed to the individual weight of the injured infant, should be

considered when resolving whether the minimum requirement of 2,500

grams has been met has not been overlooked. Such argument is,

however, contrary to the plain and unambiguous language chosen by

the legislature to define "birth - related neurological injury," and

must be rejected. State v. Egan , 287 So. 2d 1,4 (Fla.

1973)("Where the legislative intent as evidenced by a statute is

plain and unambiguous, then there is no necessity for any

construction or interpretation of the statute, and the courts need

only give effect to the plain meaning of its terms.")

COPIES FURNISHED:

(By certified mail)

Samuel W. Bearman, Esquire

1015 North 12th Avenue

Pensacola , Florida 32501

James Bruce Culpepper, Esquire

Akerman, Senterfitt & Eidson, P.A.

301 South Bronough Street, Suite 200

Post Office Box 10555

Tallahassee, Florida 32302 - 2555

Lynn Larson, Executive Director

Florida Birth - Related Neurological

Injury Com pensation Association

Post Office Box 14567

Tallahassee, Florida 32317 - 4567

Gary E. Kleinman, M.D.

3196 South Maryland Parkway

Las Vegas, Nevada 89109

Sacred Heart Hospital

5151 North 9th Avenue

Pensacola, Florida 32504

Ms. Charlene Willoughby

Agency for Health Care Administration

Consumer Services Unit

Post Office Box 14000

Tallahassee, Florida 32308

Mark Casteel, General Counsel

Department of Insurance

The Capitol, Lower Level 26

Tallahassee, Florida 32399 - 0300

NOTICE OF RIGHT TO JUDICIAL REVIE W

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 Statu tes, 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.