01-002057N Martina Cordero And Carlos Morales, On Behalf Of And As Parents And Natural Guardians Of Daniel Morales, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, August 30, 2001.

Summary: Since there was no dispute that physician who provided obstetrical services at birth was not a "participating physician" in the Plan, Respondent`s motion for summary final order of dismissal was granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTINA CORDERO and CARLOS )

MORALES, as parents and natural )

guardians of DANIEL MORALES, a )

minor, )

)

Petitioners, )

) Case No. 01-2057N

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Responde nt, )

)

and )

)

LIFEMARK HOSPITALS OF FLORIDA, )

INC., d/b/a PALMETTO GENERAL )

HOSPITAL, )

)

Intervenor. )

)

FINAL ORDER OF DISMISSAL

This cause came on to be heard on Respondent's Motion for

Summary Judgement and/or Motion to Dismiss, filed August 8, 2001,

and the Order to Show Cause rendered August 15, 2001.

STATEMENT OF THE CASE

1. On May 21, 2001, Petitioners, Martina Cordero and

Carlos Morales, as parents and natural guardians of

Daniel Morales (Daniel), a minor, filed a petition with the

Division of Administrative Hearings (DOAH) for compensation

under the Florida Birth-Related Neurological Injury Compensation

Plan (the Plan). Pertinent to the pending motions, the petition

affirmatively averred that on November 30, 1996, Daniel was born

at Palmetto General Hospital, Hialeah, Florida, and that the

physician who provided obstetrical services at birth was

Ramiro J. Abaunza, M.D.

2. DOAH served Respondent, Florida Birth-Related

Neurological Injury Compensation Association (NICA), with a copy

of the claim on May 25, 2001. In response, NICA filed a Motion

for Summary Judgement and/or Motion to Dismiss on August 8,

2001. The predicate for Respondent's motions was its assertion

that, indisputably, the physician who provided obstetrical

services during Daniel's birth (Doctor Ramiro J. Abaunza) was

not a "participating physician" as defined by law, since he had

not paid the assessment required for participation or was not

exempt from payment at the time of the alleged injury. Attached

to the motions was an affidavit attesting to the fact that

Dr. Ramiro J. Abaunza was not, at the time of Daniel's birth, a

"participating physician," as defined by Section 766.302(7),

Florida Statutes, as well as a copy of the deposition of

Dr. Abaunza wherein he testified, under oath, that he was not a

member of NICA at the time the infant was delivered. 1

3. By order of August 15, 2001, Petitioners were accorded

14 days to respond to Respondent's motions and to show good

cause in writing, if any they could, why the requested relief

should not be granted.

4. Petitioners responded to Respondent's motions on

August 27, 2001, as follows:

Petitioner, through its undersigned counsel,

in good faith supplied the respondent with a

copy of the transcription of the deposition

of Dr. Ramiro J. Abaunza, wherein he gave

sworn testimony that he was not a member of

NICA at the time the infant was delivered.

Petitioner must notify the Court that at

this time it has no contrary information or

evidence.

Intervenor, Lifemark Hospitals of Florida, Inc., d/b/a Palmetto

General Hospital, did not respond to Respondent's motions or the

Order to Show Cause.

5. Given the record, there is no genuine issue of fact

regarding the status of the physician who provided obstetrical

services during Daniel's birth on November 30, 1996, and that he

was not, at the time, a "participating physician," as that term

is defined by Section 766.302(7), Florida Statutes.

Consequently, Respondent's Motion for Summary Judgement and/or

Motion to Dismiss is, for reasons appearing more fully in the

Conclusions of Law, meritorious.

CONCLUSIONS OF LAW

6. 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.

7. 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.

8. 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. Sections 766.302(3),

766.303(2), 766.305(1), and 766.313, Florida Statutes. The

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.

9. If NICA determines that the injury alleged in a claim

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. 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.

10. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a ) Whether the injury claimed is a

birth-related neurological injury. If the

claimant has demonstrated, to the

satisfaction of the administrative law

judge, that the infant has sustained a brain

or spinal cord injury caused by oxygen

deprivation or mechanical injury and that

the infant was thereby rendered permanently

and substantially mentally and physically

impaired, a rebuttable presumption shall

arise that the injury is a birth-related

neurological injury as defined in s.

766.303(2).

(b ) Whether obstetrical services were

delivered by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate post-delivery

period in a hospital; or by a certified

nurse midwife in a teaching hospital

supervised by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate post-delivery

period in a hospital.

Section 766.309(1), Florida Statutes. An award may be sustained

only if the administrative law judge concludes that the "infant

has sustained a birth-related neurological injury and that

obstetrical services were delivered by a participating physician

at birth." Section 766.31(1), Florida Statutes.

11. Pertinent to this case, "participating physician" is

defined by Section 766.302(7), Florida Statutes, to mean:

. . . 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

injury the assessment required for

participation in the birth-related

neurological injury compensation plan for

the year in which the injury occurred.

12. Here, it is undisputed that the physician alleged to

have provided obstetrical services during the birth of the

infant, Daniel Morales, was not a "participating physician" as

that term is defined by Section 766.302(7), Florida Statutes,

and as that term is used in Sections 766.301 through 766.316,

Florida Statutes. Consequently, Respondent's motion for a final

summary order of dismissal should be granted. Sections

766.309(1) and (2) and 766.31(1), Florida Statutes.

13. Where, as here, the administrative law judge

determines that ". . . obstetrical services were not delivered

by a participating physician at the birth, 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), Florida 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 compensation filed by

Martina Cordero and Carlos Mora les, as parents and natural

guardians of Daniel Morales, a minor, be and the same is hereby

dismissed with prejudice.

DONE AND ORDERED this 30th day of August, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of August, 2001.

ENDNOTE

1/ The affidavit and deposition of Dr. Abaunza further

established that the other persons listed in the delivery

records as physicians (Dr. Rafael Prats, Jr., Dr. Delatourneaut,

and Dr. Gladys Cardenas) were not "participating physicians" at

the time. Moreover, the record reveals that Dr. Prats did not

render services during the course of labor, delivery, or

resuscitation; that Dr. Delatourneaut was a surgical assistant

and not licensed to practice medicine in the State of Florida;

and that Dr. Cardenas was an anesthesiologist.

COPIES FURNISHED:

(By certified mail)

Lynn Larson, Executive Director

Florida Birth-Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32312

Armando Cortina, Esquire

Parenti, Falk, Waas, Hernandez

& Cortina, P. A .

113 Almeria Avenue

Coral Gables, Florida 33146

Jeffrey S. Hirsh, Esquire

Goldberg & Hirsh, P.A.

One Southeast 3rd Avenue

Suite 1280

Miami, Florida 33131

Ramiro J. Abaunza, M.D.

2500 Southwest 107th Avenue

Miami, Florida 33165-2492

Palmetto General Hospital

2001 West 68th Street

Hialeah, Florida 33016

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 REVIEW

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.