01-003063N Sean Taylor Coleman, By And Through His Natural Parents And Guardians, Sean Coleman And Sharon Coleman, And Sean Coleman And Sharon Coleman, Individually vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, August 29, 2001.

Summary: Where it was undisputed that physician who provided obstetrical services at birth was not a "participating physician" in the Plan, grant of Respondent`s motion for entry of final summary order of dismissal was appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHARON COLEMAN and SEAN )

COLEMAN, as parents and natural )

guardians of SEAN TAYLOR )

COLEMAN, a minor, )

)

Petitioners, )

)

vs. )

)

FLORIDA BIRTH-RELATED ) Case No. 01-3063N

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respon dent. )

)

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 15,

2001, and the Order to Show Cause rendered August 16, 2001.

STATEMENT OF THE CASE

1. On August 2, 2001, Petitioners, Sharon Coleman and

Sean Coleman, as parents and natural guardians of Sean Taylor

Coleman (Sean), 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 August 6, 1996, Sean was born at

Helen Ellis Hospital, Tarpon Springs, Florida, and that the

physician who provided obstetrical services at birth was

Lynn Davidson, M.D.

2. DOAH served Respondent, Florida Birth-Related

Neurological Injury Compensation Association (NICA), with a copy

of the claim on August 2, 2001. In response, NICA filed a

Motion for Summary Judgement and/or Motion to Dismiss on

August 15, 2001. The predicate for Respondent's motions was its

assertion that, indisputably, the physician who provided

obstetrical services during Sean's birth (Doctor Lynn Davidson)

was not a "participating physician" as defined by law, since

such physician 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. Lynn Davidson was not, at the

time of Sean's birth, a "participating physician," as defined by

Section 766.302(7), Florida Statutes.

3. By order of August 16, 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 22, 2001, as follows:

It is the position of petitioners that

Lynn Davidso n, M.D. was not a participating

physician as defined by law when she

provided obstetrical services during the

course of the birth Sean Taylor Coleman.

Petitioners take the position that there is

no cognizable claim by petitioners against

the Florida Birth Related Neurological

Injury Compensation Association. The

petition was filed in this instance because

the hospital where the delivery took place,

Helen Ellis Memorial Hospital, has claimed

in a lawsuit against it that it was entitled

to the exemption under the Neurological

Injury Compensation Act because it was a

"member" of NICA. Petitioners request the

administrative law judge to find that

Dr. Davidson was not a participating

physician and a claim based on a hospital

being a participating member of NICA where

the treating obstetrician was not a

participating physician fails to provide a

cognizable basis for a claim against the

Florida Birth Related Neurological Injury

Compensation Association. Adjudication of

that issue has been placed within the

exclusive jurisdiction of the administrative

law judge.

Petitioners are otherwise in agreement that

respondent's motion for summary judgment

and/or motion to dismiss is well taken.

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

regarding the status of the physician who provided obstetrical

services during Sean's birth on August 6, 1996, and that she 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, Sean Taylor Coleman, 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

Sharon Coleman and Sean Coleman, as parents and natural

guardians of Sean Taylor Coleman, a minor, be and the same is

hereby dismissed with prejudice.

DONE AND ORDERED this 29th 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 29th day of August, 2001.

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

Clifford L. Somers, Esquire

Barr, Murman, Tonelli, Slother & Sleet

201 East Kennedy Boulevard, No. 1750

Post Office Box 172669

Tampa, Florida 33602

Lynn Davidson, M.D.

31922 U.S. Highway 19, North, No. 488

Palm Harbor, Florida 34684

Helen Ellis Memorial Hospital

Post Office Box 1487

Tarpon Springs, Florida 34688-1487

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.