03-002384N Starr Elaine Leroy And Billy Simmons, Jr., On Behalf Of And As Parents And Natural Guardians Of Copeland Leroy, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, September 24, 2003.

Summary: Indisputably, the physicians who provided obstetrical services at birth were not participating physicians of the plan. Therefore, Association`s Motion for Summary Final Order is granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STARR ELAINE LEROY AND BILLY )

SIMMONS, JR., on behalf of and )

as parents and natural )

guardians of COPELAND LEROY, a )

minor, )

)

Petitioners, )

)

vs. ) Case No. 03 - 2384N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

)

SUMMARY FINAL ORDER OF DISMISSAL

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

Summary Final Order, filed July 30, 200 3, and the Order to Show

Cause, entered August 15, 2003.

STATEMENT OF THE CASE

1. On June 27, 2003, Starr E. Leroy and Billy G. Simmons,

Jr., on behalf of, and as parents and natural guardians of,

Copeland Leroy, a minor, filed a petition (claim) with the

Division of Administrative Hearings (DOAH) for compensation

under the Florida Birth - Related Neurological Injury Compensation

Plan (Plan).

2. DOAH served the Florida Birth - Related Neurological

Injury Compensation Association (NICA) with a copy of the cla im

on June 30, 2003, 1 and on July 30, 2003, NICA filed a Motion for

Summary Final Order, pursuant to Section 120.57(1)(h). 2 The

predicate for NICA's motion was its assertion that,

indisputably, the physician named in the petition as having

provided obstet rical services at birth (Ted Manos, M.D.), and

the other health care providers noted in the medical records as

having participated in the labor and delivery process (Steven E.

Pillow, M.D.; Raveendra Limaye, M.D.; Madelynne Marie Kugler,

C.N.M.; and D. Fut ch, C.N.M.), were not "participating

physician[s]," as defined by law, since they had neither paid

the assessment required for participation nor were they exempt

from payment of the assessment. Section 766.302(7). Attached

to the motion was an affidavit of the Custodian of Records for

NICA attesting to such facts.

3. Petitioners did not respond to NICA's Motion for

Summary Final Order. Consequently, an Order to Show Cause was

entered on August 15, 2003, which provided, as follows:

On July 30, 2003, Re spondent filed a Motion

for Summary Final Order. To date,

Petitioner has not responded to the motion.

Rule 28 - 106.204(4), Florida Administrative

Code. Accordingly, it is

ORDERED that within 10 days of the date of

this Order, Petitioners show good cause in

writing, if any they can, why the relief

requested by Respondent should not be

granted.

4. Petitioners responded to NICA's Motion for Summary

Final Order and the Order to Show Cause on August 27, 2003, as

follows:

Petitioners have no argument to pre sent in

opposition to the Respondent's Motion for

Summary Final Order.

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

regarding the status of the health care providers who provided

obstetrical services during the infant's birth, and they were

not , at the time, "participating physician[s]," as that term is

defined by Section 766.302(7). Consequently, NICA's Motion for

Summary Final Order is, for reasons appearing more fully in the

Conclusions of Law, meritorious.

CONCLUSIONS OF LAW

6. The Divisi on 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 was established by the Legisl ature "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).

8. The injured "infant, her or his personal

representativ e, 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. The Florida

Birth - Related Neurologic al Injury Compensation Association,

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 inju ry is a birth - related

neurological injury." Section 766.305(3).

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). 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 C hapter 120. Sections

766.304, 766.307, 766.309, and 766.31.

10. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the injury claime d 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 inf ant 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

deli vered 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). An award may be sustained only if the

administrative law judge concludes that the "infant has

sustained a birth - related neurological injury and that

o bstetrical 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), to mean:

. . . a physician licensed in Florida to

prac tice medicine who practices obstetrics

or performs obstetrical services either

full - time or part - time and who had paid or

was exempt from payment at the time of

injury the assessment required for

participation in the birth - related

neurological injury compe nsation 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, and the other health care provides noted in the medical

records as having participating in the labor and delivery

process, were not "participating physician[s]" as that term is

defined by Section 766.302(7), and as that term is used in

Sections 766.301 through 766.316. Consequently, NICA's Motion

for Summary Final Order should be granted. Sections

120.57(1)(h), 766.309(1) and (2), and 766.31(1).

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). Such an order constitutes

final agency action subject to appellate court review. Section

766.311(1).

CONCLUSION

Based on the Statement of the Case and Conclusions of Law,

it is

ORDERED that the claim for compensation filed by Starr

Elaine Leroy and Billy Simmons, Jr., on behalf of, and as

parents and natural guardians of Copeland Leroy, a minor, be and

t he same is dismissed with prejudice.

DONE AND ORDERED this 4th day of September, 2003, in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tal lahassee, 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 4th day of September, 2003.

ENDNOTES

1/ Consistent with Section 766.305( 2), DOAH also served the

physician (Ted Manos, M.D.) named in the petition as having

provided obstetrical services at the infant's birth, as well as

the hospital (Florida Hospital - Waterman) named in the petition

as the facility at which the infant's birt h occurred. To date,

neither the physician nor hospital has requested leave to

intervene or otherwise sought leave to participate in these

proceedings.

2/ All citations are to Florida Statutes (2002) unless

otherwise indicated.

COPIES FURNISHED :

(via certified mail)

Ronald S. Gilbert, Esquire

Morgan, Colling & Gilbert, P.A.

20 North Orange Avenue, Suite 1600

Post Office Box 4979

Orlando, Florida 32802 - 4979

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation A ssociation

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32308

Ted Manos, M.D.

Florida Physicians Medical Group

1360 Waterman Way

Tavares, Florida 32778

Florida Hospital - Waterman

201 North Eustis Street

Eustis, Flori da 32726

Ms. Charlene Willoughby

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

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 the original of a notice of appeal with the Agency Clerk

of the Division of Administrati ve 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.