03-002573N Deliris Betancourt, As Personal Representative Of The Estate Of Rey A. Pagan, A Deceased Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, October 28, 2003.

Summary: Since it was undisputed that the physician who provided obstetrical services at infant`s birth was not a "participating physician" in the Neurological Injury Compensation Plan, the Association`s Motion for Summary Final Order of Dismissal was granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DELIRIS BETANCOURT, as Personal )

R epresentative of the E state of )

REY A. PAGAN, a deceased minor, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2573N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

OSCEOLA REGIONAL HOSPITAL, )

INC., )

)

Intervenor. )

)

SUMMARY FINAL ORDER OF DISMISSAL

On October 16, 2003, a teleconference was held in the

above - styled case to address Respondent's Motion for Summary

Final Order.

APPEARANCES

For Petitioner: Kenneth J. McKenna, Esquire

Dellecker, Wilson & King, P.A.

719 Vassar Street

Orlando, Florida 32804

For Respondent: Wilbur E. Brewton, Esquire

Roetzel & Andress

225 South Adams, Suite 250

Tallahassee, Florida 32301

For Intervenor Osceola Regional Hospital, Inc.:

Debra P. Klauber, Esquire

Haliczer Pettis, P.A.

Landmark Center Two, Suite 475

225 East Robinson Street

Orlando, Florida 32801

For Heidy Puig, M.D.:

Michael Estes, Esquire

Post Office Box 4947

Orlando, Florida 32802 - 4947

STATEMENT OF THE CASE

1. On July 15, 2003, Deliris Betancourt, as Personal

Representative of the Estate of Rey A. Pa gan (Rey), a deceased

minor, filed a petition with the Division of Administrative

Hearings (DOAH) to resolve whether Rey suffered an injury

compensable under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan) and, if so, whether the hos pital

(Osceola Regional Hospital) at which his birth occurred,

complied with the notice provisions of the Plan.

2. DOAH served Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), with a copy

of the petition on July 17, 2 003, 1 and on August 12, 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 obstetrical services at Rey's birth (Heidy Puig,

M.D.) was not, at the time, a "participating physician," as

defined by law, since she had neither paid the assessment

required for participation nor was she 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. On October 16, 2003, a teleconference was held to

address NICA's motion. Notably, at hearing, Petitioners,

Osceola Regional Hospital, and Dr. Puig agreed with NICA that,

at the time of Rey's birth, Dr. Puig was not a "participating

physician" in the Plan since she had neither paid the assessment

required for participation nor was she exempt from payment of

the assessment.

4. Given the record, it is undisputed the physician who

provided obstetrical services at Rey's birth was not, at the

time, a "participating physician," 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 th e

Conclusions of Law, meritorious.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

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

these proceedings. Section 766.301, et seq.

6. The Florida Birth - Related Neurological Injur y

Compensation 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).

7. The i njured "infant, her or 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), a nd 766.313. The Florida

Birth - Related Neurological 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 info rmation relating

to the issue of whether the injury is a birth - related

neurological injury." Section 766.305(3).

8. 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 ass igned administrative law judge in

accordance with the provisions of C hapter 120. Sections

766.304, 766.307, 766.309, and 766.31.

9. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

avai lable 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

d eprivation 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). An award may be sustained only if the

administrative law judge concludes that the "infant has

sustaine d a birth - related neurological injury and that

obstetrical services were delivered by a participating physician

at birth." Section 766.31(1).

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

defined by Section 766.302(7), to mean:

. . . a physici an 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 exempt from payment at the time of

injury the assessment required for

participation in the birth - rel ated

neurological injury compensation plan for

the year in which the injury occurred.

11. Here, it is undisputed that the physician who provided

obstetrical services during the birth of the infant was not a

"participating physician" as that term is defin ed 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 is

granted. Sections 120.57(1)(h), 766.309(1) and (2), and

766.31(1).

12. 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 compensati on filed by Deliris

Betancourt, as Personal Representative of the Estate of Rey A.

Pagan, a deceased minor, is dismissed with prejudice.

DONE AND ORDERED this 28th day of October, 2003, in

Tallahassee, Leon County, Florida.

S

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 28th day of October , 2003.

ENDNOTES

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

physician ( Heidy Puig, M.D.) named in the petition as having

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

the hospital (Osceola Regional Hospital) named in the petition

as the facility at which the infant's birth occurred. The

hospital subsequentl y requested and was accorded leave to

intervene. Dr. Puig did not request leave to intervene, but did

participate, through counsel, in the hearing held on October 16,

2003, to address Respondent's Motion for Summary Final Order.

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

indicated.

COPIES FURNISHED:

(By certified mail)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32308 - 4567

Heidy Puig, M.D.

Mid - Florida Women's Center

207 Park Place Boulevard, #2&3

Kissimmee, Florida 34741

Osceola Regional Hospital

Legal Department

700 West Oak Street

Kissimmee, Florida 34741

Ms. Charlene Willoughby

Depar tment of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

Kenneth J. McKenna, Esquire

Dellecker, Wilson & King, P.A.

719 Vassar Street

Orlando, Florida 32804

Richard B. Schwamm, Esquire

Debra Klauber, Esquire

Haliczer Pettis, P.A.

Landmark Center Two, Suite 475

225 East Robinson Street

Orlando, Florida 32801

Wilbur E. Brewton, Esquire

Roetzel & Andress

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

Michael Estes, Esquire

Post Office Box 4947

Orlando, Florida 3280 2 - 4947

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 Administrative 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.