03-003341N Robert W. Deguenther, Jr. And Karen Coffey Deguenther, On Behalf Of And As Parents And Natural Guardians Of Robert W. Deguenther, Iii, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, February 24, 2004.

Summary: The infant`s birth weight was less than the minimum weight of 2,500 grams required for coverage. Therefore, the Motion for Summary Final Order of dismissal is granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT W. DEGUENTHER, JR. and )

KAREN COFFEY DEGUENTHER, on )

behalf of and as parents and )

natural guardians of ROBERT W. )

DEGUENTHER, III, a minor, )

)

Petitioners, )

)

vs. ) Case No. 03 - 3341N

)

FLORIDA BIRTH - RELATED )

NEUROLOGI CAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on to be heard on the parties' Joint Motion

to Accept Stip ulation of Facts and Motion for Summary Final

Order, filed February 20, 2004.

STIPULATED FACTS

1. By their Joint Stipulation of Facts, the parties have

stipulated, as follows:

1. On September 17, 2003, the Petitioners

as parents and natural guardians of ROBERT

W. DEGUENTHER, III, a minor, filed a claim

with the Division of Administrative Hearings

("DOAH") for compensation under the Florida

Birth - Related Neurological Injury

Compensation Plan (the "Plan"). Such

Petition is fully incorporated herein by

refe rence.

2. ROBERT W. DEGUENTHER, III, was born on

July 3, 2001, at 8:53 a.m., at Florida

Hospital Altamonte, located at 601 East

Altamonte Drive, Altamonte Springs, FL

32701.

3. ROBERT W. DEGUENTHER, JR., and KAREN

COFFEY DEGUENTHER, currently of 251 B urning

Tree Drive, Heritage, TN 37076, are the

parents and natural guardians of the infant.

4. David L. Goss, M.D., whose address is

521 West State Road 434, #201, Longwood, FL

32750, provided obstetrical services during

the delivery of ROBERT W. DEGUENT HER, III.

5. David L. Gross [sic], M.D., is a

participating physician as defined in

Section 766.302(7), Florida Statutes.

6. The Parties stipulate that the attached

medical records from Florida Hospital are

true and correct copies of the medical

record s kept in the normal course of

business.

7. The Parties stipulate that, at birth,

the infant, ROBERT W. DEGUENTHER, III,

weighed 2480 grams.

Notably, all the medical records attached to the stipulation are

consistent and reflect that, at birth, Robert W. Deguenther, III

(Robert), weighed 2,480 grams. Finally, in their Joint Motion

to Accept Stipulation of Facts and Motion for Summary Final

Order, the parties have agreed that the minimum birth weight

required for coverage under the Plan in this case is 2,500

grams, as for a single gestation.

2. Given the record, it is indisputable that Robert's

birth weight was 20 grams below that required for coverage under

the Plan. Consequently, the parties' Motion for Summary Final

Order is well - founded. §§ 120.5 7(1)(h), 766.302(2), 766.309(1),

and 766.31(1), Fla. Stat. (2000). 1

CONCLUSIONS OF LAW

3. The Division of Administrative Hearings has

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

these proceedings. § 766.301, et seq , Fla. Stat .

4. The Fl orida Birth - Related Neurological Injury

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. § 766.303(1), Fla. Stat.

5. The injured "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. §§ 766.302(3),

766.303(2), 766.305(1), and 766.313, Fla. Stat. 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 information relating

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

neurological injury." § 766.305(3), Fla. Stat.

6. 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. § 766.305(6), Fla. Stat. 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, F lorida

Statutes. §§ 766.304, 766.309, and 766.31, Fla. Stat.

7. In discharging this responsibility, the administra tive

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 t he 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 i njury 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 hospita l; 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.

§ 766.309(1), Fla. Stat. 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." § 766.31(1), Fla. Stat.

8. Pertinent to this case, "bi rth - 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 for a

single gestation or, in the case of a

multiple gestation, a live infant we ighing

at least 2,000 grams at birth caused by

oxygen deprivation or mechanical injury

occurring in the course of labor, delivery,

or resuscitation in the immediate

postdelivery period in a hospital, which

renders the infant permanently and

substantially m entally and physically

impaired. This definition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

9. Here, indisputably, Robert's birth weight, at 2,480

grams, was less than the minim um required by the Plan.

Consequently, given the provisions of Section 766.302(2),

Florida Statutes, he does not qualify for coverage under the

Plan. See also Humana of Florida, Inc., v. McKaughan , 658 So.

2d 852, 859 (Fla. 5th DCA 1995)("[B]ecause the P lan . . . is a

statutory substitute for common law rights and liabilities, it

should be strictly construed to include only those subjects

clearly embraced within its terms."), approved , Florida Birth -

Related Neurological Injury Compensation Association v.

McKaughan , 668 So. 2d 974, 979, (Fla. 1996).

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."

§ 766.309(2), Fla. Stat. Such an order constitutes final agency

action subject to appellate court review. § 766.311(1), Fla.

Stat.

CONCLUSION

Based on the Stip ulated Facts and Conclusions of Law, it is

ORDERED that the parties' Stipulation of Facts is accepted,

their Motion for Summary Final Order is granted, and the claim

for compensation filed by Robert W. Deguenther, Jr., and

Karen Coffey Deguenther, on behal f of, and as parents and

natural guardians of Robert W. Deguenther, III, a minor, be and

the same is dismissed with prejudice.

DONE AND ORDERED this 24th day of February, 2004, in

Tallahassee, Leon County, Florida.

S

WIL LIAM 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 24th day of February, 2004.

ENDNOTE

1/ All citations are to Florida Statutes (2000) unless

otherwise indicated.

COPIES FURNISHED:

(by certified mail)

J. Clancey Bounds, Esquire

Maher, Guiley and Maher, P.A.

631 West Morse Boulevard, Suite 200

Winter Park, Florida 32789

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308

Wilbur E. Brewt on, Esquire

Tana D. Storey, Esquire

Roetzel & Andress, L.P.A.

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

David L. Goss, M.D.

521 West State Road 434, No. 201

Longwood, Florida 32750

Florida Hospital Altamonte

601 East Altamonte Drive

Altamonte Springs, Florida 32701

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 judi cial 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 D ivision 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. Ca rreras , 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.