04-001992N Karen D. Kempf And Jeremiah Brooks, Individually And On Behalf Of And As Parents And Natural Guardians Of Taylor Brooks, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association
 Status: Closed
DOAH Final Order on Wednesday, February 16, 2005.


View Dockets  
Summary: The Infant was not substantially mentally impaired. Therefore, the claim was not compensable.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8KAREN D. KEMPF AND JEREMIAH )

14BROOKS, individually and on )

19behalf of and as parents and )

26natural guardians of TAYLOR )

31BROOKS, a minor, )

35)

36Petitioners, )

38)

39vs. ) Case No. 04 - 1992N

46)

47FLORIDA BIRTH - RELATED )

52NEUROLOGICAL INJURY )

55COM PENSATION ASSOCIATION, )

59)

60Respondent. )

62)

63FINAL ORDER

65With the parties' agreement, this case was heard on an

75agreed record.

77STATEMENT OF THE ISSUE

81At issue is whe ther Taylor Brooks, a minor, qualifies for

92coverage under the Florida Birth - Related Neurological Injury

101Compensation Plan.

103PRELIMINARY STATEMENT

105On June 7, 2004, Karen D. Kempf and Jeremiah Brooks,

115individually and on behalf of and as parents and natural

125guardians of Taylor Brooks (Taylor), a minor, filed a petition

135(claim) with the Division of Administrative Hearings (DOAH) to

144resolve whether Taylor suffered an injury compensable under the

153Florida Birth - Related Neurological Injury Compensation Plan

161(Plan) , and whether the physicians who provided obstetrical

169services during Taylor's birth and the hospital at which the

179birth occurred complied with the notice provisions of the Plan.

189DOAH served the Florida Birth - Related Neurological Injury

198Compensation Associ ation (NICA) with a copy of the claim on

209June 9, 2004, and on August 20, 2004, following an extension of

221time within which to do so, NICA gave notice that it was of the

235view that Taylor did not suffer a "birth - related neurological

246injury, as defined by Sec tion 766.302(2), Florida Statutes

255[2002]" 1 and requested that a hearing be scheduled to address the

267issue of compensability.

270By Notice of Hearing dated October 7, 2004, a hearing was

281scheduled for February 7 and 8, 2005, in Jacksonville, Florida,

291to addres s the issue of compensability. However, on February 3,

3022005, the parties filed a Joint Pre - Hearing Stipulation, wherein

313they stipulated to certain facts, agreed to submit the case for

324resolution on a stipulated record, and requested that the

333hearing sched uled for February 7 and 8, 2005, be cancelled. The

345parties' stipulation was approved by Order of February 7, 2005,

355and the hearing scheduled for February 7, 2005, was cancelled.

365The parties filed their Stipulated Record on February 10,

3742005, and on Februa ry 14, 2005, NICA filed its proposed F inal

387O rder, and Petitioners filed their response to NICA's proposed

397Final Order. The parties' submittals have been duly considered.

406FINDINGS OF FACT

409Stipulated facts

4111. By their stipulation, the parties agree that Karen D.

421Kempf and Jeremiah Brooks, are the natural parents and guardians

431of Taylor Brooks, a minor. The parties also agree that Taylor

442was born a live infant on December 19, 2002, at Shands Hospital,

454Jacksonville, Florida, and her birth weight exceeded 2,500

463grams.

4642. Finally, the parties agree the physicians providing

472obstetrical services during Taylor's birth were John M. Baten,

481M.D.; Amy D. Greenwald, M.D.; Kimberly Beth Loar, M.D.; and

491Monica Joy George, M.D. However, there was no agreement that

501an y of these doctor were participating physicians in the Plan. 2

513Coverage under the Plan

5173. Pertinent to this case, coverage is afforded by the

527Plan for infants who suffer a "birth - related neurological

537injury," defined as an "injury to the brain . . . cause d by

551oxygen deprivation or mechanical injury occurring in the course

560of labor, delivery, or resuscitation in the immediate

568postdelivery period in a hospital, which renders the infant

577permanently and substantially mentally and physically impaired."

584§ 766. 302(2), Fla. Stat. See also §§ 766.309 and 766.31,

595Fla. Stat.

5974. Regarding compensability, Petitioners contend that

603Taylor "has a profound and permanent injury as a result of

614birth - related events, but do not dispute that Taylor's injury is

626not compensabl e within the definition of Section 766.302(2),

635Florida Statutes." (Joint Pre - hearing Stipulation, paragraph

643B1.) In response, NICA agrees Taylor did not suffer a "birth -

655related neurological injury," as defined by Section 766.302(2),

663Florida Statutes, pre dicated on its view that the proof fails to

675support the conclusion that Taylor "suffers from a permanent and

685substantial mental impairment." (Joint Pre - hearing Stipulation,

693paragraph B2.)

6955. Here, the records related to Taylor's birth and

704subsequent deve lopment, as well as the reports of neurologic

714evaluation by Michael Duchowny, M.D., demonstrate that Taylor is

723not substantially mentally impaired, much less permanently and

731substantially mentally impaired. Consequently, for reasons

737appearing more fully i n the Conclusions of Law, the claim is not

750compensable, and it is unnecessary to resolve the degree of

760Taylor's physical impairment, whether Taylor's impairments

766resulted from a brain injury caused by oxygen deprivation or

776mechanical injury occurring in th e course of labor, delivery, or

787resuscitation, or whether obstetrical services were delivered by

795a participating physician at birth.

800CONCLUSIONS OF LAW

8036. The Division of Administrative Hearings has

810jurisdiction over the parties to, and the subject matte r of,

821these proceedings. § 766.301, et seq ., Fla. Stat.

8307. The Florida Birth - Related Neurological Injury

838Compensation Plan was established by the Legislature "for the

847purpose of providing compensation, irrespective of fault, for

855birth - related neurologica l injury claims" relating to births

865occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

8768. The injured "infant, her or his personal

884representative, parents, dependents, and next of kin," may seek

893compensation under the Plan by filing a claim for compensation

903with the Division of Administrative Hearings. §§ 766.302(3),

911766.303(2), 766.305(1), and 766.313, Fla. Stat. The Florida

919Birth - Related Neurological Injury Compensation Association,

926which administers the Plan, has "45 days from the date o f

938service of a complete claim . . . in which to file a response to

953the petition and to submit relevant written information relating

962to the issue of whether the injury is a birth - related

974neurological injury." § 766.305(3), Fla. Stat.

9809. If NICA determines that the injury alleged in a claim

991is a compensable birth - related neurological injury, it may award

1002compensation to the claimant, provided that the award is

1011approved by the administrative law judge to whom the claim has

1022been assigned. § 766.305(6), Fla. Stat. If, on the other hand,

1033NICA disputes the claim, as it has in the instant case, the

1045dispute must be resolved by the assigned administrative law

1054judge in accordance with the provisions of C hapter 120, F lorida

1066Statutes. §§ 766.304, 766.309, and 766.31 , Fla. Stat.

107410. In discharging this responsibility, the administrative

1081law judge must make the following determination based upon the

1091available evidence:

1093(a) Whether the injury claimed is a

1100birth - related neurological injury. If the

1107claimant has demon strated, to the

1113satisfaction of the administrative law

1118judge, that the infant has sustained a brain

1126or spinal cord injury caused by oxygen

1133deprivation or mechanical injury and that

1139the infant was thereby rendered permanently

1145and substantially mentally and physically

1150impaired, a rebuttable presumption shall

1155arise that the injury is a birth - related

1164neurological injury as defined in s.

1170766.303(2).

1171(b) Whether obstetrical services were

1176delivered by a participating physician in

1182the course of labor, delivery, or

1188resuscitation in the immediate post - delivery

1195period in a hospital; or by a certified

1203nurse midwife in a teaching hospital

1209supervised by a participating physician in

1215the course of labor, delivery, or

1221resuscitation in the immediate post - delivery

1228period i n a hospital.

1233§ 766.309(1), Fla. Stat. An award may be sustained only if the

1245administrative law judge concludes that the "infant has

1253sustained a birth - related neurological injury and that

1262obstetrical services were delivered by a participating physician

1270at birth." § 766.31(1), Fla. Stat.

127611. Pertinent to this case, "birth - related neurological

1285injury" is defined by Section 766.302(2), to mean:

1293injury to the brain or spinal cord of a live

1303infant weighing at least 2,500 grams for a

1312single gestation or, in the case of a

1320multiple gestation, a live infant weighing

1326at least 2,000 grams at birth caused by

1335oxygen deprivation or mechanical injury

1340occurring in the course of labor, delivery,

1347or resuscitation in the immediate

1352postdelivery period in a hospital, which

1358renders the infant permanently and

1363substantially mentally and physically

1367impaired. This definition shall apply to

1373live births only and shall not include

1380disability or death caused by genetic or

1387congenital abnormality.

138912. Here, the proof demonstrated t hat Taylor was not

1399permanently and substantially mentally impaired. Consequently,

1405given the provisions of Section 766.302(2), Florida Statutes,

1413Taylor does not qualify for coverage under the Plan. See also

1424Florida Birth - Related Neurological Injury Compen sation

1432Association v. Florida Division of Administrative Hearings , 686

1440So. 2d 1349 (Fla. 1997)(The Plan is written in the conjunctive

1451and can only be interpreted to require both substantial mental

1461and physical impairment.); Humana of Florida, Inc. v. McKau ghan ,

1471652 So. 2d 852, 859 (Fla. 2d DCA 1995)("[B]ecause the Plan . . .

1486is a statutory substitute for common law rights and liabilities,

1496it should be strictly construed to include only those subjects

1506clearly embraced within its terms."), approved , Florida B irth -

1517Related Neurological Injury Compensation Association v.

1523McKaughan , 668 So. 2d 974, 979 (Fla. 1996).

153113. Where, as here, the administrative law judge

1539determines that ". . . the injury alleged is not a birth - related

1553neurological injury . . . he [is req uired to] enter an order [to

1567such effect] and . . . cause a copy of such order to be sent

1582immediately to the parties by registered or certified mail."

1591§ 766.309(2), Fla. Stat. Such an order constitutes final agency

1601action subject to appellate court revie w. § 766.311(1), Fla.

1611Stat.

1612CONCLUSION

1613Based on the foregoing Findings of Fact and Conclusions of

1623Law, it is

1626ORDERED that the claim for compensation filed by Karen D.

1636Kempf and Jeremiah Brooks, individually and on behalf of and as

1647parents and natural gu ardians of Taylor Brooks, a minor, is

1658dismissed with prejudice.

1661DONE AND ORDERED this 16th day of February, 2005, in

1671Tallahassee, Leon County, Florida.

1675S

1676WILLIAM J. KENDRICK

1679Administrative Law Judge

1682Division of Admi nistrative Hearings

1687The DeSoto Building

16901230 Apalachee Parkway

1693Tallahassee, Florida 32399 - 3060

1698(850) 488 - 9675 SUNCOM 278 - 9675

1706Fax Filing (850) 921 - 6847

1712www.doah.state.fl.us

1713Filed with the Clerk of the

1719Division of Administrative Hearings

1723this 16th day o f February, 2005.

1730ENDNOTES

17311/ All citations are to Florida Statutes (2002) unless

1740otherwise indicated.

17422/ The medical records related to Ms. Kempf's labor and

1752Taylor's birth suggest that Isaac Delke, M.D., may also have

1762participated in Taylor's birth ; however, neither the

1769significance of that participation nor whether Dr. Delke was a

1779participating physician is of record. Notably, Dr. Delke was

1788accorded leave to intervene in this proceeding, but subsequently

1797voluntarily withdrew as a party.

1802COPIES F URNISHED:

1805(By certified mail)

1808C. Rufus Pennington, III, Esquire

1813Margol & Pennington, P.A.

1817Suite 1700

1819One Independent Drive

1822Jacksonville, Florida 32202 - 5005

1827M. Mark Bajalia, Esquire

1831Volpe, Bajalia, Wickes, Rogerson & Galloway

18371301 Riverplace Boulevard , Suite 1700

1842Jacksonville, Florida 32207

1845Kenney Shipley, Executive Director

1849Florida Birth Related Neurological

1853Injury Compensation Association

18561435 Piedmont Drive, East, Suite 101

1862Tallahassee, Florida 32308

1865John M. Baten, M.D.

18695706 Kristen Avenue

1872Bos sier City, Louisiana 71112

1877Amy D. Greenwald, M.D.

1881836 Prudential Drive, Suite 1001

1886Jacksonville, Florida 32207

1889Kimberly Beth Loar, M.D.

1893653 - 1 West 8th Street

1899Jacksonville, Florida 32209

1902Monica Joy George, M.D.

1906653 - 1 West 8th Street

1912Jacksonville, Flor ida 32209

1916Shands Jacksonville

1918655 West 8th Street

1922Jacksonville, Florida 32209

1925Charlene Willoughby, Director

1928Consumer Services Unit - Enforcement

1933Department of Health

19364052 Bald Cypress Way, Bin C - 75

1944Tallahassee, Florida 32399 - 3275

1949NOTICE OF RIGHT TO J UDICIAL REVIEW

1956A party who is adversely affected by this F inal O rder is entitled

1970to judicial review pursuant to Sections 120.68 and 766.311,

1979Florida Statutes. Review proceedings are governed by the Florida

1988Rules of Appellate Procedure. Such proceedings are commenced by

1997filing the original of a notice of appeal with the Agency Clerk

2009of the Division of Administrative Hearings and a copy,

2018accompanied by filing fees prescribed by law, with the

2027appropriate District Court of Appeal. See Section 766.311,

2035Flori da Statutes, and Florida Birth - Related Neurological Injury

2045Compensation Association v. Carreras , 598 So. 2d 299 (Fla. 1st

2055DCA 1992). The notice of appeal must be filed within 30 days of

2068rendition of the order to be reviewed.

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Date
Proceedings
PDF:
Date: 04/11/2005
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 02/25/2005
Proceedings: Certified Return Receipt received.
PDF:
Date: 02/22/2005
Proceedings: Certified Return Receipt received.
PDF:
Date: 02/16/2005
Proceedings: DOAH Final Order
PDF:
Date: 02/16/2005
Proceedings: Certified Mail Receipts stamped this date by the U.S. Postal Service.
PDF:
Date: 02/16/2005
Proceedings: Final Order. CASE CLOSED.
PDF:
Date: 02/14/2005
Proceedings: Notice of Filing Proposed Final Order filed.
PDF:
Date: 02/14/2005
Proceedings: (Proposed) Final Order filed.
PDF:
Date: 02/14/2005
Proceedings: Letter to Judge Kendrick from C. Pennington regarding non-objection to Respondent`s Proposed Final Order filed.
PDF:
Date: 02/10/2005
Proceedings: Letter to Judge Kendrick from C. Pennington regarding Notice of Filing Stipulated Record filed.
PDF:
Date: 02/10/2005
Proceedings: Notice of Filing Stipulated Record (filed by Respondent).
PDF:
Date: 02/08/2005
Proceedings: Order (paragraph 2 of the Order entered February 7, 2005, is vacated , and paragraph 3 of the Order is amended).
PDF:
Date: 02/07/2005
Proceedings: Order (the parties` agreement to submit the case for resolution on an agreed record is approved, and the hearing scheduled for February 7, 2005 is cancelled; parties shall file their stipulated record and supplement to pre-hearing stipulation by February 11, 2005).
PDF:
Date: 02/03/2005
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 12/03/2004
Proceedings: Order (I. Delke, M.D., is no longer a party to this proceeding).
PDF:
Date: 12/02/2004
Proceedings: Letter to R. Pennington from M. Bajalia enclosing copy of itinerary filed.
PDF:
Date: 12/02/2004
Proceedings: Notice of Voluntary Dismissal of Petition to Intervene filed.
PDF:
Date: 11/29/2004
Proceedings: Notice of Compliance with Request for Copies filed.
PDF:
Date: 11/19/2004
Proceedings: Petitioners` Request for Copies (filed via facsimile).
PDF:
Date: 11/18/2004
Proceedings: Petitioner`s First Set of Requests for Admissions to Intervenor Isaac Delke, M.D. (filed via facsimile).
PDF:
Date: 11/18/2004
Proceedings: Letter to R. Pennington from M. Bajalia regarding the set date for re-evaluation and examination of T. Brooks (filed via facsimile).
PDF:
Date: 11/17/2004
Proceedings: Intervenor`s Request for Copies filed.
PDF:
Date: 11/15/2004
Proceedings: Order (Respondent`s Motion to Abate denied; petitioners shall produce Taylor Brooks for examination in January 2005).
PDF:
Date: 11/15/2004
Proceedings: Letter to R. Pennington from M. Bajalia regarding the avalability of Dr. Duchowny filed.
PDF:
Date: 11/10/2004
Proceedings: Notice of Compliance with Request for Copies (filed by Respondent via facsimile).
PDF:
Date: 11/10/2004
Proceedings: Subpoena Duces Tecum without Deposition (medical records) filed.
PDF:
Date: 11/10/2004
Proceedings: Notice of Production of Records from Non-parties (filed by Respondent via facsimile).
PDF:
Date: 11/09/2004
Proceedings: Notice of Telephonic Hearing on Motion to Abate (motion hearing set for November 10, 2004; at 10:30 a.m.) filed via facsimile.
PDF:
Date: 11/02/2004
Proceedings: Motion to Abate (filed by Respondent via facsimile).
PDF:
Date: 10/26/2004
Proceedings: Notice of Production of Records from Non-parties (filed by Respondent via facsimile).
PDF:
Date: 10/12/2004
Proceedings: Intervenor`s First Request for Production to Petitioners filed.
PDF:
Date: 10/12/2004
Proceedings: Intervenor`s Notice of Serving First Set of Interrogatories to Respondent filed.
PDF:
Date: 10/07/2004
Proceedings: Order (on or before December 3, 2004, Intervenor shall disclose in writing all experts he expects to call at hearing, any expert who expects to testify at hearing shall have formulated their opinions before their depositions are taken).
PDF:
Date: 10/07/2004
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 10/07/2004
Proceedings: Notice of Hearing (hearing set for February 7 and 8, 2005; 9:00 a.m.; Jacksonville, FL).
PDF:
Date: 10/06/2004
Proceedings: Petitioners` Request for Copies (filed via facsimile).
PDF:
Date: 10/06/2004
Proceedings: Petitioners` Notice of Serving First Set of Interrogatories to Intervenor Isaac Delke, M.D. (filed via facsimile).
Date: 10/05/2004
Proceedings: Letter to K. Alexander, R.N., from M. Duchowny, M.D., reproting on T. Brooks (filed via facsimile) filed (not available for viewing).
PDF:
Date: 10/05/2004
Proceedings: Notice of Telephone Conference (filed by M. Bajalia via facsimile).
PDF:
Date: 10/05/2004
Proceedings: Notice of filing Report of Michael S. Duchowny, M.D. (filed by M. Bajalia via facsimile).
PDF:
Date: 10/04/2004
Proceedings: Petitioner`s Response to Order Entered September 20, 2004, and to Respondent NICA`s Denial of Compensability (filed via facsimile).
PDF:
Date: 10/04/2004
Proceedings: Intervenor`s Response to Respondent NICA`s Response to Petition for Benefits (filed via facsimile).
PDF:
Date: 09/29/2004
Proceedings: Intervenor`s Request for Copies filed.
PDF:
Date: 09/24/2004
Proceedings: Notice of Production of Records from Non-Parties (filed by M. Bajalia via facsimile).
PDF:
Date: 09/20/2004
Proceedings: Order (by October 4, 2004, Petitioners and Intervenor shall advise as to their respective positions on the issue of compensability).
PDF:
Date: 09/17/2004
Proceedings: Order (Petitioners` Motion to Dismiss Petition for Leave to Intervene of Isaac Delke, M.D., denied).
PDF:
Date: 09/14/2004
Proceedings: Petitioner`s Motion to Dismiss Petition for Leave to Intervene of Issac Delke, M.D. (filed by via facsimile).
PDF:
Date: 09/14/2004
Proceedings: Notice of Telephonic Hearing (filed by M. Bajalia via facsimile).
PDF:
Date: 09/14/2004
Proceedings: Order Granting Intervention (of Isaac Delke, M.D.).
PDF:
Date: 09/10/2004
Proceedings: Petition for Leave to Intervene (filed by Isaac Delke, M.D.).
PDF:
Date: 09/09/2004
Proceedings: Notice of Appearance as Counsel (filed by M. Bajalia, Esquire, via facsimile).
PDF:
Date: 08/20/2004
Proceedings: Response to Petition for Benefits (filed by Respondent via facsimile).
PDF:
Date: 08/02/2004
Proceedings: Order (Respondent`s Amended Motion for Extension of Time in which to Respond to Petition Granted, and response now due August 20, 2004).
PDF:
Date: 07/22/2004
Proceedings: Amended Motion for Extension of Time in which to Respond to Petition (filed by Respondent via facsimile).
PDF:
Date: 07/22/2004
Proceedings: Motion for Extension of Time in Which to Respond to Petition (filed by Respondent via facsimile).
PDF:
Date: 06/28/2004
Proceedings: Order (Motion to Accept K. Shipley as Qualified Representative Granted).
PDF:
Date: 06/21/2004
Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
PDF:
Date: 06/21/2004
Proceedings: Motion to Act as a Qualified Representative Before the Division of Administrative Hearings filed by K. Shipley.
PDF:
Date: 06/15/2004
Proceedings: Certified Return Receipts received this date from the U.S. Postal Service.
PDF:
Date: 06/09/2004
Proceedings: Certified Mail Receipts stamped this date by the U.S. Postal Service.
PDF:
Date: 06/09/2004
Proceedings: Notice sent out that this case is now before the Division of Administrative Hearings.
PDF:
Date: 06/09/2004
Proceedings: Letter to Kenney Shipley from Ann Cole enclosing NICA claim for compensation.
Date: 06/07/2004
Proceedings: Nica Filing Fee, $15.00; Check No. 30746 filed.
PDF:
Date: 06/07/2004
Proceedings: Petition for Determination of Benefits under the Florida Birth-Related Neurological Injury Compensation Plan filed.
PDF:
Date: 06/07/2004
Proceedings: Referral letter filed.

Case Information

Judge:
WILLIAM J. KENDRICK
Date Filed:
06/07/2004
Date Assignment:
06/09/2004
Last Docket Entry:
04/11/2005
Location:
Jacksonville, Florida
District:
Northern
Agency:
Florida Birth-Related Neurological Injury Compensation Associati
Suffix:
N
 

Counsels

Related Florida Statute(s) (10):