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.
DOAH Final Order on Wednesday, February 16, 2005.
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.
- Date
- Proceedings
- PDF:
- Date: 02/16/2005
- Proceedings: Certified Mail Receipts stamped this date by the U.S. Postal Service.
- 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: 02/08/2005
- 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: 12/02/2004
- Proceedings: Letter to R. Pennington from M. Bajalia enclosing copy of itinerary filed.
- 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: 11/15/2004
- 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: 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: 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 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: Notice of Hearing (hearing set for February 7 and 8, 2005; 9:00 a.m.; Jacksonville, FL).
- 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: 09/24/2004
- 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: 09/09/2004
- 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.
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
-
Carl Rufus Pennington, Esquire
Address of Record -
Kenney Shipley, Executive Director
Address of Record