04-003051N Minerva Soto, On Behalf Of And As Legal Guardian Of Mark Ortiz, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, April 19, 2005.

Summary: The infant was not substantially mentally and physically impaired. The claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MINERVA SOTO, on behalf of and )

as legal guardian of MARK )

ORTIZ, a minor, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3051N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

)

FINAL ORDER

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

agreed record.

STATEMENT OF THE ISSUE

At issue is whether Mark Ortiz, a minor, suffered a "birth -

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

Florida Statutes.

PRELIMINARY STATEMENT

On August 30, 2004, Minerva Soto, on behalf of and as legal

guardian of Mark Ortiz (Mark), a minor, filed a petition (claim)

with the Division of Administrative Hearings (DO AH) for

compensation under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan).

DOAH served the Florida Birth - Related Neurological Injury

Compensation Association (NICA) with a copy of the claim on

August 31, 2004, and on December 14, 2 004, following a number of

extensions of time within which to do so, NICA filed its

Response to Petition for Benefits, wherein it gave notice that

it was of the view that Mark did not suffer a "birth - related

neurological injury," as defined by Section 766. 302(2), Florida

Statutes, and requested that a hearing be scheduled to resolve

whether the claim was compensable.

By Notice of Hearing, dated January 21, 2005, a hearing was

scheduled for April 7, 2005, to resolve whether the claim was

compensable; however , on March 29, 2005, the parties filed a

Joint Motion to Submit Stipulated Factual Record and Written

Argument in Lieu of Contested Hearing, wherein they agreed "to

submit . . . a stipulated record of the evidence that would be

presented at the final heari ng," and requested the entry of "an

order approving the submission of a stipulated factual record

and written argument and cancelling the present date for

hearing." By Order of April 1, 2005, it was resolved that:

1. The parties' Joint Motion to Submit

S tipulated Factual Record is granted, and

the parties' Stipulated Record [Exhibits

1 - 13], filed March 31, 2005, is accepted.

2. The parties' request for leave to submit

written argument is granted, and they are

accorded until April 13, 2005, to file

wr itten argument.

3. The hearing scheduled for April 7, 2005,

is cancelled, and the claim will be resolved

on the parties' Stipulated Record.

Petitioner elected to file written argument, and Respondent

elected to file a proposed final order. Both submitta ls have

been duly considered.

FINDINGS OF FACT

Preliminary findings

1. Minerva Soto is the maternal grandmother and legal

guardian of Mark Ortiz, a minor. Mark was born a live infant on

December 16, 2002, at Springhill Regional Hospital, a hospital

loc ated in Spring Hill, Florida, and his birth weight exceeded

2,500 grams. (Exhibits 4, 8, 10, and 11)

2. The physician providing obstetrical services at Mark's

birth was Phillip Watterson, M.D. (Exhibit 4).

Coverage under the Plan

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

Plan for infants who suffer a "birth - related neurological

injury," defined as an "injury to the brain or spinal cord . . .

caused by oxygen deprivation or mechanical injury occurring in

the course of labor, delivery, or r esuscitation in the immediate

postdelivery period in a hospital, which renders the infant

permanently and substantially mentally and physically impaired."

§ 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla.

Stat.

4. Here, the parties' Stipul ated Record demonstrates that

M ark is neither permanently and substantially mentally impaired

nor permanently and substantially physically impaired.

Consequently, for reasons appearing more fully in the

Conclusions of Law, the claim is not compensable, an d it is

unnecessary to resolve whether Mark's impairments resulted from

a brain or spinal cord injury caused by oxygen deprivation or

mechanical injury occurring in the course of labor, delivery, or

resuscitation, or whether his impairments are attributabl e to

another etiology. It is likewise unnecessary to resolve

whether, at the time of Mark's birth, Dr. Watterson was a

"participating physician" in the Florida Birth - Related

Neurological Injury Compensation Plan, as defined by Section

766.302(7), Florida Statutes.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

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

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

6. The Florida 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.

7. 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. Sta t. 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 r elating

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

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

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

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

compensation to the cla imant, 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 as signed administrative law

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

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

9. In discharging this responsibility, the administrative

law judge must make the following determination base d 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 the infant has sustained a brain

or spinal cord injury cau sed 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 injury is a birth - related

neurological injury as defined i n 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.

§ 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.

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

injury" is defined by Section 7 66.302(2), 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 weighing

at least 2,000 grams at birth caused by

oxygen deprivation or mecha nical 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 mentally and physically

impaired. This definition shall apply to

live birt hs only and shall not include

disability or death caused by genetic or

congenital abnormality.

11. Here, the proof demonstrated that Mark was not

permanently and substantially mentally and physically impaired.

Consequently, given the provisions of Secti on 766.302(2),

Florida Statutes, Mark does not qualify for coverage under the

Plan. See also Florida Birth - Related Neurological Injury

Compensation Association v. Florida Division of Administrative

Hearings , 686 So. 2d 1349 (Fla. 1997)(The Plan is written in the

conjunctive and can only be interpreted to require both

substantial mental and physical impairment.); Humana of Florida,

Inc. v. McKaughan , 652 So. 2d 852, 859 (Fla. 2d DCA

1995)("[B]ecause the Plan . . . is a statutory substitute for

common law ri ghts 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).

12. Wher e, 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 parti es 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 foregoing Findings of Fact and Conclusions of

Law, it is

OR DERED that the claim for compensation filed by

Minerva Soto, on behalf of and as legal guardian of Mark Ortiz,

a minor, is dismissed with prejudice.

DONE AND ORDERED this 19th day of April, 2005, 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

Fil ed with the Clerk of the

Division of Administrative Hearings

this 19th day of April, 2005.

COPIES FURNISHED :

(By certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

1435 Piedmont Drive , East, Suite 101

Tallahassee, Florida 32308

David R. Best, Esquire

Best & Anderson, P.A.

1201 East Robinson Street

Orlando, Florida 32801

M. Mark Bajalia, Esquire

Brennan, Manna & Diamond

75 South Laura Street, Suite 1700

Jacksonville, Florida 32202

Phillip Watterson, M.D.

4065 Mariner Boulevard

Spring Hill, Florida 34609

Spring Hill Regional Hospital

10461 Quality Drive

Spring Hill, Florida 34609

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cy press Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this F inal O rder 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 d ays of

rendition of the order to be reviewed.