04-004341N Krysteen Mccray And Jason Mccray On Behalf Of And As Parents And Natural Guardians Of Davin Asier Mcray, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, August 9, 2005.

Summary: The infant was neither substantially mentally nor substantially physically impaired. Therefore, the claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KRYSTEEN MCCRAY AND JASON )

MCCRAY , on behalf of and as )

parents and natural guardians )

of DAVIN ASIER MCRAY, a minor, )

)

Petitioner s , )

)

vs. ) Case No. 04 - 4341N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOC IATION, )

)

Respondent, )

)

and )

)

BETTY JANE L. CHIOTA, ARNP; )

CINDA M. BURTON, ARNP; MUNROE )

REGIONAL HEALTH SYSTEM, INC., )

d/b/a MIDWIVES OF OCALA; and )

MUNROE REGIONAL HEALTH SYSTEM, )

INC., d/b/a MUNROE REGIONAL )

MEDICAL CENTER, )

)

Intervenor s )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative

Hearings, by Administrative Law Judge William J. Kendrick, held

a hearing in the above - style d case on July 6, 2005, by video

teleconference, with sites in Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner s : George H. Anderson, III, Esquire

Best & Anderson, P.A.

1201 East Robinson Str eet

Orlando, Florida 32801

For Respondent: George W. (Trey) Tate, III, Esquire

Broad & Cassel

390 North Orange Avenue, Suite 1100

Orlando, Florida 32801

For Intervenors: Matt Bartolomei , Esquire

Hill, Adams, Hall & Schieffelin, P.A.

1030 West Canton Avenue, Suite 200

Winter Park, Florida 32790 - 1090

STATEMENT OF THE ISSUES

At issu e is whether Davin Asier McCray, a minor, qualifies

for coverage under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan).

PRELIMINARY STATEMENT

On December 6, 2004, Krysteen McCray and Jason McCray, on

behalf of and as parents and nat ural guardians of Davin Asier

McCray (Davin), a minor, filed a petition (claim) with the

Division of Administrative Hearings (DOAH) for compensation

under the Plan.

DOAH served the Florida Birth - Related Neurological Injury

Compensation Association (NICA) w ith a copy of the claim on

December 7, 2004, and on March 1, 2005, following an extension

of time within which to do so, NICA filed its response to the

petition for benefits and gave notice that it was of the view

that Davin 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. Thereafter, a hearing was scheduled for

July 6, 2005, to address the issue of compensability , and

Betty Jane L. Chiota, ARNP; C inda M . B urton, ARNP ; M unroe

R egional H ealth S ystem, I nc., d/b/a M idwives of O cala; and

M unroe R egional H ealth S ystem, I nc., d/b/a M unroe R egional

M edical C enter were accorded leave to intervene.

At hearing, the parties s tipulated to the facts set forth

in paragraphs 1 and 2 of the Findings of Fact, and Respondent's

Exhibits A through I were received into evidence. No witnesses

were called, and no further exhibits were offered.

The parties were accorded 10 days from the d ate of the

hearing to file proposed orders. Respondent elected to file

such a proposal and it has been duly considered.

FINDINGS OF FACT

Stipulated facts

1. Krysteen McCray and Jason McCray are the natural

parents and guardians of Davin Asier McCray, a minor. Davin was

born a live infant on August 29, 2001, at Munroe Regional

Medical Center, a hospital located in Ocala, Florida, and his

birth weight exceeded 2,500 grams.

2. Obstetrical services were provided at Davin's birth by

Betty Jane L. Chiota, ARNP , and Cinda M. Burton, ARNP. At the

time, n urses Chiota and Burton were certified nurse - midwives and

were "participating physicians," as that term is used in the

Plan. § 766.314(4)(c), Fla. Stat.

Coverage under the Plan

3. Pertinent to this case, c overage 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 resuscita tion 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 proof demonstrates that D avin, who presents

with a diagnosis of periventricular leukomalacia and

developmental delay in multiple areas, including language, motor

activity, socialization, and behavior, is neither permanently

and substantially mentally impaired nor permanently and

s ubstantially physically impaired . Consequently, for reasons

appearing more fully in the Conclusions of Law, the claim is not

compensable, and it is unnecessary to resolve whether Davin's

impairments resulted from a brain or spinal cord injury caused

by ox ygen deprivation or mechanical injury occurring in the

course of labor, delivery, or resuscitation, or whether his

impairments are attributable to another etiology.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

jurisdiction over the pa rties to, and the subject matter of,

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

6. The Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims" relatin g 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 th e 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.

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. § 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.

9. In disc harging this responsibility, the administrative

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

satisfact ion of the administrative law

judge, that the 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 re buttable 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.

§ 766.30 9(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 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 ca se of a

multiple gestation, a live infant weighing

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

render s the infant permanently and

substantially mentally and physically

impaired. This definition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

11. Here, the proof demonstrated that Dav in was neither

permanently and substantially mentally impaired nor permanently

and substantially physically impaired. Consequently, given the

provisions of Section 766.302(2), Florida Statutes, Davin 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 physic al

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 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).

12. Where, as here, the administrative law judge

determines that "the injury alleged is not a birth - r elated

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 age ncy

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

ORDERED that the claim for compensation filed by

Krysteen McCray and Jason McCray, on behalf of and as parents

and natural guardians of Davin Asier McCray, a minor, is

dismissed with prejudice.

DONE AND ORDERED this 9th day of August, 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

Filed with the Clerk of the

Division of Administrative He arings

this 9th day of August, 2005 .

COPIES FURNISHED :

(Via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308

George H. Anderson, III, Esquire

Best & Anderson, P.A.

1201 East Robinson Street

Orlando, Florida 32801

Larry D. Hall, Esquire

Hill, Adams, Hall & Schieffelin, P.A.

1030 West Canton Avenue, Suite 200

Winter Park, Florida 32790 - 1090

George W. (Trey) Tate, III, Esquire

Broad & Cassel

390 North Orange Avenue, Suite 1100

Orlando, Florida 32801

Betty Jane L. Chiota, ARNP

Midwives of Ocala

324 Southeast 24th Street

Ocala, Florida 34471

Cinda M. Burton, ARNP

Midwives of Ocala

324 Southeast 24th Street

Ocala, Flo rida 34471

Munroe Regional Medical Center

131 Southeast 15th Street

Ocala, Florida 34471

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

NOTICE O F 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 76 6.311,

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.