05-000186N Patricia White And Albert Houston, Jr., On Behalf Of And As Parents And Natural Guardians Of Albert Houston, Iii, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, February 14, 2006.

Summary: By failing to appear and offer proof at hearing, Petitioners failed to sustain their burden to demonstrate that the infant suffered a birth-related neurological injury. The claim is dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA WHITE AND ALBERT )

HOUSTON, JR., on behalf of and )

as parents and natural )

guardians of ALBERT HOUSTON, )

III, a minor , )

)

Petitioner s , )

)

vs. ) Case No. 05 - 0186N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATI ON ASSOCIATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative

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

a final hearing in the above - styled case on January 20, 2006, by

video teleconference, with sites in Tallahassee and Fort Myers,

Florida.

APPEARANCES

For Petitioners: No appearance at hearing.

For Respondent: Stanley L. Martin, Esquire

Phelps Dunbar, LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

STATEMENT OF THE ISSUES

At issue is whether Albert Houston, III, a minor , qualifies

for coverage under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan).

PRELIMINARY STATEMENT

On January 21, 2005, Patricia White and Albert Houston,

Jr., on behalf of, and as parents and natural guardians of

Albert Houston, III (Albert), a minor, filed a petition (c laim)

with the Division of Administrative Hearings (DOAH) for

compensation under the Plan.

DOAH served the Florida Birth - Related Neurological Injury

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

January 25, 2005, and on March 23, 2005, follow ing an extension

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

the view that Albert 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 reso lve

whether the claim was compensable. Such a hearing was initially

scheduled for August 8, 2005, re - scheduled at Petitioners'

request for October 6, 2005 , and again re - scheduled for

January 20, 2006.

Although duly noticed, neither Petitioners nor anyone on

their behalf appeared at hearing, and no evidence was offered to

support their claim. Respondent appeared through counsel, but

offered no competent proof. 1

FINDINGS OF FACT

1. As observed in the Preliminary Statement, neither

Petitioners nor anyone on their behalf appeared at hearing, and

no proof was offered to support their claim. Consequently,

there being no proof, the record fails to demonstrate that

Albert suffered a birth - related neurological injury," as defined

by the Plan.

CONCLUSIONS OF LA W

2. The Division of Administrative Hearings has

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

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

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

purpose of providing compensation, ir respective of fault, for

birth - related neurological injury claims" relating to births

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

4. The injured "infant, her or his personal

representative, parents, dependents, and next of kin," may s eek

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.

5. 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.

6. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the injury claimed is a

birth - relate d 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 caused by oxygen

deprivation or mechanical injury and that

the infant was thereby ren dered permanently

and substantially mentally and physically

impaired, a rebuttable 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 particip ating 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

resu scitation 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 ser vices were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

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

injury" is defined by Section 766.302(2), Florida Statutes

(2000), to mean:

injury to the brain or spinal cord of a live

infant weighing at least 2,500 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 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.

8. As the claimants, the burden rested on Petitioners to

demonstrate that Albert suffered a "birth - related neurological

injury," as defined by the Plan. § 766.309(1)(a), Fla. Stat.

See also Balino v. Department of Health and Rehabilitative

Services , 348 So. 2d 349, 350 (Fla. 1st DCA 1977)("[T]he burden

or proof, apart fro m statute, is on the party asserting the

affirmative of an issue before an administrative tribunal . ") By

failing to appear and offer proof, Petitioners failed to sustain

that burden. Accordingly, the Petitioners' claim has not been

shown to be compensabl e under the Plan.

9 . 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 imme diately 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 foregoing Findings of Fact and Conclusi ons of

Law, it is

ORDERED that the claim for compensation filed by

Patricia White and Albert Houston, Jr., on behalf of and as

parents and natural guardians of Albert Houston, III, a minor,

is dismissed with prejudice.

DONE AND ORDERED this 14th day of F ebruary, 2006, 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 Hearings

this 14th day of February, 2006.

ENDNOTE

1/ Respondent offered the reports of Doctors Donald Willis and

Michael S. D uchowny that were filed with DOAH on March 24, 2005.

However, such reports are hearsay and cannot support a finding

of fact. § 120.57(1)(c), Fla. Stat.

COPIES FURNISHED:

(By certified mail)

Kenney Shipley, Executive Director

Florida Birth - Related Neur ological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7003 1010 0001 2044 4845)

Stanley L. Martin, Esquire

Phelps Dunbar, LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

( Certified Mail No. 7003 1010 0001 2044 4852)

Patricia White

Albert Houston, Jr.

301 Kamal Parkway

Cape Coral, Florida 33904

(Certified Mail No. 7003 1010 0001 2044 4869)

Michon M. Floreani, M.D.

1660 Medical Boulevard, Suite 300

Naples, Florida 34410

(Certified Mail No. 7003 1010 0001 2044 4876)

North Collier Hospital

11190 Healthpark Boulevard

Naples, Florida 33941 - 3010

(Certified Mail No. 7003 1010 0001 2044 4883)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Hea lth

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7003 1010 0001 2044 4890)

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 Sectio ns 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 Hear ings 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. 1 st

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

rendition of the order to be reviewed.