05-000501N Altagrace Laborde And Yves Laborde, On Behalf Of And As Parents Of And Natural Guardians Of Christie Laborde, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, April 19, 2005.

Summary: The physician who provided obstetrical services at infant`s delivery was not a "participating physician" in the Florida Birth-Related Neurological Injury Plan. Respondent`s Motion for Summary Final Order of dismissal is granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALTAGRACE LABORDE AND YVES )

LABORDE, on behalf of and as )

parents of and natural )

guardians of CHRISTIE LABORDE, )

a minor, )

)

Petitioners, )

)

vs. ) Case No. 05 - 0501N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION A SSOCIATION, )

)

Respondent. )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on to be heard on Respondent's Motion for

Summary Final Order, filed March 21, 2005 .

STATEMENT OF THE CASE

1. On February 9, 2005, Altagrace Laborde and

Yves Laborde, on behalf of and as parents and natural guardians

of Christie Laborde (Christie), a minor, filed a petition with

the Division of Administrative Hearings (DOAH) to resolve

whether Christie qualified for coverage under the Florida Birth -

Related Neurological Injury Compensation Plan (Plan). 1

2. DOAH served the Florida Birth - Related Neurological

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

on February 9, 20 05, 2 and on March 21, 2005, NICA filed a Motion

for Summary Final Order, pursuant to Section 120.57(1)(h),

Florida Statutes. The predicate for NICA's motion was its

assertion that, indisputably, the physician (Enock Joseph, M.D.)

named in the petition as having provided obstetrical services at

Christie's birth was not a "participating physician," as defined

by law, since he had neither paid the assessment required for

participation nor was he exempt from payment of the assessment.

§ 766.302(7), Fla. Stat. See also § 766.314(4)(c), Fla. Stat.

Attached to the motion was an affidavit of the Custodian of

Records for NICA attesting to the fact that, at the time of

Christie's birth, Doctor Joseph had not paid the assessment

required for participation, and that he was not exempt from

payment of the assessment.

3. Petitioners did not respond to NICA's Motion for

Summary Final Order. Consequently, an Order to Show Cause was

entered on April 5, 2005, which provided:

On March 21, 2005, Respondent served a

Motion f or Summary Final Order. To date,

Petitioners have not responded to the

motion. Fla. Admin. Code R. 28 - 106.204(4).

Accordingly, it is

ORDERED that on or before April 15, 2005,

Petitioners show good cause in writing, if

any they can, why the relief reque sted by

Respondent should not be granted.

Petitioners respond ed to the Order to Show Cause on April 13,

2005, and stated: "Petitioners cannot show good cause in

writing why the relief requested by Respondent in its Motion for

Summary Final Order should n ot be granted . "

4. Given the record, there is no dispute that the

physician who provided obstetrical services during Christie's

birth was not a "participating physician," as that term is

defined by Section 766.302(7), Florida Statutes. Consequently,

NICA 's Motion for Summary Final Order is, for reasons appearing

more fully in the Conclusions of Law, well founded .

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

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

these proceeding s. § 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" relat ing 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. Stat. The Florida

Birth - Related Neurological Injury Compensation Association,

which administers the Plan, has "45 days from the date of

service of a complet e 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 alleg ed 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 othe r 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, Florida

Statutes. §§ 766.304, 766.307, 766.309, and 766.31, Fla. Stat.

9. 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 - related neurological injury. If the

claimant has demonstrated, to th e

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 rendered permanently

and substantially mentally and physically

imp aired, 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 participating physician in

the course of labor, delivery, or

resuscitat ion 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, "participating physician" is

defined by Section 766.302(7), Florida Statutes, to mean:

. . . a physician licensed in Florida to

practice medicine who practices obstetrics

or performs obstetrical services either

full - time or part - time and who had paid or

was exempt from payment at the time of

injury the assessment required for

participation in the birth - related

neurological injury compensation plan for

the year in which the injury occurred.

11. Here, indi sputably, the physician alleged to have

provided obstetrical services during Christie's birth was not a

"participating physician," as that term is defined by Section

766.302(7), Florida Statutes, and as that term is used in

Sections 766.301 through 766.316 , Florida Statutes.

Consequently, Christie does not qualify for coverage under the

Plan.

12. Where, as here, the administrative law judge

determines that ". . . obstetrical services were not delivered

by a participating physician at the birth, . . . 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 agency action subject to appella te

court review. § 766.311(1), Fla. Stat.

CONCLUSION

Based on the Statement of the Case and Conclusions of Law,

it is

ORDERED that Respondent's Motion for Summary Final Order is

granted, and the petition for compensation filed by

Altagrace Laborde and Iv es Laborde, on behalf of and as parents

and natural guardians of Christie Laborde, a minor, is dismissed

with prejudice.

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

Tallahassee, Leon County, Florida.

S

WILLIAM J. K ENDRICK

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

Di vision of Administrative Hearings

this 19th day of April, 2005.

ENDNOTES

1/ Petitioners phrased the predicate for th eir request that

DOAH resolve whether Christie qualified for coverage under the

Plan, as follows:

12. CHRISTIE LABORDE, by and through her

parents and natural guardians, ALTAGRACE

LABORDE and YVES LABORDE, have initiated a

civil suit in the Circuit Court for the

Eleventh Judicial Circuit, Case Number 02 -

32195 CA 09, against ENOCK JOSEPH, M.D.,

TENET HEALTHSYSTEM NORTH SHORE, INC., d/b/a

NORTH SHORE MEDICAL CENTER, and INTELISTAF

HEALTHCARE, INC.

13. Petitioners cannot continue to pursue

this civil action until the Division of

Administrative Hearings determines whether

this claim is compensable under NICA. The

Division of Administrative Hearings has

exclusive jurisdiction to determine whether

a claim is compensable under NICA.

14. Petitioners request that a

determination of coverage and compensability

be conducted as CHRISTIE LABORDE suffers

from a physical impairment [an injury to th e

brachial plexus, attributable to a shoulder

dystocia encountered during delivery] and

not a mental impairment.

2/ Consistent with Section 766.305(2), Florida Statutes (2004),

DOAH also served the physician (Enock Joseph, M.D.) named in the

petition as having provided obstetrical services at Christie's

birth, as well as the hospital (North Shore Medical Center)

named in the petition as the facility at which Christie's birth

occurred. To date, neither the physician nor the hospital has

requested leave to intervene or otherwise sought leave to

participate in these proceedings.

COPIES FURNISHED :

(By certified mail)

Jeb Kurzban, Esquire

Kurzban Kurzban Weinger & Tetzeli, P.A.

2650 Southwest 27th Avenue, 2nd Floor

Miami, Florida 33133

Kenney Shipley, Exe cutive Director

Florida Birth Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308

Enock Joseph, M.D.

5650 Northeast 2nd Avenue

Miami, Florida 33137

North Shore Medical Center

1100 North west 95th Street

Miami, Florida 33150

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress 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 Ne urological 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.