05-001508N Julia Mroz And Stephen Bunnell, Individually And On Behalf Of And As Parents And Natural Guardians Of Aiden Alver Mroz Bunnell, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, August 5, 2005.

Summary: The infant`s birthweight was indisputably below that required for coverage under the Plan. Respondent`s Motion for Summary Final Order of dismissal is granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JULIA MROZ AND STEPHEN BUNNELL, )

individually and on behalf of )

and as parents and natural )

guardians of AIDEN ALVER MROZ )

BUNNELL, a minor, )

)

Petitioner s , )

)

vs. ) Case No. 05 - 1508N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJ URY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

)

SUMMARY FINAL ORDER OF DISMISSAL

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

Summary Final Order, fi led June 13, 2005, and the Order to Show

Cause, entered June 28, 2005.

STATEMENT OF THE CASE

1. On April 25, 2005, Julia Mroz and Stephen Bunnell,

individually and on behalf of and as parents and natural

guardians of Aiden Alver Mroz Bunnell (Aiden), a mi nor filed a

petition (claim) with the Division of Administrative Hearings

(DOAH) for compensation under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan). Pertinent to the

pending motion, the petition averred that Aiden was born March

16, 2003, at Memorial Hospital Jacksonville, and that his birth

weight was 1,437 grams.

2. DOAH served the Florida Birth - Related Neurological

Injury Compensation Association (NICA) with a copy of the

petition on April 26, 2005, and on June 13, 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, inter alia , its agreement that, as alleged in the petition,

Aiden's birth weight was 1,437 grams, less than the minimum

weigh t of 2,500 grams for a single gestation or 2,000 grams for

a multiple gestation required for coverage under the Plan. 1 See

§§ 766.302(2), 766.309(1), and 766.31(1), Fla. Stat.

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

Summary Final Order. Cons equently, an Order to Show Cause was

entered on June 28, 2005, which provided, as follows:

On June 13, 2005, Respondent served a Motion

for Summary Final Order. To date,

Petitioners have not responded to the

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

Ne vertheless, giving due regard to

Petitioners' interests, it is

ORDERED that within 10 days of the date of

this Order, Petitioners show good cause in

writing, if any they can, why the relief

requested by Respondent should not be

granted.

Petitioners did n ot respond to the Order to Show Cause.

4. Given the record, Aiden's birth weight was,

indisputably, 1,437 grams. Consequently, for reasons appearing

more fully in the Conclusions of Law, NICA's Motion for Summary

Final Order is well - founded.

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 t he 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. 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 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 the

satisfaction of the administrative law

judge, that the infant has sustained a brain

or spinal cord injury caused by oxygen

depriva tion 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 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 part icipating 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 766.302(2), to mean:

i njury 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 mechanical injury

occurrin g 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.

11. Here, indisputably, Aiden's birth weight was 1,437

grams. Consequently, given the provisions of Section

766.302(2), Florida Statutes, Aiden does not qualify for

coverage under the Plan. See also 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 clea rly embraced within its terms."), approved ,

Florida Birth - Related Neurological Injury Compensation

Association v. McKaughan , 668 So. 2d 974, 979 (Fla. 1996).

1 2 . Where, as here, the administrative law judge

determines that "the injury alleged is not a bir th - 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 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 Conclusions of

law, it is

ORDERED that the claim for compensation filed by Julia Mroz

and Stephen Bunnell, individually a nd on behalf of and as

parents and natural guardians of Aiden Alver Mroz Bunnell , a

minor, is dismissed with prejudice.

DONE AND ORDERED this 5th day of August, 2005 , in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KE NDRICK

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

Div ision of Administrative Hearings

this 5th day of August , 2005 .

ENDNOTE

1/ Attached to NICA's motion was an affidavit of Katherine

Alexander, R.N., the Custodian of Records for NICA, who averred

that:

3. In the instant case, pursuant to Section

766.30 5(3), Florida Statutes, the Petitioner

submitted the appropriate medical records to

NICA from Memorial Hospital Jacksonville. I

certify that attached hereto is a true and

correct copy of the pertinent medical

records as submitted to NICA by the

Petitioner .

4. Additionally, NICA separately requested

hospital records from Memorial Hospital

Jacksonville to verify the threshold

requirements had not been met.

5. The medical records attached hereto as

Exhibits A, B, C, D, E and F indicate the

infant's birth weight was 1437 grams.

6. Section 766.302(2), Florida Statutes

(2003), defines a birth - related neurological

injury, in pertinent part, as:

. . . injury to the brain or spinal cord of

a live infant weighing at least 2,500 grams

for a single gestation . . . .

Notably, there w ere no medical records attached to the affidavit

filed with DOAH. Nevertheless, given the pleadings, it is

undisputed that Aiden's birth weight was less than that required

for coverage under the Plan.

COPIES FURNISHED

(Via certifi ed mail) :

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308

C. Rufus Pennington, III, Esquire

Margol & Pennington, P.A.

One Independent Drive, Suite 1700

Jacksonville, Florida 32202 - 5005

Glenda Phillips, C.N.M.

Women's Health Specialist

3901 University Boulevard , South, Suite 103

Jacksonville, Florida 32216

Memorial Hospital Jacksonville

3625 University Boulevard, South

Jacksonville, Florida 32216

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 Neurological Injury

Comp ensation 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.