05-001629N Donna Williams And Johnny H. Williams, On Behalf Of And As Parents And Natural Guardians Of John Henry Williams, Ii, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, September 22, 2005.

Summary: Indisputaby, the infant`s birth weight was less that that required for coverage under the plan. Therefore, Respondent`s Motion for Summary Final Order of Dismissal was granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONNA WILLIAMS AND JOHNNY H. )

WILLIAMS, on behalf of and as )

parents and natural guardians )

of JOHN HENRY WILLIAMS, II, a )

minor, )

)

Petitioners, )

)

vs. ) Case No. 05-1629N

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

)

SUMMARY FINAL ORDER OF DISMISSAL

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

Summary Final Order, filed August 23, 2005.

STATEMENT OF THE CASE

1. On May 5, 2005, Donna Williams and Johnny H. Williams,

on behalf of and as parents and natural guardians of John Henry

Williams, II (John), a minor, filed a petition (claim) with the

Division of Administrative Hearings (DOAH) for compensation

under the Florida Birth-Related Neurological Injury Compensation

Plan (Plan).

2. DOAH served the Florida Birth-Related Neurological

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

on May 6, 2005, and on July 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 contention

that John's birth weight was 1,620 grams, less than the statutory

minimum required for coverage under the Plan (at least 2,500

grams for a single gestation or, in the case of a multiple

gestation, at least 2,000 grams). That motion was addressed by

Order of August 1, 2005, as follows:

ORDERED that Respondent's motion is denied.

Bifulco v. State Farm Mutual Automobile

Insurance Co. , 693 So. 2d 707 (Fla. 4th DCA

1997)(The documents attached to motion for

summary judgment could not be considered

since they were not sworn to or certified,

were not accompanied by an affidavit of the

records custodian or other proper person

attesting to their authenticity or

correctness, and were not admissible.);

Lenhal Realty, Inc. vansamerica

Commercial Finance Corp. , 615 So. 2d 207,

209 (Fla. 4th DCA 1993)("[A]n affidavit in

support of a motion for summary judgment is

defective if it fails to be made on personal

knowledge, set forth facts that would be

admissible in evidence, and affirmatively

show that the affiant is competent to

testify as to the matters stated in the

affidavit.")

It is further ORDERED that Respondent file

its response to the Petition for Benefits

within 10 days of the date of this Order.

3. NICA filed its Response to Petition for Benefits on

August 9, 2005, and gave notice that it was of the view that John

did not suffer a "birth-related neurological injury," as defined

by Section 766.302(2), Florida Statutes, because his birth weight

did not meet the statutory minimum for coverage under the Plan.

By Notice of Hearing, dated August 11, 2005, a hearing was

scheduled for October 18, 2005, to resolve whether John's birth

weight met the minimum weight required for coverage under the

Plan. Thereafter, on August 23, 2005, NICA again filed a Motion

for Summary Final Order predicated on its contention that John's

birth weight did not meet the statutory minimum for coverage

under the Plan. However, this time, NICA attached to the motion

two certificates of the records custodian of Sacred Heart

Hospital, attesting to the authenticity of the medical records

(attached to the certificates) for Donna Williams' admission of

July 14, 2001, through July 22, 2004, and for John Henry

Williams' birth on July 20, 2004, and immediate postnatal course,

which demonstrated that John was a single gestation, and that his

birth weight was 1,620 grams.

4. On September 6, 2005, Petitioners filed their response

to the Motion for Summary Final Order. 1 Pertinent to the motion,

that response stated:

Please accept this as an appeal to the

Motion For Summary Final Order from the

Florida Birth-Related Neurological Injury

Compensation Association, Respondent.

The birth weight requirement to be a

compensable claim was truly unclear to me at

the time of filing. Being a parent of a

child with disabilities due to being 10

weeks pre-mature, sometimes clouds your

minds. I surely did not file the claim with

false motives or intentions.

This claim was filed strictly with the

intentions of someone hearing mine and my

son's traumatic birth story and hopefully

agreeing that some procedures from hospital

professionals were at fault for the

neurological injury resulting in his

disabilities. The hope of compensation was

only for help in the expense of therapy and

equipment that he needs now and will need

throughout the years.

However, my appeal is also based that . . .

at least 2500 grams in weight should not

even be a considering factor for

compensation.

5. Given the record, it is undisputed that John's birth

weight did not meet the statutory minimum for coverage under the

Plan. Consequently, NICA's Motion for Summary Final Order, for

reasons appearing more fully in the Conclusions of Law, is well-

founded.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

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

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

7. 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.

8. 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.

9. 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 Chapter 120, Florida

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

10. 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

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 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.

§ 766.309(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.

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

injury" is defined by Section 766.302(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 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.

12. Here, indisputably, John's birth weight was 1,620

grams. Consequently, given the provisions of Section 766.302(2),

Florida Statutes, John 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

clearly embraced within its terms."), approved , Florida Birth-

Related Neurological Injury Compensation Association v.

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

13. 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 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

Donna Williams and Johnny H. Williams, on behalf of and as

parents and natural guardians of John Henry Williams, II, a

minor, is dismissed with prejudice.

DONE AND ORDERED this 22nd day of September, 2005, in

Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of September, 2005.

ENDNOTE

1/ Petitioners' response to NICA's motion was a letter dated and

filed September 6, 2005. However, the letter was not provided to

the undersigned until September 7, 2005, and by that time an

order dated September 7, 2005, had been entered giving the

Petitioners 10 days to "show good cause in writing, if any they

can, why the relief requested by Respondent should not be

granted." That same date, a letter was posted to Petitioners, as

follows:

Your letter of September 6, 2005, was

provided to me today, after my order issued

noting you had failed to respond to the

Motion for Summary Final Order. Please rest

assure[d] I will consider your response, and

will allow you until September 19, 2005, to

file any further response to the Motion for

Summary Final Order or a response to my

Order of September 7, 2005. Thereafter, I

will address the Respondent's Motion for

Summary Final Order.

To date, Petitioners have not filed any further response to the

Motion for Summary Final Order or a response to the Order of

September 7, 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

(Certified Mail No. 7099 3400 0010 4399 5629)

Donna Williams

Johnny H. Williams

5313 Cathy Street

Milton, Florida 32583

(Certified Mail No. 7099 3400 0010 4399 5612)

Charles A. Horan, III, M.D.

5120 Bayou Boulevard, Suite 1

Pensacola, Florida 32503-2198

(Certified Mail No. 7099 3400 0010 4399 5605)

Sacred Heart Hospital

5151 North 9th Avenue

Pensacola, Florida 32504

(Certified Mail No. 7099 3400 0010 5599)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7099 3400 0010 4399 5582)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order 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 days of rendition of the order to

be reviewed.