05-001901N Nicholas Romero, A Minor, By And Through His Parents And Natural Guardians, Andrea Romero And Lauro Romero; And Andrea Romero And Lauro Romero, Individually vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, November 30, 2005.

Summary: The infant was not substantially mentally or physically impaired, and the claim is time-barred. Respondent`s motion for summary final order of dismissal is granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NICHOLAS ROMERO, a minor, by )

and through his parents and )

natural guardians, ANDREA )

ROMERO AND LAURO ROMERO; AND )

ANDREA ROMERO AND LAURO ROMERO, )

individually, )

)

Petitioner s , )

)

vs. ) Case No. 05 - 1901N

)

FLORIDA BIRTH - REL ATED )

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, served August 15, 2005.

STATEMENT OF THE CASE

1. On May 23, 2005, Andrea Romero and Lauro Romero,

individually, and as parents and natural guardians of

Nicholas Romero (Nicholas), 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). Notably, the petition averred that

Nicholas was born June 2, 1999.

2. DOAH served the Florida Birth - Related Neurological

Inj ury Compensation Association (NICA) with a copy of the claim

on May 24, 2005, 1 and on July 21, 2005, following an extension of

time within which to do so, NICA served its response to the

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

that N icholas did not suffer a "birth - related neurological

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

that, given the provisions of Section 766.313, Florida Statutes,

the claim was time - barred. Nevertheless, since Plan immunity

may be a vi able defense to a civil suit, and the administrative

law judge has exclusive jurisdiction to resolve whether a claim

is compensable, NICA requested that a hearing be scheduled to

resolve whether the claim was compensable. See

§§ 766.301(1)(d), 766.303(2), and 766.304, Fla. Stat., and

O'Leary v. Florida Birth - Related Neurological Injury

Compensation Association , 757 So. 2d 624 (Fla. 5th DCA 2000).

3. On August 11, 2005, a hearing was scheduled for

November 4, 2005, to resolve whether the claim was compensa ble

and whether the claim was time - barred. Thereafter, on

August 15, 2005, NICA served a Motion for Summary Final Order.

The predicate for the motion was, inter alia , NICA's assertion

that the claim was not compensable since, indisputably, Nicholas

was n either substantially mentally impaired nor substantially

physically impaired, and that the claim , filed more than 5 years

after Nicholas' birth, was time - barred. Attached to NICA's

motion was an affidavit of Michael Duchowny, M.D., a pediatric

neurologist associated with Miami Children's Hospital, who,

based on his review of Nicholas' medical records and his

evaluation of Nicholas on June 29, 2005, concluded, within a

reasonable degree of medical probability, that Nicholas' "mental

and motor status are clo se to age level," and that Nicholas "is

not permanently and substantially mentally impaired nor is he

permanently and substantially physically impaired ."

4. On August 31, 2005, Petitioners filed their response to

the Motion for Summary Final Order. The ir response was as

follows:

The Petitioners hereby declare that they

have no opposition to the entry of a Summary

Final Order in accordance with the Motion

for Summary Final Order filed by the FLORIDA

BIRTH - RELATED NEUROLOGICAL INJURY

COMPENSATION ASSOCIAT ION, dated August 15,

2005.

5. Given the record, it is undisputed that Nicholas is not

substantially mentally or physically impaired, and that the

claim for compensation was filed more than 5 years after

Nicholas' birth. Consequently, for reasons appear ing more fully

in the Conclusions of Law, NICA's Motion for Summary Final Order

is well - founded. § 120.57(1)(h), Fla. Stat.

CONCLUSIONS OF LAW

Jurisdiction

6. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subjec t matter of,

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

Compensability

7 . In resolving wither a claim is compensable, the

administrative law judge must make the following determination

based upon the available evidence:

(a) Whether the injury c laimed 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

th e 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.

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

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

(1999), 2 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 t he 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.

9 . Here, indisputably, Nicholas is not perma nently and

substantially mentally and physically impaired. Consequently,

given the provisions of Section 766.302(2), Florida Statutes,

Nicholas does not qualify for coverage under the Plan. See also

Humana of Florida, Inc. v. McKaughan , 652 So. 2d 852, 8 59 (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 Neurologic al

Injury Compensation Association v. McKaughan , 668 So. 2d 974,

979 (Fla. 1996).

The time limitation for filing claims

10. Pertinent to NICA's contention that the claim is time -

barred, Section 766.313, Florida Statutes, provides:

Limitation on claim. -- A ny claim for

compensation under ss. 766.301 - 766.316 that

is filed more than 5 years after the birth

of an infant alleged to have a birth - related

neurological injury shall be barred.

Indisputably, the claim for compensation was filed more than 5

years afte r Nicholas' birth. Consequently, the claim is time -

barred and, if compensable, Petitioners would not be entitled to

an award.

CONCLUSION

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

it is

ORDERED that NICA's Motion for Summary Final Order is

granted, and the claim for compensation filed by Andrea Romero

and Lauro Romero, individually, and as parents and natural

guardians of Nicholas Romero, a minor, is dismissed with

prejudice.

DONE AND ORDERED this 31st 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 F iling (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of August, 2005.

ENDNOTES

1/ Consistent with Section 766.305(2), Florida Statutes, DOAH

also served the physician (Gil Aronson, M.D .) named in the

petition as having provided obstetrical services at Nicholas'

birth, as well as the hospital (South Broward Hospital District,

d/b/a Memorial Hospital West) named in the petition as the

facility at which Nicholas' birth occurred. To date, neither

the physician nor the hospital has requested leave to intervene

or otherwise sought leave to participate in these proceedings.

2/ Nicholas was born June 2, 1999. Consequently, the

amendments to Section 766.302(2), Florida Statutes, "[e]ffective

July 1, 2001, and applicable to births occurring on or after

that date," are not applicable to this case. Ch. 2001 - 277,

§ 149, Laws of Fla.

COPIES FURNISHED:

(By certified mail)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

I njury Compensation Association

1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308 - 4567

(Certified Mail No. 7003 1010 0001 2044 4265)

Scott Newmark, Esquire

Sheldon J. Schlesinger, P.A.

1212 Southeast Third Avenue

Fort Lauderdale, Florida 33 316

(Certified Mail No. 7003 1010 0001 2044 4272)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

(Certified Mail No. 7003 1010 0001 2044 4289)

Gil Aronson, M.D.

1150 North 35th Avenue, No. 385

Hollywood, Florida 33021

(Certified Mail No. 7003 1010 0001 2044 4296)

Gil Aronson, M.D.

2229 North Commerce, No. 200

Fort Lauderdale, Florida 33326

(Certified Mail No. 7003 1010 0001 2044 4302)

South Broward Hospital District

d/b/a Memorial Hospital W est

703 North Flamingo

Pembroke Pines, Florida 33028

(Certified Mail No. 7003 1010 0001 2044 4319)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(C ertified Mail No. 7003 1010 0001 2044 4203)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Summary F inal O rder of

Dismissal 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 presc ribed 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.