05-002168N Sheri R. Spradlin On Behalf Of And As Parent And Natural Guardian Of Chason D. Spradlin, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, February 8, 2006.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHERI R. SPRADLIN , on behalf of )

and as parent and natural )

guardian of CHASON D. SPRADLIN, )

a minor, )

)

Petitioner, )

)

vs. ) Case No. 05 - 2168N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respond ent, )

)

and )

)

DAVID O'BRYAN, M.D.; A.J. )

BRICKLER, III, M.D.; and NORTH )

FLORIDA WOMEN'S CARE, )

)

Intervenor s . )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative

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

a hearing in the above - styled case on January 11, 2006, in

Tallahassee, Florida.

APPEARANCES

For Petitioner: No appearance at hearing.

For Respondent: T ana D. Storey, Esquire

Roetzel & Andress

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

For Intervenor s : Robert G. Churchill, Jr., Esquire

Dennis , Jackson, Martin & Fontela, P.A.

Post Office Box 15589

Tallahassee, Florida 32317 - 5589

STATEMENT OF THE ISSUE

At issue is whether Chason D. Spradlin, a minor, qualifies

for coverage under the Florida Birth - Related Neurological

Compensation Plan (Plan).

PRELIMINARY STATEMENT

On June 15, 2005, Sheri R. Spradlin, on behalf of, and as

parent and natural guardian of Chason D. Spradlin (Chason), a

minor, filed a petition (claim) with the Division of

Administrativ e 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

June 16, 2005, and on October 14, 2005, following a number of

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

it was of the view that Chason 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 resolve

whether the claim was compe nsable. In the interim,

David O'Br y an, M.D., A.J. Brickler, III, M.D., and North Florida

Women's Care were granted leave to intervene, and by Notice of

Hearing dated November 2, 2005, a hearing was scheduled for

January 11, 2006, to resolve whether the cl aim was compensable.

At hearing, neither Petitioner nor anyone on her behalf

appeared, and no evidence was offered to support Petitioner's

claim. Respondent offered Respondent's Exhibit 1 (medical

records, which were authenticated by an affid avit of

Kathe rine Alexander, Custodian of Records for NICA, as "a true

and correct copy of the medical records relating to

Chason Spradlin and Sheri Spradlin as submitted to NICA by

Petitioners pursuant to Section 766.305, Florida Statutes.") and

Exhibit 2 (an affidavi t, with attached report of neurological

evaluation of Chason Spradlin by Michael Duchowny, M.D.).

Respondent's exhibits were hearsay, and subject to the

limitations of Section 120.57(1)(c), Florida Statutes. No

witnesses were called, and no further exhib its were offered.

Following the hearing, an Order to Show Cause was entered

on January 12, 2006, which provided:

Pursuant to notice, a hearing was held in

Tallahassee, Florida, on January 11, 2006,

to resolve whether Chason D. Spradlin, a

minor, suffered a birth - related neurological

injury and whether obstetrical services were

delivered by a participating physician

during Chason's birth. Notably, neither

Petitioner nor anyone on her behalf appeared

at hearing, and no proof was offered to

support her claim. Accordingly, it is

ORDERED that Petitioner is accorded until

January 27, 2006, to show good cause in

writing, if any she can, why a final order

should not be entered dismissing her claim

with prejudice.

Petitioner did not respond to the Order to Show C ause.

Given that Petitioner did not respond to the Order to Show

Cause, the parties were accorded until February 6, 2006, to file

proposed orders. Respondent elected to file such a proposal,

and it has been duly considered.

FINDINGS OF FACT

1. As o bserved in the Preliminary Statement, neither

Petitioner nor anyone on her behalf appeared at hearing, and no

proof was offered to support her claim. Consequently, there

being no competent proof, the record fail ed to demonstrate that

Chason suffered a "bi rth - related neurological injury," as

defined by the Plan.

CONCLUSIONS OF LAW

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 es tablished 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.

4. The injured "infant, her o r 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.

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 - 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.

76 6.303(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

supervi sed 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.

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 p ostdelivery 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 abnormalit y.

8. As the claimant, the burden rested on Petitioner to

demonstrate that Chason 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 , 34 8 So. 2d 349, 350 (Fla. 1st DCA 1977)("[T]he burden

of proof, apart from statute, is on the party asserting the

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

failing to appear and offer proof, Petitioner failed to sustain

that burden. A ccordingly, Petitioner's claim has not been shown

to be compensable.

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]

a nd . . . 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

Bas ed on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED the claim for compensation filed by Sheri R.

Spradlin, on behalf of and as parent and natural guardian of

Chason D. Spradlin, a minor is dismissed with prejudice.

DONE AND ORDERED this 8th day of February, 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 32 399 - 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 8th day of February, 2006.

COPIES FURNISHED :

(Via certified mail)

Kenney Shipley, Executive Di rector

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7003 1010 0001 2044 4906)

Robert G. Churchill, Jr., Esquire

Craig A. Dennis, Esquire

Dennis, Jackso n, Martin & Fontela, P.A.

Post Office Box 15589

Tallahassee, Florida 32317 - 558 9

(Certified Mail No. 7003 1010 0001 2044 4913)

Tana D. Storey, Esquire

Roetzel & Andress

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

(Certified Mail No. 7003 1010 0001 2044 4920)

Sheri R. Spradlin

280 McGinty Road

Moultrie, Georgia 31768

(Certified Mail No. 7003 1010 0001 2044 4937)

A. J. Brickler, M.D.

North Florida Women's Care

1407 Centerville Road

Tallahassee, Florida 32308

(Certified Mail No. 7003 10 10 0001 2044 4944)

David O ' Bryan, M.D.

North Florida Women's Care

1407 Centerville Road

Tallahassee, Florida 32308

(Certified Mail No. 7003 1010 0001 2044 4951)

Tallahassee Memorial Hospital

1300 Miccosukee Road

Tallahassee, Florida 32308

(Certified Ma il No. 7003 1010 0001 2044 4968)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7003 1010 0001 2044 4975)

NOTICE OF RIGHT TO JU DICIAL 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 a re 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,

Florid a 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.