06-000920N China La`sha Reaves, A Minor Child, By And Through Her Next Friends, Sheila Sinclair, And April Reaves; Sheila Sinclair, Individually, And As Legal Guardian Of China La`sha Reaves And April Reaves, Individually, And As Mother Of China La`sha Reaves vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, November 7, 2007.

Summary: The proof demonstrated that the infant`s impairments were most likely developmentally based, as opposed to birth-related. The claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHINA LA'SHA REAVES, A MINOR )

CHILD, BY AND THROUGH HER NEXT )

FRIENDS, SHEILA SINCLAIR, AND )

APRIL REAVES; SHEILA SINCLAIR, )

INDIVIDUALLY, AND AS LEGAL )

GUARDIAN OF CHINA LA'SHA REAVES )

AND APRIL REAVES, IN DIVIDUALLY, )

AND AS MOTHER OF CHINA LA'SHA )

REAVES , )

)

Petitioner s , )

)

vs. ) Case No. 06 - 0920N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent, )

)

and )

)

ORLANDO REGIONAL HEALTHCARE )

SYSTEM, INC., d/b/a ARNOLD )

PALMER HOSPITAL, )

)

Intervenor . )

)

FINAL ORDER

With the parties' agreement, this case was resolved on an

agreed record.

STATEMENT OF THE ISS UE

At issue is whether Chin a La'Sha Reaves (China), a minor,

qualifies for coverage under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan).

PRELIMINARY STATEMEN T

On May 14, 2006, Sheila Sinclair, individually and as legal

guardian of China La'Sha Reaves, a m inor, and April Reaves,

individually and as mother of China La'Sha Reaves, a minor,

filed a petition (claim) with the Division of Administrative

Hearings (DOAH) for compensation under the Plan.

DOAH served the Florida Birth - Related Neurological Injury

Comp ensation Association (NICA) with a copy of the claim on

March 15, 2006 ; and on March 27, 2007, following a number of

extensions of time within which to do so, NICA responded to the

claim, and gave notice that it was of the view that China 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 the issue. In the interim,

Orlando Regional Healthcare System, Inc., d/b/a Arnold Palmer

Hospital, was accorded l eave to intervene.

Pursuant to notice, a hearing was scheduled for November 7,

2007, to resolve whether the claim was compensable. However, on

October 24, 2007, the parties filed an Agreed Motion to Submit

Cause Upon an Agreed Record of Counsel, in lieu o f a hearing.

The parties' motion was granted by Order of October 26, 2007,

and the hearing scheduled for November 7, 2007, was canceled.

The parties filed their Agreed Record of Counsel on

October 25, 2007, and the medical records to be considered on

Octo ber 26, 2007, and October 29, 2007.

By Order of October 26, 2007, the parties were accorded

until November 5, 2007, to file proposed final orders.

Respondent elected to file such a proposal, and Petitioners

adopted Respondent's proposal. The parties' pro posal has been

duly - considered .

FINDINGS OF FACT

Stipulated facts

1. April Reaves is the mother of, and Sheila Sinclair is

the legal guardian of, China La'Sha Reaves, a minor. China was

born a live infant on September 6, 2001, at Orlando Regional

Healt hcare System, Inc., d/b/a Arnold Palmer Hospital, Orlando,

Florida, and her birth weight exceeded 2,500 grams.

2. The physician providing obstetrical services during

China's birth was Penny Ann Danna, M.D., who, at the time, was a

"participating physician " in the Florida Birth - Related

Neurological Injury Compensation Plan, as defined by Section

766.302(7), Florida Statutes.

3. April Reaves was provided notice as required by Section

766.316, Florida Statutes.

4. The Agreed Record does not demonstrate th at China

suffered a "birth - related neurological injury," as defined by

Section 766.302(2), Florida Statutes.

Coverage under the Plan

5. Pertinent to this case, coverage is afforded by the

Plan for infants who suffer a "birth - related neurological

injury," defined as an "injury to the brain or spinal cord . . .

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."

§ 766.302(2), Fla. Stat.

6. Here, the parties' stipulation that "[t]he Agreed

Record in this matter does not show that China La'Sha Reaves

suffered a 'birth - related neurological injury ' under Section

766.302(2), Fla. Stat.," is consistent with the record, which

demonstrates that China's impairments are most likely

developmentally based, as opposed to birth - related.

Consequently, the record fails to support the conclusion that

China suffered a "birth - related neurological injury," as

required for coverage under the Plan.

CONCLUSIONS OF LAW

7 . The Division of Administrative Hearings has

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

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

8 . T he 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 Janu ary 1, 1989. § 766.303(1), Fla. Stat.

9 . 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),

and 766.305(1), 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 pe tition and to

submit relevant written information relating to the issue of

whether the injury is a birth - related neurological injury."

§ 766.305(4), Fla. Stat.

10 . If NICA determines that the injury alleged in a claim

is a compensable birth - related neuro logical 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(7), 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.

11 . 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 i nfant 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 injur y 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 postdelivery

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 postdelivery

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.

12 . Pertinent to this case, "birth - r elated neurological

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

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 weighin g

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 mental ly and physically

impaired. This definition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

13 . Here, the proof failed to support the conclusion that,

more likely than not, China's n eurologic impairments were the

result of an injury to the brain or spinal cord caused by oxygen

deprivation or mechanical injury occurring in the course of

labor, delivery, or resuscitation in the immediate postdelivery

period in the hospital. Consequentl y, given the provisions of

Section 766.302(2), Florida Statutes, China does not qualify for

coverage under the Plan. See also §§ 766.309(1) and 766.31(1),

Fla. Stat.; 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 constructed to include only those subjects

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

Related Neurological Injury Compensation Associat ion v.

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

14 . Where, as here, the administrative law judge

determines that ". . . the injury alleged is not a birth - related

neurological injury . . . she or 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

ORD ERED the claim for compensation filed by Sheila

Sinclair, individually and as legal guardian of China La'Sha

Reaves, a minor, and April Reaves, individually and as mother of

China La'Sha Reaves, a minor, is dismissed with prejudice.

DONE AND ORDERED this 7th day of November, 2007 , 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 - 30 60

(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 7th day of November, 2007 .

COPIES FURNISHED :

(Via Certified Mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7005 1820 0002 9840 8639)

David R. Best, Esquire

Best & Anderson, P.A.

Bank of America Center

390 North O range Avenue, Suite 1875

Orlando, Florida 32801

(Certified Mail No. 7005 1820 0002 9840 8646)

Francis E. Pierce, III, Esquire

Cooney, Mattson, Lance, Blackburn,

Richards & O'Connor, P.A.

111 North Orange Avenue, Suite 850

Post Office Box 4850

Orlando, Florida 32801

(Certified Mail No. 7005 1820 0002 9840 8653)

Michael Keith Wilson, Esquire

Broad and Cassel

390 North Orange Avenue, Suite 1400

Orlando, Florida 32801 - 1641

(Certified Mail No. 7005 1820 0002 9840 8677)

Penny Ann Danna, M.D.

21 West Colu mbia Street

Orlando, Florida 32806

(Certified Mail No. 7005 1820 0002 9840 8684)

Arnold Palmer Hospital for Women and Children

92 West Miller Street

Orlando, Florida 32806

(Certified Mail No. 7005 1820 0002 9840 8691)

Charlene Willoughby, Director

Cons umer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7005 1820 0002 9840 8707)

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 A gency 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

Compensati on 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.