06-002439N Stephen Adam Amerson And Laura R. Amerson, Individually, And As Parent And Natural Guardians Of Dakota A. Amerson, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, November 8, 2006.

Summary: Indisputably, the infant suffered brain injury due to lack of oxygen about one hour after birth and not during labor, delivery, or post-delivery resuscitation. Respondent`s motion for summary final order of dismissal is granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN ADAM AMERSON AND LAURA )

R. AMERSON, INDIVIDUALLY, AND )

AS PARENT S AND NATURAL )

GUARDIANS OF DAKOTA A. AMERSON, )

A MINOR , )

)

Petitioner s , )

) Case No. 06 - 2439N

vs. )

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSA TION ASSOCIATION , )

)

Respondent, )

)

and )

)

SACRED HEART HEALTH SYSTEM, )

INC., d/b/a SACRED HEART )

HOSPITAL, )

)

Intervenor . )

)

SUMMARY FINAL ORDER OF DI SMISSAL

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

Summary Final Order, served October 12, 2006.

STATEMENT OF THE CASE

1. On July 13, 2006, Stephen Adam Amerson and Laura R.

Amerson, individually, and as parents and natural guardians of

D akota A. Amerson (Dakota), a minor, filed a petition with the

Division of Administrative Hearings (DOAH) to resolve whether

Dakota qualified for coverage under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan) and whether the

healthcar e providers complied with the notice provisions of the

Plan .

2. DOAH served the Florida Birth - Related Neurological

Injury Compensation Association (NICA) with a copy of the

petition on July 13, 2006, and on August 31, 2006, NICA served

its response to the petition, and gave notice that it was of the

view that Dakota 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 compensable. In the interim, Sacred Heart Health

System, Inc., d/b/a Sacred Heart Hospital, the facility at which

Dakota was born, was accorded leave to intervene.

3. As requested, a hearing was scheduled for January 9

through 11, 2007, to resolve whether the claim was compensable

and whether the participating physician and hospital gave the

patient notice as required by Section 766.316, Florida Statutes.

4. In the interim, on October 12, 2006, NICA served a

Motion for Summary Final Order, pursuant to Section

120.57 (1)(h), Florida Statutes . 1 The predicate for NICA's motion

was NICA's contention that, indisputably, Dakota's brain injury

did not occur during labor, delivery, or resuscitation in the

immediate postdelivery period in the hospital.

5. Attached to NICA's motion was an affidavit of

Donald Willis, M.D., a specialist in maternal - fetal medicine,

who reviewed the medical records related to Dakota's birth and

concluded, within a reasonable degree of medical probability,

that Dakota "suffered brain injury due to lack of oxygen while

breast - feeding, about one hour after birth . . . [, and not]

during labor, delivery, or the immediate post delivery period."

6. Neither Petitioners nor Intervenor responded to the

Motion for Summary Final Order. Therefore, on October 26, 2006,

an Order to Show Cause was entered as follows:

On October 12, 2006, Respondent served a

Motion for Summary Final Order. To date,

neither Petitioners nor Intervenor has

responded to the motion. Fla. Admin. Code

R. 28 - 106.204(4). Accordingly, i t is

ORDERED that within 10 days of the date of

this Order, Petitioners and Intervenor show

good cause in writing, if any they can, why

the relief requested by Respondent should

not be granted.

7. On October 27, 2006, Petitioners filed their Response

to Motion for Summary Final Order. Pertinent to the pending

motion, the response stated:

1. The Petitioners have reviewed NICA's

Motion for Summary Final Order and the

attached Affidavit of Donald C. Willis,

M.D., asserting that the instant claim is

not co mpensable under the Florida Birth -

Related Neurological Injury Compensation

Plan [(] the "Plan").

2. The Petitioners do not object to

Dr. Willis' affidavit as referenced above

and the Petitioners have no evidence to

support a contrary determination.

8. Thereafter, on November 6, 2006, Intervenor filed its

Response to Motion for Summary Final Order. Pertinent to the

pending motion, the response stated:

1. The Intervenor has reviewed NICA's

Motion for Summary Final Order and the

attached Affidavit of Do nald C. Willis,

M.D., asserting that the instant claim is

not compensable under the Florida Birth -

Related Neurological Injury Compensation

Plan [(] the "Plan").

2. The Intervenor does not object to

Dr. Willis' affidavit as referenced above

and the Interve nor has no evidence to

support a contrary determination.

9 . Given the record, it is undisputed that Dakota's brain

injury did not occur during the course of labor, delivery, or

resuscitation in the immediate postdelivery period in the

hospital. Conseque ntly, for reasons appearing 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

10. The Division of Administrative Hearings has

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

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

11 . The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature " for the

purpose of providing compensation, irrespective of fault, for

birth - rel ated neurological injury claims" relating to births

occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

12. The injured " infant, her or his personal

representative, parents, dependents, and next of kin, " may seek

compensation under the Pla n 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.

1 3 . 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.

1 4 . 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 t he

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 substa ntially 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 cours e 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 p ost - 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 pa rticipating physician

at birth. " § 766.31(1), Fla. Stat.

1 5 . 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

si ngle 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.

1 6 . Here, ind isputably, Dakota did not suffer an injury to

the brain , in the course of labor, delivery, or resuscitation .

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

Florida Statutes, Dakota 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 term s. " ), approved , Florida Birth -

Related Neurological Injury Compensation Association v.

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

1 6 . Where, as here, the administrative law judge

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

neurologica l 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 Statement of the Case and

Conclusions of Law, it is

ORDERED that Respondent's Motion for Summary Final Order is

granted, and the petition for compensation filed by St ephen Adam

Amerson and Laura R. Amerson, individually, and as parents and

natural guardians of Dakota A. Amerson, a minor, be and the same

is dismissed with prejudice.

It is further ORDERED that the hearing scheduled for

January 9 through 11, 2007, is canc eled.

DONE AND ORDERED this 8th day of November, 2006 , in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Ta llahassee, 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

Division of Administrative Hearings

this 8th of November, 2006 .

ENDNOTE

1/ Pertinent to this case, Section 120. 57(1)(h), Florida

Statutes, provides:

(h) Any party to a proceeding in which an

administrative law judge of the Division of

Administrative Hearings has final order

authority may move for a summary final order

when there is no genuine issue as to any

mate rial fact. A summary final order shall

be rendered if the administrative law judge

determines from the pleadings, depositions,

answers to interrogatories, and admissions

on file, together with affidavits, if any,

that no genuine issue as to any material

f act exists and that the moving party is

entitled as a matter of law to the entry of

a final order . . . .

COPIES FURNISHED :

(Via Certified Mail)

Scott McMillen, Esquire

McMillen Law Firm

390 North Orange Avenue, Suite 140

Orlando, Florida 32801

(Certi fied Mail No. 7099 3400 0010 4399 5292)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7099 3400 0010 4399 5285)

Will iam C. Baker, Jr., Esquire

Baker & Baker

300 East Government Street

Pensacola, Florida 32502

(Certified Mail No. 7099 3400 0010 4399 5278)

John B. Fricke, Jr., Esquire

Bozeman, Jenkins & Matthews, P.A.

Post Office Box 13105

Pensacola, Florida 32591 - 310 5

(Certified Mail No. 7099 3400 0010 4399 5360)

Robert J. Grace, Jr., Esquire

Stiles, Taylor and Grace, P.A.

Post Office Box 1140

Tallahassee, Florida 32302

(Certified Mail No. 7099 3400 0010 4399 5353)

Jeanne Eckert, M.D.

4900 Grande Drive

Pensacola, F lorida 32504 - 8951

(Certified Mail No. 7099 3400 0010 4399 5346)

Sacred Heart Hospital

5151 North 9th Avenue

Pensacola, Florida 32504

(Certified Mail No. 7099 3400 0010 4399 5339)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Depart ment of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7099 3400 0010 4399 5322)

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

to judicial review pursuan t 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 Administ rative 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.