06-002513N Daniel Ivanovic And Lori Ivanovic, On Behalf Of And As Parents And Natural Guardians Of Wesley Ivanovic, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, August 29, 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

DANIEL IVANOVIC AND LORI ) )

IVANOVIC, ON BEHALF OF AND AS )

PARENTS AND NATURAL GUARDIANS )

OF WESLEY IVANOVIC, A MINOR, )

)

Petitioners, )

) Case No. 06-2513N

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

DAVID A. MARCANTAL, M.D., )

CELEBRATION OBSTETRICS AND )

GYNECOLOGY ASSOCIATES, P.A., )

and ADVENTIST HEALTH )

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

FLORIDA HOSPITAL CELEBRATION )

HEALTH, )

)

Intervenors. )

FINAL ORDER

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

agreed record.

STATEMENT OF THE ISSUE

At issue is whether Wesley Ivanovic, a minor, qualifies for

coverage under the Florida Birth-Related Neurological Injury

Compensation Plan (Plan).

PRELIMINARY STATEMENT

On July 17, 2006, Daniel Ivanovic and Lori Ivanovic, on

behalf of and as parents and natural guardians of

Wesley Ivanovic (Wesley), 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

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

July 18, 2006, and on April 10, 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 Wesley 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,

David A. Marcantal, M.D., Celebration Obstetrics and Gynecology

Associates, P.A., and Adventist Health System/Sunbelt, Inc.,

d/b/a Florida Hospital Celebration Health, were accorded leave

to intervene.

Pursuant to notice, dated May 2, 2007, a hearing was

scheduled for August 20, 2007, to resolve whether the claim was

compensable. However, on August 9, 2007, the parties filed an

Agreed Motion to Submit Cause Upon an Agreed Record of Counsel,

in lieu of a hearing. The parties' motion was granted by Order

of August 15, 2007, and the hearing scheduled for August 20,

2007, was canceled.

The parties filed their Agreed Record of Counsel on

August 14, 2007, and Supplemental Stipulation of Counsel on

August 20, 2007, and were accorded until August 27, 2007, to

file proposed orders. No proposed orders were filed.

FINDINGS OF FACT

Stipulated facts

1. Daniel Ivanovic and Lori Ivanovic are the parents and

natural guardians of Wesley Ivanovic, a minor. Wesley was born a

live infant on July 12, 2004, at Adventist Health System/Sunbelt,

Inc., d/b/a Florida Hospital Celebration Health, Celebration,

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

2. The physician providing obstetrical services during

Wesley's birth was David A. Marcantel, 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. Lori Ivanovic was provided notice as required by Section

766.316, Florida Statutes.

4. The Agreed Record demonstrates that Wesley did not

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

Section 766.302(2), Florida Statutes.

Coverage under the Plan

5. Pertinent to the 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 Wesley did not

suffer a "birth-related neurological injury," as defined by the

Plan, is consistent with the record, which demonstrates that

Wesley's impairments are most likely developmentally based, as

opposed to birth-related. Consequently, the record fails to

support the conclusion that Wesley 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. 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.

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 petition 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 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(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 Chapter 120, Florida

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 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 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-related 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 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.

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

more likely than not, Wesley's neurologic 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. Consequently, given the provisions of

Section 766.302(2), Florida Statutes, Wesley was not shown to

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 Association 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

ORDERED the claim for compensation filed by Daniel Ivanovic

and Lori Ivanovic, on behalf of and as parents and natural

guardians of Wesley Ivanovic, a minor, is dismissed with

prejudice.

DONE AND ORDERED this 29th day of August, 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 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of August, 2007.

COPIES FURNISHED :

(Via Certified Mail)

David R. Best, Esquire

Best & Anderson, P.A.

Bank of America Center

390 North Orange Avenue, Suite 1875

Orlando, Florida 32801

(Certified Mail No. 7099 3400 0010 4399 5049)

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 5032)

Thomas E. Dukes, III, Esquire

McEwan, Martinez & Dukes, P.A.

Post Office Box 753

Orlando, Florida 32802-0753

(Certified Mail No. 7099 3400 0010 4399 5025)

Eric P. Gibbs, Esquire

Estes, Ingram, Foels & Gibbs, P.A.

Post Office Box 4974

Orlando, Florida 32802-4974

(Certified Mail No. 7099 3400 0010 4399 4998)

Wendell B. Hays, Esquire

Broad and Cassel

390 North Orange Avenue, Suite 1400

Orlando, Florida 32801

(Certified Mail No. 7099 3400 0010 4399 4950)

David Ashley Marcantel, M.D.

400 Celebration Place, Suite A310

Celebration, Florida 34747

(Certified Mail No. 7099 3400 0010 4399 4981)

Florida Hospital-Celebration Health

400 Celebration Place

Celebration, Florida 34747

(Certified Mail No. 7099 3400 0010 4399 4974)

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 4967)

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.