07-000538N Patricia Elin-Lipps And Jeffrey Lipps, As Parents And Natural Guardians Of Alexander Lipps, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, July 31, 2007.

Summary: Indisputably, the infant`s birth weitht did not meet the statutory minimum required for coverage under the Plan. The Association`s motion for summary final order of dismissal is granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA ELIN - LIPPS AND JEFFREY )

LIPPS, AS PARENTS AND NATURAL )

GUARDIANS OF ALEXANDER LIPPS, A )

MINOR , )

)

Petitioners , )

)

vs. ) Case No. 07 - 0538N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respo ndent . )

)

SUMMARY FINAL ORDER OF DISMISSAL

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

Summary Final Order, filed July 23, 2007 .

STATEMENT OF THE CASE

1. On January 31, 2007, Patricia Elin - Lipps and

Jeffrey Lipps, as parent s and natural guardian s of

Alexander Lipps (Alexander) , a minor, filed a petition with the

Division of Administrative Hearings (DOAH) to resolve whether

Alexander qualified for cover age under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan).

2. DOAH served the Florida Birth - Related Neurological

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

on February 1, 2007, and on July 2, 2007, following a number of

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

it was of the view that Alexander did not suffer a "birth -

related neurological injury," as defined by Section 766.302(2),

Florida Statutes, because his birth weight did not meet the

statutory minimum for coverage under the Plan, and requested

"the weight threshold issue be determined prior to the any other

issues of compensability."

3. Thereafter, on July 23, 2007, NICA filed a Motion for

Summary Final Order, pursuant to Section 120 .57(1)(h), Florida

Statutes. The predicate for NICA's motion was its assertion

that, indisputably, Alexander was the product of a single

gestation, and his birth weight of 2,460 grams was less than the

minimum weight of 2,500 grams required for coverage u nder the

Plan. See §§ 766.302(2), 766.309(1), and 766.31(1), Fla. Stat.

Attached to NICA's motion was a Joint Stipulation of Facts ,

wherein the parties stipulated "that, at birth, the infant,

Alexander Lipps, weighed 2,460 grams and was delivered from a

single gestation." The parties' stipulation is accepted.

4. Given the record, Alexander was, indisputably, the

product of a single gestation, with a birth weight of 2,460

grams. Therefore, NICA's Motion for Summary Final Order is

well - founded. §§ 120.5 7(1)(h), 766.302(2), and 766.309, Fla.

Stat.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

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

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

6. 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.

7. 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 rel evant written information relating to the issue of

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

§ 766.305(4), Fla. Stat.

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

is a compensable birth - related neurological injury, it may aw ard

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.

9. In discharging this responsibility, the administrative

law judge must make the f ollowing 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 brai n

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

neuro logical 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 mid wife 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 la w 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.

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

inju ry" 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

single gestation or, in the case of a

multiple gestation, a live infant weighing

at least 2,000 grams at birth caused by

o xygen 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 definitio n shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

11. Here, indisputably, Alexander was the product of a

single gestation, with a birth weight of 2, 460 grams.

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

Florida Statutes, Alexander 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 comm on law rights and liabilities, it

should be strictly construed 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).

12. 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] and . . . cause a copy of such order to be sent

immediately to the pa rties 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 Findings of Fact and Conclusions of

law, it i s

ORDERED that Respondent's Motion for Summary Final Order is

granted, and the petition for compensation filed by

Patricia Elin - Lipps and Jeffrey Lipps, as parent s and natural

guardian s of A lexander Lipps , a minor, is dismissed with

prejudice.

DONE AND O RDERED this 31st day of July, 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

(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 31st day of July, 2007 .

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. 7002 0860 0000 9191 7370)

Harry A. Shevin, Esquire

Searcy, Denney, Scarola, Barnhart &

Shipley, P .A.

2139 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33409

(Certified Mail No. 7002 0860 0000 9191 7387)

Kathleen D. Brown, M.D.

Partners in O B /GYN

2818 West Virginia Avenue

Tampa, Florida 33607

(Certified Mail No. 7002 0860 0000 9191 7394)

St . Joseph's Women's Hospital

3030 West Dr. Martin Luther King, Jr., Boulevard

Tampa, Florida 33607

(Certified Mail No. 7002 0860 0000 9191 7400)

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 4616)

NOTICE OF RIGHT TO JUDICIAL 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,

Flo rida 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,

accompani ed 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.