07-000872N Markeisha Jenkins, On Behalf Of And As Parent And Natural Guardian Of Lamariya Redford, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, April 17, 2007.

Summary: Indisputably the physician who provided obstetrical services at the infant`s birth was not a "participating physician" in the Florida Birth-Related Neurological Injury Plan. The Motion for Final Summary Order of dismissal is granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARKEISHA JENKINS, ON BEHALF OF )

AND AS PARENT AND NATURAL )

GUARDIAN OF LAMARIYA REDFORD, A )

MINOR , )

)

Petitioner , )

)

vs. ) Case No. 07 - 0872N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Responden t . )

)

SUMMARY FINAL ORDER OF DISMISSAL

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

Summary Final Order, filed March 22, 2007.

STATEMENT OF THE CAS E

1. On February 13, 2007, Markeisha Jenkins, on behalf of

and as parent and natural guardian of Lamariya Redford

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

of Administrative Hearings (DOAH) for compensation under the

Florida Birth - Relate d 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 20, 2007, 1 and on March 22, 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, the physician (Christ - Ann A.E.

Magloire, M.D.) named in the petition as having provided

obstetrical services at Lamariya's birth wa s not a

"participating physician," as defined by law, since she had

neither paid the assessment required for participation nor was

she exempt from payment of the assessment. § 766.302(7), Fla.

Stat. See also § 766.314(4)(c), Fla. Stat. Attached to the

m otion was an affidavit of the Custodian of Records for NICA

attesting to the fact that Dr. Magloire had not paid the

assessment required for participation in the year 2004, the year

in which Lamariya was born, and that she was not exempt from

payment of th e assessment.

3. Petitioner did not respond to NICA's Motion for Summary

Final Order. Consequently, an Order to Show Cause was entered

on April 5, 2007, which provided:

On March 22, 2007, Respondent served a

Motion for Summary Final Order. To date,

Peti tioner has not responded to the motion.

Fla. Admin. Code R. 28 - 106.204(4).

Accordingly, it is

ORDERED that within 10 days of the date of

this Order, Petitioner show good cause in

writing, if any she can, why the relief

requested by Respondent should not be

granted.

4. Petitioner responded to the Motion for Summary Final

Order and Order to Show Cause on April 13, 2007, and stated:

Petitioner realizes that the obstetrician

attending to Petitioner was not a member of

the Florida Birth - Related Neurological

Injury Compensation Association. However,

Petitioner filed an independent action

against the hospital involved in the labor

and delivery , Tenant Health System North

Shore Inc., d/b/a North Shore Medical

Center. The hospital raised as a defense

that it w as a member of NICA and had given

Petitioner notice of the same during her

hospitalization which necessitated the

filing of the Petition.

5. Given the record, there is no dispute that the

physician who provided obstetrical services during Lamariya's

birt h was not a "participating physician," as that term is

defined by Section 766.302(7), Florida Statutes. Consequently,

NICA's Motion for Summary Final Order is, for reasons appearing

more fully in the Conclusions of Law, well - founded.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

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

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

7. The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legisla ture "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.

8. The injur ed infant, her or his personal representa tive,

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.

9. 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 accordan ce with the provisions of C hapter 120, F lorida

Statutes. §§ 766.304, 766.309, and 766.31, Fla. Stat.

10. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whet her 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 in jury 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 obstetric al 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 neurol ogical injury and that

obstetrical services were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

11. Pertinent to this case, "participating physician" is

defined by Section 766.302(7), Florida Statutes, to mean:

. . . a physicia n licensed in Florida to

practice medicine who practices obstetrics

or performs obstetrical services either

full - time or part - time and who had paid or

was exempt from payment at the time of the

injury the assessment required for

participation in the birth - related

neurological injury compensation plan for

the year in which the injury occurred.

12. Here, indisputably, the physician alleged to have

provided obstetrical services during Lamariya's birth was not a

"participating physician," as that term is defi ned by Section

766.302(7), Florida Statutes, and as that term is used in

Sections 766.301 through 766.316, Florida Statutes.

Consequently, Lamariya does not qualify for coverage under the

Plan.

13. Where, as here, the administrative law judge

determines that ". . . obstetrical services were not delivered

by a participating physician at the birth, . . . 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 certi fied 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 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 Markeisha

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

Lamariya Redford, a minor, is dismissed with prejudice.

DONE AND ORDERED this 17th day of April, 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 17th day of April, 2007 .

ENDNOTE

1/ Consistent with Section 766.305(2), Florida Statutes, DOAH

also served the physician (Christ - Ann A.E. Magloire, M.D.) named

in the petition as having provided obstetrical services at

Lamariya's birth, as well as the hospital (North Shore Medical

Center) named in the petition as the facility at which

Lamariya's birth occurred. To date, neither the physician nor

the hospital has requested leave to intervene or otherwise

sought leave to participate in these proceedings.

COPIES FURNISHED :

(Via Certified Mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensatio n Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7099 3400 0010 4399 2109)

Jeffrey S. Hirsh, Esquire

Goldberg & Hirsh, P.A.

One Southeast Third Avenue

Suite 1280

Miami, Florida 33131

(Certified Mail No. 7099 3400 0010 4399 2093)

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 2086)

North Shore Medical Center

1100 No rthwest 95th Street

Miami, Florida 33150

(Certified Mail No. 7099 3400 0010 4399 2079)

Christ - Ann A.E. Magloire, M.D.

5361 Northwest 22nd Avenue

Miami, Florida 33142

(Certified Mail No. 7099 3400 0010 4399 2062)

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

f iling 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 F lorida 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.