07-004579N Maria Hernandez And Jesus Hernandez, On Behalf Of And As Parents And Natural Guardians Of Aaron Hernandez, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, February 19, 2008.

Summary: The infant`s birth weight failed to meet the minimum required for coverage under the Plan. The Claim is dismissed with prejudice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIA HERNANDEZ AND JESUS )

HERNANDEZ, ON BEHALF OF AND AS )

PARENTS AND NATURAL GUARDIANS )

OF AARON HERNANDEZ, A MINOR , )

)

Petitioners , )

)

vs. ) Case No. 07 - 4579N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOC IATION , )

)

Respondent . )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative

Hearings, by Administrative Law Judge William J. Kendrick, held

a hearin g in the above - styled case on January 30, 2008, by video

teleconference, with sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioners: Jesus Hernandez, pro se

Maria Hernandez, pro se

18516 S outhwest 114 Court

Miami, Florida 33157

For Respondent: Tana D. Storey, Esquire

Brewton Plante, P.A.

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue is whether Aaron Hernandez (Aaron), a minor,

qualifies for coverage under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan).

PRELIMINARY STATEMENT

On October 4, 2007, Maria Hernandez and Jesus Hernandez, on

behalf of and as parents and natural guardians of

Aaron Hernandez, 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 Inju ry

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

October 5, 2007, and on November 19, 2007, NICA responded to the

petition and gave notice that it was of the view that Aaron did

not suffer a "birth - related neurological injury," as defined by

Section 766.302(2), Florida Statutes, because Aaron's birth

weight of 2,190 grams, as disclosed by the medical records

provided NICA by Petitioners, was less than the minimum weight

of 2,500 grams for a single gestation required for coverage

under the P lan. §§ 766.302(2), 766.309(1), and 766.31(1), Fla.

Stat . NICA requested that a hearing be scheduled to resolve the

issue , and s uch a hearing was duly - scheduled for January 30,

2008.

The transcript of the hearing was filed February 5, 2008,

and the pa rties were accorded 10 days from that date to file

proposed orders. Respondent elected to file such a proposal and

it has been duly - considered.

FINDINGS OF FACT

1. At hearing, Maria Hernandez and Jesus Hernandez, the

parents of Aaron Hernandez, acknowled ged that Aaron was born

May 26, 2004, at approximately 31 weeks' gestation; that he was

the product of a single gestation; and that his birth weight was

2,190 grams.

CONCLUSIONS OF LAW

2. The Division of Administrative Hearings has

jurisdiction over the p arties to, and the subject matter of,

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

3 . The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of faul t, for

birth - related neurological injury claims" relating to births

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

4 . The injur ed "infant, her or his personal

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

compensation u nder the Plan 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 Pl an, 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), F la. Stat.

5 . 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

bee n 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.

6 . In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the injury claim ed is a birth -

related neurological injur y. 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

an d 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 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 immed iate post - 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 participating physician

at birth." § 766.31(1), Fla. Stat.

7 . 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

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 per iod 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.

8 . Here, i ndisputably, Aaron was the produc t of a single

gestation, and his birth weight was 2,190 gra ms. Consequently,

given the provisions of Section 766.302(2), Florida Statutes,

Aaron does not qualify for coverage under the Plan. See also

Humana of Florida, In c. 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 terms."), approved , Florida Birth - Related Neurological

Injury Compensation Association v. McKaughan , 668 So. 2d 974,

979 (Fla. 1996).

9 . 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 parties by registered or certified mail." § 766.309(2),

Fla. Stat. Such an order constitutes final agency

action subject to appellate cour t review. § 766.311(1),

Fla. Stat.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by

Maria Hernandez and Jesus Hernandez, on behalf of and as parents

and natural guardians of Aaron Hernandez, a minor, is dismissed

with prejudice.

DONE AND ORDERED this 1 9 th day of February, 2008 , in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hea rings

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 1 9 th day of February, 20 08 .

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 5720 )

Jesus Hernandez

Maria Hernandez

18516 Southwest 114 Court

Miami, Florida 33157

(Certified Mail No. 7005 1820 0002 9840 5737 )

Tana D. Storey, Esquire

Brewton Plante, P.A.

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

(Certified Mail No. 7 005 1820 0002 9840 5744 )

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7005 1820 0002 9840 5751 )

Jerry M. Gilles, M.D.

UM Depa rtment of OB/GYN

Post Office Box 016960 (R - 136)

Miami, Florida 33101

(Certified Mail No. 7005 1820 0002 9840 5768 )

Jackson Memorial Hospital

1611 Northwest 12th Avenue

Miami, Florida 33168

(Certified Mail No. 7005 1820 0002 9840 5775 )

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,

Florida Statutes. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such proceedi ngs 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,

F lorida 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.