07-005147N Corey Leonard Chattic And Christine Lorraine Chattic, On Behalf Of And As Parents And Naturals Guardians Of Gavin Leonard John Chattic, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, February 6, 2008.

Summary: Infant`s birth weight, at 754 grams, was less than the statutory minimum required for coverage under the Plan. The Claim is dismissed with prejudice.

STATE OF FLORIDA

D IVISION OF ADMINISTRATIVE HEARINGS

COREY LEONARD CHATTIC AND )

CHRISTINE LORRAINE CHATTIC, ON )

BEHALF OF AND AS PARENTS AND )

NATURALS GUARDIANS OF GAVIN )

LEONARD JOHN CHATTIC, A MINOR , )

)

Petitioners , )

)

vs. ) Case No. 07 - 5147N

)

FLORIDA BIRTH - RELATED )

NEUROLOGI CAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent . )

)

FINAL ORDER

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

agreed record.

STATEMENT OF THE ISS UE S

At issue is whether Gavin Leonard John Chattic (Gavin), a

minor, qualifies for coverage under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan).

PRELIMINARY STATEMENT

On October 24, 2007, Corey Leonard Chattic and

Christine Lorrain e Chattic, on behalf of and as parents and

natural guardians of Gavin Leonard John Chattic, a minor, filed

a petition (claim) with the Division of Administrative Hearings

(DOAH) for compensation under the Plan.

DOAH served the Florida Birth - Related Neurolo gical Injury

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

November 13, 2007, and on January 4, 2008, NICA responded to the

petition, and gave notice that it was of the view that Gavin did

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

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

weight, at 754 grams, was less than the minimum weight of 2,500

grams for a single gestation or 2000 grams for a multiple

gestation required for coverage under the Plan. §§ 766.302( 2),

766.309(1), and 766.31(1), Fla. Stat.

On January 31, 2008, following a status conference (held

January 11, 2008 ) , the parties filed an original Joint

Stipulation of Facts and attached medical records, and agreed

that the issue of compensability be reso lved on their Joint

Stipulation of Facts and attached medical records.

FINDINGS OF FACT

1. By their Joint Stipulation of Facts, the parties have

agreed that:

1. On October 24, 2007, the Petitioners as

parents and natural guardians of Gavin

Leonard Joh n Chattic ("Gavin"), a minor,

filed a claim with the Division of

Administrative Hearings ("DOAH") for

compensation under the Florida Birth - Related

Neurological Injury Compensation Plan (the

"Plan"). Such Petition is fully

incorporated herein by reference.

2. Gavin was born on October 30, 2006, at

Lakeland Regional Medical Center.

3. Corey Leonard Chattic and Christine

Lorraine Chattic, currently of 7415 Loblolly

Avenue, Lakeland, Florida 33810, are the

parents and natural guardians of the infant.

4. Jennifer Mignon Nixon, M.D., whose

address is 1733 Lakeland Hills Boulevard,

Lakeland, Florida 33805, provided

obstetrical services during the delivery of

Gavin.

5. Jennifer Mignon Nixon, M.D., is a

participating physician as defined in

Section 766.302( 7), Florida Statutes.

6. The Parties stipulate that the attached

medical records from Lakeland Regional

Medical Center are true and correct copies

of the medical records kept in the normal

course of business.

7. The Parties stipulate that, at birth,

th e infant, Gavin, weighed 754 grams . . . .

2. The medical records attached to the parties' Joint

Stipulation of Facts reveal that Gavin was born premature, at

24 3/7 weeks' gestation, and that his birth weight was 754

grams.

CONCLUSIONS OF LAW

3. The D ivision of Administrative Hearings has

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

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

4. The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "f or 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.

5. The injur ed "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), 766.305(1), and 766.313, Fla. Stat. The Florida

Birth - Related Neurolog ical 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 in jury is a birth - related

neurological injury." § 766.305(4), Fla. Stat.

6. 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

appr oved 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 acc ordance with the provisions of Chapter 120, Florida

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

7. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) W hether the injury claim ed 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 obstetri cal 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 immediate 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 neuro logical injury and that

obstetrical services were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

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

injury" is defined by Section 766.302(2), to mean:

injury to the brain or s pinal 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 labo r, 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.

9. Here, indisputably, Gavin's birth weight was 754 grams.

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

Florida Statutes, Gavin does not qualify for coverage under the

Plan. See also Human a 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 te rms."), approved , Florida Birth -

Related Neurological Injury Compensation Association v.

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

10. 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 court review. § 766.311(1),

Fla. Stat.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the parties' Joint Stipulation of Facts is

approved.

It is further ORDERED that the claim for compensatio n filed

by Corey Leonard Chattic and Christine Lorraine Chattic, on

behalf of and as parents and natural guardians of Gavin Leonard

John Chattic, a minor, is dismissed with prejudice.

DONE AND ORDERED this 6th day of February, 2008, in

Tallahassee, Leon Co unty, 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 (85 0) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of February , 2008 .

COPIES FURNISHED :

(Via certified mail)

Karl F. Pansler, Esquire

The Pansler Law Firm, P.A.

223 North Florida Avenue

Lakela nd, Florida 33801

(Certified Mail No. 7005 0390 0002 0423 9224)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7005 1 820 0002 9840 6864)

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 4111)

Jennifer Mignon Nixon, M.D.

Lakelan d OB - GYN P.A.

1733 Lakeland Hills Boulevard

Lakeland, Florida 33805

(Certified Mail No. 7007 2680 0000 9309 0731)

Lakeland Regional Medical Center

1324 Lakeland Hills Boulevard

Lakeland, Florida 33804

(Certified Mail No. 7007 2680 0000 9309 0748)

NOT ICE 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 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 Secti on 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.