09-003014N Lauri George And Christopher George, On Behalf Of And As Parents And Natural Guardians Of Tyler George, A Minor, And Lauri George And Christopher George, Individually vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, August 12, 2009.

Summary: Indisputably, the physician who provided obstetrical services at the infant's birth was not a "participating physician." The Motion for Summary Final Order of Dismissal granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAURI GEORGE AND CHRISTOPHER )

GEORGE, ON BEHALF OF AND AS )

PARENTS AND NATURAL GUARDIANS )

OF TYLER GEORGE, A MINOR, AND )

LAURI GEORGE AND CHRISTOPHER )

GEORGE, INDIVIDUALLY, )

)

Petitioners, )

)

vs. ) Case No. 09-3014N

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

MARK SCHEINBERG, M.D., MARK )

SCHEINBERG, M.D., P.A., and )

WEST BOCA MEDICAL CENTER, INC., )

d/b/a WEST BOCA MEDICAL CENTER, )

IMPROPERLY NAMED, TENET )

HEALTHSYSTEM HOSPITAL, INC., )

d/b/a WEST BOCA MEDICAL CENTER, )

)

Intervenors. )

)

SUMMARY FINAL ORDER OF DISMISSAL

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

Summary Final Order, filed July 9, 2009.

STATEMENT OF THE CASE

1. On June 3, 2009, Lauri George and Christopher George,

and behalf of and as parents and natural guardians of

Tyler George (Tyler), a minor, and Lauri George and

Christopher George, individually, filed a petition with the

Division of Administrative Hearings (DOAH) to resolve, inter

alia , whether Tyler qualified for coverage 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

petition on June 4, 2009, and on July 9, 2009, NICA served a

Motion for Summary Final Order, pursuant to Section

120.57(1)(h), Florida Statutes. 1 In the interim,

Mark Scheinberg, M.D. (the physician named in the petition as

having provided obstetrical services at Tyler's birth),

Mark Scheinberg, M.D., P.A., and West Boca Medical Center (the

hospital named in the petition as the facility at which the

birth occurred), were granted leave to intervene.

3. The predicate for NICA's Motion for Summary Final Order

was its assertion that, indisputably, none of the physicians

named in the petition (Mark Scheinberg, M.D., OB/GYN; or

Penna Reddy, M.D., Otto Aldana Centeno, M.D.,

Feyshiola Awonusonu, M.D., and Jorge Perez, M.D.,

neonatologists), as having provided care during or following

Tyler's birth, or any other physician named in the medical

records (Doctors Susan Benhaim and Stuart Leaderman), as having

been involved with Tyler's birth, were "participating

physician[s]," as defined by law, because they had neither paid

the assessment required for participation nor were they exempt

from payment of the assessment. § 766.302(7), Fla. Stat. See

also § 766.314(4)(c), Fla. Stat. Attached to the motion was an

Affidavit of the Custodian of Records for NICA attesting to the

fact that Doctors Scheinberg, Reddy, Centeno, Awonusonu, Perez,

Benhaim, and Leaderman, had not paid the assessment required for

participation in calendar year 2005, the year in which Tyler was

born, and that they were not exempt from payment of the

assessment.

4. Neither Petitioners nor Intervenors responded to NICA's

Motion for Summary Final Order. Consequently, an Order to Show

Cause was entered on July 22, 2009, which provided:

On July 9, 2009, Respondent served a Motion

for Summary Final Order. To date,

Petitioners and Intervenors have not

responded to the motion. Fla. Admin. Code

R. 28-106.103 and 28-106.204(4).

Nevertheless, and notwithstanding they have

been accorded the opportunity to do so, it

is

ORDERED that by August 3, 2009, Petitioners

and Intervenors show good cause in writing,

if any they can, why the relief requested by

Respondent should not be granted.

Neither Petitioners nor Intervenors responded to the Order to

Show Cause.

5. Given the record, it is undisputed that the physician

alleged to have provided obstetrical services during Tyler's

birth, and the other physicians who provided care during or

following Tyler's birth, were not "participating physician[s],"

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. 2

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 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.

8. 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.

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 accordance with the provisions of Chapter 120, Florida

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) 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.

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

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

. . . a physician 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 named in the

petition as having provided obstetrical services at Tyler's

birth, as well as the other physicians who provided care during

or following Tyler's birth, were not "participating

physician[s]," as that term is defined by Section 766.302(7),

Florida Statutes, and as that term is used in Sections 766.301

through 766.316, Florida Statutes. Consequently, Tyler 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 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 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 Lauri George

and Christopher George, individually, and on behalf of and as

parents and natural guardians of Tyler George, a minor, is

dismissed with prejudice.

DONE AND ORDERED this 12th day of August, 2009, in

Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of August, 2009.

ENDNOTES

1/ Section 120.57(1)(h), Florida Statutes, provides:

(h) Any party to a proceeding in which an

administrative law judge of the Division of

Administrative Hearings has final order

authority may move for a summary final order

when there is no genuine issue as to any

material fact. A summary final order shall

be rendered if the administrative law judge

determines from the pleadings, depositions,

answers to interrogatories, and admissions

on file, together with affidavits, if any,

that no genuine issue as to any material

fact exists and that the moving party is

entitled as a matter of law to the entry of

a final order . . . .

2/ When, as here, the "moving party presents evidence to

support the claimed non-existence of a material issue, he . . .

[is] entitled to a summary judgment unless the opposing party

comes forward with some evidence which will change the result;

that is, evidence to generate an issue of a material fact. It

is not sufficient for an opposing party merely to assert that an

issue does exist." Turner Produce Company, Inc. v. Lake Shore

Growers Cooperative Association , 217 So. 2d 856, 861 (Fla. 4th

DCA 1969). Accord , Roberts v. Stokley , 388 So. 2d 1267 (Fla. 2d

DCA 1980) Perry v. Langstaff , 383 So. 2d 1104 (Fla. 5th DCA

1980).

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. 91 7108 2133 3935 7992 4697)

Robert W. Kelley, Esquire

Kelley/UUSTAL, PLC

700 Southeast Third Avenue, Suite 300

Fort Lauderdale, Florida 33316

(Certified Mail No. 91 7108 2133 3935 7992 4703)

Asad M. Ba-Yunus, Esquire

Lubell & Rosen, P.A.

Museum Plaza, 6th Floor,

200 South Andrews Avenue

Fort Lauderdale, Florida 33301

(Certified Mail No. 91 7108 2133 3935 7992 4710)

Rose Marie Antonacci-Pollock, Esquire

Michaud, Mittlemark & Antonacci, P.A.

621 Northwest 53rd Street, Suite 420

Boca Raton, Florida 33487

(Certified Mail No. 91 7108 2133 3935 7992 4727)

Feyshiola Awonusonu, M.D.

21644 State Road 7

Boca Raton, Florida 33428

(Certified Mail No. 91 7108 2133 3935 7992 4734)

Jorge Perez, M.D.

21644 State Road 7

Boca Raton, Florida 33428

(Certified Mail No. 91 7108 2133 3935 7992 4741)

Otto Aldana Centeno, M.D.

21644 State Road 7

Boca Raton, Florida 33428

(Certified Mail No. 91 7108 2133 3935 7992 4758)

Penna Reddy, M.D.

21644 State Road 7

Boca Raton, Florida 33428

(Certified Mail No. 91 7108 2133 3935 7992 4765)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 91 7108 2133 3935 7992 4772)

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.