09-006055N Shannon Thomsen And Shay Thomsen, Individually, And As Parents And Natural Guardians Of Tybee Thomsen, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, July 22, 2010.

Summary: Child's birth weight was less than minimum required for coverage under the Florida Birth-Related Neurological Injury Compensation Association Plan. The Motion for Summary Final Order of Dismissal is granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHANNON THOMSEN AND SHAY )

THOMSEN, individually, and as )

parents and natural guardians )

of TYBEE THOMSEN, a minor, )

)

Petitioners, )

)

vs. ) Case No. 09-6055N

)

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

)

Respondent. )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's

Second Motion for Summary Final Order served June 21, 2010.

STATEMENT OF THE CASE

1. On November 4, 2009, Petitioners Shannon Thomsen and

Shay Thomsen, individually and as parents and natural guardians

of Tybee Thomsen (the child), filed a Petition (claim) with the

Division of Administrative Hearings (DOAH) for compensation

under the Florida Birth-Related Neurological Injury Compensation

Plan (Plan), for injuries allegedly associated with Tybee's

birth on August 11, 2007, at Shands at the University of Florida

(hospital).

2. DOAH served the Florida Birth-Related Neurological

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

on or about November 5, 2009.

3. Douglas Richards, M.D., and Women's Medical Center at

Shands were each served on November 9, 2009. Neither has

intervened herein.

4. On December 18, 2010, NICA served a Motion for Summary

Final Order, which was denied, without prejudice, by an Order

entered January 5, 2010. 1

5. Subsequently, on February 10, 2010, NICA filed a

Written Clarification that its Motion for Summary Final Order

would stand as its timely Response as required by Section

766.305(4), Florida Statutes.

6. Thereafter, the parties provided convenient hearing

dates and an agreement as to venue, and a final hearing on

compensability was scheduled for August 2, 2010.

7. NICA's Second Motion for Summary Final Order was filed

on June 21, 2010, and is supported by a "Stipulation Regarding

Authenticity of Medical Records," signed by all counsel of

record, to the effect that the portion of medical records

attached thereto for Petitioner Shannon Thomsen (mother) and

Tybee Thomsen (child),

(a) were prepared and kept in the ordinary

course of the health care providers'

business reflected therein, (b) were

prepared at or near the date of the actual

event or transaction reflected in the

respective records by, or from information

transmitted by, a person with knowledge, (c)

are true and accurate copies of the

originals, (d) are genuine and authentic,

(e) otherwise generally meet the foundation

requirements of being business records as

required pursuant to § 90.803(6), Florida

Statutes, without the necessity of any

further testimonial foundation or

qualification at trial.

8. The predicate for the Second Motion for Summary Final

Order is that Tybee was a single gestation and at birth weighed

less than the 2,500 grams required by statute as the threshold

for NICA claim/eligibility.

9. The new supporting and agreed documentation for NICA's

position shows that the Shands Hospital Newborn Identification

document 2 and the Shands Hospital Neonatology Delivery Note both

identify Tybee's birth weight as 980 grams, and the Shands

Hospital Newborn Database document entry also shows Tybee to

have been born of Shannon Thomsen's single gestation pregnancy

of 25 weeks.

10. Petitioners did not file a response in opposition to

NICA's Second Motion for Summary Final Order as provided-for in

Florida Administrative Code Rules 28-106.103 and 28-106.204, so

on July 8, 2010, an Order to Show Cause provided:

On June 21, 2010, Respondent served its

Second Motion for Summary Final Order. To

date, Petitioners have not responded to the

motion. See Fla. Admin. Code. R. 28-106.103

and 28-106.204(4). Due to the stipulation

regarding medical records, it is unlikely

that any opposition to the Second Motion for

Summary Final Order remains. However, in an

abundance of caution and notwithstanding

that Petitioners have been accorded the

opportunity to do so, it is

ORDERED that by July 20, 2010, Petitioners

shall show good cause in writing, if any

they can, why the relief requested by

Respondent should not be granted.

11. No timely response to the July 8, 2010, Order to Show

Cause has been filed.

12. Given the record, there is no dispute of material

fact. Specifically, there is no dispute regarding Tybee's live

birth on August 11, 2007, that she was the result of a single

gestation, and that she weighed only 980 grams at birth.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

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

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

14. 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.

15. 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), 766.305(1), and 766.313, 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(3), Fla. Stat.

16. 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(6), 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.

17. 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.

766.302(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 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 neurological injury and that

obstetrical services were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

18. 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 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. (Emphasis added).

19. Here, indisputably, Tybee's birth weight was 980

grams. Consequently, given the provisions of Section

766.302(2), Florida Statutes, Tybee 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 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).

20. Where, as here, the Administrative Law Judge

determines that "the injury alleged is not a birth-related

neurological injury . . . she . . . shall enter an order [to

such effect] and shall 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 Statement of the Case and

Conclusions of Law, it is

ORDERED that: (1) The final hearing now scheduled for

August 2, 2010, is hereby cancelled; and (2) The claim for

compensation filed by Shannon Thomsen and Shay Thomsen,

individually and as parents and natural guardians of

Tybee Thomsen, a minor, is dismissed with prejudice.

DONE AND ORDERED this 22nd day of July, 2010, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

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 22nd day of July, 2010.

ENDNOTES

1/ The premises for this Motion was that the child, Tybee, was

born live at less than the statutory minimum weight for a single

gestation ( see Section 766.302(2)), but the supporting medical

documentation for the Motion was not authenticated and therefore

there was no record support for NICA's factual allegations. See

Bifulco v. State Farm Mutual Automobile Insurance Co. , 693

So. 2d 707 (Fla. 4th DCA 1997).

2/ The "weight" space of the Hospital Newborn Identification

Form specifies "980" but not "grams." However, given the other

documentation and the pleadings, there is no dispute that

Tybee's birth weight was recorded in grams.

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. 7010 0290 0001 2352 0116)

Martin W. Palmer, Esquire

Fisher, Butts, Sechrest, Warner & Palmer, P.A.

10921 Countryway Boulevard

Tampa, Florida 33602

(Certified Mail No. 7010 0290 0001 2352 0123)

Marsha E. Rule, Esquire

Rutledge, Ecenia & Purnell, P.A.

Post Office Box 551

Tallahassee, Florida 32302

(Certified Mail No. 7010 0290 0001 2352 0130)

Douglas S. Richards, M.D.

UF Women's Health Group

Post Office Box 100383

Gainesville, Florida 32610

(Certified Mail No. 7010 0290 0001 2352 0147)

Shands Hospital

1600 Southwest Archer Road, M301

Gainesville, Florida 32610

(Certified Mail No. 7010 0290 0001 2352 0154)

Amy Rice, Acting Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7010 0290 0001 2352 0161)

Elizabeth Dudek, Deputy Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7010 0290 0001 2352 0178)

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.