09-006622N Heather Dacus And Jason Dacus, Individually And As Parents And Natural Guardians Of Joshua Dacus, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, September 28, 2010.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HEATHER DACUS AND JASON DACUS, )

individually and as parents and )

natural guardians of JOSHUA )

DACUS, a minor , )

)

Petitioners , )

)

vs. ) Case No. 09 - 6622N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent, )

)

and )

)

FLORIDA HOSPITAL WATERMAN, )

)

Intervenor . )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Responden t

Florida Birth - Related Neurological Injury Compensation

Association's (NICA's) Motion for Summary Final Order, filed

January 15, 2010, and Su pplemental Motion for Summary Final

Order (As Amended) , filed March 4 - 5, 2010.

STATEMENT OF THE CASE

1. On Decemb er 7, 2010, Heather Dacus (mother) and

Jason Dacus (father), individually and as parents and natural

guardians of Joshua Dacus (Joshua), a minor whose date of birth

is alleged as June 26, 2009, filed a petition (claim) with the

Division of Administrative H earings (DOAH) for compensation

under the Florida Birth - Related Neurological Injury Compensation

Plan (Plan). The only physician named in the Petition as

providing obstetrical services at Joshua's birth was

Wendy Perrott, M.D. The time and place of injur y was given in

the Petition as Florida Hospital Waterman.

2. DOAH served NICA with a copy of the claim on

December 9, 2009 . Wendy Perrott, M.D., was served on

December 10, 2009 . Florida Hospital Waterman was served on

December 17, 2009.

3 . On January 15, 2010, Respondent 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, Wendy Perrott, M.D. , the only physician

named in the Petition as h aving provided obstetrical services at

J oshua 's birth , was not a "participating physician," as defined

by law, inasmuch as Dr. Wendy Perrott had not paid the required

assessment for participation in the Plan. § 766.302(7), Fla.

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

motion was an affidavit of Tim Daughtry, NICA's Custodian of

Records , attesting that Dr. Wendy Perrott had not paid the

required assessment for participation in the Plan at the time of

the injury. The affidavit further at tested that NICA's policy

is to annually document exemption s of physicians, assistant

resident physicians, and interns , pursuant to Section

7 66.314(4)(c), Florida Statutes, and that NICA has no records

with respect to Dr. Wendy Perrott in relation to an ex empt

status for the year 2009, the year of Joshua's birth. The

affidavit yet further attests that NICA's Physician Data Report

(attached and incorporated in the affidavit) shows that in 2009,

Dr. Wendy Perrott paid the Two hundred and fifty dollar

($250.0 0) assessment required by Section 766.314(4)(b)1.,

Florida Statutes, for non - participating, non - exempt licensed

physicians.

4 . Petitioners did not timely respond to NICA's Motion for

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

entered o n February 3, 2010, which provided:

On January 5, [sic] 2010, Respondent served

a Motion for Summary Final Order. To date,

Petitioners have not responded to the

motion. Fla. Admin. Code R. 28 - 106 - 103 and

28 - 106.204(4). Nevertheless, and

notwithstanding that they have been accorded

the opportunity to do so, it is

ORDERED that by February 15, 2010,

Petitioners shall show good cause in

writing, if any they can, why the relief

requested by Respondent should not be

granted.

5 . On February 12, 2010, Petitio ners filed a Response in

Opposition to Respondent's Motion for Summary Final Order,

alleging that an anesthesiologist , Joseph Gartner, M.D., also

provided obstetrical services by delivery of anesthesia to an

obstetrical patient (Joshua's mother, Heather Da cus) during

Joshua's C - section delivery, and transported Joshua to the OB

PACU during the post - delivery resuscitative period, and that

Respondent must demonstrate both that Dr. Gartner was not a

"participating physician" and that no other participating

phy sician was involved with the delivery of "obstetrical

services" during labor or during Joshua's post - delivery

resuscitative period, in order to prevail on Respondent's Motion

for Summary Final Order .

6 . On March 2, 2010, Florida Hospital Waterman moved to

intervene, and by an Order entered March 10, 2010, Florida

Hospital Waterman's Petition for Leave to Intervene was granted,

and Florida Hospital Waterman was recognized as an Intervenor.

There have been no other petitions to intervene.

7 . On March 4, 20 10, Respondent filed a Supplemental

Motion for Summary Final Order, and on March 5, 2010, Respondent

filed an Amended Supplemental Motion for Summary Final Order (As

to Certificate of Service). Herein, t hese items are sometimes

referred - to together, as "t he Supplemental Motion for Summary

Final Order ( A s A mended)."

8 . The Supplemental Motion for Summary Final Order ( A s

A mended), further addressed the issue of "no participating

physician" raised in the original Motion for Summary Final

Order, by stating th at Joseph Gartner, M.D. (the

anesthesiologist specifically named by Petitioners in their

response of February 1 2 , 2010), like Dr. Perrott, also was "not

a participating physician at the time of injury to Joshua Dacus

as he [Dr. Gartner] had not paid the re quired assessment for

participation in the Plan nor was he exempt from payment of the

assessment." The Supplemental Motion for Summary Final Order

( A s A mended), also asserted that "the only potential additional

physician listed anywhere within all availab le relevant medical

records relating to Petitioners' claim is Dr. Michael Curtis

Baker," who, like Dr. Gartner, "was not a participating

physician at the time of injury."

9 . In support of the foregoing argument, the S upplemental

Motion for Summary Final O rder (A s A mended ) , had attached to it

an affidavit of Tim Daughtry, NICA's Records Custodian, together

with a "NICA Physician Data Report . " Mr. Daughtry attested , and

the report shows, that in 2009, the year in which Dr. Gartner

participated in the delive ry of Joshua Dacus, Dr. Gartner did

not pay the assessment required for participation in the Florida

Birth - Related Neurological Injury Compensation Plan; that NICA

has no records with re spect to Dr. Gartner in relation to an

exempt status for the year 2009 ; and that, to the contrary,

Dr. Gartner had paid the assessment required by Section

766.314(4)(b)1., Florida Statutes, for non - participating, non -

exempt licensed physicians.

1 0 . Also attached to the Supplemental Motion for Summary

Final Order ( A s A mended ) is an affidavit by Katherine Alexander,

Claims Manager for NICA. By her affidavit, Ms. Alexander

asserts that she has personal and specific knowledge, based on

her r eview of all relevant medical records relating to the

instant claim, 1 and that these rec ords show :

. . . there were three (3) physicians

involved in the care of Heather Dacus and

Joshua Dacus at or around the time of labor,

delivery or resuscitation in the immediate

post delivery period. Those three

physicians were Wendy Perrott, M.D.

(obs tetrician), Joseph Gartner, M.D.

(anesthesiologist), and Michael Curtis

Baker, M.D. (admitting physician). My

review and analysis of all relevant medical

records reveals that no other physicians

licensed in Florida performed obstetrical

services on Heathe r Dacus or Joshua Dacus

during the course of labor, delivery or

resuscitation in the immediate post delivery

period."

11. Ms. Alexander's affidavit further avers that, "As

stated in the affidavits filed herewith by Tim Daughtry,

custodian of records fo r NICA, Wendy Perrott, M.D.,

Joseph Gartner, M.D., and Michael Curtis Baker, M.D., were not

' participating physicians ' in NICA in 2009, as that term is

defined in Section 766.302(7), Florida Statutes. "

1 2 . Finally, attached to the Supplemental Motion for

Summary Final Order ( A s A mended ) is another affidavit by

Tim Daughtry, together with a supportive "NICA CARES physician

payment history/report" applicable to Michael Curtis Baker, M.D.

By this affidavit , Mr. Daughtry attested , and the NICA records

show , t hat in 2009, the year in which Joshua was born,

Dr. Michael Curtis Baker was not a "participating physician" in

the Plan; that NICA has no records with respect to Dr. Baker in

relation to an exempt status for the year 2009; and that, to the

contrary, Dr. B aker paid the assessment required by Section

766.314(4)(b)1., Florida Statutes, for non - participating, non -

exempt, licensed physicians.

1 3 . On March 10, 2010, an Order was entered, permitting

all parties to file responses to the Supplement al Motion for

Su mmary Final Order (As Amended) within 12 days.

1 4 . On March 11, 2010, Petitioners filed a Response to

Supplemental Motion for Summary Final Order, asserting that " the

affidavits filed in support of the Supplemental Motion for

Summary Final Order are limit ed in scope and fail to eliminate

all genuine issues of material fact regarding possible

exemptions from the requirement of paying a five thousand dollar

($5,000.00) assessment for the year 2009 , " and seeking the

opportunity to take depositions of Wendy Pe rrott, M.D.,

Joseph Gartner, M.D., Michael Curtis Baker, M.D., Tim Daughtry,

and/or Kathe Alexander, 2 and further seeking "sufficient

opportunity to respond to the Supplemental Motion for Summary

Final Order thereafter . "

15. Several motions intervened, all of which were

addressed by a March 30, 2010, Order which also required the

completion of discovery and the filing of responses to the

Supplemental Motion for Summary Final Order ( A s A mended), by

May 10, 2010.

1 6 . Intervenor Florida Hospital Waterman f iled a Response

to Respondent's Motion for Summary Final Order and Amended

Supplemental Motion for Summary Final Order on May 10, 2010,

whereby Florida Hospital Waterman prayed for additional

discovery and response time. An Order entered May 17, 2010 ,

pro vided , in pertinent part :

The parties shall confer, and on or before

June 1, 2010, provide the undersigned with a

reasonable estimate of the date that

discovery will be completed for purposes of

Petitioners' and Intervenor's filing

responses to the pending Motion(s).

17. On May 27, 2010, the parties filed a Joint Notice in

Response , praying for an extension of time in which to complete

discovery through June 30, 2010, and to assign a date thereafter

for responses to the pending motion(s). An Order , enter ed

June 3, 2010, extended discovery through June 30, 2010 , and

extended the time for responses t o the Supplemental Motion for

Summary Final Order ( As Amended ) to July 12, 2010.

18. On July 1 5 , 2010, Intervenor filed a Motion seeking

additional time to r espond through August 2, 2010, and on

July 15, 2010, an Agreed Motion to the same effect was filed.

By an Order, entered July 16, 2010, discovery was left open, and

the parties were granted until August 2, 2010, to respond to the

Supplemental Motion for S ummary Final Order ( As Amended ) .

1 9 . No responses were filed , so on August 19, 2010, an

Order was entered, which read, in pertinent part:

Prior orders in this cause provided for any

responses in opposition to the pending

Motion for Summary Final Order and

Supplemental Motion for Summary Final Order

as amended, to be filed on or before

August 2, 2010. No responses have been

filed.

In an abundance of caution, the parties are

provided to and until September 1, 2010, in

which to schedule, with the office of the

undersigned, oral argument by telephonic

conference call to take place no later than

September 15, 2010, with regard to the

Motion for Summary Final Order and

Supplemental Motion for Summary Final Order

as amended. Failure to schedule such a

hearing will result in disposition of the

pending motions upon the pleadings and

record.

20 . On August 30, 2010, an Order was entered, which

provided:

All responses in opposition to the Motion

for Summary Final Order and Supplemental

Motion for Summary Final Ord er as amended

were to be filed by August 2, 2010.

In an abundance of caution, it is ORDERED:

All parties shall show cause on or before

September 10, 2010, why a summary final

order of dismissal should not be entered.

21 . To instant date, no party has scheduled a telephonic

conference hearing , and no party has filed any further discovery

or any response in opposition to Respondent's Motion for Summary

Final Order and Supplemental Motion for Summary Final Order A s

A mended.

22 . Respondent NICA has elimi nated as "participating

physicians" all physicians appearing in the medical records

submitted as part of Petitioners' claim, and after six months

for disc overy and response s in opposition to the pending

motion(s), no counter - affidavits/or depositions have been filed.

Accordingly, given the record, there is no dispute of material

fact. Specifically, there is no dispute that the only physician

named in the Petition as providing obstetrical services du r ing

the birth of Joshua Dacus, as well as all physicians appearing

in the medical records provided as part of Petiti oners ' claim,

w ere not "participating physician s ," as that term is defined by

Section 766.302(7), Florida Statutes. Accordingly, NICA's

Motion for Summary Final Order is , for reasons appearing mo re

fully in the Conclusions of Law, well - founded. 3

CONCLUSIONS OF LAW

2 3 . The Division of Administrative Hearings has

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

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

2 4 . The Florida Birth - Re lated 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.

2 5 . 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. NICA, 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 t he injury is a birth - related neurological injury."

§ 766.305(4), Fla. Stat.

2 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 awar d 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

jud ge in accordance with the provisions of Chapter 120, Florida

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

2 7 . In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidenc e:

(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) Whe ther 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 participatin g 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 - re lated neurological injury and that

obstetrical services were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

2 8 . Pertinent to this case, "participating physician" is

defined in 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 exempted from payment at the time of the

injury the assessment required for

particip ation in the birth - related

neurological injury compensation plan for

the year in which the injury

occurred. . . .

2 9 . Here, indisputably, NICA's motion(s) and supporting

affidavits and documentation have shown that the physician,

shown to have prov ided obstetrical services during J oshua 's

birth, as well as those physicians whose names otherwise appear

within the records provided by Petitioners as part of their

Petition/Claim , were not "participating physician (s) ," as that

term is defined in Section 766.302(7), Florida Statutes, and as

that term is used in Sections 766.301 through 766.316, Florida

Statutes. Consequently, J oshua does not qualify for coverage

under the Plan.

30 . Where, as here, the administrative law judge

determines that ". . . obstetrical services were not delivered

by a participating physician at the birth, she or he 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), F la. 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 Conclusion s of Law,

it is

ORDERED that Respondent Neurological Injury Compensation

Asso ciation's Motion for Summary Final Order and Supplemental

Motion for Summary Final Order ( A s A mended), is granted, and the

petition for compensation filed by Heather Dacus and

Jason Dacus, individually and as parents and natural guardians

of Joshua Dacus, a minor, is dismissed with prejudice.

DONE AND ORDERED this 28th day of September , 2010 , in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto B uilding

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of September , 2010 .

ENDNOTES

1/ Section 766.305 (3(a), Florida Statutes, provides:

(3) The claimant shall furnish to the

Florida Birth - Related Neurological Injury

Compensation Association the following

information, which must be filed with the

association within 10 days after the filing

of the petitio n as set forth in subsection

(1):

(a) All available relevant medical records

relating to the birth - related neurological

injury and a list identifying any

unavailable records known to the claimant

and the reasons for the recordsÓ

unavailability.

2/ Peti tioners named five people but inadvertently inserted the

number four (4) in the pleading .

3/ Where, 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 material fact."

Turner Produce Company, Inc. v. Lake Shore Growers Cooperative

Association , 217 So. 2d 856, 861 (Fla. 4th DCA 1969 ). Accord

Roberts v. Stokley , 338 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 Compensatio n Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7010 0290 0001 2352 0932)

Ronald S. Gilbert, Esquire

Colling, Gilbert, Wright & Carter, LLC

801 North Orange Avenue, Suite 830

Orlando, Florida 32801

(Certifie d Mail No. 7010 0290 0001 2352 0949)

Martin P. McDonnell, Esquire

Rutledge, Ecenia, Purnell & Hoffman, P.A.

Post Office Box 551

Tallahassee, Florida 32302

(Certified Mail No. 7010 0290 0001 2352 0956)

Harvey Lamar Jay, Esquire

Saalfield, Shad, Jay, Stok es & Inclan, P.A.

50 North Laura Street, Suite 2950

Jacksonville, Florida 32202

(Certified Mail No. 7010 0290 0001 2352 0963)

Wendy Perrott, M.D.

Health Choice OB/GYN, P.A.

400 West Woodard Avenue

Eustis, Florida 32726

(Certified Mail No. 7010 0290 0001 2352 0970)

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 0987)

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 0994)

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 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 Associati on 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.