09-006836N James And Heather Hendrix, On Behalf Of And As Parents And Natural Guardians Of Addison Hendrix, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, April 2, 2010.

Summary: The 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

JAMES AND HEATHER HENDRIX, ON )

BEHALF OF, AND AS PARENTS AND )

NATURAL GUARDIANS OF, ADDISON )

HENDRIX, A MINOR, )

)

Petitioners, )

)

vs. ) Case No. 09-6836N

)

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

)

Respondent, )

)

and )

)

NORTH OKALOOSA MEDICAL CENTER, )

)

Intervenor. )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent

Florida Birth-Related Neurological Injury Compensation

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

February 16, 2010.

STATEMENT OF THE CASE

1. On December 17, 2010, Heather Hendrix (mother) and

James Hendrix (father) on behalf of, and as parents and natural

guardians of Addison Hendrix (Addison), a minor whose date of

birth is alleged as April 26, 2007, filed a Petition (claim)

with the Division of Administrative Hearings (DOAH) for

compensation under the Florida Birth-Related Neurological Injury

Compensation Plan (Plan).

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

December 22, 2009. Other potential intervenors were served as

reflected in DOAH’s case file and docket.

3. By an Order entered January 12, 2010, North Okaloosa

Medical Center’s Petition for Leave to Intervene, filed

December 30, 2009, was granted, and North Okaloosa Medical

Center was recognized as a Respondent-Intervenor.

4. On February 16, 2010, NICA filed a Motion for Summary

Final Order, pursuant to Section 120.57(1)(h), Florida Statutes. 1

The predicate for NICA’s Motion was its assertion that,

indisputably, the infant, Addison Hendrix, named in the Petition

as having sustained a compensable birth-related neurological

injury, did not meet the statutory weight requisite for a

compensable injury, inasmuch as Addison did not weigh at least

2,500 grams for a live birth from a single gestation or 2,000

grams for a live birth from a multiple gestation.

5. Attached to the Motion was the February 10, 2010,

affidavit of Jan Raulerson, RHIT, Custodian of Records,

Director, Health Information Management, North Okaloosa Medical

Center, attesting that “. . . the attached health information on

Addison Hendrix . . . date of birth 04/26/2007, . . . are true

and exact copies of the original [sic] which were prepared by

personnel of the hospital in the ordinary course of hospital

business totaling approximately 124 pages.” 2

6. In fact, the only attachment to the Motion for Summary

Final Order was a single page, bearing the logo for North

Okaloosa Medical Center and titled “North Okaloosa Medical

Center Newborn Nursery Admission and Discharge Examination."

That document shows the mother’s (Heather Hendrix’s) name, an

admission weight of “3 lbs. 1 oz; 1.410 kg.,” a birth time of

7. The Motion for Summary Final Order further asserted

that the claim did not meet the statutory weight requirements of

the Plan and therefore is not a compensable claim.

8. No party timely responded to NICA’s Motion for Summary

Final Order. See Fla. Admin. Code R. 28-106.103 and 28-

106.204(4).

9. Consequently, an Order to Show Cause was entered

March 4, 2010, which provided:

On February 16, 2010, Respondent served

a Motion for Summary Final Order. To date,

Petitioners and Intervenor have not

responded to the motion, as permitted by

Florida Administrative Code Rules 28-106.103

and 28-106.204(4).

The Motion for Summary Final Order,

with attachments, sets forth that at birth,

the infant, Addison Hendrix weighed 1.410 Kg

(or 1.410 kilograms), the same being the

equivalent of 1,410 grams. Section

766.302(2), Florida Statutes, provides a

threshold requirement of 2,500 grams for a

single gestation, and the granting of the

Motion for Summary Final Order would be

dispositive of this case against

Petitioners.

Therefore, notwithstanding that

Petitioners and Intervenor have already been

accorded the opportunity to respond to the

Motion for Summary Final Order, it is

ORDERED that by March 19, 2010,

Petitioners and Intervenor show good cause

in writing, if they can, why the relief

requested by Respondent should not be

granted.

10. No party has responded to the Order to Show Cause.

Accordingly, there has been no challenge concerning the

sufficiency of the Motion’s supporting affidavit, the accuracy

of the single page exhibit to the affidavit, or the single page

exhibit’s relevance to Addison, the infant in whose name the

instant claim was filed. Therefore, any potential issues of

authenticity or relevance of the exhibit attached to the Motion

are deemed waived, and the undersigned noting that the birth

certificate attached by Petitioners to the Petition herein also

shows a birth weight for Addison of 3 lbs. 1 oz. at 0920 on

April 26, 2007, it is determined that there is no, and can be

no, legitimate dispute that the child, Addison, in whose name

this Petition/Claim was filed, did, in fact, weigh, at birth,

less than the number of grams specified by statute for either a

single or multiple birth. See § 766.302(2), Fla. Stat.

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

fact. Specifically, there is no dispute that Addison Hendrix,

the infant named in the Petition, did not meet the threshold

statutory weight requirement for either a single or multiple

gestation. Accordingly, NICA’s Motion for Summary Final Order

is, for reasons appearing more fully in the Conclusions of Law,

well-founded. 3

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

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

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

13. 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.

14. 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.

15. 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 766.031, Fla. Stat.

16. Pertinent to this case, “birth-related neurological

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

Injury to the brain of 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, deliver,

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)

17. Here, indisputably, Addison’s birth weight was 1,410

grams. Consequently, given the provision of Section 766.302(2),

Florida Statutes, Addison does not qualify for coverage under

the Plan. See also Humana of Fla., 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, Fla. Birth-

Related Neurological Injury Compensation Association v.

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

18. 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 Respondent Neurological Injury Compensation

Association’s Motion for Summary Final Order is granted, and the

claim for compensation filed by Heather Hendrix and

James Hendrix on behalf of, and as parents and natural guardians

of, Addison Hendrix, a minor, is dismissed with prejudice.

DONE AND ORDERED this 2nd day of April, 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 2nd day of April, 2010.

ENDNOTES

1/ Section 120.57(1)(h), Florida Statutes (2009), 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. A summary final order shall

consist of findings of fact, if any,

conclusions of law, a disposition or

penalty, if applicable, and any other

information required by law to be contained

in the final order.

2/ Lenhal Realty, Inc. vansAmerica Commercial Finance

Corp. , 615 So. 2d 207, 209 (Fla. 4th DCA 1993) (“[A]n affidavit

in support of a motion for summary judgment is defective if it

fails to be made on personal knowledge, set forth facts that

would be admissible in evidence, and affirmatively show that the

affiant is competent to testify as to the matters stated in the

affidavit.").

3/ 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 that 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 Co., Inc. v. Lake Shore

Growers Coop. Ass'n , 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. 7005 3110 0002 0289 9472)

James Hendrix

Heather Hendrix

417 Jillian Drive

Crestview, Florida 32536

(Certified Mail No. 7005 3110 0002 0289 9465)

Randy J. Ogden, Esquire

Ogden & Sullivan, P.A.

113 South Armenia Avenue

Tampa, Florida 33609

(Certified Mail No. 7005 3110 0002 0289 9441)

Kim Hood, M.D.

550 West Redstone Avenue

Suite 470

Crestview, Florida 32536

(Certified Mail No. 7005 3110 0002 0289 9434)

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. 7005 3110 0002 0289 9403)

Elizabeth Dudek, Deputy Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7005 3110 0002 0289 9397)

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.