10-000966N Angel Walker And James Prate, Sr., On Behalf Of And As Parents And Natural Guardians Of James Prate, Jr., A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, September 27, 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

ANGEL WALKER AND JAMES PRATE, )

SR., on behalf of and as )

parents and natural guardians )

of JAMES PRATE, JR., a minor , )

)

Petitioners , )

)

vs. ) Case No. 10 - 0966N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOC IATION , )

)

Respondent . )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's

Motion for Summary Final Order served August 18, 20 10.

STATEMENT OF THE ISSUE

1. On February 23, 2010, Petitioners Angel Walker and

James Prate, Sr., on behalf of and as parents and natural

guardians of James Prate, Jr. (the child), filed a Petition

(claim) with the Division of Administrative Hearings (DO AH) for

compensation under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan), for injuries allegedly associated with

James Prate, Jr.'s birth on July 14, 2007, at Shands Hospital at

the University of Florida.

2. DOAH served the Florid a Birth - Related Neurological

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

on February 25, 2010.

3. Jill Roscoe, M.D., was named in the Petition as t he

physician providing obstetric services at the birth. Dr. Jill

Roscoe Delker was serv ed with a copy of the claim on July 9,

2010.

4. Shands Hospital at the University of Florida was named

in the Petition as the place (hospital) of birth/injury. The

Petition was sent by certified mail from D O AH to Shands Hospital

at the University of Flor ida, 1600 Southwest Archer Road,

Gainesville, Florida 32610, on February 2, 2010 and on June 22,

2010.

5. No person or hospital has moved to intervene herein.

6. After several extensions in which to file the Response

required by Section 766.305(4), Flori da Statutes, NICA served,

on August 18, 2010, a Motion for Summary Final Order, which was

filed with DOAH the same day. That Motion for Summary Final

Order is accepted as NICA's Response, required by statute, as

well as for consideration here as a m otion.

7. NICA's Motion for Summary Final Order is supported by

Exhibits A and B, copies of the medical records of Angel Walker

(mother) and James Allen Prate, Jr., a/k/a Baby Boy Walker

(child), respectively. Each set of medical records (Exhibits A

and B) ar e accompanied by "Certificate s of Authenticity"

executed under oath by Rebecca Baker, the person responsible for

maintaining and controlling said records on behalf of Shands at

University of Florida. In their entirety, these "Certificates

of Authenticity" meet the standards for affidavits in support of

a motion for summary judgment as established by Florida Rules of

Civil Procedure 1.510. ( See , particularly , the Committee Notes

and Authors' Comment).

8. The predicate for the Motion for Summary Final Orde r is

that James Prate, Jr., was a single gestation and at birth

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

threshold for a NICA claim/eligibility.

9. The supporting medical records documenting NICA's

position show, at Bates page number 0 00000024 of Exhibit A

(Shands Hospital Operative Report for Angel Walker) that

caesarean section surgery was performed on the mother on

July 14, 2007, resulting in the birth of a single male infant

weighing 2 , 463 grams. At Bates page number 000000003 of E xhibit

B (Shands Hospital Coding Summary for "Walker, Boy/Angel " ) is a

birth date of July 14, 2007, and a descriptive diagnosis of a

"single liveborn" child. At Bates page number 000000005 of the

same exhibit, a Shands Hospital Discharge Summary for "Walk er,

Boy/Angel," with mother "Angel Walker," and a birth date of

July 14, 2007, reflects the birth weight as 2 , 463 grams. A

similar notation, complete with the same names identifier of

"Walker Boy/Angel , " and same July 14, 2007 birth date appears at

Bates page number 000000009 of the Shands Neonatology Delivery

Note dated July 14, 2007, and again reflects a birth weight of

2 , 463 grams . Finally, part of Exhibit B , at Bates page number

000000043, is Shands' Newborn Identification of a male child

weighing 2,4 63 grams born to mother Angel Walker, and showing

"Designated Significant Other " to be "James Prate" on July 14,

2007.

10 . Petitioners did not file a timely response in

opposition to NICA's Motion for Summary Final Order as provided -

for in Florida Adminis trative Code Rules 28 - 106.103 and 28 -

106.204, so on September 2 , 2010, an Order to Show Cause

provided:

On August 18 , 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 September 21 , 2010,

Petitioners shall show good cause in

writing, if any they can, why the relief

requested by Resp ondent should not be

granted.

11 . No timely response to the September 2 , 2010, Order to

Show Cause has been filed.

1 2 . Given the record, there is no dispute of material

fact. Specifically, there is no dispute regarding James Prate,

Jr.'s live birth on July 14, 2007 , that he was the result of a

single gestation, and that he weighed only 2 , 4 63 grams at birth.

CONCLUSIONS OF LAW

1 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.

1 4 . 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.

1 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 th e 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.

1 6 . If NICA determines that the injury allege d 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 C hapter 120, F lorida

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

1 7 . In di scharging 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

satisfa ction 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 th e 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.

1 8 . 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 per manently 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).

1 9 . Here, indisputably, James Prate, J r.'s birth weight

was 2 , 4 63 grams. Consequently, given the provisions of Section

766.302(2), Florida Statutes, James Prate, Jr. , does not qualify

for coverage under the Plan. See also Humana of Fla., Inc. v.

McKaughan , 652 So. 2d 852, 859 (Fla. 2d DCA 19 95)("[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 Comp. Ass' n 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 o f 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 S tatement of the Case and

Conclusions of Law, it is

ORDERED that the claim for compensation filed by

Angel Walker and James Prate, Sr., on behalf of and as parents

and natural guardians of James Prate, Jr., a minor, is dismissed

with prejudice.

DONE AND OR DERED this 27th day of September , 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, Flor ida 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 27th day of September , 2010 .

COPIES FURNISHED :

(Via Certified Mail)

Kenney Shipley, Executive Director

Fl orida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7010 0290 0001 2352 1007)

James Prate, Sr.

Angel Walker

736 Southwest Tamarack Loop

Lake City, Florida 3202 4

(Certified Mail No. 7010 0290 0001 2352 1014)

Marsha E. Rule, Esquire

Rutledge, Ecenia & Purnell, P.A.

Post Office Box 551

Tallahassee, Florida 32302

(Certified Mail No. 7010 0290 0001 2352 1021)

Jill Roscoe Delker, M.D.

North Florida Women's Physici ans

6440 West Newberry Road, Suite 508

Gainesville, Florida 32605

(Certified Mail No. 7010 0290 0001 2352 1038)

Shands Hospital

1600 Southwest Archer Road

Gainesville, Florida 32610

(Certified Mail No. 7010 0290 0001 2350 0941)

Amy Rice, Acting Investi gation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7010 0290 0001 235 0 0958 )

Elizabeth Dudek, Deputy Secretary

Health Quality Assurance

Agency for Health Care Adm inistration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7010 1670 0000 3105 8892 )

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 Secti ons 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 Hea rings 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.