10-001138N Lashaunda Katrice Mason And Alonzo Cochease Mason, On Behalf Of And As Parents And Natural Guardians Of Zaivion Joel Mason, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, December 9, 2010.

Summary: Indisputably, physician who provided obstetrical services at infant's birth was not a "participating physician." Motion for summary final order of dismissal is granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LASHAUNDA KATRICE MASON AND )

ALONZO COCHEASE MASON, on )

behalf of and as parents and )

natural guardians of ZAIVION )

JOEL MASON, a minor , )

)

Petitioners , )

)

vs. ) Case No. 10 - 1138N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent . )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent

Florida Birth - Related Neurologic al Injury Compensation

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

September 29, 2010.

STATEMENT OF THE CASE

1. On March 5, 2010, Lashaunda Katrice Mason (mother) and

Alonzo Cochease Mason (father) on behalf of and as parents and

natural guardians of Z aivion Joel Mason , a minor, whose date of

birth is alleged as March 6, 2005, filed a petition (claim) with

the Division of Administrative Hearings (DOAH) for compensation

under the Florida Birth - Related Neurological Injury Compensation

Plan ( Plan). Dr. George Buchanan and Shands at University of

Florida were named in the Petition as associated with Z aivion's

b irth.

2. DOAH served NICA with a copy of the claim on March 9,

2010; served University of Florida Shands Hospital on March 11,

2010; a nd served George Buchanan, M.D., on June 15, 2010.

3. No person or entity has moved to intervene.

4. On September 29, 2010, 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, the physician, George Buchanan, M.D., named in the

Petition as having provided obstetrical services at Z aivion 's

birth, was not a "participating physician," as defined by law,

inasmuch as he was not a participating phy sician at the time of

the injury to the minor child, because he had not paid the

required assessment for participation in the Plan , nor was he

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 NICA's Custodian of Records , attesting that

George Buchanan , M.D., had not paid the required assessment for

participation in the Plan at the time of the injury. The

affidavit further attested that NICA's policy is to annu ally

document exemptions pursuant to Section 766.314(4)(c), Florida

Statutes, and that the " NICA Cares" physician payment history

report attached to the affidavit shows that in 2005, the year of

Z aivion 's birth, Dr. Buchanan paid the Two Hundred and Fifty

Dollars ($250.00) assessment required by Section

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

exempt licensed physicians.

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

Summary Final Order. Consequently, an Order to Show Caus e was

entered on October 13, 2010, which provided:

On September 29, 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

notwi thstanding they have been accorded the

opportunity to do so, it is

ORDERED that by October 25, 2010,

Petitioners shall show good cause in

writing, if any they can, why the relief

requested by Respondent should not be

granted.

6. On October 25, 2010, Pet itioners filed a " Response to

this Court's October 13, 2010 to Show Cause and a Request for

Extension of Time to File a Response to Respondent's Motion for

Summary Final Order. " The thrust of this Response was that

Petitioners needed time to examine addit ional medical records.

7. On October 27, 2010, an Order was entered which

provided, in pertinent part, "Petitioners are granted to and

until November 30, 2010, in which to respond to the Motion for

Summary Final Order or to move for additional time for di scovery

in aid of a response. "

8. On November 30, 2010 , Petitioners filed a Response,

stating, in pertinent part, "The additional hospital records

have been reviewed and Petitioner reluctantly concurs that no

NICA doctor assisted Dr. Buchanan."

9. 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 during

Z aivion's birth was not a "participating physician," as that

term is defined by Sect ion 766.302(7), Florida Statutes.

Accordingly, NICA's Motion for Summary Final Order is, for

reasons appearing more fully in the Conclusions of Law, well -

founded. 1

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the p arties to, and the subject matter of,

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

11. The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fau lt, for

birth - related neurological injury claims" relating to births

occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

12. The injured infant, her or his personal

representative, parents, dependents, and next of kin may seek,

compensation u nder 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 whic h 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.

13. 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 disp utes 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.

14. In discharging this r esponsibility, 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 adm inistrative 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 presu mption 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 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 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.

1 5. 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

participation in the birth - related

neurological injury compensation plan for

the year in which the injury

occurred. . . .

16. Here, indisputab ly, the only physician, named/shown to

have provided obstetrical services during Ja ivion 's birth, was

not a "participating physician," 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, Z aivion (and derivatively, his parents) does not

qualify for coverage under the Plan.

17. Where, as here, the administrative law judge

determines that ". . . obstetrical services were not delivered

by a particip ating 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), Fla. Stat. Such an order constitutes

final agency act ion 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 Neurological Injury Compensation

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

petition for compensation filed by Lashaunda Katrice Mason and

Alonzo Cochease Mason on behalf of , and as parents and natural

guardians of Z aivion Joel Mason , a minor, is dismissed with

prejudice.

DONE AND ORDERED this 9th day of Decembe r , 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

(850) 488 - 9675

F ax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of December , 2010 .

ENDNOTE

1 / Where, as here, the "moving party presents evidence to

support the claimed non - existence of a mate rial 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 D irector

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7010 1670 0000 3105 9325)

N. Albert Bacharach, Jr., Esquire

N. Albert Bacharach, Jr., P.A.

115 No rtheast 6th Avenue

Gainesville, Florida 32601

(Certified Mail No. 7010 1670 0000 3105 9332)

George Buchanan, M.D.

717 Southwest 4th Avenue

Gainesville, Florida 32601

(Certified Mail No. 7010 1670 0000 3105 9349)

University of Florida Shands Hospital

1 600 Southwest Archer Road

Gainesville, Florida 32610

(Certified Mail No. 7010 1670 0000 3105 9356)

Amy Rice, Acting Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Cert ified Mail No. 7010 1670 0000 3105 9363)

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 1670 0000 3105 9370)

NOTICE OF R IGHT 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 pro ceedings 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 766.3 11,

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.