10-008217N Roberto Puello And Anoa Santana-Lohoz, On Behalf Of And As Parents And Natural Guardians Of Robert Puello, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, February 17, 2011.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERTO PUELLO AND ANOA )

SANTANA - LOHOZ, on behalf of and )

as parents and natural )

guardians of ROBERT PUELLO, a )

minor , )

)

Petitioners , )

)

vs. ) Case No. 10 - 8217N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSO CIATION , )

)

Respondent, )

)

and )

)

PUBLIC HEALTH TRUST OF MIAMI - )

DADE COUNTY, d/b/a JACKSON )

SOUTH COMMUNITY HOSPITAL, )

)

Intervenor . )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's

Motion for Summary Final Order, filed September 29, 2010 , and

Renewed Motion for Summary Final Order, filed November 1, 2010 .

STATEMENT OF THE CAS E

1. On August 23, 2010, Robert o P uello and Anoa Santana -

Lohoz, on behalf of and as parent s and natural guardian s of

Robert Puello , a minor, born January 19, 2009, 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 the Florida Birth - Related Neurological

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

on August 25, 2010, and on August 2 6, 20 10, served Earl Gabb,

M.D., and Jackson South Commu nity Hospital, respectively and

separately.

3. On September 29, 2010, NICA filed a Motion for Summary

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

The predicate for NICA's motion was its assertion that,

indisputably, the only physicia n ( Earl Gabb , M.D.) named in the

petition as having provided obstetrical services at the minor,

Robert Puello's birth, was not a "participating physician," as

defined by law, because Dr. Gabb had neither paid the assessment

required for participation nor w as 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 the

Custodian of Records for NICA attesting to the fact that

Dr. Earl Gabb had not paid the assessment required for

participation in the year 200 9 , the year in which the subject

child, Robert, was born, and that Dr. Gabb was not exempt from

payment of the assessment.

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

Summary Final Order. Conseque ntly, an Order to Show Cause was

entered on October 13, 2010 , which provided:

On September 29, 2010, Respondent served a

Motion for Summary Final Order. To date,

Petitioner s ha ve not responded to the

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

28 - 106.204( 4). Nevertheless, and not

withstanding that they have been accorded

the opportunity to do so, it is

ORDERED that by October 25, 2010,

Petitioner s shall show good cause in

writing, if any they can, why the relief

requested by Respondent should not be

gra nted.

5 . Petitioner s filed a R esponse to the Motion for Summary

Final Order on October 22, 2010 . Therein, Petitioner s did not

dispute NICA's showing that Dr. Earl Gabb , the only physician

named in the Petition as involved in the birth, was not a

partici pating NICA physician at the time of the minor child's

birth but did assert that two individuals, perhaps employees of

Jackson South Hospital, namely CNM Caree George and Nurse Usha

Kumari, were involved in this birth. Petitioners requested

additional dis covery.

6. On October 25, 2010, a Petition to Intervene was filed

by Public Health Trust of Miami - Dade County, d/b/a Jackson South

Community Hospital , and no timely response in opposition having

been filed, an Order was entered on November 10, 2010,

per mitting intervention.

7. On November 1, 2010, Respondent filed a Renewed Motion

for Summary Final Order providing therewith an affidavit of

NICA's Records Custodian showing that the "NICA CARES physician

payment history/report" does not exist for Caree Ge orge , CNM, or

Nurse Usha Kumari , and that neither George nor Kumari had paid

any assessments for NICA participation.

8. The thrust of the Renewed Motion for Summary Final

Order was the same as before, that unless obstetrical services

are delivered by a NI CA participating physician during labor,

delivery, or resuscitation in the immediate postdelivery period

in a hospital , in connection with the child's ( Robert's ) birth,

his claim is not compensable.

9. Neither Petitioner s nor Intervenor filed a response i n

opposition to the Renewed Motion for Summary Final Order within

the time provided by Florida Administrative Code Rules 28 -

106.109 and 28 - 106.204. Therefore, in an abundance of caution,

on November 15, 2010, an Order to Show Cause was entered, which

prov ided:

On November 1, 2010, Respondent served a

Renewed Motion for Summary Final Order. To

date, neither Petitioners nor Intervenor

have 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 November 30, 2010,

Petitioners and Intervenor shall show good

cause in writing, if any they can, why the

relief requested by Respondent should not be

granted.

10. No responses to the Renewed Motion were filed, and on

December 1, 2010, another Order was entered which provided:

This cause came on for consideration

upon the passage of November 30, 2010,

without the filing of any response in

opposition to Respondent's Renewed Motion

f or Summary Final Order.

Accordingly, in an abundance of

caution, Petitioners and Intervenor are

granted to and until December 15, 2010, to

show cause, in writing, filed with the

Division of Administrative Hearings, why the

Motion for Summary Final Order, with

supporting documentation, and the Renewed

Motion for Summary Final Order, with

supporting documentation should not be

considered together, and to show cause why a

summary final order should not be entered

resolving the case against Petitioner [sic] .

11. By letter of January 5, 2011, the undersigned

solicited a request by January 18, 2010 [sic] for further

discovery, if any party deemed such a request to be appropriate .

T here has been no response to that letter . Due to the date

error in the letter, another Order was entered January 24, 2011,

which read in pertinent part:

ORDERED: Petitioners and Intervenor are

granted to and until February 7, 2011, in

which to move for additional time for

discovery and/or to respond in opposition to

the Order to Sh ow Cause entered December 1,

2010.

1 2 . N either Petitioners nor Intervenor has filed any

response to the December 1, 2010 , Order to Show Cause. Neither

Petitioners nor Intervenor has offered affidavits or any

evidence to cast doubt on NICA's showing that neither the

physician named in the Petition (Dr. Gabb) nor either of the

healthcare professionals (CNM George; Nurse Kumari) , named by

Petitioners in their response to the Motion for Summary Final

Order as present at Robert's birth , were not participating

physicians in the Plan. Neither Petitioners nor Intervenor ha s

requested additional discovery time since the filing of the

Renewed Motion for Summary Final Order, and Petitioners have not

moved for leave to amend the petition to add CNM George, Nurse

Kuma ri, or any other person as an alleged "participating

physician."

1 3 . Therefore, it is concluded that the Motion for Summary

Final Order, with supporting documentation , and the Renewed

Motion for Summary Final Order , with supporting documentation ,

may be considered together and that it is undisputed that NICA

has affirmatively shown that there w ere no participating

physicians at Robert's birth.

1 4 . Given the record, there is no dispute that those who

provided obstetrical services during Robert's birth were not

"participating physician[s]," as that term is defined by s ection

766.302(7). Consequently, NICA's Renewed Motion for Summary

Final Order (encompassing its Motion for Summary Final Order)

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

well - founded. 1

CONCLUSIONS OF LAW

1 5 . 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 6 . The Florida Birth - Related Neurological Injury

Compe nsation 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 7 . The in jured 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. St at. 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(4), Fla. Stat.

1 8 . 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 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 9 . In discharging this responsibility, the A dministrative

L aw J udge 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 defin ed 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 postdelivery

period in a hospital; or by a certified

nurse midwife in a teaching hospi tal

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

A dministrative L aw J udge concludes that th e "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.

20 . Pertinent to this case, "participating physician" is

defined by s ection 766.302(7 ), 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 exempt 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 . . . .

2 1 . Here, indisputa bly, all those shown to have provided

obstetrical services during Robert's birth were not

"participatin g physician[s]," as that term is defined by s ection

766.302(7), and as that term is used in s ections 766.301 through

766.316. Consequently, Robert does not qualify for coverage

under the Plan.

2 2 . Where, as here, the administrative law judge

determines t hat ". . . obstetrical services were not delivered

by a participating physician at the birth, s 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 m ail." § 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 Statement of the Case and Conclusions of Law,

it is

ORDERED that Respondent's Renewed Moti on for Summary Final

Order encompassing its Motion for Summary Final Order is

granted, and the petition for compensation filed by Roberto

Puello and Anoa Santana - Lohoz, on behalf of and as parent s and

natural guardian s of Robert Puello, a minor, is dismiss ed with

prejudice.

DONE AND ORDERED this 17th day of February , 2011 , in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalac hee 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 17th day of February , 2011 .

ENDNOTE

1 / Where, as here, the "moving party pres ents 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 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. 7010 1670 0000 3105 9714)

Jeffrey R. Davis, Esquire

10 800 Biscayne Boulevard, Suite 700

Miami, Florida 33161

(Certified Mail No. 7010 1670 0000 3105 9721)

Joni A. Mosely, Esquire

R. A. Cuevas, Jr.

Miami - Dade County Attorney

111 Northwest 1st Street, Suite 2810

Miami, Florida 33128

(Certified Mail No. 701 0 1670 0000 3105 9738)

Earl Gabb, M.D.

10300 Southwest 216th Street

Cutler Bay, Florida 33190

(Certified Mail No. 7010 1670 0000 3105 9745)

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 1670 0000 3105 9752)

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 9769)

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 Florid a

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 Dis trict 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 or der to be reviewed.