11-001942N Anntonette Young, On Behalf Of And As Parent And Natural Guardian Of Makhai Ford, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, June 28, 2011.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

ANNTONETTE YOUNG, on behalf of )

and as parent and natural )

guardian of MAKHAI FORD, a )

minor , )

)

Petitioner , )

)

vs. ) Case No. 11 - 1942N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent. )

_ ______________________________ )

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent

Florida Birth - Related Neurological Injury Compensation

Association's (NIC A's) Motion for Summary Final Order, served

April 25, 2011 , and filed April 27, 2011 .

STATEMENT OF THE CASE

1. On April 15, 2011, Anntonette Young, on behalf of and

as parent and natural guardian of Makhai Ford, a minor, whose

date of birth is alleged as May 21, 2008, filed a petition

(claim) with the Division of Administrative Hearings (DOAH) for

compensation under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan). Jennifer M. Sanchez, D.O. and

University Community Hospital, Inc. , we re named in the p etition

as associated with Makhai's birth.

2. DOAH served NICA with a copy of the claim on April 20,

2011; served University Community Hospital, Inc. , on or about

April 25, 2011; and served Jennifer Sanchez, D.O., on or about

May 23, 2011 .

3. No person or entity has moved to intervene.

4. On April 27, 2011, NICA filed a Motion for Summary

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

The p redicate for NICA's motion was its assertion that,

indisputably, the physician, Jennifer Sanchez, named in the

Petition as having provided obstetrical services at Makhai's

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

inasmuch as Dr. Jennifer Sanchez was not a participating

physician at the time of the injury to the m inor child, because

she had not paid the required assessment for participation in

the Plan, nor was she exempt from payment of the assessment as a

resident physician, assistant resident physician or intern as

provided in se ction 766.314(4)(c). See also § 766.302(7) , Fla.

Stat. Attached to the motion was an affidavit of NICA's

Custodian of Records, attesting that Dr. Jennifer Sanchez, had

not paid the required assessment for participation in the Plan

at the time of the injury and that NICA has no records w ith

respect to Dr. Jennifer Sanchez in relation to an exempt status

for the year 2008. The affidavit further attests that NICA's

policy is to annually document exemptions pursuant to s ection

766.314(4)(c), and that the "NICA C ARES " physician payment

histo ry/report, attached to the affidavit, shows that in 2008,

the year of Mak h ai's birth, Dr. Sanchez paid the Two h undred

f ifty d ollars ($250.00) assessment required by s ection

766 . 314(4)(b)1., for non - participating, non - exempt licensed

physicians.

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

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

entered on May 10, 2011, which provided:

On April 25, 2011, Respondent served a

Motion for Summary Final Order. To date,

Petitioner has not res ponded to the motion.

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

106.204(4). Nevertheless, and

notwithstanding that Petitioner has been

accorded the opportunity to do so, it is

ORDERED that by May 23, 2011, Petitioner

shall show good cause in writing, if any she

can, why the relief requested by Respondent

should not be granted.

6. No timely response was filed by Petitioner to the

May 10, 2011 Order to Show Cause.

7 . Because service of the p etition herein was not

perfected upon Dr. Sanchez until May 23, 201 1 , the undersigned

has waited 30 days from May 23, 2011, before ruling on the

Motion for Summary Final Order, in order to give Dr. Sanchez

ample opportunity to intervene and be heard in this cause. She

has not moved to intervene and therefore cannot be he ard either

as opposed to the pending motion or for any other purpose.

8 . Given the record, there is no dispute of material fact.

Specifically, there is no dispute that the only physician named

in the p etition as providing obstetrical services during

Mak h ai Ford's birth was not a "participating physician," as that

term is defined by s ection 766.302(7). 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

9 . T he Division of Administrative Hearings has

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

these proceedings. § § 766.301 - 766.316 , Fla. Stat.

10 . The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislatu re "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 1 . The injured infant, her or his persona l

representa tive, 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 the injury is a birth - related neurological injury."

§ 766.305(4), Fla. Stat.

1 2 . 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 A dministrative Law J udge (ALJ) 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 ALJ in accordance

with the provisions of c hapter 120, Florida Statu t es .

§§ 766.309 and 766.31, Fla. Stat.

1 3 . I n discharging this responsibility, the ALJ must make

the following determination ba s ed 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.

766.303(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 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

ALJ 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 4 . Pertine nt to this case, "participating physician" is

defined in 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

wa s 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. . . .

1 5 . Here, indisputably, the only physician named as

pr oviding obstetrical services during the statutory period ( see

§ 766.309(1)(b)) was not a "participating physician," as that

term is defined in s ection 766.302(7), and as that term is used

in sections 766.301 through 766.316 . Consequently, Mak h ai (and

deri vatively, Mak h ai's parent) does not qualify for coverage

under the Plan.

1 6 . Where, as here, the ALJ 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 c ertified mail."

§ 766.309(2), Fla. Stat. Such an order constitutes final agency

action subject to appellate court review. § 766.311(1), Fla.

Stat.

CONCLUSION

Ba sed on the Statement of the Case and the Conclusions of

Law, it is, ORDERED:

Respondent Neurological Injury Compensation Association's

Motion for Summary Final Order is granted, and the petition for

compensation filed by Anntonette Young on behalf of, and as

parent and natural guardian of Mak h ai Ford, a minor, is

dismissed with prejudice.

DONE AND ORDERED this 28th day of June, 2011, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Divis ion of Administrative Hearings

The DeSoto Building

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 June, 2011.

ENDNOTE

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

support the claimed non - existences of a material issue, he

. . .[is] entitled to a summary judgment unless the opposing

party comes forward with some evidence which will chan ge 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 338 So. 2d 1267 (Fla. 1267 (Fla. 2d DCA 1980); Perry

v . Langstaff , 383 So. 2d 1104 (Fla. 5th DCA 1980 ).

COPIES FURNISHED:

(Via Certified Mail)

Armando T. Lauritano, Esquire

Morgan & Morgan, P.A.

One Tampa City Center

201 North Franklin Street, 7th Floor

Tampa, Florida 33602

(Certified Mail No. 7010 1670 0 000 3097 1925)

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 3097 1932)

University Community Hospita l

3100 East Fletcher Avenue

Tampa, Florida 33613

(Certified Mail No. 7010 1670 0000 3097 1949)

Jennifer M. Sanchez, D.O.

3000 Medical Park Drive, No. 300

Tampa, Florida 33613

(Certified Mail No. 7010 1670 0000 3097 1956)

Jennifer M. Sanchez, D.O.

The Women's Group

2716 West Virginia Avenue

Tampa, Florida 33607

(Certified Mail No. 7010 1670 0000 3097 1963)

Amy Rice, Acting Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 3239 9 - 3275

(Certified Mail No. 7010 1670 0000 3097 1970)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Certified Mail No. 7010 1670 0000 3097 1987)

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. Suc h 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 § 766.31 1, Fla.

Stat., and Fla. Birth - Related Neurological Injury Comp. Ass'n 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.