11-003402N Milvia Najera And Marvin Chavarria, On Behalf Of And As Parents And Natural Guardians Of Marvin Chavarria, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, December 19, 2011.

Summary: Claims against NICA barred by statute of limitations; parties entitled to determination of compensability; infant is not permanently and substantially mentally impaired; definition of compensable injury not met. Motion for Summary Final order granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MILVIA NAJERA AND MARVIN )

CHAVARRIA, on behalf of and as )

parents and natural guardians )

of MARVIN CHAVARRIA, a minor , )

)

Petitioners , )

)

vs. ) Case No. 11 - 3402N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSO CIATION , )

)

Respondent, )

)

and )

)

SAMIR BEYDOUN, M.D. , AND THE )

PUBLIC HEALTH TRUST OF MIAMI - )

DADE COUNTY , )

)

Intervenor s . )

)

SUMMARY FINAL ORDER OF D ISMISSAL

This Order addresses Respondent Florida Birth - Related

Neurological Injury Compensation Association's (NICA's) Motion

for Summary Final Order , Intervenor Samir Beydoun, M.D.'s Motion

for Summary Final Order , and Intervenor Public Health Trust's

" A mended " Motion for Summary Final Order. 1/

FINDINGS OF FACT

1. On July 13, 2011, a "Petition Under Protest" styled

"Milvia Najera and Marvin Chavarria, on behalf of and as parents

and natural guardians of Marvin Chavarria, a minor v. Florida

Birth - Related Neurological Injury Compensation Association ," was

filed with the Division of Administrative Hearings (DOAH) .

2. Pertinent to the pending motions are the allegations of

paragraphs 3, 4, 5, 6, and 7 of the petition:

* * *

Name and Address of P h ysician

3. The physicians providing obstetrical

services who were present at the birth are

Resident Lucia Gaitan, M.D. . . . and

Attending Samir N. Beydoun, M.D. . . .

Description of Disability

4. It is alleged that Marvin Chavarria

currently suffers from dev elopmental delay.

Time and Place of Birth

5. Jackson Memorial Hospital, [ 2 /] 1611 N.W.

12th Avenue, Miami, FL 33136 on February 5,

2005.

Time and Place of Injury

6. Jackson Memorial Hospital, 1611 N.W.

12th Avenue, Miami, FL 33136 on February 5,

2005.

Statement of the Facts

7. This claim is not compensable under NICA

as Marvin Chavarria's injury does not meet

the definition of a birth - related

neurological injury as defined in Florida

Statute 766.302(2). The reasons for non -

compensability are as fol lows:

i. T he child does not have substantial

physical and mental impairments as defined

by Florida Statutes 766.302(2).

* * *

3. T he Petition does not allege a lack of notice by the

healthcare providers. 3 /

4. DOAH served the Florida Birth - Related N eurological

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

on July 5, 2011; served Dr. Beydoun and Jackson Memorial

Hospital, respectively, on July 16, 2011; and served Dr. Ga i tan

on or about July 21, 2011.

5. Upon appropriate petition an d an August 16, 2011 Order,

Samir Beydoun, M.D., was granted Intervenor status.

6. On October 13, 2011, after one extension of time in

which to do so, NICA filed its r esponse required by section

766.305(4), titled "Notice of Non - Compensability and Request for

Evidentiary Hearing."

7. On October 24, 2011, Respondent NICA filed its Motion

for Summary Final Order, with supporting affidavits. The thrust

of Respondent's motion is that the p etition for b enefits wa s

filed with DOAH on July 13, 2011, which is more than five years

past the birth of the child, Marvin Chavarria, who was born on

February 5, 2005 . The motion states, "Acc ordingly, the claim is

barred as a matter of law, and cannot qualify for an Award under

the NICA Plan. . . . No twithstanding, the issue of

compensability must be addressed." Respondent also submitted ,

with its Motion for Summary Final Order, two medical affidavits

to the effect that the claim is not compensable. On October 24,

2011, Petitioners filed a Notice of Joinder in Respond ent's

Motion for Summary Final Order. On October 27, 2011 , Intervenor

Samir Beydoun, M.D., filed a Response in Opposition to

Respondent's Motion for Summary Final Order.

8. On October 26, 2011, Intervenor Samir Beydoun, M.D.,

also filed a Motion for Su mmary Final Order, asserting that the

Administrative L aw Judge has jurisdiction to enter a s ummary

f inal o rder solely determining that Petitioners' claim is barred

by section 766.313 , the statute of limitations for NICA claims.

On October 28, 2011, Petiti oners filed a Response and Objection

to Intervenor 's [Beydoun's] Motion for Summary Final Order, to

which Response and Objection, Intervenor Beydoun filed an

unauthorized Reply, on November 8, 2011.

9. By Order of November 18, 2011, a pending Petition to

Intervene, filed on October 24, 2011, by Public Health Trust of

Miami was granted, 4 / and, in an abundance of caution, this new

Intervenor was given until November 30, 2011, to file a response

to the two pending motions for summary final order. Public

Heal th Trust of Miami filed no timely response(s) , but joined in

Dr. Beydoun's Motion by an untimely and un authorized "Notice of

Joinder" filed December 13, 2011 ; a Response Opposing [NICA's]

Motion for Summary Final Order , filed December 13, 2011; and an

"Ame nded" Motion for Summary Final Order filed December 14,

2011.

10. All of the pleadings have been considered.

11. NICA's Motion for Summary Final Order alleged that the

claim against NICA is barred by the statute of limitation s for

NICA claims . 5/ The bir th certificate , which was filed with the

Petition , confirms Marvin's date of birth as alleged in the

Petition as February 5, 2005. No party has asserted otherwise.

There also is no dispute that the Petition (claim) was filed on

July 13, 2011 . T here fore, there can be no reasonable d ebate

that the NICA claim was filed more than five years be yond

Marvin's birth date , and so, the claim is barred as a matter of

law, and cannot qualify for an award under the NICA Plan .

12. NICA's Motion for Summary Final Orde r further alleged

that Marvin's claim is not compensable because he did not suffer

a "birth - related neurological injury" as defined in section

766.302(2), first, because there was no apparent obstetrical

event that resulted in loss of oxygen or mechanical trauma to

the baby's brain or spinal cord during labor, delivery, or the

immediate postdelivery period, and secondly, because Marvin does

not suffer from a substantial motor (physical) impairment , both

of which are elements of the definition of a compensab le injury,

at section 766.302(2). ( See Conclusion of Law 3 2 ).

13. Attached to NICA's Motion for Summary Final Order w as

an affidavit by Donald C. Willis, M.D., a board - certified

obstetrician with special competence in maternal - fetal medicine.

Dr. Willi s rendered the following opinion within a reasonable

degree of medical probability:

* * *

5. In summary, baby was delivered with some

mild respiratory distress that required bag

and mask ventilation for about 30 seconds.

Arterial blood gas was normal. The

respiratory distress resolved without the

need for intubation or mechanical

ventilation. A tight Nuchal cord was

present at birth, but did not result in

oxygen deprivation.

6. There was no apparent obstetrical event

that resulted in loss of oxygen or

mechanical trauma to the baby's brain during

labor, delivery or the immediate post

delivery period.

7. As such, it is my opinion that there was

no oxygen deprivation or mechanical injury

occurring in the course of labor, delivery

or resuscitation in the immediate post -

delivery [sic] in the Hospital that resulted

in loss of oxygen or mechanical trauma to

the baby's brain or spinal cord .

Accordingly, there was no causal event which

would have rendered MARVIN CHAVARRIA

permanently and substantially ment ally and

physically impaired as a result of same.

(emphasis added).

14. Also attached to NICA's Motion for Summary Final Order

was the affidavit of Michael S. Duchowny, M.D., a board -

certified pediatric neurologist, who rendered the following

opinion wi thin a reasonable degree of medical probability:

* * *

3. The Florida Birth - Related Neurological

Injury Compensation Association retained me

as its expert in pediatric neurology in the

above - styled matter to examine the minor

child, MARVIN CHAVARRIA, a nd review the

medical records from both MARVIN CHAVARRIA

and his mother, MILVIA NOTERA. [sic] The

purpose of my review of the medical records

and evaluation of MARVIN CHAVARRIA was to

determine whether he suffers from an injury

which rendered him permanen tly and

substantially mentally and physically

impaired, and whether such injury is

consistent with an injury caused by oxygen

deprivation or mechanical injury occurring

during the course of labor, delivery, or the

immediate post - delivery period in the

hosp ital.

4. I evaluated MARVIN CHAVARRIA on

October 5, 2011. A true and accurate copy

of my Evaluation and Opinion is attached

hereto as Exhibit 1. . . .

5. My Opinion is reflected in my Report and

is as follows:

In SUMMARY, Marvin's neurological

examin ation today reveals findings

consistent with autism and pervasive

developmental disorder (PDD). He has severe

social and behavioral problems and also

manifests expressive language delay,

generalized hypotonia and has a history of a

sleep disorder. There are no focal or

lateralizing findings noted.

I reviewed medical records that were sent on

August 16, 2011. The records do not contain

information that points to either an hypoxic

event or mechanical injury in the course of

labor or delivery. Marvin was born at term

at Jackson Memorial Hospital and had Apgar

scores of 9, 9 and 9 at 1 , 5 and 10 minutes.

Although he did have a tight n uchal cord, it

was removed immediately. The postnatal

course was unremarkable. Marvin's

diagnostic studies further confirm that his

neurological disabilities are

developmentally based and likely the result

of problems in brain maturation which began

in utero. The physical examination today

provides additional confirmation that Marvin

does not suffer from a substantial motor

impairment .

6. For the above reasons, I do not believe

that Marvin should be considered for

compensation under the NICA statute. . . . [6/]

(emphasis added).

15. Intervenor Beydoun's Response to NICA's Motion for

Summary Final Order urges the grantin g of NICA's m otion to the

extent the claim is barred by the statute of limitations , but

also urges denial of NICA's m otion "because the ALJ cannot reach

the question of compensability where, as here, the claim is

barred by the statute of limitations. 7 /

16. Intervenor Beydoun has also filed a Motion for Summary

Final Order asserting the same arguments in favor of dismissal

under the statute of limitations and against dismissal upon

grounds of non - compensability, because, he argues, once the

statute has run, the A dministrative Law Judge is without

jurisdiction to determine either compensability or notice.

Intervenor Public Health Trust has joined in Dr. Beydoun's

Motion for Summary Final Order, and filed a Response to Motion

for Summary Judgment and an Amend ed [sic] Motion for Summary

Final Order. 8/

17. Petitioners joined in NICA's Motion for Summary Final

Order and oppose Intervenor Beydoun 's Motion for Summary Final

Order. It may be assumed they also oppose the Public Health

Trust's late - filed items .

18. Despite both Intervenors' opposition upon the issue of

the A dministrative Law Judge's jurisdiction to enter a summary

final order regarding compensability where the statute of

limitations for the filing of a NICA claim has run, no one has

posed a challeng e concerning the sufficiency of NICA's Motion

for Summary Final Order's factual allegations or supporting

affidavits. Given the record and the medical affidavits, there

is no genuine issue of material fact that Marvin , the child

named in the Petition , did not suffer a birth - related

neurological injury as defined in section 766.302(2).

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

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

founded. 9/

CONCLUSIONS OF LAW

19. The Division of Ad ministrative Hearings has

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

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

20. However, as a threshold jurisdictional issue, this

cause, as against NICA, is barred by section 766.313. Section

766.313, provides that: "[a] ny claim for compensation under ss.

766.301 - 766.316 t hat is filed more than 5 years after the birth

of an infant alleged to have a birth - related neurological injury

shall be barred. "

21. It is an undisputed fact that Marvin was born on

February 5, 2005, and that the claim/petition was filed at DOAH

on July 13, 2011. The claim is barred, and Respondent NICA is

entitled to a final order which resolves that, notwithstanding

that the claim may be c ompensable, and notwithstanding that

Petitioners allege the claim is not compensable, Petitioners may

not pursue or recover an award of benefits under the Plan.

22. However, since Plan immunity may be a viable defense

to a civil suit and the Administrativ e Law Judge has exclusive

jurisdiction to resolve whether a claim is compensable, it is

necessary , in the posture of this case , to resolve whether the

claim is compensable. See §§ 766.301(1)(d), 766.303(2), and

766.304, Fla. Stat., and O'Leary v. Fla. Bir th - Related

Neurological Injury Comp. Ass'n , 757 So. 2d 624 (Fla. 5th DCA

2000).

23. In Green v. Fla. Birth - Related Neurological Injury

Comp. Ass'n and Henricks et al. , Case No. 02 - 2213N (Fla. DOAH

Apr. 24, 2003), per curiam aff'd , Green v. Fla. Birth - Rela ted

Neurological Injury Comp. Ass'n , 871 So. 2d 223 (Fla. 2d DCA

2004), the A dministrative Law Judge ruled that he was obligated

to determine compensability even though the statute of

limitations barred Petitioners' NICA claim so that Petitioners

could not pursue or recover an award of benefits from NICA. To

the same effect, see Espositio v. Fla. Birth - Related

Neurological Injury Comp. Ass'n , Case No. 10 - 10320N (Fla. DOAH

May 20, 2011), currently on appeal to the Third District Court

of Appeal, Case No. 3D 11 - 1621; Bautista v. Fla. Birth - Related

Neurological Injury Comp. Ass'n , Case No. 10 - 3208N (Fla. DOAH

Dec. 17, 2010); Romero v. Fla. Birth - Related Neurological Injury

Comp. Ass'n , Case No. 05 - 1901N (Fla. DOAH Aug. 31, 2005); and

Foott v. Fla. Birth - Related Neurological Injury Comp. Ass'n ,

Case No. 02 - 4344N (Fla. DOAH Aug. 11, 2003).

24. The ruling in Green was based, in part, upon the

participation of intervenors seeking to determine the "notice"

issue. Herein, Intervenor s correctly point out that n o pa rty

has raised the issue of notice, and they have volunteered, by

their various pleadings , that they will not assert the notice

defense in circuit court, if and when Petitioners file a civil

action in circuit court. It is noted that any issue of notice

is deemed waived in the present proceeding because Petitioners

did not raise it in the ir Petition . Further, no determination

of the notice issue is r equired unless it is raised by one or

more parties before DOAH in the same proceeding which addresses

compen sability. § 766.309(1)(d), Fla. Stat. 10 /

25. Finally , where, as here, it is concluded, as a matter

of law, that the child's injury is not compensable under the

Plan because it is not a "birth - related neurological injury,"

the notice issue is rendered moo t. See Orlando Reg'l Healthcare

Sys. v . Gwyn , 53 So. 3d 385 (Fla. 5th DCA 2011), holding " . . .

NICA cannot be found to afford the [parents] their exclusive

remedy for the simple reason that, as a matter of law, the

[parents] do not have a compensable cl aim under NICA."

26. The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature " for the

purpose of providing compensation, irrespective of fault, for

birth - rel ated neurological injury claims" relating to births

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

2 7 . However, much of s ections 766.301 - 766.316 (the

"NICA" statute) is cumbersome because it presumes that parents

will always seek to prove NICA compensability in order to

collect from the As sociation the limited "no fault" benefits

provided therein. In practical terms, however, parents more

often seek to "opt out" of NICA so as to obtain presumably

greater monetary benefits via a circuit court action, which is

usually a simple medical malpra ctice action, although there can

also be actions based on malpractice through willful and wanton

disregard of human rights and safety. 11/ Indeed, the NICA

statute creates a rebuttable presumption of compensability which

may only be asserted by the Petitio ners 12/ and provides for

tolling of the statute of limitations in circuit court actions

for so long as the NICA claim remains pending before the

Administrative Law Judge. 13 /

28. T he NICA statute presume s that a medical malpractice

action cannot even be filed in circuit court until after the

A dministrative Law Judge has determine d that the NICA claim is

not compensable , or until he or she has determined that the

claim is compensable, but the statutory notice requirements have

n ot been met, so that the cla imant is free to sue the hospital

and/ or any participating physician s who did not give notice.

Complicating this situation is the statute of repose for a

minor's malpractice action, which does not run until the child

turns eight years of age, except where NICA provides "the

exclusive remedy." 14/ However, routinely, circuit courts permit

the filing of the NICA claimant's circuit court complaint and

abate it until the issues of compensability, and possibly

notice, are determined by the Administrative Law Ju dge , who has

exclusive jurisdiction of those issues. 15 / However, it is

conceivable that even if a child's injuries never fit the

definition of a "birth - related neurological injury," was never

compensable under NICA for that reason, and no NICA claim was

t imely filed for that reason, a circuit court may be placed in

the position of having to determine whether the circuit court

action is barred. Therefore, it is prudent, at least until the

legislature or an appellate court clarifies the situation, for

their O rder to address the issue of "compensability" even though

NICA cannot be required to pay an award in th is case.

2 9 . Under sections 766.301 - 766.316, t he injured " infant,

her or his personal representative, parents, dependents, and

next of kin, " may see k compensation under the Plan by filing a

claim for compensation with DOAH . §§ 766.302(3), 766.303(2),

766.305(1), and 766.313, 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.

30 . 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 Judge to whom the claim has

been assigned. § 766.305( 7 ), Fla. Stat. If, on the other hand,

NICA disputes the clai m, 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.

3 1 . In discharging this responsibility , the A dministrative

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 administrative l aw

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 post - delivery

per iod 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.

3 2 . Pertinent to this case, " birth - related neurological

injury " is defined by s ection 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 wei ghing

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 permanently and

substantially me ntally 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).

3 3 . Here, indisputably, Marvin Chavarria did not suffer a

mechanica l trauma or oxygen deprivation in the statutory period

specified in section 766.302(2) , and he does not suffer both a

permanent and substantial mental impairment and a permanent and

substantial physical impairment. Consequently, given the

provisions of se ction 766.302(2), Marvin has never qualified for

coverage under the Plan. See also Fla. Birth - Related

Neurological Injury Comp. Ass'n v. Fla. Div. of Admin. Hearings ,

686 So. 2d 1349 (Fla. 1997)(The Plan is written in the

conjunctive and can only be inter preted to require both

substantial mental and physical impairment.). Humana of Fl a. ,

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

Comp . Ass 'n v. McKaughan , 668 So. 2d 974, 979 (Fla. 1996). See

also Masterton v. Fla. Birth - Related Neurological Injury Comp.

Ass'n v. Fla. Div. of Admin. Hearings , Case No. 08 - 6032N ( Fla.

DOAH Jan. 29, 2010) (Corrected Order) .

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that:

1. This cause, as against Respondent Florida Birth - Related

Neurological Injury Compensation Association , is barred by

section 766.313 , and Petitioners may not pursue or recover an

award of benefits under the Plan .

2. Respondent's Motion for Summary Final Order is granted ;

the claim is determined to be noncompensa ble ; and the Pe tition

Under Protest, filed herein by Milvia Najera and Marvin

Chavarria, on behalf of and as parents and natural guardians of

Marvin Chavarria, a minor, is dismissed with prejudice.

3. Intervenor Beydoun's Motion for Summary Final Order ,

a nd Intervenor Public Health Trust's Amended [sic] Motion for

Summary Final Order are granted in part and denied in part as

explained herein and those rulings are subsumed within decretal

paragraph 2, above.

DONE AND ORDERED this 19th day of December , 2011 , 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

Fax Fili ng (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of December , 2011 .

ENDNOTES

1/ There was no Public Health Trust m otion for s ummary f inal

o rder.

2 / This is the "hospital" as contemp lated by sections

766.302(2) and (6), Florida Statutes.

3 / In the event a claimant satisfies an Administrative Law

Judge that the child's injury meets the section 766.302(2),

definition of "birth - related neurological injury," ( shows the

injury is compens able under the NICA Plan ) recovery is limited

to NICA Plan benefits as set out in section 766.31, unless one

of the healthcare providers has failed to give appropriate and

timely notice as set out in section 766.316.

In situations of lack of notice, the Florida Supreme Court in

Florida Birth - Related Neurological Injury Compensation v.

Department of Administrative Hearings , 29 So. 3d 992 (Fla.

2010), concluded that :

. . . [ T ] he notice provision is severable

with regard to defendant liability.

Consequen tly, under our holding today, if

either the participating physician or the

hospital with participating physicians on

its staff fails to give notice, then the

claimant can either (1) accept NICA remedies

and forgo any civil suit against any other

person or entity involved in the labor or

delivery, or (2) pursue a civil suit only

against the person or entity who failed to

give notice and forgo any remedies under

NICA.

4 / When a petition to intervene does not comply with DOAH's

rules requir ing that the motio n state the positions of all other

parties, the A dministrative L aw J udge may either strike the

pleading or wait the specified time for written responses . See

Fla. Admin. Code R. 28 - 106.103 and 28 - 106.204. In this

situation, the undersigned waited the app ropriate time for

written responses.

5 / Section 766.313, Fl orida Statutes , provides:

Any claim for compensation under ss.

766.301 - 766.316 that is filed more than 5

years after the birth of an infant alleged

to have a birt h - related neurological injury

shall be barred.

6/ See , e.g. , Vero Beach Care Ctr v. Ricks , 476 So. 2d 262, 264

(Fla. 1st DCA 1985)("Lay testimony is legally insufficient to

support a finding of causation where the medical condition

involved is not readil y observable."); Ackley v. Gen. Parcel

Servs. , 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The

determination of the cause of a non - observable medical

condition, such as a psychiatric illness, is essentially a

medical question."); Wausau Ins. Co. v. Tillman , 7 65 So. 2d 123,

124 (Fla. 1st DCA 2000)("Because the medical conditions which

the claimant alleged had resulted from the workplace incident

were not readily observable, he was obligated to present expert

medical evidence establishing that causal connection. ").

7 / Dr. Beydoun argues that section 766. 313 , the statute of

limitation on recovery from NICA, bars any determination of

" compensability" or of "notice or lack thereof" by the ALJ, and

further asserts:

. . . No medical malpractice action has been

file d by Petitioners and thus no health care

provider has asserted NICA Plan immunity.

Further SAMIR BEYDOUN, M.D., hereby

represents that he has no intention of

asserting NICA Plan immunity in any future

medical malpractice action brought by the

Petitioners arising out of MARVIN CHAVARRIA's

birth and hereby disclaims any right to the

defense in any such action. . . .

8/ Public Health Trust's late Response, Motion for Summary

Judgment, and Amended Motion for Summary Final Order may be read

as stating the Tru st also will not assert a notice defense in

circuit court.

9 / 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 forwar d 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).

10 / If raised by the claimant or any other party, the

undersigned may determine notice or lack thereof. Here, the

notice issue has not been raised by any party.

While the A dministrative Law Judge is required [if the issue is

raised by any party] to resolve whether the notice requirements

of section 766.316, have been satisfied, he or she does not have

jurisdiction to resolve whether any person or entity is entitled

to invoke the immunity from tort liability provided - for in

subsection 766.303(2). Depart v. Macri , 902 So. 2d 271 (Fla.

1st DCA 2005); Gugelmin v. Div. of Admin. Hearings , 815 So. 2d

764 (Fla. 4th DCA 2002). All issues of immunity from civil suit

are for the circuit court to decide.

11/ See § 766.303(2), Fla. Stat.

The rights and remedies granted by this plan

on account of a birth - related neurological

injury shall exclude a ll other rights and

remedies of such infant, her or his personal

representative, parents, dependents, and

next of kin, at common law or otherwise,

against any person or entity directly

involved with the labor, delivery, or

immediate postdelivery resuscitat ion during

which such injury occurs, arising out of or

related to a medical negligence claim with

respect to such injury; except that a civil

action shall not be foreclosed where there

is clear and convincing evidence of bad

faith or malicious purpose or w illful and

wanton disregard of human rights, safety, or

property, provided that such suit is filed

prior to and in lieu of payment of an award

under ss. 766.301 - 766.316 . Such suit shall

be filed before the award of the divis ion

becomes conclusive and binding as provided

for in s. 766.311 .

1 2 / See § 766.309(1)(a), Fla. Stat., and Ben nett v. St.

Vincent's Med . Ctr. , 36 Fla. Weekly § 366, 2011 Fla. LEXIS 2278

(Fla. Sept. 22, 2011).

1 3 / See § 766.30 6 , Fla. Stat.

Tolling of statute of limitations. -- The

statute of limitations with respect to any

civil action that may be brought by, o r on

behalf of, an injured infant allegedly

arising out of, or related to, a birth -

related neurological injury shall be tolled

by the filing of a claim in accordance with

ss. 766.301 - 766.316 , and the time such claim

is pendi ng or is on appeal shall not be

computed as part of the period within which

such civil action may be brought.

1 4 / See § 95.11(4)(b), Fla. Stat.

An action for medical malpractice shall be

commenced within 2 years from the time the

incident giving rise to the action occurred

or within 2 years from the time the incident

is discovered, or should have been

discovered with the exercise of due

diligence; however, in no event shall the

action be commenced later than 4 years from

the date of the incident or occur rence out

of which the cause of action accrued, except

that this 4 - year period shall not bar an

action brought on behalf of a minor on or

before the childÓs eighth birthday. An

Ðaction for medical malpracticeÑ is defined

as a claim in tort or in contract for

damages because of the death, injury, or

monetary loss to any person arising out of

any medical, dental, or surgical diagnosis,

treatment, or care by any provider of health

care. The limitation of actions within this

subsection shall be limited to the health

care provider and persons in privity with

the provider of health care. In those

actions covered by this paragraph in which

it can be shown that fraud, concealment, or

intentional misrepresentation of fact

prevented the discovery of the injury the

period of limitations is extended forward 2

years from the time that the injury is

discovered or should have been discovered

with the exercise of due diligence, but in

no event to exceed 7 years from the date the

incident giving rise to the injury occurred ,

except that this 7 - year period shall not bar

an action brought on behalf of a minor on or

before the childÓs eighth birthday. This

paragraph shall not apply to actions for

which ss. 766.301 - 766.316 provide the

exclusive r emedy.

15/ See §§ 766.304 and 766.309, Fla. Stat.

COPIES FURNISHED :

(Via Certified Mail)

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

(Certified Mail No. 7011 1570 0001 1540 5147)

Marc J. Schleier, Esquire

Fowler, White, Burnett, P.A.

Espirito Santo Plaza, 14th Floor

1395 Brickell Avenue

Miami, Florida 33131 - 3302

(Certified Mail No. 7011 1570 0001 1540 5154)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(Certified Mail No. 7011 1570 0001 1540 5161)

Eric K. Gressman, Esquire

Dade County Attorney ' s Office

111 Northwest 1st Street, Suite 2810

Miami, Florida 33128

(Certified Mail No. 7011 1570 0001 1540 5178)

Kenney Shipley, Exe cutive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0001 1540 5185)

Jackson Memorial Hospital

1611 Northwest 12th Avenue

Miami, Fl orida 33136

(Certified Mail No. 7011 1570 0001 1540 5192) )

Lucia Gaitan, M.D.

7867 North Kendall Drive

Second Floor

Miami, Florida 33156

(C ertified Mail No. 7011 1570 0001 1540 5208) )

Amie Rice, Investigation Manager

Consumer Services Unit

Departme nt of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7011 1570 0001 1540 5215)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahasse e, Florida 32308

(Certified Mail No. 7011 1570 0001 1540 5222)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

by appeal to the District Court of Appeal pursuant to section

766.311(1), Florida Statute s. Review proceedings are governed

by the Florida Rules of Appellate Procedure. Such proceedings

are commenced by filing the original notice of administrative

appeal with the agency clerk of the Division of Administrative

Hearings within 30 days of rendi tion of the order to be

reviewed, and a copy, accompanied by filing fees prescribed by

law, with the clerk of the appropriate District Court of Appeal.

See § 766.311(1), Fla. Stat., and Fla. Birth - Related

Neurological Injury Comp. Ass'n v. Carreras , 598 So . 2d 299

(Fla. 1st DCA 1992).