11-005270N Kimberly Mcmonigle, On Behalf Of And As Parent And Natural Guardian Of Devlyn Diering, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, January 9, 2012.

Summary: Indisputably, physicians who provided obstetrical services at infant's birth were not "participating physician(s)." Motion for Summary Final Order of Dismissal is granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIMBERLY MCMONIGLE, on behalf )

of and as parent and natural )

guardian of DEVLYN DIERING, a )

minor , )

)

Petitioner , )

)

vs. ) Case No. 11 - 5270N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respon dent, )

)

and )

)

ORLANDO HEALTH, INC., d/b/a )

WINNIE PALMER HOSPITAL FOR )

WOMEN & BABIES, )

)

Intervenor . )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's

Motion for Summary Final Order, filed November 28, 2011.

STATEMENT OF THE CASE

1. On October 11, 2011, Kimberly McMonigle, on behalf of

and as parent and natural guardian of Devlyn Diering, a minor,

born Novemb er 8, 2006, filed a petition (claim) with the

Division of Administrative Hearings (DOAH) for compensation

under the Florida Birth - Related Neurological Injury Compensation

Plan (Plan). The petition named only Oliver K. Bayouth, M.D.,

Norma Waite, M.D., and Winnie Palmer Hospital.

2. DOAH served the Florida Birth - Related Neurological

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

on October 14, 2011, and served Oliver K. Bayouth, M.D., and

Norma Lillia Polyn Waite, M.D., respectively , on Oc tober 17,

2011. N o signed certified mail receipt has been received by

DOAH from Winnie Palmer Hospital , but on November 14, 2011,

Orlando Health, Inc., d/b/a Winnie Hospital for Women & Babies

filed a Petition for Leave to Intervene, which was granted by an

Order entered December 20, 2011. No other persons or entities

have moved to intervene.

3. On November 28, 2011, NICA had filed a Motion for

Summary Final Order , the predicate for which was its assertion

that, indisputably, the only physicians (Olive r K. Bayouth,

M.D., and Norma Waite, M.D.) named in the petition as having

provided obstetrical services at the birth of Devlyn Diering

were not "participating physicians," as defined by law , at the

time of the birth. The motion further stated that NICA's search

of the medical records submitted with the Petition/Claim had

revealed the names of two additional physicians associated with

Devlyn's birth, and that these physicians, Douglas Hardy, M.D.,

and James R. Lawrence, M.D., also were not "participating

p hysicians." Attached to the motion was an affidavit of NICA's

Custodian of Records , Tim Daughtry, attesting to the fact that

The "NICA CARES" physician payment

history/report attached hereto for Dr. Norma

Waite and Dr. Oliver Bayouth indicate that

in the year 2006, the year in which

Drs. Waite and Bayouth participated in the

delivery of Devlin [sic] Diering, as

indicated in the Petitioner's Petition for

Benefits, Drs. Waite and Bayouth did not pay

the Five T housand D ollar ($5,000) assessment

required for participati o n in the Florida

Birth - Related Neurological Injury

Compensation Plan. Additionally provided

records indicate that Dr. Douglas Hardy and

Dr. James S. Lawrence participat ed in the

delivery of Devlin [sic] Diering and also

did not pay the Five T h ousand D ollar

($5,000) assessment required for

participation in the Florida Birth - Related

Neurological Injury Compensation Plan

* * *

NICA has no record with re spect to

Drs. Waite, Bayouth, Hardy, and Lawrence in

relation to an exempt status for the y ear

2006. To the contrary, the attached " NICA

CARES physician payment history/report, "

shows that in 2006, Drs. Waite, Bayouth,

Hardy, and Lawrence paid the Two H undred and

F ifty D ollar ($250) assessment required by

Section 766.314(4)(b)1., Florida Statut es,

for non - participating non - exempt licensed

physicians.

4. The attached records are in accord with the affidavit's

representati ons .

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

Summary Final Order. Consequently, an Order to Show Cause wa s

entered on December 16, 2011, which provided:

On November 28, 2011, Respondent served

a Motion for Summary Final Order. To date,

Petitioner has not responded to the motion.

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

106.204(4). Nevertheless, and

notwithstan ding that she has been accorded

the opportunity to do so, it is

ORDERED that by December 30, 2011,

Petitioner shall file with the Division good

cause in writing, if any she can, why the

relief requested by Respondent should not be

granted, thereby dispos ing the case against

Petitioner.

6 . As previously noted in paragraph 2, Orlando Health,

Inc., d/b/a Winnie Palmer Hospital for Women & Babies was

permitted to intervene by a December 20, 2011, Order.

Therefore, in an abundance of caution , a Corrected Or der to Show

Cause was entered on December 20, 2011, which provided:

Upon consideration of Orlando Health

Inc., d/b/a Winnie Palmer Hospital for Women

& Babies' Petition for Leave to Intervene

and the Order of today's date granting same,

it is

ORDERED tha t:

By January 5, 2012, Petitioner and

Intervenor shall file with the Division good

cause , in writing, if any they can, why the

Respondent's Motion for Summary Final Order

served November 28, 2011, shall not be

granted, thereby disposing the case against

Petitioner.

7 . No timely response in opposition to Respondent's

November 28, 2011, Motion for Summary Final Order or the

December 20, 2011, Order has been filed. More specifically, no

party has offered affidavits or any evidence to cast doubt on

NICA's showing that the p hysician s named in the Petition and

those otherwise named in the medical records submitted with the

Petition were not participating physicians in the Plan at the

time of Devlyn's birth. Also, n either Petitioner nor Intervenor

has reques ted additional discovery time, and Petitioner ha s not

moved for leave to amend the petition to name any additional

physician as rendering obstetrical services in connection with

Devlyn's birth.

8 . Therefore, it is concluded that the Motion for Summary

F inal Order , with its supporting documentation, is undisputed ,

and that NICA has affirmatively demonstrated that there were no

participating physicians at Devlyn's birth.

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

provided obstetrical servic es connected with Devlyn's birth were

not "participating physician[s]" as the term is defined by

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

Final Order is, for reasons appearing more fully in the

Conclusions of Law, well - founded. 1/

CONCLU SIONS OF LAW

10 . 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 1 . The Florida Birth - Related Neurological Injury

Compensation Plan was establis hed 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 2 . 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 the Division of Administrative Hearings. §§ 766.302(3),

766.303(2), and 766.305(1), Fla. Stat. The Florida Birth -

Re lated 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 3 . 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 th e 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 l aw

judge in accordance with the provisions of c hapter 120, F lorida

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

1 4 . 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

depriv ation 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 part icipating 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 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 by s ection 766.302(7), to mean:

. . . a phys ician 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 bi rth - related

neurological injury compensation plan for

the year in which the injury

occurred . . . .

1 6 . Here, indisputa bly, all those shown to have provided

obstetrical services during Devlyn's birth were not

"participating 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, Devlyn does not qualify for coverage

under the Plan.

1 7 . Where, as here, the administrative law judge

determines that ". . . obstetrical s ervices 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 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 Statement of the Case and Conclusions of Law,

it is

ORDERED that Respondent's Motion for Summary Final Order is

g ranted, and the petition for compensation filed by

Kimberly McMonigle, on behalf of and as parent and natural

guardian of Devlyn Diering, a minor, is dismissed with

prejudice.

DONE AND ORDERED this 9th day of January , 2012 , in

Tallahassee, Leon County, Fl orida.

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 Filing (850) 921 - 6847

www.doah.state .fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of January , 2012 .

ENDNOTE

1/ Where, 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 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)

Kimberly McMonigle

950 Irma Way

St. Augustine, Florida 32086

(Certified Mail No. 7010 3090 0000 0717 2380)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7010 3090 0000 0717 2397)

Bradley Paul Blyst one, Esquire

Marshall, Dennehey, Warner,

Coleman and Goggin

315 East Robinson Street, Suite 550

Orlando, Florida 32801

(Certified Mail No. 7010 3090 0000 0717 2403)

Oliver K. Bayouth, M.D.

94 Underwood Street

Orlando, Florida 32806 - 1110

(Certified Mai l No. 7010 3090 0000 0717 2410)

Norma Lillia Polyn Waite, M.D.

6000 Turkey Lake Road, Suite 112

Orlando, Florida 32819

(Certified Mail No. 7010 3090 0000 0717 2427)

Am ie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7010 3090 0000 0717 2434)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certi fied Mail No. 7010 3090 0000 0717 2441)

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 Statutes. Review proceedings a re governed

by the Florida Rules of Appellate Procedure. Such proceedings

are commenced by filing the original n otice of a dministrative

a ppeal with the a gency c lerk of the Division of Administrative

Hearings within 30 days of rendition 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 1 992).