12-000851N Donald Hawley And Camille Hawley, Individually And As Parents Of River Hawley, Deceased vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, June 5, 2012.

Summary: Physician providing obstetrical services was not a "participating physician."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD HAWLEY AND CAMILLE )

HAWLEY, individually and as )

parents of RIVER HAWLEY, )

deceased , )

)

Petitioners , )

)

vs. ) Case No. 12 - 0851N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent, )

)

and )

)

DOUGLAS WINGER, M.D., AND )

OBSTETRICS & GYNECOLOGY )

ASSOCIATES, P.A., )

)

Intervenors . )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's

Motion for Summary Final Order, filed on April 30, 2012.

STATEMENT OF THE CASE

On March 8, 2012, Petitioners, Donald Hawley and

Camille Hawley, individually and as parents of River Hawley

(River), deceased, filed a Petit ion for Determination of

Compensability (Petition) with the Division of Administrative

Hearings (DOAH) for compensation under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan). The Petition

named Douglas Winger, M.D., as the physician who provided

obstetric services at the birth of River at Florida Hospital

Celebration.

DOAH served the Florida Birth - Related Neurological Injury

Compensation Association (NICA) with a copy of the Petition on

March 15, 2012, and served Florida Hospital - Cel ebration Health

on March 16, 2012. Dr. Winger was served with a copy of the

Petition in March 2012, and a return receipt was returned to

DOAH on March 21, 2012.

On March 29, 2012, Dr. Winger and Obstetrics & Gynecology

Associates, P.A., who is Dr. Winger' s employer, filed a Motion

to Intervene, stating that they are currently and were

participants in the Plan at the time of the injury alleged by

Petitioners. An Order Granting Petition to Intervene was

entered on April 5, 2012.

On April 30, 2012, NICA fi led a Motion for Summary Final

Order, stating that, at the time of River's birth, Dr. Winger

was not a "participating physician" as that term is defined by

section 766.302(7), Florida Statutes. No response to the motion

was filed by either Petitioners or Intervenors.

On May 16 , 2012, an Order to Show Cause was entered

requiring Petitioners and Intervenors to show cause on or before

May 2 9 , 2012, why the motion should not be granted and stating

that failure to show cause would result in the issuance of a

s u mmary f inal o rder of d ismissal. No response to the Order to

Show Cause has been filed.

FINDINGS OF FACT

1. The Petition named Dr. Winger as the physician

providing obstetric services at River's birth on July 25, 2010.

2. Attached to the motion is an aff idavit of NICA's

custodian of records, Tim Daughtry, attesting to the following,

which has not been refuted:

One of my official duties as Custodian of

Records is to maintain NICA's official

records relative to the status of physicians

as participating phys icians in the Florida

Birth - Related Neurological Injury

Compensation Plan who have timely paid the

Five Thousand Dollar ($5,000) assessment

prescribed in Section 766.314(4)(c), Florida

Statutes, and the status of physicians who

may be exempt from payment o f the Five

Thousand Dollar ($5,000) assessment pursuant

to Section 766.314(4)(c), Florida Statutes.

I maintain NICA's official records with

respect to the payment of the Two Hundred

Fifty Dollar ($250.00) assessment required

by Section 766.314(4)(b)1., Fl orida

Statutes, by all non - participating, non -

exempt physicians.

* * *

As payments of the requisite assessments are

received, NICA compiles data in the "NICA

CARES" database for each physician. The

"NICA CARES physician payment

history/report" a ttached hereto for

Dr. Douglas Winger indicates that in the

year 2010, the year in which Dr. Winger

participated in the delivery of River

Hawley, as indicated in the Petition for

Benefits, Dr. Winger did not pay the Five

Thousand Dollar ($5,000) assessment required

for participation in the Florida Birth -

Related Neurological Injury Compensation

Plan.

Further, it is NICA's policy that if a

physician falls within the exemption from

payment of the Five Thousand Dollar ($5,000)

assessment due to their status as a resident

physician, assistant resident physician or

intern as provided in Section 766.314(4)(c),

Florida Statutes, annual documentation as to

such exempt status is required to be

provided to NICA. NICA has no records with

respect to Dr. Winger in relat ion to an

exempt status for the year 2010. To the

contrary, the attached "NICA CARES physician

payment history/report" shows that in 2010,

Dr. Winger paid the Two Hundred and Fifty

Dollar ($250) assessment required by Section

766.314(4)(b)1., Florida Stat utes, for non -

participating, non - exempt physicians.

3. The NICA CARES statement attached to the affidavit of

Mr. Daughtry support s the representations made in the affidavit.

4. No party has offered any exhibits, affidavits or any

other evidence refuting the affidavit of Mr. Daughtry, which

shows that Dr. Winger was not a participating physician in the

Plan at the time of River's birth. Neither Petitioners nor

Intervenors have requested additional discovery time, and

Petitioners have not moved for leave to amend the Petition to

name any additional physician as rendering obstetrical services

in connection with River's birth.

5. Dr. Winger was not a participating physician at the

time of River's birth on July 25, 2010.

CONCLUSIONS OF LAW

6. The Division o f Administrative Hearings has

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

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

7. The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

pu rpose 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.

8. 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 - Related Neurological

Injury Compensa tion 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 - rela ted neurological injury." § 766.305(4), Fla.

Stat.

9. 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 administ rative 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 pr ovisions of chapter 120, Florida

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

10. 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 defined in s.

766.303(2).

(b) Whether obstetrical services wer e

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 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 an d that

obstetrical services were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

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

defined by section 766.302(7), to mean:

[A] physician licensed in Florida to

practice med icine 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 compensat ion plan for

the year in which the injury occurred.

12. Section 766.314 provides that beginning January 1,

1990, physicians who are not participating physicians in the

Plan shall pay an annual assessment of $250, unless they are

excluded from the assessm ent as provided in section

766.314(4)(b)4. Physicians participating in the plan are

assessed $5,000 annually, unless specifically excluded.

§ 766.314(4)(c), Fla. Stat.

13. Dr. Winger paid an assessment of $250 for the year

2010, therefore, he is not elig ible to be a participating

physician. No evidence was submitted that Dr. Winger was

excluded from paying the $5,000 assessment required for

participating physicians.

14. The obstetrical services provided during River's birth

were no t provided by a partic ipating physician. Thus, the death

of River is not compensable under the Plan.

C ONCLUSION

Based on the Findings of Fact and Conclusions of Law, it is

ORDERED that Respondent's Motion for Summary Final Order is

granted, and the Petition is dismissed with p rejudice.

DONE AND ORDERED this 5th day of June , 2012 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

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 5th day of June, 2012 .

COPIES FURNISHED :

(Via Certified Mail)

Ronald S. Gilbert, Esquire

Colling, Gilbert, Wright and Carter, LLC

Suite 830

801 North Orange Avenue

Orlando, Florida 32801

(Certified Mail No. 7011 1570 0001 1540 6441)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

236 0 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0001 1540 6069)

Ariel Sofro, Esquire

Lubell & Rosen

Museum Plaza, Sixth Floor

200 South Andrews Avenue

Fort Lauderdale, Florida 33301

(Certified Mail No. 7011 1570 00 01 1540 6076)

Florida Hospital - Celebration Health

400 Celebration Place

Celebration, Florida 34747

(Certified Mail No. 7011 1570 0001 1540 6083)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7011 1570 0001 1540 6090)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0001 1540 6106)

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 are governed

by th e 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 rendition of the order to be

reviewed, and a c opy, 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).