12-003890N Daniel Courtney Mcgrane And Heather Louise Mcgrane, On Behalf Of And As Parents And Natural Guardians Of Matthew Eugene Mcgrane, A Minor vs. Florida Birth- Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, June 27, 2013.

Summary: Child's birth weight less than minimum required of a single gestation (2,500 grams) under the Florida Birth-Related Neurological Injury Compensation Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANIEL COURTNEY MCGRANE AND

HEATHER LOUISE MCGRANE, on

behalf of and as parents and

natural guardians of MATTHEW

EUGENE MCGRANE, a minor ,

Petitioners ,

vs. Case No. 12 - 3890N

FLORIDA BIRTH - RELATED

NEUROLOGICAL IN JURY COMPENSATION

ASSOCIATION ,

Respondent,

and

ORLANDO HEALTH, INC., d/b/a

WINNIE PALMER HOSPITAL FOR WOMEN

& BABIES AND AMANPREET BHULLAR,

M.D.,

Intervenor s .

/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on June 3 ,

2013.

STATEMENT OF THE CASE

On November 3 0 , 2012, Petitioner s, Daniel Courtney McGrane

and Heather Louise McGrane , on behalf of and as parents and

natural guardians of Matthew Eugene McGrane (Matthew ), a minor,

filed a Petition for Benefits Pursuant to Florida Statute

Section 766.301 et seq. (Petition) with the Div ision of

Administrative Hearings (DOAH) for a determination of

compensability under the Florida Birth - Related Neurological

Injury Compensation Plan (Plan). The Petition named

Amanpreet Singh Bhullar, M.D. , as the physician who provided

obstetric services for the birth of Matthew. The Petition

stated that Matthew was born at Winnie Palmer Hospital for Women

and Babies , in Orlando, Florida , on July 7, 2010 .

DOAH served NICA with a cop y of the Petition on December 5 ,

2012.

On December 1 7, 2012, Dr. Bhullar and Orlando Health, Inc. ,

d/b/a Winnie Palmer Hospital for Women and Babies filed

Interveners' Petition for Leave to Intervene. By Order dated

January 3 , 2013, Dr. Bhullar and Winnie Palmer Hospital for

Women and Babies were granted leave to intervene.

O n June 3 , 2013, NICA filed a Motion for Summary Final

Order, requesting that a s ummary f inal o rder be entered finding

that the claim was not compensable because Matthew did not meet

the requisite minimum statutory birth weight as required by

section 766.30 2(2), Florida Statutes.

As of the date of this Summary Final Order of Dismissal,

neither Petitioners nor Intervenors have filed a response to the

Motion for Summary Final Order.

FINDINGS OF FACT

1. Matthew Eugene McGrane w as born on July 7 , 20 10 , at

Winni e Palmer Hospital for Women and Babies in Orlando, Florida.

2. Based on his hospital records , Matthew weighed 1,415

grams at birth. He was a single gestation.

CONCLUSIONS OF LAW

3. The Division of Administrative Hearings has

jurisdiction over the part ies to and the subject matter of these

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

4. The Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims" relating t o births

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

5. 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 DOAH.

§§ 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

t o the issue of whether the injury is a birth - related

neurological injury." § 766.305(4), Fla. Stat.

6. NICA has determined that Matthew does not have a claim

that is compensable under the Plan and has filed a Motion for

Summary Final Order, requesting th at an order be entered finding

that the claim is not compensable.

7. In ruling on the motion, the Administrative Law Judge

must make the following determination based upon the available

evidence:

(a) Whether the injury claimed is a

birth - related neurolog ical 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 perm anently

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).

§ 766.309(1), Fla. Stat.

8. The term "birth - related neurological injury " is defined

in section 766.302(2) as follows:

"Birth - related neurological injury"

means 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 weighi ng

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 menta lly and physically

impaired.

9. The evidence, which is not refuted, established that

Matthew was a single gestation and did not weigh at least 2,500

grams at birth. Thus, Matthew has not sustained a birth - related

neurological injury because he did not meet the minimum

statutory weight as set forth in the definition of "birth -

related neurological injury," in section 766.302(2).

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is ORDERED that the Petition filed by Daniel Cou rtney

McGrane and Heather Louise McGrane , on behalf of and as parents

and natural guardians of Matthew Eugene McGrane , is dismissed

with prejudice.

DONE AND ORDERED this 27th day of June , 2013, 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 27th day of June , 2013 .

COPIES FURNISHED :

(Via Certified Mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallah assee, Florida 32308

(Certified Mail No. 7012 1010 0001 8357 7267)

Carl Rufus Pennington, Esquire

Carl Rufus Pennington, III, P.A.

Suite 609

320 North 1st Street

Jacksonville Beach, Florida 32250

(Certified Mail No. 7012 1010 0001 8357 7274)

Joseph P. Menello, Esquire

Wicker, Smith, O'Hara, McCoy and Ford, P.A.

Post Office Box 2753

Orlando, Florida 32802 - 2753

(Certified Mail No. 7012 1010 0001 8357 7281)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way , Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7012 1010 0001 8357 7298 )

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail N o. 7012 1010 0001 8357 7304 )

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 governe d

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 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 1992).