13-001157N Vonshelle Brothers, Individually And As Parent Of Iyonna Hugley, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, September 6, 2013.

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

Case No. 13-1157N

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VONSHELLE BROTHERS, individually

and as parent of IYONNA HUGLEY,

a minor, SUMMARY FINAL ORDER OF DISMISSAL

Petitioner,

vs.

FLORIDA BIRTH-RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

WUESTHOFF HEALTH SYSTEMS, INC.,

Intervenor.

/

This cause came on for consideration upon a Motion for

Summary Final Order and a Joint Stipulation of Facts filed by

Respondent, Florida Birth-Related Neurological Injury

Compensation Association (NICA), on August 30, 2013.

STATEMENT OF THE CASE

On March 20, 2013, Petitioner, Vonshelle Brothers,

individually and as parent of Iyonna Hugley (Iyonna), a minor,

filed a Petition for Determination of Compensability Pursuant to

Florida Statutes Section 766.301 et seq. (Petition) with the

Division of Administrative Hearings (DOAH) for a determination of

compensability under the Florida Birth-Related Neurological

Injury Compensation Plan (Plan). The Petition named

Mark Sargent, M.D., as the physician who provided obstetric

services for the birth of Iyonna. The Petition stated that

Iyonna was born at Wuesthoff Medical Center, in Rockledge,

Florida.

DOAH served NICA and Dr. Sargent with copies of the Petition

on April 1, 2013. DOAH served a copy of the Petition on

Wuesthoff Medical Center on April 29, 2013.

On May 28, 2013, Wuesthoff Health Systems, Inc., filed a

Petition for Leave to Intervene. By Order dated June 11, 2013,

Wuesthoff Health Systems, Inc., was granted leave to intervene.

On August 30, 2013, NICA filed a Motion for Summary Final

Order, requesting that a Summary Final Order be entered finding

that the claim was not compensable because Iyonna did not meet

the requisite minimum statutory birth weight as required by

section 766.302(2), Florida Statutes. A Joint Stipulation of

Facts was included with the motion as Exhibit A.

FINDINGS OF FACT

1. The parties have stipulated to the following facts.

2. Iyonna Hugley was born on October 14, 2010, at 1950

hours at Wuesthoff Medical Center, Melbourne, Florida.

3. Mark Sargent, M.D., provided obstetrical services during

the delivery of Iyonna. Dr. Sargent is a participating physician

in the Plan as defined in section 766.302(7).

4. At birth, Iyonna weighed 2,347 grams and was delivered

from a single gestation.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of these proceedings.

§§ 766.301-766.316, Fla. Stat.

6. The Plan was established 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.

7. 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.

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.

8. NICA has determined that Iyonna does not have a claim

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

Summary Final Order, requesting that an order be entered finding

that the claim is not compensable.

9. 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 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).

§ 766.309(1), Fla. Stat.

10. 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 weighing 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 mentally

and physically impaired.

11. The stipulation of the parties has established that

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

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

neurological injury because she 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 Vonshelle Brothers,

individually and as parent of Iyonna Hugley, is dismissed with

prejudice.

DONE AND ORDERED this 6th day of September, 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

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of September, 2013.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7013 1090 0002 4071 3732)

Ronald S. Gilbert, Esquire

Colling, Gilbert, Wright and Carter, LLC

801 North Orange Avenue, Suite 830

Orlando, Florida 32801

(Certified Mail No. 7013 0600 0002 2576 0779)

Joseph P. Menello, Esquire

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

Post Office Box 2753

Orlando, Florida 32802-2753

(Certified Mail No. 7013 0600 0002 2576 0786)

Martin P. McDonnell, Esquire

Rutledge, Ecenia, and Purnell, P.A.

119 South Monroe Street, Suite 202

Tallahassee, Florida 32301

(Certified Mail No. 7013 0600 0002 2576 0793)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7013 0600 0002 2576 0809)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7013 0600 0002 2576 0816)

Mark Sargent, M.D.

1705 Berglund Lane, Suite 102

Viera, Florida 32940

(Certified Mail No. 7013 0600 0002 2576 0823)

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

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).