14-000309N Jennifer Stuart And Vyacheslav Gutkin, Individually, And As Parents Of Johnathan Stuart Gutkin, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, April 24, 2014.

Summary: Participating physician had not paid annual assessment for participation in NICA Plan; thus did not meet the definition of a participating physician.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JENNIFER STUART AND VYACHESLAV

GUTKIN, individually, and as

parents of JOHNATHAN STUART

GUTKIN, a minor ,

Petitioners,

vs. Case No. 14 - 0309N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

ADVENTIST HEALTH SYSTEM/SUNBELT,

INC., d/b/a WINTER PARK MEMORIAL

HOSPITAL,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Res pondent's

Motion for Summary Final Order, filed March 12, 2014.

STATEMENT OF THE CASE

On January 6, 2014 , Petitioners, Jennifer Stuart and

Vyacheslav Gutkin, individually and as parents of

Johnathan Stuart Gutkin (Johnathan), a minor, filed a Petition

for Determination of Compensability Pursuant to Florida Statute

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 John Spencer

Albritton, M.D., as the physician who provided obstetric services

at the birth of Johnathan on September 25 - 26, 2012, at Winter

Park Memorial Hospital, located in Winter Park, Florida.

DOAH served the Florida Birth - R elated Neurological Injury

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

January 23, 2014. On March 13, 2014, DOAH received a receipt

from the United States Postal Service that Winter Park Memorial

Hospital had been served with a copy of the Petition.

On February 10, 2014, Dr. Albritton filed a Motion to

Intervene, stating that he provided obstetrical care at the birth

of Johnathan and that he was a participant in the Plan. A

telephonic hearing was held on the Motion to Intervene on

Febru ary 27, 2014. During the hearing, counsel for Dr. Albritton

acknowledged that it did not appear that Dr. Albritton was a

participant in the Plan. By Order dated February 28, 2014,

Dr. Albritton was given leave to amend his Motion to Intervene on

or befor e March 31, 2014. Dr. Albritton did not file an amended

motion to intervene.

On March 24, 2014, Adventist Health System/Sunbelt, Inc.,

d/b/a Winter Park Memorial Hospital filed a Petition for Leave to

Intervene, which was granted by Order dated April 3, 2 014. An

Order was entered on April 3, 2014, extending the time for

Intervenor to respond to RespondentÓs Motion for Summary Final

Order. On April 17, 2014, Intervenor filed a response, stating

that it had no basis for an objection to the granting of the

Motion for Summary Final Order.

On March 12, 2014, NICA filed a Motion for Summary Final

Order, stating that, at the time of JohnathanÓs birth,

Dr. Albritton was not a "participating physician" as that term is

defined by section 766.302(7), Florida Statute s. On April 23,

2014, Petitioners filed a Notice of Non - objection to NICA's

Motion for Summary Final Order, stating Petitioners had no

objection to the granting of the motion.

FINDINGS OF FACT

1. The Petition named Dr. Albritton as the physician

providin g obstetric services at JohnathanÓs birth on

September 25 - 26, 2012.

2. Attached to the Motion for Summary Final Order is an

affidavit 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 physicians 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 of the Five

Thousand Dollar ($5,000) assessment pursuant

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

Further, 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., Florida

Statutes, by all non - participating, non -

exempt physicians.

* * *

As payments of the requisite assessmen ts are

received, NICA compiles data in the "NICA

CARES" database for each physician. The

"NICA CARES physician payment history/report"

attached hereto for Dr. John S. Albritton

indicates that in the year 2012, the year in

which Dr. Albritton participated in the

delivery of John a th a n Gutkin, as indicated in

the Petitioners' Petition for Benefits,

Dr. Albritton did not pay the Five Thousand

Dollar ($5,000) assessment required for

participation in the Florida Birth - Related

Neurological Injury Compensation Pla n.

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 766.3 14(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. Al britton in relation to an exempt status

for the year 2012. To the contrary, the

attached "NICA CARES p hysician payment

history/report" shows that in 2012,

Dr. Albritton paid the Two Hundred and Fifty

Dollar ($250) assessment required by Section

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

participating, non - exempt licensed

physicians.

3. The NICA CARES st atement attached to the affidavit of

Mr. Daughtry supports the representations made in the affidavit.

4. Neither Petitioner s nor Intervenor has offered any

exhibits, affidavits or any other evidence refuting the affidavit

of Mr. Daughtry, which shows that Dr. Albritton had not paid the

assessment for a participating physician in 2012. Both

Petitioners and Intervenor have stated that they have no

objection to the granting of the Motion for Summary Final Order.

5. At the time of the birth of Johnathan , Dr. Albritton was

not a participating physician in the Plan.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction

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

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

7. The Plan was es tablished 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.

8. The injured infant, her o r 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 Bi rth - Related 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 iss ue of whether the injury

is a birth - related 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 th at the 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 administrat ive law judge in

accordance with the provisions of chapter 120, Florida Statutes.

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

10. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

avail able 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 dep rivation 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

pa rticipating 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

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.

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

defined by section 766.302(7), to mean:

[A] physic ian 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

birt h - related neurological injury

compensation plan for the year in which the

injury occurred.

12. Dr. Albritton had not paid an assessment of $5,000 for

a participating physician at the time Johnath a n was born;

therefore, Dr. Albritton was not a participati ng physician at the

time of Johnath a nÓs birth. No evidence was submitted that, at

the time of John a th a n's birth, Dr. Albritton was exempt from

paying the $5,000 assessment required for participating

physicians. The evidence established that at the time o f

Johnath a nÓs birth, Dr. Albritton had elected to be a non -

participating physician by paying the assessment of $250.

13. The obstetrical services provided during Jo h n a th a nÓs

birth were not provided by a participating physician. Thus, the

claim of Johnath a n is not compensable under the Plan.

CONCLUSION

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 prejudice.

DONE AND ORDERED this 24th day of April , 2014 , 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 24th day of April , 2014 .

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. 7012 3050 0000 1250 5371)

Ronald S. Gilbert, Esquire

Colling, Gilbert, Wright and Carter, LLC

Suite 830

801 North Orange Avenue

Orlando, Florida 32801

( Certified Mail No. 7012 3050 0000 1250 5388 )

Robyn L. Sztyndor, Esquire

Lubell & Rosen, LLC

200 South Andrews Avenue

Fort Lauderdale, Florida 33301

(Certified Mail No. 7012 3050 0000 1250 5395)

Travase Lloyd Erickson, Esquire

S aalfield, Shad, Stokes, Inclan,

Stoudemire and Stone, P.A.

245 Riverside Avenue , Suite 400

Jacksonville, Florida 32202

( Certified Mail No. 7012 3050 0000 1250 5401 )

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 3050 0000 1250 5418)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Cert ified Mail No. 7012 3050 0000 1250 5425)

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 proceeding s are 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 D CA

1992).