14-000723N Shakeitriyia Edwards, On Behalf Of And As Parent And Natural Guardian Of, Desmond Govan, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, May 16, 2014.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHAKEITRIYIA EDWARDS, on behalf

of and as parent and natural

guardian of, DESMOND GOVAN, a

minor,

Petitioner,

vs. Case No. 14 - 0723N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Resp ondent,

and

ORLANDO HEALTH, INC., d/b/a

WINNIE PALMER HOSPITAL FOR WOMEN

AND BABIES,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's

M otion for Summary Final Order, filed on April 28, 2014.

STATEMENT OF THE CASE

On February 12, 2014, Petitioner, Shakeitriy i a Edwards on

behalf of and as parent and natural guardian of Desmond Govan

(Desmond), a minor, filed a Petition for Benefits Pursuan t to

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

Division of Administrative Hearings (DOAH) for compensation under

the Florida Birth - Related Neurological Injury Compensation Plan

(Plan). The Petition named Dennis Szurkus, M.D., as the

phys ician who provided obstetric services at the birth of Desmond

at Winnie Palmer Hospital located in Orlando, Florida, on

February 14, 2009.

DOAH served the Florida Birth - Related Neurological Injury

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

February 19, 2014. Winnie Palmer Hospital and Dr. Szurkus were

served with copies of the Petition on February 20, 2014.

On March 10, 2014, Orlando Health, Inc. , d/b/a Winnie Palmer

Hospital for Women and Babies filed a Petition for Leave to

Interven e, which was granted by Order dated March 27, 2014. As

of the date of this Summary Final Order of Dismissal, Dr. Szurkus

has not petitioned to intervene in this proceeding.

On April 28, 2014, NICA filed a Motion for Summary Final

Order, stating that, at t he time of DesmondÓs birth, Dr. Szurkus

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

section 766.302(7), Florida Statutes (2012). Neither Petitioner

nor Intervenor ha s filed a response to the Motion for Summary

Final Order.

FINDINGS OF F ACT

1. The Petition named Dr. Szurkus as the physician

providing obstetric services at DesmondÓs birth on February 14,

2009.

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 NICAÓs official

records relative to the status of physicians

as participating physicians in the Florida

Birth - Related Neurological Compensation Plan

wh o have timely paid the Five Thousand Dollar

($5,000.00) 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

($5,000.00) 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 physicia ns.

* * *

As payments of the requisite assessments are

received, NICA compiles data in the ÐNICA

CARESÑ database for each physician. The

ÐNICA CARES physician payment history/reportÑ

attached hereto for Dr. Dennis Szurkus

indicates that on Febru ary 14, 2009, the date

in which Dr. Szurkus participated in the

delivery of Desmond Govan, as indicated in

the PetitionerÓs Petition for Benefits,

Dr. Szurkus did not pay the Five Thousand

Dollar ($5,000) assessment required for

participation in the Florid a Birth - Related

Neurological Injury Compensation Plan until

September 21, 2009.

Further, it is NICAÓs 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

phys ician, 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. Szurkus in relation to an exemp t status

for the year 2009.

3. The physician payment history/report for Dr. Szurkus

supports Mr. DaughtryÓs affidavit.

4. Petitioner ha s not offered any exhibits, affidavits or

any other evidence refuting the affidavit of Mr. Daughtry, which

shows that on February 14, 2009, Dr. Szurkus had not paid his

$5,000 assessment for 2009.

5. At the time of the birth of Desmond, Dr. Szurkus was not

a participating physician in the Plan.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdic tion

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

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

7. 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.

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 compen sation with the Division of

Administrative Hearings. §§ 766.302(3), 766.303(2), and

766.305(1), Fla. Stat. The Florida Birth - Related Neurological

Injury Compensation Association, which administers the Plan, has

"45 days from the date of service of a comp lete 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.

9. If NICA determines that the injury al leged 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 administrative law judge to whom the claim has been

assigned. § 766.305(7), Fla. Stat. If, on the o ther 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 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

available evidence:

(a) Whether the injury claimed is a birth -

related neurological injury. If the claimant

has demonstrated, to the sat isfaction 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 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

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

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] physician 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

birth - related neurological injury

compensation plan for the year in which the

injury occurred.

12. Dr. Szurkus had not paid his assessm ent of $5,000 at

the time Desmond was born; therefore, he was not a participating

physician at the time of DesmondÓs birth. No evidence was

submitted that, at the time of DesmondÓs birth, Dr. Szurkus was

excluded from paying the $5,000 assessment required for

participating physicians.

13. The obstetrical services provided during DesmondÓs

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

claim of Desmond is not compensable under the Plan.

CONCLUSION

Based on the Findings of Fact and Conclu sions 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 16th day of May , 2014 , in Tallahassee,

Leon County, Florida.

S

S USAN 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

Divisio n of Administrative Hearings

this 16th day of May , 2014 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, F lorida 32308

( Certified Mail No. 7013 2630 0000 4300 4494 )

Shakeitriyia Edwards

Apartment 80

3946 WD Judge Drive

Orlando, Florida 32808

(Certified Mail No. 7013 2630 0000 4300 4500)

Andrea L. Diederich, Esquire

Marshall, Dennehey, Warner,

Coleman, an d Goggin

315 East Robinson Street, Suite 550

Orlando, Florida 32801

( Certified Mail No. 7013 2630 0000 4300 4517 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 32 75

(Certified Mail No. 7013 2630 0000 4300 4524)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7013 2630 0000 4300 4531)

Dennis Szur kus, M.D.

83 West Miller Street

Orlando, Florida 32806

(Certified Mail No. 7013 2630 0000 4300 4548)

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 pursuan t 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 n otice of a dministrative a ppeal

with the a gency c lerk of the Division of Adminis trative 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 Neurologic al

Injury Comp. Ass'n v. Carreras , 598 So. 2d 299 (Fla. 1st DCA

1992).