14-000013N Kenia Alvarez, Individually And On Behalf Of Mia Benitez, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, April 23, 2014.

Summary: 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

KENIA ALVAREZ, individually and

on behalf of MIA BENITEZ, a

minor,

Petitioner,

vs. Case No. 14 - 0013N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent.

_______________________ ________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's

Motion for Summary Final Order, filed February 18, 2014.

STATEMENT OF THE CASE

On December 31, 2013, Petitioner, Kenia Alvarez,

individually and on behalf of Mia Benitez (Mia), a minor, filed a

Petition Under Protest Pursuant to Florida Statute Section

766.301 et seq. (Petition) with the Division of Administrative

Hearings (DOAH) for a determination of compensability under the

Flor ida Birth - Related Neurological Injury Compensation Plan

(Plan). The Petition named Miguel A. Albert, M.D., as the

physician who provided obstetric services at the birth of Mia on

May 27, 2011, at Mercy Hospital, Inc. , d/b/a Mercy Hospital,

located in Miam i, Florida.

DOAH served the Florida Birth - Related Neurological Injury

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

January 8, 2014. DOAH served Dr. Albert with a copy of the

Petition on January 13, 2014. Mercy Hospital was served with a

copy of the Petition on March 10, 2014. Neither Dr. Albert nor

Mercy Hospital has petitioned to intervene in this proceeding.

On February 18, 2014, NICA filed a Motion for Summary Final

Order, stating that, at the time of MiaÓs birth, Dr. Albert 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 Petitioner.

FINDINGS OF FACT

1. The Petition named Dr. Albert as the physician providing

obstetric services at Mia's birt h on May 27, 2011.

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 NIC A'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 t he 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 assessments

are received, NICA compiles data in the "NIC A

CARES" database for each physician. The

"NICA CARES physician payment history/report"

attached hereto for Dr. Miguel Albert

indicates that in the year 2011, the year in

which Dr. Albert participated in the delivery

of Mia Benitez, as indicated in the

Pe titioners' Petition for Benefits,

Dr. Albert 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 w ithin 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 exe mpt status is required to be provided

to NICA. NICA has no records with respect to

Dr. Albert in relation to an exempt status

for the year 2011. To the contrary, the

attached "NICA CARES physician payment

history/report" shows that in 2011,

Dr. Albert pa id 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 statement attached to the affidavit of

Mr. Daughtry supports the represen tations made in the affidavit.

4. Petitioner has not offered any exhibits, affidavits or

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

shows that Dr. Albert had not paid the assessment for a

participating physician in 2011.

5. At the time of the birth of Mia, Dr. Albert 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, Fl a. 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 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 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 inf ormation 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 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 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 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 determ ination 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 a s 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 co ncludes 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 se ction 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. Albert had not paid an assessment of $5,000 for a

participating physician at the time Mia was born; therefore, he

was not a participating physician at the time of MiaÓs birth. No

evidence was submitted that, at the time of Mia's birth,

Dr. Albert was exempt from paying the $5,000 assessment required

for participating physicians. The evidence established that at

the tim e of MiaÓs birth, Dr. Albert had elected to be a non -

participating physician by paying the assessment of $250.

13. The obstetrical services provided during Mia's birth

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

of Mia is not compensa ble 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 23rd 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 Filin g (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of April , 2014 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Co mpensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

( Certified Mail No. 7012 3050 0000 1250 8600 )

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

( Certified Mail No. 7012 3050 0000 1250 8617 )

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 8624)

Elizabeth Dudek, Secretary

Health Qual ity Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7012 3050 0000 1250 8631)

Miguel A. Albert, M.D.

Suite 6001

3659 South Miami Avenue

Miami, Florida 33133 - 4249

(Certified Mail No. 7012 3050 0000 1250 8648 )

Mercy Hospital

Attention: Risk Management

3663 South Miami Avenue

Fort Lauderdale, Florida 33133

(Certified Mail No. 7012 3050 0000 1250 8655)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an a dministrative 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 origina l notice of administrative appeal

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 DCA

1992).