15-001194N Nadege Jean-Michel, On Behalf Of And As Parent And Natural Guardian Of Cherica Fremond, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, May 12, 2015.

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

NADEGE JEAN - MICHEL, on behalf of

and as parent and natural

guardian of CHERICA FREMOND, a

minor,

Petitioner,

vs. Case No. 15 - 1194N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respo ndent.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's

Motion for Summary Final Order, filed on April 20, 2015.

STATEMENT OF THE CASE

On March 6, 2015, Pe titioner, Nadege Jean - Michel, on behalf

of and as parent and natural guardian of Cherica Fremond

(Cherica), a minor, filed a Petition for Benefits Pursuant 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). On March 24, 2015, Petitioner filed an Amended Petition

for Benefits. The Amended Petition named Sameh Fayez Wanis,

M.D., as the physician who provided o bstetric services at the

birth of Cherica at Bethesda Memorial Hospital East on

February 17, 2014.

DOAH served the Florida Birth - Related Neurological Injury

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

March 11, 2015. Bethesda Memorial H ospital East was served with

a copy of the Petition on March 12, 2015. On March 16, 2015,

DOAH received a receipt from the United States Postal Service

that Sameh Fayez Wanis, M.D., had been served with a copy of the

Petition. Neither Dr. Wanis nor Bethe sda Memorial Hospital East

has petitioned to intervene in this proceeding.

On April 20, 2015, NICA filed a Motion for Summary Final

Order, stating that, at the time of ChericaÓs birth, Dr. Wanis

was not a "participating physician" as that term is defined b y

section 766.302(7), Florida Statutes (201 4 ). No response to the

Motion for Summary Final Order was filed by Petitioner.

FINDINGS OF FACT

1. The Amended Petition named Dr. Wanis as the physician

providing obstetric services at ChericaÓs birth on Februar y 17,

2014.

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 off icial

records relative to the status of physicians

as participating physicians in the Florida

Birth - Related Neurological Compensation Plan

who have timely paid the Five Thousand Dollar

($5,000.00) assessment prescribed in Section

766.314(4)(c), Florida Sta tutes, 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 H undred 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 ÐNICA

CARESÑ d atabase for each physician. The

ÐNICA CARES physician payment history/reportÑ

attached hereto for Dr. Sameh F. Wanis,

indicates that in the year 2014, the year in

which Dr. Sameh F. Wanis participated in the

delivery of Cherica Fremond, as indicated in

th e PetitionerÓs Petition for Benefits,

Dr. Sameh F. Wanis 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 NICAÓs policy that if a

physici an 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 766.314(4)(c),

Florida Statutes, annual documentation as t o

such exempt status is required to be provided

to NICA. NICA has no records with respect to

Dr. Sameh F. Wanis in relation to an exempt

status for the year 2014. To the contrary,

the attached "NICA CARES physician payment

history/report shows that in 20 14, Dr. Sameh

F. Wanis 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 physician.

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

supports Mr. DaughtryÓs affidavit.

4. Petitioner has not offered any exhibits, affidavits or

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

shows that Dr. Wanis had not paid his $5,000 assessment for 2014.

5. At the time of the birth of Cherica, D r. Wanis 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 est ablished 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 Bir th - 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 issu e 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 tha t 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 administrati ve 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

availa ble 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 depr ivation 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

par ticipating 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] physici an 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 ed

from payment at the time of the injury the

assessment required for participation in the

bir th - related neurological injury

compensation plan for the year in which the

injury occurred.

12. Dr. Wanis had not paid his assessment of $5,000 at the

time Cherica was born; therefore, he was not a participating

physician at the time of ChericaÓs birth. No evidence was

submitted that, at the time of ChericaÓs birth, Dr. Wanis was

excluded from paying the $5,000 assessment required for

participating physicians. To the contrary, the physician payment

history/report shows that in 2014, Dr. Wanis paid the $ 250

assessment required by section 766.314(4)(6)1., for non -

participating, non - exempt licensed physicians.

13. The obstetrical services provided during Cherica's

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

claim of Cherica is not comp ensable 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 12th day of May , 2015 , in Tallahassee,

Leon County, Florida.

S

BARBARA J. STAROS

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 12th day of May , 2015 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1053 0586)

Phyllis M. Gillespie, Esquire

Laws - Scott and Gillespie, PLLC

872 Colorado Avenue

Stuart, Florida 34994

(eServed)

(Certified Mail No. 7014 2120 0003 1053 0593)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 2120 0003 1053 0609)

Elizabeth Dudek, S ecretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7014 2120 0003 1053 0616)

Sameh Fayez Wanis, M.D.

2925 10th Avenue North, Suite 204

Lake Worth, Florida 33461

(Certified Mail No. 7014 2120 0003 1053 0623)

Bethesda Memorial Hospital East

Attention: Risk Management

2815 South Seacrest Boulevard

Boynton Beach, Florida 33435

(Certified Mail No. 7014 2120 0003 1053 0630)

NOTICE OF RIGHT TO JUDICIAL REVI EW

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 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 t he

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).