15-003747N Jerra Myrick, Individually And As Natural Parent Of Jamyrah Debose, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association, A/K/A Nica Status: Closed DOAH Final Order on Monday, December 7, 2015.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRA MYRICK, individually and

as natural parent of JAMYRAH

DeBOSE, a minor,

Petitioner,

vs. Case No. 15 - 3747N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION, a/k/a NICA,

Respondent,

and

PUTNAM COMMUNITY MEDICAL CENTER,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for

Summary Final Order filed by Respondent, Florida B irth - Related

Neurological Injury Compensation Association (NICA), on

November 6 , 2015.

STATEMENT OF THE CASE

On June 23, 2015, Petitioner, Jerra Myrick, individually and

as natural parent of Jamyrah DeBose (Jamyrah), a minor, filed a

Petition Under Protest 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 Lai la B. Needham, M.D., as the

physician who provided obstetric services for the birth of

Jamyrah at Putnam Community Medical Center in Palatka, Florida,

on March 27, 2014.

DOAH served NICA with a copy of the Petition on July 1,

2015. DOAH served a copy of t he Petition on Putnam Community

Medical Center on July 1, 2015. The website of the United States

Postal Service shows that Laila B. Needham, M.D., was served a

copy of the Petition on July 6, 2015.

On July 15, 2015, Putnam Community Medical Center filed a

Petition to Intervene, which was granted by Order dated July 24,

2015. As of the date of the Summary Final Order of Dismissal,

Dr. Laila B. Needham has not petitioned to intervene in this

proceeding.

On November 6, 2015, NICA filed a Motion for Summary F inal

Order, requesting that a summary final order be entered finding

that the claim was not compensable because Jamyrah did not meet

the requisite minimum statutory birth weight as required by

section 766.302(2), Florida Statutes. On November 18, 2015, a

Stipulated Motion for Extension of Time to Respond to

RespondentÓs Motion for Summary Final Order was filed. The

Motion was granted by Order dated November 18, 2015.

IntervenorÓs Opposition to RespondentÓs Motion for Summary

Final Order was filed on Nove mber 24, 2015.

FINDINGS OF FACT

1. Jamyrah DeBose was born on March 27, 2014, at Putnam

Community Medical Center in Palatka, Florida. She was a single

gestation.

2. NICA attached to its motion a c ertification of medical

records signed by the Director of Medical Records from Putnam

Community Medical Center, and a one - page medical record for

Jamyrah. The medical record shows that Jamyrah was a single

gestation and her birth weight was less than 2,500 grams.

3. A review of the file reveals that no cont rary evidence

was presented to dispute the medical record from Putnam Community

Medical Center showing that JamyrahÓs birth weight was less than

2,500 grams.

4. It its Opposition to RespondentÓs Motion for Summary

Final Order, Intervenor acknowledged t hat Jamyrah weighed 2 , 240

grams at birth.

5. Intervenor attached to its response in opposition to

NICAÓs Motion an affidavit of Frederick E. Harlass, M.D., who

opined that the statutory requirement of a babyÓs birth weight of

2 , 500 grams is unreasonable and arbitrary, especially in light of

PetitionerÓs small stature and pre - pregnancy weight of 125

pounds.

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 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. § 766.3 03(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 DOAH.

§§ 766.302(3), 766.303(2), and 766.305(1), Fla. St at. NICA,

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 neu rological

injury." § 766.305(4), Fla. Stat.

9. NICA has determined that Petitioner 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 no t compensable.

10. In ruling on the motion, the a dministrative l aw j udge

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.

11. 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 oxyge n

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.

12. The evidence , which is not refuted, established that

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

grams at birth. Thus, Jamyrah did not sustain a birth - related

neurological injury because s he did not meet the minimum

statutory weight as set forth i n the definition of "birth - related

neurological injury," in section 766.302(2).

13. Intervenor urges the undersigned should use her

Ðexclusive discretionÑ to not strictly adhere to the statutory

limitation of 2 , 500 grams, which Intervenor argues is a

tech nicality. Intervenor makes, in essence, an equitable

argument in that strict adherence to Ðan arbitrary weight limit

undermines the intent of the Legislature and the spirit of the

Plan, and will preclude a qualified candidate from the assistance

she will so desperately need.Ñ

14. While Intervenor is correct in that the administrative

law judge has the exclusive jurisdiction to determine whether a

claim is compensable under the Plan, an administrative law judge

does not have the discretion to ignore a cle ar, statutory

requirement. An administrative agency has only such power as

granted by the L egislature and may not expand its jurisdiction.

Rinella v. Abifaraj , 908 So. 2d 1126 (Fla. 1 st DCA 2005).

Administrative law judges, as employees of an executive br anch

agency, have neither equitable powers nor the authority to decide

constitutional issues. Palm Harbor Special Fire Control Dist. v.

Kelly , 516 So. 2d 249, 250 (Fla. 1987); Dade Cnty. v. Overstreet ,

59 So. 2d 862 (Fla. 1952).

CONCLUSION

Based upon t he foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Jerra Myrick,

individually and as natural parent of Jamyrah DeBose, a minor, is

dismissed with prejudice.

DONE AND ORDERED this 7th day of December , 2015 , in

Ta llahassee, 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 7th day of December , 2015 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compens ation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0000 0359 2860)

Joshua T. Frick, Esquire

Hogan Frick

5626 Curry Ford Road

Orlando, Florida 32822

(eServed)

(Certified Mail No. 7014 2120 0000 0359 2877)

David P. Ferrainolo, Esquire

Hall Prangel & Schoonveld, LLC

Suite 301

4532 West Kennedy Boulevard

Tampa, Florida 33609

(eServed)

(Certified Mail No. 7014 2120 0000 0359 2884)

Amie Rice, Investigation Manager

Consumer Services Unit

Depar tment of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 2120 0000 0359 2891)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahas see, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1053 8056)

Laila B. Needham, M.D.

700 Zeagler Drive, Suite 3

Palatka, Florida 32177

(Certified Mail No. 7014 2120 0003 1053 8063)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final or der 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 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 appropria te 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).