15-003926N Margaret Peasah And Seth Peasah, Individually And On Behalf Of Leticia Peasah, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association, A/K/A Nica Status: Closed DOAH Final Order on Monday, October 5, 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

MARGARET PEASAH and SETH PEASAH,

Individually and on behalf of

LETICIA PEASAH, a minor,

Petitioners,

vs. Case No. 15 - 3926N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION, a/k/a NICA,

R espondent,

and

ADVENTIST HEALTHCARE

SYSTEM/SUNBELT, INC., d/b/a

FLORIDA HOSPITAL ORLANDO,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent 's

Motion for Summary Final Order, filed on August 10, 2015.

STATEMENT OF THE CASE

On July 9, 2015, Petitioners, Margaret Peasah and

Seth Peasah, individually and on behalf of Leticia Peasah

(Leticia), a minor, filed a Petition Under Protest Pursuant to

Fl orida Statute Section 766.301 et seq. (Petition) with the

Division of Administrative Hearings (DOAH) for determination of

compensability under the Florida Birth - Related Neurological

Injury Compensation Plan (Plan). On July 10, 2015, Petitioners

filed an A mended Petition Under Protest (Amended Petition) . The

Amended Petition named Lawrence Decker, D.O., as the physician

who provided obstetric services at the birth of Leticia at

Florida Hospital 1/ on May 11, 2008.

DOAH served the Florida Birth - Related Neuro logical Injury

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

July 17, 2015. DOAH served Lawrence Decker, D.O., on July 18,

2015.

On August 12, 2015, Adventist Healthcare System/Sunbelt,

Inc ., d/b/a Florida Hospital Orlando filed a Petit ion to

Intervene which was granted by Order dated August 20, 2015. As

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

has not petitioned to intervene in this proceeding.

On August 10, 2015, NICA filed a Motion for Summary Final

Order, sta ting that, at the time of LeticiaÓs birth, Dr. Decker

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

section 766.302(7), Florida Statutes (2014). No response to the

Motion for Summary Final Order was filed by Petitioner s .

An Order to Show Cause was issued on August 28, 2015,

requiring Petitioners and Intervenor to show cause in writing on

or before September 11, 2015, as to why the Motion for Summary

Final Order should not be granted. No response was filed to the

Order to Show Cause.

FINDI NGS OF FACT

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

providing obstetric services at LeticiaÓs birth on May 11, 2008.

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

affidavit of NICA's custodian of records, Tim Daughtry, attesti ng

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 Compensatio n Plan

who 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 Se ction

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 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. Lawrence Decker,

indicates th at in the year 2008, the year in

which Dr. Lawrence Decker participated in the

delivery of Leticia Peasah, as indicated in

the PetitionerÓs Petition for Benefits,

Dr. Lawrence Decker did not pay the Five

Thousand Dollar ($5,000) assessment required

for par ticipation in the Florida Birth -

Related Neurological Injury Compensation

Plan.

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

physi cian, 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. Lawrence Decker in relation to a n exempt

status for the year 2008. To the contrary,

the attached "NICA CARES physician payment

history/report shows that in 2008,

Dr. Lawrence Decker paid the Two Hundred and

Fifty Dollar ($250) assessment required by

Section 766.314(4)(b)1., Florida Stat utes,

for non - participating, non - exempt licensed

physicians.

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

supports Mr. DaughtryÓs affidavit.

4. Neither Petitioners nor Intervenor have offered any

exhibits, affidavits or any other evidence refu ting the affidavit

of Mr. Daughtry, which shows that Dr. Decker had not paid his

$5,000 assessment for 2008.

5. At the time of the birth of Leticia, Dr. Decker was not

a participating physician in the Plan.

6. The Petition was filed on July 9, 2015 , and the Amended

Petition was filed on July 10, 2015, which is more than five

years after LetitiaÓs birth.

CONCLUSIONS OF LAW

7 . The Division of Administrative Hearings has jurisdiction

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

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

8 . 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. § 7 66.303(1), Fla. Stat.

9 . 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), 76 6.303(2), and

766.305(1), Fla. Stat. 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 neurological injury." § 766.305(4), Fla. Stat.

10 . 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.

1 1 . 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 satisfaction of the

administrative law judge, that the infant has

sustained a brain or spinal cord injury

caused by oxygen deprivation or m echanical

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) Whethe r 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 p hysician 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 - rela ted neurological injury and that obstetrical services

were delivered by a participating physician at birth."

§ 766.31(1), Fla. Stat.

1 2 . 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 exempted

from payment at the time of the injury the

assessment required for participation in the

birth - related n eurological injury

compensation plan for the year in which the

injury occurred.

1 3 . Dr. Decker had not paid his assessment of $5,000 at the

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

physician at the time of LeticiaÓs birth. No evidenc e was

submitted that, at the time of LeticiaÓs birth, Dr. Decker was

excluded from paying the $5,000 assessment required for

participating physicians. To the contrary, the physician payment

history/report shows that in 2008, Dr. Decker paid the $250

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

participating, non - exempt licensed physicians.

1 4 . The obstetrical services provided during Leticia's

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

claim on behalf of Leticia is not com pensable under the Plan.

15. Moreover, the Petition and the Amended Petition were

filed more than five years after LeticiaÓs birth. This is beyond

the five - year statute of limitations set forth in section

766.313, Florida Statutes, and is, therefore, bar red.

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 Amended Petition is dismissed with prejudice.

DONE AND ORDERED this 5th day of October , 2015 , in

Talla hassee, 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) 92 1 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of October , 2015 .

ENDNOTE

1/ The Amended Petition did not contain the address of the

hospital as required by section 766.305(1)(c). Due to the

int ervention of Adventist Healthcare System/Sunbelt, Inc. , d/b/a

Florida Hospital Orlando, it is presumed that Leticia was born in

Orlando.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Inju ry Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0000 0358 9976)

Robin Treto, Esquire

Diez - Arguelles & Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

(Certified Ma il No. 7014 2120 0000 0358 9983)

John Jess, Esquire

Grower, Ketcham, Rutherford, Bronson,

Eide & Telan, P.A.

Post Office Box 538065

Orlando, Florida 32853

(eServed)

(Certified Mail No. 7014 2120 0000 0358 9990)

Amie Rice, Investigation Manager

C onsumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 2120 0000 0359 0002)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0000 0359 2518)

Lawrence Decker, D.O.

225 East 7th Street

Apopka, Florida 32703

(Certified Mail No. 7014 2120 0000 0359 6401)

NOTICE OF RIGHT TO JUDICIAL REVIEW

R eview 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

c ommenced 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

cle rk 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).