15-004718N Carmen Mejia And Raymundo Morataya, Individually And On Behalf Of Jeovani Morataya, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association, A/K/A Nica Status: Closed DOAH Final Order on Thursday, October 29, 2015.

Summary: Physician providing obstetrical services was not a "participating physician" as per the Plan. Claim against NICA barred by statute of limitations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARMEN MEJIA and RAYMUNDO

MORATAYA, individually and on

behalf of JEOVANI MORATAYA, a

minor,

Petitioner,

vs. Case No. 15 - 4718N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION, a/k/a NICA,

Respondent.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's

Motion for Summary Final Order, filed on October 1, 2015.

STATEMENT OF THE CASE

On August 1 1, 2015, Petitioners, Carmen Mejia and

Raymundo Morataya, individually and on behalf of Jeovani Morataya

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

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

Division of Administrative H earings (DOAH) for determination of

compensability under the Florida Birth - Related Neurological

Injury Compensation Plan (Plan). The Petition named

Lawrence Decker, D.O., as the physician who provided obstetric

services at the birth of Jeovani at Florida Hospital Rollins on

January 18 , 2008.

DOAH served the Florida Birth - Related Neurological Injury

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

August 21, 2015. DOAH served Florida Hospital Rollins on

August 24, 2015. DOAH attempted to se rve Lawrence Decker, D.O.,

by mailing a copy of this Petition by certified mail on

August 20, 2008. On September 3, 2015, DOAH received a return

receipt from the United States Postal Service without a delivery

date indicated. On September 17, 2015, DOAH received the

envelope addressed to Dr. Decker, with a postal label stating:

ÐReturn to sender, vacant, unable to forward.Ñ 1/

As of the date of this Summary Final Order of Dismissal,

neither Florida Hospital Rollins nor Dr. Decker has petitioned to

interv ene in this proceeding.

On October 1, 2015, NICA filed a Motion for Summary Final

Order, stating that, at the time of JeovaniÓs birth, Dr. Decker

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

section 766.302(7), Florida Statutes (2015). N o response to the

Motion for Summary Final Order was filed by Petitioners.

FINDINGS OF FACT

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

obstetric services at JeovaniÓs birth on January 1 8, 2008.

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 pa rticipating 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 Statutes, and the

status of physicians who may be exempt fr om

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

Sec tion 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 p ayment history/reportÑ

attached hereto for Dr. Lawrence Decker,

indicates that in the year 2008, the year in

which Dr. Decker participated in the delivery

of Jeovani Morataya, as indicated in the

PetitionerÓs Petition for Benefits,

Dr. Decker did not pay t he 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

physician 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 to

such exempt status is required to be provided

to NICA. NICA has no records with respect to

Dr. Decker in relation to an exempt status

for the year 2008. To the contrary, the

attached "NICA CARES physician payment

history/report shows that in 2008, Dr. Decker

paid the Two Hundred and Fifty Dollar ($250)

assessment require d by Section

766.314(4)(b)1., Florida Statutes, for non -

participating, non - exempt licensed

physicians.

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

supports Mr. DaughtryÓs affidavit.

4. Petitioners have not offered any exhibits, affidavits or

any other evidence refuting 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 Jeovani, Dr. Decker was not

a participating physician in the Plan.

6. The Petition was fil ed on August 1 1 , 2015, which is mo re

than five years after Jeovani Ós 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. § 766.303(1), Fla. Stat.

9. The in jured 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. 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.

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 provision s of chapter 120, Florida Statutes.

§§ 766.304, 766.309, and 766.31, Fla. Stat.

11. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the injury claime d 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 inf ant 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

deliv ered 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.

12. Pertinent to this case, "participating physician" is

defined by section 766.302(7), to mean:

[A] physician licensed in Florida to practice

medicine w ho 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 neurological injury

compensation p lan for the year in which the

injury occurred.

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

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

physician at the time of JeovaniÓs birth. No evidence was

submitted that, at the time of JeovaniÓs 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

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

participating, non - exempt licensed physicians.

14. The obstetrical services provided during Jeovani's

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

claim on behalf of Jeovani is not compensable under the Plan.

15. Mor eover, the Petition w as filed mo re than five years

after Jeovani Ós birth. This is beyond the five - year statute of

limitations set forth in section 766.313, and is, therefore,

barred.

CONCLUSION

Based on the Findings of Fact and Conclusions of Law, it is

O RDERED that Respondent's Motion for Summary Final Order is

granted, and the Petition is dismissed with prejudice.

DONE AND ORDERED this 29th day of October , 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 29th day of October , 2015 .

ENDNOTE

1/ In an attempt to find an alternative address for Dr. Decker,

DOAH looked to the Florida Department of Health website. It

lists the same address as previously used in the attempt to serve

Dr. Decker. It listed Dr. DeckerÓs license status as

ÐdelinquentÑ with an expiration date of March 31, 2014.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christo pher Place, Suite 1

Tallahassee, Florida 32308

(eServed )

(Certified Mail No. 7014 2120 0003 1051 0595) )

Maria D. Tejedor, Esquire

Diez - Arguelles & Tejedor

505 North Mills Avenue

Orlando, Florida 32803

(eServed)

(Certified Mail No. 7014 2120 0003 10 51 0601)

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 1051 0618)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agen cy for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1053 8025)

Florida Hospital Rollins

Attention: Risk Management

601 East Rollins Street

Orlando, Florida 32803

(Certi fied Mail No. 7014 2120 0003 1053 8032)

Lawrence Decker, D.O.

225 East 7th Street

Apopka, Florida 32703

(Certified Mail No. 7014 2120 0003 1053 8049)

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 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 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).