16-004095N Sean Martin And Amy Martin, On Behalf Of And As Parents And Natural Guardians Of Huntley Clay Martin, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, January 23, 2018.

Summary: Obstetrical services were not delivered by a participating physician at birth. Accordingly, section 766.31(1), Florida Statutes, precludes approving an award under the Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEAN MARTIN AND AMY MARTIN, on

behalf of and as parents and

natural guardians of HUNTLEY

CLAY MARTIN, a minor,

Petitioners,

vs. Case No. 16 - 4095N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATI ON,

Respondent,

and

HIGHLANDS REGIONAL MEDICAL

CENTER,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This came before the undersigned upon Respondent , Florida

Birth - Related Neurolog ical Injury Compensation AssociationÓs

(NICA), Unopposed Motion for Summary Final Order, filed on

January 2, 2018. Concurrently with the filing of the motion,

Respondent filed medical records relating to the birth of

Huntley Clay Martin, deposition transc ripts of two phy sicians,

and a list of all NICA - participating physicians in the year

2012. The motion represents that Petitioners do not oppose the

granting of the motion, and that Intervenor takes no position on

the motion.

STATEMENT OF THE CASE

The iss ue in this case is whether Huntley Clay Martin

(Huntley) suffered a birth - related injury as defined by section

766.302(2), Florida Statutes, for which compensation should be

awarded under the Florida Birth - Related Neurological Injury

Compensation Plan (the Plan).

PRELIMINARY STATEMENT

On July 18, 2016, Petitioners filed a Petition for Benefits

(Petition), alleging that Huntley suffered brain damage as a

result of a birth - related neurological injury, and requesting

for themselves and their minor child benef its available under

the Plan. The Petition also asserted that the physicians

providing obstetric services who were present at the birth of

Huntley included Dr. David Guerra (Dr. Guerra) and Dr. Nasim

Khan (Dr. Khan) .

The Division of Administrative Hearing s served NICA ,

Dr. Khan , Dr. Guerra, and Highlands Regional Medical Center

(Highlands Regional), with a copy of the original claim under

cover letter dated July 21, 2016. On August 4, 2016 , Highlands

Regional moved to intervene, and on August 19, 2016 , an Order

was entered granting Highlands RegionalÓs intervention.

On December 19, 2016, NICA responded to the Petition for

Benefits and gave notice that NICA was of the view that the

claim was not compensable because Huntley had not suffered a

birth - related n eurological injury as defined by section

766.302(2).

On January 18, 2017, Administrative Law Judge Barbara J.

Staros entered a Notice of Hearing and Order of Pre - hearing

Instructions. Said n otice set the final hearing of this matter

via video teleconferen ce for August 8, 2017, with locations in

Tampa and Tallahassee, Florida. The final hearing was continued

upon stipulation of the parties.

On January 2, 2018, Respondent filed an Unopposed Motion

for Summary Final Order with the aforementioned medical reco rds

in support of the Motion for Summary Final Order.

FINDINGS OF FACT

1 . Huntley was born on June 11, 2012, at Highlands

Regional, 3600 South Highlands Avenue, Sebring, Florida. The

pregnancy, labor, and delivery of his mother, Amy Martin, were

manage d by employees of Highlands Regional and Dr. Guerra.

2 . Hospital delivery records indicate that Dr. Guerra was

the delivering physician. Th e records also reflect that

Dr. Guerra was the sole admitting, attending, delivering , and

discharging physician for Amy Martin on June 11, 2012. In

addition, nursing notes reveal that no other physicians other

than Dr. Rivabem (anesthesiologist) and Dr. Guerra were present

for the birth of Huntley.

3 . The deposition of Dr. Khan was taken on October 17,

2017 , and th e deposition of Dr. Guerra was taken on November 27,

2017. Dr. Khan testified in pertinent part that she was not

present in the room for the labor, delivery , or post -

resuscitative period and that she was not otherwise involved

therein. Dr. Guerra testifi ed in pertinent part that Dr. Khan

was not present with him during the birth of Huntley and that he

had no recollection of Dr. Khan having otherwise participated in

the labor, delivery , or post - delivery resuscitation of Huntley.

4 . Section 766.309 provide s that the A dministrative L aw

J udge ÐshallÑ determine , based on all available evidence, inter

alia, Ð[w]hether obstetrical services were delivered by a

participating physician in the course of labor, delivery, or

resuscitation in the immediate post deliver y period in a

hospital. Ñ

5 . Section 766.302(7) defines Ðparticipating physicianÑ

as:

[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

ex empted 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.

6 . A listing of all NICA - participating physicians for the

year 20 12 was attached to RespondentÓs motion. Dr. Guerra is

not listed as a NICA - participating physician in 2012.

Accordingly, it is found that Dr. Guerra was not a

Ðparticipating physicianÑ at the time of HuntleyÓs delivery.

CONCLUSIONS OF LAW

7 . The Divisio n of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 766.301 - 766.316, Fla. Stat. (2016).

8 . The Plan was established by the Legislature "to provide

compensation on a no - fault basis, for a limited class of

catastrophic injuries that result in unusually high costs for

custodial care and rehabilitation." § 766.301, Fla. Stat. The

Plan applies only to a birth - related neurological injury, which

is defined in section 766.302(2) as follows:

"Birth - rela ted 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

oxygen deprivati on 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 . This definition shall apply t o

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

(emphasis added).

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 DOAH.

§§ 766.302(3), 766.303(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 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 injur y, 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.

11 . In discharging this responsibility, the Administrative

Law Judge mu st make the following determinations based upon all

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 sust ained 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 - r elated

neurological injury as defined in

s. 766.302(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

Administrat ive 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.

1 2. In the instant case , it is unnecessary for the

und ersigned to determine whether Huntley suffered a birth -

related neurological injury, since it is uncontroverted that

obstetrical services were not delivered by a participating

physician at birth. Accordingly, section 766.31(1) precludes

approving an award under the Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Sean Martin and

Amy Martin, on behalf of and as parents and natural guardians of

Huntley Clay Martin, is dismissed with prej udice.

DONE AND ORDERED this 2 3rd day of January , 2018 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tall ahassee, 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 2 3rd day of January , 2018 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7016 0910 0001 7987 6602)

Justine D. Adamski, Esquire

La Cava & Jacobson, P.A.

501 E ast Kennedy B oulevard , Suite 1250

Tampa, Florida 33602

(eServed)

(Certified Mail No. 7016 0910 0001 7987 6619)

Ronald S. Gilbert, Esquire

Colling Gilbert Wright & Carter, LLC

Suite 830

801 North Orange Avenue

Orlando, Florida 32801

(eServed)

(Certified Mail No. 7016 0910 0001 7987 6626)

Brooke M. Gaffney, Esquire

Smith Bigman Brock

Suite 900

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified Mail No. 7016 0910 0001 7987 6633)

Amie Rice, Investigation Manager

Consumer Services U nit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7016 0910 0001 7987 6640)

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

T allahassee, Florida 32308

(eServed)

(Certified Mail No. 7016 0910 0001 7987 6657)

Nasim Summer Khan, M.D.

919 Mall Ring Road

Sebring, Florida 33872

(Certified Mail No. 7016 0910 0001 7987 6664)

David Guerra, M.D.

919 Mall Ring Road

Sebring, Florida 33 872

(Certified Mail No. 7016 0910 0001 7987 6671)

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 proce edings 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 orde r 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).