16-006519N Valentin Mares And Yudiria Chavez, On Behalf Of And As Parents And Natural Guardians Of Eileen Mares, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, February 28, 2017.

Summary: Physician who provided obstetrical services at child's birth was not a "participating physician" under the Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VALENTIN MARES AND YUDIRIA

CHAVEZ, on behalf of and as

parents and natural guardians of

EILEEN MARES, a minor,

Petitioners,

vs. Case No. 16 - 6519N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATI ON,

Respondent.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's

Motion for Summary Final Order, filed on January 31, 2017.

STATEMENT OF THE CASE

On November 2, 2016, Petitioners, Valentin Mares and

Yudiria Chavez, on behalf of and as parents and natural guardians

of Eileen Mares (Eileen), a minor, filed a Petition for Benefits

Pursuant to Florida Statute Section 766.301 et seq. (Petition)

with the Div ision of Administrative Hearings (DOAH) for

determination of compensability under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan). The Petition named

Joanna B. Davis, M.D., as the physician who provided obstetric

services at the bir th of Eileen at Jackson South Community

Hospital on August 30, 2014.

DOAH served the Florida Birth - Related Neurological Injury

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

November 9, 2016. DOAH served Joanna B. Davis, M.D., on

November 10, 2016. The docket reflects that DOAH received a

Certified Return Receipt from the United States Postal Service on

January 13, 2017, showing that Jackson South Community Hospital

had been served with a copy of the Petition.

On January 12, 2017, Petitio ners filed a Motion for Leave to

File an Amended Petition for Benefits. The Motion was granted,

and the Amended Petition corrected the name of the physician who

provided obstetric services at EileenÓs birth to be Mol r ine

Andrea Tracey, M.D. DOAH served a copy of the Amended Petition

on Mol r ine Andrea Tracey, M.D., on January 20, 2017. DOAHÓs

docket reflects that NICA was served with a copy of the Amended

Petition on January 21, 2017, and Jackson Community Hospital was

served a copy of the Amended Petitio n on January 24, 2017.

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

neither Jackson South Community Hospital nor Dracey has

petitioned to intervene in this proceeding.

On January 31, 2017, NICA filed a Motion for Summary Final

Order, sta ting that, at the time of EileenÓs birth, Dr. Tracey

was not a Ðparticipating physicianÑ as that term is defined by

section 766.302(7), Florida Statutes (2015). Petitioners filed a

Motion in Partial Support to RespondentÓs Motion for Summary

Final Order, on February 10, 2017.

FINDINGS OF FACT

1. The Amended Petition named Dracey Molrine as the

physician providing obstetric services at EileenÓs birth on

August 30, 2014.

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

affidavit of NICA's custod ian 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 participating physicians in the Florida

B irth - 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 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 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 Dracey Molrine [ sic ]

indicates that in the year 2014, the year in

which Dr. Molrine [ sic ] participated in the

delivery of Eileen Mares, as indicated in the

PetitionersÓ Petition for Benefits,

Dr. Morline [ sic ] 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

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

D r. Molrine [ sic ] in relation to an exempt

status for the year 2014. To the contrary,

the attached "NICA CARES physician payment

history/report shows that in 2013 [ sic ] ,

Dr. Molrine [ sic ] 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

physicians.

3. The physician payment history/report for Dracey

supports Mr. DaughtryÓs affidavit.

4. Petitioners acknowledge in their Motion in Partial

Support of RespondentÓs Motion for Final Summary Order that the

requirement of section 766.309(1)(b), that obstetric services be

provided by a participating physician, has not been satisfied.

5. At the time of the birth of Eileen, Dracey was not a

participatin g 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 established by the Legislature Ðfor the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claimsÑ relating to births

occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

8. The injured infant, her or his personal representativ e,

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 Ð45 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.Ñ £ 766.305(4), Fla. Stat.

9. If NICA determines that the injur y 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 t he 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 0. 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 mechanical

injury and that the infant was thereby

rendered permanently and substantially

mentally and physically impa ired, 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 resuscitatio n

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 Ðinfant has sustained

a birth - related neurological injury and that obstetrical services

were delivered by a participating physician at birth.Ñ

§ 766. 31(1), Fla. Stat.

11. 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 - ti me 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 plan for the year in which the

injury occurred.

12. Dracey had not paid her as sessment of $5,000 at

the time Eileen was born; therefore, she was not a participating

physician at the time of EileenÓs birth. No evidence was

submitted that, at the time of EileenÓs birth, Dr. Tracey was

excluded from paying the $5,000 assessment requir ed for

participating physicians. To the contrary, the physician payment

history/report shows that in 2014, Dracey 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 Eileen's birth

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

on behalf of Eileen is not compensable 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 Amended Petition filed by Valentin Mares and

Yudiria Chavez, on behalf of and as parents and natural guardians

of Eileen Mares, a minor, is dismissed with prejudice.

DONE AND ORDERED this 28th day of Fe bruary , 2017 , 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 - 96 75

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of February , 2017 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurologi cal

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1053 2320)

David J. Halberg, Esquire

David J. Halberg, P.A.

1615 Forum Place , Suite 3 - B

West Palm Beach, Florida 33401

(eServed)

(Certified Mail No. 7014 2120 0003 1053 2337)

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 2344)

J ustin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1053 2351)

Jackson Community Hospital

Attention: Risk Management

9333 Southwest 152nd Street

Palmetto Bay, Florida 33157 - 1778

(Certified Mail No. 7014 2120 0003 1053 2368)

Molrine A ndrea Tracey, M.D.

10300 Southwest 216th Street

Miami, Florida 33190

(Certified Mail No. 7014 2120 0003 1053 2375)

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. Suc h 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 b y 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).