17-004991N Gayla Lavender And Timothy Lavender, As Parents And Natural Guardians Of Timothy Ryan Edward Lavender, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, April 19, 2018.

Summary: The infant did not sustain a birth-related neurological injury because he did not meet the minimum statutory weight as set forth in the definition of "birth-related neurological injury," in section 766.302(2).

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GAYLA LAVENDER AND TIMOTHY

LAVENDER, as parents and natural

guardians of TIMOTHY RYAN EDWARD

LAVENDER, a minor,

Petitioners,

vs. Case No. 17 - 4991N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIAT ION,

Respondent,

and

KAREN L. BRUDER, M.D.,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for

Summary Final Order filed by Respond ent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on April 3,

2018.

STATEMENT OF THE ISSUES

On August 28, 2017, Petitioners, Gayla Lavender and Timothy

Lavender, as parents and natural guardians of Timothy Ryan Edward

Lavend er (Timothy) , a minor, filed a Petition for Benefits

Pursuant to Florida Statute Section 776.301 et seq. (Petition)

with the Division of Administrative Hearings (DOAH) for a

determination of compensability under the Florida Birth - Related

Neurological Injur y Compensation Plan (Plan). The Petition named

Karen Bruder, M.D., as the physician who provided obstetric

services for the birth of Timothy at Tampa General Hospital, in

Tampa, Florida, on October 25, 2009.

DOAH served a copy of the Petition to NICA on September 18,

2017. Karen L. Bruder, M.D., was served with a copy of the

Petition, and filed a Petition to Intervene on October 16, 2017.

DOAH sent Tampa General Hospital a copy of the Petition via

certified mail on September 15, 2017.

On April 3, 201 8, NICA filed a Motion for Summary Final

Order, requesting that a summary final order be entered finding

that the claim was not compensable because Timothy did not meet

the requisite minimum statutory birth weight as required by

section 766.302, Florida St atutes. Neither Petitioner nor

Intervenor Karen L. Bruder, M.D., filed a response to the Motion

for Summary Final Order.

FINDINGS OF FACT

1. Timothy was bor n at Tampa General Hospital, in Tampa,

Florida, on October 25, 2009. He was a single gestation.

2. NICA attached t o its motion the affidavit of the

Custodian of Records fo r Tampa General Hosp i tal, and nine pages

of medical records for Timothy. The medical records show that

TimothyÓs birth weight was less than 2,500 grams. Specifically,

the recor ds show that his birth weight was 1,980 grams.

3. A review of the file reveals that no contrary evidence

was presented to dispute the medical records from Tampa General

Hospital showing that TimothyÓs birth weight was less than 2,500

grams.

CONCLUSION S OF LAW

4. DOAH has jurisdiction over the parties to and the

subject matter of these proceedings. §§ 766.301 - 766.316, Fla.

Stat.

5. The Plan was established by the Legislature Ðfor the

purpose of providing compensation, irrespective of fault , for

birth - related neurological injury claimsÑ related to births

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

6. 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 Ð45 days from the date of service

of a complete claim . . . in which to file a response to the

petit ion 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.

7. 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 not compensable.

8. In ruling on the motion, the administrative law judge

must make the following determination based upon the availab le

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 depri vation 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. 766.302 (2).

§ 766.309(1), Fla. Stat.

9. The term Ðbirth - related neurological injuryÑ is defined

in section 766.302(2) as follows:

ÐBirth - related neurological injuryÑ 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 ca used by oxygen

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.

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

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

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

neurological injury because he did not meet the minimum statutory

weight as set forth in the definition of Ðbirth - related

neurological injury,Ñ in section 766.302(2).

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition is dismissed with

prejudice. 1 /

DONE AND ORDERED this 1 9 th day of April , 2018 , in

Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(85 0) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19 th day of April , 2018 .

ENDNOTE

1/ Although not raised in RespondentÓs Motion for Summary Final

Order, from the undersigne dÓs review of the record, PetitionerÓs

claim is also due to be dismissed as the Petition was filed more

than five years after TimothyÓs birth. See § 766.313, Fla. Stat.

COPIES FURNISHED:

(via certified mail)

Gayla Lavender

Timothy Lavender

13409 Fauna La ne

Hudson, Florida 34669

( Certified Mail Number 7018 0040 0000 9772 4618)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certif ied Mail Number 7018 0040 0000 9772 4625 )

Erin B. Reynolds, Esquire

Bush Graziano Rice & Platter, P.A.

100 South Ashley Drive, Suite 1400

Post Office Box 3423

Tampa, Florida 33602

(eServed)

(Certified Mail Number 7018 0040 0000 9772 4632 )

Amie Rice, In vestigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(eServed)

(Certified Mail Number 7018 0040 0000 9772 4649 )

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail Number 7018 0040 0000 9772 4656)

Tampa General Hospital

1 Tampa General Circle

Tampa, Florida 33606

(Certified Mail Number 7018 0040 0000 9772 4663)

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 Appel late Procedure. Such proceedings are

commenced by filing the original notice of administrative appeal

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 fili ng 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).