19-000928N Ashley Andrews And Halen Mcfadden, As Parents And Natural Guardians Of Ashton Mcfadden, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, October 2, 2019.

Summary: The child did not sustain a "birth-related neurological injury" as defined in section 766.302(2). (The child did not meet the required birthweight.) Therefore the child is not eligible for benefits under the NICA Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ASHLEY ANDREWS AND HALEN

MCFADDEN, as parents and natural

guardians of ASHTON MCFADDEN, a

minor,

Petitioners,

Case No. 19 - 0928N

vs.

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Resp ondent,

and

GALENCARE, INC., d/b/a BRANDON

REGIONAL HOSPITAL,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came for consideration on a Motion for Summary

Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association ( “ NICA ” ), on

August 29, 2019.

STATEMENT OF THE CASE

On January 30, 2019, Petitioners, Ashley Andrews and Halen

McFadden, as parents and natural guardians of Ashton McFaddon

( “ As hton ” ), a minor, filed a Petition for Benefits Pursuant to

Florida Statute Section 766.301 Et Seq. (the “ Petition ” ), with the

Division of Administrative Hearings ( “ DOAH ” ) for the determination

of compensability under the Florida Birth - Related Neurological

Injury Compensation Plan (the “ Plan ” ).

The Petition named Mariel Rotundo - Patino, D.O., as the

physician who provided obstetric services at the birth of Ashton

on October 16, 2016, at Intervenor, Galencare, Inc., d/b/a Brandon

Regional Hospital (the “ Hospit al ” ) , in Brandon, Florida.

DOAH served Dr. Rotundo - Patino with a copy of the Petition on

or about February 26, 2019, and served the Hospital that same

date. NICA was also served with a copy of the Petition on

February 26, 2019.

On August 29, 2019, NIC A filed a Motion for Summary Final

Order requesting the a dministrative law ju dge enter a summary

final order finding that the claim is not compensable because

Ashton did not suffer a “ birth - related neurological injury ” as

defined in section 766.302(2), Flo rida Statutes. NICA asserts

that Ashton ’ s birth weight fell below the statutory threshold of

2,500 grams.

On September 11, 2019, the undersigned issued an Order to

Show Cause directing Petitioners to show cause, in writing, why

NICA ’ s motion should not be granted. As of the date of this

Order, Petitioners have not responded to NICA ’ s motion or the

Order to Show Cause.

FINDINGS OF FACT

1. Based on all available evidence, the undersigned

administrative law judge makes the findings of fact detailed

below.

2. Ashton was born on October 16, 2016, at the Hospital

located in Brandon, Florida.

3. Petitioners filed the Petition with DOAH on January 30,

2019. With the Petition, Petitioners produced certain medical

records relevant to the claim. The medical rec ords document that

Ashton ’ s weight at birth was 2,420 grams.

4. A review of the medical records submitted in this matter

reveals no evidence disputing a finding that Ashton weighed under

2,500 grams at his birth.

5. Based on the evidence that Ashton we ighed less than

2,500 grams at birth, NICA determined that Petitioners ’ claim was

not compensable. NICA subsequently filed a Motion for Summary

Final Order asserting that Ashton did not suffered a “ birth -

related neurological injury ” as defined by section 766.302(2).

CONCLUSIONS OF LAW

6. An administrative law judge has exclusive jurisdiction

over the subject matter of this proceeding. § 766.304, Fla. Stat.

7. The Florida Legislature established the Plan “ for the

purpose of providing compensation, irresp ective of fault, for

birth - related neurological injury claims ” relating to births

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

8. The injured infant, her or his personal representative,

parents, dependents, and next of kin may seek com pensation 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, then has “ 45 days from the date of service

of a complete claim . . . in which to file a respons e 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.

9. If NICA determines that the injury alleged in a claim is

a compensable birth - rel ated 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.

10. In this matter, however, NICA determined that

Pet itioners ’ claim is not compensable under the Plan. Therefore,

NICA filed a Motion for Summary Final Order, requesting an order

be entered finding that the claim is not compensable.

11. In ruling on NICA ’ s motion, section 766.309(1) provides

that the admi nistrative law judge must make the following

determination based upon the available evidence:

(a) Whether the injury claimed is a birth -

related neurological injury.

12. The term “ birth - related neurological injury ” is defined

in section 766.302(2) as f ollows:

“ Birth - related 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

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. This defin ition shall

apply to live births only and shall not

include disability or death caused by genetic

or congenital abnormality.

13. The undisputed evidence in the record establishes that

Ashton did not weigh at least 2,500 grams at birth. Accordingly,

the undersigned determines that Ashton has not suffered a “ birth -

related neurological injury ” as defined in section 766.302(2), and

is not eligible for NICA benefits.

DISPOSITION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition is dismissed, with

prejudice.

DONE AND ORDERED this 2nd day of October , 2019 , in

Tallahassee, Leon County, Florida.

J. BRUCE CULPEPPER

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 2nd day of October , 2019 .

COPIES FURNISHED:

(via certified mail)

Halen McFadden

Ashley Andrews

Apartment 114

8990 Carriage Court

Tampa, Florida 33617

(Certified No. 7011 1570 0003 4465 6082 )

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

2360 Ch ristopher Place , Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified No. 7011 1570 0003 4465 6099 )

Tracy M. Falkowitz, Esquire

Banker Lopez Gassler, P.A.

501 East Kennedy Boulevard , Suite 1700

Tampa, Florida 33602

(eServed)

(Certified No. 7011 1570 0003 4465 6105 )

Tana D. Storey, Esquire

Rutledge Ecenia, P.A.

119 South Monroe Street , Suite 202

Tallahassee, Florida 32301

(eServed)

(Certified No. 7011 1570 0003 4465 6112 )

Amie Rice, Investigation Manager Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified No. 7011 1570 0003 4465 6129 )

Mary C. Mayhew , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(e Served)

(Certified No. 7011 1570 0003 4465 6136 )

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 proc eedings 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 ord er 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).