19-005475N Brittany Webster And Charles Mcclain, As Parents And Natural Guardians Of Charleston Mcclain, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, January 16, 2020.

Summary: Petitioners are not eligible for benefits under the Plan because the birth-weight of their son is below the statutory threshold.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRITTANY WEBSTER AND CHARLES

MCCLAIN, as parents and natural

guardians of CHARLESTON MCCLAIN,

a minor ,

Petitioner s ,

vs. Case No. 19 - 5475N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION ,

Respon dent,

and

GALENCARE, INC., d/b/a BRANDON

REGIONAL HOSPITAL,

Intervenor .

/

SUMMARY FINAL ORDER

Respondent, Florida Birth - Related Neurological Injury

Compensation Association (NICA), filed a Motion for Summary

Final Order (Motion) on December 5, 2019, which is due for

consideration. The Motion relies upon the Petition for

Determination of Eligibility for Benefits and the Discharge

Summary for Brandon Regional Hospital. Neither Petitioners nor

Galencare, Inc., d/b/a Brandon Regional Hospital (Brandon

Regional) have filed a response to the Motion.

STATEMENT OF THE ISSUE

The issue to be determined is whether the infant,

Charleston McClain (Charleston), suffered a birth - related

neurological in jury as that term is defined by section 766.302,

Florida Statutes (2018).

PRELIMINARY STATEMENT

On September 26, 2019, Charleston McClain, by and through

his natural parents, Brittany Webster and Charles McClain

(collectively, Petitioners) filed a Petition for Benefits

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

seeking a determination of compensability under the Florida

Birth - Related Neurological Injury Compensation Plan (Plan). The

Petition names Kelly C. Hetchman, D.O., as the attend ing

physician, and Brandon Regional as the hospital where Charleston

was born.

NICA, Dr. Hetchman, and Brandon Regional were each served

with the Petition by certified mail. Certified return receipts

were filed, indicating that all three were served with the

Petition. On November 22, 2019, Brandon Regional filed a Motion

to Intervene, which was granted on December 4, 2019. On

December 5, 2019, NICA filed the Motion, as well as a Motion for

Entry of a Protective Order Regarding Confidential Documents

Rela ted to Petitioners Ó Medical Records. The Motion f or Entry

of a Protective Order is granted by separate order.

Florida Administrative Code Rule 28 - 106.204 allows seven

days for the filing of a response to a motion. Because

Petitioners are not represented by counsel, and no timely

response was filed to the Motion, an Order Requiring Response

was issued on December 17, 2019, directing Petitioners to file a

response to the Motion no later than January 3, 20 20 . The Order

provided that failure to timely respon d to the M otion would

result in the conclusion that Petitioners do not dispute the

basis for the Motion , and an Order granting the Motion would be

issued. To date, no response has been filed.

All references to Florida Statutes are to the 2018

codification unless otherwise specified. The relevant portions

of chapter 766 have not been amended in any way relevant to this

proceeding since that time.

FINDINGS OF FACT

1. On March 1, 2019, Charleston was born at Brandon

Regional.

2. The birth certificate lis ts CharlestonÓs birth weight

as four pounds, 15 ounces. The discharge summary from Brandon

Regional lists his birth weight as 2.260 kilograms, which is

equal to 2,260 grams.

CONCLUSIONS OF LAW

3. The Division of Administrative Hearings (DOAH) has

jurisdi ction over the parties and the subject matter of this

proceeding pursuant to sections 120.569, 120.57(1), and 766.304,

Florida Statutes.

4. 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.

5. An injured infant, his or her personal representative,

parents, dependents, and next of kin may seek compensation under

the Pla n by filing a claim for compensation with DOAH.

§§ 766.302(3), 766.303(2), and 766.305(1), Fla. Stat. Section

766.305(4) provides that NICA, which administers the Plan, has

45 days from the date that a complete claim is served to file a

response to the p etition and to submit relevant information

regarding whether the injury suffered is a birth - related

neurological injury compensable under the Plan.

6. If NICA determines that the alleged injury is a birth -

related neurological injury that is compensable un der the Plan,

it may award compensation to the claimant, provided that the

award is approved by an administrative law judge. § 766.305(7),

Fla. Stat. If NICA disputes the claim, as it does in this case,

the dispute must be resolved by the assigned admini strative law

judge in accordance with chapte r 120. §§ 766.304, 766.30,

and 766.31, Fla. Stat.

7. Whether an infant has sustained a birth - related

neurological injury is determined in accordance with the

definition in section 766.302(2), which states:

(2) 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 caused by

oxyg en 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 definition s hall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

8. If the administrative law judge determines that the

infant meets the statutory weight threshold and has sustained a

brain or spina l cord injury caused by oxygen deprivation or

mechanical injury, and finds that as a result of the injury the

infant was rendered permanently and substantially mentally and

physically impaired, then section 766.309(1) provides that there

is a rebuttable pr esumption that the injury is a birth - related

neurological injury.

9. In this case, the evidence presented does not support

such a finding. The undisputed evidence is that Charleston

weighed 2,260 grams at birth, which is below the threshold weight

requi red by the definition in section 766.302(2). This issue is

dispositive with respect to compensability. Based on this

finding, Charleston did not sustain a birth - related neurological

injury as defined in section 766.302(2), and is not eligible for

benefit s under the Plan.

CONCLUSION

Based upon the Findings of Fact and Conclusions of Law,

NICAÓs Motion for Summary Final Order is granted, and

PetitionersÓ claim is found to be not compensable. Accordingly,

PetitionersÓ Petition is dismissed with prejudice.

D ONE AND ORDERED this 1 6 th day of January , 2020 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahas see, 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 1 6 th day of January , 2020 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executi ve Director

Florida Birth - Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7018 2290 0000 1309 9094)

Brittney Renee Webster

Charles McClain

2936 Skyview Drive

L akeland, Florida 33801

(eServed)

(Certified Mail No. 7018 3090 0000 2189 4727)

Tana D. Storey, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

(Certified Mail No. 7018 3090 0000 2189 4734)

Mark R. Me sserschmidt, Esquire

La Cava & Jacobson, P . A .

Suite 1250

501 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

(Certified Mail No. 7018 3090 0000 2189 4741)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypres s Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7018 3090 0000 2189 4758)

Mary C. Mayhew , Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 701 8 3090 0000 2189 4765)

Kelly C. Hetchman, D.O.

119 Oakfield Drive

Brandon, Florida 33511

(Certified Mail No. 7018 3090 0000 2189 4772)

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).