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.
DOAH Final Order on Thursday, January 16, 2020.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8BRITTANY WEBSTER AND CHARLES
12MCCLAIN, as parents and natural
17guardians of CHARLESTON MCCLAIN,
21a minor ,
23Petitioner s ,
25vs. Case No. 19 - 5475N
31FLORIDA BIRTH - RELATED
35NEUROLOGICAL INJURY COMPENSATION
38ASSOCIATION ,
39Respon dent,
41and
42GALENCARE, INC., d/b/a BRANDON
46REGIONAL HOSPITAL,
48Intervenor .
50/
51SUMMARY FINAL ORDER
54Respondent, Florida Birth - Related Neurological Injury
61Compensation Association (NICA), filed a Motion for Summary
69Final Order (Motion) on December 5, 2019, which is due for
80consideration. The Motion relies upon the Petition for
88Determination of Eligibility for Benefits and the Discharge
96Summary for Brandon Regional Hospital. Neither Petitioners nor
104Galencare, Inc., d/b/a Brandon Regional Hospital (Brandon
111Regional) have filed a response to the Motion.
119STATEMENT OF THE ISSUE
123The issue to be determined is whether the infant,
132Charleston McClain (Charleston), suffered a birth - related
140neurological in jury as that term is defined by section 766.302,
151Florida Statutes (2018).
154PRELIMINARY STATEMENT
156On September 26, 2019, Charleston McClain, by and through
165his natural parents, Brittany Webster and Charles McClain
173(collectively, Petitioners) filed a Petition for Benefits
180Pursuant to Florida Statute Section 766.301 et seq. (Petition),
189seeking a determination of compensability under the Florida
197Birth - Related Neurological Injury Compensation Plan (Plan). The
206Petition names Kelly C. Hetchman, D.O., as the attend ing
216physician, and Brandon Regional as the hospital where Charleston
225was born.
227NICA, Dr. Hetchman, and Brandon Regional were each served
236with the Petition by certified mail. Certified return receipts
245were filed, indicating that all three were served with the
255Petition. On November 22, 2019, Brandon Regional filed a Motion
265to Intervene, which was granted on December 4, 2019. On
275December 5, 2019, NICA filed the Motion, as well as a Motion for
288Entry of a Protective Order Regarding Confidential Documents
296Rela ted to Petitioners Ó Medical Records. The Motion f or Entry
308of a Protective Order is granted by separate order.
317Florida Administrative Code Rule 28 - 106.204 allows seven
326days for the filing of a response to a motion. Because
337Petitioners are not represented by counsel, and no timely
346response was filed to the Motion, an Order Requiring Response
356was issued on December 17, 2019, directing Petitioners to file a
367response to the Motion no later than January 3, 20 20 . The Order
381provided that failure to timely respon d to the M otion would
393result in the conclusion that Petitioners do not dispute the
403basis for the Motion , and an Order granting the Motion would be
415issued. To date, no response has been filed.
423All references to Florida Statutes are to the 2018
432codification unless otherwise specified. The relevant portions
439of chapter 766 have not been amended in any way relevant to this
452proceeding since that time.
456FINDINGS OF FACT
4591. On March 1, 2019, Charleston was born at Brandon
469Regional.
4702. The birth certificate lis ts CharlestonÓs birth weight
479as four pounds, 15 ounces. The discharge summary from Brandon
489Regional lists his birth weight as 2.260 kilograms, which is
499equal to 2,260 grams.
504CONCLUSIONS OF LAW
5073. The Division of Administrative Hearings (DOAH) has
515jurisdi ction over the parties and the subject matter of this
526proceeding pursuant to sections 120.569, 120.57(1), and 766.304,
534Florida Statutes.
5364. The Plan was established by the Legislature Ðfor the
546purpose of providing compensation, irrespective of fault, for
554birth - related neurological injury claimsÑ related to births
563occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.
5745. An injured infant, his or her personal representative,
583parents, dependents, and next of kin may seek compensation under
593the Pla n by filing a claim for compensation with DOAH.
604§§ 766.302(3), 766.303(2), and 766.305(1), Fla. Stat. Section
612766.305(4) provides that NICA, which administers the Plan, has
62145 days from the date that a complete claim is served to file a
635response to the p etition and to submit relevant information
645regarding whether the injury suffered is a birth - related
655neurological injury compensable under the Plan.
6616. If NICA determines that the alleged injury is a birth -
673related neurological injury that is compensable un der the Plan,
683it may award compensation to the claimant, provided that the
693award is approved by an administrative law judge. § 766.305(7),
703Fla. Stat. If NICA disputes the claim, as it does in this case,
716the dispute must be resolved by the assigned admini strative law
727judge in accordance with chapte r 120. §§ 766.304, 766.30,
737and 766.31, Fla. Stat.
7417. Whether an infant has sustained a birth - related
751neurological injury is determined in accordance with the
759definition in section 766.302(2), which states:
765(2) ÐBirth - related neurological injuryÑ
771means injury to the brain or spinal cord of
780a live infant weighing at least 2,500 grams
789for a single gestation or, in the case of a
799multiple gestation, a live infant weighing
805at least 2,000 grams at birth caused by
814oxyg en deprivation or mechanical injury
820occurring in the course of labor, delivery,
827or resuscitation in the immediate
832postdelivery period in a hospital, which
838renders the infant permanently and
843substantially mentally and physically
847impaired. This definition s hall apply to
854live births only and shall not include
861disability or death caused by genetic or
868congenital abnormality.
8708. If the administrative law judge determines that the
879infant meets the statutory weight threshold and has sustained a
889brain or spina l cord injury caused by oxygen deprivation or
900mechanical injury, and finds that as a result of the injury the
912infant was rendered permanently and substantially mentally and
920physically impaired, then section 766.309(1) provides that there
928is a rebuttable pr esumption that the injury is a birth - related
941neurological injury.
9439. In this case, the evidence presented does not support
953such a finding. The undisputed evidence is that Charleston
962weighed 2,260 grams at birth, which is below the threshold weight
974requi red by the definition in section 766.302(2). This issue is
985dispositive with respect to compensability. Based on this
993finding, Charleston did not sustain a birth - related neurological
1003injury as defined in section 766.302(2), and is not eligible for
1014benefit s under the Plan.
1019CONCLUSION
1020Based upon the Findings of Fact and Conclusions of Law,
1030NICAÓs Motion for Summary Final Order is granted, and
1039PetitionersÓ claim is found to be not compensable. Accordingly,
1048PetitionersÓ Petition is dismissed with prejudice.
1054D ONE AND ORDERED this 1 6 th day of January , 2020 , in
1067Tallahassee, Leon County, Florida.
1071S
1072LISA SHEARER NELSON
1075Administrative Law Judge
1078Division of Administrative Hearings
1082The DeSoto Building
10851230 Apalachee Parkway
1088Tallahas see, Florida 32399 - 3060
1094(850) 488 - 9675
1098Fax Filing (850) 921 - 6847
1104www.doah.state.fl.us
1105Filed with the Clerk of the
1111Division of Administrative Hearings
1115this 1 6 th day of January , 2020 .
1124COPIES FURNISHED:
1126(via certified mail)
1129Kenney Shipley, Executi ve Director
1134Florida Birth - Related Neurological
1139Injury Compensation Association
1142Suite 1
11442360 Christopher Place
1147Tallahassee, Florida 32308
1150(eServed)
1151(Certified Mail No. 7018 2290 0000 1309 9094)
1159Brittney Renee Webster
1162Charles McClain
11642936 Skyview Drive
1167L akeland, Florida 33801
1171(eServed)
1172(Certified Mail No. 7018 3090 0000 2189 4727)
1180Tana D. Storey, Esquire
1184Rutledge Ecenia, P.A.
1187Suite 202
1189119 South Monroe Street
1193Tallahassee, Florida 32301
1196(eServed)
1197(Certified Mail No. 7018 3090 0000 2189 4734)
1205Mark R. Me sserschmidt, Esquire
1210La Cava & Jacobson, P . A .
1218Suite 1250
1220501 East Kennedy Boulevard
1224Tampa, Florida 33602
1227(eServed)
1228(Certified Mail No. 7018 3090 0000 2189 4741)
1236Amie Rice, Investigation Manager
1240Consumer Services Unit
1243Department of Health
12464052 Bald Cypres s Way, Bin C - 75
1255Tallahassee, Florida 32399 - 3275
1260(Certified Mail No. 7018 3090 0000 2189 4758)
1268Mary C. Mayhew , Secretary
1272Agency for Health Care Administration
12772727 Mahan Drive, Mail Stop 1
1283Tallahassee, Florida 32308
1286(eServed)
1287(Certified Mail No. 701 8 3090 0000 2189 4765)
1296Kelly C. Hetchman, D.O.
1300119 Oakfield Drive
1303Brandon, Florida 33511
1306(Certified Mail No. 7018 3090 0000 2189 4772)
1314NOTICE OF RIGHT TO JUDICIAL REVIEW
1320Review of a final order of an administrative law judge shall be
1332by appeal to the District Court of Appeal pursuant to section
1343766.311(1), Florida Statutes. Review proceedings are governed
1350by the Florida Rules of Appellate Procedure. Such proceedings
1359are commenced by filing the original n otice of a dministrative
1370a ppeal with the a gency c lerk of the Division of Administrative
1383Hearings within 30 days of rendition of the order to be
1394reviewed, and a copy, accompanied by filing fees prescribed by
1404law, with the clerk of the appropriate District Court of Appeal.
1415See § 766.311(1), Fla. Stat., and Fla. Birth - Related
1425Neurological Injury Comp. Ass'n v. Carreras , 598 So. 2d 299
1435(Fla. 1st DCA 1992).
- Date
- Proceedings
- PDF:
- Date: 11/05/2020
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 01/30/2020
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 01/23/2020
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 01/21/2020
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 01/16/2020
- Proceedings: Certified Mail Receipts stamped this date by the U.S. Postal Service.
- PDF:
- Date: 12/05/2019
- Proceedings: Motion for Entry of Protective Order Regarding Confidential Documents Related to Petitioner's Medical Records (Motion to Determine Confidentiality of Document) filed.
- Date: 12/05/2019
- Proceedings: Confidential Medical Records filed (not available for viewing). Confidential document; not available for viewing.
- PDF:
- Date: 11/22/2019
- Proceedings: Galencare, Inc., d.b/a Brandon Regional Hospital's Motion to Intervene filed.
- PDF:
- Date: 10/28/2019
- Proceedings: Order (Motion to accept K. Shipley as qualified representative granted).
- PDF:
- Date: 10/25/2019
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 10/24/2019
- Proceedings: Motion to Act as a Qualified Representative Before the Division of Administrative Hearings filed.
- PDF:
- Date: 10/23/2019
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 10/21/2019
- Proceedings: Letter to Kenney Shipley from Claudia Llado enclosing NICA claim for compensation.
- Date: 09/26/2019
- Proceedings: NICA filing fee (Money Order No. 03946682061; $15.00 filed (not available for viewing).
Case Information
- Judge:
- LISA SHEARER NELSON
- Date Filed:
- 09/26/2019
- Date Assignment:
- 10/16/2019
- Last Docket Entry:
- 11/05/2020
- Location:
- Lakeland, Florida
- District:
- Middle
- Agency:
- Florida Birth-Related Neurological Injury Compensation Associati
- Suffix:
- N
Counsels
-
Mark R. Messerschmidt, Esquire
Address of Record -
Kenney Shipley, Executive Director
Address of Record -
Tana D. Storey, Esquire
Address of Record -
Brittney Renee Webster
Address of Record -
Tana D Storey, Esquire
Address of Record