19-005651N Christopher Olmstead And Heenesys Tamayo, Individually And As Parents And Natural Guardians Of Adrian Olmstead, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, January 24, 2020.

Summary: Petitioners are not eligible for NICA benefits because the child's birth weight is below threshold.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTOPHER OLMSTEAD and

HEENESYS TAMAYO, individually

and as parents and natural

guardians of ADRIAN OLMSTEAD, a

minor ,

Petitioner s ,

vs.

Case No. 19 - 5651N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASS OCIATION ,

Respondent .

/

SUMMARY FINAL ORDER

On December 13, 2019, Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), filed a

Motion for Summary Final Order (Motion) , which is due for

consideration. Petitioner filed a Resp onse and Notice of No

Objection to Respondent’s Motion for Summary Final Order.

STATEMENT OF THE ISSUE

The issue to be determined is whether the infant, Adrian

Olmstead (Adrian), suffered a birth - related neurological injury

as that term is defined by section 766.302, Florida Statutes

(2018).

PRELIMINARY STATEMENT

On October 15, 2019, Christopher Olmstead and Heenesys

Tamayo, individually and as parents and natural guardians of

Adrian Olmste ad (Petitioners), filed a Petition under Protest

for Benefits Pursuant to Florida Statute Section 766.301 et seq

(Petition) . In the Petition, Petitioners acknowledge that the

child does not meet the weight requirements for eligibility, but

are filing the Petition in an abundance of caution, should it be

a necessary precondition to a medical negligence proceeding.

The Petition identifies Dr. John Vann Parker and Dr. Nateya

Carrington as providing obstetrical services, with

Dr. Carrington present at Adrian’s birth. AdventHealth

Altamonte Springs, f/k/a Florida Hospital Altamonte

(AdventHealth Altamonte Springs) , is identified as the hospital

where Adrian was born.

The Petition was provided by certified mail to NICA,

AdventHealth Altamonte Springs, and Drs. P arker and Carrington.

Certified return receipts indicated that they were properly

served. On December 13, 2019, NICA filed the Motion, and

Petitioners responded, stating they had no objection to the

Motion.

The Motion had a document attached to it that a ppears to be

a discharge summary from a hospital, but does not identify the

facility from which it was generated. On January 6, 2020, an

Order Requiring Response was issued, advising NICA that without

some supplementation, there was no competent evidence upon which

findings could be made for a s ummary f inal o rder. That same

day, NICA supplemented the record with a certified copy of the

child’s birth certificate.

All references to Florida Statutes are to the 2018

codification.

FINDINGS OF FACT

1. On Novem ber 28, 2018, Heenesys Tamayo gave birth to a

baby boy, Adrian Olmstead, at AdventHealth Altamonte Springs.

2. Adrian’s birth certificate indicates that he weighed

five pounds, six ounces at birth, which equates to approximately

2,440 grams.

CONCLUSIONS OF LAW

3. The Division of Administrative Hearings (DOAH) has

jurisdiction 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 Florida Birth - Related Neurological Injury

Compensation Plan (Plan) was established by the Legislature “for

the purpose of providing compensation, irrespective of fault,

for birth - related neurological injury claims” 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 Plan by filing a claim for compensation with DOAH.

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

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

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

response to the petition and to submit relevant information

regarding whether the injury suffered is a birth - related

neurological injury comp ensable under the Plan.

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

related neurological injury that is compensable under 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 administrative law

judge in accordance with chapter 120. §§ 766.304, 766.30, and

766.31, Fla. Stat.

7. Whether an infant has sus tained a birth - related

neurological injury is determined in accordance with the

definition in section 766.302(2), which states:

(2) “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

postdelive ry period in a hospital, which

renders the infant permanently and

substantially mentally and physically

impaired. This definition shall 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 spinal cord injury caused by oxygen deprivation or

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

infant was ren dered permanently and substantially mentally and

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

is a rebuttable presumption 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 Adrian weighed

approximately 2,440 grams at birth, which is below the threshold

weight required by the definition in section 766.302(2). This

issue is dispositive with respect to compensability. Based on

this finding, Adrian did not sustain a birth - related neurological

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

benefits under the Plan.

CONCLUSION

Based upon the Findings of Fact and Conclusions of Law,

NICA’s Motion for Summary Final O rder is granted, and

Petitioners’ claim is found to be not compensable. Accordingly,

Petitioners’ Petition is dismissed with prejudice.

DONE AND ORDERED this 2 4th day of January , 2020 , in

Tallahassee, Leon County, Florida.

LISA SHEARER NELSON

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

Di vision of Administrative Hearings

this 2 4th day of January , 2020 .

COPIES FURNISHED:

(via certified mail)

Kenton V. Sands, Esquire

Sands White and Sands, P.A.

760 White Street

Daytona Beach, Florida 32114

(eServed)

(Certified Mail No. 7018 3090 0000 218 9 4789)

Steven L. Sands, Esquire

Sands White and Sands, P . A .

760 White Street

Daytona Beach, Florida 32114

(Certified Mail No. 7018 3090 0000 2189 4796)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Ass ociation

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7018 3090 0000 2189 4802)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7018 3090 0000 2189 4819)

Mary C. Mayhew , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7018 3090 0000 2189 4 826)

John Vann Parker, M.D.

Suite 1031

785 Primera Boulevard

Lake Mary, Florida 32746

(Certified Mail No. 7018 3090 0000 2189 4833)

Nateya Carrington, M.D.

Suite 1031

785 Primera Boulevard

Lake Mary, Florida 32746

(Certified Mail No. 7018 3090 0000 218 9 4840)

AdventHealth Altamonte Springs

Attention: Risk Management

601 East Altamonte Drive

Altamonte Springs, Florida 32701

(Certified Mail No. 7018 3090 0000 2189 3478)

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 App eal.

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).