19-005910N Latoya Wright And Aaron Lee, On Behalf Of And As Parents And Natural Guardians Of Zakeem Carter Lee, A Deceased Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, January 24, 2020.

Summary: Petitioners' infant does not meet the birth-weight threshold for eligibility as defined in section 766.302(2), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LATOYA WRIGHT and AARON LEE, on

behalf of and as parents and

natural guardians of ZAKEEM

CARTER LEE, a deceased minor ,

Petitioner s ,

vs. Case No. 19 - 5910N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOC IATION ,

Respondent .

/

SUMMARY FINAL ORDER

On January 2, 2020, Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), filed a

Motion for Summary Final Order , whic h is due for consideration.

The Motion for Summary Final Order relies upon medical records

from Holmes Regional Medical Center (Holmes Regional). To date,

no response to the Motion for Summary Final Order has been

filed.

STATEMENT OF THE ISSUE

The issue to be determined is whether the infant, Zakeem

Carter Lee (Zakeem), suffered a birth - related neurological

injury as that term is defined in section 766.302(2), Florida

Statutes (2018).

PRELIMINARY STATEMENT

On September 30, 2019, Petitioners, Latoya Wright and Aaron

Lee, on behalf of and as parents and natural guardians of

Zakeem, filed a Petition for Benefits Pursuant to Florida

Statutes 766.301 et seq. (Petition). The Petition was

incomplete, and Petitioner refiled the Petition with the

necessary documen ts on November 5, 2019.

The Petition identifies Anette Ferrell, CNM, as the person

providing obstetrical services at the birth of the child. The

hospital is identified as Holmes Regional. On November 15,

2019, NICA, Ms. Ferrell, and Holmes Regional wer e served with

the Petition by certified mail, and certified mail receipts were

received indicating that both NICA and Ms. Ferrell were served.

On January 2, 2019, NICA moved for Summary Final Order,

based on the birth weight of the infant. Although Flor ida

Administrative Code Rule 28 - 106.204 allows for seven days in

which to file a response to any motion, to date, Petitioners

have not filed a response to the Motion.

FINDINGS OF FACT

1. Zakeem was born on December 25, 2018, at Holmes

Regional. He passed away shortly after birth.

2. Zakeem weighed 2,425 grams at birth.

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” r elated 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 D OAH.

§§ 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 petition 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 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 chapt er 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) “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

occurri ng 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 shall apply to

live births only and shall no t 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 rendered 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 - relate d

neurological injury.

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

such a finding. The undisputed evidence is that Zakeem weighed

2,425 grams at birth, which is below the threshold weight

required by the definition in section 766.302(2). T his issue is

dispositive with respect to compensability. Based on this

finding, Zakeem 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 Finding s of Fact and Conclusions of Law,

NICA’s Motion for Summary Final Order 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

Division of Administrative Hearings

this 2 4th day of January , 2020 .

COPIES FURNISHED:

(via certified mail)

Brian C. Lamb, Esquire

Martinez Manglardi, P.A.

540 North Semoran Boulevard

Orlan do, Florida 32807

(Certified Mail No. 7018 3090 0000 2189 3546)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail N o. 7018 3090 0000 2189 3553)

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 3560)

Mary C. Mayhew , Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7018 3090 0000 2189 3577)

Anette Ferrell, CNM

330 East Hibiscus Boulevard

Melbourne, Florida 32901

(Certified Mail No. 7018 3090 0000 2189 3584)

Holmes Regional Medical Center

Attention: Risk Management

1350 South Hickory Street

Melbourne, Florida 32901

(Certified Mail No. 7018 3090 0000 2189 3591)

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 dministrat ive

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).