20-004832N Jamie Parmenter And Mark Parmenter, Individually And As Natural Parents Of Abigail Parmenter, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, December 1, 2020.

Summary: Petitioners failed to prove a compensable birth-related neurological injury because baby was under minimum weight requirement.

primarily seeking a determination that Abigail is eligible for benefits under

the Florida Birth - Related Neurological Inj ury Compensation Plan (“Plan”).

The Petition named Sharon Desmarais, M.D., as the obstetrician who

delivered Abigail on July 24, 2018 , with the assistance of Brittany Kelly,

A.R.N.P., and B aptist Medical Center South (“Hospital”), as the hospital

where Ab igail was born. As reflected in the Certified Return Receipts, DOAH

sent NICA , Dr. Desmarais, Ms. Kelly, and the Hospital copies of the Petition

via Certified U.S. mail on November 5, 2020.

On November 6, 2020, NICA filed a Motion for Summary Final Or der

(“Motion”) requesting that the undersigned dismiss the Petition on grounds

that the claim is not compensable because Abigail’s birth weight fell below

the statutory threshold of 2,500 grams.

Pursuant to Florida Administrative Code Rule 28 - 106.204, Pe titioners ’

response to the Motion was due by November 13, 2020. Petitioners have not

filed a response to the Motion. By failing to d o so, Petitioners have conceded

to the allegations made and the relief sought therein.

The available evidence in the ca use is comprised of Abigail’s birth

certificate, which was attached to the Motion.

F INDINGS OF F ACT

1. On July 24, 2018 , Jamie Parmenter gave birth to a baby girl named

Abigail at the Hospital.

2. The birth certificate showed that Abigail’s weight at th e time of her

birth was 2 pounds, 5 ounces, which equates to 1,048 grams. See , e.g. , Metric

Conversions , available at https://www.metric - conversions.org/weight/pounds -

to - grams.htm (last visited Nov. 30 , 2020).

C ONCLUSIONS OF L AW

3 . DOAH has jurisdiction over the parties and exclusive jurisdiction over

the subject matter of these proceedings pursuant to sections 120.569,

120.57(1), and 766.304, Florida Statutes.

4 . The Florida Legi slature established the Plan “for the purpose of

providing compensation, irrespective of fault, for birth - related neurological

injury claims” relating to births occurring on or after January 1, 1989. § 766.303(1), Fla. Stat. NICA administers the Plan. § 76 6.302(1), Fla. Stat.

5. The 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. NI CA then has “45 days from the date of service of a

complete claim in which to file a response 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), Fl a. Stat.

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

related 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. 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 . In determining whether a claim is compensable, the undersigned must

first determine, based on all available evidence, if “the injury claimed is a birth - related neurological injury.” § 766.309(1)(a), Fla. Stat.

8 . The term “birth - related neurological injury” is defined in section

766.302 (2) as follows:

“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 men tally and physically impaired. Thi s definition

shall apply to live births only and shall not include

disability or death caused by genetic or congenital

abnormality.

9 . If the administrative law judge determines that the infant meets the

statutory weight threshold, sustained a brain or s pinal cord injury caused by

oxygen deprivation or mechanical injury, and is rendered permanently and

substantially mentally and physically impaired as a result of the injury, a

rebuttable presumption arises that the injury is a birth - related neurological

i njury. § 766.309(1), Fla. Stat.

10 . Here, however, the undisputed available evidence establishes that

Abigail did not weigh at least 2,500 grams at birth, as required to prove a

compensable “birth - related neurological injury” under section 766.302(2).

1 1 . Accordingly, Abigail did not suffer a birth - related neurological injury

and is , therefore, not eligible for benefits under the Plan .

C ONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, NICA’s

unopposed Motion for Summary Final Orde r is granted because Petitioners’

claim is not compensable. Petitioners’ Petition is dismissed with prejudice.

D ONE A ND O RDERED this 1st day of December , 2020 , in Tallahassee, Leon

County, Florida.

S

A NDREW D. M ANKO

A dministrative 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 He arings

this 1st day of December, 2020 .

C OPIES F URNISHED :

(via certified mail)

Ronald S. Gilbert, Esquire

Colling Gilbert Wright & Carter, LLC

Suite 830

801 North Orange Avenue

Orlando, Florida 32801

(eServed)

(Certified Mailer 7020 1290 0001 6309 9140 )

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mailer 7020 1290 0001 6309 9157)

Amie Rice, Investigation Manag er

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mailer 7020 1290 0001 6309 9102)

Shevaun L. Harris , Acting Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(Certified Mailer 7020 1290 0001 6309 9119)

Sharon Desmarias, M.D.

Suite 2499

14540 Old St. Augustine Road

Jacksonville, Florida 32258

(Certified Mailer 7020 1290 0001 6309 9171)

Brittany Kell y, APRN

14540 Old St. Augustine Road

Jacksonville, Florida 32258

(Certified Mailer 7020 1290 0001 6309 9188)

Baptist Medical Center South

Attention: Risk Management

14550 Old St. Augustine Road

Jacksonville, Florida 32258

(Certified Mailer 7020 1290 0 001 6309 9195)

Sharon M. Desmarais, M.D.

6879 Southpoint Drive North

Jacksonville, Florida 32216

(Certified Mailer 7020 1290 0001 6309 9201)

Brittany Kelly, APRN

6879 Southpoint Drive North

Jacksonville, Florida 32216

(Certified Mailer 7020 1290 0001 6309 9164)

N OTICE OF R IGHT T O J UDICIAL R EVIEW

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 Ru les 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, accompan ied 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).