21-001311N Thomas Eisel And Lindsay Eisel, On Behalf Of And As Parents And Natural Guardians Of Nathaniel Eisel, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, June 9, 2021.

Summary: Petitioners' claim is not compensable because the physicians identified as providing obstetrical services were not participants in the NICA Plan.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

T HOMAS E ISEL A ND L INDSAY E ISEL , O N

B EHALF OF A ND A S P ARENTS A ND

N ATURAL G UARDIANS OF N ATHANIEL

E ISEL , A M INOR ,

Petitioners ,

vs. Case No. 21 - 1311N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATIO N ,

Respondent .

/

S UMMARY F INAL O RDER

On April 28, 2021, Respondent, Florida Birth - Related Neurological Injury

Compensation Association (NICA), filed a Moti on for Summary Final Order

asserting that the injury to PetitionersÔ child is not compensable because the

physicians providing obstetrical services were not participating physicians.

After review of the documents submitted and the response by Petitioners,

RespondentÔs Motion is granted.

S TATEMENT OF T HE I SSUE

The issue for determination is whether Nathaniel Eisel (Nathani e l or the

child), the minor child of Thomas Eisel and Lindsay Eisel, is entitled to

compensation from Respondent based on a birth - related neurological injury.

P RELIMINARY S TATEMENT

On April 12, 2021, Thomas Eisel and Lindsay Eisel, as NathanielÔs

parents and natural guardians, filed a Petition for Benefits Filed Pursuant to

Florida Statute Section 766.301 et seq. ( t he Petition). The Petiti on identified

Bhupendrakum Patel, M.D., and Brandon M. Kuchta, D.O., as the physicians

providing obstetrical services, and Osceola Medical Center in Kissimmee,

Florida, as the hospital where Nathaniel was born. On April 20, 2021, NICA,

Osceola Medical Cent er, and both physicians were served with copies of the

Petition by certified mail.

On April 28, 2021, NICA filed a Motion for Summary Final Order.

Petitioners did not file a response within the time frame specified by Florida

Administrative Code Rule 28 - 106.204. On May 18, 2021, an Order to Show

Cause was issued, directing Petitioners to file a response no later than

May 25, 2021, or it would be assumed that Petitioners do not object to the

issuance of a Summary Final Order. Petitioners filed a response o n June 2,

2021, stating that Petitioners do not object to the entry of a final order

finding that the claim is not compensable under NICA due the providers not

being participants under the NICA Plan.

F INDINGS OF F ACT

Based on the allegations in the Petiti on and the affidavit submitted in

support of the Motion for Summary Final Order, the following facts are

found :

1. Nathaniel was born on July 19, 2017. According to the Petition,

Bhupendrakum Patel, M.D., and Brandon M. Kuchta, D.O., were the

physicians pr oviding obstetrical services.

2. NICA alleges that neither physician was a participating physician at

the time of the injury to the minor child. NICA supports its position with an

affidavit signed by NICAÔs record s custodian, which states that Dr. Patel ha d

not paid the required assessment for participation in the Plan and was not

exempt from payment of the assessment. The affidavit also states that

NICAÔs physician database contains no entries for Brandon M. Kuchta , D.O .

3. Petitioners do not dispute NICAÔ s assertion that neither physician was

a participating physician in the NICA program, and it is found that the two

physicians did not participate in the Plan for the year in which Nathaniel

was born.

C ONCLUSIONS OF L AW

4. The Division of Administrative He arings has jurisdiction over the

parties and the subject matter of these proceedings. §§ 766.301 - 766.316, Fla.

Stat.

5. The Florida Birth - Related Neurological Injury Compensation Plan (the

Plan) was established by the Florida Legislature Ñfor the purpose o f providing

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

claimsÒ related to births occurring on or after January 1, 1989. £ 766.303(1),

Fla. Stat.

6. An injured child, his or her parents, or other specified individuals may

see k compensation under the Plan by filing a claim for compensation with the

Division of Administrative Hearings. §§ 766.302(3), 766.303(2), and 766.305,

Fla. Stat.

7. After reviewing the claim and documents specified in section

766.305(1), if NICA determine s that the alleged injury is a birth - related

neurological injury that is compensable under the Plan, it may award

compensation, provided the award is approved by the assigned

administrative law judge. However, if NICA disputes the claim, as it does

here, t he dispute must be resolved by an administrative law judge in

accordance with chapter 120, Florida Statutes. §§ 766.305(7), 766.304,

766.30, and 766.31, Fla. Stat.

8. In order for the claim to be compensable, section 766.309 provides that

certain factors m ust be demonstrated, stating:

(1) The administrative law judge shall make the

following determinations based upon all available

evidence:

(a) Whether the injury claimed is a birth - related

neurological injury .È

(b) Whether obstetrical services were deliv ered by a

participating physician in the course of labor,

delivery, or resuscitation in the immediate

postdelivery period in a hospital; or by a certified

nurse midwife in a teaching hospital supervised by

a participating physician in the course of labor,

delivery, or resuscitation in the immediate

postdelivery period.

* * *

(2) If the administrative law judge determines that

the injury alleged is not a birth - related neurological

injury or that the obstetrical services were not

delivered by a participati ng physician at the birth,

she or he shall enter an order È. (emphasis added ) .

9. The Petition alleges Dr. Patel and Dr. Kuchta provided obstetrical

services. The undisputed evidence indicates that neither physician was a

participant in the Plan at the ti me of NathanielÔs birth. Because the

physicians were not participating physicians, the claim is not compensable

under the Plan.

C ONCLUSION

Based on the Findings of Fact and Conclusions of Law above, PetitionersÔ

claim is not compensable under the Plan, an d the Petition is dismissed with

prejudice.

D ONE A ND O RDERED this 9th day of June , 2021 , in Tallahassee, Leon

County, Florida.

S

L ISA S HEARER N ELSON

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of June , 2021 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Simone Marstiller , Secretary

Consumer Services Unit Agency for Health Care Administration

Department of Heal th 2727 Mahan Drive, Mai l Stop 1

4052 Bald Cypress Way, Bin C - 75 Tallahassee, Florida 32308

Tallahassee, Florida 32399 - 3275 (Certified No. 7020 2450 0000 1058 7360)

(Certified No. 7020 2450 0000 1058 7353)

Thomas M. Hoeler, Esquire

Kim Kellum, Esquire Agency for Health Care Administration

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308

Tallahassee, Florida 32308 (Certified No. 7020 2450 0000 1058 73 84 )

(Certified No. 7020 2450 0000 1058 7377)

Kenney Shiple y, Executive Director

Craig M. Harris, Esquire Florida Birth - Related Neurological

Craig Harris Law Injury Compensation Association

301 W est Platt St reet A36 Suite 1

Tampa, Florida 33606 2360 Christopher Place

(Certified No. 7020 2450 0000 1058 7391) Tallahassee, Florida 32308

(Certified No. 7020 2450 0000 1058 7407)

Osceola Regional Medical Center

Attention: Risk Management Brandon Kuchta, D.O.

700 West Oak Street Suite 501

Kissimmee, Florida 34741 8905 West Lincoln Avenue

(Certif ied No. 7020 2450 0000 1058 7414) West All is, Wisconsin 53227

(Certified No. 7020 2450 0000 1058 7421)

Bhupendrakum M. Patel, M.D.

Suite 2 and 3

207 Park Place Boulevard

Kssimmee, Florida 34741

(Certified No. 7020 2450 0000 1058 7438)

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.

R eview 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 o f 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 2 99

(Fla. 1st DCA 1992).