21-002544N Ericka Gardener And Lorinza Hollinger, Individually And As Parents And Natural Guardians Of Zyon Hollinger, Minor Child vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, October 21, 2021.

Summary: Obstetrical services were not provided by a ?participating physician? as defined in section 766.302. Therefore, Petitioner?s claim does not meet the requirements for eligibility for compensation under the NICA Plan.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

E RICKA G ARDENER A ND L ORINZA

H OLLINGER , I NDIVIDUALLY A ND A S

P ARENTS A ND N ATURAL G UARDIAN S OF

Z YON H OLLINGER , M INOR C HILD ,

Petitioner s ,

vs. Case No. 21 - 2544 N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent,

and

B AYFRONT HMA M EDICAL C ENTER , LLC

D/B/A B AYFRONT B ABY P LACE ,

Intervenor.

/

S UMMARY F INAL O RDER

This cause comes for consideration on Respondent's Motion for Summary Final

Order, filed on September 2 4 , 2021. Respondent moves for entry of a final order

determining that Petitioner s ' claim is not compensable under the provisions of

chapter 766.301, et seq. , Florida Statu t e s .

S TATEMENT OF T HE C ASE

On August 23 , 2021 , Petitioner s , Ericka Gardener and Lorinza Hollinger,

individually and as parents and natural guardians of Zyon Hollinger (" Zyon "), a

minor child , filed a n Amended Petition for Benefits Pursuant to Florida Statu te

Section 766.301 et seq. (the "Petition") , with the Division of Administrative

Hearings ("DOAH") for a determination of compensability under the Florida Birth -

Related Neurological Injury Compensation Plan (the "Plan"). 1

The Petition i dentified Jenny Marie Bagg, APRN, and Courtney Nicole Mascoe,

M.D., as the healthcare practitioners who provided obstetrical services at Zyon 's

birth on November 21, 2019, at Bayfront HMA Medical Center, LLC d/b/a Bayfront

Baby Place ("Bayfront") in St. Petersburg, Florid a.

DOAH served Ms. Bagg and Dr. Mascoe w ith copies of the Petition on August 24,

2021, and served Ba yfront that same date. DOAH also served Respondent, the

Florida Birth - Related Neurological Injury Compensation Association ("NICA") , with

a copy of the Pe tition on A ugust 24, 2021 .

B ayfront moved to intervene in this matter on August 24, 2021, which was

granted.

On September 24, 2021, NICA filed a Motion for Summary Final Order , with

supporting affidavit, requesting the Administrative Law Judge enter a summary

final order finding that Petitioner s ' claim is not compensable under the NICA

statute because the healthcare providers who delivered Zyon were not

"participating physicians" under section 766.302(7).

On September 27, 2021, Petitioner s filed a Re sponse to Respondent's Motion for

Summary Final Order stating that they did not oppose Respondent's motion.

Intervenor Bayfront did not file a response to NICA's motion.

F INDINGS OF F ACT

1. Zyon was born on August 8, 2019 , at Brandon Regional located in B randon ,

Florida.

1 Petitioners filed an initial Petition on August 17, 2021.

2. According to Petitioners ' Petition, Jenny Marie Bagg, APRN, and Courtney

Nicole Mascoe, M.D., were the delivering physicians at Zyon's birth at Brandon

Regional. In addition, NICA, upon review of the pertinent medical records,

determine d that Michael Kinder, M.D., and Amy Gabriel, M.D., also provided

healthcare services at Zyon's birth.

3. To support its motion, NICA produced from its official records a payment

history , which shows that, in 201 9 (the year Zion was born) , neither Dr. Kin der nor

Dr. Gabriel pa id to NICA the annual $5,000 assessment required of physicians who

elect to participate in the Plan. On the contrary, the payment history for D r. Kinder

and Dr. Gabriel reveals that t he y paid $250 to NICA, which is the specific

assess ment for physicians who elect not to participate in the Plan. See

§ 766.314(4)(b) and (5)(a) , Fla. Stat. In addition, NICA's files do not contain a ny

record of an annual $2,500 assessment payment from Ms. Bagg for 2019 , which was

required for her participa tion in the Plan . See § 766.314(4)(c), Fla. Stat. Further, no

evidence was presented demonstrating that either Dr. Kinder, Dr. Gabriel, or

Ms. Bagg were exempt from paying the assessment to participate in the Plan in

201 9 .

4. B ased on the evidence in it s records, NICA determined , on the date that Zyon

was born, neither Ms. Bagg, Dr. Kinder, nor Dr. Gabriel qualified as "participating

physicians" in the Plan as that term is defined in section 766.302(7). Therefore,

NICA asserts that PetitionersÔ claim d oe s not meet the statutory requirements for

compensability under the Plan.

5. Petitioner s do not oppos e NICAÔs motion or representations. Bayfront did not

file a response opposing NICA's motion or offering evidence to the contrary.

C ONCLUSIONS OF L AW

6 . The Division of Administrative Hearings has jurisdiction over the parties and

the subject matter of this proceeding pursuant to sections 766.301 through 766.316.

The undersigned, as an Administrative Law Judge ("ALJ"), has "exclusive

jurisdiction to determine whether a claim filed under NICA is compensable."

§§ 766.301(1)(d), 766.304, and 766.311(1), Fla. Stat.

7 . T he Florida Legislature created the Plan as a means to alleviate the high

costs of medical malpractice insurance for physicians practicing obstetric s. Bennett

v. St. Vincent's Med. Ctr., Inc. , 71 So. 3d 828, 836 (Fla. 2011); and Univ. of Miami v.

Ruiz , 164 So. 3d 758, 764 (Fla. 3d DCA 2015). The Plan's purpose is to "provid[e]

compensation, irrespective of fault, for birth - related neurological injury claims."

§ 766.303(1), Fla. Stat.

8. When considering whether a claim is compensable under the NICA Plan,

section 766.309(1) charges the ALJ to make the following determinations based

upon "all available evidence" :

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

neurological injury ... ;

(b) Whether obstetrical services were delivered 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 tea ching

hospital supervised by a participating physician in the

course of labor, delivery, or resuscitation in the immediate

postdelivery period in a hospital; and

(c) How much compensation, if any, is awardable

pursuant to s. 766.31.

(d) Whether, if rais ed by the claimant or other party, the

factual determinations regarding the notice requirements

in s. 766.316 ar e satisfied. The administrative law judge

has the exclusive jurisdiction to make these factual

determinations.

9 . The term Ñparticipating physicianÒ is defined in section 766.302(7) , and

means:

a physician licensed in Florida to practice medicine who

prac tices obstetrics or performs obstetrical services either

full time or part time and who had paid or was exempted

from payment at the time of the injury the assessment

required for participation in the birth - related neurological

injury compensation plan for the year in which the injury

occurred. Such term shall not apply to any physician who

practices medicine as an officer, employee, or agent of the

Federal Government.

10. S ection 766.314(4)(c) further states:

Participating physicians include any certified nurse

midwife who has paid 50 percent of the physician

assessment required by this paragraph and paragraph

(5)(a) and who is supervised by a participating physician

who has paid the assessment required by this paragraph

and paragraph (5)(a).

1 1 . The Plan provides limited remedies as a statutory substitute for common law

rights and liabilities. Therefore, the NICA statute "should be strictly construed to

include only those subjects clearly embraced within its terms." Bennett , 71 So. 3d at

836; and Fla . Bir th - Related Neuro . Injury Comp. Ass'n v. Fl a. Div. of Admin.

Hearings , 686 So. 2d 1349 (Fla. 1997) .

1 2 . Upon determining that a claim qualifies for compensation, section 766.31(1)

directs that:

Upon determining that an infant has sustained a birth -

related neurological injury and that obstetrical services

were delivered by a participating physician at the birth,

the administrative law judge shall make an award

providing compensation for the following items relative to

such injury:

1 3 . On the other hand, if a claim does not qualify for an award of compensation,

section 766.309(2) instructs:

If the administrative law judge determines that È

obstetrical services were not delivered by a participating

physician at the birth, she or he shall enter an order and

sh all cause a copy of such order to be sent immediately to

the parties by registered or certified mail.

1 4 . The burden of proof in this matter falls on Petitioners , as the "claimant s ," to

prove that Zyon is covered by the NICA Plan. § 766.302 , Fla. Stat., a nd Balino v.

Dep't of Health & Rehab. Servs. , 348 So. 2d 349, 350 (Fla. 1st DCA 1977) (" The

general rule is, that as in court proceedings, the burden of proof, apart from statute,

is on the party asserting the affirmative of an issue before an administrativ e

tribunal."). If Petitioners demonstrate the statutory prerequisites for NICA benefits,

a rebuttable presumption of compensation arises in their favor. Bennett , 71 So. 3d

at 845; and Fla. Health Scis. Ctr., Inc. v. Div. of Admin. Hearings , 974 So. 2d 1096 ,

1099 (Fla. 2d DCA 2007).

1 5 . The preponderance of the evidence standard is applicable to this matter. See

§ 120.57(1)(j), Fla. Stat.

1 6 . Turning to the injury in this case, b ased upon Ñall available evidence,Ò the

obstetrical services Zyon received at his birth were not delivered by a Ñparticipating

physician , Ò as defined in section 766.302(7). Therefore, Petitioner s Ô claim does not

meet the requirements for compensation under the Plan, and Zyon is not eligible for

NICA benefits.

D ISPOSITION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

O RDERED that the Petition is D ISMISSED , with prejudice.

D ONE A ND O RDERED this 21st day October , 2021 , in Tallahassee, Leon County,

Florida.

S

J. B RUCE C ULPEPPER

Administrative Law Judge

Div ision 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

T his 21st day o f Oct ober , 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 Health 2727 Mahan Drive, Mail Stop 1

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

Tallahassee, Florida 32399 - 3275 (Certified No. 7020 2450 0000 1053 7570)

(Certified No. 7020 2450 0000 1053 7624)

Thomas M. Hoeler, Esquire

Kim Kellum, Esquir e 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 1053 7563)

(Certified No. 7020 2450 0000 1053 7617)

Armando T. Lauritano, Esquire

Kenney Shipley, Executive Director Morgan & Morgan

Florida Birth - Related Neurological 201 North Franklin Street

Injury Compensation Association 7th Floor

Post Office Box 14567 Tampa, Florida 33602

Tallahassee, Florida 32317 (Certified No . 7020 2450 0000 1053 5229)

(Certified No. 7020 2450 0000 1053 7600)

Jenny Marie Bagg, APRN

David P. Ferrainolo, Esquire 1344 22nd Street South

Hall, Prangle and Schoonveld, St. Petersburg, Florida 33712

3507 East Frontage Road , Suite 140 (Certified No. 7020 2450 0000 1053 7525)

Tampa, Florida 33607

(Certified No. 7020 2450 0000 1053 7594)

Courtney Nicole Ma scoe, M.D.

700 6th Street South

St. Petersburg, Florida 33701

(Certified No. 7020 2450 0000 1053 7587)

N OTICE OF R IGHT T O J UDICIAL R EVIEW

Review of a final order of a n 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 origin al notice of administrative appeal

with the agency clerk 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 Distric t 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).