21-002886N Jamie Hart O/B/O Princess Hart, A Deceased Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, November 8, 2021.

Summary: Petitioner not entitled to compensation under the Plan as the infant did not meet the statutory minimum birth weight.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

J AMIE H ART O / B / O P RINCESS H ART , A

D ECEASED M INOR ,

Petitioner ,

Case No. 21 - 2886N

vs.

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This matter came before the undersigned on RespondentÔs Motion for

Summary Final Order (RespondentÔs Motion), filed October 27, 2021.

Petitioner did not file a response in opposition.

S TATEMENT OF T HE C ASE

On September 22, 2021, Petitioner filed a Petition , Under Protest, for

Benefits Pursuant to Florida Statute Section 7 6 6.301 et seq. (Petition) with

the Division of Administrative Hearings (DOAH), for a determination o f

compensability under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan). The Petition named Alfredo Nova, M.D., as the

physician who provided obstetric services for the birth of Princess Hart

(Princess) at Tallahassee Memorial HealthC are (TMH) in Tallahassee,

Florida, on January 12, 2021.

On September 22, 2021, DOA H mailed a copy of the Petition to

Respondent, Dr. Nova, and TMH via certified mail. Respondent was served

with the same on September 25, 2021.

On October 27, 2021, Respon dent filed RespondentÔs Motion, requesting

that a summary final order be entered finding that the claim is not

compensable because Princess did not meet the requisite minimum statutory

birth weight as required by section 766.302, Florida Statutes .

F INDING S OF F ACT

1. Princess was born on January 12, 2021, at TMH in Tallahassee,

Florida. She was a single gestation.

2. The unrefuted medical records provided by Petitioner to Respondent,

pursuant to section 766.305(3), document that PrincessÔs birth weight wa s

2,390 grams.

C ONCLUSIONS OF L AW

3 . DOAH has jurisdiction over the parties to and the subject matter of

these proceedings. §§ 766.301 - 766.316, Fla. Stat.

4 . The Plan was established by the Legislature Ñfor the purpose of

providing compensation, irrespe ctive of fault, for birth - related neurological

injury claimsÒ related to births occurring on or after January 1, 1989.

§ 766.303(1), Fla. Stat.

5 . The injured infant, her or his personal representative, parents,

dependents, and next of kin may seek compe nsation under the Plan by filing

a claim for compensation with DOAH. §§ 766.302(3), 766.303(2), and

766.305(1), Fla. Stat. Respondent, which administers the Plan, has Ñ45 days

from the date of service of a complete claim...in which to file a response to th e

petition and to submit relevant written information relating to the issue of

whether the injury is a birth - related neurological injury.Ò £ 766.305(4), Fla.

Stat.

6 . Respondent has determined that Petitioner do es not have a claim that

is compensable unde r the Plan and has filed RespondentÔs Motion , requesting

that an order be entered finding that the claim is not compensable.

7 . In ruling on RespondentÔs Motion, the administrative law judge (ALJ)

must make the following threshold determination based upon the available

evidence:

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

neurological injury . If the claimant has

demonstrated, to the satisfaction of the

administrative law judge, that the infant has

sustained a brain or spinal cord injury caused by

o xygen deprivation or mechanical injury and that

the infant was thereby rendered permanently and

substantially mentally and physically impaired, a

rebuttable presumption shall arise that the injury

is a birth - related neurological injury as defined in

s. 766.302 (2).

§ 766.309(1), Fla. Stat.

8 . The term Ñbirth - related neurological injuryÒ is defined in

section 766.3 02(2) as follows:

ÑBirth - related neurological injuryÒ 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 b irth 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

mentally and physically impaired.

9. If the ALJ determines that the injury is not a birth - related neurological

injury, he or she is required to enter an order and immediately provide a copy

to the parties. § 766.309(2), Fla. Stat.

10 . The evidence, which is not refuted, establishe s tha t Princess was a

single gestation and did not weigh at least 2,500 grams at birth. Thus,

Princess did not sustain a birth - related neurological injury because s he did

not meet the minimum statutory weight . Accordingly, Petitioner Ôs claim for

benefits is not compensable under the Plan.

C ONCLUSION

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

O RDERED that the Petition is D ISMISSED with prejudice.

D ONE A ND O RDERED this 8 th day of November, 2021 , in Tallahassee, Leon

County, Florid a.

S

T ODD P. R ESAVAGE

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 8 th day of November, 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 0002 1970 6678 )

(Certified No. 7020 2450 0002 1970 6654 )

Thomas M. Hoeler, Esquire

Kim Kellum, Esquire Agency for Health Ca re Administration

Agency for Health Care Adminis tration 2727 Mahan Drive, Mail Stop 3

2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308

Tallahassee, Florida 32308 (Certified No. 7020 2450 0002 1970 6685 )

(Certified No. 7020 2450 0002 1970 6661 )

Brooke India Charlan, Esquire Jack Tobias Cook, Esquire

Morgan & Morgan Morgan & Morgan, P.A.

20 N Orange Ave Suite 1600 9th Floor

Orlando, Florida 32801 20 North Orange Avenue

(Certified No. 7020 2450 0002 1970 6692 ) Orlando, Florida 32801

(Certified No. 7020 2450 0002 1970 6722 )

Kenney Shipley, Executive Director

Florida Birth - Related Neurological Tallahassee Memorial Healthcare

Injury Compensation Association Attention: Risk Management

Post Office Box 14567 1300 Miccosukee Road

Tallahassee, Florida 32317 Tallahassee, Florida 32308

(Certified No. 7020 2450 0002 1970 6708 ) (Certified No. 7020 2450 0002 1970 6739 )

Alfredo Nova, M.D.

1634 North Plaza Drive

Tallahassee, Florida 3230 8

(Certified No. 7020 2450 0002 1970 6715 )

N OTICE O F 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 Rules of Appellate

Procedure. Such proceedings are commenced by filing the original notice of

administrativ e appeal 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 § 7 66.311(1), Fla. Stat., and Fla.

Birth - Related Neurological Injury Comp. Ass'n v. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).