21-003057N Kinney Gillyard And Savannah Gillyard O/B/O Lyle Gillyard, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, October 21, 2021.

Summary: Summary final order entered finding claim not compensable as infant did not meet minimum statutory birth weight, and claim was barred as it was filed more than five years after birth.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

K INNEY G ILLYARD A ND S AVANNAH

G ILLYARD O / B / O L YLE G ILLYARD , A M INOR ,

Petitioners , Case No. 21 - 3057N

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 8, 2021.

Petitioners did n ot file a response in opposition.

S TATEMENT OF T HE C ASE

On September 20, 2021, Petitioner s filed a Petition for Benefits Pursuant

to Florida Statute Section 7 6 6.301 et seq. (Petition) with the Division of

Administrative Hearings (DOAH), for a determinatio n of compensability

under the Florida Birth - Related Neurological Injury Compensation Plan

(Plan). The Petition named Nickoloz Tchankoshvili, M.D. , as the physician

who provided obstetric services for the birth of Lyle Gillyard (Lyle) at Orange

Park Medical Center in Orange Park, Florida, on December 30, 2015.

On October 7, 2021, DOA H mailed a copy of the Petition to Respondent,

Dr. Tchankoshvili , and Orange Park Medical Center via certified mail.

Respondent was served with the same on or before October 8, 2021.

On October 8, 2021, Respondent filed RespondentÔs Motion, requesting

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

compensable because Lyle did not meet the requisite minimum statutory

birth weight as required by section 766. 302, Florida Statutes , and because

the claim is time barred by section 766.313. Petitioner s did not file a response

to RespondentÔs Motion.

F INDINGS OF F ACT

1. Lyle was born on December 30, 2015, at Orange Park Medical Center in

Orange Park, Florida. He was a single gestation.

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

pursuant to section 766.305(3), document that LyleÔs birth weight was 2 , 490

grams.

3. The Petition was filed on September 20, 2021, five ye a rs and 264 days

af ter LyleÔs birth.

C ONCLUSIONS O F L AW

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

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

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

providing compensation, irres pective of fault, for birth - related neurological

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

§ 766.303(1), Fla. Stat.

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

dependents, and next of kin may seek com pensation 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

the 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.

7 . Respondent has determined that Petitioner s do not have a claim that is

compensable under the Plan and has filed a Motion for Summary Final

Order, requesting that an order be entered finding that the claim is not

compensable.

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

must make the following threshold determ ination 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

oxygen 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.

9 . The term Ñbirth - related neurological injuryÒ is defined in section

766.302(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 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

mentally and phy sically impaired.

10 . The Plan provides that Ñ[a]ny claim for compensation È that is filed

more than five years after the birth of the infant alleged to have a birth -

related neurological injury shall be barred.Ò £ 766.313, Fla. Stat.

11. If the ALJ dete rmines 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.

1 2 . The evidence, which is not refuted, establishe s that Lyle was a single

g estation and did not weigh at least 2,500 grams at birth. Thus, Lyle did not

sustain a birth - related neurological injury because he did not meet the

minimum statutory weight . Accordingly, Petitioners Ô claim for benefits is not

compensable under the Plan.

1 3 . Additionally, as PetitionersÔ claim was filed more than five years after

LyleÔs birth, said claim for compensation is barred.

C ONCLUSION

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

that the Petition is dismissed with preju dice.

D ONE A ND O RDERED this 2 1 s t day of October, 2021 , in Tallahassee, Leon

County, Florida.

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 2 1s t day of October, 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. 7021 1970 0000 4860 9011 )

(Certified No. 7021 1970 0000 4860 9059 )

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. 7021 1970 0000 4860 9028 )

(Certified No. 7021 1970 0000 4860 9042 )

Jack Tobias Cook, Es quire

Brooke India Charlan, Esquire Morgan & Morgan, P.A.

Morgan & Morgan 9th Floor

Suite 1600 20 North Orange Avenue

20 N Orange Ave nue Orlando, Florida 32801

Orlando, Florida 32801 (Certified No. 7021 1970 0000 4860 8984 )

(Certified No. 7021 1970 0000 4860 9004 )

Orange Park Medical Center

Kenney Shipley, Executive Director Attention: Risk Management

Florida Birth - Related Neurological 2001 Kingsley Avenue

Injury Compensation Association Orange Park, Florida 32073

Post Office Box 14567 (Certified No. 7021 1970 0 000 4860 8977 )

Tallahassee, Florida 32317

(Certified No. 7021 1970 0000 4860 9035 )

Nickoloz Tchankoshvili, M . D .

#800

6451 North Federal Highway

Fort Lauderdale, Florida 33308

(Certified No. 7021 1970 0000 4860 8991 )

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 Flor ida Rules of Appellate

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

administrative 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,

ac companied 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).