22-000205N Ashley M. Miller, On Behalf Of And As Parent And Natural Guardian Of Nikola A. Budesa, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, March 31, 2022.

Summary: Summary final order that injury is non-compensable because of undisputed evidence physician was not a "participating" physician.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A SHLEY M. M ILLER , O N B EHALF OF A ND

A S P ARENT A ND N ATURAL G UARDIAN OF

N IKOLA A. B UDESA , A M INOR ,

Petitioner , Case No. 22 - 0205N

vs.

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respond ent .

/

S UMMARY F INAL O RDER AND O RDER OF D ISMISSAL

This is a proceeding to determine whether Petitioner, Ashley M. Miller, o n

behalf of, Nikola A. Budesa (Nikola) , may obtain compensation from the Florida

Birth - Related Neurological Injury Compensation Plan ( Plan ). Florida Birth - Related

Neurological Injury Compensation Association (NICA) has moved for a s ummary

f inal o rder determining the claim is not compensable and dismissing the Petition.

NICA's Motion assert s , as the Petition states, that Dr. Cadee was the sole physician

providing obstetrical services . NICA further asserts that Dr. Cadee was not a

"participating physician" in the plan at the time of birth . NICA sup ported its motion

with the affidavit of Tim Daughtry, Custodian of Records for NICA. Mr. Daughtry

maintains NICA's official records of physicians participating in the Plan.

Mr. Daughtry's undisputed Affidavit establishes that Dr. Chadee wa s not a

participa ting physician in the Plan at the time of delivery . Ms. Miller has not filed a

response to the Motion as Florida Administrative Code Rule 28 - 106.204(1) provides.

F INDINGS OF F ACT

1. According to the Petition for Benefits, Nikola was born on October 1, 2020, in

Clearwater , Florida. The Petition identifies only Annika Chadee, M.D. , as a

physician providing obstetric services who was present at the birth of the child.

2. At the time of Nikola 's birth , Dr. Chadee was not a participating physician in

the Pl an.

C ONCLUSIONS OF L AW

3. The Division of Administrative Hearings (DOAH) has jurisdiction over the

parties to and the subject matter of these proceedings. DOAH has final order

authority in this matter. §§ 766.301 - 766.316, Fla. Stat. (2021)

4. Section 120. 57(1)(h) , Florida Statutes (2021) , authorizes a party to a

proceeding in which the Administrative Law Judge (ALJ) has final order authority

to move for a summary final order when there is no genuine issue of material fact.

The statute also requires the ALJ to render a summary final order if "no genuine

issue as to any material fact exists and that the moving party is entitled as a matter

of law to the entry of a final order."

5. Section 766. 303(1), F lorida Statues (2020) , 1 establishes "the Florida Birth -

Rel ated Neurological Injury Compensation Plan for the purpose of providing

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

A LJ of DOAH hears and determines all claims filed under the P lan.

6. Section 766.305(1)(c) requir es a person seeking compensation under the plan

to file a petition seeking compensation. The petition must include : " t he name and

1 All citations to Florida Statutes are to the 2020 codification unless noted otherwise.

address of any physician providing obstetrical services who was present at the birth

È ." The Petition in this matter identi fies only Annika Chadee, M.D. , as a physician

providing obstetric al services who was present at the birth of the child.

7. Among other things , the ALJ must determine, " w hether obstetrical services

were delivered by a participating physician in the course o f 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 postd elivery period in a

hospital." § 766.309(1)(b) , Fla. Stat . Delivery of obstetrical services by a

participating physician is an essential element of establishing entitlement to

compensatio n under the Plan.

8. " ' Participating physician ' means a physician lic ensed in Florida to practice

medicine who practices 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 - rel ated neurological

injury compensation plan for the year in which the injury occurred." § 766.302(7),

Fla. Stat.

9. As established by the Findings of Fact, Dr. Chadee was not a "participating

physician" of the Plan the year of Nikol a's injury.

10. Section 7 66.309(2) provides: " If the administrative law judge determines that

the injury alleged is not a birth - related neurological injury or that obstetrical

services were not delivered by a participating physician at the birth, she or he shall

enter an order and shall cause a copy of such order to be sent immediately to the

parties by registered or certified mail."

11. Nikola is not entitled to compensation under the Plan.

C ONCLUSION

Based upon the Findings of Fact and Conclusions of Law, NICA' s Motion for

Summa ry Final Order is Granted. Petitioner's claim is not compensable under the

Plan. The Petition is D ismis sed with prejudice.

D ONE A ND O RDERED this 31st day of March , 2022 , in Tallahassee, Leon County,

Florida.

S

J OHN D. C. N EWTON , II

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 31st day of March, 2022 .

C OPIES F URNISHED :

(via certifie d 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 2720 0000

(Certified No. 7021 2720 0000 3800 8576) 3800 8620)

Kim Kellum, Esquire Thomas M. Hoeler, 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 2720 0000 3800 8583) (Certified No. 7021 2720 0000

3800 8637)

Edward V. Ricci, Esquire

Searcy Denney Scarola Barnhart & Shipley Annika Chadee, M.D.

2139 Palm Beach Lakes Boulevard 10011 Seminole Boulevard

West Palm Beach, Florida 33409 Seminole, Florida 33772

(Certified No. 7021 2720 0000 3 800 8590) (Certified No. 7021 2720 00 00

3800 8644)

Kathe Alexander, Claims Manager

Florida Birth - Related Neurological

Injury Compensation Association

2252 Killearn Center Boulevard

Tallahassee, Florida 32309

(Certified No. 7021 2720 0000 3800 8606)

Andrew S. Bolin, Esquire Morton Plant Hospital

Bolin Law Group Attention: Risk Management

190 5 East 7th Avenue 300 Pinellas Street

Tampa, Florida 33605 Clearwater, Florida 33756

(Certified No. 7021 2720 0000 3800 8613) (Certified No. 7021 2720 0000

3800 8651)

N OTICE OF R IGHT T O J UDICIAL R EVIEW

Review of a final order of an administrative law judge shal l 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 n otice of a dministrative a pp eal

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

§ 766.31 1(1), Fla. Stat., and Fla. Birth - Related Neurological Injury Comp. Ass'n v.

Carreras , 598 So. 2d 299 (Fla. 1st DCA 1992).