22-001262N Michael Barkema And Tanja Barkema O/B/O Jonathan Barkema, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, July 26, 2022.

Summary: The parties agreed that the injury was not compensable. Unopposed Motion for Summary Final Order Granted.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M ICHAEL B ARKEMA A ND T ANJA B ARKEMA

O/B/O J ONATHAN B ARKEMA , A M INOR ,

Petitioner s ,

vs. Case No. 22 - 1262N

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 cause come s before the undersigned on Respondent ' s Unopposed

Motion for Summary Final Order, filed July 14, 2022. Petitioners have not

oppos ed the m otion , and the motion states that Petitioners do not oppose the

motion .

The m otion of Respondent, Florid a Birth - Related Neurological Injury

Compensation Association (NICA), seeks entry of a s ummary f inal o rder

pursuant to sections 120.57(1)(h) and 766. 309, Florida Statutes (2021) ,

(1) determining that the claim in this case is not compensable under the

NICA plan because Jonathan Barkema did not suffer a birth - related

neurological injury as defined by section 766.302(2); and (2) dismissing this

claim wit h prejudice.

I SSUE

Did Jonathan Barkema suffer a " birth - related neurological injury, " as

defined by section 766.302(2), for which compensation should be awarded

under the Florida Birth - Related Neurological Injury Compensation Plan

(Plan)?

F INDINGS OF F AC T

1. Petitioners, Michael Barkema and Tanja Barkema, are the parents of

Jonathan and bring this action on his behalf.

2. Jonathan was born on August 24, 2021, at Sarasota Memorial Hospital.

3. The Barkemas filed a Petition, Under Protest for Plan Benefits, on

March 24, 2022. NICA contested the Petition asserting that Jonathan ' s injury

was not compensable by the Plan because the injury did not meet the

definition of a birth - related neurological injury as defined in section

766.302(2).

4. NICA retained two ex perts to determine whether Jonathan had

suffered a compensable injury. The written opinion of Donald C. Willis, M.D . ,

based upon his review of pertinent medical records, establishes that

Jonathan experienced oxygen deprivation during labor and delivery and

during the immediate post - delivery period but that the deprivation did not

result in permanent or substantial brain injury.

5. The written opinion of Luis E. Bello - Espinosa, M.D. , based on

examination of the medical records and the child, similarly establ ishes that

Jonathan does not have " permanent substantial mental or physical

impairments that occurred during labor, delivery, or the immediate post -

delivery period. "

C ONCLUSIONS OF L AW

6. The Division of Administrative Hearings (DOAH) has jurisdiction ov er

the parties to and the subject matter of these proceedings. §§ 766.301 -

766.316, Fla. Stat.

7. The Legislature established the Plan " for the purpose of providing

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

claims " related t o births occurring on or after January 1, 1989. § 766.303(1),

Fla. Stat.

8. An injured infant, his or her personal representative, parents,

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

a claim for compensation with DOAH. §§ 7 66.302(3), 766.303(2), and

766.305(1), Fla. Stat. Section 766.305(4) provides that NICA, which

administers the Plan, has 45 days from the date that a complete claim is

served to file a response to the petition and to submit relevant written

information rel ating to the issue of whether the injury is a birth - related

neurological injury. In this case that time period was enlarged.

9. If NICA determines that the alleged injury is a birth - related

neurological injury that is compensable under the Plan, it may aw ard

compensation to the claimant, provided that the award is approved by the

assigned administrative law judge. § 766.305(7), Fla. Stat. However, if NICA

disputes the claim, as it does in this case, the dispute must be resolved by the

assigned administrati ve law judge in accordance with sections 766.304 and

766.31.

10. The first inquiry is whether the infant has sustained a birth - related

neurological injury as defined by section 766.302(2).

11. In this case, the uncontested evidence does not support a findi ng that

the injury is a birth - related neurological injury. Based upon the evidence and

the F indings of F act, Johnathon did not sustain a birth - related neurological

injury as defined in section 766.302(2). Petitioners are , therefore , not eligible

for benefi ts under the Plan.

C ONCLUSION

Based upon the Findings of Fact and Conclusions of Law above,

Petitioners ' claim is not compensable under the Plan. The Petition is

dismissed with prejudice.

D ONE A ND O RDERED this 26th day of July , 2022, in Tallahassee, Le on

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 Hea rings

this 26th day of July , 2022 .

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 2720 0000

(Certified No. 7021 2720 0000 3800 696 1) 3800 7012)

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 Driv e, Mail Stop 3

Tallahassee, Florida 32308 Tallahassee, Florida 32308

(Certified No. 7021 2720 0000 3800 6978) (Certified No. 7021 2720 0000

3800 7029)

Kathe Alexander, Claims Manager

Florida Birth - Related Neurological Brooke India Charlan, Esquire

Injury Compensation Asso ciation Morgan & Morgan, P.A.

2252 Killearn Center Boulevard 20 North Orange Avenue , Suite 1600

Tallahassee, Florida 32309 Orlando, Florida 32801

(Certified No. 7021 2720 0000 3800 6985) (Certified No. 7021 2720 0000

3800 7036)

Jack Tobias Cook, Esquire

Morgan & Morgan, P.A.

20 North Orange Avenue , Suite 1600

Orlando, Florida 32801

(Certified No. 7021 2720 0000 3800 6992 )

Sarasota Memorial Hospital Brooke M. Ga ffney, Esquire

Attention: Risk Management Smith, Stout, Bigman & Brock, P.A.

1700 South Tamiami Trail 444 Seabreeze Boulevard , Suite 900

Sarasota, Florida 32239 Daytona Beach, Florida 32118

(Certified No. 7021 2720 0000 3800 7005) (Certified No. 7021 2720 0000

3800 6 855 )

Kathhryn Gard, M.D.

1921 Waldemere Street, Suite 802

Sarasota, Florida 34239

(Certified No. 7021 2720 3800 7043)

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.

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 ppe al 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 § 766.311 (1), Fla. Stat., and Fla.

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

(Fla. 1st DCA 1992).