STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERRY TAYLOR and LATRINA TAYLOR, as )

Parents and Natural Guardians of ) TERRI TAYLOR, )

)

Petitioners, )

)

vs. ) CASE NO. 93-2979N

) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )

)

Respondent. )

______________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings by and through its duly assigned Hearing Officer, Charles Adams, held a formal hearing on Tuesday, December 7, 1993, at 231 Forsyth Street, Room 420, Jacksonville, Florida. The official file of the Division reflects that notice of such hearing was mailed unreturned to all parties of record.

APPEARANCES

For Petitioner: No Appearance

For Respondent: W. Douglas Moody, Jr., Esquire

Taylor, Brion, Buker, & Greene

225 South Adams Street, Suite 250 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The issues presented in this cause are: (1) Whether or not the Petitioner, Terri Taylor weighed at least 2500 grams at birth; (2) Whether or not the Petitioner, Terri Taylor, suffered a brain or spinal cord injury resulting from oxygen deprivation or mechanical injury during labor, delivery or resuscitation in the immediate post-delivery period in a hospital; (3) Whether such injury resulted in a permanent and substantial mental and physical impairment to Petitioner Terri Taylor; and, (4) Whether or not obstetrical services were delivered by a participating physician in the course of labor, delivery or resuscitation in the immediate post- delivery period in a hospital.

PRELIMINARY STATEMENT

At the hearing on this cause, the Petitioners did not attend and offered no evidence in support of their claim.

The Respondent offered the depositional testimony of Michael S. Duchowny, M.D., who practices medicine at the Miami Children's Hospital as a board certified pediatric neurologist. The subject deposition was received into evidence without objection.

FINDINGS OF FACT

1. That Terri Taylor, a minor, was born to Latrina Taylor on February 1, 1991, at Baptist Medical Center, 800 Prudential Drive, Jacksonville, Florida 32207.

2. That the physician delivering obstetrical services during the birth of Terri Taylor was H. Wade Barnes, Jr., M.D., who at all times material to this cause was a "participating physician" with the Florida Birth-Related Neurological Injury Compensation Plan.

3. That the estimated fetal weight of Terri Taylor at birth was in excess of 2500 grams.

4. That Terri Taylor was neurologically evaluated on June 24, 1992 at the Miami Children's Hospital by Michael S. Duchowny, M.D.

5. That Dr. Duchowny, a board certified pediatric neurologist, concluded that Terri Taylor suffered from a substantial neurological deficit involving spasticity in all four limbs, cortical blindness, microcephaly, and a complete lack of expressive language skills.

6. That the neurological deficits experienced by Terri Taylor were not the result of oxygen deprivation or mechanical injury suffered during labor, delivery, or resuscitation in the immediate post-delivery period. Instead, the evidence of record indicates that the organic

   brain damage suffered by Terri Taylor is a result of a prenatally acquired infection which caused irreversible brain damage in a pattern consistent with such a process. Specifically, a neuroimaging study (MRI) demonstrated the existence of cystic encephalomalacia represented by multiple cystic cavities throughout the brain with fibrotic bands around the cavities. This is a pattern of brain damage consistent with a prenatally acquired infection.

7. Based upon the foregoing medical evidence, Dr.

   
   

   Duchowny concluded that Terri Taylor suffered from a prenatally acquired infection which resulted in extensive cystic encephalomalacia as evidenced in the neuroimaging studies. Therefore, Dr. Duchowny concluded that Terri Taylor did not suffer from a birth-related neurological injury as defined at Section 766.302(2) Florida Statutes. His findings are accepted.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in these proceedings pursuant to Section 766.301, et seq, Florida Statutes, as amended by Chapter 93-251, Laws of Florida.

   
   

9. The Florida Birth-Related Neurological Injury Compensation Plan (hereinafter referred to as the "Plan") was established by the Legislature "for the purpose of

   providing compensation, irrespective of fault, for birth- related neurological injury claims" relating to births occurring on or after January 1, 1989. Section 766.303(1), Florida Statutes.

10. The injured "infant, his personal representative, parents, dependents, and next of kin" may seek compensation under the Plan by filing a claim for compensation with the Division within five years of the infant's birth. Sections 766.302(3), 766.303, (2), 766.305(1) and 766.313 Florida Statutes.

11. NICA, which administers the Plan, has "45 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 alleged is a birth-related neurological injury." Section 766.305(3), Florida Statutes.

12. A "birth-related neurological injury," as that term is used in Sections 766.301 through 766.316, Florida Statutes, is "an injury to the brain or spinal cord of a live infant weighing at least 2,500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant

    permanently and substantially mentally and physically impaired." Section 766.302(2), Florida Statutes.

13. There is no entitlement to compensation under the Plan for an injury that does not fall within this definition.

14. If NICA determines that the injury alleged in a claim is a compensable birth-related neurological injury, it may award compensation to the claimant(s), provided that the award is approved by the Division Hearing Officer to whom the claim has been assigned. Section 766.305(6), Florida Statutes.

15. If, on the other hand, NICA disputes the claim, the dispute must be resolved by the assigned Hearing Officer in accordance with the provisions of Chapter 120, Florida Statutes. Sections 766.304, 766.307, 766.309 and 766.301, Florida Statutes.

16. In discharging this responsibility, the Hearing Officer must make the following determinations based upon all available evidence:

    1. Whether the injury claimed is a birth- related neurological injury. If the claimant has demonstrated, to the satisfaction of the hearing officer, 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 Section 766.302(2) Florida Statutes.

    2. Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery 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 post-delivery period in a hospital.

    3. How much compensation, if any, is awardable pursuant to Section 766.31, Florida Statutes. Section 766.309(1), Florida Statutes.

       
       

17. "If the hearing officer determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at birth, he [is required to] enter an order [to such effect] and . . . cause a copy of such order to be sent immediately to the parties by registered or certified mail." Section 766.309(2) Florida Statutes.

18. Such an order constitutes final agency action subject to appellate court review. Section 766.311(1), Florida Statutes.

19. In the instant case, NICA has disputed the Taylor claim and maintains that Petitioners are not entitled to compensation under the Plan. Therefore, Petitioners must prove their entitlement to compensation. Section 766.309(1)(a), Florida Statutes.

20. Based upon the proof presented at the final hearing, it must be concluded that on February 1, 1991, Terri Taylor did not suffer an injury to the brain or spinal cord resulting from oxygen deprivation or mechanical injury during the course of labor, delivery, or resuscitation in the immediate post-delivery period which rendered Terri Taylor permanently and substantially mentally and physically impaired. Accordingly, the subject claim is not compensable under the Plan. Sections 766.302(2), 766.309(1) and 766.310(1) Florida Statutes.

ORDER

WHEREFORE, it is ORDERED, that the petition filed by Terry Taylor and Latrina Taylor individually and as parents and natural guardians of Terri Taylor, a minor, and the same is hereby denied with prejudice.

DONE and ORDERED this 10th day of February, 1994, in Tallahassee, Florida.

___________________________________ CHARLES C. ADAMS,

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1994.

APPENDIX TO FINAL ORDER, CASE NO. 93-2979N

The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Respondent's Facts:

Respondent's proposed facts have been adopted.

COPIES FURNISHED:

(By Certified Mail)

W. Douglas Moody, Jr., Esquire

225 South Adams Street, Suite 250 Tallahassee, Florida 32302

Terry and Latrina Taylor 3627 Paleface Street

Jacksonville, Florida 32210

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association

315 Calhoun Street, Barnett Bank, Suite 312

Tallahassee, Florida 32302

Bill O'Neil, Esquire Department of Insurance The Capitol, PL-11

Tallahassee, Florida 32399-0300

Tanya Williams

Division of Health Quality Assurance Hospital Section

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Sue Foster, Chief

Department of Business and Professional Regulation, Bureau of Complaints

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Hospital Administrator Miami Children's Hospital 3200 South West 60th Court Miami, Florida 33155

Michael Duchowny, M.D. Department of Neurology Miami Children's Hospital 3200 South West 60th Court Miami, Florida 33155

H. Wade Barnes, Jr., M.D. Miami Children's Hospital 3200 South West 60th Court Miami, Florida 33155

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules Of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk Of The Division Of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court Of Appeal, First District, or with the District Court Of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 93-002979N

Orders for Case No: 93-002979N