STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLOR CARRERAS, as parent and ) natural guardian of MARIA THEODORA ) CARRERAS, and FLOR CARRERAS, )
individually, )
)
Petitioners, )
)
vs. ) CASE NO. 93-3015N
) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )
)
Respondent. )
)
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on June 8, 1994, in Miami, Florida.
APPEARANCES
For Petitioners: Glenn Falk, Esquire
Edward Hernandez, Esquire Parenti, Falk, Waas & Frazier
113 Almeria Avenue
Coral Gables, Florida 33134
For Respondent: W. Douglas Moody, Esquire
Taylor, Brion, Buker & Greene
225 South Adams Street, Suite 250 Tallahassee, Florida 32301
STATEMENT OF THE ISSUE
At issue in this proceeding is whether certain palatal pharyngeal muscle electrostimulation treatments the infant, Maria Carreras, received at the Pediatric Institute Szabadsaghey, Budapest, Hungary, in June 1993, were medically necessary and reasonable medical or habilitative and training expenses, as required by Section 766.31(1)(a), Florida Statutes, such that the expenses for treatment and
related travel are recoverable under the Florida Birth- Related Injury Compensation Plan (the Plan). 1/
PRELIMINARY STATEMENT
On June 1, 1993, Flor Carreras and her daughter, Maria Carreras, together with two nurses and a physical therapist, flew to Budapest, Hungary, for the avowed purpose of seeking electrotherapy treatment of Maria's palatal pharyngeal muscle from Ferenc Katona, M.D., Ph.D., at the Pediatric Institute Szabadsaghey. Ostensibly, Dr. Katona had developed a new method, electrostimulation, to combat the sucking disorder and dysphagia from which Maria suffered.
The Carreras party remained in Hungary until June 13, 1993, and as a consequence of the trip incurred the following expenses which petitioners contend are medically necessary and reasonable medical or habilitative expenses or related travel expenses, and therefore recoverable under the Plan: for services rendered by Dr. Katona, $900.00; for the cost of air fare for Flor Carreras, Maria Carreras and two full- time nurses $4,658.61, and, for the cost of hotel accommodations, $5,600.00. Here, respondent has denied that the claimed expenses are "medically necessary and reasonable," as required for reimbursement under the Plan.
At hearing, petitioners called Moises Melendez, Pamela Clarke, Noble David, M.D., and Flor Carreras, as witnesses, and petitioners' exhibits 1-3 and 5-12 were received into evidence. Respondent called Michael Duchowny, M.D., as a witness, and its exhibits 1-7, 9 and 10 were received into evidence. 2/
The transcript of hearing was filed June 28, 1994, and the parties, at their request, were granted leave until August 1, 1994, to file proposed final orders. Accordingly, the parties waived the requirement that a final order be rendered within thirty days of the date the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The parties' proposed findings of fact, contained in their proposed final orders, are addressed in the appendix to this final order.
FINDINGS OF FACT
Background
Maria Theodora Carreras (Maria) is the natural daughter of Flor Carreras (Flor), and was born February 5, 1989, at Mt. Sinai Hospital in Miami Beach, Florida.
At birth, Maria suffered a "birth-related neurological injury," as that term is defined by Section 766.302(2), Florida Statutes, and she was accepted by
respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA) for coverage under the Florida Birth-Related Injury Compensation Plan (the Plan). Section 766.301, et seq., Florida Statutes. Consistent with Section 766.305(6), Florida Statutes, NICA's acceptance of the claim was approved by order of April 24, 1991, and NICA was directed to pay, inter alia, all future expenses as incurred in accordance with Section 766.31, Florida Statutes.
The nature of Maria's injury
Maria's injury at birth has rendered her permanently and substantially mentally and physically impaired. The significance of her impairment is evidenced by the medical examination of Dr. Michael Duchowny, a pediatric neurologist, who found, on January 17, 1992, at almost three years of age, that Maria evidenced spastic tetraparesis, cortical blindness, microcephaly and virtually no psychomotor development past the newborn period. Effectively, Maria functions at a precognitive level.
Pertinent to the issue raised in this proceeding, one of the impairments from which Maria suffers is a swallowing disorder known as dysphagia. In Maria's case, that disorder is due to a spastic palatal pharyngeal muscle resulting, more likely than not, from the severe brain injury she suffered at birth. Such injury adversely affected the normal coordination between the nerves and the palatal pharyngeal muscle so as to prevent a normal swallowing reflex. Consequently, Maria is unable to ingest nutrition in a normal manner because of the threat of aspiration of the nutrients into the lungs, and the resultant danger of pneumonia, sepsis and potentially death. 3/
In infants suffering from swallowing disorders, tube feeding or a gastrostomy are medically indicated to avoid the aspiration of food during feeding. Fed in such manner, the threat of aspiration during feeding is eliminated; however, such techniques offer no protection against the threat of saliva aspiration, absent the swallowing reflex. 4/
In Maria's case, a gastrostomy was recommended within thirteen days of birth, but Flor, on the advice of Maria's pediatrician, Dr. Alberto Saenz Pacheco (Dr. Saenz), declined. 5/ Consequently, Maria was, and continues to be, tube fed. 6/
The early years
At thirteen days of age, Maria, accompanied by her mother and Dr. Saenz, was flown to San Jose, Costa Rica, her mother's country of residence, and admitted to the National Costa Rican Children's Hospital. Following three days of observation, it was Dr. Saenz' opinion that Maria's
condition was stable, and she was discharged to her mother's care. Since discharge, Maria has been attended by her mother, as well as by twenty-four-hour nursing care.
At five weeks of age, Maria's pediatrician, Dr. Saenz, referred her to Moises Melendez for physical therapy. Mr. Melendez evaluated Maria's cerebral palsy, which he described as very severe or spastic, and established a regimen of physical therapy to avoid contractures and deformations, and to improve her physical condition.
With regard to Maria's oral motor feeding and swallowing disorder, the therapy involved exercises to the oral musculature, such as the cheeks, lips and tongue, as well as exercise to address the pharyngeal musculature, by employing therapeutic strategies or exercises to other areas of the body which might be spastic, such as the shoulder girdle or the trunk, that would facilitate relaxation of that musculature. The goal of oral motor feeding or swallowing therapy is to ensure safe oral feeding, to habilitate swallowing or oral motor functions, and to inhibit abnormal movement and muscular patterns. 7/ Such goals are, however, often problematic because dysfunctional infants may or may not be receptive to habilitation, and, if receptive to habilitation the degree of improvement is variable.
Maria has received the foregoing regimen of physical therapy, which has included the conventional oral therapies for her swallowing disorder, since she was approximately five weeks of age. Mr. Melendez has provided those services six days a week for one to one and one half hours a day, and he has trained Maria's nurses to provide similar services to relax her spasticity during the remaining hours of the day.
On November 19, 1991, Maria's pediatrician, Dr. Saenz, prepared an update on her medical condition. That update provided, in pertinent part, as follows:
This is an update on the present medical condition of Maria Theodora Carreras who has severe Cerebral Palsy secondary to perinatal birth asphyxia.
General Condition: Maria continues to gain weight slowly. Her growth in length has been
better.
She continues to be fed exclusively by orogastric [sic] tube because she has very poor swallowing coordination and aspiration if fed by mouth . . .
Neurological condition:
she
Her progress continues to be very poor although
seems to have more awareness and some
communication
(verbal and non verbal) with her mother. She
receives This
antibiotic
thorough
fever
daily physical therapy and occupational therapy.
has prevented muscle contractures and has produced some improvement in head control . . .
Prolonged febrile episodes:
During the last five months Maria has had fever (between 38 oC and 39.5 oC) almost continuously. She has had cultures done which have been negative (urine, blood) and has had group A Beta Strep- tococcus in throat cultures. She has not had pneumonia by chest x rays as she did in the past.
Most of the time I have found evidence of chronic upper air way infection, specially otitis media and sinusitis related to poor management of upper respiratory secretions. She has been on
prophylaxis with amoxicillin and Badtrim with some improvement. Acute episodes have responded well to oral cephalosporins. She has been evaluated by an inmunologist [sic] who feels that she has not an immune deficiency and that her fever is caused by chronic aspiration. An E.N.T. consultation decided against any surgical procedure to improve local airway conditions, such as adenoidectomy and timpanic ventilation tubes.
Because all of these problems I've recommended to Mrs. Carreras that Maria should have a very
evaluation at a Center such as the John F. Kennedy Institute in Baltimore Maryland to define:
Auditory and visual abilities and the need for any devices to improve sensorineural input.
Evaluation by physical and occupational therapist to define further programs to improve what has been obtained so far. The questions of oral feedings, tube feeding or gastrostosmy should be addressed.
Definition of the need for anticonvulsive medication.
Definition of the cause or causes of the of unknown origin.
I think the multidisciplinary team of the Kennedy Institute can be of great help to this child and her very supportive family.
Whether Maria was ever evaluated by a multidisciplinary team at the John F. Kennedy Institute or other facility does not appear of record; however, the record does demonstrate that "chronic upper airway infection, specifically otitis media [ear infection] and sinusitis [infection of the sinus cavity]" noted by Dr. Saenz is not uncommon in infants of Maria's age, and was likely the cause, at that time, of her chronic fever. As to any serious lower respiratory tract infections, such as pneumonia, there is no medical documentation that would evidence that Maria suffered any such problems immediately preceding or at the time of the November 19, 1991 update; however, according to Dr. Saenz, Maria did suffer two mild episodes of lower respiratory tracheal infection which were treated at home and not noted in the medical records. The last such episode occurred at some unknown date in 1992, and Maria has suffered no lower respiratory infections since that time.
While Maria was not shown to have suffered any serious lower respiratory tract infections after November 1991, and no minor cases after 1992, that is not to suggest that the threat of such an episode did not continue.
Indeed, because of Maria's swallowing disorder, the threat of aspiration of saliva persisted with the consequent threat of infection. After 1992, Maria continued to experience periodic bouts of fever, which were, more likely than not, related to upper respiratory tract or bronchial infections caused by aspiration.
The "Katona treatment"
In or about early 1993, Flor was "faxed," by a friend in England, a magazine article that reported "a new treatment for dysphagia and sucking disorders," and identified Ferenc Katona, M.D., Ph.D. (Dr. Katona), of a facility known as the Pediatric Institute Szabadsaghey, Budapest, Hungary, as the originator of this "new treatment." Flor then inquired of personnel at the Costa Rican Embassy in Budapest, and was provided a copy of a publication entitled "Early Age," which is published, apparently, by ISM Ltd., a firm of marketing consultants in the United Kingdom, on behalf of the Pediatric Institute and Dr. Katona. Included within the publication were a number of short articles extolling the virtues of various
habilitation techniques developed by the Institute, the availability of courses at the Institute for a fee, and, pertinent to this case, a one-page article on "Combating Sucking Disorders and Dysphagia."
The article on "Combating Sucking Disorders and Dysphagia" stated, in pertinent part, the following:
Cerebral palsy is often accompanied by severe impairment of feeding. The reason of this deficiency is a disturbed co-ordination of the cranial nerves innervating the muscles involved in the feeding process. The impairment may be intranuclear of extranuclear in the brainstem
[sic].
nuclear
In some diseases dysphagia is a result of a
lesion, but in CP the main problem is the failing coordination of the nerves. In many such
unfortunate
infants, aspiration and regurgitation inhibits
oral
feeding and these babies are kept on tube feeding because of the risk of aspiration. In some cases even gastrostomy is indicated. These measures prohibit repeated pneumonias [sic], but stabilize the situation and certainly inhibit the
development
of normal feeding habits.
The Department has introduced two new methods to perfect early diagnosis of dysphagia, and its causes, and a new method to activate coordinated control of the cranial nerves innervating the muscles operating in the sucking, swallowing, breathing process.
One new method is the investigation of the
rheobase
of the palatopharyngeal muscles, with direct electrostimulation through thin and small
electrodes.
The normal threshold of the nerve points is 3-4
mAs,
but this can be increased up to 10 in dysphagias.
Another diagnostic method includes the pressure of the pharynx and the upper part of the oesophagus,
sucking
simultaneously with the registration of the
bursts and the electrical activities of the oro- facial muscles. All these events are recorded on a polygraph.
The comparison of the results of both examination processes produces information about the exact nature of the dysphagia, and the level of the impairment in the brain.
If a proper indication is found direct electo- therapy of the palatopharyngeal muscles is introduced in the Department 2 - 3 times daily. This then is successively accompanied by special bottle feeding training. Usually this training
is added to the end of each electrotherapy in about 1 - 2 weeks. Simultaneously tube feeding is diminished.
The ultimate result of the treatment is the establishment of normal oral feeding and the complete omission of the tube feeding . . . .
Essentially, the article describes two diagnostic procedures and a treatment modality for dysphagia which employ electricity as a means of stimulating the palatopharyngeal muscles "to activate coordinated control of the cranial nerves innervating the muscles operating in the sucking, swallowing, breathing process," and, ultimately, "the establishment of normal oral feeding."
Flor shared the article with Mr. Melendez and Dr. Saenz, neither of whom had, despite their years of experience, ever heard of the Institute, Dr. Katona, or electro-stimulation of the palatopharyngeal muscles as a treatment for dysphagia. Electro-stimulation does, however, apparently have some utility in the field of physical therapy, although its specifics or relationship to the subject treatment was not reasonably explicated at hearing. Consequently, Flor sent Mr. Melendez to Budapest to further investigate the technique.
Mr. Melendez spent approximately ten days in March of 1993 in Budapest, observing various treatment modalities at the Institute, including the electrostimulation of the palatopharyngeal muscles, as administered by Dr. Katona. Upon his return to Costa Rica, Mr. Melendez recommended to Flor that Maria be taken to Budapest for the Katona treatment. The predicate for such recommendation was Mr. Melendez's observation, as memorialized in a report of March 22, 1993, that while they had been working on Maria's swallowing disorder using conventional methods and "she had improve sucking and swallowing function, she [continued to] have problems with aspiration." Accordingly, based on his observation at the Institute and Dr. Katona's assurances that he could help Maria, Mr. Melendez recommended that Maria be sent to the Institute. 8/
Under date of April 26, 1993, Dr. Saenz prepared correspondence to Flor regarding her "intention" to take Maria to the Institute. That correspondence provided:
I'm writing you in relation with your question regarding your intention to take your daughter Maria Theodora to be evaluated and treated by
Dr. Katona in Budapest, Hungary. I've read the information that you sent me about Dr. Katona's
time feeding aspiration
work and the letter that was sent to you by Moises Melendez, your daughter's physical and accupational [sic] therapist.
As you know I'm of the opinion that your daughter Maria Theodora should receive all the possible benefits of therapy directed to improve her neuromuscular status as well to build on any occupational achievements that she slowly obtains.
One of Maria's biggest problems at the present
is her inability to swallow which makes her difficult and predisposes her to repeated
episodes and respiratory tract infections and if these can be further evaluated and treated by Dr. Katona I think it is very important to do so.
Notably, it was not Dr. Saenz' idea to send Maria to the Institute, and his correspondence is devoid of any comment upon the efficacy of the Katona treatment. 9/
In June 1993, Flor Carreras and her daughter Maria, together with two nurses and Mr. Melendez, flew to Budapest, Hungary, to seek treatment for Maria from Dr. Katona at the Institute. Specifically, petitioners aver that the purpose of that trip was to secure electrotherapy treatment of Maria's palatal pharyngeal muscles to improve her sucking and swallowing function. The proof demonstrates, however, that in addition to electrotherapy, time was also spent by Dr. Katona on evaluations and therapies unrelated, or not shown to be related, to Maria's dysphagia and by Mr. Melendez and Flor learning a variety of therapies also unrelated, or not shown to be related, to Maria's swallowing disorder.
Regarding the evaluations and treatments Maria received, as well as the training Mr. Melendez and Flor received, Dr. Katona's report observes:
Summary: Maria TeodoraCarreras [sic] suffers from the consequences of a brain injury. Only tube feeding was administered owing to dysphagia. The frequent opistotonic [sic] fits inhibited the development of active sensorimotor behavior.
Spastic diplegia [sic] is present in a very serious form. While the extremities are in a spastic state the axial muscle are severely hypotonic. This combination absolutely prohibited
all forms motor Activity. Even the slightest change of body position was limited. The child
comfort caretaking
activate
has no positive motivation to contact her environ- ment and is motivated merely by the voice of the mother and by her tactile contact.
Therapeutic possibilities:
Dysphagia:
The present state of alimentation through tube feeding may be altered. This may give more
to the mother and better possibilities for
activities. The limit of these possibilities is restricted. Dysphagia may be diminished by daily electrotherapy. The levator muscle and the palatopharyngeal muscles are to be stimulated 3 times a day for 10-15 min. If the stimuli
complex deglutative [sic] movements in the muscles then drops of tee [sic] can be given
simultaneously
with the contraction of the muscles in response to the electric stimuli. If this state can be
reached bottle
amount
long- relative
environmen
body
than each stimulation series (10-15 min) may be immediately followed by a cautious attempt of
feeding. Naturally care should be taken to avoid any aspiration. If bottle feeding is successful (5-10 gs at the beginning!) the amount of post stimulational [sic] alimentation can be decreased gradually! In this case the oraly [sic] given
of nutriments should be deducted from the amount given through the tube. (At the initial state of the therapy it must [be] kept in mind that the
time previous experience with tube feeding a
life saving procedure in this case - has inhibited the development of oral contact with the
[sic] and has produced indirectly a refusal of everything coming transoraly [sic], including nutriments and fluids).
Sensorimotor therapy: The first trial to improve body position and mobility may be phocused [sic] to the activation of the axial muscles. Without the stabilization of the head on the top of the
activated receptor
position can training.
may
muscles.
maternal-
no achievement can be expected in body posture, mobilisation [sic] of the arm, or better visual and auditive contact with the environment. The therapeutical training of the muscles affecting the function of the vertebrobasilar articulation may be possible since head arisal [sic] was
several times by acting on the semicircular
system and the vestibular system through special body postures. The systematic training of these stimulus positions may be recommended for 5 weeks to see wether [sic] an improvement of head
can be reached. Also the erection of the trunk be trained by the appropriate therapeutical
All these therapeutical trainings simultaneously serve to diminish the frequency and vigor of the opistotonic [sic] reactions. Rotatory activity
be initiated by acting upon the semicircular and vestibular system. The therapeutical training positions and activities that serve to accomplish these effects and the training procedures as well have been shown to the mother, and to the physiotherapist of the child. They have had a training in our department and were introduced
in the theoretical aspects as well. The mother has had occasion to make video movies from all the clinical procedures including the electrostimulation of the palatopharyngeal
* * *
In summary all the suggested treatments are only to achieve eventualy [sic] better comfort to
family care and to give a somewhat better
possibility
to mobilise [sic] the child. On the other hand if alimentation can be changed into regular oral
feeding, be
for
and sitting position can also be achieved this may a possible advantage to Maria and may be a basis further minuscule improvement.
For the services rendered at the Institute, Dr. Katona billed $900.00 for the following functions:
Diagnostic examination of Maria Teodora [sic] Carreras (from 1-11. 06. 1993.)
Developmental neurologic examination of the
vestibular functions
extrapyra-idal motor control
sensory system
postural activities
locomotor functions EEG
Evoked brainstem [sic] responses Developmental psychology assessment
Palatopharymgeal [sic] electric stimulations (6
times)
Sensorimotor investiatin (12 times)
For the eleven days the Carreras' party spent in Budapest, petitioners seek to recover the $900.00 billed by Dr. Katona; an air fare bill of $4,659.61 for Flor, Maria and the two nurses; and, a hotel bill of $5,600.00 for the accommodations of Flor, Maria and the two nurses. No reimbursement is sought for the expenses incurred, if any, as a consequence of Mr. Melendez' presence on the trip. 10/ [See, Tr. page 204, and petitioners' proposed final order paragraph 87].
Since the Katona treatment
After the Carreras' return home from the Institute, Mr. Melendez integrated the electrical stimulation of Maria's palatopharyngeal muscle, according to the Katona method, into his physical therapy program for Maria. As before, Mr. Melendez worked with Maria six days a week, dedicating one hour a day to conventional physical therapy, and an additional one half hour of palatopharyngeal and facial stimulation, consisting of the continued use of conventional physical therapies and the addition of electrical stimulation.
Approximately one to one and one half months after their return from the Institute, Maria's condition started to show slow improvement in that she was showing some sucking reflex and was making some movements toward, although not complete, a lip seal. She also began evidencing less aspiration and fewer recurrent fevers, a stronger cough reflex, less drooling, and less wheezing. Approximately one and one half to two months later she was
encouraged to swallow small pieces of ice, of the approximate size of a small bean, and about a month to a month and a half later progressed to swallowing a few pieces of small soft fruit, such as peaches, banana and mango.
Finally, in March 1994, Maria was able to start taking water from a bottle, and has progressed to being able to take approximately one ounce at any given time; however, she still needs assistance to help her complete a lip seal, and continues to receive all her nourishment through tube feeding.
Concerning the improvements Maria has made, Flor and Mr. Melendez attribute such improvement to the electrical stimulation therapy she has received to her palatopharyngeal muscle. Considering the lack of any compelling proof regarding the medical value of the Katona treatment, discussed infra, any such conclusion is, at best, speculative. Indeed, given the circumstances, it is as likely that Maria's improvement is a consequence of the conventional physical therapy she has received since shortly after birth and the natural maturation process she has undergone.
The efficacy of the Katona treatment
Having assessed the proof concerning the efficacy or medical value of the Katona treatment or, more pointedly, the lack of such proof, it must be concluded that the record fails to demonstrate by competent and credible proof that the Katona treatment is of any medical value and, therefore, fails to demonstrate that Maria's receipt of such treatment was "medically necessary and reasonable" within the meaning of Section 766.31, Florida Statutes.
As to Dr. Katona himself, the only competent proof of record demonstrates that he is a medical doctor and holds a Ph.D. The record is devoid of any competent proof regarding the field in which his Ph.D. is held, his training or experience, and his special competence, if any, in the field of electrostimulation. 11/ Indeed, Dr. Katona was unknown to the medical experts who testified in these proceedings, as was the Institute, and, obviously, no opinions regarding his reputation were offered.
As with the lack of any compelling proof regarding Dr. Katona's background or experience, the record is likewise devoid of any competent or compelling proof regarding the efficacy or medical value of the Katona treatment for combating sucking disorders and dysphagia through electrotherapy of the palatopharyngeal muscles. In this regard, the record failings include an absence of competent proof regarding the protocols of the two diagnostic procedures described in the "Early Age" article, and no proof regarding their effectiveness as diagnostic procedures. Most importantly, the record further evidences a lack of competent proof regarding the protocol for Katona's treatment modality, which employs electrostimulation, and absolutely no proof regarding Katona's success or failure experience with the treatment, and therefore no proof that use of the treatment modality has been significant enough to generate any meaningful
insight into its value or that its use is reasonably associated with a positive outcome. In sum, there is no persuasive or competent proof of record from which it could be reasonably concluded that the Katona treatment is of any medical value in the treatment of sucking disorders and dysphagia, or that Maria, under the Katona diagnostic procedures (which were not explicated), was an appropriate candidate for treatment.
In reaching the foregoing conclusion, the proof offered regarding Maria's progressive improvement since she began electrostimulation therapy and the testimony of petitioners' experts suggesting that there is a theoretical basis to support such treatment, has not been overlooked. However, for the reasons that follow, such proof is not compelling.
First, as regards the improvements Maria has exhibited since starting the treatment, it is as likely, considering the proof in this case, if not more likely, considering the absence of any direct or substantial proof regarding the efficacy of the Katona treatment, that such improvements were occasioned through the traditional therapies that were employed to address her swallowing disorder, as opposed to the Katona treatment. Indeed, traditional massage stimulation and sensory stimulation is specifically administered to restore, habilitate and rehabilitate swallowing and oral motor functions that have been disordered because of neurological damage. It is also designed to inhabit abnormal movement patterns and to encourage normal and functional movement patterns in the oral and pharyngeal muscles with the goal of encouraging swallowing and the prevention of aspiration. Notably, Maria experienced improvement in these areas prior to the Katona treatment, and there is no competent proof of record that the Katona treatment has even improved the swallowing disorder of a single infant. Under the circumstances, Maria's improvement, standing alone, does not offer compelling proof that the Katona treatment is of any value. 12/
Finally, the proof offered by petitioners, through their experts, was likewise not compelling support for the efficacy of the Katona treatment. In this regard, it is observed that Dr. Noble David reviewed the Katona treatment, as described in "Early Age," as well as a few other articles on other subjects attributed to Dr. Katona, and particularly reference to a treatment modality referred to as "Transurethral electrical bladder stimulation," the origination of which was attributed to Dr. Katona. Based on
that review, it was his "understanding" that Katona's rationale was the use of electrical sensory input to "teach, in a sense or habituate the brain cells up in the brain that are remaining there, that are capable of doing this chore, to do it more efficiently and to obey that stimulation."
Dr. David then concluded that the Katona theory is a reasonable way to approach the problem. Admittedly, however, Dr. David had not previously known of Dr. Katona, the Institute, or the treatment, had never used or followed a patient that had used the treatment, and had no information, apart from the Early Age article, bearing on the efficacy or effectiveness of the treatment. Moreover, with regard to the treatment modality known as "transurethral electrical bladder stimulation," it is observed that its effectiveness is subject to serious question, based on the only authoritative work petitioners offered. [Petitioners' exhibit 3]. According to that article, the authors' initial evaluation of the modality failed to substantiate Katona's claim that its use would allow patients to void voluntarily. Indeed, as observed by Dr. Michael Duchowny, and agreed to by Dr. David, the whole history of peripheral stimulation to counteract the effect of brain damage as recounted in the neurological literature has been one of disappointment. [Tr. pages 31-32, and 138- 139].
Petitioners also called Pamela Clarke, a special language pathologist who serves as coordinator for the feeding and swallowing disorder team at Miami Children's Hospital, and who treats profoundly impaired infants. Ms. Clarke's knowledge concerning the Katona treatment was also limited to the article that appeared in Early Age. Based on that article, Ms. Clarke observed that the philosophy behind the Katona treatment, the stimulation of the palatopharyngeal musculature, appeared to be similar to the philosophy or goal her team seeks to achieve through traditional or manual stimulation of the muscle. Notably, Ms. Clarke, as with Dr. David, had not previously known of Dr. Katona, the Institute, or the treatment, had never used electrical stimulation of the pharyngeal muscles in her practice, and had no information, apart from the Early Age article, bearing on the treatment or its efficacy. In sum, Ms. Clarke was unable to render any opinion regarding the effectiveness of the Katona treatment.
Finally, there is of record the observations and opinions rendered by Dr. Saenz and Mr. Melendez which were offered in support of the Katona treatment. In this regard, Dr. Saenz observed that the Katona method made sense in a theoretical way for two reasons. First, that stimulation of
muscles that had not been used might help them recover some of their function and, second, that electrical input or stimulation to the brain may help to develop associations with other areas of the brain to compensate for the areas of the brain that have been lost, which ordinarily controlled the function. As for Mr. Melendez, he observed that the Katona treatment made theoretical sense to him also, because physical therapists use electrical stimulation in other areas of physical medicine and, therefore, he was interested in Dr. Katona's new approach to addressing swallowing disorders
Again, while Dr. Saenz observed that the Dr. Katona's treatment made sense in a theoretical way, neither his testimony nor the testimony of Mr. Melendez is persuasive proof of the actual efficacy of the Katona treatment. Simply because electrostimulation may enjoy success, although its frequency, scope or duration is not of record, in other areas of physical therapy, is not persuasive proof that the Katona treatment offers similar benefits. Again, there is no compelling proof of record which demonstrates any experience with the Katona method, apart from Maria, no proof of its acceptance by practitioners as being associated with a positive outcome, and therefore no persuasive proof that it is of any medical value. 13/
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 766.301, et seq., Florida Statutes (1993).
Pertinent to this case, Section 766.31, Florida Statutes, provides:
Upon determining that an infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at the birth, the hearing officer shall make an award providing compensation for the following items relative to such injury:
Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel
. . .
person.
Expenses included under this paragraph shall be limited to reasonable charges prevailing in the community for similar treatment of injured persons when such treatment is paid for by the injured
* * *
The award shall require the immediate payment of expenses previously incurred and shall require that future expenses be paid as incurred.
Here, petitioners contend that the expenses they incurred for treatment and related travel to Budapest, Hungary, in June 1993 for the purpose of seeking electrotherapy treatment of Maria's swallowing disorder were "medically necessary and reasonable medical . . . [or] habilitative and training" expenses and, therefore, that they are entitled to an award of compensation for such expenses. Section 766.31(1)(a), Florida Statutes. As the claimants, petitioners bear the burden of demonstrating their entitlement to an award of compensation for those expenses. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981), and Balino v. Department of Health and Rehabilitative Services, 348 So.2d
349 (Fla. 1st DCA 1977).
Pertinent to the resolution of petitioners' claim is a resolution of whether the expenses incurred were "medically necessary and reasonable" services or related travel expenses. The phrase "medically necessary and reasonable" services is not, however, defined by the Plan. 14/
Black's Law Dictionary (5th ed. 1979), in defining "necessary," states:
This word must be considered in the connection in which it is used, as it is a word susceptible of various meanings. It may import absolute physical necessity or inevitability, or it may import that which is only convenient, useful, appropriate, suitable, proper, or conducive to the end sought. It is an adjective expressing
degrees, and may express mere convenience or that which is indispensable or an absolute physical necessity. It may mean something which in the accomplishment of a given object cannot be dispensed with, or it may mean something
reasonably
benefit
useful and proper, and of greater or lesser
as:
acting immoderate honest,
or convenience, and its force and meaning must be determined with relation to the particular object sought.
Black's Law Dictionary further defines reasonable
Fair, proper, just, moderate, suitable, under the circumstances. Fit and appropriate to the end in view. Having the faculty of reason; rational; governed by reason; under the influence of reason; agreeable to reason. Thinking, speaking, or
according to the dictates of reason. Not
or excessive, being synonymous with rational, equitable, fair, suitable moderate, tolerable.
When, as here, the legislature has not defined the phrase used in a statute, it should ordinarily be given its usual and natural meaning; however, where the phrase contains key words like "necessary" and "reasonable," the phrase is plainly susceptible of more than one meaning. Under such circumstances, consideration must be accorded not only the literal or usual meaning of the words, but also to their meaning and effect in the context of the objectives and purposes of the statute's enactment. See, Florida State Racing Commission v. McLaughlin, 102 So.2d 574 (Fla. 1958). Indeed, "[i]t is a fundamental rule of statutory construction that legislative intent [or purpose] is the polestar by which the court must be guided [in construing enactments of the legislature]." State v. Webb, 398 So.2d 820, 834 (Fla. 1981).
In construing the term "medically necessary and reasonable" services under the Plan, consideration must be given to an interpretation that reconciles the legislative goal which limits the amount of compensation or cost, and the purpose of the act which is to provide for the payment of "medically necessary and reasonable medical . . . [or] habilitative and training" expenses without regard to fault.
In an analogous situation under New Jersey's No Fault Act, the court in Thermographic Diagnostics, Inc. v. All State Insurance Co., 593 A.2d 768 (NJ 1991), construed the term "reasonable and necessary medical expenses" in context with the objectives that inspired passage of the No Fault Act. There, considering a claim for expenses incurred for thermographic examinations, a relatively new and controversial diagnostic procedure, the court rejected, as overly restrictive and generally incompatible with the primary objectives of the Act, that "reasonable and necessary medical expenses," were those expenses which enjoyed the general acceptance by a majority of the medical community. Rather, the court concluded:
. . . we hold that . . . a necessary medical expense under the Act is one incurred for a treatment, procedure or service ordered by a qualified physician based on the physician's objectively reasonable belief that it will further the patient's diagnosis and treatment. The use of the treatment, procedure, or service must be warranted by the circumstances and its medical value must be verified by credible and reliable evidence. That standard, in our view, is
consistent
it
have attained
defendants
with the reparation objectives of the Act in that
would allow reimbursement for innovative medical procedures warranted by the circumstances that
demonstrable medical value but have not yet
general acceptance by a majority of the relevant medical community. It will also accommodate reimbursement for promising experimental medical techniques constituting the only realistic means for treatment of certain patients, which
acknowledge would not qualify under a general- acceptance standard. In requiring that the physician's belief that the procedure will advance diagnosis or treatment be objectively reasonable, that its medical value be verified, and that the procedure be warranted by the circumstances, the standard we adopt also complements the cost- containment objectives of the No Fault Act.
Id., at page 780. Accord, Sabatier v. State Farm Mutual Automobile Insurance Co., 592 A.2d 1098 (Md. 1991), where the court in assessing a claim for thermographic examinations under the Maryland No Fault Act, construed "necessary medical service" as follows:
Given the required liberal interpretation of [the Act], as our cases require, it need not be shown, as we earlier said, that the medical procedure be of general acceptance within the
relevant medical and scientific community; rather, to be a 'necessary' medical service within the contemplation of [the Act], it must be shown by satisfactory proof that the use of thermography, as related to the patient's condition, and to the use and availability of other generally accepted and applicable diagnostic tests, has efficacious material value of its own as a diagnostic aid. In this regard, the legislature did not intend that [the Act] be narrowly read to deny payment for a medical procedure ordered by a physician simply because a majority of the medical or academic community does not believe that it is a useful diagnostic tool . . . We also disagree that it
is solely for the treating physician to decide
whether a thermographic examination is a "necessary"
service, or that the standard of proof of "necessity"
is a medical judgment to be made only by those who are trained in and practicing thermography. As
the
supra,
Supreme Court of California said in Sarchett,
729 P.2d at 272 (relying upon numerous cited cases from other jurisdictions), for purposes of payment of insurance medical benefits, "'medical
necessity,'
or similar policy language is an objective
standard delegation
to be applied by the trier of fact, not a to the treating physician."
Id., at page 1109. Accord, Palma v. State Farm Fire and Casualty Co., 489 So.2d 147 (Fla. 4th DCA 1986), where the court in assessing a claim for thermographic examinations under the Florida No Fault Act, while not expressly construing or defining the term "necessary medical" expenses as the courts did in the foregoing decisions, rejected the test applied by the trial judge to determine whether thermography was a "necessary" medical expense under the statute, namely, that a diagnostic procedure, to be medically necessary, had to be (1) widely accepted by the practicing peer group; (2) be based upon scientific criteria accepted by the majority of that peer group; and (3) not be of an experimental or investigative nature. The court, in ordering payment, concluded that this test was too restrictive to comport with the liberal interpretation of Florida's No Fault Act in favor of the insured.
Considering the provisions and purpose of the Plan, its similarities to the No Fault Acts, and the foregoing authorities, it is concluded that a "medically necessary and reasonable" expense under the Plan is not limited to those expenses incurred for services which enjoy the general acceptance by a majority of the medical community. Rather, as stated in Thermographic Diagnostic, Inc. v. All State Insurance Co., supra, at page 780, a "medically necessary and reasonable" expense is:
. . . one incurred for a treatment, procedure or service ordered by a qualified physician based on the physician's objectively reasonable belief that it will further the patient's diagnosis and treatment. The use of the treatment, procedure,
or service must be warranted by the circumstances
and its medical value must be verified by credible and reliable evidence . . . .
As observed by that court, and equally applicable to the Plan, such standard:
. . . is consistent with the reparation objectives of the Act in that it would allow reimbursement
for
innovative medical procedures warranted by the circumstances that have demonstrable medical value but have not yet attained general acceptance by a majority of the relevant medical community. It will also accommodate reimbursement for promising experimental medical techniques constituting the only realistic means for treatment of certain patients, which defendants acknowledge would not qualify under a general-acceptance standard. In requiring that the physician's belief that the procedure will advance diagnosis or treatment be objectively reasonable, that its medical value be verified, and that the procedure is warranted by the circumstances, the standard we adopt also complements the cost-containment objectives of the
. . . Act.
Applying the foregoing standard to the facts of
this case, compels the conclusion that the Katona treatment was not shown to be a "medically necessary and reasonable" service because Dr. Saenz' authorization for the treatment was not objectively reasonable, given the paucity of information regarding the treatment available to him at the time, and because the medical value of the treatment has not been supported by credible and reliable evidence. Under the circumstances, the expense of those medical services, as well as the travel expenses incurred in securing those services, are not recoverable under the Plan.
CONCLUSION
Based on the foregoing findings of fact and conclusions of law, it is
ORDERED that petitioners' request for reimbursement of the expenses associated with the Katona treatment and related travel is DENIED.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 28th day of October 1994.
Officer Hearings
Hearings
WILLIAM J. KENDRICK, Hearing
Division of Administrative The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative
this 28th day of October 1994.
ENDNOTES
1/ Also at issue at the time of hearing was the question of the timeliness of respondent's replacement of certain checks that it had provided Flor Carreras, which were reportedly stolen and negotiated without her consent, and, if untimely, a claim for attorney's fees occasioned by petitioners in securing replacement of those checks. Subsequent to hearing, the parties apparently resolved that dispute and, therefore, such issue will not be addressed.
2/ At hearing, the admissibility of respondent's exhibit 9, the deposition of J. Michael Cupoli, M.D., was taken under advisement. Upon consideration, that exhibit is received into evidence; however, the majority of Dr. Cupoli's opinions have little or no relevance to this case because he is administering a program for the Department of Health and Rehabilitative Services under rules which are decidedly different than the standard established under the Plan. I do, however, accept Dr. Cupoli's observation that whether or not a service is an "accepted procedure" involves an analysis of the medical literature to determine whether the procedure has been used a significant amount of time and is associated with a positive outcome, whether the modality has been used by others, whether the people using it are accepted in the medical profession, and whether there is the potential for a positive outcome without severe risk to the child.
3/ Aspiration can also occur as a consequence of gastric reflux (the regurgitation of stomach contents into the esophagus). Maria was not, however, shown to suffer such a disorder at anytime material to this case.
4/ Aspiration can also occur as a consequence of gastric reflux, and these feeding techniques do not eliminate the threat of such aspiration following feeding; however, Maria was not shown to suffer such disorder at anytime material hereto.
5/ A gastrostomy is a surgical procedure through which a feeding tube with direct egress to the stomach is placed in the abdomen of the patient. A syringe then dispenses nutrients through the tube directly to the stomach, thereby avoiding the passage of food through the mouth and the esophagus.
6/ Such feeding is accomplished by way of the insertion of a tube through the mouth and into the stomach. Nutrients are then funneled through the tube into the stomach.
7/ Where an infant exhibits aspiration problems related to swallowing, and has rehabilitation potential, the goal to habilitate swallowing or oral motor functions is designed to attempt to ameliorate that threat.
8/ The truth of Dr. Katona's statement is, of course, hearsay; however, it is highly suspect if he offered such opinion since he had at that time never examined or diagnosed Maria and was, therefore, in no position to offer such assurances under any protocol, let alone the protocol established for the diagnosis and treatment as set forth in the Early Age article.
9/ Both Mr. Melendez' report of March 22, 1993, and Dr. Saenz' correspondence of April 26, 1993, were, more likely than not, developed at the request of Flor or her attorneys to support a request that NICA pay the costs of the treatment and travel expenses. These documents, together with information on Dr. Katona were forwarded to Flor's lawyer by letter of April 28, 1993, with a request that he ask NICA for financial assistance for the trip. Her counsel forwarded that correspondence to NICA by letter of May 7, 1993, NICA forwarded the material to its pediatric neurologist for review and, upon being advised by such neurologist that he could not accept such request because that method of electrotherapy was not a scientifically accepted procedure, NICA declined payment. Notwithstanding, Flor elected to proceed with the trip and here seeks
recovery for those expenses. Accordingly, the efficacy of the Katona treatment is at issue.
10/ In considering the reasonableness of the foregoing charges, it is observed that the proof supports the conclusion that during the Carreras' stay in Budapest, Maria was evaluated over the course of three to four days and electrotherapy treatment was administered on a daily basis until her return to Costa Rica. Under such circumstances, while Flor and Mr. Melendez may have learned a number of therapies at the Institute unrelated to Maria's swallowing disorder, there was no showing that Maria's stay at the Institute was prolonged as a consequence of that additional training. Accordingly, accepting that Maria demanded
twenty-four-hour care and therefore the assistance of two nurses, a point NICA never disputed, it is concluded that the hotel expense of $5,600.00, as well as the air fare expense of $4,658.61, was reasonable in amount. Dr.
Katona's fee of $900.00 was not, however, explicated or otherwise shown to be reasonable. In this regard, the proof demonstrates that Dr. Katona spent a portion of his time evaluating other aspects of Maria's physical condition, as well as other therapies unrelated to her swallowing disorder, and that the fee he charged included the time dedicated to those collateral matters. Since his charge of
$900.00 includes services for those unrelated matters, and there is no proof of record by which those charges can be apportioned, it must be concluded that petitioners failed to demonstrate the reasonableness of his fee. Accordingly, were the services sought from Dr. Katona found to be "medically necessary and reasonable," discussed infra, petitioners would be entitled to recover $10,158.51 for hotel accommodations and air fare expenses incurred.
11/ Petitioner's proposed final order, commencing at page 22, contains numerous proposed findings relating to Dr.
Katona's training and experience. These findings are, however, derived from the publication "Early Age," and as such are patent hearsay on which a finding of fact may not be based. Section 120.58(1)(a), Florida Statutes. Indeed, even statements in a learned treatise, which "Early Age" certainly is not, may not be used as substantive evidence. Green v. Goldberg, 630 So.2d 606 (Fla. 4th DCA 1993).
12/ Apart from Dr. Katona and the Institute, the treatment was not shown to be used anywhere else in the world.
Although such fact, standing alone, does not compel the conclusion that the procedure would not provide medically necessary and reasonable benefits, it certainly bears scrutiny and proof of its application and benefits. Here,
there was no proof of the results of any treatments other than Maria's, and therefore no reliable scientific evidence that use of the treatment modality has been significant or that its use is reasonably associated with a positive outcome.
13/ While petitioners have failed to demonstrate that the Katona treatment was "medically necessary and reasonable," such conclusion should not be taken as an adverse reflection on Flor's decision for Maria to undertake the treatment.
Indeed, Flor is entitled to seek out any treatment she believes will benefit her daughter; however, where, as here, that treatment is not shown to have accepted medical value, it is unreasonable to expect a third party, such as NICA, to underwrite the expense.
14/ As to the proper construction of such phrase, petitioners advanced no authority. Respondent referenced a dictionary reference to the term "reasonable," which evidenced its variable meaning, and a rule of the Department of Health and Rehabilitative Services (HRS) defining "medically necessary" as being persuasive authority. The HRS rule is not, however, persuasive authority since it is a rule designed to implement an unrelated statute, and it contains standards not prescribed by the Legislature in the Plan. See, e.g., Palma v. State Farm Fire & Casualty Co., 489 So.2d 147 (Fla. 4th DCA 1986).
APPENDIX
Petitioner's proposed findings of fact are addressed as follows:
1-4. Addressed in paragraphs 14-19, and endnote 9. 5-14. Rejected as a recitation of testimony, not a
finding of fact, and therefore subordinate to the conclusions reached in paragraphs 26-34.
15-20. Rejected as a recitation of testimony, not a finding of fact, and therefore subordinate to the conclusions reached in paragraphs 26-34.
21-28. Addressed in paragraphs 8-10, 16, 17, 19, 23-
25. Otherwise, rejected as a recitation of testimony, not a finding of fact, and therefore subordinate to the conclusions reached in paragraphs 26-34.
29-44. Addressed in paragraphs 7, 8, 11-13, 16, 18, 24 and 25. Otherwise, rejected as a recitation of testimony, not a finding of fact, and therefore subordinate to the conclusions reached in paragraphs 26-34.
45-61. Rejected as a recitation of testimony, not a finding of fact, and therefore subordinate to the conclusions reached in paragraphs 26-34. As to the last sentence of paragraph 58, it is observed that, while such may be his belief, it is not credible, and is contrary to other testimony he gave.
62-67. Addressed in paragraphs 1, 5, 6, 7, 22 and 23-
25. Otherwise, rejected as a recitation of testimony, not a finding of fact, and therefore subordinate.
68-79. Addressed in paragraphs 14, 15, 19-21, 26-28,
31, 34 and endnote 11.
80-82. Addressed in endnote 2. Otherwise, rejected as a recitation of testimony, not a finding of fact, and therefore subordinate.
83 & 84. Addressed in paragraph 4.
85 & 86. Addressed in paragraph 5. First sentence of paragraph 85 rejected unless "minuscule" is defined as "meaningful."
87. Addressed in paragraph 22 and endnote 10.
88 & 89. Rejected as comment on the evidence and not a finding of fact. But see, paragraphs 23-25.
Respondent's proposed findings of fact are addressed as follows:
1-4. Addressed paragraphs 1-6.
Addressed in paragraph 7.
Addressed in paragraph 6.
Addressed in paragraph 10.
8-10. Addressed in paragraphs 11-13.
11-15. Addressed in paragraphs 14 and 15.
16-19. Addressed in paragraphs 16 and 17.
Addressed in paragraph 18.
Addressed in paragraph 16.
22-27. Addressed in paragraphs 19-21.
28. Addressed in paragraph 14.
29-35. Addressed in paragraphs 23-34. Otherwise rejected as a recitation of the evidence, not a finding of fact, and therefore subordinate.
36 & 37. Rejected as not a finding of fact, nor relevant to the conclusions reached.
38-44. Addressed in endnote 2.
COPIES FURNISHED:
Glenn Falk, Esquire Edward Hernandez, Esquire
Parenti, Falk, Waas & Frazier
113 Almeria Avenue
Coral Gables, Florida 33134
W. Douglas Moody, Jr., Esquire Post Office Box 11189 Tallahassee, Florida 32302-3189
Lynn Dickinson, Executive Director Florida Birth-Related Neurological
Injury Compensation Association Post Office Box 1528
Tallahassee, Florida 32302
Charles B. Patrick, Esquire 1648 South Bayshore Drive Miami, Florida 33133
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 appropriate District Court of Appeal. See, Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So.2d 299 (Fla. 1st DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
============================================================
DISTRICT COURT OPINION
============================================================
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.
FLOR CARRERAS, as parent and IN THE DISTRICT COURT OF APPEAL
natural guardian of MARIA OF FLORIDA THEODORA CARRERAS, and FLOR THIRD DISTRICT
CARRERAS, individually, JULY TERM, 1995
Appellants, CASE NO. 94-2748
DOAH CASE NO. 93-3015N
vs.
FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,
Appellee.
/ Opinion filed December 13, 1995.
An Appeal from the State of Florida Division of Administrative Hearing.
Parenti, Falk, Waas & Frazier and Gail Leverett Parenti, for appellants.
Robert H. Sturgess and Bateman Graham, for appellee. Before BASKIN, COPE and GODERICH, JJ.
PER CURIAM.
Flor Carreras appeals both individually and as parent and natural guardian of Maria Theodora Carreras from an order denying a request for reimbursement of certain medical expenses and related travel expenses, pursuant to the
Florida Birth-Related Neurological Injury Compensation Plan (NICA), We reverse.
Maria Theodora sustained birth-related neurological injuries and was accepted by NICA for coversage under its plan. Maria Theodora suffers from cerebral palsy, blindness, and a swallowing disorder know as dysphagia. As a result of this swallowing disorder, Maria Theodora is at risk of aspiration of saliva. Aspiration can lead to life- threatening infections, pneumonia, sepsis, and death.
Shortly after she was born, Maria Theodora received treatment from Dr. Alberto Saenz and Moises Melendez, a physical therapist. After approximately four years of treatment, Maria Theodora's swallowing disorder did not improve.
In May 13, Flor Carrreras requested NICA to authorize payment for an additional type of treatment that Dr. Saenz and Mr. Melendez recommended for Maria Theodora's swallowing disorder. NICA denied the request. Nonetheless, Maria Theodora received the treatment.
The issue of whether NICA would be required to reimburse Mrs. Carreras for this treatment was heard before the State of Florida, Division of Administrative Hearings. It was the claimant's position that reimbursement was warranted since the treatment was "medically necessary and reasonable." s 766.31(1)(a), Fla. Stat. (1993).
At the hearing, Dr. Saenz testified that he recommended the treatment, and that shortly after staring the treatment, Maria Theodora began to show improvement. For example, she was now able to swallow small amounts of water and small pieces of soft fruit and ice. More importantly, she began to show evidence of less aspiration.
Mr. Melendez also testified that he recommended the treatment, He further explained that Maria Theodora started to show improvement after only one month of treatment. He also testified that the treatment was beneficial to Maria Theodora and that it was reasonable for her to receive the treatment.
In contrast, NICA's expert, Dr. Duchowny, testified that he examined Maria Theodora after she received the treatment and found that she had shown "absolutely no prograss whatsoever." He also opined that the treatment was not medically necessary and reasonable.
At the conclusion of the testimony, the hearing officer found that Maria Theodora had made improvement from the time that she started the treatment. Oddly enough, however, the hearing officer found that the improvement that Maria Theodora experienced was not as a result of the treatment.
The hearing officer concluded that the treatment was not "medically necessary and reasonable," and therefore, denied the claimant's request for reimbursement. This appeal follows.
The claimant contends that the hearing officer erred in concluding that, pursuant to Section 766.31(1)(a), Florida Statutes (1993), the treatment was not "medically necessary and reasonable." We agree.
Section 120.68(10), Florida Statutes (1993), provides that an appellate court
shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. The court shall, however, set aside agency action . . . if it finds that the agency's action depends on any
finding of fact that is not supported by competent substantial evidence in the record.
s 120.68(10), Fla. Stat. (1993); see also, Kelly v. Department of Health & Rehabilitative Servs., 617 So. 2d 765 (Fla. 1st DCA 1993).
In the instant case, the hearing officer's finding that Maria Theodora experienced improvement from the time she started the treatment is supported by substantial competent evidence. s120.68(10), Fla. Stat. (1993). Both Dr. Saenz and Mr. Melendez testified that Maria Theodora's swallowing capabilities have improved from the time that she began the treatment. However, the hearing officer's finding that the improvement did not result from the treatment is not supported by competent substantial evidence. Because Dr.
Duchowny opined that Maria Theodora made "absolutely no progress whatsoever," he offered no evidence as to what could have caused her sudden improvement. Therefore, the only testimony offered as to this issue came from Dr. Saenz and Mr. Melendez who both opined that Maria Theodora's improvement resulted from the treatment that she received.
Under the circumstances, we believe that the validity of the hearing officer's conclusion that the treatment that Maria Theodora received was not "medically necessary and reasonable" depends on his finding that Maria Theodora's
improvement did not result from the treatment that she received. Because the evidence demonstrates that Maria Theodora's improvement did result from the treatment. We reverse the order under appeal, and remand for entry of an order granting the claimant's request for reimbursement, including the doctor's fee, which is reasonable.
Reversed and Remanded.
============================================================ DISTRICT COURT ORDER GRANTING MOTION FOR ATTORNEYS FEES
AND REMANDING BACK TO THE AGENCY
============================================================
APPEAL
THE DISTRICT COURT OF
OF FLORIDA, THIRD DISTRICT JULY TERM, A.D. 1995 JANUARY 5, 1996
FLOR CARRERAS, etc.,
et al.,
Appellant(s),
vs. CASE NO. 94-02748
LOWER TRIBUNAL NO. 93-
3015
FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY, etc.,
Appellee(s).
/
Upon consideration of the motion for attorney's fees filed by counsel for the appellants, it is ordered that said motion is granted and remanded to the State of Florida, Division of Administrative Hearings to fix amount. BASKIN, COPE and GODERICH, JJ., concur.
A True Copy ATTEST:
LOUIS J. SPALLONE
Clerk District Court of Appeal, Third District
By: Deborah Gray
Deputy Clerk
cc: Charles B. Patrick Gail Leverett Parenti
Walter D. Moody, Jr. Robert Sturgess William J. Kendrick
============================================================
AMENDED FINAL ORDER
============================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLOR CARRERAS, individually and as ) parent and natural guardian of ) MARIA THEODORA CARRERAS, a minor, )
)
Petitioners, )
)
vs. ) CASE NO. 93-3015N
) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )
)
Respondent. )
)
AMENDED FINAL ORDER
This cause came on for consideration of petitioners' motion for entry of an amended final order consistent with the opinion of the District Court of Appeal, Third District, issued December 13, 1995, and the mandate of that court rendered January 26, 1996. Having considered petitioners' motion, the opinion of the court, and the parties additional submittals, it is
ORDERED that:
The final order heretofore rendered on October 28, 1994, is withdrawn insofar as it is inconsistent with the opinion of the District Court of Appeal, Third District, issued December 13, 1995, and the opinion of that court is adopted in its stead.
Petitioners recover from respondent, the sum of
$11,058.51, for medically necessary and reasonable services and related travel expenses, interest in the amount of
$2,906.14, and interest on the total of such sums from December 14, 1995, until paid. 1/
Petitioners are entitled to an award of attorney's fees and costs pursuant to Section 766.31(1), Florida Statutes, and by order of the District Court of Appeal, Third District, dated January 5, 1996. Consequently, jurisdiction is reserved to address such an award.
DONE AND ORDERED this 3rd day of May 1996 in Tallahassee, Florida.
Officer Hearings
Hearings
WILLIAM J. KENDRICK, Hearing
Division of Administrative The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative
this 3rd day of May 1996.
ENDNOTE
1/ The request for pre-final order interest and the calculation of that award is contained in petitioners' submittals, the last of which was filed April 18, 1996. Respondent did not object to such award or contest the accuracy of its calculation and, consequently, it is awarded without further discussion.
COPIES FURNISHED:
Glenn P. Falk, Esquire
Parenti, Falk, Waas and Frazier
113 Almeria Avenue
Coral Gables, Florida 33134
W. Douglas Moody, Jr., Esquire BATEMAN GRAHAM, P.A.
300 East Park Avenue
Tallahassee, Florida 32301
Lynn Dickinson, Executive Director Florida Birth-Related Neurological
Injury Compensation Association Post Office Box 14567 Tallahassee, Florida 32317-4567
NOTICE OF RIGHT TO JUDICIAL REVIEW
PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, 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.
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLOR CARRERAS, individually and as ) parent and natural guardian of ) MARIA THEODORA CARRERAS, a minor, )
)
Petitioners, )
)
vs. ) CASE NO. 93-3015N
) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )
)
Respondent. )
)
ORDER
This cause came on to be heard upon petitioners' motion that the funds remaining on deposit with the Barnett Bank in Miami, Dade County, Florida, and the NCNB National Bank in Miami, Dade County, Florida pursuant to the parties' stipulation and joint petition in settlement of indemnity benefits pursuant to Chapter 766, Florida Statutes, as approved by order of April 24, 1991, be released to her in lump sum. The premises considered, as well as the parties' arguments, and there appearing to be good cause to do so, it is
Ordered that petitioner's motion is granted, and Flor Carreras be and she is hereby authorized to receive the
balance remaining in the aforementioned accounts in lump sum.
DONE AND ORDERED this 14th day of October 1996 in Tallahassee, Florida.
Hearings
3060
9675
Hearings
WILLIAM J. KENDRICK
Administrative Law Judge Division of Administrative
The DeSoto Building 1230 Apalachee Parkway
Tallahassee, Florida 32399-
(904) 488-9675 SUNCOM 278-
Fax Filing (904) 921-6847
Filed with the Clerk of the Division of Administrative
this 14th day of October 1996.
COPIES FURNISHED:
Glenn P. Falk, Esquire
Parenti, Falk, Waas and Frazier
113 Almeria Avenue
Coral Gables, Florida 33134
W. Douglas Moody, Jr., Esquire BATEMAN GRAHAM, P.A.
300 East Park Avenue Tallahassee, Florida 32301
Lynn Dickinson, Executive Director Florida Birth-Related Neurological
Injury Compensation Association Post Office Box 14567 Tallahassee, Florida 32317-4567
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 13, 1995 | Opinion | |
| Oct. 28, 1994 | DOAH Final Order | Case of first impression defining "medically necessary and reasonable" medical expenses under the Act as not limited to those accepted by most Doctors. |
DEPARTMENT OF HEALTH, BOARD OF CHIROPRACTIC MEDICINE vs ROBERT WHITNEY, D.C., 93-003015N (1993)
DEPARTMENT OF HEALTH, BOARD OF OSTEOPATHIC MEDICINE vs RICHARD VAN BUSKIRK, D.O., 93-003015N (1993)
DEPARTMENT OF HEALTH, BOARD OF PODIATRIC MEDICINE vs GRAIG C. MAGUIRE, D.P.M., 93-003015N (1993)
BOARD OF MEDICINE vs ROLANDO ROBERTO SANCHEZ, 93-003015N (1993)
