STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAULETTE SCHWAB-POWELL and NORMAN )

POWELL, as parents and natural ) guardians of NATHAN POWELL, a ) minor, )

)

Petitioners, )

)

vs. ) CASE NO. 95-0003N

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

)

Respondent. )

___________________________________)

FINAL ORDER

Pursuant to notice, dated March 6, 1995, a formal hearing was scheduled on the issue of compensability for May 4, 1995, in Gainesville, Florida; however, on May 3, 1995, a telephone conference was held with counsel for petitioners and respondent wherein they agreed to submit the case for resolution on an agreed record, discussed infra, and the hearing was cancelled.

APPEARANCES

For Petitioner: Thomas F. Granahan, Esquire

1906 North Tampa Street Tampa, Florida 32605

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

300 East Park Avenue Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Nathan Eric Powell has suffered an injury for which compensation should be awarded under the Florida Birth- Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.

PRELIMINARY STATEMENT

On January 6, 1995, Paulette Schwab-Powell and Norman Powell, as parents and natural guardians of Nathan Eric Powell, a minor, filed a claim with the Division of Administrative Hearings (hereinafter referred to as "DOAH") for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (hereinafter referred to as the "Plan"). 1/ DOAH served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on January 9, 1995. NICA reviewed the claim, and on February 16, 1995, gave notice that it had "determined that such claim is not a 'birth related neurological injury' within the meaning of Section 766.302(2), Florida Statutes (1993) inasmuch as the infant . .

. does not suffer from a substantial mental or physical

impairment," and requested that the Hearing Officer "enter an order setting a hearing in this cause on the issue of the compensability of this claim."

On March 6, 1995, DOAH issued a notice of hearing advising the parties that an evidentiary hearing would be held on May 4, 1995, to resolve the issue of compensability; however, during the course of a telephone conference held May 3, 1995, the parties agreed to submit the case for resolution upon an agreed record, and the hearing was cancelled.

The record agreed to by the parties consisted of the medical records attached to the claim for compensation, which are hereby denoted petitioners' exhibit 1 and officially recognized, and the deposition of Michael Duchowny, M.D., which has been marked as respondent's exhibit 1 and received into evidence.

The parties were accorded ten days from May 3, 1995, to submit proposed final orders. Respondent elected to file such a proposal and the proposed findings of fact contained therein are addressed in the appendix to this final order.

FINDINGS OF FACT

Preliminary matters

1. Nathan Eric Powell (Nathan) is the natural son of Paulette Schwab-Powell and Norman Powell. He was born a live infant on September 23, 1993, at North Florida Regional Medical Center, a hospital located in Gainesville, Alachua

   County, Florida, and his birth weight was in excess of 2,500 grams.

   
   

2. The physicians providing obstetrical services during the birth of Nathan were Eduardo Marichal, M.D. and Gregory Bailey, M.D. NICA concedes that Eduardo Marichal, M.D., was a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. 2/

   
   

   Nathan's birth and injury

   
   

3. Paulette Schwab-Powell (Mrs. Powell) was admitted to North Florida Regional Medical Center at or about 6:30 p.m., September 22, 1993, in active labor. At the time, Mrs. Powell was slightly post-term, with an estimated date of delivery of September 11, 1993, and her prenatal course had been essentially uncomplicated.

   
   

4. Mrs. Powell continued to have regular uterine contractions and at 10:25 p.m. her membranes were artificially ruptured, with clear fluid noted. Mrs. Powell continued progressing, and became completed dialated at 4:30 a.m., September 23, 1993. Thereafter, at or about 6:15 a.m. pushing was started, with assistance of a vacuum extractor. At 7:45 a.m., due to arrest of descent due to cephalopelvic disproportion, vacuum extraction was abandoned and the decision was made to proceed with a cesarean section.

   
   

5. Mrs. Powell was taken to the operating room where a cesarean section was performed, and Nathan was delivered at 8:27 a.m. Upon delivery, Nathan required resuscitation, and his Apgar scores were 2 at one minute and 8 at five minutes. Within twenty-four hours of birth, Nathan developed intermittent tremors in the left leg, which were categorized as suspected seizures, and on September 24, 1993, he was transferred to the NICU II unit at Shands Teaching Hospital in Gainesville, Florida.

   
   

6. Upon admission to Shands, Nathan evidenced a seizure and was placed on phenobarbital, later changed to Tegretol, to control his seizures. An EEG revealed seizures activity suggestive of diffuse cerebral dysfunction, and a CT scan revealed a bilateral subarachnoid hemorrhage, with fracture of the parietal bone. Nathan was initially hypertonic with poor suck, but showed gradual improvement until by September 28, 1993, he was able to take full feedings and was weaned off oxygen. On September 29, 1993, Nathan was discharged to the

   care of his parents, with maintenance Tegretol for seizure control.

   
   

7. On November 24, 1993, Nathan was evaluated at the Pediatric Neurology Clinic. At the time, it was reported that Nathan continued on Tegretol and had not experienced any further seizures since those experienced immediately after his admission to Shands on September 24, 1993. A follow-up MRI was performed which showed resolving hemorrhage and no evidence of an ongoing fracture.

   
   

8. On examination, Nathan evidenced good developmental milestones. The exam further revealed:

   
   

   . . . In terms of developmental milestones, Nathan has good head control for age. He has turned over one time. He recognizes mom's voice and smiles. On exam he has a height of 58.5 cm., weight of 5.48 kg., head circumference of 39.5 cm., temperature

   37.2, pulse 164, respiratory rate of 28. On HEENT the patient's anterior fontanel is soft, flat, bilateral breath sounds are clear to auscultation. Heart rate is regular, no murmurs auscultated. Abdominal exam is benign for hepatosplenomegaly. No birth marks are detected. Specifically on neurologic the patient is awake, alert, easily rooting well. Cranial nerve exam reveals PERRLA, positive red reflex on funduscopic exam, tracking well. In terms of facial movement, there seems to be an asymmetry with a weekness on the left. It was difficult to assess forehead involvement as the

   baby neither cried nor smiled throughout the exam. It appears to effect [sic] his lower face as well as his left eyelid and mom adds that when he sleeps his left eye does not close spontaneously at times.

   Motor exam reveals normal tone. Reflexes were easy to elicit and approximately 5-10 beats of clonus was noted bilaterally with upgoing toes. Sensory is grossly intact. Cerebellar is appro- priate for age.

   
   

   As a consequence, it was concluded to continue Nathan on Tegretol, without further increase in dosage, and gradually wean him off the medicine as he gained weight, with the aim of discontinuing Tegretol by six months of age.

9. On January 20, 1995, Nathan was evaluated by Michael Duchowny, M.D., at Miami Children's Hospital, in Miami, Dade County, Florida. Dr. Duchowny is board certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology.

   
   

10. On examination, Dr. Duchowny found and reported the following observations:

    
    

    GROWTH AND DEVELOPMENT: Nathan rolled over at 5 months, sat at 7 months and stood at 9 months, he walked at a year and is not yet toilet trained.

    
    

    PHYSICAL EXAMINATION: Reveals Nathan to be an alert, pleasant and cooperative infant. His weight is 24 lbs and height a 34 inches, his skin is warm and moist and no neurocutaneous stigmata, the head circumference measures 48.1 cm. which is in standard percentiles, neck is

    supple with out masses, thyromegaly or adenopathy and the cardiovascular, respiratory and abdominal examinations are normal. There are no digital, skeletal or palmar abnormalities.

    
    

    Nathan's NEUROLOGICAL EXAMINATION: Reveals him to be alert and cooperative, he maintains an age appropriate stream of attention and cooperative fully with the examination. He has a good level of curiosity. Nathan did not speak but babble quite melodically throughout the interview.

    Nathan maintain a good central gaze fixation and congenically follows quite well. There is blink to threat in both directions, the funduscopic examination are unremarkable the pubils [sic] are

    4 ml and react briskly to direct and consensually presented light. There are no nasolabial asymmetries and the tongue and palate move well, the gag reflex is appropriate active. Motor examination reveals generalized diminution in muscle tone. Motor examination reveals generalized diminution in muscle tone. This is present in a symmetric fashion in all extremities and there is increase range of motion at all joints. I detected no evidence . . . of spasticity or hypotonia and Nathan additionally demonstrate full use of all limbs. He grasp for offered objects with either hand and transferred readily. There is good fine

    motor movement and thumb finger opposition bilaterally. The deep tendon reflexes were slightly brisk being 2-3+ with both plantar responses being down ongoing. Station and gait revealed the stability in normal stands but a slight truncal ataxia while walking, however,

    Nathan turn crisply and did not fall. Sensory examination was deferred. Neurovascular examination reveal cervical cranial and ocular bruit and no temperature or pulse asymmetries.

    
    

    In SUMMARY, Nathan neurological examination in detail reveals only mild delays in motor and speech function. I regard the lateralized motor syndrome to be fully resolved.

    
    

11. The foregoing findings of Dr. Duchowny are consistent with the other evidence of record which reveals that the consequences of the injury Nathan suffered at birth have, over time, continued to improve. Consequently, the opinion of Dr. Duchowny that Nathan does not suffer a permanent and substantial physical impairment or a permanent and substantial mental impairment is credited.

    
    

    CONCLUSIONS OF LAW

    
    

12. 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).

    
    

13. The Florida Birth-Related Neurological Injury Compensation Plan (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.

    
    

14. 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 of Administrative Hearings within five years of the infant's birth. Sections 766.302(3), 766.303(2), 766.305(1), and 766.313, Florida Statutes. The Florida Birth-Related Neurological Injury Compensation Association (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 is a birth-related neurological injury." Section 766.305(3), Florida Statutes.

    
    

15. If NICA determines that the injury alleged in a claim is a compensable birth-related neurological injury, it may award compensation to the claimant, provided that the award is approved by the Hearing Officer to whom the claim has been assigned. Section 766.305(6), Florida Statutes. If, on the other hand, NICA disputes the claim, as it has in the instant case, 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 766.31, Florida Statutes.

    
    

16. In discharging this responsibility, the Hearing Officer must make the following determination based upon the 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 s. 766.302(2).

    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.

       
       

       Section 766.309(1), Florida Statutes. 3/ An award may be sustained only if the Hearing Officer concludes that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth." Section 766.31(1), Florida Statutes.

       
       

17. Pertinent to this case, "birth-related neurological injury" is defined by Section 766.302(2), Florida Statutes, to mean:

    . . . 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. This definition shall

    apply to live births only and shall not include disability or death caused by genetic or congenital abnormality.

    
    

18. Here, the proof demonstrated that the attending physician who provided obstetric services during the birth of Nathan was a "participating physician" as that term is defined by Section 766.302(7), Florida Statutes, and as that term is used in Sections 766.301 through 766.316, Florida Statutes. However, the record developed in this case demonstrates that Nathan has not suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes.

    As noted in the findings of fact, the record demonstrated that Nathan was not "permanently and substantially mentally and physically impaired" as a consequence of any injury he may have suffered at birth. Accordingly, the subject claim is not compensable under the Plan. Sections 766.302(2), 766.309(1) and 766.31(1), Florida Statutes.

    
    

19. Where, as here, the Hearing Officer determines that ". . . the injury alleged is not a birth-related neurological injury . . . 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. Such an order constitutes final agency action subject to appellate court review. Section 766.311(1), Florida Statutes.

CONCLUSION

Based on the foregoing findings of fact and conclusions of law, it is

ORDERED that the petition for compensation filed by Paulette Schwab-Powell and Nathan Powell, as parents and natural guardians of Nathan Eric Powell, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 9th day of June 1995.

___________________________________ WILLIAM J. KENDRICK

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 9th day of June 1995.

ENDNOTES

1/ The claim was actually filed with DOAH on December 15, 1994; however, because petitioners failed to supply the requisite number of copies of the petition mandated by Section 766.305(2), Florida Statutes, until January 6, 1995, it was not docketed and assigned a case number until that date.

2/ See NICA's proposed final order, paragraph 2 of its "Stipulation and Statement of the Issues," where it agrees that Dr. Marichal was a "participating physician."

3/ Where, as here, NICA disputes the claim, the burden rests on the claimant to demonstrate entitlement to compensation.

Section 766.309(1)(a), Florida Statutes. See also, Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349, 350 (Fla. 1st DCA 1977), ("[T]he burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.")

APPENDIX

1 & 3. Adopted in paragraph 1.

2. Adopted in paragraph 2.

4-6. Adopted in paragraphs 3-5.

7 & 8. Addressed in paragraphs 7 and 8.

9. Addressed in paragraphs 9-11.

COPIES FURNISHED:

(By Certified Mail)

Thomas F. Granahan, Esquire 1906 North Tampa Street Tampa, Florida 32605

W. Douglas Moody, Jr., Esquire BATEMAN GRAHAM

300 East Park Avenue Tallahassee, Florida 32301

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 1528

Tallahassee, Florida 32302

Brian E. Currie, Esquire Suite 3500

50 North Laura Street Jacksonville, Florida 32202

Dr. Eduardo Marichal

6440 West Newberry Road, Suite 502

Gainesville, Florida 32605

Dr. Gregory Bailey

6440 West Newberry Road, Suite 502

Gainesville, Florida 32605

HCA North Florida Regional Medical Center

Legal Department 6500 Newberry Road

Gainesville, Florida 32605

Ms. Charlene Willoughby Department of Business

and Professional Regulation Consumer Services

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0750

Ms. Tanya Williams

Division of Health Quality Assurance Hospital Section

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Dan Sumner

Acting General Counsel Department of Insurance The Capitol PL LL

Tallahassee, Florida 32399-0300

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.

Docket for Case No: 95-000003N

Orders for Case No: 95-000003N