STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BLANCA MEJIA and JUSTO ANGEL )

AGUIAR, SR., on behalf of and ) natural guardians of JUSTO ANGEL ) AGUIAR, JR., a minor, )

)

Petitioners, )

)

vs ) CASE NO. 95-0595N

) 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 February 6, 1996, in Miami, Florida.

APPEARANCES

For Petitioner: Manuel R. Morales, Esquire

Biscayne Building, Suite 711

19 West Flagler Street Miami, Florida 33130

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

BATEMAN GRAHAM, P.A.

300 East Park Avenue Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Justo Angel Aguiar, Jr., a minor, weighed at least 2500 grams at birth.

PRELIMINARY STATEMENT

On February 9, 1995, Blanca Mejia and Justo Angel Aguiar, Sr., as parents and natural guardians of Justo Angel Aguiar, Jr., 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").

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on February 13, 1995. NICA reviewed the claim, and on August 14, 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 Association cannot establish that the infant, Justo Angel Aguiar, Jr., weighed 2500 grams or more at birth," and requested that the Hearing Officer "enter an order setting a hearing in this cause on the issue of the compensability of this claim." Such a hearing was held on February 6, 1996.

At hearing, the parties stipulated to the facts set forth in paragraphs one and two of the findings of fact. 1/ Petitioners called no witnesses; however, their exhibits 1 through 5 were received into evidence. 2/ Respondent called no witnesses; however, its exhibit 1 was received into evidence.

The transcript of the hearing was filed February 26, 1996, and the parties were initially accorded thirty days from that date to file proposed final orders; however, at petitioners' request the deadline was extended to April 15, 1996.

Consequently, the parties waived the requirement that a final order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The parties proposed findings of fact, contained within their proposed final orders, are addressed in the appendix to this final order.

FINDINGS OF FACT

Preliminary matters

1. Blanca Mejia and Justo Angel Aguiar, Sr., are the parents and natural guardians of Justo Angel Aguiar, Jr. (Justo), a minor. Justo was born a live infant on May 26, 1990, at Jackson Memorial Hospital, a teaching hospital located in Miami, Dade County, Florida.

   
   

2. The physician providing obstetrical services during the birth of Justo was Mary Ann Sarda-Maduro, M.D., who was, at all time material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.

   
   

   Justo's birth

3. At or about 12:26 a.m., May 26, 1990, Blanca Mejia (Ms. Mejia) was admitted to Jackson Memorial Hospital in active labor, with complaints of abdominal pain since 7:00 p.m.. At the time, Justo was preterm, with an estimated gestational age of 36 weeks.

   
   

4. Ms. Mejia's progress record reflects that at 2:35 a.m., the fetal heart rate was at 120-130 beats per minute, with good beat to beat variability, but severe variable decelerations in the 60 beat per minute range were noted, with some late return to baseline. Vaginal exam revealed the cervix to be at 6 centimeters, effacement complete, and the fetus at station 0, with no amniotic fluid present.

   
   

5. Ms. Mejia was infused, and at 4:10 a.m., May 26, 1990, Justo was delivered. Upon delivery, Justo was noted to be very floppy, with minimal response to stimulation, and suffering severe respiratory distress. Apgars were 4, 5, and 6, at one, five and ten minutes, respectively. Justo was suctioned, bagged and intubated, and transferred to the neonatal intensive care unit.

   
   

6. Pertinent to this case, Justo was admitted to the neonatal intensive care unit at 4:28 a.m., May 26, 1990. At that time, certain vital statistics were taken and entered on the "neonatal nursing admission interview" sheet, including Justo's weight, which was recorded as 2,340 grams.

   
   

7. Following his admission to the neonatal intensive care unit, Justo's weight was closely monitored, as his progress records reflect. As documented by those records, Justo's weight progress over the ensuing days was noted as follows: May 27, 1990, 2340 grams; May 28, 1990, 2325 grams; May 29, 1990, 2325 grams; May 30, 1990, 2320 grams; May 31, 1990, 2300 grams; June 1, 1990, 2305 grams; June 2, 1990, 2325 grams; June 3, 1990, 2325 grams; June 4, 1990, 2410 grams; June 5, 1990, 2445 grams; June 6, 1990, 2440 grams, June 7, 1990, 2450 grams; and June 8, 1990, 2450 grams. Finally, on June 9, 1990, two weeks after birth, Justo's weight finally achieved 2500 grams. Of a similar nature are the observations regarding Justo's weight recorded on the neonatal flow sheets, classification of newborns sheet, consultation reports, and the admission physical to the neonatal intensive care unit. [Respondent's exhibit 1].

   
   

8. Given the proof, Justo's weight at birth was, more likely than not, 2340 grams.

   
   

   CONCLUSIONS OF LAW

9. 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.

   
   

10. 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.

    
    

11. 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.

    
    

12. 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.

    
    

13. 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.

14. As the claimants, the burden rests on petitioners to demonstrate entitlement to compensation. Section 766.309, 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.") Here, petitioners failed to sustain that burden.

    
    

15. As heretofore noted in the findings of fact, the proof demonstrates, more likely than not, that Justo's birth weight was 2340 grams. At such weight, Justo was below the 2500 gram minimum established by Section 766.302(2), Florida Statutes. Consequently, Justo's injury was not shown to be a "birth-related neurological injury" as defined by law, and the subject claim is not compensable under the Plan. Sections 766.302(2) and 766.309(1), Florida Statutes.

16. 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 Blanca Mejia and Justo Angel Aguiar, Sr., on behalf of and natural guardians of Justo Angel Aguiar, Jr., a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 25th day of April, 1996 in Tallahassee, Leon County, Florida.

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 25th day of April, 1996.

ENDNOTES

1/ The parties further stipulated that one ounce equals 28.35 grams.

2/ Petitioners' exhibit 5, the records of the Department of Health and Rehabilitative Services (HRS), were received subject to respondent's hearsay objection. Those records have been found unreliable as persuasive proof of Justo's birth weight. See discussion regarding paragraph 1 of petitioner's proposed findings of fact in the appendix.

APPENDIX

Petitioners' proposed findings of fact are addressed as follows:

1. First three sentences addressed in paragraphs 1 and 6 through 8. Last sentence rejected as subordinate and not persuasive. Regarding the last sentence, the parties agreed that were Ms. Mejia to testify, she would testify that she told the Department of Health and Rehabilitative Services (HRS) that, at birth, Justo weighed 5 1/2 pounds, and that such was the source of the information HRS entered in its documents which were marked petitioners' exhibit 5. [Transcript, at pages 13 through 15]. Ms. Mejia did not testify regarding the source of her information and, according to her counsel, had no personal knowledge as to Justo's birth weight. [Transcript, at page 16]. Consequently, petitioners' exhibit 5 and Ms. Mejia's perception regarding Justo's birth weight are not persuasive and are rejected. Moreover, even at 5 1/2 pounds, Justo's birth weight would have been 2494.8 grams, still less than the 2500 grams required by Section 766.302(2), Florida Statutes.

2. Adopted in paragraph 2.

   
   

3. First sentence rejected as not a finding of fact.

   Second sentence addressed in endnote 1. Third sentence addressed in paragraphs 6 through 8. Fourth sentence rejected as subordinate and not persuasive proof. See discussion at paragraph 1.

   
   

4. First sentence, rejected as subordinate and not persuasive. See discussion at paragraph 1. Second sentence, rejected as speculative and, moreover, Nurse Bennett was not shown to have weighed Justo. Third sentence, rejected as

contrary to the proof. Rather, the proof demonstrates that, more likely than not, Justo was weighed in the neonatal intensive care unit and not the delivery room. Last sentence, rejected as speculative and, given the fact that Justo was more likely than not weighed in the neonatal intensive care unit, not relevant.

Respondent's proposed findings of fact are addressed as follows:

1 and 2. Addressed in paragraph 1.

1. Addressed in paragraph 2.

   
   

2. Addressed in paragraphs 6 through 8, otherwise unnecessary detail.

   
   

3. Rejected as recitation of testimony and not a finding of fact. Moreover, Nurse Bennett was not shown to have weighed Justo but such occurred, more likely than not, in the neonatal intensive care unit. See discussion at paragraph 4 of petitioners' proposed findings of fact, supra.

   
   

4. Addressed in paragraphs 6 through 8.

COPIES FURNISHED:

(By certified mail)

Manuel R. Morales, Esquire Biscayne Building, Suite 711

19 West Flagler Street Miami, Florida 33130

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 14567 Tallahassee, Florida 32317-4567

Mary Ann Sarda-Maduro, M.D. Jackson Memorial Hospital Department of Obstetrics 1611 Northwest 12th Avenue Miami, Florida 33136

Jackson Memorial Hospital Legal Department

1611 Northwest 12th Avenue Miami, Florida 33136

Ms. Tanya Williams

Agency for Health Care Administration Division of Health Quality Assurance Hospital Section

2727 Mahan Drive

Tallahassee, Florida 32308

Ms. Charlene Willoughby Department of Business and

Professional Regulation Consumer Services

1940 North Monroe Street Tallahassee, Florida 32399-0784

Dan Sumner, General Counsel Department of Insurance

The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

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.

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DISTRICT COURT OPINION

=================================================================

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION

AND, IF FILED, DISPOSITION OF.

BLANCA MEJIA and JUSTO ANGEL IN THE DISTRICT COURT OF APPEAL

AGUIAR, SR., on behalf of and OF FLORIDA natural guardians of JUSTO THIRD DISTRICT

ANGEL AGUIAR, JR., a minor, JULY TERM, A.D. 1996

Appellant, CASE NO. 96-1259

LOWER TRIBUNAL NO. 95-0595N

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Appellee.

/ Opinion filed November 13, 1996.

An appeal from the Florida Division of Administrative Hearings.

Manual R. Morales, Jr., for petitioners.

W. Douglas Moody, Jr., (Tallahassee), for respondent. Before NESBITT, COPE and GODERICH, JJ.

PER CURIAM.

Affirmed.

MANDATE

DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT

DCA No. 96-1259 BLANCA MEJIA, et al.

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

This cause having been brought to this Court by appeal, and after due consideration the Court issued its opinion;

YOU ARE HEREBY COMMANDED that such futher proceedings be had in said cause in accordance with the opinion of ths Court attached hereto and incorporated as part of this order, and with the rules of procedure and laws of the State of Florida.

Case No. 95-0595N DEPT.

WITNESS the Honorable ALAN R. SCHWARTZ

Chief Judge of said District Court and seal of said Court at Miami, this 3rd day of December, 1996.

(seal) Louis J. Spallone

Clerk, District Court of Appeal of Florida, Third District

Docket for Case No: 95-000595N

Orders for Case No: 95-000595N