STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELISSA ANN HAMILTON, on behalf )

of and as natural guardian of ) MELINDA SUE COOL, a minor, )

)

Petitioner, )

and )

)

JEFFREY G. COOL, )

)

Intervenor, )

)

vs. ) CASE NO. 95-2473N

) 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 December 21, 1995, in Tallahassee, Florida.

APPEARANCES

For Petitioner, Virginia M. Buchanan, Esquire

and Intervenor: Levin, Middlebrooks, Mabie, Thomas,

Mayes & Mitchell, P.A. Post Office Box 12308 Pensacola, Florida 32581

For Respondent: Lynn Dickinson, Qualified Representative Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 14567 Tallahassee, Florida 32317-4567

STATEMENT OF THE ISSUES

At issue in this proceeding is whether respondent's acceptance of the claim for compensation should be approved and, if so, the award of compensation pursuant to Section 766.31(1), Florida Statutes.

PRELIMINARY STATEMENT

On May 16, 1995, Melissa Ann Hamilton, as the mother and natural guardian of Melinda Sue Cool, 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 May 16, 1995. NICA reviewed the claim, and on September 25, 1995, gave notice that it "agrees that Melinda Sue Cool suffered a birth-related neurological injury as defined in Section 766.302(2), Florida Statutes," and that it was "prepared to provide medical benefits as provided by Section 766.31(1)(a) and [was] willing to offer the full $100,000.00 as provided in Section 766.31(1)(b)."

Subsequently, a dispute arose between the parents of the infant as to the appropriate division of the parental award, and a hearing was scheduled for December 21, 1995, to address whether NICA's acceptance of the claim for compensation should be approved and, if so, the appropriate award of compensation pursuant to Section 766.31(1), Florida Statutes. The father, Jeffrey G. Cool, appeared at hearing and was accorded leave to intervene so that the respective interests of each parent to an award pursuant to Section 766.31(1) could be resolved.

At hearing, the parties stipulated to a number of facts, which are addressed in the findings of fact which follow, and agreed that the hearing officer should consider, in resolving whether NICA's acceptance of the claim should be approved, the medical records filed with the petition on May 16, 1995, the supplemental medical records filed May 30, 1995, and the report of Dr. Michael Duchowny filed September 26, 1995. Finally, at hearing, the testimony of the following witnesses was given: Melissa Ann Hamilton, Jeffrey G. Cool, Lothar Kaemmerling, Susan Kaemmerling, and Gail Kraft.

The transcript of hearing was not ordered, and the parties waived their right to submit proposed final orders. Consequently the case was taken under advisement for the issuance of a final order in due course; however, on January 16, 1996, the parties filed a stipulation and joint petition for compensation, whereby

they sought the Hearing Officer's approval of their resolution of all pending disputes. This final order is premised on the hearing held December 21, 1995, and the parties' stipulation.

FINDINGS OF FACT

The claim for compensation

1. Melinda Sue Cool (Melinda) is the natural daughter of petitioner, Melissa Ann Hamilton, and intervenor, Jeffrey G. Cool. She was born a live infant on December 17, 1993, at Sacred Heart Hospital, a hospital located in Pensacola, Florida, and her birth weight was in excess of 2500 grams.

   
   

2. The physician providing obstetrical services during the birth of Melinda was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.

   
   

3. Here, the parties have stipulated and the record supports the conclusion that Melinda suffered a "birth-related neurological injury" as defined by Section 766.302(2), Florida Statutes, in that she suffered an injury to the brain caused by oxygen deprivation in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital, which rendered her permanently and substantially mentally and physically impaired.

   
   

4. As a consequence of the foregoing, NICA has agreed that the subject claim is compensable, and that it will pay all "actual expenses" previously incurred and to be incurred in the future, "reasonable expenses" incurred in connection with the filing of the claim for compensation, which the parties have agreed to be a reasonable attorney's fee of $5,200.00 and expenses of $697.97, and the payment of a parental award of

   $100,000.00. Given the circumstances, the sole remaining issue to be resolved is the appropriate apportionment of the award between the parents.

   Apportionment of the award to the parents

   
   

5. Pursuant to the parties stipulation filed January 16, 1996, they agreed that the parental award would be apportioned between the parents as follows:

   
   

   1. Melissa Ann Hamilton will receive Ninety Thousand Dollars ($90,000) for the purchase of a home and a van for the use and benefit of Melinda Sue Cool;

   2. Jeff Cool will receive Ten Thousand Dollars ($10,000) for the purchase of a van for the use and benefit of Melinda Cool.

      Such agreement is reasonable, and is hereby approved.

      CONCLUSIONS OF LAW

      
      

6. 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).

   
   

7. 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.

   
   

8. 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.

   
   

9. Where, as here, 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.

   
   

10. 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. 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.

    
    

11. 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.

    
    

12. Here, the proof, as well as the parties' stipulation, demonstrate that the attending physician who provided obstetric services during the birth of Melinda 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. Moreover, the record developed in this case demonstrates that Melinda did suffer a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. Accordingly, the subject claim is compensable under the Plan, and NICA's acceptance of the claim for compensation is approved. Sections 766.302(2), 766.309(1) and 766.31(1), Florida Statutes.

    
    

13. Where, as here, the Hearing Officer determines that "the infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at the birth," the Hearing Officer is required to make a determination as to "how much compensation, if any, is awardable pursuant to s. 766.31." Section 766.309(1)(c), Florida Statutes. In this case, NICA has agreed to pay all "actual expenses," past and future; an award of $5,897.97 for attorney's fees and other expenses associated with filing the claim for compensation; and a parental award of $100,000.00 to be paid to

the parents as heretofore set forth in the findings of fact. Such awards are reasonable, and are approved.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that:

1. The petition for compensation filed by petitioner, Melissa Ann Hamilton, on behalf of and as natural guardian of Melinda Sue Cool, a minor, as well as the claim of intervenor, Jeffrey G. Cool is granted; and the parties' stipulation filed January 16, 1996, is approved and the parties are directed to comply with the provisions thereof.

   
   

2. NICA shall make immediate payment of all actual expenses, as defined by Section 766.31(1)(a), Florida Statutes, previously incurred and shall make payment for future expenses as incurred.

   
   

3. NICA shall pay a parental award of One hundred thousand dollars ($100,000.00) to the parents of Melinda Sue Cool as follows:

   
   

   1. Melissa Ann Hamilton will receive Ninety Thousand Dollars ($90,000) for the purchase of a home and a van for the use and benefit of Melinda Sue Cool;

      
      

   2. Jeff Cool will receive Ten Thousand Dollars ($10,000) for the purchase of a van for the use and benefit of Melinda Sue Cool.

   
   

4. NICA shall pay to counsel for petitioner and intervenor, Virginia M. Buchanan, Esquire, the sum of $5,897.97, for reasonable attorney's fees and expenses associated with filing of the claim for compensation.

   
   

5. The Division of Administrative Hearings retains jurisdiction over this matter to resolve any dispute as to the interpretation of any provision of the parties' stipulation and this final order, and to resolve any disputes, should they arise, regarding the parties' compliance with the terms of the stipulation and this final order.

DONE AND ORDERED this 19th day of January 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 19th day of January 1996.

COPIES FURNISHED:

(By certified mail)

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)

Virginia M. Buchanan, Esquire Levin, Middlebrooks, Mabie, Thomas,

Mayes & Mitchell, P.A. Post Office Box 12308 Pensacola, Florida 32581

James R. Moulton, M.D. Northwest Florida OB/GYN Clinic 5045 Carpenter Creek Drive Pensacola, Florida 32503-2521

Todd Stalnaker, M.D. Alisa Langner, M.D. Luis Gomez, M.D.

B. L. Stalnaker, M.D.

Northwest Florida OB/GYN Clinic 5045 Carpenter Creek Drive Pensacola, Florida 32503-2521

Sacred Heart Hospital Legal Department

Post Office Box 2700 Pensacola, Florida 32513-2700

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

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: 95-002473N

Orders for Case No: 95-002473N