STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHERYL GLASSMAN as parent and ) natural guardian of FRANNIE )

LASHER, a minor, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1124N

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

)

Respondent. )

____________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on October 29, 1996, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: No appearance at hearing.

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 Frannie Lasher, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On March 1, 1996, Sheryl Glassman, as parent and natural guardian of Frannie Lasher, a minor, filed a petition (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 March 6, 1996. NICA reviewed the claim, and on June 21, 1996, 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," and requested that "an order [be entered] setting a hearing in this cause on the issue of the compensability of this claim." Such a hearing was held on October 29, 1996.

At hearing, neither petitioner nor anyone on her behalf appeared, and no evidence was offered to support her claim. Respondent called no witnesses; however, its exhibit 1 (the deposition of Charles Kalstone, M.D.), exhibit 2 (the medical records that were filed with DOAH on March 1, 1996), and exhibits 3 through 6 were received into evidence.

At the conclusion of the hearing, the parties were accorded seven days to file proposed final orders. Neither party elected to file such a proposal.

FINDINGS OF FACT

Initial observations

1. As observed in the preliminary statement, neither petitioner nor anyone on her behalf appeared at hearing, and no proof was offered to support her claim. Ordinarily, such failing would be dispositive of the case; however, notwithstanding petitioner's failure of proof, respondent elected to offer certain evidence to affirmatively resolve the issue as to whether Frannie Lasher (Frannie), suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes.

   
   

   Frannie's neurologic condition

   
   

2. Pertinent to the resolution of the subject claim, the proof demonstrates that Frannie was the product of a normal pregnancy, and was delivered at term on May 4, 1993, at Hollywood Memorial Hospital, Hollywood, Florida, by repeat cesarean section. At birth, Frannie weighed 7 pounds, 5 ounces, had an Apgar score of 8 at one minute and 9 at five

   minutes, and had a normal newborn course. In sum, the delivery and newborn records fail to demonstrate that Frannie was compromised by oxygen deprivation, mechanical injury or otherwise, during the birth-process.

   
   

3. On February 15, 1995, Frannie was referred to Melvin Grossman, M.D., a child neurologist, who observed some delay in her developmental speech and motor milestones. At the time, Dr. Grossman recommended an MRI scan of the brain to make sure there were no structural lesions, although he did not believe that Frannie had any evidence to suggest a neuromuscular disorder. The MRI scan of the brain was normal.

   
   

4. Approximately two years after birth, Frannie was diagnosed as severely autistic, which accounts for her impaired development, communication, motor coordination and balance. Autism is not, however, a condition related to the birthing or resuscitative process, and there is no evidence that Frannie suffered an injury to her brain due to hypoxia or mechanical trauma during such period.

   
   

   CONCLUSIONS OF LAW

   
   

5. 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.

   
   

6. 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.

   
   

7. 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.

8. 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 Administrative Law Judge 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 Administrative Law Judge in accordance with the provisions of Chapter 120, Florida Statutes. Sections 766.304, 766.307,

   766.309 and 766.31, Florida Statutes.

   
   

9. In discharging this responsibility, the Administrative Law Judge 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 satis- faction of the [Administrative Law Judge], 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. 766.303(2).

   2. Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscit- ation in the immediate post-delivery period in a hospital; or by a certified nurse mid- wife 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 Administrative Law Judge 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.

      
      

10. 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.

    
    

11. Here, the proof demonstrated that Frannie's present neurologic condition is the result of autism, and that autism is not a condition associated with the birthing process. Moreover, the proof fails to demonstrate that Frannie suffered any injury to her brain or spinal cord due to oxygen deprivation or mechanical injury during the course of labor, delivery, or resuscitation. Therefore, the record fails to demonstrate that Frannie suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes, and Sections 766.302(2) and 766.309(1), Florida Statutes.

    
    

12. Where, as here, the Administrative Law Judge 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 Sheryl Glassman, as parent and natural guardian of Frannie Lasher, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 6th day of November, 1996, in Tallahassee, Florida.

___________________________________ WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1996.

COPIES FURNISHED:

(By certified mail)

Ms. Sheryl Glassman

2847 Fillmore Street, Apt. 409

Hollywood, Florida 33020

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

Isabel Otero, M.D.

12060 Northwest 20th Court

Fort Lauderdale, Florida 33323

Hollywood Memorial Hospital Legal Department

3501 Johnson Street

Hollywood, Florida 33021

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: 96-001124N

Orders for Case No: 96-001124N