STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REID EVANS and ANDREA M. EVANS, )

individually and as parents and ) natural guardians of SKYLAR EVANS, ) a minor, )

)

Petitioners, )

)

vs. ) CASE NO. 96-2786N

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

)

Respondent. )

)

FINAL ORDER

On July 30, 1996, the Division of Administrative Hearings, by and through its duly designated Hearing Officer, William J. Kendrick, held a telephone conference in the above-styled case. At such time, the parties stipulated to certain factual matters, discussed more fully in the preliminary statement which follows, and agreed to submit this case for resolution on a stipulated record.

APPEARANCES

For Petitioner: William A. Norton, Esquire

Searcy, Denney, Scarola, Barnhart, and Shipley, P.A.

Post Office Drawer 3626

West Palm Beach, Florida 33402-3626

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

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

STATEMENT OF THE ISSUE

At issue is whether Skylar Evans, a minor, has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On June 13, 1996, Reid Evans and Andrea M. Evans, individually and as parents and natural guardians of Skylar Evans, 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 June 13, 1996. NICA reviewed the claim and on July 30, 1996, a telephone conference was held to address the status of the case and the parties agreed to submit the case for resolution upon an agreed record.

The record agreed to by the parties during the course of the telephone conference consisted of the parties' stipulation to the ultimate facts set forth in findings of fact 1 and 2 which follow; the medical records attached to the claim for compensation which were received in evidence as Joint Exhibit 1; and the deposition of Michael S. Duchowny, M.D. (filed August 5, 1996), which was received in evidence as Joint Exhibit 2. The parties further stipulated that if they were to proceed to hearing they would offer no further proof.

FINDINGS OF FACT

Fundamental findings

1. Skylar Evans (Skylar) is the natural son of petitioners, Reid Evans and Andrea M. Evans. He was born a live infant on January 7, 1994, at HCA Gulf Coast Hospital, a hospital located in Panama City, Bay County, Florida, and his birth weight was in excess of 2,500 grams.

   
   

2. The physician providing obstetrical services during the birth of Skylar was Mahmood Mohammad, M.D., who 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.

   
   

   Skylar's neurologic condition

   
   

3. Pertinent to the resolution of the subject claim, the proof demonstrates that Skylar currently exhibits no evidence of a gait disturbance or abnormalities of the upper extremities, and his movement dexterity is age appropriate. Indeed, in the opinion of Michael Duchowny, M.D., a pediatric neurologist, whose

   opinion is credited, Skylar is developmentally normal from a physical standpoint, and clearly does not suffer a substantial or permanent physical impairment.

   
   

   CONCLUSIONS OF LAW

   
   

4. 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.

   
   

5. 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.

   
   

6. 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.

   
   

7. 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.

   
   

8. 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 rebutt- able 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. 1/ 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.

      
      

9. 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.

   
   

10. Here, the proof demonstrated that the attending physician who provided obstetric services during the birth of Skylar 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 fails to demonstrate that Skylar 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 demonstrates that Skylar does not suffer a permanent and substantial physical impairment.

    Accordingly, the subject claim is not compensable under the Plan. Sections 766.302(2) and 766.309(1), Florida Statutes.

    
    

11. 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 Reid Evans and Andrea M. Evans, individually and as parents and natural guardians of Skylar Evans, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 12th day of August, 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 12th day of August, 1996.

ENDNOTE

1/ 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), ("The burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.")

COPIES FURNISHED:

William A. Norton, Esquire SEARCY, DENNY, SCAROLA, ET AL.

Post Office Drawer 3626

West Palm Beach, Florida 33402-3626

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

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

Mahmood Mohammad, M.D.

25 Doctors Drive

Panama City, Florida 32405

HCA Gulf Coast Hospital Legal Department

449 West 23rd Street

Panama City, Florida 32405

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, PL-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: 96-002786N

Orders for Case No: 96-002786N