STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEBORAH BIEDENHARN and JOSEPH )

BIEDENHARN, as parents and natural ) guardians of ALEXANDRA LOUISE ) BIEDENHARN, a minor, )

)

Petitioners, )

)

vs. ) Case No. 97-4217N

) 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 December 19, 1997, in Port St. Lucie, Florida.

APPEARANCES

For Petitioners: Deborah Biedenharn and

Joseph Biedenharn, pro se 4820 48th Place

Vero Beach, Florida 32967

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

Graham & Moody, P.A.

101 North Gadsden Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

At issue in this proceeding is whether Alexandra Louise Biedenharn, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological

Injury Compensation Plan.

PRELIMINARY STATEMENT

On May 6, 1997, Deborah Biedenharn and Joseph Biedenharn, as parents and natural guardians of Alexandra Louise Biedenharn, 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"); however, it was not until September 10, 1997, that the medical records referenced in the claim were filed with DOAH.

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on September 11, 1997. NICA reviewed the claim, and on November 3, 1997, 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 duly scheduled for December 19, 1997.

At hearing, the parties stipulated to the factual matters set forth in paragraphs 1 and 2 of the findings of fact.

Petitioners' Exhibits 1 and 2, the medical records from Lawnwood Medical Center for the mother (Deborah Biedenharn) and the medical records from Lawnwood Medical Center for the infant (Alexandra Louise Biedenharn), respectively, were received into evidence. Respondent's Exhibit 1 (the deposition of

Michael Duchowny, M.D.) was also received into evidence. No witnesses were called, and no other exhibits were offered.

The transcript of the hearing was not ordered, and the parties waived the opportunity to file proposed final orders.

FINDINGS OF FACT

Fundamental findings

1. Deborah Biedenharn and Joseph Biedenharn are the parents and natural guardians of Alexandra Louise Biedenharn (Alexandra), a minor. Alexandra was born a live infant on March 17, 1997, at Lawnwood Regional Medical Center, a hospital located in Fort Pierce, Florida, and her birth weight was in excess of 2500 grams.

2. The physician providing obstetrical services during the birth of Alexandra was Juliette Lomax-Homier, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan

3. Pertinent to this case, coverage is afforded under the Plan when the claimant demonstrates, more likely than not, that the infant suffered an "injury to the brain or spinal cord . . . 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."

   Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, Alexandra's neurologic condition is dispositive of the claim and it is unnecessary to address the timing or cause of her condition.

   Alexandra's neurologic status

   
   

4. On October 2, 1997, following the filing of the claim for compensation, Alexandra was examined by Michael Duchowny, M.D., a board-certified pediatric neurologist. Dr. Duchowny's examination of Alexandra revealed no evidence of a substantial motor deficit, but did reveal evidence of mild hypertonia, which has shown progressive improvement over time. Alexandra's social and cognitive function evidenced no compromise and, with regard to such matters, she was progressing at age level. In

   Dr. Duchowny's opinion, which is credited, Alexandra is not currently substantially mentally and physically impaired and, consequent to any events which may have occurred at birth, is not likely to be so impaired in the future.

   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. 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 satisfaction 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 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 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. As the claimants, the burden rests on Petitioners 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.")

12. Here, the proof demonstrated that Alexandra suffered no mental impairment, much less a substantial mental impairment, and that what physical impairment she suffered is most appropriately described as mild. Consequently, the record developed in this case fails to demonstrate that Alexandra suffered a "birth- related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearings, 686 So. 2d 1349 (Fla. 1997). Accordingly, the subject claim is not compensable under the Plan. Sections 766.302(2), 766.309(1), and 766.31(1), Florida Statutes.

13. 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, Deborah Biedenharn and Joseph Biedenharn, as parents and natural guardians of Alexandra Louise Biedenharn, a minor, be and the same is hereby denied.

DONE AND ORDERED this 23rd day of December, 1997, in Tallahassee, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1997.

COPIES FURNISHED:

Deborah and Joseph Biedenharn 4820 48th Place

Vero Beach, Florida 32967

W. Douglas Moody, Jr., Esquire Graham & Moody, P.A.

101 North Gadsden Street Tallahassee, Florida 32301

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

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

Juliette Lomax-Homier, M.D. 1304 Lawnwood Circle

Fort Pierce, Florida 34950-4884

Lawnwood Regional Medical Center Legal Department

1700 South 23rd Street

Fort Pierce, Florida 34954

Ms. Charlene Willoughby

Agency for Health Care Administration Consumer Services Unit

Post Office Box 14000 Tallahassee, Florida 32308

Dan Sumner, General Counsel Department of Insurance

The Capitol, Lower Level 26 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: 97-004217N

Orders for Case No: 97-004217N