STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGELA HILL and RICHARD SPENCE, as )

parents and natural guardians of ) MELISSA SARA SPENCE, a minor, )

)

Petitioners, )

)

vs. ) Case No. 98-1306N

) 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

July 9, 1998, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioners: Angela Hill, pro se

Richard Spence, pro se

211 Southwest 65th Avenue Pembroke Pines, Florida 33023

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

Graham & Moody, P.A.

101 North Gadsden Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Melissa Sara Spence, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On March 18, 1998, Angela Hill and Richard Spence, as parents and natural guardians of Melissa Sara Spence, 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 20, 1998. NICA reviewed the claim, and on April 29, 1998, 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 the administrative law judge "enter an order setting a hearing in this cause on the issue of the compensability of this claim." Such a hearing was scheduled for July 9, 1998.

At hearing, the parties stipulated to the matters set forth in paragraphs 1 and 2 of the findings of fact, and that the medical records filed with DOAH on March 18, 1998, would be received in evidence as Joint Exhibit 1. Petitioners, Angela Hill and Robert Spence, testified on their own behalf, but offered no additional proof. Respondent's Exhibit 1 (the deposition of Michael Duchowny, M.D.) and Exhibit 2 (the deposition of Charles Kalstone, M.D.) were received into

evidence. Respondent offered no additional proof.

The transcript of the hearing was filed on August 6, 1998, and the parties were accorded ten days from that date to file proposed final orders. Respondent elected to file such a proposal, and it has been duly considered.

FINDINGS OF FACT

Fundamental findings

1. Angela Hill and Richard Spence are the parents and natural guardians of Melissa Sara Spence (Melissa), a minor. Melissa was born a live infant on January 24, 1996, at Memorial Regional Hospital, a hospital located in Hollywood, Florida, and her birth weight was in excess of 2500 grams.

2. The physician providing obstetrical services during the birth of Melissa was Isabel Otero, M.D., who was, at all time 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 claimants demonstrate, 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." Melissa's presentation

4. On April 21, 1998, following the filing of the claim for compensation, Melissa was examined by Michael Duchowny, M.D., a physician board-certified in pediatrics and neurology, with special competence in child neurology. Dr. Duchowny's evaluation revealed the following:

   HISTORY ACCORDING TO MR. AND MRS. SPENCE:

   The parents began by stating that Melissa's main problem is that she "communicates well, but her sentence structure is not real good." She apparently knows words and can speak in full sentences, but often tends to communicate her thoughts by gesture. She has not been in a course of speech therapy. Her parents believe that her hearing and vision are normal, although they have not been formally tested. There is no indication that Melissa has loss (sic) any language ability and in fact she began speaking at a year, the same time that she walked independently. Mr. and Mrs. Spence believe that Melissa's motor development has gone well. All of her motor milestones were essentially accomplished on time. She is described as an active and

   well-coordinated toddler.

   
   

   * * *

   
   

   PHYSICAL EXAMINATION reveals Melissa to be alert, pleasant and cooperative. Her weight is 32-pounds and height 37-inches. The skin is warm and moist. There is one cafe-au-lait spot on the right leg. There are no dysmorphic features and no other neurocutaneous stigmata. The head circumference measures 51.7 cm and the fontanelles are closed. The right ventriculoperitoneal tubing is palpated and an abdominal scar is noted. There are no significant cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal.

   Melissa's NEUROLOGIC EXAMINATION reveals

   her to be alert and to have an age appropriate stream of attention. She displays a well-developed level of curiosity, but is fully cooperative and clearly enjoys the social interaction accompanying the evaluation. She spoke in phrases and short sentences. She was able to carry out one and two step commands. There is good central gaze fixation with conjugate following movements. The pupils are 3 mm and react briskly to direct and consensually presented light. There are no fundoscopic anomalies.

   The tongue and palate move well. There is no drooling.

   
   

   Motor examination reveals symmetric strength, bulk and tone. There are no adventitious movements, focal weakness or atrophy. Melissa has a full range of motion. She has well-developed gross and fine motor coordination. She is able to grasp objects with either hand, but does not display a lateralized preference. Transferring is accomplished readily and she has well- developed thumb/finger opposition. The deep tendon reflexes are 2+ and symmetric. The plantar responses are downgoing. Station and gait are age appropriate with symmetric arm swing. The neurovascular examination is unremarkable. There are no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. The spine is straight. . . .

5. In Dr. Duchowny's opinion, which is uncontroverted and credible, Melissa's neurologic examination revealed only a mild delay in expressive language, most likely developmentally based, which is most likely to fully remit over time. As for her physical presentation, Melissa's neurologic examination was entirely normal, without any evidence of physical or motor impairment. Moreover, it was Dr. Duchowny's opinion, which was shared by Charles Kalstone, M.D., a board-certified obstetrician, that the records relating to Melissa's birth do not reveal any

   untoward events during the course of labor, delivery, or the immediate post-delivery period which would have caused or contributed to neurological injury. In sum, the proof fails to demonstrate that Melissa suffered any injury to her brain or spinal cord during the birth process, much less a permanent and substantial, mental and physical impairment.

   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.

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. 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. 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.

10. 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.

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. 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.")

13. Here, the proof demonstrated that Melissa did not suffer an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation and, moreover, suffered no permanent and substantial mental and physical impairment. Consequently, the record developed in this case failed to demonstrate that Melissa suffered a "birth-related neurological injury," with 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). Therefore, the subject claim is not compensable under the Plan. Sections 766.302(2), 766.309(1), and 766.31(1), Florida Statutes.

14. 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 Angela Hill and Richard Spence, as parents and natural guardians

of Melissa Sara Spence, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 28th day of August, 1998, in Tallahassee, Leon County, 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 28th day of August, 1998.

COPIES FURNISHED:

(By certified mail)

Angela Hill, pro se Richard Spence, pro se

211 Southwest 65th Avenue Pembroke Pines, Florida 33023

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

Isabel Otero, M.D.

12060 Northwest 20th Court

Fort Lauderdale, Florida 33323

Memorial Regional Hospital Legal Department

3501 Johnson Street

Hollywood, Florida 33021

Ms. Charlene Willoughby

Agency for Health Care Administration Consumer Services Unit

Post Office Box 14000 Tallahassee, Florida 32308

Daniel 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: 98-001306N

Orders for Case No: 98-001306N