STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HEATHER DELISLE and ERIC B. DELISLE, )

as parents and natural guardians of ) AUBREIGH KATHRYNE DELISLE, a minor, )

)

Petitioners, )

)

vs. ) Case No. 98-4443N

) 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

May 24, 1999, in Tallahassee, Florida.

APPEARANCES

For Petitioners: No appearance at hearing.

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

PRELIMINARY STATEMENT

On October 8, 1998, Heather Delisle and Eric B. Delisle, as parents and natural guardians of Aubreigh Kathryne Delisle (Aubreigh), 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 October 9, 1998. NICA reviewed the claim, and on December 31, 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 "an order [be entered] setting a hearing in this cause on the issue of the compensability of this claim." Such a hearing was duly-noticed and held on May 24, 1999.

Although duly-noticed, neither Petitioners nor anyone on their behalf appeared at hearing, and no evidence was offered to support their claim. Respondent appeared, through counsel, and offered the deposition testimony of Michael Duchowny, M.D., which was received into evidence as Respondent's Exhibit 1.

The transcript of the hearing was not ordered.

Consequently, at the conclusion of the hearing, it was announced on the record that the parties were accorded seven days to file

proposed final orders. Neither party elected to file such a proposal.

FINDINGS OF FACT

1. As observed in the preliminary statement, neither Petitioners nor anyone on their behalf appeared at hearing, and no proof was offered to support their claim.

2. Contrasted with the dearth of proof offered by Petitioners, Respondent offered the opinions of Michael Duchowny, M.D., a physician board certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. It was Dr. Duchowny's opinion, based on his neurological evaluation of Aubreigh on December 3, 1998 (at

   7 years of age) and his review of Aubreigh's medical records, that Aubreigh's current neurological condition did not result from oxygen deprivation or mechanical trauma occurring during the course of labor, delivery, or resuscitation in the immediate

   post-delivery period. Rather, it was Dr. Duchowny's opinion that Aubreigh's neurological presentation was most consistent with "abnormal brain maturation" or, stated differently, "there was no brain damage whatsoever, but rather her brain was not developing normally." (Transcript, page 9.)

3. Given the proof, it must be resolved that Petitioners have failed to demonstrate that Aubreigh suffered a "birth- related neurological injury" as alleged in the claim for benefits.

   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 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.

8. 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.

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. 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.") By failing to appear and offer any proof, Petitioners failed to sustain that burden. Accordingly, the subject claim has not been shown to be compensable under the Plan.

11. 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 Heather Delisle and Eric B. Delisle, as parents and natural guardians of Aubreigh Kathryne Delisle, a minor, be and the same is hereby dismissed with prejudice.

DONE AND ORDERED this 2nd day of June, 1999, 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1999.

COPIES FURNISHED:

(By certified mail)

Heather and Eric B. Delisle 4130 Concord Plaza

Apartment No. 6

West Des Moines, Iowa 50266

Heather and Eric B. Delisle 13408 Lake Boulevard

Winter Garden, Florida 34787

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

Lewis Arthur Sellinger, M.D.

295 West Chestnut Street Kingston, New York 12401-6531

St. Mary's Medical Center Legal Department

901 45th Street

West Palm Beach, Florida 33407

Ms. Charlene Willoughby

Agency for Health Care Administration Consumer Services Unit

Post Office Box 14000 Tallahassee, Florida 32308

Daniel Y. 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: 98-004443N

Orders for Case No: 98-004443N