STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESTRELLA SALAME and BASSAM L. H. SABAT, )

as parents and natural guardians of ) BASSAM LOUIS SABAT, a minor, )

)

Petitioners, )

)

vs. ) Case No. 99-3214N

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

)

Respondent, )

)

and )

) MOUNT SINAI MEDICAL CENTER OF GREATER ) MIAMI, INC.; ELIZABETH ETKIN-KRAMER, ) M.D.; and LISA SHERMAN, M.D., )

)

Intervenors. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on July 5, 2000, by video teleconference, with sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Keith Chasin, Esquire

Chasin & Baron, P.A.

One Datran Center, Suite 1704 9100 South Dadeland Boulevard Miami, Florida 33156

Ralph Fonseca, Esquire Coral Way Law Center

6780 Coral Way, First Floor Miami, Florida 33155

For Respondent: W. Douglas Moody, Esquire

Graham, Moody & Sox, P.A.

101 North Gadsden Street Tallahassee, Florida 32301 Arthur J. England, Esquire Paul C. Savage, Esquire Greenberg & Traurig, P.A. 1221 Brickell Avenue

Miami, Florida 33131-3224 STATEMENT OF THE ISSUE

At issue is whether Petitioners, the parents of an infant covered under the Florida Birth-Related Neurological Injury Compensation Plan, Section 766.301, et seq., Florida Statutes, are entitled to compensation for: (1) custodial care of the infant from November 19, 1998, to April 1, 2000; (2) travel expenses associated with transporting the infant "30 miles a day, 4 times a week to Miami Children's Hospital . . . [from] December 1998 [to April 1, 2000];" and (3) the cost ($812.00) for a portable suction machine.

PRELIMINARY STATEMENT

Bassam Louis Sabat (Bassam), the son of Estrella Salame and Bassam L. H. Sabat, is a covered infant under the provisions Section 766.301 et seq., Florida Statutes, the "Florida Birth- Related Neurological Injury Compensation Plan" (the "Plan").

Consequently, he is accorded coverage for "[a]ctual expenses for

medically necessary and reasonable medical and hospital, habitative and training, residential, and custodial care and services, for medically necessary drugs, special equipment, and facilities, and for related travel." Section 766.31(1)(a), Florida Statutes.

Pertinent to this case, Petitioners request payment under the Plan, as follows:

1. The Sabats have watched Bassam 24 hours a day from the time he was discharged at Miami Children's Hospital [November 19, 1998]

   . . . . They believe that they are entitled to payment for "custodial care" given to Bassam at no less than $10.00 an hour for 20 hours a day. That amount commencing on Bassam's 4th month, would be $7,300.00 a month or $102,200.00 from February 1, 1999, through April 1, 2000.

   
   

2. The Sabats travel 30 miles a day, 4 times a week to Miami Children's Hospital and have done so since December of 1998. At

   $.29 a mile, their transportation expenses through April 1, 2000, are at least

   $1,044.00. The Sabats are awaiting a complete list of visits to Miami Children's Hospital to support this claim.

   
   

3. There are several medical bills which have been forwarded to NICA which have not been paid . . . [, including the reimbursement of $812.00 for a portable suction machine purchased from PSA Healthcare].

(Petitioners' "Memorandum of Fact and Law Regarding Disputed Issues," filed March 27, 2000).1

Respondent, Florida Birth-Related Neurological Injury Compensation Association ("NICA"), the Plan administrator, resolved that the items claimed were not substantiated or were not covered expenses under Subsection 766.31(1)(a) of the Plan, and declined payment. Consequently, a formal hearing was convened, at Petitioners' request, to resolve whether any of the items claimed should be approved for payment.

At hearing, Petitioners, Estrella Salame and Bassam L. H. Sabat, testified on their own behalf, and called Cindy Pickering, R.N., as an additional witness. Petitioners' Exhibits 1-6 and 8 were received into evidence.2 Respondent called no additional witnesses; however, it offered and had received into evidence Respondent's Exhibits 1A, 1B, and 2-4.

A transcript of the hearing was filed July 21, 2000, and the parties were accorded 10 days from that date to file proposed final orders. Both parties elected to file such proposals and they have been duly considered.

FINDINGS OF FACT

Preliminary matters

1. Petitioners, Estrella Salame and Bassam L. H. Sabat, are the parents and natural guardians of Bassam Louis Sabat (Bassam), a minor. Bassam was born October 1, 1998, at Mount Sinai Medical Center (Mount Sinai), a hospital located in Dade County, Florida.

2. At birth, Bassam suffered a "birth-related neurological injury," as that term is defined by Subsection 766.302(2), Florida Statutes, and he was accepted by Respondent, Florida Birth-Related Neurological Injury Compensation Association ("NICA") for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (the "Plan"). Section 766.301, et seq., Florida Statutes. NICA's acceptance of the claim for compensation included its agreement "to provide medical benefits as provided by Section 766.31(1)(a)[, Florida Statutes]." Among those benefits are reimbursement for "[a]ctual expenses for medically necessary and reasonable medical and hospital, habilitative and training, residential and custodial care and service, for medically necessary . . . special equipment, . . . and for related travel."

3. Consistent with Section 766.305(6), Florida Statutes, NICA's acceptance of the claim for compensation was approved by order of March 14, 2000, and, as mandated by Section 766.31(2), Florida Statutes, the order required that NICA "make immediate payment of all expenses previously incurred and shall make payment for future expenses as incurred."

4. Here, Petitioners contend NICA failed to make payment, as required by the order of March 14, 2000, and Subsection 766.31(1)(a), Florida Statutes, for the following items:

   (1) custodial care provided by the parents from November 19,

   1998, to April 1, 2000; (2) travel expenses associated with transporting Bassam to Miami Children's Hospital from

   December 1998 to April 1, 2000; and (3) the cost ($812.00) of a portable suction machine.

   The claim for custodial care

   
   

5. Bassam, as with all infants covered under the Plan, suffered a catastrophic injury at birth. In Bassam's case, his injury was associated with anoxia, hypoxia of sufficient severity to render him permanently and substantially mentally and physically impaired.

6. Bassam has been diagnosed with cerebral palsy and is incapable of caring for himself. He presents with a number of medical problems, including a seizure disorder; cortical blindness; retrognathia; dysphagia; G/E reflux; and bronchopulmonary dysphasia. Bassam has had a gastrostomy with fundoplication placed for feeding.

7. Given his presentation, Bassam requires, and has required since birth (in the opinion of his pediatrician, Michael Geraldi, M.D.), 24-hour nursing/attendant care.3 That care, if provided by a medical professional, would require the employment of a licensed practical nurse (LPN), who possesses the requisite level of skill to address all of Bassam's needs; however, anyone of reasonable intelligence and trust-worthiness could, as the parents have done, provide the necessary care with

   about 4 hours of specialized training. (Respondent's Exhibit 1A, pages 21, 22, and 84-86). Such 24-hour attendance is required to regularly suction his airway, attend to gastrostomy tube maintenance and feedings, monitor for seizure activity, and tend to Bassam's physical, therapeutic and hygenic care. Such care is clearly beyond the normal care-giving one would expect of a parent, and may be described as extraordinary.

8. From November 19, 1998 (the date he was discharged from Miami Children's Hospital to his parents' care) to April 1, 2000, (at an hour comparable to the hour he was discharged from Miami Children's Hospital), Petitioners were able to access limited attendant care through Medicaid. Such care was provided by a nurse's aid on two occasions, the first in 1999 for 9 weeks at 8 hours a day; and the second in 2000 for 9 weeks at 8 hours a day. The services provided by the aid were, however, limited "to assist[ing] the patient and mother with patient's activities of daily living . . . [and] to observe [the] infant while sleeping and notify mother immediately if child develops any respiratory difficulty and call 911."4 Essentially, the aid's assistance provided intermittent relief for Petitioners so they could rest, but did not provide the specialized services Bassam routinely required or relieve them of the responsibility to provide those services. For the remainder of the period, except for an 8-day hospitalization from December 3-10, 1998, and

   another 8-day hospitalization from February 17-24, 1999, Petitioners attended to Bassam's care. That custodial care amounted to 816 hours in 1998, 8,568 hours in 1999, and 2,184

   hours to April 1, 2000.5

   
   

9. To further support their claim for custodial care, the Petitioners offered proof that the rate of pay for an LPN in Dade County, Florida, was $22.00 an hour in 1998, $23.00 an hour in 1999; and $25.00 an hour in 2000. Petitioners failed, however, to offer any proof to establish the prevailing rate in Dade County for care, similar to that provided by Petitioners, by a care-giver with no formal medical training or licensure. The claim for travel expenses

10. With regard to Petitioners' claim for travel expenses, the proof demonstrates that Petitioners made not less than 252 round-trips by private automobile (a Ford Tempo) of 30 miles, a total of 7,560 miles, to Miami Children's Hospital, between December 1998 and April 1, 2000, to access medical care for Bassam.6 The Petitioners failed, however, to offer any proof (expert or otherwise) to establish a reasonable mileage allowance (cost) for the use of their vehicle and, consequently, the actual or reasonable travel expense associated with Bassam's transport cannot be calculated.

    The claim for the expense of a portable suction machine

11. With regard to Petitioners' claim of $812.00 for a portable suction machine, the proof demonstrates that the provision of such equipment was medically necessary and reasonable for Bassam's care; however, the proof also demonstrated that a suction machine was provided by Medicaid, but rejected by Petitioners because the machine was "very oxidated." As for its utility, Petitioners offered no proof that the machine tendered, albeit "oxidated," was not fit for

    its intended purpose.

    
    

    CONCLUSIONS OF LAW

    
    

12. 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.

13. Pertinent to this case, Section 766.31(1), Florida Statutes, provides that where, as here, a claim for compensation has been approved, the claimants are entitled to "an award providing compensation for the following items relative to such injury:"

    1. Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel.

       However, such expenses shall not include:

       1. Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the Federal Government, except to the extent

       such exclusion may be prohibited by federal law.

       
       

       * * *

       
       

       Expenses included under this paragraph shall be limited to reasonable charges prevailing in the community for similar treatment of injured persons when such treatment is paid for by the injured person.

       
       

14. Here, Petitioners contend they are entitled to an award of compensation for: (1) custodial care provided by the parents from November 19, 1998, to April 1, 2000; (2) travel expenses associated with transporting Bassam to Miami Children's Hospital from December 1998 to April 1, 2000; and (3) the cost ($812.00) of a portable suction machine, as expenses covered under Section 766.31(a), Florida Statutes. As the claimants, Petitioners bear the burden to demonstrate their entitlement to an award of compensation for those benefits. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981), and Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349, 350 (Fla. 1st DCA 1997)("[T]he burden

    of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal.")7

15. As the first step in resolving a claim for compensation, it is ordinarily necessary to resolve whether the expenses claimed are "medically necessary and reasonable," as required for coverage under the Plan. Here, however, there is

    no dispute that the custodial care the parents provided, the travel expenses associated with Bassam's care at Miami Children's Hospital, and the need for a suction machine, were "medically necessary and reasonable," as those terms are used in the Plan. What is at issue is whether, fundamentally, the parents are entitled to recover compensation under the Plan for extraordinary services (custodial care) and, if so, with regard to such care, as well as the claim for travel expenses, whether Petitioners have established the "reasonable charges prevailing in the . . . community" for such expenses. Finally, at issue with regard to the cost of the suction machine is whether Petitioners' rejection of the machine, otherwise available from Medicaid, was reasonable.

16. With regard to the claim for custodial care, NICA did not dispute that Bassam required 24-hour care. Rather, NICA fundamentally opposed payment to the parents, but not third party providers, on two bases. First, NICA contended that the provision of custodial care by the parents was not an "actual expense" to them. Second, NICA contended that the parental award of $100,000, accorded the parents, under the provisions of Subsection 766.31(1)(b), Florida Statutes, included an element of compensation for any indirect economic loss suffered by the parents in caring for Bassam and, therefore, the parents (as opposed to third party providers) could not receive additional

    compensation for the care they provided. NICA's contentions are rejected as unpersuasive.

17. In rejecting NICA's contentions, it is first observed that Petitioners have suffered an "actual" ("[i]n existence; real; factual") "expense" ("[t]he cost involved in some activity; a sacrifice; a price"). The American Heritage Dictionary of the English Language, New College Edition (1979). Such "actual expense" is represented by the time Petitioners dedicated to Bassam in order to provide the nursing/custodial care he required, which time they could have dedicated to other pursuits (including their business in Honduras). That they also chose to provide such services for familial reasons (without regard for compensation) does not render the expense less real and does not otherwise render their claim for compensation (absent express waiver) less deserving or meritorious than one by a third-party provider. See Dawson v. Blue Cross Assoc., 366 So. 2d 536 (Fla. 1st DCA 1979).

18. NICA's alternative contention (that the parental award included compensation for indirect economic loss suffered by the parents in caring for Bassam and, therefore, they could not receive additional compensation for providing attendant care) is partially correct, with regard to indirect economic loss associated with routine care of the child, but not well founded with regard to extraordinary care provided by the parents. In

    so concluding, it is observed that Section 766.31(1), Florida Statutes, provides that when a claim is deemed compensable, "the administrative law judge shall make an award providing for compensation for the following items relative to such injury:"

    1. Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel . . . .

       
       

    2. Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum.

       
       

       The foregoing provisions offers no guidance as to the basis upon which an "award" to the parents is to be premised. Accordingly, it is presumed that the Legislature intended that such award be based on the same factors that support an award at common law.

       Vanner v. Goldshein, 216 So. 2d 759, 760 (Fla. 2d DCA 1968), ("The general rule is that statutes are to be construed with reference to appropriate principles of the common law, and when possible, they should be construed as to make them harmonize with existing law and not conflict with long settled principles."); and Carlile v. Game and Fresh Water Fish Commission, 354 So. 2d 362 (Fla. 1977)(A statute designed to change the common law rule must speak in clear, unequivocal

       terms, for the presumption is that no change in the common law was intended unless the statute is explicit in this regard).

19. Pertinent to this case, the parent of a child who has suffered a significant injury resulting in permanent total disability has been recognized to have "a cause of action in his own name for medical, hospital, and related expenditures, indirect economic losses such as income lost by a parent in caring for the child, and for the loss of the child's companionship, society, and services, including personal services to the parent and income which the child might earn for the direct and indirect benefit of the parent." Yordon v. Savage, 279 So. 2d 844, 846 (Fla. 1973). Accord U.S. v.

    Dempsey, 635 So. 2d 961 (Fla. 1994).

    
    

20. Construing the provisions of Section 766.31(1)(a) and

    
    

    (b) with due regard for the principles of common law heretofore noted, it would appear that the parental award contemplated by Subsection 766.31(1)(b) was intended to compensate the parent for loss of consortium ("the loss of companionship, society, love, affection, and solace of the injured child, as well as ordinary day-to-day services that the child would have rendered"), as well as any indirect economic losses suffered by the parent in caring for the child, but not direct economic losses (expenses) associated with medical, hospital, or other special services. U.S. v. Dempsey, supra, at page 965. Such

    conclusion is compelling, since the Legislature provided separately, at Subsection 766.31(1)(a), for the recovery of expenses associated with medical, hospital, and other special services, as incurred. Whether those extraordinary services are provided by a parent or third-party provider would appear to be inconsequential under the statutory scheme, and there appears to be no rational basis to make such a distinction. Consequently, NICA's contention that the Plan prohibits such a claim is rejected.

21. Turning now to the individual claims, it must be resolved that Petitioners have failed to establish their entitlement to an award of compensation for the items claimed. First, with regard to the claim for custodial care, the Petitioners failed to meet their burden of proving the reasonable hourly charge in the community for custodial services similar to those provided by Petitioners, as required by Section 766.31(1)(a), Florida Statutes. See Commercial Carrier Corp v. Beck, 580 So. 2d 334, 335 (Fla. 1st DCA 1991) ("The compensation paid to registered nurses for professional services performed in doctor's offices and hospitals has little to do with the market rate for part-time, nonprofessional, in-home attendants."); Dementry v. Danis Shook Construction Co., 587 So. 2d 611 (Fla. 1st DCA 1991); Standard Balasting & Coating v. Hayman, 597 So.

2d 392 (Fla. 1st DCA 1992). Second, with regard to the claim

for travel expenses, Petitioners provided no evidence to establish the cost per mile to operate their vehicle. In the absence of any record basis for determining a mileage allowance, it would be pure speculation to award any sum for travel expenses. Swindell v. Crowson, 712 So. 2d 1162, 1164 (Fla. 2d

DCA 1998) ("Damages cannot be based on speculation, conjecture or guesswork.") Accordingly, no travel allowance can be granted.8 Finally, with regard to the request for reimbursement for the portable suction machine, the proof demonstrated that such equipment was furnished by Medicaid and rejected by Petitioners. Since Petitioners failed to establish that their rejection was reasonable, no allowance for the purchase of the suction machine can be granted. Section 766.31(1)(a)1, Florida Statutes.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that:

1. Petitioners' claim of reimbursement for custodial care, travel expenses, and the cost of a portable suction machine is denied.

2. Consistent with the order of July 7, 2000, jurisdiction is retained to resolve Petitioners' entitlement to, as well as the reasonableness of, "[c]osts incurred by Petitioners in

connection with the filing of the claim (as opposed to attorney's fees) before March 21, 2000, as well as expenses, including reasonable attorney's fees, incurred subsequent to March 21, 2000." The parties are accorded thirty days from the date of this order to resolve, subject to the approval of the administrative law judge, the amount of any such award. If not resolved within such period, the parties shall advise the administrative law judge, in writing, and a hearing will be scheduled to resolve such issue.

DONE AND ORDERED this 11th day of September, 2000, 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 11th day of September, 2000.

ENDNOTES

1/ During the course of the hearing held on July 5, 2000, the parties resolved their dispute regarding the manner of payment of the parental award, the amount of reasonable attorney's fees for services rendered through March 21, 2000, and Petitioners' claim for payment for certain other expenses. The agreed disposition of those items is reflected in an order issued July 7, 2000.

2/ Respondent's objection to Petitioners' Exhibit 7 was sustained, and it was not received into evidence.

3/ Dr. Geraldi's opinions are rational, as well as uncontroverted, and are credited.

4/ Respondent's Exhibit 1B.

5/ For 1998, the hours are derived by calculating the number of days from November 19, 1998, to the end of that year (42), subtracting 8 days for Bassam's December hospitalization, and multiplying the remainder by 24 (the number of hours a day extraordinary parental care was provided). For 1999, the hours are similarly derived by subtracting 8 days for Bassam's February hospitalization from the number of days in the calendar year (365), and multiplying the remainder by 24. For the year 2000, the hours are derived by multiplying the number of days to

April 1, 2000 (91) by 24. No reduction in total hours has been made for the assistance Petitioners received from the aid since she did not provide, and the Petitioners continued to provide, the specialized services Bassam required. Similarly, no reduction in total hours has been made because of the numerous visits Bassam made to physicians and other health care providers, including physical therapists, since Petitioners transported the child, remained in attendance until the visit was over to transport the child home, and continued to provide the other specialized care for the child.

6/ Petitioners also offered proof regarding travel expenses associated with visits to Dr. Geraldi, Baptist Hospital and ARC physical therapy which likewise cannot be derived because of Petitioners' failure to demonstrate actual cost or a reasonable mileage allowance. More fundamentally, Petitioners failed to make any claim of NICA (prior to hearing) for these travel expenses, and they were not an issue noticed for hearing.

Consequently, denial of those benefits is without prejudice.

7/ Were NICA to contend that any requested benefit was available through a collateral source and, therefore, excluded from coverage under Section 766.31(1)(a)1-4, Florida Statutes, it would ordinarily bear the burden to so demonstrate. See Peninsular Life Ins., Co. v. Hanratty, 281 So. 2d 610 (Fla. 3d DCA 1973)(Burden of proof was upon insurer to prove, because of an exclusion in the policy, there was no coverage). Here, however, the proof affirmatively demonstrated that a suction machine was available from a collateral source (Medicaid) and,

although provided, was rejected by Petitioners because it was "very oxidated." Given the availability of the equipment from Medicaid, the burden then shifted to Petitioners to demonstrate that their rejection of the equipment was reasonable. This Petitioner failed to establish.

8/ Compare, Mills v. Walden-Sparkman, Inc., 493 So. 2d 64 (Fla. 1st DCA 1986) where the court discussed reimbursement for travel expenses under the Worker's Compensation Law, Chapter 440, Florida Statutes. At the time, Section 440.14(5) of the Worker's Compensation Law provided:

. . . when the employee is entitled to such reimbursement for transportation by private automobile, it shall be presumed, in the absence of proof, that the actual cost is the amount allowed by the state to employees for official travel.

There is no comparable provision (presumption) is the Plan and, consequently, no basis to depart from accepted methods of proof.

COPIES FURNISHED:

Keith Chasin, Esquire Chasin & Baron, P.A. Penthouse One, Suite 1704

9100 South Dadeland Boulevard Miami, Florida 33156

John D. Kelner, Esquire

Law Office of Kelner & King, L.L.P. 455-S Presidential Circle

4000 Hollywood Boulevard

Hollywood, Florida 33021

Arthur J. England, Esquire Greenberg & Traurig

1221 Brickell Avenue

Miami, Florida 33131

Lynn Larson, Executive Director Florida Birth-Related Neurological

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

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

101 North Gadsden Street Tallahassee, Florida 32301

Dr. Lisa G. Sherman 4302 Alton Road

Miami Beach, Florida 33140

Dr. Elizabeth Etkin-Kramer 4302 Alton Road

Miami Beach, Florida 33140

Mount Sinai Medical Center Legal Department

4300 Alton Road

Miami Beach, Florida 33140

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: 99-003214N

Orders for Case No: 99-003214N