STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THERESA MEARS, as parent and natural ) guardian of JORDAN MEARS, a minor, )

)

Petitioner, )

)

vs. ) Case No. 99-4890N

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

)

Respondent. )

)

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 May 23, 2000, and October 11, 2000, in Ocala, Florida.

APPEARANCES

For Petitioner: Theresa Mears, pro se

Apartment 4

2580 Northeast 49th Avenue Ocala, Florida 34470

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

Graham, Moody & Sox, P.A.

215 South Monroe Street Post Office Box 2174 Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

On November 22, 1999, Theresa Mears, as parent and natural guardian of Jordan Mears, 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.

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on November 23, 1999. NICA reviewed the claim, and on February 20, 2000, 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 such issue]." Consistent with such request, such a hearing was held on May 23, 2000, and October 11, 2000.

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

Petitioner (Theresa Mears) testified on her own behalf, and Petitioners' Exhibit 1 (the medical records filed with DOAH on

November 22, 1999), Exhibit 2 (Florida's Family Support Plan), and Exhibit 3 (selected medical records of Dr. Bernard L. Maria, filed May 31, 2000) were received into evidence. Respondent's Exhibit 1 (the deposition of Michael J. Duchowny) was also received into evidence. No other witnesses were called, and no further exhibits were offered.

The transcript of the hearing was filed October 26, 2000, and the parties were accorded 10 days from that date to file proposed final orders. Neither party elected to file such a proposal.

FINDINGS OF FACT

1. Theresa Mears is the mother and natural guardian of Jordan Mears (Jordan), a minor. Jordan was born a live infant on January 6, 1999, at Ocala Regional Medical Center, a hospital located in Ocala, Florida, and his birth weight was in excess of 2500 grams.

2. The physician providing obstetrical services during the birth of Jordan was Sarojini Pericherla, 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(2), Florida Statutes.

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, Jordan's mental and physical presentation is dispositive of the claim and it is unnecessary to address the cause or timing of any injury he may have suffered.

4. To address the compensability of the claim, Petitioner offered selected records related to Jordan's birth and subsequent development. Among those records were certain assessments and opinions of Jordan's treating pediatric neurologist, Dr. Bernard

   L. Maria. The most recent assessment of record is dated October 18, 1999, and states:

   SUBJECTIVE: Patient is a 10-month-old white male who is here for return visit . . . .

   The patient is being followed by PT with one visit per week. The patient is assessed by PT to be at a 5-6-month-old developmental age for motor skills. Patient has persistently deceased truncal tone. Patient still exhibits inability to sit without assistance or to stand. The patient is also unable to crawl.

   
   

   The patient is able to grab objects with either hand and to pass these objects from hand to hand. The patient is also able to hold a bottle on his own. The patient is mobile by rolling. Patient exhibits good appetite per mom with good weight gain. The patient is on formula cereal and soft foods.

   The patient babbles but as yet has been unable to articulate words.

   
   

   OBJECTIVE: On examination today, he is alert; he tracks; he turns his head appropriate; has good reciprocal facial responses; exhibits good range of motion with good muscle strength and bulk in the extremities. The patient still exhibits central hypertonia with marked truncal instability. The patient is unable to sit without assistance.

   
   

   Patient is able to stand with assistance; however, he has difficulty moving from the standing to sitting position. His legs exhibit transient stiffness. The patient exhibits no clonus, nor does he exhibit spasticity. The patient also does not exhibit any contractures; however, the patient exhibits brisk reflexes bilaterally of the lower extremities.

   
   

   IMPRESSION/PLAN: Based on history, physical exam, and persistent developmental delay, the patient is assessed as having cerebral palsy

   . . . .

   
   

5. Previously, on April 14, 1999, at three months of age, Dr. Maria had observed that Jordan "had mild to moderate central hypotonia with brisk reflexes in the legs," and that he was "at high risk for mild cerebral palsy." Given Jordan's presentation on October 18, 1999, Dr. Maria's expectations, as expressed in his report of April 14, 1999, were apparently accurate.

6. Subsequent to the filing of the claim in this case, Jordan was examined by Michael J. Duchowny, M.D., a pediatric neurologist board-certified in child neurology. The results of

   that examination, which occurred on January 24, 2000, were reported as follows:

   HISTORY ACCORDING TO MRS. MEARS:

   
   

   . . . Jordan . . . [has been] diagnosed with "mild cerebral palsy." He is only now beginning to pull himself up for the first time and has been noted to have left sided weakness. Fisting of the left hand was not noted until 1 month ago. Jordan attends the ARC Program Occupational and speech therapy should start soon.

   
   

   * * *

   
   

   PHYSICAL EXAMINATION reveals an alert, active, well developed and well nourished 13 month old infant. The weight is 17-pounds and height 27-inches. His head circumference measures 45.8 cm, which approximate the 3rd percentile for age. There is one cafe-au- lait spot over the left buttocks region. No other neurocutaneous stigmata are noted. The anterior fontanelle is just opened and flat. There is no significant cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy.

   The cardiovascular, respiratory and abdominal examinations are unremarkable. There is an area of fungal rash over the left temporal scalp.

   
   

   NEUROLOGIC EXAMINATION reveals Jordan to be overactive with a short attention span. He has frequent grasping and a prominent sucking reflex. He makes cooing sounds. The tongue movements are poorly coordinated and he demonstrates frequent drooling. There is good central gaze fixation with conjugate following movement. The pupils are 3 mm and briskly reactive to direct and consensually presented light. Fundoscopic examination is unremarkable. The motor examination reveals generalized static hypotonia of all extremities with dynamic increases in tone.

   There are no fixed contractures and there is full range of motion at all joints. No atrophy, weakness or fasciculations are noted. Jordan tends to grasp with either hand and transfers readily. The sensory examination reveals withdrawal of all extremities to noxious stimulation. Jordan is able to sit without support and stands with only a small debris of support. The spine is straight without dysraphic features. The deep tendon reflexes are brisk at 2 to 3+ and there are bilateral Babinski responses.

   Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries.

   
   

   Jordan apparently had 2 MRI scans and several EEG's which have been unremarkable.

   
   

   In SUMMARY, Jordan's neurologic examination in detail reveals changes in muscle tone and abnormal reflexes. His development at this point is only slightly behind age level.

   There are no focal or lateralizing signs.

   
   

   In Dr. Duchowny's opinion, Jordan's neurologic examination revealed minimal changes in muscle tone and no evidence of widespread brain damage. Dr. Duchowny was of the opinion that Jordan's developmental delays will continue to improve.

   Consequently, Dr. Duchowny concluded that Jordan does not "suffer[] from either a substantial or permanent mental or motor impairment."

7. The most recent observations regarding Jordan's presentation were offered by Ms. Mears at the hearing held on October 11, 2000. At the time, Ms. Mears made the following observations:

   . . . My son is 22 months old. He does not speak. The special needs program that he is in is teaching him sign language. He did not begin walking until May. He is making quite a bit of progress but they still are putting him anywhere from four to six months delayed

   . . . .

   
   

8. Here, it must be resolved that the proof fails to demonstrate, more likely than not, that Jordan is "permanently and substantially mentally and physically impaired," as required for coverage under the Plan. Indeed, among those most qualified to address the issue, Doctors Maria and Duchowny, are fairly consistent in their neurologic findings, as well as their conclusions that Jordan's impairment can best be described as mild.

   CONCLUSIONS OF LAW

   
   

9. 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.

10. The Florida Birth-Related Neurological Injury Compensation 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.

11. 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.

12. 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.

13. 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.

14. 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.

    
    

15. 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").

16. Here, the proof demonstrated that, notwithstanding any events which may have occurred at birth, Jordan has not been rendered permanently and substantially mentally impaired. Consequently, since Jordan was not shown to be "permanently and substantially mentally and physically impaired," the claim is not compensable under the Plan. Sections 766.302(2) and 766.309(1), Florida Statutes. Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative

    Hearings, 686 So. 2d 1349 (Fla. 1997)(In order to obtain coverage under the Plan, the infant must suffer both substantial mental and physical impairment, and it is insufficient that the infant suffer only substantial impairment, either mental or physical).

17. 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 the petition for compensation filed by

Theresa Mears, as mother and natural guardian of Jordan Mears, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 7th day of November, 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 7th day of November, 2000.

COPIES FURNISHED:

(By certified mail)

Theresa Mears Apartment 4

2580 Northeast 49th Avenue Ocala, Florida 34470

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

215 South Monroe Street Post Office Box 2174 Tallahassee, Florida 32301

Lynn Larson, Executive Director Florida Birth-Related Neurological

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

Sarojini Pericherla, M.D. 2825 Southeast Third Court Ocala, Florida 34471

Ocala Regional Medical Center Legal Department

1431 Southwest First Avenue Ocala, Florida 34478

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: 99-004890N

Orders for Case No: 99-004890N