STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD DABRIEL and WENDY BREEDLOVE )

DABRIEL, as parents and natural ) guardians of BRIANA GWENDOLYN ) DABRIEL, a minor, )

)

Petitioners, )

)

vs. ) Case No. 99-5002N

) 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 June 12, 2000, by video teleconference, with sites in Tallahassee and Fort

Lauderdale, Florida.

APPEARANCES

For Petitioner: Bradley Winston, Esquire

Law Offices of Bradley Winston, P.A. 8211 West Broward Boulevard, Suite 420

Plantation, Florida 33324

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

Graham, Moody & Sox, P.A.

101 North Gadsden Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

On December 1, 1999, Edward Dabriel and Wendy Breedlove Dabriel, as parents and natural guardians of Briana Gwendolyn Dabriel, 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 December 2, 1999. NICA reviewed the claim, and on March 7, 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 the issue of the compensability of this claim." Such a hearing was duly scheduled for June 12, 2000.

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

Petitioners' Exhibit 1 (the medical records filed with DOAH on December 1, 1999) and Respondent's Exhibit 1 (the deposition of Michael Duchowny, M.D., filed with DOAH on June 13, 2000 as well as the exhibits to such deposition, filed with DOAH on June 22, 2000) were received into evidence. No witnesses were called, and no other exhibits were offered. The parties waived their opportunity to file proposed final orders.

FINDINGS OF FACT

Fundamental findings

1. Edward Dabriel and Wendy Breedlove Dabriel are the parents and natural guardians of Briana Gwendolyn Dabriel (Briana), a minor. Briana was born a live infant on December 1, 1998, at Aventura Hospital and Medical Center, a hospital located in Aventura, Florida and her birth weight was in excess of 2500 grams.

2. The physician providing obstetrical services during the birth of Briana was Mark Firestone, 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, Briana's neurologic presentation is dispositive of the claim.

   Briana's neurologic status

   
   

4. On February 7, 2000, following the filing of the claim for compensation, Briana was examined by Michael Duchowny, M.D., a board-certified pediatric neurologist. The results of Dr. Duchowny's examination were reported as follows:

   PHYSICAL EXAMINATION reveals an alert 14 month old black infant. The weight is 21- pounds. The skin is warm and moist. There is a healed surgical scar over the left lateral neck. There are no dysmorphic features and the spine is straight. The head circumference measures 46.4 cm (including dreadlocks). There are no cranial or facial anomalies or asymmetries. The anterior fontanelle is still open, but quite small. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are unremarkable. Peripheral pulses are 2+.

   
   

   NEUROLOGIC EXAMINATION is significant for normal cranial nerves and an appropriate mental status. She makes cooing and babbling sounds quite frequently and is very interactive socially. Briana does not drool. There is full extraocular movements and the pupillary light responses are intact to direct and consensually presented light.

   Brief fundoscopic examination is unremarkable. The pigmentation is dark brown bilaterally.

   
   

   There is a marked asymmetry of upper extremity function. The left upper extremities are smaller than the right for the fingers, hands, forearm and arm compartments. There is a decrease in muscle bulk and some hollowing in the left biceps and triceps regions. The thumb is fisted.

   The upper extremity is held in a position of internal rotation and flexion at the shoulder, with flexion at the elbow and wrist. The temperature is similar to the right. Gross sensation appeared to be intact, but was difficult to examination with any confidence. There is a marked reflect asymmetry being 2+ on the right biceps, but dropped on the left. The lower extremity reflexes are intact and there is no asymmetry of strength, bulk or tone. I did think that the left leg showed some eversion at the hip. Briana's gait is stable, but she tends to walk on tiptoes while running. Tests of cerebellar coordination, including heel-to-shin maneuvers were not tested. The neurovascular examination revealed no cervical, cranial or ocular bruits and no temperature or pulse asymmetries.

   
   

   In SUMMARY, Briana's neurologic examination is significant for a moderate to severe left Erb's palsy [consequent to a brachial plexus injury suffered at birth], status post surgical repair. The prognosis for further recovery seems guarded with the exception of functionality that may return in the course of neuroregeneration. In contrast, Briana's cognitive development appears to be proceeding at age level and her head is growing normally.

   
   

5. A brachial plexus injury, such as that suffered by Briana during the course of her birth, is not, anatomically, a

   brain or spinal cord injury, and does not affect her mental status, which has been noted as essentially normal.

   Consequently, while Briana has been shown to have suffered a substantial and permanent injury (to her left brachial plexus) during the course of birth, it is Dr. Duchowny's opinion, which is credited, that such injury is not related to the brain or spinal cord and, moreover, that she has not been rendered permanently and substantially mentally and physically impaired.

   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, notwithstanding any events which may have occurred at birth, Briana did not suffer an injury to her brain or spinal cord, and has not been rendered permanently and substantially mentally and physically impaired. Consequently, the record developed in this case fails to demonstrate that Briana 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.

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 Edward Dabriel and Wendy Breedlove Dabriel, as parents and natural guardians of Briana Gwendolyn Dabriel, a minor, be and the same is hereby denied.

DONE AND ORDERED this 26th day of June, 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 26th day of June, 2000.

COPIES FURNISHED:

(By certified mail)

Bradley Winston, Esquire

Law Offices of Bradley Winston, P.A. 8211 West Broward Boulevard, Suite 420

Plantation, Florida 33324

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

101 North Gadsden Street Tallahassee, Florida 32301

Lynn Larson, Executive Director Florida Birth-Related Neurological

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

Mark Firestone, M.D. Aventura OB/GYN & Associates

21110 Biscayne Boulevard, Suite 312

Aventura, Florida 33180

Mitchell Grabois, M.D. Aventura OB/GYN & Associates

21110 Biscayne Boulevard, Suite 312

Aventura, Florida 33180

Aventura Hospital and Medical Center Legal Department

20900 Biscayne Boulevard

Aventura, Florida 33180

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: 99-005002N

Orders for Case No: 99-005002N