STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KRISTINA CARTER, as parent and ) natural guardian of HAWKE CARTER, ) a minor, )

)

Petitioner, )

)

vs. ) Case No. 00-2429N

) 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 final hearing in the above-styled case on June 5, 2001, in Dade City,

Florida.

APPEARANCES

For Petitioner: No appearance at hearing.

For Respondent: Les McFatter, Esquire

McFarlain & Cassedy, P.A.

215 South Monroe Street, Suite 600 Post Office Box 2174

Tallahassee, Florida 32301 STATEMENT OF THE ISSUE

At issue in this proceeding is whether Hawke Carter, a minor, suffered an injury for which compensation should be

awarded under the Florida Birth-Related Neurological Injury

Compensation Plan.

PRELIMINARY STATEMENT

On June 12, 2000, Kristina Carter, as parent and natural guardian of Hawke Carter (Hawke), a minor, filed a petition (claim) with the Division of Administrative Hearings (DOAH) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on June 13, 2000. NICA reviewed the claim, and on August 21, 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-noticed and held on June 5, 2001.

Although duly-noticed, neither Petitioner nor anyone on her behalf appeared at hearing, and no evidence was offered to support her claim. Respondent appeared through counsel, and offered the deposition testimony of Michael S. Duchowny, M.D., which was received into evidence as Respondent's Exhibit 1, and the deposition testimony of Charles Kalstone, M.D., which was received into evidence as Respondent's Exhibit 2.

FINDINGS OF FACT

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

2. Contrasted with the dearth of proof offered by Petitioner, Respondent offered the opinions of Michael S. Duchowny, M.D., a physician board-certified in pediatric neurology, and Charles Kalstone, M.D., a physician board- certified in obstetrics and gynecology. It was Dr. Duchowny's opinion, based on his neurological evaluation of Hawke on

   July 26, 2000 (at 2 1/2 years of age) and his review of the medical records regarding Hawke's birth, as well as the opinion of Dr. Kalstone, based on his review of the medical records, that Hawke's current neurological condition (which reveals evidence of severe motor and cognitive deficits) did not result from oxygen deprivation, mechanical trauma or any other event occurring during the course of labor, delivery, or resuscitation in the immediate post-delivery period. Rather, it was their opinion that Hawke's disabilities are developmentally based and associated with a congenital syndrome, genetic in origin. Given Hawke's immediate perinatal history, which evidences an uncomplicated labor, delivery, and immediate post-partum period, as well as evidence of congenital heart disease, a diagnose of DiGeorge syndrome (confirmed by positive FISH analysis) and

   dysmorphic (malformed) features, the opinions of Doctors Duchowny and Kalstone are rationally based and supported by the record.

   Consequently, their opinions are credited, and it must be resolved that Hawkes' disability is associated with genetic or congenital abnormality, and is not related to any event which may have occurred during the course of his birth.

   CONCLUSIONS OF LAW

   
   

3. 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.

4. 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.

5. 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, 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.

6. 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.

7. 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.

8. 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.

   
   

9. As the claimant, the burden rested on Petitioner 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.")

10. Here, while the proof demonstrated that Hawke is, more likely than not, permanently and substantially mentally and physically impaired, it also demonstrated that such impairment resulted from genetic or congenital abnormality as opposed to 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," as required for coverage under the Plan. Consequently, the proof failed to demonstrate that the claim is compensable. Sections 766.302(2), 766.309(1), and 766.31(1), Florida Statutes.

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 Kristina Carter, as parent and natural guardian of Hawke Carter, a minor, be and the same is hereby dismissed with prejudice.

DONE AND ORDERED this 8th day of June, 2001, 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 8th day of June, 2001.

COPIES FURNISHED:

(By certified mail)

Lynn Larson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association 1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32312

Kristina Carter Post Office Box 1231

San Antonio, Florida 33576

Les McFatter, Esquire McFarlain & Cassedy, P.A.

215 South Monroe Street, Suite 600 Post Office Box 2174

Tallahassee, Florida 32301

Dr. John Ferlita 13540 17th Street

Dade City, Florida 33576

Columbia Dade City Hospital 13100 Fort King Road

Dade City, Florida 33525

Ms. Charlene Willoughby

Agency for Health Care Administration Consumer Services Unit

Post Office Box 14000 Tallahassee, Florida 32308

Mark Casteel, 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: 00-002429N

Orders for Case No: 00-002429N