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CARMINA GILLIAM, ON BEHALF OF AND AS PARENT AND NATURAL GUARDIAN OF DEMETRIOS ROBERTSON, A MINOR vs FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, 00-004448N (2000)

Court: Division of Administrative Hearings, Florida Number: 00-004448N Visitors: 8
Petitioner: CARMINA GILLIAM, ON BEHALF OF AND AS PARENT AND NATURAL GUARDIAN OF DEMETRIOS ROBERTSON, A MINOR
Respondent: FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION
Judges: WILLIAM J. KENDRICK
Agency: Florida Birth-Related Neurological Injury Compensation Association
Locations: Miami, Florida
Filed: Oct. 26, 2000
Status: Closed
DOAH Final Order on Tuesday, May 7, 2002.

Latest Update: May 07, 2002
Summary: At issue in the proceeding is whether Demetrios Robertson, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.Proof failed to demonstrate that infant was permanently and substantially mentally and physically impaired. Claim dismissed.
00-4448.PDF

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS


CARMINA GILLIAM, as parent and natural ) guardian of DEMETRIOS ROBERTSON, ) a minor, )

)

Petitioner, )

)

vs. ) Case No. 00-4448N

) 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 October 25, 2001, and February 22, 2002, by video teleconference, with sites in Tallahassee and Miami, Florida.

APPEARANCES


For Petitioner: Robert E. Schack, Esquire

Law Offices of Gunion & Schack 9350 South Dixie Highway Miami, Florida 33156


For Respondent: J. Bruce Culpepper, Esquire

James Culpepper, Esquire

Ackerman, Senterfitt & Eidson, P.A.

301 South Bronough Street, Suite 200 Tallahassee, Florida 32301-1722

STATEMENT OF THE ISSUE


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

PRELIMINARY STATEMENT


On October 26, 2000, Petitioner, Carmina Gilliam, as mother and natural guardian of Demetrios Robertson (Demetrios), 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 November 1, 2000. NICA reviewed the claim and on February 5, 2001, 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]." Such a hearing was held on October 25, 2001, and February 22, 2002.

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

Petitioner's Exhibit 1 (the medical records filed with DOAH on October 26, 2000); Petitioner's Exhibit 2 (the deposition of

Paul R. Summers, M.D., filed with DOAH on December 14, 2001); Petitioner's Exhibit 3 (a report of neurological evaluation by Daniel E. Shanks, M.D., dated October 18, 2001); and Petitioner's Exhibit 4 (an MRI report, dated November 14, 2001), were received into evidence. Also received into evidence was Respondent's Exhibit 1 (the deposition of Michael Duchowny, M.D., filed with DOAH on September 17, 2001). No witnesses were called, and no further exhibits were offered.

The last volume of the transcript of hearing was filed March 15, 2002, and the parties were initially accorded 10 days from that date to file proposed final orders; however, at their request, the time for filing proposed final orders was extended to April 12, 2002. Consequently, the requirement that an order be rendered within 30 days after the transcript has been filed was waived. Rule 28-106.216(2), Florida Administrative Code.

The parties elected to file such proposals, and they have been duly considered.

FINDINGS OF FACT


Fundamental findings


  1. Petitioner, Carmina Gilliam, is the mother and natural guardian of Demetrios Robertson, a minor. Demetrios was born a live infant on August 4, 1996, at University Medical Center, a hospital located in Jacksonville, Florida, and his birth weight exceeded 2,500 grams.

  2. The physician providing obstetrical services during the birth of Demetrios was Michael T. Valley, M.D., who, at all times material hereto was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.

    Coverage under the Plan


  3. Pertinent to this case, coverage is afforded by the Plan when the claimant demonstrates, more likely than not, that the infant suffered an "injury to the brain . . . 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." Section 766.302(2), Florida Statutes. Here, the proof failed to demonstrate that Demetrios suffered a permanent and substantial mental and physical impairment. Consequently, it is unnecessary to address whether he suffered an injury to the brain caused by oxygen deprivation or mechanical injury and, if so, whether such injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period.

    Demetrios' current mental and physical presentation


  4. To address the character of Demetrios' neurologic presentation, Petitioner offered selected medical records relating to Demetrios' birth and subsequent development, as well

    as the opinions of Demetrios' treating pediatric neurologist, Daniel E. Shanks, M.D. In turn, Respondent offered the opinions of Michael Duchowny, M.D., a pediatric neurologist who examined Demetrios on January 17, 2001.

  5. As noted, on January 17, 2001, following the filing of the claim for compensation, Demetrios was examined by

    Dr. Duchowny. Pertinent to this case, the results of that evaluation were reported as follows:

    PHYSICAL EXAMINATION reveals Dem[e]trios to be alert, pleasant and cooperative. His weight is 55 pounds and height 32 inches.

    There is a single cafe-au-lait spot over the left midabdominal region. There are no dysmorphic features and no other cutaneous stigmata. The spine is straight without dysraphism. The head circumference measures

    50.4 cm and there are no craniofacial anomalies or asymmetries. The fontanelles are closed. The neck is supple, without masses, thyromegaly or adenopathy and the cardiovascular, respiratory and abdominal examinations are unremarkable. Peripheral pulses are 2+ and symmetric.


    NEUROLOGICAL EXAMINATION: Dem[e]trios'

    neurological examination reveals him to be quiet but cooperative. He does have a short attention span but he is easily engaged and tends to complete requests without flinching. His speech output is noticeably diminished and he tends to speak in short phrases with poorly articulated words. He does not know primary or secondary colors and has a limited command of knowing the names of animals. He does identify body parts well. There is no evidence of overactivity. Cranial nerve examination reveals full visual fields to direct confrontation testing and normal ocular fundi. The pupils are 4 mm, react

    briskly to direct and consensually presented light. The optic disc margins are well- marginated with normal coloring. The tongue and palate move well and there is no drooling.


    Medical examination reveals mild spasticity of the lower extremities with some tightening of the heel cords. Dem[e]trios barely dorsiflexes the feet past neutrality and he has slight Babinski attitudes of the big toes. In contrast, the tone in the upper extremities is relatively normal. He has trouble with rapid alternating movement sequences and demonstrates mild decomposition. There is no focal weakness or atrophy. Dem[e]trios walks in a single fashion although there is eversion of his feet. The deep tendon reflexes are brisk and 2+ at the knees, brachioradialis and biceps. There are one or two beats or reduplication at the ankles and quite positive Babinski signs. There is no abductor spasticity. His gait is stable but he tends to posture both arms. He has difficulty walking on tip toes or heels. Romberg sign is absent. The neurovascular examination reveals no cervical, cranial, ocular bruits and no temperature or pulse asymmetries. Sensory examination was deferred.


    IN SUMMARY, Dem[e]trios' neurologic examination reveals evidence of moderate developmental delay, particularly in the area of language functioning. He additionally has evidence of mild lower extremity spasticity indicating a mild spastic diparesis.


  6. At a deposition held August 28, 2001, and received in evidence as Respondent's Exhibit 1, Dr. Duchowny expanded on the results of his examination and conclusions regarding the character of Demetrios' presentation, as follows:

    BY MR. CULPEPPER:


    * * *


    Q. . . . What were your conclusions regarding Demetrios' neurological condition?


    A. Having performed the evaluation and reviewing the medical records, I felt that Demetrios has neither a substantial mental nor motor impairment.


    Q. . . . Is Demetrios impaired?


    A. I believe that he does have evidence of impairment, yes.


    * * *


    Q. . . . Does Demetrios have a permanent injury?


    A.

    Yes, I believe

    he does.


    Q.

    Is he mentally

    impaired?



    A.

    I think he has

    developmental

    delay.

    I am

    using the term to distinguish it from brain damage. I think his language is behind age level, but will probably progress and continue to improve.


    Q. I will focus on the context of NICA. How would you quantify the seriousness of Demetrios' mental impairment?


    A. I would call it mild to moderate.


    Q. Okay. So you would not consider Demetrios' mental impairment, quote, unquote, "significant" in terms of NICA?


    A. That's correct.


    Q. Why not?

    A. Because he probably functions within a high -- in the high end of kids with disabilities. He basically would be mild to moderately impaired by school standards, and he is not mentally retarded.


    Q. To follow up, describe what you would consider a, quote, unquote, "significant" mental impairment in terms of the NICA statute?


    A. Well, he would have to be -- function within the mentally retarded range, and I regard him more as having evidence of language delay.


    Otherwise, he seems socially intact and he does well.


    Q. Now I'll turn to Demetrios' physical condition. Is Demetrios suffering from a physical impairment?


    A. Yes.


    Q. In the context of NICA, how would you quantify the seriousness of Demetrios' physical impairment?


    A. I believe he has a mild physical impairment of his legs.


    Q. Again, in the context of the NICA statute, would you consider Demetrios' physical impairment, quote, unquote, "significant"


    MR. SCHACK: Let me object to the language and the form of the question. You keep using the word "significant," and I think the language is "substantial."


    MR. CULPEPPER: I apologize, and thank you for pointing that out. Let me switch the words then.

    Q. (By Mr. Culpepper) Do you consider his impairment substantial in terms of NICA?


    A. No.


    Q. And why not?


    A. Because in the spectrum of what we see of motor impairment, this is simply not a substantial motor impairment. He would have to be more spastic, more involved with greater compromise of his functionality.


    Q. And then to clean up my error, going back to mental impairment, would you consider Demetrios' mental impairment "substantial," quote, unquote, in terms of the NICA statute?


    A. No, I would not.



    BY MR. SCHACK:

    * * *


    * * *


    Q. . . . When you use the terms mild, moderate, and severe, is that medical terminology?


    A. Well, it's not a medical dictionary word, but I think it is a modifier that tries to categorize a patient within the scope of disability that we see.


    Q. Well, Doctor, if this was your patient, would you just describe the neurological findings and the problems the child had rather than trying to modify it by an adjective?


    A. No. We always modify with an adjective.


    Q. Okay.


    A. Apart from NICA, we do that.

    * * *


    Q. It appears in this case to me, correct me if I am wrong, that regardless of whether you describe it as mild, moderate, or severe, that Demetrios has some motor difficulties that might impact on his ability to live a normal life.


    A. You mean lifespan or just life functions?


    Q. That was a -- life function.


    A. They might, yes.


    Q. Okay. He at the present time has lower motor problems, lower extremity motor problems; is that correct?


    A. Yes.


    Q. And exactly what is his problem?


    A. He has spasticity, mild, of his legs.


    Q. What does that prevent him from doing?


    A. Being agile, running fast, being a competitive athlete.


    Q. Okay. Does it give him difficulty walking?


    A. Yes.


    Q. Okay. And he can't stand straight?


    A. Right.


    Q. All right. Would you say that is a substantial problem for a child such as Demetrios?


    A. I think he's going to get better with time. I think he's going to be able to do most of the things he wants to do.

    Q. But at the present time he's unable to do things he wants to do; is that correct?


    A. I'm sure that's true . . . .


  7. Demetrios was last examined by his pediatric neurologist, Dr. Shanks, on October 18, 2001. Dr. Shanks reported the results of that evaluation, as follows:

    . . . [Demetrios] has always had a tendency to walk up on his toes since he began walking at approximately 14 months of age. It has not progressed over time. He may be a little tighter in the right than the left and he did go through physical therapy during earlier years.


    * * *


    On physical examination, height 105 cm (10th to 25th %); weight 22 kg (75th to 90th %); head circumference 51 cm (50th %).

    Generally, he is a well-appearing, alert youngster who is generally cooperative. There are no cranial or carotid bruits noted. Neck is supple with full range of motion. He has full primary dentition. There are no chest deformities other than a well-healed scar on his left infrascapular region inside. Abdomen is mildly obese. Extremities have full range of motion with the exception of ankles that have slight restriction in

    dorsiflexion, right slightly more so than the left, and there is a little bit of tightness in hip adductors. There are no asymmetries of his extremities. Back is without midline lesions. He has two hyperpigmented macular lesions, one of his abdomen and one on his back.


    NEUROLOGIC EXAM: Speech is fluent but mostly just one to two-word utterances. He does follow simple commands readily. Cranial nerves pupils equal, round and reactive to light; discs are sharp with normal appearing

    vessels. Extraocular movements are full and conjugate. Facial muscle movements full and asymmetric. Hearing is normal to low-level stimulation bilaterally. Palate elevates symmetrically; sternomastoids are strong and tongue is midline. Motor exam shows normal tone with the exception of his distal lower extremities and a possible slight spastic catch in his hip adductors. Upper extremity tone feels relatively normal. Deep tendon reflexes are 2+ in the upper extremities, 3- 4+ lower extremities with crossed adductors. Ankle jerks are 1+ and toes are upgoing bilaterally, more strongly on the right than the left. With gait, he does have a tendency to get up on his toes slightly but is very functionally mobile. Sensory exam is intact to touch, cold and vibration. He has no cerebellar signs or adventitial movements.


    IMPRESSION: Likely mild spastic diplegia with overall relatively good prognosis for functional capabilities. He also seems to have significant cognitive delays . . . .


  8. Considering the proof, it must be resolved that Petitioner has failed to demonstrate, more likely than not, that Demetrios is permanently and substantially mentally and physically impaired.1 Notably, Doctors Duchowny and Shanks share strikingly similar views regarding the characterization of Demetrios' physical presentation, and concur that his physical impairment can best be described as mild. With regard to Demetrios' mental impairment, Dr. Duchowny was of the view that Demetrios was developmentally delayed, but would likely improve, and that his impairment could best be described as mild to moderate. In contrast, Dr. Shank's was of the view that

    Demetrios "seems to have significant cognative delays"; but did not otherwise characterize Demetrios' impairment. Stated otherwise, Dr. Shank's did not express an opinion as to whether Demetrios' mental impairment could best be described as mild, moderate, or severe, and expressed no opinion as to whether Demetrios' impairment was or was not likely to improve.

    CONCLUSIONS OF LAW


  9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 766.301, et seq., Florida Statutes.

  10. 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.

  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 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.")

  16. Here, the proof failed to demonstrate that Demetrios was permanently and substantially mentally and physically impaired. Consequently, the proof failed to demonstrate that the claim is compensable under the Plan. Sections 766.302(2) and 766.309(1), Florida Statutes. See also Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearings, 686 So. 2d 1349 (Fla. 1997)(The statute is written in the conjunctive and requires permanent and substantial impairment, both mental and 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 that the petition for compensation filed by Carmina Gilliam, as parent and natural guardian of Demetrios Robertson, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 7th day of May, 2002, 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 May, 2002.


ENDNOTE


1/ Permanent and substantial are not defined by the Plan, however, the American Heritage Dictionary of the English Language, New College Edition (1979), defines "permanent" as:


. . . 1. Fixed and changeless; lasting or meant to last indefinitely. 2. Not expected to change in status, condition, or

place . . .

It further defines "substantial" as:


. . . 1. Of, pertaining to, or having substance; material. 2. Not imaginary; true; real. 3. Solidly built, strong. 4. Ample, sustaining . . . 5. Considerable in importance, value, degree, amount, or extent

. . . --sub-stan'tial-ly adv.


When, as here, the Legislature has not defined the words used in a phrase, they should usually be given their plain and ordinary meaning. Southeastern Fisheries Association, Inc. v. Department of Natural Resources, 453 So. 2d 1351 (Fla. 1984.) Where, however, the phrase contains a key word like "substantially," the phrase is plainly susceptible to more than one meaning. Under such circumstances, consideration must be accorded not only the literal or usual meaning of the word, but also to its meaning and effect in the context of the objectives and purposes of the statute's enactment. See Florida State Racing Commission v.

McLaughlin, 102 So. 2d 574 (Fla. 1958.) Indeed, "[i]t is a fundamental rule of statutory construction that legislative intent is the polestar by which the court must be guided [in construing enactments of the legislative]." State v. Webb, 398 So. 2d 820, 834 (Fla. 1981).


Turning to the provisions of the Plan, certain insights may be gleaned regarding the meaning the Legislature intended to ascribe to the word "substantially," and more particularly its use in the phrase "permanently and substantially mentally and physically impaired." First, the Legislature has expressed its intent in Section 766.301(2), Florida Statutes, as follows:


It is the intent of the Legislature to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodian care and rehabilitation. This plan shall apply only to birth-related neurological injuries. (Emphasis added)


"Catastrophic," an adjective of the noun "catastrophe," is defined by The American Heritage Dictionary of the English Language, New College Edition (1979), as "a great and sudden calamity; disaster." (Emphasis added)

It is further worthy of note that physicians commonly use terms such as "mild," "moderate," and "severe" to characterize an infant's mental and physical injury.


Finally, as observed by the court in Humana of Florida, Inc. v. McKaughn, 652 So. 2d 852, 858 (Fla. 2d DCA 1995), the Florida Birth-Related Neurological Injury Compensation Plan, like the Worker's Compensation Act, is a "limited statutory substitute for common law rights and liabilities." Accordingly, "because the Plan . . . is a statutory substitute for common law rights and liabilities, it should be strictly construed to include only those subjects clearly embraced within its terms . . . [and] a legal representative of an infant should be free to pursue common law remedies for damages resulting in an injury not encompassed within the express provisions of the Plan." Humana of Florida, Inc. v. McKaughn, supra, at page 859. Accord, 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.)


Given the Legislature's intent to restrict no-fault coverage under the Plan to "a limited class of catastrophic injuries," as well as the common practice among physicians to use terms such as "mild," "moderate," or "severe" to describe the degree of an infant's injuries, it is concluded that the word "substantially," as used in the phrase "permanently and substantially mentally and physically impaired," denotes a "catastrophic" mental and physical injury, as opposed to one that might be described as "mild" or "moderate."


Applying the foregoing standards to the facts of this case compels the conclusion that Demetrios is not permanently and substantially mentally and physically impaired.


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

Robert Schack, Esquire Robert E. Schack, P.A.

9350 South Dixie Highway, Suite 1200

Miami, Florida 33156


J. Bruce Culpepper, Esquire James Culpepper, Esquire Frederick R. Dudley, Esquire

Ackerman, Senterfitt & Eidson, P.A.

301 South Bronough Street, Suite 200 Tallahassee, Florida 32301-1722


Michael T. Valley, M.D. 7700 Bush Lake Drive

Bloomington, Minnesota 55438-1696


University Medical Center 655 West 8th Street Jacksonville, Florida 32209


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: 00-004448N
Issue Date Proceedings
May 07, 2002 Final Order issued (hearing held October 25, 2001, and February 22, 2002). CASE CLOSED.
Apr. 12, 2002 Respondent`s Proposed Final Order (filed via facsimile).
Apr. 11, 2002 Final Order (filed via facsimile).
Mar. 28, 2002 Order sent out.
Mar. 27, 2002 Unopposed Motion for Extension of Time (filed by Respondent via facsimile).
Mar. 15, 2002 Notice of Filing, Transcript filed.
Feb. 22, 2002 CASE STATUS: Hearing Held; see case file for applicable time frames.
Jan. 25, 2002 Amended Notice of Video Teleconference issued. (hearing scheduled for February 22, 2002; 9:30 a.m.; Miami and Tallahassee, FL, amended as to date and issue).
Dec. 14, 2001 Notice of Filing filed by Respondent.
Dec. 14, 2001 Telephonic Deposition (of P. Summers) filed.
Nov. 05, 2001 Notice of Filing, Transcript filed.
Sep. 17, 2001 Deposition, M. Duchowny filed.
Sep. 17, 2001 Notice of Filing filed by Respondent.
Sep. 10, 2001 Notice of Taking Telephonic Deposition P. Summers, M.D., M. Hermansen, M.D. filed.
Sep. 10, 2001 Order Granting Continuance and Re-scheduling Video Teleconference issued (video hearing set for October 25, 2001; 9:00 a.m.; Miami and Tallahassee, FL).
Sep. 06, 2001 Petitioner`s Motion for Change of Venue of Hearing by Video-Teleconference filed.
Sep. 05, 2001 Notice of Filing, Written Report of Examination (filed by Respondent via facsimile) filed (not available for viewing).
Sep. 05, 2001 Order sent out.
Sep. 05, 2001 Petitioner`s Response to Respondent`s First Set of Interrogatories (filed via facsimile).
Sep. 05, 2001 Notice of Propounding First Set of Interrogatorties to Petitioner (filed by Respondent via facsimile).
Sep. 05, 2001 Notice of Filing, First Set of Interrogatories (filed by Respondent via facsimile).
Sep. 04, 2001 Notice of Objection to Petitioner`s Motion for Continuance (filed by Respondent via facsimile).
Sep. 04, 2001 Petitioner`s Response to Respondent`s First Set of Interrogatories filed.
Aug. 31, 2001 Motion for Re-Hearing on Petitioners` Motion for Continuance (filed by Petitioners via facsimile).
Aug. 31, 2001 Order issued. (motion for continuance denied)
Aug. 29, 2001 Petition`s Motion For Continuance filed.
Aug. 27, 2001 Petitioner`s Motion for Continuance (filed via facsimile).
Jun. 22, 2001 Respondent Florida Birth-Related Newrological Injury Compensation Association Expert Interrogatories to Petitioner (filed via facsimile).
Jun. 22, 2001 Respondent`s First Set of Interrogatories to Petitioners filed.
Jun. 22, 2001 Notice of Propounding First Set of Interrogatories to Petitioner filed.
Jun. 21, 2001 Respondent`s First Request for Production of Documents to Plaintiff (filed via facsimile).
Jun. 20, 2001 Notice of Taking Deposition of Dr. Michael Duchowny (filed via facsimile).
May 11, 2001 Order Granting Continuance and Re-scheduling Video Teleconference issued (video hearing set for September 10 and 11, 2001; 9:00 a.m.; Jacksonville and Tallahassee, FL).
Apr. 06, 2001 Notice of Objection to Petitioner`s Motion For Continuance (filed via facsimile).
Apr. 05, 2001 Petitioner`s Motion for Continuance filed.
Apr. 03, 2001 Petitioner`s Motion for Continuance (filed via facsimile).
Mar. 15, 2001 Petitioner`s Motion for Continuance filed.
Mar. 15, 2001 Notice of Appearance of Counsel (filed by James Bruce Culpepper via facsimile).
Mar. 12, 2001 Notice of Assignment of File (filed via facsimile).
Mar. 07, 2001 Notice of Hearing by Video Teleconference issued (video hearing set for May 29, 2001; 9:00 a.m.; Jacksonville and Tallahassee, FL).
Mar. 06, 2001 Petitioner`s Response to Court`s Order of February 9, 2001 (filed via facsimile).
Feb. 09, 2001 Order issued (parties to respond within 14 days from the date of this order).
Feb. 07, 2001 Notice of Noncompensability and Request for Evidentiary Hearing on Compensability filed.
Jan. 31, 2001 Neurological Re-Evaluation (filed via facsimile).
Jan. 18, 2001 Order issued (Respondent shall file its response to the Petition by February 28, 2001).
Jan. 16, 2001 Motion for Extension of Time in which to Respond to Petition filed.
Dec. 11, 2000 Order issued (Motion for Extension of Time in which to Respond to Petition filed December 6, 2000, is granted).
Dec. 06, 2000 Motion for Extension of Time in which to Respond to Petition filed by Respondent.
Nov. 13, 2000 Order issued (Respondent`s motion to accept L. Larson as its qualified representative is granted).
Nov. 08, 2000 Motion to Act as Qualified Representative before the Division of Administrative Hearings filed by L. Larson.
Nov. 01, 2000 Notice that this case is now before the Division of Administrative Hearings sent out.
Nov. 01, 2000 Letter to parties of record from Elma Moore enclosing NICA claim for compensation with medical records sent out.
Oct. 26, 2000 NICA Medical Records filed (not available for viewing).
Oct. 26, 2000 Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. and filing fee filed.

Orders for Case No: 00-004448N
Issue Date Document Summary
May 07, 2002 DOAH Final Order Proof failed to demonstrate that infant was permanently and substantially mentally and physically impaired. Claim dismissed.
Source:  Florida - Division of Administrative Hearings

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