STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIMBERLY NORTON AND H. SCOTT

NORTON, on behalf of, and as parents and natural guardians of, GAVIN NORTON, a minor,

Petitioners,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

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) Case No. 03-1676N

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SUMMARY FINAL ORDER OF DISMISSAL

This cause came on to be heard on Respondent's Motion for Summary Final Order, filed July 7, 2003, and the Order to Show Cause, entered August 4, 2003.

STATEMENT OF THE CASE

1. On May 8, 2003, Kimberly Norton and H. Scott Norton, on behalf of, and as parents and natural guardians of, Gavin Norton (Gavin), 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).

2. DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on May 9, 2003,1 and on July 7, 2003, NICA filed a Motion for

   Summary Final Order, pursuant to Section 120.57(l)(h).2 The predicate for NICA's motion was, inter alia, its assertion that, indisputably, Gavin is not permanently and substantially mentally and physically impaired and, consequently, does not qualify for

   coverage under the Plan. See Sections 766.302(2), 766.309(1),

   
   

   and 766.31(1). Attached to NICA's motion was an affidavit of Michael Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital, who evaluated Gavin on June 11, 2003. Dr. Duchowny reported the results of his neurologic evaluation, as follows:

   Gavin's NEUROLOGICAL EXAMINATION reveals him to be alert and cooperative. He is quite socially interactive and asks many questions. He has a good fund of information and answers questions directly. His speech is dysarthric for lingual and labial sounds. He demonstrates good memory skills and is socially appropriate. The cranial nerve examination reveals full visual fields to confrontational testing and normal ocular fundi. The pupils are 3 mm and briskly reactive to direct and consensually presented light. The tongue movements appear well coordinated and the uvula is midline. Motor examination reveals a left spastic hemiparesis affecting leg greater than arm.

   He has distal decrease in range of motion but no fixed contractures. The ankle can be dorsiflexed to approximately neutrality and there is fairly good movement at the left wrist. Gavin demonstrates poor individual finger coordination and diminished dexterity on the left. The rapid alternating movements demonstrate mild bi-directional synkinetic overflow. Gavin tends to posture the left hand while outstretched. There is no focal atrophy or adventitious movements. The deep

   tendon reflexes are asymmetrically brisk on the left being 3+ compared to 2+ on the right and the left plantar response to up-going.

   Sensory examination is intact to all extremities to stimulation. Gavin demonstrates a left spastic hemiparetic gait with a plantar grade attitude and slight ankle eversion. He tends to posture the left arm while walking. Tests of cerebellar coordination are within normal limits. The neurovascular examination discloses no cervical, cranial or ocular bruits, and there are no temperature or pulse asymmetries.

   
   

   In SUMMARY, Gavin's neurological examination reveals evidence of a mild speech dysfluency and mild to moderate left hemiparesis. His findings would appear to be long-standing but are improving with age and his overall prognosis for mobility is optimistic with further therapy.

   
   

   Dr. Duchowny concluded, based on his neurologic evaluation of Gavin and review of his medical records, that Gavin did not evidence a substantial mental and motor impairment, as required for coverage under the Plan.

3. Petitioners did not respond to NICA's Motion for Summary Final Order. Consequently, an Order to Show Cause was entered on August 4, 2003, which provided, as follows:

   On July 7, 2003, Respondent filed a Motion for Summary Final Order. To date, Petitioners have not responded to the motion. Rule 28-106.204(4), Florida Administrative Code. Accordingly, it is

   
   

   ORDERED that within 10 days of the date of this Order, Petitioners show good cause in writing, if any they can, why the relief

   requested by Respondent should not be granted.

   
   

   Petitioners did not respond to the Order to Show Cause.

   
   

4. Given the record, it is indisputable that Gavin is not permanently and substantially mentally and physically impaired. Consequently, NICA's Motion for Summary Final Order is well- founded. Sections 120.57(1)(h), 766.309, and 766.31(1).

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 766.301, et seq.

6. 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).

7. The injured "infant, her or 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. 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).

8. 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). 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, 766.309, and 766.31.

9. 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). 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).

10. Pertinent to this case, "birth-related neurological injury" is defined by Section 766.302(2), 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.

    
    

11. Here, indisputably, Gavin's neurologic presentation does not disclose permanent and substantial mental and physical impairment. Consequently, given the provisions of Section 766.302(2), he does not qualify for coverage under the Plan. See also Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearings, 686 So. 2d 1349 (Fla. 1997)(The Plan is written in the conjunctive

    and can only be interpreted to require both substantial physical and mental impairment.)

12. 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). Such an order constitutes final agency action subject to appellate court review. Section 766.311(1).

CONCLUSION

Based on the Statement of the Case and Conclusions of Law, it is

ORDERED that the claim for compensation filed by

Kimberly Norton and H. Scott Norton, on behalf of, and as parents and natural guardians of, Gavin Norton, a minor, be and the same is dismissed with prejudice.

DONE AND ORDERED this 9th day of September, 2003, in Tallahassee, Leon County, Florida.

S

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 9th day of September, 2003.

ENDNOTES

1/ Consistent with Section 766.305(2), DOAH also served the physician (Dr. Peter S. Verrill) named in the petition as having provided obstetrical services at the infant's birth, as well as the hospital (Winter Haven Hospital) named in the petition as the facility at which the infant's birth occurred. To date, neither the physician nor hospital has requested leave to intervene or otherwise sought leave to participate in these proceedings.

2/ All citations are to Florida Statutes (2002) unless otherwise indicated.

COPIES FURNISHED:

(via certified mail)

Kimberly Norton

H. Scott Norton 1157 Cephia Street

Lake Wales, Florida 33853

Kenney Shipley, Executive Director Florida Birth-Related Neurological

Injury Compensation Association 1435 Piedmont Drive, East, Suite 101 Post Office Box 14567

Tallahassee, Florida 32312

Peter S. Verrill, M.D. Gessler Clinic, P.A.

635 1st Street, North

Winter Haven, Florida 33881-4129

Winter Haven Hospital Regency

101 Avenue O, Southeast Winter Haven, Florida 33880

Ms. Charlene Willoughby Department of Health

4052 Bald Cypress Way, Bin C-75 Tallahassee, Florida 32399-3275

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 the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, 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: 03-001676N

Orders for Case No: 03-001676N