STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BRYAN SIRAVO, a minor, by and ) through his parents and natural ) guardians, ROBERT SIRAVO and ) MAURO SIRAVO, and ROBERT SIRAVO )
and MAURO SIRAVO, individually, )
)
Petitioners, )
)
vs. ) CASE NO. 93-2975N
) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )
)
Respondent. )
___________________________________)
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on January 7, 1994, in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Scott M. Newmark, Esquire
Sheldon J. Schlesinger, P.A. 1212 Southeast Third Avenue Fort Lauderdale, Florida 33316
For Respondent: W. Douglas Moody, Jr., Esquire
Taylor, Brion, Buker & Green
225 South Adams Street, Suite 250 Tallahassee, Florida 32301
STATEMENT OF THE ISSUES
Whether Bryan Siravo has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.
PRELIMINARY STATEMENT
On or about November 20, 1991, Bryan Siravo, a minor, by and through his parents and natural guardians, Robert Siravo and Mauro Siravo, and Robert Siravo and Mauro Siravo, individually, filed a claim with the Division of Workers' Compensation, Florida Department of Labor and Employment Security (hereinafter referred to as "DWC") for compensation under the Florida Birth-Related Neurological Injury Compensation Plan.
DWC served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on or about November 21, 1991. NICA reviewed the claim, and requested that the Judge of Compensation Claims schedule a hearing on the issue of compensability, to wit: whether the claim was a "birth-related neurological injury" within the meaning of Section 766.302(2), Florida Statutes.
According to the file, such hearing was scheduled for
November 23, 1992, but for reasons not apparent from the record was not convened.
Effective May 15, 1993, by operation of Chapter 93-251, Laws of Florida, jurisdiction to hear and decide all pending and future claims for compensation under the Florida Birth-Related Neurological Injury Compensation Plan was transferred to the Division of Administrative Hearings (hereinafter referred to as "DOAH"), and on June 4, 1993, DWC transferred the file in the above-styled case to DOAH.
On July 28, 1993, DOAH issued a notice of hearing advising the parties that an evidentiary hearing would be held on
August 19, 1993, to determine "whether the injury claimed is a birth-related neurological injury and whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital." Thereafter the hearing was continued at the request of the parties and the case was ultimately heard on January 7, 1994.
At hearing, petitioners called Mauro Siravo and Michelle Chimera as witnesses, and petitioners' exhibits 2-7, 8A, 8B, and
9 were received into evidence. Respondent called Michael Duchowny, M.D., and Pierre Bouis, M.D. as witnesses, but offered no additional exhibits.
The transcript of hearing was filed January 18, 1994, and the parties were granted leave, at their request, until February 7, 1994, to file proposed findings of fact.
Consequently, the parties waived the requirement that a final order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The parties' proposed findings have been addressed in the appendix to this final order.
FINDINGS OF FACT
Bryan Siravo (Bryan) is the natural son of Robert and Mauro Siravo. He was born a live infant on March 13, 1990, at Plantation General Hospital in Broward County, Florida, and his birth weight was in excess of 2500 grams.
The physician delivering obstetrical services during the birth of Bryan was Edward Buonopane, M.D., who was, at all times material hereto, a participating physician in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.
Bryan Siravo was delivered by cesarean section because of a breach presentation and maternal obesity. The delivery was without complications and Bryan presented with Apgar scores of 8 at one minute and 9 at five minutes. Resuscitation was not required in the immediate postdelivery period, and there was no evidence of fetal distress.
After birth, Bryan was transported to the regular or newborn nursery and was found in a cyanotic state approximately three hours after birth. Bryan was subsequently transferred to
the neonatal intensive care unit where he was intubated after about one hour.
Bryan's condition continued to deteriorate over the next
24 hours and an echocardiogram revealed the presence of a large patent ductus arteriosus and heart valve insufficiency. Due to the continued deterioration of his condition, Bryan was transferred to Miami Children's Hospital on March 15, 1990.
At Miami Children's Hospital, Bryan was diagnosed with respiratory distress syndrome type I, severe; a condition which impairs the ability to breath, and which arises after birth when the infant is required to breath outside the womb. Bryan also underwent multiple ultrasound and CT scans of the brain. These neuroimaging studies revealed the presence of a Grade IV intraventricular hemorrhage.
Based on the credible proof of record, it is concluded that Bryan suffered an injury to the brain caused by oxygen deprivation which rendered him permanently and substantially mentally and physically impaired. Such injury did not, however, occur during labor, delivery or resuscitation in the immediate post-delivery period. Rather, the proof demonstrated that the origins of Bryan's hemorrhage and his resultant neurologic injury were a combination of respiratory distress syndrome and patent ductive arteriosus, which began to operate after his delivery. Such mechanism, acting in consort, increased, over time, the
pressure in the draining veins from Bryan's brain and, therefore, the pressure in his brain, with the consequent hemorrhage.
CONCLUSIONS OF LAW
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 (1993).
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.
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 within five years of the infant's birth. 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.
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 Hearing Officer 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 Hearing Officer in accordance with the provisions of Chapter 120, Florida Statutes. Sections 766.304, 766.307, 766.309 and 766.31, Florida Statutes.
In discharging this responsibility, the Hearing Officer must make the following determination based upon the available evidence:
Whether the injury claimed is a birth-related neurological injury. If the
claimant has demonstrated, to the satisfaction of the hearing officer, 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. 766.302(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)(a), Florida Statutes.1 An award may be sustained only if the Hearing Officer 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. 1/
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.
Here, the proof demonstrated that the attending physician who provided obstetric services during the birth of Bryan Siravo was a "participating physician" as that term is defined by Section 766.302(7), Florida Statutes, and as that term is used in Sections 766.301 through 766.316, Florida Statutes. However, the record developed in this case demonstrated that Bryan did not suffer a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. As noted in the findings of fact, while the record demonstrated that Bryan suffered an injury to the brain caused by oxygen deprivation, it also demonstrated that any such injury did not occur in the course of labor, delivery, or resuscitation in the
immediate post-delivery period. Accordingly, the subject claim is non-compensable under the Plan. Sections 766.302(2), 766.309(1) and 766.31(1), Florida Statutes.
In reaching the foregoing conclusion, the provisions of Section 766.302(2), Florida Statutes, which prescribe the limited time frame within which an injury must have occurred for compensation, irrespective of fault, to be available, is particularly pertinent. In this regard, the Legislature has chosen to limit such compensation to injuries that occur during a limited continuum of events, to wit: "labor, delivery, or resuscitation in the immediate post-delivery period."
The terms "labor," "delivery" or "resuscitation in the immediate post-delivery period" are not defined by the Plan. Accordingly, such words should be construed in their plain and ordinary sense. Rinker Materials Corp. v. City of North Miami, 286 So.2d 552 (Fla. 1973).
"Labor" is defined as:
. . . the function of the female organism
by which the product of conception is expelled from the uterus through the vagina to the outside world. Labor may be divided into three stages: The first (the stage of dilatation) begins with the onset of regular uterine contractions and ends when the os is completely dilated and flush with the vagina, thus completing the birth canal.
The second stage (stage of expulsion) extends
from the end of the first stage until the expulsion of the infant is completed. The third stage (placental stage) extends from the expulsion of
the child until the placenta and membranes are expelled and contraction of the uterus is completed.
. . .
"Delivery" is defined as the "expulsion or extraction of the child and the after-birth. Dorland's Illustrated Medical Dictionary, Twenty-sixth Edition. These terms are frequently employed interchangeably. Dorland's Illustrated Medical Dictionary, Twenty-sixth Edition.
Under the Plan, there is no coverage for injuries occurring after delivery unless the injury occurs during "resuscitation in the immediate post-delivery period." "Resuscitation" is defined as "the restoration to life or consciousness of one apparently dead; it includes such measures as artificial respiration and cardiac massage." Dorland's Illustrated Medical Dictionary, Twenty-sixth Edition. Accord, The American Heritage Dictionary of the English Language, New College Edition (1979). "Immediate" is defined as "acting or occurring without mediation or interposition; direct . . . Next in line or relation . . . Occurring without delay." The American Heritage Dictionary of the English Language, New College Edition (1979).
Here, as noted in the findings of fact, Bryan was delivered without complications, and resuscitation was not required immediately following delivery. Accordingly, while Bryan was shown to have suffered an injury to the brain caused by
oxygen depravation, the proof further demonstrated that such injury occurred post delivery and is not compensable.
Notwithstanding petitioners having filed a claim for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (the "Plan"), they asserted in their proposed final order that the plan was not applicable to petitioners because the participating physician failed to give Mauro Siravo, the obstetrical patient, the notice required by Section 766.316, Florida Statutes. In sum, the petitioners contend "a condition precedent" to the act's applicability has not occurred, and that Mauro Siravo's failure to receive notice "precludes her recovery of benefits." [Claimant's proposed final order, page 10]. Notably, and rightly so, NICA has advanced no such contention.
Pertinent to this issue, Section 766.316, Florida Statutes, provides:
. . . Each hospital with a participating physician on its staff and each participating physician other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth-Related Neurological Injury Compensation Plan shall provide notice
to the obstetrical patients thereof as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation
of a patient's rights and limitations under the plan.
While placing an affirmative duty on the participating physician to provide notice to the obstetrical patient, Section
766.316 does not purport to condition recovery under the Plan on the giving of such notice. Moreover, the giving or failure to give such notice is not a factor to be considered by the Hearing Officer in deciding whether a claim is or is not compensable. Sections 766.309 and 766.31, Florida Statutes. Accordingly, where, as here, compensation is sought under the Plan, the participating physician's failure to accord the obstetrical patient the required statutory notice is not detrimental to her claim, and cannot be considered a condition precedent to her right to recover under the Plan. 2/
Where, as here, "the hearing officer 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 Bryan Siravo, a minor, by and through his parents and natural guardians, Robert Siravo and Mauro Siravo, and Robert Siravo and
Mauro Siravo individually, be and the same is hereby denied with prejudice.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of February 1994.
_________________________ WILLIAM J. KENDRICK
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 24th day of February 1994.
ENDNOTES
1/ Where, as here, NICA disputes the claim, the burden rests on the claimant 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), ("the burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.") Section 766.309(1)(a), Florida Statutes, provides, however, that where the claimant has demonstrated that the infant has sustained a brain injury caused by oxygen depravation, and was rendered permanently and substantially mentally and physically impaired, a rebuttable presumption arises that the injury is a birth-related neurological injury. Here, petitioners have presented such proof, but the presumption thus arising has been rebutted.
2/ In reaching the foregoing conclusions, it is not suggested or concluded that an obstetrical patient who is not accorded appropriate notice is required to file under the provisions of the plan or that the participating physician is entitled to the limited no fault protections of the plan where notice is not given. That issue is not germane to an evaluation of an affirmative claim for compensation under the provisions of the plan in this administrative forum.
APPENDIX
Petitioners' proposed findings of fact are addressed as follows: 1-4. Addressed in paragraph 1.
5-10. Addressed in paragraph 2, otherwise unnecessary detail.
11-13. Not relevant. See paragraphs 20-22.
14-16. Rejected as recitation of testimony, not a finding of fact and subordinate to the conclusions reached in paragraphs 3-7.
Respondent's proposed findings of fact are addressed as follows:
1 & 3. Addressed in paragraph 1.
2. Addressed in paragraph 2.
Adopted in paragraph 3.
Adopted in paragraph 4.
Adopted in paragraph 5,
Adopted in paragraph 6.
8-10. Subordinate to the conclusions reached in paragraph
7.
COPIES FURNISHED:
(By Certified Mail)
Scott M. Newmark, Esquire Sheldon J. Schlesinger, P.A. 1212 Southeast Third Avenue Fort Lauderdale, Florida 33316
W. Douglas Moody, Jr., Esquire Post Office Box 11189 Tallahassee, Florida 32302-3189
Lynn Dickinson, Executive Director Florida Birth-Related Neurological
Injury Compensation Association Post Office Box 1528
Tallahassee, Florida 32302
Sue Foster, Chief Bureau of Complaints Department of Business
and Professional Regulation Suite 60
1940 North Monroe Street Tallahassee, Florida 32399-0792
Ms. Tanya Williams
Division of Health Quality Assurance Hospital Section
Agency for Health Care Administration 2727 Mahan Drive
Tallahassee, Florida 32308
Bill O'Neil, Esquire General Counsel Department of Insurance The Capitol, PL-11
Tallahassee, Florida 32399-0300
Edward Buonopane, M.D. Suite 204
5333 North Dixie Highway Oakland Park, Florida 33334
Plantation General Hospital
401 Northwest 42nd Avenue Plantation, Florida 33317
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 District Court Of Appeal, First District, or with the District Court Of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
=================================================================
DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JANUARY TERM 1996
BRYAN SIRAVO, a minor, by and through his parents and natural guardians, ROBERT SIRAVO and MAURO SIRAVO, and ROBERT SIRAVO and MAURO
SIRAVO, individually, Appellants,
vs. CASE NO. 94-0762
L.T. CASE NO. 93-2975N
FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,
Appellee.
________________________________/
Opinion filed February 14, 1996
Appeal from the State of Florida, Division of Administrative Hearings.
Sheldon J. Schlesinger, P.A., Fort Lauderdale, and Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, for appellants.
W. Douglas Moody, Jr. of Taylor, Brion, Buker & Greene, Tallahassee, and David W. Black of Atkinson, Diner, Stone, Black & Mankuta, P.A., Hollywood, for appellee.
PER CURIAM.
Reversed on the authority of Bradford v. Florida Birth Related Neurological Injury Compensation Ass'n, 21 Fla. L. Weekly D51 (Fla. 4th DCA Dec. 27, 1995); Behan v. Florida Birth Related Neurological Injury Compensation Ass'n, 664 So.2d 1173 (Fla. 4th
DCA 1995); Mills v. North Broward Hospital District, 664 So. 2d
65 (Fla. 4th DCA 1995); and Turner v. Hubrich, 656 So.2d 970 (Fla. 5th DCA 1995). Here, as in Bradford and Behan, an administrative claim was filed under the Birth-Related Neurological Injury Compensation Act. Appellants asserted in the administrative proceedings that the Act was not applicable as the patient was not provided notice by the doctor of his participation in the appellee/association (NICA) as required by the section 766.316, Florida Statutes.
Here, the hearing officer declined to determine whether notice to a patient is a condition precedent to application of the statute before concluding, as in Bradford and Behan, in denying recovery on the merits, that the injury to the child did not occur during birth as required under 766.301, Florida Statutes. In concluding that the notice to the patient is a condition precedent to reliance on NICA, we certify to the supreme court the same question certified in Bradford:
DOES SECTION 766.316, FLORIDA STATUTES (1993), REQUIRE THAT HEALTH CARE PROVIDERS GIVE PRE- DELIVERY NOTICE TO THEIR OBSTETRICAL PATIENTS OF THEIR PARTICIPATION IN THE FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY COMPENSATION PLAN AS A CONDITION PRECEDENT TO THE PROVIDERS INVOKING NICA AS THE PATIENT'S EXCLUSIVE REMEDY?
We need not determine here whether the condition precedent may be waived by the patient.
STONE and STEVENSON, JJ., concur. KLEIN, J., dissents with opinion. KLEIN, J., dissenting.
I dissent for the same reasons I dissented in Bradford v.
Florida Birth-Related Neurological Injury Compensation Ass'n, 21 Fla. L. Weekly D51 (F1a. 4th DCA Dec. 27, 1995).
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 14, 1996 | Opinion | |
| Feb. 24, 1994 | DOAH Final Order | Claimant`s injury to the brain caused by oxygen deprevation post delivery not compensable under Florida Birth-Related Neurological Injury comp. plan. |
