STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VENISE FERDINAND, a minor, by ) and through her parents and ) natural guardians MARIE VIRGILE ) and MANES FERDINAND, )

)

Petitioners, )

)

vs. ) CASE NO. 93-2994N

) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )

)

Respondent. )

)

FINAL ORDER

This cause came on for consideration of the petition for benefits under the Florida Birth-Related Neurological Injury Compensation Plan, respondent's response to the petition for benefits, and the parties' joint stipulation filed January 3, 1994.

STATEMENT OF THE CASE

1. By petition filed October 22, 1992, petitioners sought benefits pursuant to Sections 766.301 - 766.316, Florida Statutes, the "Florida Birth- Related Neurological Injury Compensation Plan."

   
   

2. In reply to such petition, respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), filed a response contending that the subject claim was not compensable because the infant did not suffer a birth-related neurological injury as defined by law.

   
   

   FINDINGS OF FACT

   
   

3. By stipulation filed January 3, 1994, petitioners and respondent stipulated as follows:

   
   

   1. That pursuant to Chapter 766.301- 766.316, Fla. Stat., a claim was filed on behalf of the above-styled infant against NICA on behalf of VENISE FERDINAND, MARIE VIRGILE and MANES FERDINAND (the "Petitioners") for benefits under Chapter 766.301-766.316 Fla. Stat.

   2. That a timely filed Claim for benefits complying with the requirements of Section 766.305, Fla. Stat., was filed by the Petitioners and a timely Notice of Non- Compensability Setting forth that NICA denied the claim was filed on behalf of NICA.

   3. That infant, VENISE FERDINAND, was born at Broward General Medical Center on April 1, 1992, and Broward General Medical Center was a licensed Florida Hospital and the attending physician, Joseph Nicaisse was a participating physician within the meaning of Chapter 766, Fla. Stat.

   4. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim.

   5. Section 766.302(2), Fla. Stat. states that "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 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.

   6. The parties agree that VENISE FERDINAND suffers from a left brachial plexus palsy injury. A brachial plexus palsy injury is not an injury to the brain or spinal cord and

      further, does not result in any mental injury.

   7. The parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., including in particular his reports dated February 10, 1993, March 12, 1993 and November 15, 1993. Copies of these reports have been attached hereto and incorporated herein respectively as Exhibits 1, 2 and 3.

   8. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply.

   9. Based upon this stipulation, the parties request the hearing officer to rule on Petitioners' claim based upon this

      Stipulation, and the attached medical records.

      
      

4. The neurological examinations of Venise Ferdinand reveal that she suffered a left Erb's palsy directly related to the left brachial plexus injury she received at birth. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury and, further, does not result in mental injury. Moreover, Venise Ferdinand's mental functioning is normal and not impaired due to any birth related complications.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject of, these proceedings. Section 766.301, et seq., Florida Statutes, as amended by Chapter 93-251, Laws of Florida.

   
   

6. The Florida Birth-Related Neurological 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.

   
   

7. The injured "infant, his personal representative, parents, dependents, and the 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.

   
   

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 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.

   
   

9. In discharging this responsibility, the Hearing Officer must make the following determinations 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 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).

   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. 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.

   
   

10. 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 congenital abnormality.

    
    

11. Here, the parties have stipulated that the attending physician who provided obstetric services during the birth of Venise Ferdinand 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 demonstrates that Venise Ferdinand has not suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. As noted in the findings of fact, the record demonstrated that a left brachial plexus injury was not "a brain or spinal cord injury" and, moreover, that Venise Ferdinand was not "permanently and substantially mentally . . . impaired." Accordingly, the subject claim is non-compensable under the Plan. Sections 766.302(2), 766.309(1) and 766.31(1), Florida Statutes.

    
    

12. 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 Venise Ferdinand, by

and through her parents and natural guardians, Marie Virgile and Manes Ferdinand, be and the same is hereby denied with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of January 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 6th day of January 1994.

ENDNOTE

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 3489, 350 (Fla. 1st DCA 1977), ("The burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal").

COPIES FURNISHED:

(By certified mail)

Alyson R. Dachelet Dachelet & Kligerman Suite 401

700 Southeast 3rd Avenue

Fort Lauderdale, Florida 33316

David W. Black, Esquire Atkinson, Diner, Stone & Cohen Post Office Drawer 2088 Hollywood, Florida 3022-2088

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 1528

Tallahassee, Florida 32302

Broward General Medical Center 1600 South Andrews Avenue

Fort Lauderdale, Florida 33316

Dr. Julio C. Coello

1600 South Andrews Avenue

Fort Lauderdale, Florida 33316

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

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.

Docket for Case No: 93-002994N

Orders for Case No: 93-002994N