STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALPHONSO REGINALD CATO, a minor, )

by and through his parents and ) natural guardians DERYL L. CATO ) and JACQUELINE FLOOD MCLAUGHLIN, ) and DERYL L. CATO and JACQUELINE )

FLOOD MCLAUGHLIN, individually, )

)

Petitioners, )

)

vs. ) CASE NO. 93-3906N

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

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, and with the agreement of the parties, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on February 22, 1994, by telephone.

APPEARANCES

For Petitioners: Joseph S. Farley, Jr., Esquire

Mahon, Farley & McCaulie

350 East Adams Street Jacksonville, Florida 32202

For Respondent: W. Douglas Moody, Jr., Esquire

Taylor, Brion, Buker & Greene

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

Whether Alphonso Cato 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 June 24, 1993, Deryl L. Cato and Jacqueline Flood McLaughlin as parents and natural guardians of Alphonso Reginald Cato, a minor, and Deryl L. Cato and Jacqueline Flood McLaughlin, individually, filed a claim with the Division of Administrative Hearings (hereinafter referred to as "DOAH") for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (hereinafter referred to as the "Plan").

DOAH served the Florida Birth-Related Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on July 15, 1993. NICA reviewed the claim, and on September 16, 1993, 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 the Hearing Officer "enter an order setting a hearing in this cause on the issue of the compensability of this claim."

On October 4, 1993, DOAH issued a notice of hearing advising the parties that an evidentiary hearing would be held on December 6, 1993, to resolve the issue of compensability. Thereafter, the hearing was continued at the parties' request and heard on February 22, 1994.

At hearing, the parties stipulated to a number of facts and official recognition was taken of the medical records attached to the claim for compensation which, with the parties' agreement, will be considered in evidence. Additionally, petitioners called Jacqueline Flood McLaughlin as a witness, and respondent offered, post hearing, the deposition of Michael S. Duchowny, M.D., which was received into evidence as respondent's exhibit 1.

The transcript of hearing was filed July 27, 1994, and the parties were accorded ten days from that date to file proposed findings of fact. Neither party elected to file such proposals.

FINDINGS OF FACT

1. Alphonso Reginald Cato (Alphonso) is the natural son of Deryl L. Cato and Jacqueline Flood McLaughlin. He was born a live infant on March 12, 1989, at Baptist Medical Center in Jacksonville, Duval County, Florida, and his birth weight was in excess of 2500 grams.

   
   

2. The physicians providing obstetrical services during the birth of Alphonso were Dr. F. Andre and Dr. Huddleston, who were, at all times material hereto, participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.

3. The neurological examination of Alphonso performed by Michael S. Duchowny, M.D., whose opinions are credited, revealed a prominent spastic diapiresis of the lower extremities which had been ameliorated by dorsal rhizotomy. Alphonso's mental functioning was, however, found to be age appropriate, and he was not found to suffer from any mental impairment. As to the cause of Alphonso's cerebral palsy, the proof is less than compelling that it was suffered as a consequence of any birth-related complications, as opposed to having been acquired prenatally. Moreover, although permanently impaired, the proof fails to support the conclusion that Alphonso's impairment is substantial.

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceeding. Section 766.301, et seq., Florida Statutes (1993).

   
   

5. 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.

   
   

6. 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.

   
   

7. 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.

8. In discharging this responsibility, the Hearing Officer 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 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.

      
      

9. 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.

   
   

10. Here, the proof demonstrated that the attending physicians who provided obstetric services during the birth of Alphonso Cato were "participating physicians" 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 Alphonso has not suffer 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 Alphonso was not "permanently and substantially mentally . . . impaired." Moreover, while permanently impaired, the proof fails to demonstrate that Alphonso is substantially physically impaired or that the event which rendered him physically impaired was a consequence of 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. Accordingly, the subject claim is non- compensable under the Plan. Sections 766.302(2), 766.309(1) and 766.31(1), Florida Statutes

    
    

11. 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 Deryl L. Cato and Jacqueline Flood McLaughlin, on behalf of and natural guardians of Alphonso Cato, a minor, and Deryl L. Cato and Jacqueline Flood McLaughlin, individually, be and the same is hereby denied with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 18th day of August 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 18th day of August 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 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.")

COPIES FURNISHED:

(By Certified Mail)

Joseph S. Farley, Jr., Esquire Mahon, Farley & McCaulie

350 East Adams Street Jacksonville, Florida 32202

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

Dr. F. Andre

Baptist Medical Center 800 Prudential Drive

Jacksonville, Florida 32207

Dr. Huddleston

Baptist Medical Center 800 Prudential Drive

Jacksonville, Florida 32207

Baptist Medical Center Legal Department

800 Prudential Drive

Jacksonville, Florida 32207

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: 93-003906N

Orders for Case No: 93-003906N