STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIA L. ESPINOZA, on behalf ) of and natural guardian of ) DANIEL ESPINOZA, a minor, )

)

Petitioners, )

)

vs. ) CASE NO. 94-0004N

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 14, 1994, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Carole A. Gardiner, Esquire

2601 South Bayshore Drive, Suite 1144

Miami, Florida 33133

Robert L. Spector, Esquire

515 Las Olas Boulevard

Fort Lauderdale, Florida 33301

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

Taylor, Brion, Buker & Greene

225 South Adams Street, Suite 250 Post Office Box 11189 Tallahassee, Florida 32302-3189

STATEMENT OF THE ISSUE

Whether Daniel Espinoza has suffered an injury for which he and his mother, Maria L. Espinoza, should be awarded compensation under the Florida Birth-Related Neurological Injury Compensation

Plan, as Ms. Espinoza has alleged in her claim for compensation filed on behalf of Daniel?

PRELIMINARY STATEMENT

On January 7, 1994, Petitioner, on behalf of her minor son, Daniel Espinoza, filed with the Division of Administrative Hearings (hereinafter referred to as the "Division") a claim for compensation under the Florida Birth-Related Neurological Injury Compensation Plan. The Division served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on or about January 10, 1994. NICA reviewed the claim, and on or about May 11, 1994, gave written notice of its determination "that such claim [was] not a 'birth-related neurological injury' within the meaning of Section 766.302(2), [Florida Statutes](1991)" and of its desire that an order be entered "setting a hearing in this cause on the issue of the compensability of this claim."

Such a hearing was held before the undersigned Hearing Officer on July 14, 1994. 1/ Petitioner and NICA both appeared at the hearing through counsel. They each offered one exhibit into evidence. Petitioner's exhibit was a composite exhibit comprised of medical records and reports. NICA's exhibit was the transcript of the July 1, 1994, deposition of Michael Duchowny, M.D., which was offered in lieu of his live, expert testimony.

Both exhibits were received by the Hearing Officer. No other evidence was presented by the parties.

At the close of the evidentiary portion of the hearing, the Hearing Officer, on the record, advised that post-hearing submittals had to be filed no later than 20 days following the Hearing Officer's receipt of the hearing transcript. The hearing transcript was received by the Hearing Officer on July 29, 1994. NICA timely filed a proposed order on August 12, 1994. NICA's proposed order, which contains, among other things, what are labelled as "findings of fact," has been carefully considered by the Hearing Officer. The "findings of fact" set forth in the proposed order are specifically addressed in the Appendix to this Final Order.

FINDINGS OF FACT

Based upon the evidence adduced at the July 14, 1994, Division-conducted hearing in this case, and the record as a whole, the following Findings of Fact are made:

1. Daniel Espinoza is the natural son of Petitioner.

   
   

2. He was born on January 6, 1991, at Jackson Memorial Hospital (hereinafter referred to as "Jackson") in Dade County, Florida.

3. Daniel was the product of a full term pregnancy.

   
   

4. His birth weight was in excess of 2500 grams.

   
   

5. Daniel was delivered by Erin Colleen Dawson, M.D.

   
   

6. At the time of Daniel's birth, Dr. Dawson was a participant in the Florida Birth-Related Neurological Injury Compensation Plan.

   
   

7. The delivery was uneventful.

   
   

8. Daniel was a "vigorous" baby at birth.

   
   

9. He had a "good" Apgar score of 9 at one, five, and ten minutes after birth.

   
   

10. There was no resuscitation required in the immediate postdelivery period.

    
    

11. Approximately five hours after the initial evaluation, Daniel appeared to be "grunting" and suffering from "cyanosis."

    
    

12. As a result, he was transferred to Jackson's neonatal intensive care unit, where he had a seizure and experienced respiratory distress.

    
    

13. Daniel's C.S.F. (cerebrospinal fluid) was bloody and had a white blood cell count of 19000.

    
    

14. An initial diagnosis of meningitis was made.

    
    

15. On January 7, 1991, an EEG (electroencephalogram) was done. It revealed "no epileptiform phenomena."

    
    

16. A CT (computerized tomography) scan of Daniel's brain was performed on January 8, 1991. The report of the scan read as follows:

    
    

    HISTORY- TWO DAY OLD WITH SEPSIS.

    
    

    5 MM AXIAL SECTIONS WERE OBTAINED THROUGH THE BRAIN WITHOUT CONTRAST.

    
    

    THERE IS A SMALL LUCENT DEFECT IN THE LEFT OCCIPITAL BONE SEEN ON IMAGE #5. ALTHOUGH NO SOFT TISSUE SWELLING IS SEEN, CANNOT DEFINITELY EXCLUDE THIS BEING A LINEAR NONDEPRESSED FRACTURE VERSUS OTHER ETIOLOGY SUCH AS A VASCULAR GROOVE. WE SUGGEST

    CORRELATION WITH THE PLAIN FILM.

    
    

    THERE IS A HUGE AMOUNT OF BLOOD IN THE RIGHT POSTERIOR FOSSA EXTENDING ACROSS THE MIDLINE AND INSINUATING ON THE RIGHT TENTORIAL INCISURA SUPRATENTORIALLY. BLOOD IS ALSO SEEN ALONG THE POSTERIOR INTERHEMISPHERIC FISSURE DIFFUSELY IN THE EXTRA-AXIAL SPACE, AND A SMALL AMOUNT OF BLOOD IN THE OCCIPITAL HORNS OF THE LATERAL VENTRICLES. WITH SUCH A TREMENDOUS AMOUNT OF BLOOD PRESENT IN THE POSTERIOR FOSSA, IT IS DIFFICULT TO SAY HOW

    MUCH IS PARENCHYMAL VERSUS EXTRA-AXIAL. THERE IS MASS EFFECT UPON THE MID BRAIN PONS AND MEDULLA AND ON THE FOURTH VENTRICLE CAUSING OBSTRUCTING HYDROCEPHALUS.

    IMPRESSION

    
    

    LARGE ACUTE INTRACRANIAL HEMORRHAGE, AS DESCRIBED ABOVE, WITH THE EPICENTER BEING IN THE RIGHT POSTERIOR FOSSA. THE DIFFERENTIAL DIAGNOSIS INCLUDES NEOPLASM, TRAUMA, RUPTURED ANEURYSM OR ARTERIOVENOUS MALFORMATION, COAGULOPATHY, ETC. CONTRAST STUDY OR MRI MAY BE OF HELP FOR FURTHER EVALUATION TO TRY TO DETERMINE THE UNDERLYING ETIOLOGY.

    
    

17. On January 9, 1991, Daniel underwent an echoencephalogram, which, according to the report of the study, indicated the following:

    
    

    ROUTINE ECHOENCEPHALOGRAM REVEALED DILATION OF THE LATERAL AND THIRD VENTRICLES. THERE IS A BILATERAL LUMPY CHOROID PLEXUS NOTED.

    
    

    ADDITIONAL TRANSTEMPORAL VIEWS REVEAL AN ECHOGENIC AREA SEEN IN THE INFRATENTORIAL REGION, WITH INCREASE IN THE ECHOGENICITY OF THE BASAL CISTERNS. THE FINDINGS ARE SIMILAR TO THOSE SEEN ON PREVIOUS CT SCAN, WHICH SHOWED EVIDENCE OF A CEREBRAL HEMORRHAGE WITH SUBARACHNOID BLEED. THE NORMAL STRUCTURES OF THE POSTERIOR FOSSA ARE ILL-DEFINED.

    IMPRESSION:

    
    

    1. MODERATE HYDROCEPHALIC CHANGES OF THE LATERAL AND THIRD VENTRICLES.

    2. SUBARACHNOID HEMORRHAGE WITH A POSTERIOR FOSSA HEMORRHAGE, AS DESCRIBED IN A PREVIOUS CT SCAN OF THE BRAIN.

       
       

18. Another CT brain scan was performed on January 23, 1994, the report of which stated the following:

    
    

    THE PATIENT IS A TWO WEEK OLD MALE WITH A HISTORY OF INTRACRANIAL HEMORRHAGE.

    AXIAL IMAGES WERE OBTAINED THROUGH THE BRAIN AT 5MM INTERVALS FOLLOWING INTRAVENOUS ADMINISTRATION OF CONTRAST.

    
    

    COMPARED TO THE PRIOR STUDY OF 1-8-91, THERE HAS BEEN SUBSTANTIAL RESORPTION OF BLOOD IN THE REGION OF THE SUBDURAL, SUBARACHNOID AND INTRAVENTRICULAR HEMORRHAGE. THERE ALSO HAS BEEN MARKED DECREASE IN THE VENTRICULAR SIZE. THERE IS LESS ASSOCIATED MASS EFFECT, ESPECIALLY IN THE POSTERIOR FOSSA WITH PERSISTENT SUBDURAL HEMORRHAGE IN THE RIGHT SIDE OF THE POSTERIOR FOSSA DISPLACING THE CEREBELLUM ANTERIORLY AND TO THE LEFT. THE FOURTH VENTRICLE IS NOW VISUALIZED, HOWEVER. NO NEW AREAS OF HEMORRHAGE ARE SEEN. THERE ARE NO BONY ABNORMALITIES. THE MAXILLARY AND ETHMOID SINUSES AND MASTOID AIR CELLS

    ARE CLEAR.

    
    

    IMPRESSION

    
    

    SIGNIFICANT RESORPTION OF SUBDURAL, SUBARACHNOID WITH INTRAVENTRICULAR HEMORRHAGE SINCE THE PRIOR STUDY OF 1-8-91 WITH LESS MASS EFFECT, ESPECIALLY UPON THE CEREBELLUM AND BRAIN STEM. MARKED DECREASE IN VENTRICULAR SIZE HAS ALSO OCCURRED.

    
    

19. On January 25, 1991, Daniel underwent a second echoencephalogram, the report of which read as follows:

    
    

    FOLLOW-UP BRAIN HEMORRHAGE.

    
    

    COMPARISON IS MADE TO PREVIOUS STUDY FROM 1/8/91.

    
    

    THERE HAS BEEN MARKED INTERVAL RESOLUTION OF THE PREVIOUSLY DEFINED RIGHT POSTERIOR FOSSA HEMORRHAGE. IN ADDITION, THE VENTRICULAR SIZE HAS DECREASED SIGNIFICANTLY SINCE THE PREVIOUS EXAM. THERE CONTINUES TO BE SLIGHT INCREASED ECHOGENICITY WITHIN THE SYLVIAN FISSURES BILATERALLY, WHICH MAY REPRESENT SOME RESIDUAL SUBARACHNOID HEMORRHAGE.

    
    

    NO EVIDENCE OF NEW OR ACUTE HEMORRHAGE IS IDENTIFIED.

    IMPRESSION:

    
    

    THERE HAS BEEN SIGNIFICANT INTERVAL IMPROVEMENT IN THE DEGREE OF VENTRICULAR DILATION AND THE PREVIOUSLY DEFINED HEMORRHAGE, WHEN COMPARED TO THE STUDY OF 1/8/91.

    
    

20. Daniel was discharged from Jackson on January 31, 1991.

    
    

21. At present, in terms of meeting expected language milestones, Daniel is mildly delayed, primarily in the area of expressive language. The delay is developmental in nature and Daniel will likely improve in this area over time. Otherwise, his mental functioning is relatively well preserved.

    
    

22. Physically, Daniel is only very mildly impaired. He has a slight decrease in muscle tone and some incoordination, but he does not suffer from spasticity or contracture and he is able to move both of his arms well and to walk without losing his balance. He is even able to run, although he has a tendency to lean to the right and appear as if he is about to fall when he does so.

    
    

23. In short, Daniel suffers from no permanent and substantial mental or physical impairment. 2/

    
    

    CONCLUSIONS OF LAW

    
    

24. The Florida Birth-Related Neurological Injury Compensation Plan (hereinafter referred to as 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), Fla. Stat.

    
    

25. The injured "infant, his personal representative, parents, dependents, and next of kin, at common law or otherwise," may seek compensation under the Plan by filing a claim for compensation with the Division 3/ within five years of the infant's birth. Sections 766.303(2), 766.305(1) and 766.313, Fla. Stat.

    
    

26. 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 alleged is a birth-related neurological injury." Section 766.305(3), Fla. Stat.

27. A "birth-related neurological injury," as that term is used in Sections 766.301 through 766.316, Florida Statutes, is "an 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 postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Section 766.302(2), Fla. Stat.

    
    

28. There is no entitlement to compensation under the Plan for an injury that does not fall within this definition.

    
    

29. If NICA determines that the injury alleged in a claim is a compensable birth-related neurological injury, it may award compensation to the claimant(s), provided that the award is approved by the Division Hearing Officer to whom the claim has been assigned. Section 766.305(6), Fla. Stat.

    
    

30. If, on the other hand, NICA disputes the claim, 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, Fla. Stat.

    
    

31. In discharging this responsibility, the Hearing Officer

    must

    
    

    make the following determinations based upon all 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 postdelivery 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 postdelivery period in a hospital.

    3. How much compensation, if any, is

    awardable pursuant to s. 766.31.

    
    

    Section 766.309(1), Fla. Stat.

    
    

32. "If the hearing officer determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at birth, 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), Fla. Stat.

    
    

33. Such an order constitutes final agency action subject to appellate court review. Section 766.311(1), Fla. Stat.

    
    

34. In the instant case, NICA has disputed the Petitioner's claim that she is entitled to compensation under the Plan.

    
    

35. Having carefully reviewed the evidentiary record developed in this case, the Hearing Officer agrees with NICA that Daniel Espinoza has not suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes, and that therefore Petitioner's claim is non- compensable under the Plan, inasmuch as the preponderance of the record evidence establishes that any physical or mental impairment from which Daniel may suffer as the result of "oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period" is not permanent and substantial.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED that Petitioner's claim for compensation under the Florida Birth-Related Neurological Injury Compensation Plan is hereby rejected on the ground that the claimed injury is not a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of August, 1994.

STUART M. LERNER

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 26th day of August, 1994.

ENDNOTES

1/ The hearing was originally scheduled for June 24, 1994, but was continued until July 14, 1994, at the request of the parties.

2/ These findings regarding the extent of Daniel's impairment are based upon the unrebutted expert medical testimony of Michael Duchowny, M.D., a board certified pediatric neurologist and senior attending physician in the Department of Neurology at Miami Children's Hospital, who conducted a neurological examination and evaluation of Daniel on February 2 and 3, 1994.

3/ Prior to May 15, 1993, the effective date of Chapter 93-252, Laws of Florida, such claims had to be filed with Division of Workers' Compensation of the Department of Labor and Employment Security and they were heard and determined by the Judges of Compensation Claims.

APPENDIX TO FINAL ORDER IN CASE NO. 94-0004N

The following are the Hearing Officer's specific rulings on the "findings of fact" set forth in NICA's proposed order:

1. To the extent that this proposed finding states that Daniel was born at Jacksonville Memorial Hospital (as opposed to Jackson Memorial Hospital) it has been rejected because it is not supported by competent substantial evidence. Otherwise, it has been accepted and incorporated in substance, although not necessarily repeated verbatim, in the Findings of Fact of this Final Order.

2. To the extent that this proposed finding states that Dr. Dawson "was a participating physician within the meaning of the term "participating physician" as defined [in] Section 766.302(7), Florida Statutes," it has been rejected as a finding of fact because it is more in the nature of a conclusion of law. Otherwise, it has been accepted and incorporated in substance, although not necessarily repeated verbatim, in the Findings of Fact of this Final Order.

3. Accepted and incorporated in substance.

4. Rejected because it is not supported by competent substantial evidence.

5-8. Accepted and incorporated in substance.

9. First and second sentences: Accepted and incorporated in substance; Third sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

10-11. Accepted and incorporated in substance.

12-13. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

1. Accepted and incorporated in substance.

2. Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.

3. Rejected because it is more in the nature of argument regarding the state of the evidentiary record than a finding of fact.

COPIES FURNISHED:

(by certified mail)

Carole A. Gardiner, Esquire 2601 South Bayshore Drive Suite 1144

Miami, Florida 33133

Robert L. Spector, Esquire

515 Las Olas Boulevard

Fort Lauderdale, Florida 33301

W. Douglas Moody, Jr., Esquire, Taylor, Brion, Buker & Greene

225 South Adams Street Suite 250

P.O. Box 11189

Tallahassee, Florida 32302-3189

Stephen J. Keating, Esquire

Office of the Dade County Attorney

111 Northwest First Street Suite 2810

Miami, Florida 33128-1993

Patricia I. Murray, Esquire Fowler, White, Burnett, Hurley

Banick & Strickroot, P.A. 11th Floor Courthouse Center

175 Northwest First Avenue Miami, Florida 33128-1835

Lynn Dickinson, Executive Director

Florida Birth-Related Neurological Injury Compensation Association

Post Office Box 1528 Tallahassee, Florida 32302

Tanya Williams

Division of Health Quality Assurance Hospital Section

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Bill O'Neill, 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 appropriate District Court of Appeal. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 94-000004N

Orders for Case No: 94-000004N