STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KARINA ZEPEDA, a minor, by and ) through her parents and as natural ) guardians, LUIS and DORA ZEPEDA, )

)

Petitioners, )

)

vs. ) CASE NO. 94-0907N

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

)

Respondent, )

and )

)

UNIVERSITY OF MIAMI and ) THE PUBLIC HEALTH TRUST d/b/a ) JACKSON MEMORIAL HOSPITAL, )

)

Intervenors. )

___________________________________)

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 September 7, 1994, in Miami, Florida.

APPEARANCES

For Petitioners: John B. Ostrow, Esquire

201 South Biscayne Boulevard The Miami Center, Suite 1380 Miami, Florida 33131

Stephen T. Maher, Esquire

201 South Biscayne Boulevard The Miami Center, Suite 1500 Miami, Florida 33131

For Respondent: W. Douglas Moody, Esquire

Taylor, Brion, Buker & Greene

225 South Adams Street, Suite 250 Tallahassee, Florida 32302

For Intervenor, Patricia I. Murray, Esquire University of Henry Burnett, Esquire Miami: Stephen Stark, Esquire

Fowler, White, Burnett,

Hurley, Banick & Strickroot, P.A. International Place, 17th Floor

100 Southeast Second Street Miami, Florida 33131-1101

For Intervenor, Stephen J. Keating, Esquire The Public Health Assistant County Attorney Trust d/b/a Suite 2810

Jackson Memorial 111 Northwest 1st Street Hospital: Miami, Florida 33128-1993

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Karina Zepeda suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On February 15, 1994, Luis Zepeda and Dora Zepeda, on behalf of and as natural guardians of Karina Zepeda, a minor, 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"). 1/

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on February 23, 1994. Following NICA's review of the claim, petitioners and NICA filed a stipulation on May 13, 1994, whereby they agreed that:

. . . the injuries exhibited by Karina Zepeda do not fit within the strict definition of claims covered by the Florida Birth-Related Neurological Injury Compensation Association under Section 766.302(2), Florida Statutes in that Karina Zepeda is able to "turn crisply and run easily." She is ambulatory.

The stipulation concluded by requesting that the Hearing Officer approve the parties' stipulation "as being consistent with the evidence in this cause and enter an order denying the claim . . . on the basis that Karina Zepeda, did not suffer a birth-related neurological injury as defined by Section 766.302(2), Florida Statutes."

There being no evidence of record, apart from the parties' stipulation, an order was entered May 24, 1994, denying the parties' request, as follows:

. . . The request of petitioners and respondent, contained within their stip- ulation, that the Hearing Officer enter an order denying this claim is denied.

The Hearing Officer cannot, based on the paucity of the parties' agreement regarding the infant's physical status, conclude that the infant is not substantially physically impaired. Petitioners are, however, free to voluntarily dismiss their claim or offer further agreement.

The order also scheduled a hearing for June 21, 1994, to resolve whether the infant had suffered a "birth-related neurological injury" as defined by the Plan. Petitioners did not elect to voluntarily dismiss their claim or offer further agreement.

Subsequently, by order of June 17, 1994, the petitions for leave to intervene filed on behalf of the University of Miami and the Public Health Trust d/b/a Jackson Memorial Hospital (Jackson Memorial) were granted, and the hearing on compensability was rescheduled for August 25, 1994. At petitioners' request, the hearing was rescheduled for September 7, 1994, when the case was heard.

At hearing, petitioners' exhibits 1-5, which included the deposition testimony of Michael Duchowny, M.D., and Danilo Duenas, M.D., were received into evidence. Respondent offered no additional proof. Intervenor, University of Miami, called Stuart Brown, M.D., and its exhibits 2-4, 6-8, 10A, 10B, 11, 12, 13A, 13B, and 14 were received into evidence. 2/ Intervenor, Jackson Memorial, called Sylvia Miller as a witness, but offered no additional proof.

Pursuant to orders entered October 10, 1994, and January 12, 1995, official recognition was taken of the following matters:

1. Intervenors' request for official recognition is granted as to items 1, 3, 4 (only as to the tape of the February 2, 1988 proceeding), 6 (two documents, one revised February 2, 1988, and one revised February 4, 1988), 7, 8, 9, 10, 11 and 12 is granted. In so holding, it is observed that the other items for which official recognition was requested were not attached to the initial

   motion or ever provided to the Hearing Officer.

2. Pursuant to Section 90.204, Florida Statutes, the Hearing Officer takes official recognition of the Virginia Birth-Related Neurological Injury Compensation Plan, Sections 38.2-5000 to 38.2-5021, Code of Virginia, and the reported decisional law of any state which may bear on the interpretation of the phrase "permanently and substantially mentally and physically impaired."

The transcript of hearing was filed September 19, 1994, but due to intervening events the parties were, at their request, accorded until February 21, 1995, to file proposed final orders. The proposed findings of fact contained within the parties' proposals are addressed in the appendix to this final order.

FINDINGS OF FACT

Background

1. Karina Zepeda (Karina) is the natural daughter of Luis Zepeda and Dora Zepeda. She was born a live infant on March 26, 1991, at Jackson Memorial Hospital, a hospital located in Miami, Dade County, Florida, and her birth weight was in excess of 2500 grams.

   
   

2. The physicians providing obstetrical services during the birth of Karina were Pablo Delgado, M.D., and Gene Burkett, M.D., who were, at all times material hereto, participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes.

   The birth of Karina

   
   

3. At or about 8:25 p.m., March 25, 1991, Dora Zepeda was admitted to Jackson Memorial Hospital (Jackson Memorial) in active labor. Thereafter, at 11:50 p.m., she suffered an artificial rupture of the membranes and was found to have thick meconium. Subsequently, decelerations were noted and the decision was made to perform a cesarean section as a consequence of fetal distress.

   
   

4. The cesarean section was performed, and Karina was delivered at 2:24 p.m., March 26, 1991. The operative report reflects that the following occurred during the course of the procedure:

   
   

   . . . The uterine cavity was then entered and found the amniotic fluid to be full of thick meconium that was aspirated.

   
   

   The incision was extended bilaterally on the myometruim and we proceeded to deliver the fetal head after flexion. Suction was per- formed with the DeLee catheter and at this time, we proceeded to deliver the body of the fetus. As we did this, we found a crypt surrounding the abdomen and the lower back of the fetus. This was occupied by cord,

   apparently cord tying up on the lower section of the lower section of the back and deep into the body of the fetus. The cord was removed and the fetus was delivered. The cord was then clamped and cut and the body was given

   to the pediatrician.

   
   

5. When delivered, Karina was lethargic, floppy and without spontaneous respiratory effort or heart rate. She was resuscitated with chest compressions, intubated, and placed on a ventilator with 100 per cent oxygen. At birth, her Apgar scores were 1 at one minute, 3 at two minutes, and 4 at five minutes. Following delivery, Karina was transferred to the neonatal intensive care unit where, within twenty-four hours of birth, she was observed to have developed seizures.

   
   

6. Karina remained in the intensive care unit for approximately nineteen days, and was discharged from Jackson Memorial on April 19, 1991, to the care of her parents. Following discharge, Karina was apparently followed at Jackson Memorial for, inter alia, hypoxic encephalopathy associated

   with microcephaly, spastic quadriparesis, mental retardation, language disorder and seizures.

   
   

7. Here, the parties have stipulated, and the proof demonstrates, that Karina suffered an injury to the brain at birth caused by oxygen deprivation during the course of labor, delivery or resuscitation in the immediate post-delivery period which resulted in mental and physical impairment. What is in dispute is the degree of impairment suffered by Karina or, stated otherwise, whether her impairments are permanent and substantial, so as to be considered a "birth-related neurological injury" as defined by the Plan.

   
   

   The degree of Karina's impairment

   
   

8. On February 1, 1993, upon referral by Children's Medical Services, Karina came under the care of Danilo A. Duenas, M.D., a pediatric neurologist and the associate director of the Department of Neurology, Miami Children's Hospital. As of the date of hearing, Dr. Duenas remained Karina's treating neurologist.

   
   

9. At Dr. Duenas' initial examination of February 1, 1993, Karina, then twenty-three months of age, presented with the history heretofore noted and upon examination, Dr. Duenas diagnosed Karina as suffering from microcephaly; mental retardation, moderate to severe; spastic quadriparesis, pseudobulbar palsy; language disorder receptive and expressive; extraocular imbalance/strabismus; seizure disorder; and behavior and attention deficit disorder.

   
   

10. Dr. Duenas' finding that Karina suffered from microcephaly reflects that her head had not grown in accordance with a standardized norm and reflects below average brain growth which in Karina's case, more likely than not, resulted from brain injury occasioned by the hypoxic insult she received at birth. Microcephaly is not itself, however, a physical or mental injury, but does portend the possibility that the injury to the brain, which affected its growth, may have been severe enough to affect mental or physical functioning.

    
    

11. As for Dr. Duenas' observation of a seizure disorder (epilepsy), such disorder is also, more likely than not, a consequence of organic brain dysfunction occasioned by the hypoxic insult she received at birth. Epilepsy is, however, a physiologic condition, as opposed to a mental or physical condition, although it can, when seizures are severe, have

    profound mental or physical implications. To date, Karina has not been shown to have suffered any significant mental or physical effects from her seizure disorder. 3/

    
    

12. The remaining deficiencies observed by Dr. Duenas, mental retardation, spastic quadriparesis (weakness of all four extremities), pseudobulbar palsy (impaired function of the tongue and palate), language disorder receptive and expressive, extraocular imbalance/strabismus (deviation of the eye due to lack of muscular coordination) and behavior and attention deficit disorder, represent mental or physical deficiencies occasioned by the hypoxic injury to Karina's brain during birth.

    
    

13. Following his examination, Dr. Duenas observed that his findings were consistent with "severe brain dysfunction, probably secondary to hypoxic encephalopathy at birth," but deferred any prognosis inasmuch as each child has a different potential for subsequent development after a neurological insult and, depending on the level of impairment, it is difficult to prognosticate upon the future level of impairment.

    
    

14. Given the circumstances, Dr. Duenas recommended an electroencephalogram (EEG) to assess Karina's susceptibility to seizures, and a CT scan to confirm his clinical diagnosis of brain dysfunction and to ascertain how much brain damage could be detected. Dr. Duenas further recommended that Karina continue at Easter Seal Society School, and continue her physical, occupational and speech therapy.

    
    

15. Consistent with Dr. Duenas' recommendation, an EEG and CT scan were performed on April 15, 1993. The EEG was abnormal, reflecting electrical abnormalities in the brain, and confirmed that Karina had, and was susceptible to, seizures. The CT scan was also consistent with Dr. Duenas' diagnoses of brain injury in that it found:

    
    

    There is biparieto-occipital changes of cystic encephalomalacia. Atropic changes of the central and cordical type are noted in these regions as well as along the bifrontal regions. There is a suggestion of periventricular leukomulacia.

    
    

16. The finding of biparieto-occipital changes of cystic encephalomalacia reflects "that the white matter around the lateral ventricles [has formed] like cysts, like small sacks of empty spaces." The atropic changes in the central and

    cortical area reflect that brain tissue has been destroyed not only in the deep structures (central) but also the outside of the brain (cortical or cortex). The damage to Karina's brain involves both hemispheres, and is defuse.

    
    

17. While Karina clearly suffered a severe injury to the brain by virtue of the hypoxic insult she received at birth, that finding does not compel the conclusion that such injury rendered her permanently and substantially mentally and physically impaired. Indeed, as observed by Dr. Duenas, the relationship between the results of a CT scan and the ability of a child to perform mentally and physically vary from child to child, with some adapting to the injury better than others. Indeed, examination and observation of the child is essential for a physician to reliably associate impairments with an injury depicted on a CT scan.

    
    

18. Dr. Duenas neurologically re-evaluated Karina on April 23, 1993. At that time most of her problems persisted; however, he did note improvement in her receptive/expressive disorder because of improved vocabulary, that she was now able to walk, and that while still considered mentally retarded, the degree was rated as moderate. Dr. Duenas recommended Karina continue Easter Seals School, as well as her physical, occupational and speech therapy.

    
    

19. Dr. Duenas continued to re-evaluate Karina on a regular basis and noted continuing progress such that by his last evaluation of August 22, 1994, he observed:

    
    

    . . . the mouth including tongue movements,

    soft palate, posterior pharynx are unremarkable. Examination of the neck was normal. Motor system shows good strength in all extremities.

    Deep tendon reflexes were equal and symmetric bilaterally. No pathological reflexes . . . Sensory system, pain, touch, proprioception, vibration and position senses within normal limits. Cerebellar function grossly normal finger-to-nose testing and past point. Gait seems to be unremarkable. She is a little spastic in the lower extremities but she keeps fairly good balance. . . .

    
    

    As for Karina's mental status, Dr. Duenas would rate her mildly to moderately mentally retarded.

20. Based on this visit, Dr. Duenas concluded that Karina continues to make progress in her motor development, and that her vocabulary and resultant language continue to improve. Karina's strabismus had also improved to the point that rather than turn her head to one side to view an object through a single eye, she had begun to view objects in a direct and normal manner.

    
    

21. In sum, Dr. Duenas, based on his numerous evaluations of Karina, is of the opinion that, although she will continue to suffer some impairment in her mental and physical development, that she is not currently substantially mentally or physically impaired. Moreover, Dr. Duenas foresees that Karina will continue to improve, but was unable to predict the extent of improvement.

    
    

22. Apart from Dr. Duenas, Karina was also examined by Michael Duchowny, M.D. Dr. Duchowny, who is Board-certified in pediatrics and neurology with special competence in child neurology and the Director of the Neuroscience Department at Miami Children's Hospital, examined Karina, at the request of NICA, on March 24, 1994.

    
    

23. Based on his examination, Dr. Duchowny was of the opinion that Karina understood the examination, the people and her surroundings, exhibited an essentially normal attention span, and behaved appropriately. He did note, however, that Karina was delayed in terms of her expressive language, but felt such impairment was primarily restricted to an inability to express herself and communicate in words, which condition should improve over time. Under the circumstances, Dr. Duchowny was of the opinion that Karina was not substantially intellectually impaired.

    
    

24. As for Karina's physical condition, Dr. Duchowny was of the opinion that Karina was not substantially physically impaired. Although he observed some abnormality in muscle tone and coordination, Karina was fully ambulatory, could turn crisply and run easily, moved while she played and moved her hands quite well. In sum, from a physical standpoint, Karina could "virtually do all the things she wanted to do." Under the circumstances, Dr. Duchowny considered Karina's motor impairment as being "mild or at most mildly moderate, but certainly in no way substantial." As to the permanence of her current status, he felt Karina would probably improve further, but how much further he could not predict.

25. In concluding that Karina was not substantially mentally impaired, Dr. Duchowny observed that in the spectrum of children seen with metal impairment, a substantial impairment is generally accepted to refer to patients who fall within the retarded range of functioning, with patients that exhibit an intelligence quotient (IQ) of less than fifty being considered trainable and those that exhibit an IQ under 70 being considered educable. Within that universe, the children that are considered substantially mentally impaired are the retarded, but trainable, and generally exhibit an IQ of less than 50.

    
    

26. Here, no IQ tests have been administered to Karina and, due to her age, could not have been administered to produce any reliable results. Accordingly, by necessity, Dr. Duchowny's assessment, like Dr. Duenas' assessment, was based on observation and experience which led him to the conclusion that Karina did not exhibit those characteristics that one would associate with a child that functioned in the substantially mentally retarded range.

    
    

27. In concluding that Karina was not substantially physically impaired, Dr. Duchowny observed that children who are substantially physically impaired have a major physical impairment. Examples given were children who were unable to move in a fluid fashion or perform certain functions such as walking or running, and those children who were wheelchair- bound, bedfast, walked with substantial gait disabilities, or lacked the use of arms or hands. In Karina's case, although she has coordination difficulties and some problems with tone, her impairment in Dr. Duchowny's opinion is "quite mild" and she is not "in the same universe as children who have a substantial impairment."

    
    

28. In contrast to the expert opinions rendered by Dr. Duenas and Dr. Duchowny, intervenor, University of Miami, offered the opinion of Stuart Brown, M.D., who is also a pediatric neurologist. It was Dr. Brown's opinion that Karina has a permanent and substantial physical and mental impairment; however, unlike Doctors Duenas and Duchowny, Dr. Brown had never examined Karina. Rather, Dr. Brown based his testimony upon a review of the medical records, including the records from Jackson Memorial Hospital on Karina and Dora Zepeda, the records from Baptist Hospital, the records from Miami Children's Hospital, CT scans on Karina, Dr. Duenas' records and deposition, and Dr. Duchowny's report and deposition.

29. Based on his review of the records, it was Dr. Brown's opinion that Karina's brain damage was bilateral and defuse, invading both hemispheres of the brain and was of such magnitude as to result in the liquefaction of certain areas in the parietal/occipital regions of the brain, that have been replaced with large fluid-filled cystic structures. The parietal/occipital regions are responsible for memory, visual motor functions, discrimination and languages; and the bifrontal area is responsible for intellect, judgment, attention span and executive motor functions. Dr. Brown further observed that Karina had a marked lack of normal myelination (myelin being the insulating material within the brain which enhances the transmission of information), which would portend marked impairment and delay in achievement of milestones and skills that would normally enable the child to be socially, intellectually and educationally competitive. Moreover, the structural damage to Karina's brain is permanent.

    
    

30. Dr. Brown further observed that Karina's epilepsy will in all likelihood interfere with her performance in that, were she to experience seizures, it would interfere with her school performance, and the likelihood of seizures would preclude her from some occupational opportunities. Moreover, given the serious nature of her condition, there is a small potential that a seizure could kill Karina. Given the circumstances, Dr. Brown is of the opinion that Karina will not outgrow her seizures, and considers her seizure disorder a permanent and substantial mental and physical impairment.

    
    

31. Dr. Brown was also of the opinion that Karina was mentally impaired. In this regard, Dr. Brown observed that, although Karina may experience some improvement in her mental functioning, given the fact that she has microcephaly, and given the striking diffuseness and bilaterality of her brain damage, the fact that she is not using sentences at age three and a half, and the attention deficit disorder and seizure disorder which will interfere with her educational process, that Karina's intelligence quotient will fall within the lowest two percentile of the general population. Indeed, Dr. Brown opined that Karina was unlikely to reach language, academic or mental skills of a ten-year-old at anytime in her life and that, in his opinion, she is trainable but not educable.

    
    

32. In concluding that Karina was permanently and substantially mentally and physically impaired, Dr. Brown

    defined permanent and substantial mental and physical impairment as:

    
    

    An acquired injury to the brain which has produced structural damage and has produced a real and true structural injury to [the]

    brain [which] leads to an enduring, indefinite, lasting injury to the brain which prevents the child from achieving milestones and from being competitive with her peer group in motor, language, intellectual, and social and . . . behavioral aspects. . . .

    
    

    In combination, Karina's findings of microcephaly, epilepsy, retardation, motor delays and language deficits and attention deficit disorder therefore constitute, in Dr. Brown's opinion, a permanent and substantial mental and physical impairment.

    
    

    Resolving the conflict

    
    

33. In resolving the conflict between the opinions rendered by Doctors Duenas and Duchowny, compared to the opinions rendered by Dr. Brown, careful consideration has been accorded the medical records in this case, the gravamen and tenor of the physicians' testimony, and the opportunity each physician had to observe and quantify the matters to which they spoke. In this regard, it is noted that Dr. Brown did not examine the child and that, under the circumstances of this case, he could not, based upon the CT scans alone, reasonably opine whether a motor abnormality he might suspect would be present would be mild, moderate or severe. Of further note is Dr. Brown's acknowledgment that there is no impairment in the strength of Karina's upper extremities, and that she can feed herself, use both hands, grasp, manipulate and walk. It is further noted that Dr. Brown agrees that Karina will improve, although the extent is not now known, and that her walking ability will continue to improve. Finally, it is noted that there is a consensus among the physicians that, within their profession, mental and physical impairments are routinely classified as mild, moderate or severe (substantial), although there may be disagreement among physicians at times as to the degree of impairment assigned.

34. Given the circumstances, the opinions of Doctors Duenas and Duchowny are accepted. Accordingly, it must be concluded that the proof fails to support the conclusion that Karina was rendered "permanently and substantially mentally

    and physically impaired" as a consequence of the hypoxic insult she received at birth.

    
    

    CONCLUSIONS OF LAW

    
    

35. 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.

    
    

36. 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.

    
    

37. 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.

    
    

38. 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.

    
    

39. 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. 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

       
       

40. Here, the proof demonstrates that the attending physicians who provided obstetrical services during the birth of Karina were "participating physician[s]" 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. The proof further demonstrates that Karina suffered an injury to the brain caused by oxygen deprivation during the course of labor, delivery or resuscitation in the immediate post-delivery period which resulted in mental and physical impairment. For the reasons set forth in the findings of fact and the conclusions of law which follow, the proof fails, however, to demonstrate that the impairments she suffers are permanent and substantial. Accordingly, Karina was not shown to have suffered a "birth-related neurological injury," as defined by law, and the subject claim is not compensable under the Plan. Sections 766.302(2), 766.309(1) and 766.31(1), Florida Statutes.

    
    

41. 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. (Emphasis added)

    
    

42. Critical to a resolution of petitioners' claim is a determination of whether the injury Karina received to her brain has rendered her "permanently and substantially mentally and physically impaired." Permanent and substantial are not, however, defined by the Plan.

    
    

43. The American Heritage Dictionary of the English Language, New College Edition, defines "permanent" as:

    
    

    . . . 1. Fixed and changeless; lasting or meant to last indefinitely. 2. Not expected to change in status, condition, or place. . . [Middle English, from Old French, from Latin permanens, present participle of permanere, to remain throughout: per-, throughout +

    manere, to remain . . . --per`-ma-nent-ly adv.

    
    

    It further defines "substantial" as:

    
    

    . . . 1. Of, pertaining to, or having substance; material. 2. Not imaginary; true; real. 3.

    Solidly built, strong. 4. Ample, sustaining

    . . . 5. Considerable in importance, value, degree, amount, or extent . . .

    --sub-stan`tial-ly adv.

    
    

44. When, as here, the Legislature has not defined the words used in a phrase, they should usually be given their plain and ordinary meaning. Southeastern Fisheries Association, Inc. v. Department of Natural Resources, 453 So.2d 1351 (Fla. 1984). Where, however, the phrase contains a key word like "substantially," the phrase is plainly susceptible to more than one meaning. Under such circumstances, consideration must be accorded not only the literal or usual meaning of the word, but also to its meaning and effect in the context of the objectives and purposes of the statute's enactment. See, Florida State Racing Commission

    v. McLaughlin, 102 So.2d 574 (Fla. 1958). Indeed, "[i]t is a

    fundamental rule of statutory construction that legislative intent is the polestar by which the court must be guided [in

    construing enactments of the legislative]." State v. Webb, 398 So.3d 820, 834 (Fla. 1981). 4/

    
    

45. Turning to the provisions of the Plan, certain insights may be gleaned regarding the meaning the Legislature intended to ascribe to the word "substantially," and more particularly its use in the phrase "permanently and substantially mentally and physically impaired." First, the Legislature has expressed its intent in Section 766.301(2), Florida Statutes, as follows:

    
    

    It is the intent of the Legislature to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation. This plan shall apply only to birth-related neurological injuries. (Emphasis added)

    
    

    "Catastrophic," an adjective of the noun "catastrophe," is defined by The American Heritage Dictionary of the English Language, New College Edition, as "a great and sudden calamity; disaster." (Emphasis added).

    
    

46. Moreover, at section 766.308, the Legislature provided for a medical advisory panel to review the claim and report its recommendation to the Hearing Officer as to whether the injury is a "birth-related neurological injury." As heretofore noted in the findings of fact, physicians commonly use terms such as "mild," "moderate" and "severe" to describe the scope of an infant's mental or physical injury, and it is meaningful that the Legislature reposed confidence in a panel of physicians to assess an infant's injury and to make a recommendation to the Hearing Officer regarding their opinion as to its substantiality.

    
    

47. Finally, as observed by the court in Humana of Florida, Inc. v. McKaughn, 20 Fla. L. Weekly D565, D567 (Fla. 2d DCA 1995), the Florida Birth-Related Neurological Injury Compensation Plan, like the Worker's Compensation Act, is a "limited statutory substitute for common law rights and liabilities." Accordingly, "because the Plan . . . is a statutory substitute for common law rights and liabilities, it should be strictly construed to include only those subjects clearly embraced within its terms . . . [and] a legal representative of an infant should be free to pursue common law remedies for damages resulting in an injury not encompassed within the express provisions of the Plan."

    Humana of Florida, Inc. v. McKaughn, supra, at page D568. Accord, Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla. 1977), (A statute designed to change the common law rule must speak in clear, unequivocal terms, for the presumption is that no change in the common law was intended unless the statute is explicit in this regard).

    
    

48. Given the Legislature's intent to restrict no-fault coverage under the Plan to "a limited class of catastrophic injuries," as well as the common practice among physicians to use terms such as "mild," "moderate" or "severe" to describe the degree of an infant's injuries, it is concluded that the word "substantially," as used in the phrase "permanently and substantially mentally and physically impaired," denotes a "catastrophic" mental and physical injury, as opposed to one that might be described as "mild" or "moderate."

    
    

49. Applying the foregoing standards to the facts of this case, compels the conclusion, as observed by Doctors Duenas and Duchowny, that Karina's injury did not render her "permanently and substantially mentally and physically impaired." Therefore, the claim is not compensable under the Plan. 5/

    
    

50. 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 Luis Zepeda and Dora Zepeda, on behalf of an as natural guardians of Karina Zepeda, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of May, 1995.

___________________________________

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 10th day of May, 1995.

ENDNOTES

1/ According to petitioners' proposed final order, at page 2, the claim was filed because "they harbored some reasonable uncertainty concerning the compensability of a claim under the Plan." Therefore, this case is distinguishable from Humana of Florida, Inc. v. McKaughan, 20 Fla. L. Weekly D565 (Fla. 2d DCA 1995), and DOAH has jurisdiction to resolve the claim.

2/ The medical records attached to University of Miami exhibit 14, the deposition of Dr. Duenas, included a memorandum of July 21, 1993, from Lawrence Forman to Dr. Duenas with an attached care plan for Karina. Petitioners' objection to the admission of those documents was sustained.

3/ Karina suffers from status eptilepticus which is a form of epilepsy that, when active, can be life-threatening and require hospitalization. Accordingly, Dr. Duenas started Karina on tegretol in addition to delantin and phenobarbital in an effort to control her seizures. Karina has, however, continued to experience such seizures on an intermittent basis every five to eight months, and it cannot be concluded with any certainty that Karina's epilepsy is controllable through the administration of therapeutic medications.

4/ Additionally, it may be helpful to review the legislative history of the statute. See, Asphalt Pavers, Inc. v.

Department of Revenue, 584 So.2d 55 (Fla. 1st DCA 1991). In this regard, the proof demonstrates that the Plan was patterned after a 1987 Virginia law, Sections 38.2-5000 through 38.2-5021, Code of Virginia, entitled the "Virginia Birth-Related Neurological Injury Compensation Act." At the time the Florida Plan was being considered by the Legislature, the Virginia Plan defined "birth-related neurological injury" to mean:

[An] injury to the brain or spinal cord of an infant caused by the deprivation of oxygen or mechanical injury occurring during the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital which renders the infant permanently non-ambulatory, aphasic, incontinent, and in need of assistance in all phases of daily living. This definition shall apply to live births only. See, s. 38.2-5001.

The same language was originally proposed in the Florida Plan, but the Legislature rejected it in favor of the adopted language, and thereby "broadened" the coverage of the Plan.

The legislative history provides no other information pertinent to the Legislature's adoption of the phrase "permanently and substantially mentally and physically impaired" and is, therefore, of little or no value in interpreting that phrase.

5/ It has been suggested by the intervenors, that the test for coverage under the Plan should be one of measuring an infant's motor, language, intellectual, social, vocational and behavioral development against that of a "normal" child.

Presumably, if the injured infant falls below the competitive "norm" in any one of the enumerated categories then the child should be covered under the Plan. The measure of an impairment under the Plan is not, however, how a "normal" child competes but, rather whether the mental and physical injuries are substantial, a benchmark far below the norm.

Moreover, whether an infant suffered profound or catastrophic mental and physical injuries, qualifying for coverage under the Plan, should be manifest and not subject to serious debate. Stated otherwise, a fundamental purpose of the Plan is to "provide a system in which liability is limited and determinative and the remedy is expeditious and independent of proof of fault." Humana of Florida, Inc. v. McKaughan, 20 Fla. L. Weekly D565, D567 (Fla. 2d DCA 1995). To the extent the final order rendered in Birnie v. Florida Birth-Related Neurological Injury Compensation Association, DOAH Case No.

93-2955N, reached a different conclusion or offered a

different standard, its findings and rationale are rejected.

APPENDIX

Petitioners' proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 2.

3. Addressed in paragraph 7.

4. Unnecessary detail or subordinate.

5. Addressed in paragraphs 33 and 34.

6. Addressed in paragraph 28.

7-10. Addressed in paragraphs 22-27.

11-16. Addressed in paragraphs 8-21.

1. Considered, but not particularly persuasive or informative.

2. Addressed in paragraph 28.

3. No paragraph 19 in proposed final order.

20-27. Rejected as subordinate and argumentative. 28-30. Addressed in paragraphs 33 and 34.

31. Rejected as recitation of testimony and not a finding of fact. Moreover, the proof supports the conclusion that Karina's injuries were the consequence of the hypoxic insult she sustained at birth.

33. Rejected as contrary to the proof.

Respondent's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 2.

3. Addressed in paragraph 7.

4. Addressed in paragraphs 6 and 8. 5-26. Addressed in paragraphs 8-21.

   27 and 28. Addressed in paragraphs 28, 33 and 34.

   
   

   The proposed findings of fact contained within the revised proposed order of intervenor, University of Miami, are addressed as follows:

   
   

   1-4. Addressed in paragraphs 1, 2 and 7.

5. Addressed in paragraphs 5 and 6.

6-10. Addressed in paragraphs 8-21. Last sentence of paragraph 10 rejected as unnecessary.

11-15. Addressed in paragraphs 22-27, otherwise subordinate or unnecessary detail. All but first sentence of paragraph 14 rejected as not a fair characterization of the testimony--see paragraph 27.

16. Report considered but not persuasive or informative. Last sentence rejected.

17-20. Addressed in paragraphs 28-34, otherwise unnecessary detail.

COPIES FURNISHED:

(By Certified Mail)

John B. Ostrow, Esquire

201 South Biscayne Boulevard The Miami Center - Suite 1380 Miami, Florida 33131

Stephen T. Maher, Esquire

201 South Biscayne Boulevard The Miami Center - Suite 1500 Miami, Florida 33131

W. Douglas Moody, Jr., Esquire BATEMAN GRAHAM

300 East Park Avenue Tallahassee, Florida 32301

Patricia I. Murray, Esquire Henry Burnett, Esquire Stephen Stark, Esquire Fowler, White, Burnett,

Hurley, Banick & Strickroot, P.A. International Place - 17th Floor

100 Southeast Second Street Miami, Florida 33131-1101

Stephen J. Keating, Esquire Assistant County Attorney Suite 2810

111 N.W. 1st Street Miami, Florida 33128-1993

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 1528

Tallahassee, Florida 32302

Dr. Pablo Edies Delgado c/o University of Miami Jackson Memorial Hospital 1611 N.W. 12th Avenue Miami, Florida 33136

Dr. Gene Burkett

c/o University of Miami Jackson Memorial Hospital 1611 N.W. 12th Avenue Miami, Florida 33136

Ms. Charlene Willoughby Department of Business

and Professional Regulation Consumer Services

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0750

Ms. Tanya Williams

Division of Health Quality Assurance Hospital Section

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Dan Sumner

Acting General Counsel Department of Insurance The Capitol PL LL

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. 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.

==============================================================

===

DISTRICT COURT OPINION

==============================================================

===

NOT FINAL UNTIL TIME EXPIRES

TO FILE REHEARING MOTION

AND, IF FILED, DISPOSITION OF.

UNIVERSITY OF MAIMI, d/b/a IN THE DISTRICT COURT OF APPEAL

UNIVERSITY OF MIAMI SCHOOL OF OF FLORIDA MEDICINE, and THE PUBLIC THIRD DISTRICT

HEALTH TRUST d/b/a JACKSON JULY TERM, A.D. 1996 MEMORIAL HOSPITAL,

vs.

CASE NO. 95-1679

Appellants 95-1615

LOWER TRIBUNAL NO. 94-907N

KARINA ZEPEDA, a minor, by and through her parents and as natural guardians, LUIS and DORA ZEPEDA, and FLORIDA

BIRTH-RELATED NEUROLOGICAL ASSOCIATION,

Appellees.

_______________________________/ Opinion filed April 17, 1996.

An appeal from the Division of Administrative Hearings.

Fowler, White, Burnett, Hurley, Banick, & Strickroot and Steven E. Stark, for appellant, and University of Miami; Robert A. Ginsburg, Dade County Attorney and Stephen J. Keating, Assistant County Attorney, for appellant, Public Health Trust.

Deutsh & Blumberg and James C. Blecke and John B. Ostrow, for appellees, Karina Zepeda and Luis and Dora Zepeda; Pennington, Culpepper, Moore, Wilkinson, Dunbar & Dunlap and Bruce Culpepper and William E. Whitney, for appellee, Neurological Injury Compensation Association.

Before JORGENSON, LEVY and Green, JJ. PER CURIAM.

Appellants appeal a final order of the Division of Administrative Hearings which determined that a birth-related injury sustained by appellee Karina Zepeda was not compensable under Florida's Birth-Related Neurological Injury Compensation Plan [NICA], see sections 766.301-.316, Florida Statutes (1991). 1/ The hearing officer basically concluded, after reviewing conflicting medical opinions, that Karina did not sustain a permanent and substantial mental and physical impairment so as to subject her to the limitations proscribed in the act. We must affirm where as here our review of the record reflects that there was substantial competent evidence to support the hearing officer's determination on this issue and discloses neither an abuse of discretion nor a violation of law by the agency. 2/ s 120.68(10), Fla. Stat. (1991); Carreras v. Florida Birth-Related Neurological Injury Compensation Ass'n, 665 So. 2d 1082 (Fla. 3d DCA 1995); Gershanik v. Department of Professional Regulation, Bd. of Medical Examiners, 458 So. 2d 305 (Fla 3d DCA 1984), rev. denied, 462 So. 2d 1106 (Fla. 1985); Cohen v. School Bd. of Dade County, Fla., 450 So. 2d 1238 (Fla 3d DCA 1984).

Affirmed.

ENDNOTES

1/ As a result of this finding, appellees were not barred from proceeding with their medical malpractice action against appellants in the Dade Circuit Court. S 766.306, Fla. Stat. (1991).

2/ We hasten to point out that because it has been determined in this administrative proceeding that the minor child is not "permanently and substantially mentally and physically impaired," this issue of fact properly before it, as to which the parties have had an adequate opportunity to litigate, the court will apply res judicata or collateral estoppel to enforce repose." United States Fidelity and Guar. Co. v.

Odoms, 444 So.2d 78, 80 (Fla. 5th DCA 1984) (citing Jet Air freight v. Jet Air Freight Delivery, Inc., 264 So. 2d 35 (Fla. 3d DCA), cert. denied, 267 So. 2d 833 (Fla. 1972)).

MANDATE

DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT

UNIIVERSITY OF MIAMI, etc., et al.

vs. DCA No. 95-1679, 95-1615

DOAH Case No. 94-907N

ZEPEDA, etc., et al.

This cause having been brought to this Court by appeal, and after due consideration the Court issued its opinion;

YOU ARE HEREBY COMMANDED that such futher proceedings be had in said cause in accordance with the opinion of ths Court attached hereto and incorporated as part of this order, and with the rules of procedure and laws of the State of Florida

Case No. 94-907N

WITNESS the Honorable ALAN R. SCHWARTZ

Chief Judge of said District Court and seal of said Court at Miami, this 8th day of July, 1996.

___________________________________________

(seal) Louis J. Spallone

Clerk, District Court of Appeal of Florida, Third District

Docket for Case No: 94-000907N

Orders for Case No: 94-000907N