STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIRVISLEY RODRIGUEZ and ALEX )

VALIENTE, on behalf of and as ) natural guardians of ALEN A. ) VALIENTE, a minor, )

)

Petitioners, )

)

vs. ) CASE NO. 94-6204N

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

)

Respondent, )

) MOUNT SINAI MEDICAL CENTER OF ) GREATER MIAMI, INC., )

)

Intervenor. )

)

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 March 10, 1995, in Miami, Florida.

APPEARANCES

For Petitioner: Franklyn B. Glinn, Esquire

Ratiner & Glinn

60 Southwest 13th Street Miami, Florida 33130-4399

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

300 East Park Avenue Tallahassee, Florida 32301

For Intervenor: John D. Kelner, Esquire

1200 Courthouse Tower

44 West Flagler Street Miami, Florida 33130

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

On November 8, 1994, Dirvisley Rodriguez and Alex Valiente, as parents and natural guardians of Alen A. Valiente, 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").

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") a copy of the claim on November 9, 1994. NICA reviewed the claim, and on or about February 9, 1995, gave notice of its determination "that such claim [was] not a `birth-related neurological injury' within the meaning of [Section] 766.302(2), [Florida Statutes]," and requested that the Hearing Officer assigned to the case "enter an order setting a hearing in this cause on the issue of the compensability of this claim."

On February 17, 1995, the petition of Mount Sinai Medical Center of Greater Miami, Inc., for leave to intervene was granted, and on February 20, 1995, the Hearing Officer issued a notice of hearing advising the parties that an evidentiary hearing would be held on March 10, 1995, to determine "whether the injury claimed is a birth-related neurological injury and whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital."

At hearing, with the agreement of the parties, official recognition was taken of the medical records that accompanied the petition for compensation, and petitioners' exhibits 1 and 2 were received into evidence. Respondent called Michael Duchowny, M.D. as a witness, and its exhibit 1 was received into evidence.

The transcript of the hearing was filed May 17, 1995, and the parties were accorded ten days from that date to file proposed final orders. No party elected to file such a proposed order.

FINDINGS OF FACT

1. Alen A. Valiente (Alen) is the natural son of Dirvisley Rodriguez and Alex Valiente. He was born a live infant on June

   13, 1992, at Mount Sinai Medical Center, a hospital located in Miami Beach, Dade County, Florida, and his birth weight was in excess of 2500 grams.

   
   

2. The physician providing obstetrical services during the birth of Alen was Robert Fields, M.D., who was, at all times material hereto, a participating physician in the Florida Birth- Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes.

   
   

3. During the course of Alen's delivery difficulty was encountered with the delivery of his head and vacuum extraction was applied. Subsequently, difficulty was also encountered in the delivery of Alen's body when a shoulder dystocia developed, and upon extraction Alen suffered an injury to his left upper brachial plexus which ultimately evidenced a left upper brachial plexus palsy (Erb's palsy).

   
   

4. Upon delivery, Alen presented with Apgar scores of 4 at one minute and 7 at five minutes, required bagging due to poor respiratory effort, and was transferred to the neonatal intensive care unit (NICU). Upon admission to NICU, Alen was observed to be limp, pale, and suffering respiratory distress, which necessitated the continued administration of oxygen, poor tone was noted in his left upper extremity, and a large cephalhematoma was noted on the surface of the cranial bone.

   
   

5. A CT scan of the brain was performed on June 15, 1992. That scan reflected that Alen had suffered depressed fractures of the right parietal bone with overlying cephalhematoma and underlying subdural hematoma. A CT scan follow-up of June 18, 1992, evidenced decreasing size of the subdural, and the cephalhematoma gradually disappeared over three months.

   
   

6. On June 22, 1992, following treatment for hyperbilirubinemia with phototherapy, Alen was discharged to the care of his parents.

   
   

7. Although Alen suffered perinatal asphyxia, as well as skull fractures, a cephalhematoma and a subdural hematoma, as a consequence of a difficult extraction, the proof fails to demonstrate that he suffered any significant brain insult as a consequence of those events. Indeed, Alen was most recently examined by Michael S. Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital, who observed that, apart from the left upper brachial plexus palsy (Erb's palsy), there were no other clinical manifestations of physical impairment and Alen's mental status was age appropriate. In this regard, it is notable that Alen rolled over at five months, sat at six months, stood at eight months, walked at 10 months, said

   words at twenty months, was fully toilet trained by age two and, consequently, achieved all of his milestones without difficulty. It is further notable that Alen is able to walk without difficulty despite his Erb's palsy, that his speech is well articulated, and his conduct is socially and behaviorally age appropriate.

   
   

8. Given the foregoing, it is the opinion of Dr. Duchowny, which is credited, that, apart from the Erb's palsy, Alen does not suffer any substantial physical impairment and, likewise, does not suffer any substantial mental impairment. As for the Erb's palsy, such physical impairment arose from an injury to "the roots that are outside the spinal cord" (the brachial plexus nerve) and such injury is not, anatomically speaking, an injury to the brain or spinal cord. Accordingly, the proof fails to demonstrate that Alen suffered an "injury to the brain or spinal cord . . . at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period . . . which render[ed] . . . [him] . . . permanently and substantially mentally and physically impaired" so as to be entitled to compensation under the Florida Birth-Related Neurological Injury Compensation Plan. Section 766.302(2), Florida Statutes.

   CONCLUSIONS OF LAW

   
   

9. 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.

   
   

10. 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 Statues.

    
    

11. 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.

12. 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.

    
    

13. 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)(a), Florida Statutes. 1/ An award may be sustained only if the Hearing Officer concludes that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth." Section 766.31(1), Florida Statutes.

       
       

14. 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.

    
    

15. Here, the parties have stipulated that the attending physician who provided obstetric services during the birth of Alen A. Valiente 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 Alen 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 the right brachial plexus injury Alen suffered during delivery was not "a brain or spinal cord injury," and that Alen was not otherwise substantially impaired, mentally or physically. Accordingly, the subject claim is not compensable under the Plan. Sections 766.302(2), 766.309(1) and 766.31(1), Florida Statutes.

16. 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.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

ORDERED that the petition for compensation filed by Dirvisley Rodriguez and Alex Valiente, as parents and natural guardians of Alen A. Valiente, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 9th day of June 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 9th day of June 1995.

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), ("The burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.")

COPIES FURNISHED:

(By Certified Mail)

Franklyn B. Glinn, Esquire Ratiner & Glinn, P.A.

60 Southwest 13th Street Miami, Florida 33130-4399

W. Douglas Moody, Jr., Esquire Bateman Graham

300 East Park Avenue Tallahassee, Florida 32301

John D. Kelner, Esquire 1200 Courthouse Tower

44 West Flagler Street Miami, Florida 33130

Lynn Dickinson, Executive Director Florida Birth-Related Neurological Injury Compensated Association

Post Office Box 1528 Tallahassee, Florida 32302

Dr. Robert Fields

3220 South Douglas Road Miramar, Florida 33025

Mount Sinai Medical Center Legal Department

4300 Alton Road

Miami, Florida 33140

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.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is

ORDERED that the petition for compensation filed by Dirvisley Rodriguez and Alex Valiente, as parents and natural guardians of Alen A. Valiente, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 9th day of June 1995.

Hearin

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 9th day of June 1995.

ENDNOTES

1

Where, as here, NICA disputes the claim, the burden rests

on the claimant to demonstrate entitlement to compensation Section 766.309(1) (a), Florida Statutes. See also, Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349,

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

COPIES FURNISHED:

(See next page)

Docket for Case No: 94-006204N

Orders for Case No: 94-006204N