STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ETTA EVANS and JOHN EVANS, as )

parents and natural guardians of ) KYNDALL EVANS, a minor, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3893N

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

)

Respondent. )

)

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 April 16, 1996, in Pensacola, Florida.

APPEARANCES

For Petitioner: Etta Evans and John Evans, pro se

1902 West Gonzalez Street Pensacola, Florida 32501

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

BATEMAN GRAHAM, P.A.

300 East Park Avenue Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Kyndall Evans, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On or about February 21, 1995, Etta Evans and John Evans, as parents and natural guardians of Kyndall Evans, 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") with a copy of the claim, and on December 14, 1995, NICA 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."

Pursuant to notice, a hearing was held on April 16, 1996, to address the issue of compensability. At hearing, the parties stipulated to the factual matters contained in paragraphs 1 and 2 of the findings of fact, and the medical records filed with DOAH on August 4, 1995, were received into evidence as joint exhibit

1. Etta Evans testified on behalf of petitioners. Petitioners offered no further exhibits. Respondent called no witnesses; however, its exhibit 1 (the deposition of Michael Duchowny, filed April 26, 1996) was received into evidence.

   
   

   The transcript of the hearing was not ordered; however, the record remained open for the filing of Dr. Duchowny's deposition (respondent's exhibit 1), and the parties were accorded ten days from that date to file proposed final orders. Dr. Duchowny's deposition was filed April 26, 1996, but neither party elected to file a proposed order.

   
   

   FINDINGS OF FACT

   
   

   1. Etta Evans and John Evans are the parents and natural guardians of Kyndall Evans (Kyndall), a minor. She was born a live infant on April 11, 1994, at Baptist Hospital, a hospital duly licensed in the State of Florida and located in Pensacola, Florida. Kyndall's birth weight was in excess of 2500 grams.

      
      

   2. The physician providing obstetrical services during the birth of Kyndall was Reginald A. Woods, 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. Kyndall's delivery at Baptist Hospital on April 11, 1994, was apparently difficult due to her large birth weight, and when delivered she was noted to have suffered an injury to her upper right brachial plexus, an Erb's palsy, which affected her range of motion on the upper right extremity, including the arm,

      forearm and hand. With therapy, her range of motion had significantly improved by the time she was 15 months of age.

      
      

   4. A brachial plexus injury, such as that suffered by Kyndall during the course of her birth, is not, anatomically, a brain or spinal cord injury, and does not affect her mental abilities. Moreover, apart from the brachial plexus injury, Kyndall did not suffer any other injury during the course of her birth. Consequently, the proof fails to demonstrate that Kyndall suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during the course of labor or delivery, and further fails to demonstrate she is presently permanently and substantially mentally and physically impaired.

      CONCLUSIONS OF LAW

      
      

   5. 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.

      
      

   6. 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.

      
      

   7. 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.

      
      

   8. If NICA determines that the injury alleged in a claim is a compensable birth-related neurological injury, it may award compensation to the claimant, provided that the award is approved by the Hearing Officer to whom the claim has been assigned. Section 766.305(6), Florida Statutes. If, on the other hand, NICA disputes the claim, as it has in the instant case, the dispute must be resolved by the assigned Hearing Officer in accordance with the provisions of Chapter 120, Florida Statutes. Sections 766.304, 766.307, 766.309 and 766.31, Florida Statutes.

   9. In discharging this responsibility, the Hearing Officer must make the following 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. 766.303(2).

      2. Whether obstetrical services were de- livered 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 partici- pating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital.

         Section 766.309(1), Florida Statutes. 1/ An award may be sustained only if the Hearing Officer concludes that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth." Section 766.31(1), Florida Statutes.

         
         

   10. Pertinent to this case, "birth-related neurological injury" is defined by Section 766.302(2), Florida Statutes, to mean:

       
       

       . . . injury to the brain or spinal cord of a live infant weighing at least 2,500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the

       immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired.

       This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality.

       
       

   11. Here, the proof demonstrated that the attending physician who provided obstetric services during the birth of

       Kyndall Evans 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 Kyndall Evans has not suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. As noted in the findings of fact, the record demonstrated that a brachial plexus injury was not "a brain or spinal cord injury" and, moreover, that Kyndall Evans was not "permanently and substantially mentally and physically impaired." Accordingly, the subject claim is not compensable under the Plan. Sections 766.302(2), 766.309(1) and 766.31(1), Florida Statutes.

   12. Where, as here, the Hearing Officer determines that ".

. . the injury alleged is not a birth-related neurological injury

. . . he [is required to] enter an order [to such effect] and . .

. cause a copy of such order to be sent immediately to the parties by registered or certified mail." Section 766.309(2), Florida Statutes. Such an order constitutes final agency action subject to appellate court review. Section 766.311(1), Florida Statutes.

CONCLUSION

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

ORDERED that the petition for compensation filed by Etta Evans and John Evans, as parents and natural guardians of Kyndall Evans, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 17th day of May 1996 in Tallahassee, Leon County, Florida.

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 17th day of May 1996.

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)

Mr. and Mrs. John Evans 1902 West Gonzalez Street Pensacola, Florida 32501

W. Douglas Moody, Jr., Esquire Bateman Graham, P.A.

300 East Park Avenue Tallahassee, Florida 32301

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 14567 Tallahassee, Florida 32317-4567

Reginald Woods, M.D.

1025 C West Mareno Street Pensacola, Florida 32501

Baptist Hospital Legal Department

1101 West Moreno Street Pensacola, Florida 32501

Ms. Tanya Williams

Agency for Health Care Administration Division of Health Quality Assurance Hospital Section

2727 Mahan Drive

Tallahassee, Florida 32308

Ms. Charlene Willoughby Department of Business and

Professional Regulation Consumer Services

1940 North Monroe Street Tallahassee, Florida 32399-0784

Dan Sumner, General Counsel Department of Insurance

The Capitol, Plaza Level 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. 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: 95-003893N

Orders for Case No: 95-003893N