STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOEL BALTHAZAR and MARIE )
BALTHAZER as parents and natural ) guardians of JEFFERSON BALTHAZAR, ) a minor, )
)
Petitioner, )
)
vs. ) CASE NO. 95-4139N
) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )
)
Respondent. )
___________________________________)
FINAL SUMMARY ORDER OF DISMISSAL
This cause came on for consideration of respondent's motion for summary final order of dismissal, filed October 11, 1996.
STATEMENT OF THE CASE
On August 22, 1995, petitioners, Joel Balthazar and Marie Balthazar, as parents and natural guardians of Jefferson Balthazar, a minor, filed a petition (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"), as established by Section 766.301, et seq., Florida Statutes.
DOAH served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on August 22, 1995. NICA reviewed the claim and on November 8, 1995, 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 an "order [be entered] setting a hearing in this cause on the issue of the compensability of this claim."
A hearing on compensability was initially scheduled for April 11, 1996, but at petitioners' request was rescheduled for July 24, 1996. That hearing was cancelled; however, predicated on the understanding that the case would be disposed of on motion practice, and that such motion would be filed by July 31, 1996. No such motion having been filed, the hearing was rescheduled for October 16, 1996. [See, order of September 6, 1996].
On September 30, 1996, respondent filed the deposition of Michael S. Duchowny, M.D., of record, and on October 11, 1996, respondent filed a motion for summary final order of dismissal, as well as a copy of petitioners' response to its request for witness list wherein petitioners' averred they had no witnesses to contradict the testimony of Dr. Duchowny.
The predicate for respondents' motion for summary final order was stated, as follows:
Jefferson Balthazar's neurological impairment is a result of a diagnosed medical condition of "autism." (Records of Roberto Tuchman, M.D., and Report and Deposition of Michael S. Duchowny, p. 4, lines 24-25, p. 5, lines 1-9) The gravamen of this claim centers around the question of whether or not "autism" could occur as a result of events related to labor, delivery, or resuscitation in the immediate post delivery period.
The deposition of Michael S. Duchowny,
M.D., a physician qualified in the field of child neurology, establishes that autism is not a condition associated with hypoxia or mechanical trauma occurring during labor, delivery, or resuscitation in the immediate post delivery period, but is a disorder acquired by either prenatal malformation of the cerebral hemispheres or genetic trans- mission. (Duchowny deposition p. 14, lines 2-18, p. 16, lines 19-25, p. 17, lines 1-16,
p. 18, lines 11-17)
Petitioners can find no witness to contradict the deposition of Dr. Duchowny and made that position a matter of record by and through Petitioners' "Response to Request for Witness List," filed under Certificate of
Service dated July 25, 1966, a true and correct copy of which is attached hereto as Exhibit 1 to this motion.
On October 15, 1996, a telephone conference was held to address the need to convene the hearing scheduled for October 16, 1996, in light of the pending motion for summary final order. At hearing, the parties agreed that the motion for summary final order should be addressed prior to any hearing. The parties further agreed that petitioners would be accorded ten days from the date of the telephone conference, that is until October 25, 1996, to respond to the motion or dismiss their claim, and that should petitioners take no further action, the motion for summary final order would be disposed of in due course. With such agreement, the hearing scheduled for October 16, 1966, was cancelled. [See, Order of October 22, 1996].
To date, petitioners have taken no further action of record. Consequently, the motion for summary final order has been duly considered.
Pertinent to the motion for summary final order, the record demonstrates that the infant's clinical presentation reveals severe language delay, high activity level, behavioral and social disabilities and mild hypotonia (decreased muscle tone). The record further demonstrates, without dispute, that such presentation is reasonably diagnosed as childhood autism, and that autism is not a condition associated with asphyxia or mechanical trauma occuring during labor, delivery or resuscitation. Rather autism is a structural and functional abnormality of the brain, resulting from either a prenatal malformation of the brain or genetic basis. Consequently, respondent's motion for summary final order is meritorious.
CONCLUSIONS OF LAW
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.
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.
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.
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 Administrative Law Judge 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 Administrative Law Judge in accordance with the provisions of Chapter 120, Florida Statutes. Sections 766.304, 766.307, 766.309 and 766.31, Florida Statutes.
In discharging this responsibility, the Administrative Law Judge must make the following determination based upon the available evidence:
Whether the injury claimed is a birth-related neurological injury. If the claimant has demonstrated, to the satis- faction of the [Administrative Law Judge], 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).
Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resus- citation in the immediate post-delivery period in a hospital; or by a certified nurse midwife in a teaching hospital super-
vised 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 Administrative Law Judge 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.
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.
Here, it is undisputed that the infant's present neurologic condition is a result of autism, and that autism is either a genetic or congenital abnormality. Accordingly, the subject claim is not compensable under the Plan. Section 766.302(2), Florida Statutes.
Where, as here, the Administrative Law Judge 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 Joel Balthazar and Marie Balthazar, as parents and natural guardians of Jefferson Balthazar, a minor, be and the same is hereby dismissed with prejudice.
DONE AND ORDERED this 4th day of November, 1996, in Tallahassee, Leon County, Florida.
___________________________________ WILLIAM J. KENDRICK
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(904) 488-9675 SUNCOM 278-9675
Fax Filing (904) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1996.
COPIES FURNISHED:
(By certified mail)
David A. Hoines, Esquire Hoines and Rose
1290 East Oakland Park Boulevard Suite 200
Fort Lauderdale, Florida 33334
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
Maria A. Peinado, M.D. 8250 Southwest 33rd Paris Miami, Florida 33155-3318
Jackson North Maternity Center Legal Department
14701 Northwest 27th Avenue Miami, Florida 33054
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.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 04, 1996 | DOAH Final Order | Cause of infant`s neurologic condition was autism, which is either a genetic or congenital abnormality. Therefor claim not covered under the plan. |
