STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELIZABETH JAZON and WILLIAM )

JAZON as parents and natural ) guardians of DANIEL JAZON, a ) minor, )

)

Petitioners, )

)

vs. ) CASE NO. 95-4397N

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

)

Respondent. )

___________________________________)

FINAL ORDER

On May 14, 1996, a hearing was held in the above-styled case at which time the parties stipulated to certain factual matters, discussed more fully in the preliminary statement which follows, and agreed to submit this case for resolution on a stipulated record.

APPEARANCES

For Petitioner: Joseph J. Mandina, Esquire

Downs and Mandina, P.A.

300 Sevilla Avenue, Suite 305 Coral Gables, Florida 33134

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 Daniel Jazon, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On August 7, 1995, Elizabeth Jazon and William Jazon, as parents and natural guardians of Daniel Jazon, 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 on September 6, 1995, and on October 13, 1995, petitioners filed an amended claim for benefits.

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 the Hearing Officer "enter an order setting a hearing in this cause on the issue of the compensability of this claim." The need for such a hearing was obviated on May 14, 1996, when the parties agreed to submit the case for resolution on an agreed record.

The record agreed to by the parties consists of the parties' stipulation to findings of fact 1 and 2 which follow, as well as the medical records filed with the claim for compensation, which were received in evidence as joint exhibit 1, and the deposition of Kenneth Butler, M.D. (filed May 14, 1996), which was received into evidence as joint exhibit 2.

The parties further agreed that if they were to proceed to hearing they would offer no other proof. See, Order of May 15, 1996.

By order of May 15, 1996, the parties were accorded fifteen days to file proposed final orders. Neither party elected to file such a proposal.

FINDINGS OF FACT

Fundamental findings

1. Daniel Jazon (Daniel) is the natural son of Elizabeth Jazon and William Jazon. He was born a live infant on May 8, 1993, at Baptist Hospital, a hospital duly licensed in the State of Florida and located in Miami, Dade County, Florida. Daniel's birth weight exceeded 2,500 grams.

   
   

2. The physician providing obstetrical services during the birth of Daniel was George Battle, M.D., who was, at all

   times material hereto, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.

   
   

   Daniel's birth and subsequent condition

   
   

3. A review of the medical records reveals that Daniel was born full term after an essentially uncomplicated pregnancy. Total labor time was approximately 17 hours, and progressed slowly. During the last hour variable decelerations occurred and brief episodes of fetal bradycardia, so delivery was assisted by vacuum and outlet forceps were used.

   
   

4. Daniel cried and breathed immediately at birth, and his Apgar scores were noted as 7 at one minute and 9 at five minutes. He was noted to be mildly sluggish at birth, but improved with tactile stimulation and blow-by oxygen. Daniel was also noted not to move his left arm for approximately three minutes.

   
   

5. Daniel was transferred to the regular nursery, but fed poorly. At approximately seven hours of age jitteriness was noted, followed by episodes of rhythmic jerking of the left arm and leg lasting up to nine minutes. Upon transfer to the neonatal intensive care unit, similar seizure activity was noted, so Daniel was loaded with phenobarbital.

   
   

6. A CT scan of the brain revealed a right temporal parietal infarct. A neurological consultation by Kenneth Butler, M.D., on May 9, 1993, observed definite weakness in the left upper extremity and diminished reflexes on the left side.

   
   

7. Daniel evidenced further focal seizure activity on May 10, 1993, involving the left chest, shoulder, arm and hand, and was started on Dilantin. Daniel remained seizure- free, and a CT scan of the brain on May 12, 1993, revealed the right temporal parietal infarct without any change, which demonstrated, more likely than not, that the infarct was old and predated labor and delivery. 1/

   
   

8. Daniel remained seizure free, and was discharged to the care of his mother on May 27, 1993. At discharge, his neurological examination remained abnormal, with hypotonia, hyperreflexia and ankle clonus.

9. Following discharge, Daniel continued to be followed by Dr. Butler. His examinations of June 22, 1993, September 10, 1993, November 9, 1993, and March 10, 1994, reveal that the physical impairments Daniel suffered as a consequence of his right temporal infarct progressively resolved and, as of his last examination, no significant physical or neurologic deficits were observed.

   
   

   CONCLUSIONS

   
   

10. 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.

    
    

11. The Florida Birth-Related Neurological Injury Compensation Plan (the "Plan") was established by the Legislature "to provide compensation, on a no fault basis, for a limited class of catastrophic injuries, [defined as 'birth- related neurological injuries' in the Plan]" relating to births occurring on or after January 1, 1989. Humana of Florida, Inc. v. McKaughn, 20 Fla.L.Weekly D565, D567 (Fla. 2d DCA 1995), and Section 766.303(1), Florida Statutes.

    
    

12. 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.

    
    

13. 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.

14. 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 im- paired, a rebuttable presumption shall arise that the injury is a birth-related neurologi- cal 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, de- livery, or resuscitation in the immediate post-delivery period in a hospital.

       
       

       Section 766.309(1), Florida Statutes. 2/ 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.

       
       

15. 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 immedi- ate post-delivery period in a hospital, which renders the infant permanently and substan- tially 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.

16. Here, the proof demonstrated that Daniel was born a live infant, that his birth weight was in excess of 2,500 grams, and that the physician who provided obstetrical services during the course of his birth was a "participating physician" as that term is defined by Section 766.302(7), Florida Statutes. However the record developed in this case failed to demonstrate that Daniel suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes, since it failed to support the conclusion that Daniel suffered any injury to his brain or spinal cord caused by oxygen deprivation or mechanical injury during labor, delivery or resuscitation in the immediate post- delivery period which rendered him permanently and substantially mentally and physically impaired. Sections 766.302(2), 766.309(1) and 766.31(1), Florida Statutes. Rather, the proof demonstrated that the right temporal parietal infarct Daniel suffered occurred prior to labor and delivery, and that currently Daniel is not permanently and substantially mentally and physically impaired.

    
    

17. 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 Elizabeth Jazon and William Jazon, as parents and natural guardians of Daniel Jazon, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 10th day of June, 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 10th day of June, 1996.

ENDNOTES

1/ Such was the opinion of Dr. Butler, a board certified pediatric neurologist, whose opinion is credited.

2/ 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)

Joseph J. Mandina, Esquire Downs & Mandina, P.A.

300 Sevilla Avenue, Suite 305 Coral Gables, Florida 33134

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

300 East Park Avenue Tallahassee, Florida 32301

Lynn Hightower, Executive Director Florida Birth-Related Neurological

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

George Battle, M.D.

9000 Southwest 152nd Street, No. 202

Miami, Florida 33157-1942

Baptist Hospital Legal Department

8900 Southwest 88th Street Miami, Florida 33176

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: 95-004397N

Orders for Case No: 95-004397N