STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SONYA HARRIS and ERNEST JAMES HALL, )

as parents and natural guardians of ) ERNEST HALL, JR., a minor, )

)

Petitioners, )

)

vs. ) CASE NO. 96-2315N

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

)

Respondent. )

____________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case October 23, 1996, in Gainesville, Florida.

APPEARANCES

For Petitioners: No appearance at hearing.

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

PRELIMINARY STATEMENT

On March 6, 1996, Sonya Harris and Ernest James Hall, as parents and natural guardians of Ernest Hall, Jr., 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").

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on May 16, 1996. NICA reviewed the claim, and on or about July 16, 1996, 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." Such a hearing was held on October 23, 1996.

At hearing, neither petitioners nor anyone on their behalf appeared, and no evidence was offered to support their claim. Respondent's exhibit 1 (the deposition of Charles Kalstone, M.D.), exhibit 2 (the deposition of Michael Duchowny, M.D.), and exhibit 3 (the medical records that were filed with DOAH on May 15, 1996), were received into evidence.

At the conclusion of the hearing, the parties were accorded five days to file proposed final orders. Neither party elected to file such a proposal.

FINDINGS OF FACT

Initial observations

1. As observed in the preliminary statement, neither petitioners nor anyone on their behalf appeared at hearing, and no proof was offered to support their claim. Ordinarily, such failing would be dispositive of the case; however, notwithstanding petitioners' failure of proof, respondent elected to offer into evidence the medical records filed with DOAH on May 15, 1996, which included records relating to Ernest Hall, Jr.'s (Ernest's) birth and subsequent development, as well as the opinions of Charles Kalstone, M.D., a board certified obstetrician, and Michael Duchowny, M.D., a board certified pediatric neurologist, to affirmatively resolve the issue as to whether Ernest had suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes.

   Ernest's birth and development

   
   

2. Ernest was delivered vaginally at 2:17 a.m., June 1, 1991, at Shands Hospital, the University of Florida, Gainesville, Florida. His Apgars were normal at birth (9 at one minute and 9 at five minutes) and arterial pH from the umbilical cord was normal at 7.19.

   
   

3. Earnest's newborn course was characterized by anemia, transient thrombcytopenia, and prenatally acquired cytomegalovirus. Where, as here, the cytomegalovirus (CMV) was acquired prenatally, it has the potential to cause brain damage in the fetus, as well as hearing impairment, chorioretinitis (inflammation of the eye) and other central nervous system abnormalities. Consequently, Ernest was placed on a ten day regimen of Ampicillin and Gentamicin.

   
   

4. A head CT taken on June 5, 1991, revealed periventricular calcification and probably parenchymal calcification consistent with a prenatal infection such as CMV. Notably, following insult, it would require several weeks for such calcifications to occur.

   
   

5. Due to the high risk factor associated with CMV, Ernest's auditory brain stem response was evaluated on June 7, 1991. At the time, his response was noted to be within normal limits; however, follow-up was recommended in six months since he was at risk for hearing loss due to CMV. Ernest was discharged to his parents care on June 10, 1991.

   
   

6. On February 28, 1994, Ernest was re-evaluated, and those results indicated a severe sensorineural hearing loss in the sound field.

   
   

7. On June 19, 1996, Ernest was examined by Michael Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital. Dr. Duchowny's neurologic examination revealed evidence of marked hearing impairment with both expressive and receptive language delay, a left ptosis (drooping of the upper eyelid) and exotropia (a deviation of the visual axis of one eye away from that of the other) with chorioretinitis (inflammation of the choroid and retina). In Dr. Duchowny's opinion, which is credited, such findings were consistent with early CMV exposure, and placed Ernest at risk for significant cognitive delay, accentuated by his hearing impairment. Ernest's motor abilities were, however, noted to be age appropriate.

8. As for the cause of Ernest's neurological injury, it must be concluded that the proof fails to demonstrate that it resulted from a brain or spinal cord injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation. Rather, the proof demonstrates, more likely than not, that Ernest's neurologic impairments derive from a congenital CMV infection, which predated his birth by several weeks.

   
   

   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 Statutes.

    
    

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 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.

13. In discharging this responsibility, the Administrative Law Judge 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 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).

       
       

    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.

       
       

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. As the claimants, the burden rests on petitioners 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.") By failing to appear and offer any proof, petitioner failed to sustain that burden.

    
    

16. Notwithstanding petitioners' failing, respondent offered in evidence the medical records associated with Ernest's birth, as well as the opinions of Dr. Kalstone and Dr. Duchowny. As noted in the findings of fact, such proof demonstrated that Ernest did not suffer an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation, but that Ernest's neurologic impairment resulted from a congenital CMV predating birth by at least several weeks. Moreover, Ernest was not shown to be permanently and substantially physically impaired.

    
    

17. Given the foregoing, the record developed in this case failed to demonstrate that Ernest suffered a "birth- related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. Accordingly, the subject claim is not compensable under the Plan. Sections 766.302(2), 766.309(1), and 766.31(1), Florida Statutes.

    
    

18. 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 Sonya Harris and Ernest James Hall, as parents and natural guardians of Ernest Hall, Jr., a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 6th day of November, 1996, in Tallahassee, 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 6th day of November, 1996.

COPIES FURNISHED:

(By certified mail)

Sonya Harris Ernest James Hall 631 W. Avenue

Live Oak, Florida 32060

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

Linda Morgan, M.D.

3330 Southwest 81st Street Gainesville, Florida 32607-4702

Shands Hospital Legal Department

1600 Southwest Archer Road Gainesville, Florida 32610

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: 96-002315N

Orders for Case No: 96-002315N