STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCOTT HOLLINGTON and JEANNE )

HOLLINGTON, as parents and natural ) guardians of KEVIN HOLLINGTON, a ) minor, )

)

Petitioners, )

)

vs. ) CASE NO. 96-2788N

) 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 on November 22, 1996, by video teleconference.

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

PRELIMINARY STATEMENT

On April 1, 1996, Scott and Jeanne Hollington, as parents and natural guardians of Kevin Hollington, 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").

Following receipt of the required medical records on June 13, 1996, DOAH served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on June 13, 1996. NICA reviewed the claim, and on August 6, 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 November 22, 1996.

At hearing, neither petitioners nor anyone on their behalf appeared, and no evidence was offered to support their claim.

Respondent called no witnesses; however, its exhibit 1 (the medical records that were filed with DOAH on June 13, 1996), exhibit 2 (the deposition of Michael Duchowny, M.D.), and exhibit

3 (the deposition of Charles Kalstone, M.D.), were received into evidence.

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 June 13, 1996, which included records relating to Kevin Hollington's (Kevin'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 Kevin had suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes.

   Kevin's birth and development

   
   

2. Kevin was delivered vaginally, with vacuum assistance, at 3:17 a.m., June 8, 1992, at Baptist Hospital of Miami, Miami, Florida. His apgars were normal at birth (7 at one minute and 9 at five minutes), and arterial pH and venous pH were normal at

   7.14 and 7.29, respectively. His newborn course was unremarkable and he was discharged with his mother on June 9, 1992.

3. Kevin was readmitted to the hospital on June 18, 1992, with a history of fever for one day. Evaluation revealed urosepsis, with renal failure and marked dilatation of the kidneys on both sides. A head CT scan was done, which was within normal limits, as well as a electroencephalogram, which was also normal. Kevin was treated with a 10-day course of antibiotics, and discharged on July 2, 1992.

   
   

4. On June 4, 1996, Kevin was examined by Michael Duchowny, M.D., a board certified pediatric neurologist associated with Miami Children's Hospital. Dr. Duchowny's examination revealed evidence of neurologic problems, specifically in the areas of communication, socialization, and motor abilities. Noted were marked impairment of social interaction and communication, and poorly coordinated tongue movements, with drooling. Kevin's eye movements were also observed to be poorly coordinated, and motor exam revealed generalized hypotonia with diminished deep tendon reflexes.

   
   

5. While neurologically impaired, it was Dr. Duchowny's opinion that Kevin's presentation was most consistent with a diagnosis of childhood autism, a developmental abnormality of the brain unassociated with birth asplysia or trauma. Given the lack of any compelling proof of oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation, and the otherwise unremarkable course of Kevin's delivery, Dr. Duchowny's opinion is the most likely explanation of Kevin's presentation and is therefore accepted.

   CONCLUSIONS OF LAW

   
   

6. 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 (1993).

   
   

7. 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.

   
   

8. 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.

   
   

9. 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.

   
   

10. 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 satisfaction 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 rebutt- able 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 resuscit- ation 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), 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.

11. 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.

    
    

12. 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, petitioners failed to sustain that burden.

    
    

13. Notwithstanding petitioners' failing, respondent offered in evidence the medical records associated with Kevin's birth, as well as the opinions of Dr. Kalstone and Dr. Duchowny. As noted in the findings of fact, such proof demonstrated that Kevin 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 Kevin's neurologic impairment, more likely than not, is consistent with childhood autism, a prenatal developmental disorder.

    
    

14. Given the foregoing, the record developed in this case failed to demonstrate that Kevin 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.

    
    

15. Where, as here, the Administrative Law Judge determines that ". . . the injury alleged is not 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 Scott and Jeanne Hollington, as parents and natural guardians of Kevin Hollington, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 12th day of December, 1996.

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 12th day of December, 1996.

COPIES FURNISHED:

Scott and Jeanne Hollington ATTN: Scott Hollington WHMC-PSL

2200 Bergquist Drive, Suite 1 San Antonio, Texas 78236-5300

W. Douglas Moody, Jr., Esquire BATEMAN GRAHAM, P.A.

300 East Park Avenue Tallahassee, Florida 32301

Lynn B. Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association 1435 Piedmont Drive East, Suite D Post Office Box 14567 (32317-4567)

Tallahassee, Florida 32312

Dr. Ronald Sancetta

9275 SW 152nd Street, Suite 214

Miami, Florida 33157-1704

Baptist Hospital of Miami 8900 N. Kendall Drive 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, PL-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: 96-002788N

Orders for Case No: 96-002788N