STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERNEST HOWARTH and SHERRI HOWARTH, )

as parents and natural guardians ) of TONY HOWARTH, a deceased minor, )

)

Petitioners, )

)

vs. ) CASE NO. 96-3005N

) 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 7, 1996, in St. Petersburg, 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 Tony Howarth, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On May 15, 1996, Ernest Howarth and Sherri Howarth, as parents and natural guardians of Tony Howarth, a deceased 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 the filing of required medical records on June 26, 1996, DOAH served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on June 27, 1996. NICA reviewed the claim, and on or about August 12, 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 7, 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.), and exhibit 2 (the medical records that were filed with DOAH on June 26, 1996), 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 26, 1996, which relate to the birth of Tony Howarth (Tony) as well as the opinion of Charles Kalstone, M.D., a board certified obstetrician, to affirmatively resolve the issue as to whether Tony had suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes.

   Mrs. Howarth's antepartum course and Tony's birth

   
   

2. The records reflect that Mrs. Howarth was a 28-year-old gavida 5, para 3, aborthion 2, female, whose antepartum course was relatively uncomplicated.

   
   

3. On September 5, 1995, with an estimated date of confinement of November 7, 1995, Mrs. Howarth was seen by her obstetrician, and no problems were noted. Routine ultrasound on September 20, 1995, was likewise unremarkable, and revealed good growth with normal amniotic fluid volume.

   
   

4. On October 5, 1995, Mrs. Howarth presented at the offices of her obstetrician for a routine appointment. At the

   time, her physician was unable to obtain an adequate fetal heart tone, and ultrasound reflected a fetal heart rate of 50 to 60 beats per minute. Consequently, emergency medical services (911) was called, and Mrs. Howarth was transported to Bayfront Medical Center, St. Petersburg, Florida, for immediate evaluation.

   
   

5. Mrs. Howarth arrived at Bayfront Medical Center at or about 11:30 a.m., October 5, 1995, and, while still on the ambulance stretcher, examination with ultrasound revealed an absence of any fetal heart rate. Consequently, an emergency cesarean section was proposed.

   
   

6. Mrs. Howarth was immediately transported to the operating room on the stretcher, where she was admitted at 11:33 a.m., and placed on the operating room table. At the time, a sonogram was placed on her abdomen, which revealed a vertex- presenting fetus with no visible heart rate.

   
   

7. Once general endotracheal anesthesia was induced, the initial incision was made. When entered, the uterine cavity delivered clear amniotic fluid, and Tony was delivered at 11:39

   a.m. There was no evidence of nuchal cord or prolapsed cord.

   
   

8. Tony present with Apgars of 0 at one minute, 3 at five minutes, and 3 at ten minutes, with a cord pH of 7.10. Tony underwent immediate resuscitation by the neonatal intensive care unit specialist and, following resuscitation, was transferred to the neonatal intensive care unit at All Children's Hospital where, following the discontinuance of life support, he expired on October 6, 1995.

   
   

   Tony's injury and its timing

   
   

9. Here, the proof demonstrates that Tony suffered severe bradycardia, resulting in severe hypoxic encephalopathy, which ultimately culminated in his death when life-support was discontinued. However, the proof further demonstrates that the severe oxygen deprivation he suffered, and resultant injury to his brain at 35 weeks gestation, occurred without the onset or presence of labor and prior to Mrs. Howarth's presentation to her obstetrician's offices on October 5, 1995. Consequently, the injury Tony received to his brain, caused by oxygen deprivation, did not occur "in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital," as required for coverage under the Plan. Section 766.302(2), Florida Statutes.

   CONCLUSIONS OF LAW

   
   

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 "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.

    
    

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 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.

    
    

14. 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 rebuttable 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 resuscitation 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.

       
       

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 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.

    
    

16. 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.

    
    

17. Notwithstanding petitioners' failing, respondent offered in evidence the medical records associated with Tony's birth, as well as the opinion of Dr. Kalstone. As noted in the findings of fact, such proof demonstrated that, although Tony suffered an injury to the brain caused by oxygen deprivation which ultimately culminated in his death when life-support was discontinued, the injury Tony suffered did not occur "in the course of labor, delivery, or resuscitation in the immediate

    post-delivery period in a hospital." Section 766.302(2), Florida Statutes. Consequently, 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 Ernest Howarth and Sherri Howarth, as parents and natural guardians of Tony Howarth, a deceased minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 5th day of December, 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 5th day of December, 1996.

COPIES FURNISHED:

(By certified mail)

Ernest and Sherri Howarth 2927 56th Avenue North

St. Petersburg, Florida 33714

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 Post Office Box 14567 Tallahassee, Florida 32317-4567

David Desper, M.D. 5501 4th Street North

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: 96-003005N

Orders for Case No: 96-003005N