STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTIAN THEODORE as parent and ) natural guardian of EMMANUEL ) THEODORE, a minor, )

)

Petitioners, )

)

vs. ) Case No. 96-4327N

) 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 May 21, 1997, by video teleconference.

APPEARANCES

For Petitioner: Manuel Epelbaum, Esquire

Robert J. Dickman, P.A. Dickman Building

4500 LeJeune Road

Coral Gables, Florida 33146

For Respondent: W. Douglas Moody, Jr., Esquire

Graham & Moody, P.A.

101 North Gadsden Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

At issue in this proceeding is whether Emmanuel Theodore, a minor, suffered an injury for which compensation should be

awarded under the Florida Birth-Related Neurological Injury

Compensation Plan.

PRELIMINARY STATEMENT

On September 13, 1996, Christian Theodore, as parent and natural guardian of Emmanuel Theodore, 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 September 16, 1996. NICA reviewed the claim, and on December 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 duly scheduled for May 21, 1997.

At hearing, the parties stipulated to the matters set forth in paragraphs 1 and 2 of the findings of fact, and that the medical records filed with DOAH on September 13, 1996, would be received in evidence as Petitioner's Exhibit 1. Respondent's Exhibit 1 (the deposition of Michael Duchowny, M.D.) was also received into evidence.

The transcript of the hearing was filed June 12, 1997, and the parties were accorded ten days from that date to file proposed final orders. Neither party elected to file such a proposal.

FINDINGS OF FACT

Fundamental findings

1. Christian Theodore is the father and natural guardian of Emmanuel Theodore (Emmanuel), a minor. Emmanuel was born a live infant on September 15, 1991, at St. Mary's Hospital, a hospital located in West Palm Beach, Florida, and his birth weight was in excess of 2500 grams.

2. The physician providing obstetrical services during the birth of Emmanuel was Annie Dawn-Marie Graham, 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.

   Coverage under the Plan

   
   

3. Pertinent to this case, coverage is afforded under the Plan when the claimant demonstrates, more likely than not, that the infant suffered an "injury to the brain or spinal cord . . . cause 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." Sections 766.302(2) and 766.309(1)(a), Florida Statutes.

4. Here, the parties argued, at hearing, that Emmanuel's neurologic motor status was most likely dispositive of the subject claim. Consequently, no proof was offered regarding his mental status and, given the conclusions which follow, it was unnecessary to address whether any untoward events occurred during the course of Emmanuel's birth.

   Emmanuel's neurologic motor status

   
   

5. On November 7, 1996, following the filing of the claim for compensation, Emmanuel was examined by Michael Duchowny, M.D., a board certified pediatric neurologist. Dr. Duchowny's examination of Emmanuel's neurological motor status revealed normal muscle strength, bulk, and tone; no unusual movements or weakness of the lymphs or trunk; and, no muscle atrophy. Hands were held in a very steady fashion without posturing, and Emmanuel completed finger-to-nose and other tasks of coordination without difficulty. Fine motor coordination was similarly intact, without asymmetries. Finally, muscle strength with respect to gait was noted as normal and, despite prominent pes planus (flat feet), there were no difficulties in Emmanuel's ability to stand and walk. In Dr. Duchowny's opinion, which is credited, Emmanuel's motor status was normal, or, stated otherwise, he evidenced no physical impairment.

   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.

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 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 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.

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 claimant, the burden rests on Petitioner 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.")

13. Here, the proof demonstrated that Emmanuel suffered no physical impairment, much less a substantial physical

    impairment. Consequently, the record developed in this case fails to demonstrate that Emmanuel suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative

    Hearings, 686 So. 2d 1349 (Fla. 1997). Accordingly, the subject claim is not compensable under the Plan. Sections 766.302(2), 766.309(1), and 766.31(1), Florida Statutes.

14. 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 Christian Theodore, as parent and natural guardian of Emmanuel Theodore, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 27th day of June, 1997, 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 27th day of June, 1997.

COPIES FURNISHED:

(By certified mail)

Manuel Epelbaum, Esquire Robert J. Dickman, P.A. Dickman Building

4500 LeJeune Road

Coral Gables, Florida 33146

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

101 North Gadsden Street Tallahassee, Florida 32301

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

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

Annie Dawn-Marie Graham, M.D. 1500 North Dixie Highway

West Palm Beach, Florida 33401

St. Mary's Hospital Legal Department 901 45th Street

West Palm Beach, Florida 33407

Ms. Charlene Willoughby

Agency for Health Care Administration Consumer Services Unit

Post Office Box 14000 Tallahassee, Florida 32308

Dan Sumner, General Counsel Department of Insurance

The Capitol, Lower Level 26 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: 96-004327N

Orders for Case No: 96-004327N