STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DERRICK L. KING and HEATHER HOLLIS, )

as parents and natural guardians of ) DERRICK L. KING, JR., a minor, )

)

Petitioners, )

)

vs. ) Case No. 99-0932N

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

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on September 30, 1999, by video teleconference, with sites in Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: George H. Anderson, III, Esquire

Best & Anderson, P.A. 1201 East Robinson Street Orlando, Florida 32801

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

Graham, Moody & Sox P.A.

101 North Gadsden Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Derrick L. King, Jr., a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On February 19, 1999, Derrick L. King and Heather Hollis, as parents and natural guardians of Derrick L. King, 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 March 1, 1999. NICA reviewed the claim, and on March 17, 1999, 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 such issue]." Such a hearing was held on September 30, 1999.

At hearing, the parties stipulated to the factual matters set forth in paragraphs 1 and 2 of the Findings of Fact, and Joint Exhibit 1 (the medical records filed with DOAH on February 19, 1999) was received into evidence. Respondent's Exhibit 1 (the deposition of Michael Duchowny, M.D.), was also received into evidence. No other exhibits were offered, no

witnesses were called, and the transcript of the hearing was not ordered. The parties waived their opportunity to file proposed final orders.

FINDINGS OF FACT

Fundamental findings

1. Derrick L. King and Heather Hollis are the parents and natural guardians of Derrick L. King, Jr. (Derrick), a minor. Derrick was born a live infant on March 18, 1997, at Indian River Memorial Hospital, a hospital located in Vero Beach, Florida, and his birth weight was in excess of 2500 grams.

2. A "participating physician," as defined by Section 766.302(7), Florida Statutes, delivered obstetrical services during the course of Derrick's birth.

   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 . . . 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." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, Derrick's neurologic condition is dispositive of the claim and it is unnecessary to address the timing or cause of his condition. Derrick's neurologic status

4. On June 17, 1999, following the filing of the claim for compensation, Derrick was re-evaluated by Michael Duchowny, M.D.,

   a board-certified pediatric neurologist. The results of Dr. Duchowny's examination were reported as follows:

   PHYSICAL EXAMINATION reveals Derrick to be alert and cooperative. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal.

   
   

   NEUROLOGIC EXAMINATION reveals a socially oriented child who does not express himself in words. He gestures for his needs, but is clearly tuned into the social situation. His vision and hearing status seem to be intact. He drools frequently. There is a clear left hand preference, although the right hand will grasp for objects. His eye contact is good. There are full extraocular movements and normal ocular fundi. The deep tendon reflexes are 2 to 3+ bilaterally with flexor plantar responses. Derrick clearly prefers to grasp with the left hand, although there is no obvious weakness on the right. His gait is somewhat asymmetric with diminished right arm swing.

   
   

   In SUMMARY, Derrick's examination shows evidence of developmental language problems and functional diminished use on the right side. However, his muscle strength is clearly good and he has full range of motion without contractures or spasticity.

   
   

   In Dr. Duchowny's opinion, which is credited, Derrick's neurologic impairment may best be described as mild to moderate, as opposed to substantial. Consequently, Derrick is not substantially mentally and physically impaired.

   CONCLUSIONS OF LAW

   
   

5. 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.

6. 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.

7. 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. 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.

8. 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.

   
   

9. 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.

10. 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.

11. 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.")

12. Here, the proof demonstrated that notwithstanding any events which may have occurred at birth, Derrick has not been rendered permanently and substantially mentally and physically impaired. Consequently, the record developed in this case fails to demonstrate that Derrick 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.

13. 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 Derrick L. King and Heather Hollis, as parents and natural guardians of Derrick L. King, Jr., a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 1st day of October, 1999, 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 1st day of October, 1999.

COPIES FURNISHED:

(By certified mail)

George H. Anderson, III, Esquire Best & Anderson, P.A.

1201 East Robinson Street Orlando, Florida 32801

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

101 North Gadsden Street Tallahassee, Florida 32301

Lynn Larson, Executive Director Florida Birth-Related Neurological

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

Nancy Smith, Certified Nurse Midwife Partners in Women's Health

777 37th Street

Vero Beach, Florida 32960

Indian River Memorial Hospital Legal Department

1000 36th Street

Vero Beach, Florida 32960

Ms. Charlene Willoughby

Agency for Health Care Administration Consumer Services Unit

Post Office Box 14000 Tallahassee, Florida 32308

Daniel Y. 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: 99-000932N

Orders for Case No: 99-000932N