STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LISA L. SAUL and CRAIG SAUL, as )

parents and natural guardians of ) MICHAEL AARON SAUL, a minor, )

)

Petitioners, )

)

vs. ) Case No. 99-5103N

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

)

Respondent, )

)

and )

) LEESBURG REGIONAL MEDICAL CENTER, ) INC.; MANUEL ALVARADO, M.D. and ) MANUEL ALVARADO, M.D., P.A.; and ) SHIVAKUMAR S. HANUBAL, M.D. and ) SHIVAKUMAR S. HANUBAL, M.D., P.A., )

)

Intervenors. )

)

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 June 16, 2000, by video teleconference, with sites in Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: Scot D. Warner, Esquire

Maher, Gibson and Guiley, P.A.

90 East Livingston Street, Suite 200 Orlando, Florida 32801

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

Graham, Moody & Sox, P.A.

101 North Gadsden Street Tallahassee, Florida 32301

For Intervenor Leesburg Regional Medical Center:

Andrew Vlahos, Esquire Hill, Reis, Adams, Hall

& Schieffelin, P.A.

1417 East Concord Street Orlando, Florida 32853

For Intervenors Manuel Alvardo, M.D. and Manuel Alvardo, M.D., P.A.:

Susan Kennedy, Esquire McEwan, Martinez, Luff, Dukes

& Ruffier, P.A.

108 East Central Boulevard Orlando, Florida 32853

For Intervenors Shivakumar S. Hanubal, M.D. and Shivakumar

S. Hanubal, M.D., P.A.:

Joseph D. Tessitore, Esquire Motes & Carr, P.A.

3191 Maguire Boulevard, Suite 160

Orlando, Florida 32802 STATEMENT OF THE ISSUE

At issue in this proceeding is whether Michael Aaron Saul, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury

Compensation Plan.

PRELIMINARY STATEMENT

On December 6, 1999, Lisa L. Saul and Craig Saul, as parents and natural guardians of Michael Aaron Saul, 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 December 7, 1999. NICA reviewed the claim, and on March 22, 2000, 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 held on June 16, 2000.

At hearing, the parties stipulated to the factual matters set forth in paragraphs 1 and 2 of the Findings of Fact.

Petitioners' Exhibit 1 (the medical records filed with DOAH on December 6, 1999) and Respondent's Exhibit 1 (the deposition of Michael Duchowny, M.D., filed with DOAH on July 28, 2000) were received into evidence. No witnesses were called, and no other exhibits were offered.

The hearing transcript was filed June 26, 2000, and the parties were accorded 10 days from that date to file proposed final orders. Intervenors filed a proposed final order on July 6, 2000, and it has been duly considered. No other proposals were filed.

FINDINGS OF FACT

Fundamental findings

1. Lisa L. Saul and Craig Saul are the parents and natural guardians of Michael Aaron Saul (Michael), a minor. Michael was born a live infant on May 5, 1997, at Leesburg Regional Medical Center, hospital located in Leesburg, Florida and his birth weight was in excess of 2500 grams.

2. The physician providing obstetrical services during the birth of Michael was Shivakumar S. Hanubal, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Also present at some point during the course of Michael's birth was Manuel Alvarado, M.D., who was also, at the time, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (the 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 . . . 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, Michael's neurologic presentation is dispositive of the claim.

   Michael's neurologic status

   
   

4. On January 6, 2000, following the filing of the claim for compensation, Michael was examined by Michael Duchowny, M.D., a board-certified pediatric neurologist. The results of Dr. Duchowny's examination were reported as follows:

   HISTORY ACCORDING TO MRS. SAUL: Michael's

   mother began by explaining that Michael is a

   2 1/2 year old boy who has a left Erb's palsy [damage to the upper brachial plexus]. She attributes his weakness to complications of a large birth weight and shoulder dystocia. He was delivered at Leesburg Regional Medical Center after a 9 1/2 hour labor. His birth weight was 10-pounds, 7- ounces and he remained in the nursery for 6 days for an evaluation of the upper extremity weakness.

   
   

   Michael has gone on to have significant problems with the left Erb's palsy. He ultimately had serial nerve graphs performed at ages 3 months and 21 months. Michael also has had a muscle transplant. The first procedure was felt to be successful, but there was no benefit from the second. He continues to be disabled, in that he postures his arm and hands. He can not fully supinate the left hand.

   
   

   Michael had cognitive testing at age 1 1/2 years at Shan's Hospital. This apparently revealed "mild cognitive delays". Michael has a history of breath-holding spells and has been worked up with a CT scan which apparently was normal. He is scheduled to have an EEG and cardiogram. Michael

   receives speech, physical and occupational therapy on a weekly basis.

   
   

   Michael's health is otherwise intact. He is an active boy who is on no medications and is not being followed for other chronic intercurrent illnesses. Michael walked at the usual time. He apparently is quite verbal with a good lexicon and an ability to speak in full sentences. He is not yet toilet trained. Michael is fully immunized and has no known allergies.

   
   

   FAMILY HISTORY: The father is 30; the mother is a 31 year old, gravida 10, para 3, AB7. Two brothers ages 8 and 4 are both healthy. There are no other family members with brachial plexus problems. There is a history of epilepsy in the mother as a child. No family members have neurodegenerative illnesses, mental retardation or cerebral palsy.

   
   

   PHYSICAL EXAMINATION reveals an alert, cooperative and socially appropriate 3 1/2 year old boy. The skin is warm and moist. There are no neurocutaneous stigmata. The hair is blonde and of normal texture. There are no cranial or facial anomalies or asymmetries. The pigmentation of the iris is symmetric. The tongue movements are full and symmetric. The uvula is midline. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal.

   
   

   Michael's NEUROLOGIC EXAMINATION reveals him to have fluent speech and an age appropriate stream of attention. He has good central gaze fixation with conjugate following movements and the ocular fundi are normal.

   
   

   The pupils are 3 mm and briskly reactive to direct and consensually presented light.

   There is no ptosis and no evidence of myosis. No skin anhidrosis is noted. The

   motor examination is significant for evidence of a left Erb's palsy with internal rotation, flexion and adduction of the left shoulder with some flexion at the left elbow and wrist and slight ulnar deviation of the hands. Michael does have good individual finger dexterity in both hands, although he tends to prefer the right. He can oppose the thumb and first finger of both hands.

   Michael can not fully supinate the left hand and clearly has a right hand preference. He is unable to fully elevate the left shoulder and there is mild scapular winging. The deep tendon reflexes are diminished in the left upper extremities and at the biceps, brachial radialis and triceps jerks where they are literally absent in comparison to 1+ on the right. The knee jerks are 2+ and the ankle jerks are 2+ with flexor plantar responses. His station and gait are age appropriate with symmetric arm swing. He is able to hold his hands in a steady fashion and his rapid alternating movement sequences are age appropriate. Neurovascular examination reveals no cervical, cranial or ocular bruits and there are no temperature or pulse asymmetries. The sensory examination is deferred.

   
   

   In SUMMARY, Michael's neurologic examination reveals evidence of a left Erb's palsy with

   2 serial nerve graphs. I should also mention that he has long linear scars in the posterior aspects of both legs in the sites of nerve graph donation. Otherwise his neurologic examination is unremarkable. He has no focal or lateralizing features to suggest structural brain damage.

   
   

5. A brachial plexus injury, such as that suffered by Michael during the course of his birth, is not, anatomically, a brain or spinal cord injury, and does not affect his mental status, which Doctor Duchowny observed to be essentially normal.

   Moreover, no other physical impairments of neurological origin were observed. Consequently, while Michael has been shown to have suffered a permanent injury (to his left brachial plexus) during the course of birth, it is Dr. Duchowny's opinion, which is credited, that such injury is not related to the brain or spinal cord and, moreover, that he has not been rendered permanently and substantially mentally and physically impaired.

   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. 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 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.")

13. Here, the proof demonstrated that, notwithstanding any events which may have occurred at birth, Michael did not suffer an injury to his brain or spinal cord which rendered him permanently and substantially mentally and physically impaired. Consequently, the record developed in this case fails to demonstrate that Michael 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 Lisa L. Saul and Craig Saul, as parents and natural guardians of Michael Aaron Saul, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 31st day of August, 2000, 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

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2000.

COPIES FURNISHED:

(By certified mail)

Jennifer Gentry Fernandez, Esquire Scot D. Warner, Esquire

Maher, Gibson and Guiley, P.A.

90 East Livingston Street, Suite 200 Orlando, Florida 32853

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

Thomas L. Schieffelin, Esquire Andrew Vlahos, Esquire

Hill, Reis, Adams, Hall & Schieffelin, P.A.

1417 East Concord Street Orlando, Florida 32853

Susan Kennedy, Esquire McEwan, Martinez, Luff, Dukes

& Ruffier, P.A.

108 East Central Boulevard Orlando, Florida 32853

Joseph D. Tessitore, Esquire Motes & Carr, P.A.

3191 Maguire Boulevard, Suite 160

Orlando, Florida 32802

Shivakumar S. Hanubal, M.D.

9836 U.S. Highway 441, Suite 102

Leesburg, Florida 34788

Manuel Alvarado, M.D. 1414 East Main Street Leesburg, Florida 34748

Leesburg Regional Medical Center Legal Department

600 East Dixie Avenue Leesburg, Florida 34748

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: 99-005103N

Orders for Case No: 99-005103N