STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGELA ROSARIO CALLE, as parent )

and natural guardian of ERIKA ) CALLE, a minor, )

)

Petitioner, )

)

vs. ) Case No. 99-5340N

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

)

Respondent. )

)

FINAL ORDER

This cause came on for consideration of the parties' Stipulation, filed September 18, 2000, and supplemental filing, filed September 29, 2000.

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

On December 23, 1999, Angela Rosario Calle, as mother and natural guardian of Erika Calle (Erika), 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 27, 1999. NICA reviewed the claim, and on March 7, 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 such issue]." Such a hearing was initially scheduled for June 7, 2000, but cancelled at the parties' request. The hearing was subsequently re-scheduled for October 4, 2000; however, on September 18, 2000, the parties filed a stipulation whereby they requested that the matter of coverage be resolved on a stipulated record and the hearing was cancelled.

The parties' stipulation, filed September 18, 2000, provided as follows:

The Petitioner and Respondent hereby agree to the submission of this case for final adjudication to this Court, based upon the following records which the parties believe are sufficient to render an adjudication based upon the affected infant's present physical neurological status with respect to the requirement of a permanent and substantial physical impairment for coverage under the Florida Birth-Related Neurological Injury Compensation Plan and state:

1. The parties submit the written evaluation of Dr. Trevor Resnick and Miami Children's Hospital "Communication Evaluation" dated September 28, 1999 attached hereto as Exhibit A.

   
   

2. The parties submit the written neurological evaluation of Dr. Michael Duchowny dated February 7, 2000 attached hereto as Exhibit B.

   
   

3. The parties stipulate that [such] reports accurately depict the present physical impairment of Erika Calle.

The parties ask this court to adjudicate the case based thereon.

That filing inadvertently omitted the written evaluation of Dr. Resnick. Consequently, on September 29, 2000, the parties refiled their Stipulation with all attachments.

FINDINGS OF FACT

Coverage under the Plan

1. 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, Erika's physical presentation is dispositive of the claim and it

   is unnecessary to address her mental presentation, or the timing or cause of her condition.

   Erika's physical presentation

   
   

2. To address Erika's present physical status, the parties offered the opinions of Trevor Resnick, M.D., a pediatric neurologist; Michael Duchowny, M.D., a pediatric neurologist; and Marilyn Lerman Taché, a speech-language pathologist.1 Those opinions are grossly consistent and conclude that Erika evidences no motor impairment. Consequently, it must be resolved that Erika is not "permanently and substantially . . . physically impaired," as required for coverage under the Plan.

   CONCLUSIONS OF LAW

   
   

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

   
   

9. 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.")

10. Here, the proof demonstrated that, notwithstanding any events which may have occurred at birth, Erika has not been rendered permanently and substantially physically impaired. Consequently, since Erika was not shown to be "permanently and substantially mentally and physically impaired," the claim is not compensable under the Plan. Sections 766.302(2) and 766.309(1), Florida Statutes. Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearings, 686 So. 2d 1349 (Fla. 1997)(In order to obtain coverage

    under the Plan, the infant must suffer both substantial mental and physical impairment, and it is insufficient that the infant suffer only substantial impairment, either mental or physical.)

11. 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 Angela Rosario Calle, as mother and natural guardian of Erika Calle, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 3rd day of October, 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 3rd day of October, 2000.

ENDNOTES

1/ Dr. Resnick examined Erika on July 22, 1999, and the results of that examination are contained in his report, attached as Exhibit A to the parties' Stipulation. Ms. Taché examined

Erika on September 28, 1999, and the results of that examination are contained in her report, which is also attached as Exhibit A to the parties' Stipulation. Finally, Dr. Duchowny examined Erika on February 7, 2000, and the results of that examination are attached as Exhibit B to the parties' Stipulation.

COPIES FURNISHED:

(By certified mail)

Lynn Larson, Executive Director Florida Birth-Related Neurological

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

Charles W. Flynn, Esquire Kopplow & Flynn, P.A.

1950 Southwest 27th Avenue Miami, Florida 33145

Kenneth J. Bush, Esquire Kutner, Rubinoff, Bush & Lerner

501 Northeast First Avenue Miami, Florida 33132

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

101 North Gadsden Street Tallahassee, Florida 32301

Dr. Dibe Martin

Jackson Memorial Hospital 1611 Northwest 12th Avenue Miami, Florida 33125

Jackson Memorial Hospital Legal Department

1611 Northwest 12th Avenue Miami, Florida 33125

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: 99-005340N

Orders for Case No: 99-005340N