STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEAN ANN COCHRAN and CLAYTON LEON )

COCHRAN, as parents and natural ) guardians of CLAYTON KENNETH ) HUNTER COCHRAN, a minor, )

)

Petitioners, )

)

vs. ) Case No. 00-0161N

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

)

Respondent, )

)

and )

)

ORLANDO REGIONAL HEALTHCARE )

SYSTEM, INC., d/b/a SOUTH )

SEMINOLE HOSPITAL, )

)

Intervenor. )

)

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 25, 2000, by video teleconference, with sites in Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: Stephen C. Bullock, Esquire

Brannon, Brown, Haley, Robinson & Bullock, P.A.

10 North Columbia Street Post Office Box 1029

Lake City, Florida 32056-1029

For Respondent: W. Douglas Moody, Esquire

Graham, Moody & Sox, P.A.

215 South Monroe Street Post Office Box 2174 Tallahassee, Florida 32301

For Intervenor: Richard L. Allen, Jr., Esquire

Mateer & Harbert, P.A. Post Office Box 2854

Orlando, Florida 32802-2854 STATEMENT OF THE ISSUE

At issue in the proceeding is whether Clayton Kenneth Hunter Cochran (Hunter), a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On January 12, 2000, Jean Ann Cochran and Clayton Leon Cochran, as parents and natural guardians of Clayton Kenneth Hunter Cochran, 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.

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on January 13, 2000. NICA reviewed the claim, and on April 14, 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]." Consistent with Petitioners' request, such a hearing was scheduled for September 25 and 26, 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 January 12, 2000), Petitioners' Exhibit 2 (the report of

Dr. Michael Duchowny dated March 20, 2000, filed April 19, 2000), and Petitioners' Exhibit 3 (the report of Dr. Michael Duchowny dated April 11, 2000, filed April 21, 2000) were received into evidence. Without objection, certain portions of the deposition of Michael S. Duchowny, M.D., and the occupational therapy evaluations of the Easter Seal Program of Volusia and Flagler Counties for March 3, 2000, and April 24, 2000, were dictated into the record. No witnesses were called and no further exhibits were offered.

The transcript of the hearing was filed October 16, 2000, and the parties were accorded 10 days from that date to file proposed final orders. None of the parties elected to file such

a proposal.

FINDINGS OF FACT

1. Jean Ann Cochran and Clayton Leon Cochran, are the parents and natural guardians of Clayton Kenneth Hunter Cochran (Hunter). Hunter was born a live infant on June 12, 1997, at

   Orlando Regional Health Care System, Inc., d/b/a South Seminole Hospital, a hospital located in Longwood, Florida, and his birth weight was in excess of 2500 grams.

2. The physician providing obstetrical services during the birth of Hunter was John V. Parker, 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(2), Florida Statutes.

3. Pertinent to this case, coverage is afforded under the Plan, when the claimants demonstrate, 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, Hunter's mental and physical presentation are dispositive of the claim and it is unnecessary to address the cause or timing of any injury he may have suffered.

4. To address Hunter's current physical and mental status, Petitioners offered the opinions of Michael S. Duchowny, M.D., a pediatric neurologist, as well as the results of Hunter's recent occupational therapy evaluations by the Easter Seal Program of Volusia and Flagler Counties. Notably, Dr. Duchowny examined

   Hunter on March 20, 2000, and reported the results of his neurological evaluation as follows:

   NEUROLOGIC EXAMINATION reveals Hunter to be alert and socially oriented. He tends toward non-fluency, but can communicate some thoughts in words.

   
   

   Hunter has a speech articulation defect. He can talk in phrases and short sentences.

   There is good central gaze fixation with conjugate following movements. The pupils are 3 mm and briskly reactive. There are no fundoscopic findings and no significant facial asymmetries. The tongue and palate move well without drooling. Motor examination reveals symmetric strength, bulk and tone. There are no adventitious movements, focal weakness or atrophy. The outstretched hands are markedly postured.

   His gait is stable and reasonably narrow based. The deep tendon reflexes are 2+ and symmetric. The plantar responses are downgoing. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. The sensory and cerebellar examinations are deferred.

   
   

   In SUMMARY, Hunter presents as a 2 1/2 year old boy with an expressive language delay and speech dysfluency. In contrast, he has mild fine motor incoordination, but his examination is otherwise non-focal.

   
   

   I have not as yet had an opportunity to review Hunter's records and will issue a final report once the review process is complete.

   
   

   Subsequently, Dr. Duchowny had an opportunity to review the medical records, and on April 11, 2000, reported his conclusions as follows:

   A review of medical records and the medical evaluation of Clayton "Hunter" Cochran leads me to believe that he does not have significant neurologic impairment. His neurologic examination reveals evidence of an expressive language delay and some fine motor incoordination. Both of these findings are developmentally based and indicate acquisition in utero, long before the onset of labor and delivery. These findings are mild and there certainly is no evidence of substantial mental or motor impairment.

   Furthermore, Hunter's developmental delay would be expected to improve over time and therefore is not permanent.

   
   

   Dr. Duchowny's deposition testimony and the results of recent occupational therapy evaluations by the Easter Seal Program are consistent with the opinions heretofore expressed by

   Dr. Duchowny. Consequently, it must be resolved that the proof failed to demonstrate that Hunter was "permanently and substantially mentally and physically impaired," as required for coverage under the Plan.

   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 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, Hunter has not been rendered permanently and substantially mentally and physically impaired. Consequently, the claim is not compensable under the Plan. Sections 766.302(2) and 766.309(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 the petition for compensation filed by Jean Ann Cochran and Clayton Leon Cochran, as parents and natural guardians of Clayton Kenneth Hunter Cochran, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 6th day of November, 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 6th day of November, 2000.

COPIES FURNISHED:

(By certified mail)

Lynn Larson, Executive Director Florida Birth-Related Neurological

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

Stephen C. Bullock, Esquire Brannon, Brown, Haley,

Robinson & Bullock, P.A. Post Office Box 1029

Lake City, Florida 32056-1029

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

215 South Monroe Street Post Office Box 2174 Tallahassee, Florida 32301

Richard L. Allen, Jr., Esquire Mateer & Harbert, P.A.

Post Office Box 2854 Orlando, Florida 32802-2854

John V. Parker, M.D.

661 East Altamonte Drive, Suite 326 Altamonte Springs, Florida 32701

A. Lizama, M.D.

199 Sandlewood Trail

Winter Park, Florida 32789

South Seminole Hospital Legal Department

55 West State Road 434 Longwood, Florida 32750

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: 00-000161N

Orders for Case No: 00-000161N