STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDUARDO GHERSI and MERCEDES GHERSI, )

as parents and natural guardians of ) CINTHYA GHERSI, a minor, )

)

Petitioners, )

)

vs. ) Case No. 00-0271N

) 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 final hearing in the above-styled case on February 13, 2001, by

telephone conference.

APPEARANCES

For Petitioner: Phillip H. Taylor, M.D., J.D., P.A.

6590 27th Way, North Post Office Box 55186

St. Petersburg, Florida 33732

For Respondent: Lynn Larson, Qualified Representative

Florida Birth-Related Neurological Injury Compensation Association

1435 Piedmont Drive, East, Suite 101 Post Office Box 14567

Tallahassee, Florida 32317-4567

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

On January 18, 2000, Petitioners Eduardo Ghersi and Mercedes Ghersi, as parents and natural guardians of

Cinthya Ghersi ("Cinthya"), 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"), and on March 6, 2000, Petitioners filed an amended claim.

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on January 19, 2000, and Petitioners served NICA with a copy of their amended claim on March 2, 2000. NICA reviewed the claim and on December 15, 2000 (following a period of time in which the claim was abated), 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 February 13, 2001.

At hearing, the parties stipulated to the factual matters set forth in paragraphs 1 and 2 of the Findings of Fact. Joint Exhibit 1 (the medical records filed with DOAH on January 18, 2000), and Joint Exhibit 2 (reports by Dr. Michael S. Duchowny dated February 25, 2000; October 3, 2000; November 20, 2000; and December 1, 2000) were received into evidence. No witnesses were called, and no further exhibits were offered.

The transcript of the hearing was filed February 27, 2001.

The parties waived the opportunity to file proposed final orders.

FINDINGS OF FACT

Fundamental findings

1. Eduardo Ghersi and Mercedes Ghersi, are the parents and natural guardians of Cinthya Ghersi, a minor. Cinthya was born a live infant on February 11, 1998, at Sun Coast Hospital, a hospital located in Largo, Florida, and her birth weight was in excess of 2,500 grams.

2. The physician providing obstetrical services during the birth of Cinthya was Barbara Shears, 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(2), 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 . . . 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." Section 766.302(2), Florida Statutes. Here, the uncontroverted proof demonstrates that the infant has neither a substantial mental or physical impairment. Consequently, it is unnecessary to address whether she suffered an injury to the brain or, if so, whether any such injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital.

   Cinthya's mental and physical presentation

   
   

4. On February 25, 2000, following the filing of the claim for compensation, Cinthya was examined by Michael S. Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital, Miami, Florida. The results of that evaluation were reported, as follows:

   HISTORY ACCORDING TO MR. AND MRS. GHERSI:

   Cindy is a 2 year old girl with known developmental delay. Her mother began by explaining that Cindy has significant feeding difficulties and requires thickening of her

   food. She is fed by bottle. She drools intermittently. Cindy also has motor problems, in that she is not yet walking on her own and stands only with a significant amount of support. Her balance is described as being poor and her coordination is clearly behind age level. She is improving slowly and is in a rehabilitation program through All Children's Hospital Therapy. Cindy receives physical, speech and occupational therapy twice weekly.

   
   

   Cindy is also delayed with regard to speech milestones. She now has only 10 single words and can not put them together to form longer phrases or make sentences. She tends to communicate by gesture. Cindy likes to "play a lot" and is very sociable. Her behavior is also appropriate.

   
   

   * * *

   
   

   PHYSICAL EXAMINATION reveals a quiet well proportioned 2 year old girl sitting on her father's lap. Her weight is 26-pounds. The skin is warm and moist. There is one depigmented area in the anterior abdominal midline. There are no dysmorphic features and no spinal dysraphism. The head circumference measures 47.2 cm, which is at the 50th percentile for age matched controls. The fontanelles are just closed. There are no significant cranial or facial asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal.

   
   

   Cindy's NEUROLOGIC EXAMINATION reveals her to be quiet and to make no effort to communicate verbally at any time. She seems socially integrated and is quite pleasant to examine. There is good central gaze fixation with conjugate following movements, accompanied by a mild alternating esotropia.

   The pupils are 3 mm and react briskly to direct and consensually presented light. The tongue movements are poorly coordinated and there is frequent drooling. The motor examination reveals generalized hypotonia of all extremities with poor axial balance and truncal ataxia. There are no pathologic reflexes. Her sensory examination is intact to withdrawal of all extremities to provocation. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries.

   
   

   In SUMMARY, Cindy's neurologic examination reveals evidence of significant hypotonia and psychomotor delay. She is approximating a developmental level of approximately 6 months. There are no focal or lateralized asymmetries . . . .

   
   

5. Given the apparent improvement in Cinthya's developmental skills, the parties were of the opinion that it would be premature to address whether she had suffered a "birth- related neurological injury," as required for coverage under the Plan. Consequently, by agreed motion filed March 22, 2000, they requested that the claim be abated for 9 months so that Cinthya's progress might be further assessed. By order of March 24, 2000, the motion was granted, and the claim was abated until

   December 17, 2000.

   
   

6. Cinthya was re-evaluated by Dr. Duchowny on October 30, 2000. The results of that evaluation were reported, as follows:

   Cindy is now 31 months old. She has made significant progress since her last evaluation in February. There have been significant gains in feeding and swallowing. Cindy is now eating table food. Her parents

   note that she enjoys Chicken McNuggets and does not choke on her food. Drooling is still a problem.

   
   

   There has also been significant gains made with her speech. She is now "talking a lot" and "asking many questions". Cindy tends to put 3 words together to make sentences such as "What is this?" and "I don't know."

   
   

   Cindy is not yet enrolled in preschool, but has many friends in her neighborhood and is quite verbally interactive.

   
   

   Cindy is also making strong gains in her motor skills. She is just starting to walk without support, although she tends to walk favoring a play ice cream cart. She can ambulate for short distances, but is quite afraid of falling. Her arm strength has also improved and she likes to paint and hold crayons. She is already potty trained.

   Cindy knows her body parts and primary colors. She is able to count to 10 in both English and Spanish and she can recognize shapes without difficulty. Her parents note that she often tries to feed herself using both hands and uses a spoon with some dexterity.

   
   

   Cindy's hearing and vision are said to be completely stable and she is sleeping through the night. She takes a 1 hour nap during the day. She still takes Emulose as the only medication.

   
   

   Pronunciation of words is still a problem and that is being worked on in her therapy program. She receives speech, occupational and physical therapy on a twice weekly basis at All Children's Hospital.

   
   

   PHYSICAL EXAMINATION reveals an alert and cooperative toddler. Her head circumference measures 48.7 cm which represents stable head growth and improvement since her last evaluation. She again displays no dysmorphic

   features or evidence of dysraphism. There are no significant cranial or facial anomalies. The neck is supple without thyromegaly. The cardiovascular, respiratory and abdominal examinations are without abnormality.

   
   

   Cindy's NEUROLOGIC EXAMINATION tends to bear out her parents perception. She is quite verbally interactive and socially engaging. Cindy could communicate with several words and tended to enjoy playing with dolls and objects in the room. There are no significant abnormalities of the cranial nerve examination, with the exception of a mild alternating esotropia as noted previously. Cindy's motor examination continues to demonstrate generalized hypertonia with some ataxia. There is no focal weakness or atrophy. The deep tendon reflexes remain increased at 3+ bilaterally with plantar responses in extension. She withdraws to all sensory modalities and the neurovascular examination is unremarkable.

   
   

   In SUMMARY, Cindy's examination reveals a significant improvement in her motor and speech development. She additionally has gained excellent socialization skills. I believe that there has been significant progress since her last evaluation.

   
   

7. It was Dr. Duchowny's opinion, which was uncontroverted and credible, that Cinthya's developmental level has improved substantially, and that she does not suffer either a substantial motor or mental impairment. It was further Dr. Duchowny's opinion that Cinthya will improve further in the future.

   CONCLUSIONS OF LAW

   
   

8. 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.

9. 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.

10. 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, 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.

11. 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.

    
    

12. 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.

13. 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.

    
    

14. As the claimant, the burden rested 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").

15. Here, the proof failed to demonstrate that Cinthya is permanently and substantially mentally and physically impaired.

    Consequently, the proof failed to demonstrate that the claim is compensable under the Plan. Sections 766.302(2), 766.309(1), and 766.31(1), Florida Statutes.

16. 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 Eduardo Ghersi and Mercedes Ghersi, as parents and natural guardians of Cinthya Ghersi, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 28th day of February, 2001, 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 28th day of February, 2001.

COPIES FURNISHED:

(By certified mail)

Phillip H. Taylor, M.D., J.D., P.A. 6590 27th Way, North

Post Office Box 55186

St. Petersburg, Florida 33732

Lynn Larson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association 1435 Piedmont Drive, East, Suite 101 Post Office Box 14567

Tallahassee, Florida 32317-4567

Barbara Shears, M.D. 2511 North Grady Avenue Tampa, Florida 33607

Sun Coast Hospital Legal Department

2025 Indian Rocks Road Largo, Florida 34644

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: 00-000271N

Orders for Case No: 00-000271N