STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAURA TUTT and DARRYL TUTT, as )

parents and natural guardians of ) TABITHA TUTT, a minor, )

)

Petitioners, )

)

vs. ) Case No. 00-3893N

) 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 April 24, 2001, by video teleconference, with sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Joseph L. Mandina, Esquire

Mandina & Associates, P.A. 1110 Brickell Avenue, Suite 805

Miami, Florida 33131

For Respondent: David W. Black, Esquire

Frank, Weinberg & Black, P.L. 7805 Southwest 6th Court Plantation, Florida 33324

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

On September 19, 2000, Petitioners, Laura Tutt and Darryl Tutt, as parents and natural guardians of Tabitha Tutt

(Tabitha), a minor, filed a petition (claim) with the Division of Administrative Hearings (DOAH) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on September 20, 2000. NICA reviewed the claim and on December 21, 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 held on April 24, 2001.

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 September 19, 2000) and Respondent's Exhibit 1 (the deposition of Michael S. Duchowny, M.D., filed with DOAH on May 10, 2001) were

received into evidence. No witnesses were called, and no further exhibits were offered.

The transcript of the hearing was filed May 10, 2001, and the parties were accorded 10 days from that date to file proposed final orders. Respondent elected to file such a proposal and it has been duly considered.

FINDINGS OF FACT

Fundamental findings

1. Petitioners, Laura Tutt and Darryl Tutt, are the parents and natural guardians of Tabitha Tutt, a minor. Tabitha was born a live infant on February 19, 1998, at Jackson Memorial Hospital, a hospital located in Miami, Florida, and her birth weight was in excess of 2,500 grams.

2. The physician providing obstetrical services during the birth of Tabitha was Sharon Salamat, 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 claimants demonstrate, 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 nor a substantial 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.

   Tabitha's mental and physical presentation

   
   

4. On December 2, 2000, following the filing of the claim for compensation, Tabitha 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 MRS. TUTT: The mother

   began by indicating that Tabitha has delays due to birth trauma. She specifically identified a delay in toilet training and difficulties with differentiating between boys and girls as Tabitha's major problems. She is quite bothered by these problems and apparently has had Tabitha in the Easter Seal Program. Tabitha will soon be leaving Easter Seal for a new program, as she will be ineligible to continue past February.

   
   

   In contrast, Tabitha's speech development has been normal and she does not have any motoric problems. Her hearing and vision are said to be unremarkable.

   Mrs. Tutt continued that Tabitha had a difficult delivery. She was born at term at Jackson Memorial Hospital, but Mrs. Tutt said that she was diagnosed with "fetal demise" 20 hours prior to delivery. The delivery was vaginal and apparently stressful. Tabitha remained at Jackson Memorial Hospital for 2 weeks primarily for observation. She had an apneic episode on the third day of life requiring intubation and a C-PAP. Her clinical course stabilized and she was discharged in good condition. She has never been re-hospitalized.

   
   

   Tabitha otherwise enjoys good health. She has not been exposed to toxic or infectious agents and there have been no significant head injuries. She takes Rhinocort, but no other intercurrent medications.

   
   

   FAMILY HISTORY . . . Tabitha has never suffered from seizures, nor has there been any deterioration in her overall neurologic development. Her milestones were on time, in that she walked at 12 months. Tabitha is fully immunized and has no significant allergies. She has . . . [never] undergone surgery.

   
   

   PHYSICAL EXAMINATION reveals an alert, well developed, pleasant and cooperative 2 3/4 years old female. The weight is 36-pounds and height 37-inches. The hair is brown and of normal texture. The eye color is . . . [ash] brown. There is no identifying cutaneous lesions and no dysmorphic features. The head circumference measures 50.3 cm, which is within standard percentiles and there are no cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are unremarkable.

   
   

   Tabitha's NEUROLOGIC EXAMINATION reveals her to be alert and interactive. She has a good attention span and seems to be quite pleasant

   socially. She easily engages in games and seems to derive enjoyment from these activities. Her speech is fluent for age and appropriately articulated. The cranial nerve examination reveals full extraocular movements and normal ocular fundi. The pupils are 3 mm and briskly reactive to direct and consensually presented light. The tongue movements are full and there are no significant facial asymmetries. Motor examination reveals symmetric strength, bulk and tone. There are no adventitious movements or evidence of focal weakness or atrophy. The deep tendon reflexes are 2+ in the upper extremities and 3+ in the lower extremities with flexor plantar responses.

   Sensory examination is intact to withdrawal of all extremities to stimulation. Her gait is stable and appropriately based. There is no ataxia. The neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries.

   
   

   In SUMMARY, Tabitha's neurologic examination in detail reveals no specific focal or lateralizing features. She seems to be functioning at age level and there is no evidence of substantial motor or mental impairment . . . .

   
   

5. Dr. Duchowny's opinion, that Tabitha's neurologic examination revealed no significant abnormalities, and that she does not suffer either a substantial motor or mental impairment, was uncontroverted, grossly consistent with the record, and credible. Consequently, it must be resolved, for reasons appearing more fully from the Conclusions of Law which follow, that Tabitha does not qualify for coverage under the Plan.

   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 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, 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 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").

13. Here, the proof failed to demonstrate that Tabitha 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.

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

Laura Tutt and Darryl Tutt, as parents and natural guardians of Tabitha Tutt, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 23rd day of May, 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 23rd day of May, 2001.

COPIES FURNISHED:

(By certified mail)

Joseph L. Mandina, Esquire Mandina & Associates, P.A. 1110 Brickell Avenue, Suite 805

Miami, Florida 33131

David W. Black, Esquire Frank, Weinberg & Black, P.L. 7805 Southwest 6th Court Plantation, Florida 33324

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

Sharon Salamat, M.D. UM School of Medicine D2-4

Post Office Box 016960 Miami, Florida 33101

Jackson Memorial Hospital 1611 Northwest 12th Avenue Miami, Florida 33136

Ms. Charlene Willoughby

Agency for Health Care Administration Consumer Services Unit

Post Office Box 14000 Tallahassee, Florida 32308

Mark Casteel, 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: 00-003893N

Orders for Case No: 00-003893N