STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN COLWELL and CLORINDA

COLWELL, on behalf of and as parents and natural guardians of CLORINDA COLWELL, a minor,

Petitioners,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

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) Case No. 03-0552N

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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 September 5, 2003, by video teleconference, with sites in Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: Stephen Colwell

Clorinda Colwell

521 Tera Plantation Lane DeBary, Florida 32713

For Respondent: Kenneth J. Plante, Esquire

Roetzel & Andress

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue is whether Clorinda Colwell, a minor, suffered a "birth-related neurological injury," as defined by Section 766.302(2).1

PRELIMINARY STATEMENT

On February 18, 2003, Stephen Colwell and Clorinda Colwell, on behalf of, and as parents and natural guardians of, Clorinda Colwell (Clorinda), 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 February 19, 2003, and on May 5, 2003, NICA filed a Motion for Summary Final Order, pursuant to Section 120.57(1)(h). That motion was denied by Order of June 27, 2003, and a hearing was subsequently scheduled for September 5, 2003, to resolve whether the claim was compensable.

At hearing, Petitioners Stephen Colwell and Clorinda Colwell testified on their own behalf, and Petitioners' Exhibit 1 (the medical records filed with DOAH on February 18, 2003) and Respondent's Exhibit 1 (an affidavit of Michael S. Duchowny, M.D., with attached report of neurological evaluation) were

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

The transcript of the hearing was filed September 23, 2003, and the parties were accorded 10 days from that date to file proposed orders. Respondent elected to file such a proposal, and it has been duly considered.

FINDINGS OF FACT

Preliminary Findings

1. Petitioners, Stephen Colwell and Clorinda Colwell, are the natural parents and guardians of Clorinda Colwell, a minor. Clorinda was born a live infant on December 6, 2002, at Central Florida Regional Hospital, a hospital located in Sanford, Florida, and her birth weight exceeded 2,500 grams.

2. The physician providing obstetrical services at Clorinda's birth was John Parker, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan.

   Coverage under the Plan

   
   

3. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as 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." Section 766.302(2). See also Sections 766.309 and 766.31. Here, indisputably, the record demonstrates that Clorinda's development has been age appropriate, and she evidences neither mental impairment nor physical impairment, much less a substantial mental and physical impairment. Consequently, for reasons appearing more fully in the Conclusions of Law, Clorinda does not qualify for coverage under the Plan.

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 766.301, et seq.

5. 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).

6. The injured "infant, her or 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. 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).

7. 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). If, however, 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.

8. 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). 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).

9. Pertinent to this case, "birth-related neurological injury" is defined by Section 766.302(2), to mean:

   . . . injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, at least 2,000 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.

   
   

10. As the claimants, the burden rested on Petitioners to demonstrate entitlement to compensation. Section 766.309(1)(a). 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.")

11. Here, given that the proof demonstrated Clorinda was not permanently and substantially mentally and physically impaired, it must be resolved that the record developed in this case failed to demonstrate Clorinda suffered a "birth-related neurological injury," within the meaning of Section 766.302(2). Sections 766.302(2), 766.309(1), and 766.31(1). See also Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearings, 686 So. 2d 1349 (Fla. 1997)(The Plan is written in the conjunctive and can only be interpreted to require both substantial physical and mental impairment.); Humana of Florida, Inc. v. McKaughan, 658 So. 2d 852, 859 (Fla. 5th DCA 1995)("[B]ecause the Plan . . . is a statutory substitute for common law rights and liabilities, it should be strictly construed to include only those subjects clearly embraced within its terms."), approved, Florida Birth- Related Neurological Injury Compensation Association v.

    McKaughan, 668 So. 2d 974, 979 (Fla. 1996).

    
    

12. 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). Such an order constitutes final agency action subject to appellate court review. Section 766.311(1).

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that the petition for compensation filed by Stephen Colwell and Clorinda Colwell, on behalf of, and as parents and natural guardians of Clorinda Colwell, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 8th day of October, 2003, in Tallahassee, Leon County, Florida.

S

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 8th day of October, 2003.

ENDNOTE

1/ All citations are to Florida Statutes (2002) unless otherwise indicated.

COPIES FURNISHED:

(By certified mail)

Stephen Colwell Clorinda Colwell

521 Tera Plantation Lane DeBary, Florida 32713

Kenneth J. Plante, Esquire Roetzel & Andress

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

Kenney Shipley, Executive Director Florida Birth-Related Neurological

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

Tallahassee, Florida 32308-4567

John Parker, M.D.

661 East Altamonte Drive, Suite 318 Altamonte Springs, Florida 32701

Central Florida Regional Hospital 1401 West Seminole Boulevard Sanford, Florida 32771

Ms. Charlene Willoughby Department of Health

4052 Bald Cypress Way, Bin C-75 Tallahassee, Florida 32399-3275

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 the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, 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: 03-000552N

Orders for Case No: 03-000552N