STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSANNA MALDONADO, on behalf of ) and as parent and natural ) guardian of CHRISTOPHER WHITE- ) MALDONADO, a minor, )

)

Petitioner, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

) ORLANDO REGIONAL HEALTHCARE ) SYSTEM, INC., d/b/a ARNOLD ) PALMER HOSPITAL, )

)

Intervenor. )

Case No. 03-4059N

)

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 December 3, 2004, by video teleconference, with sites in Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: Susanna Maldonado

5963 Branch Drive

Orlando, Florida 32822

For Respondent: M. Mark Bajalia, Esquire

Volpe, Bajalia, Wickes, Rogerson & Galloway 1301 Riverplace Boulevard, Suite 1700

Jacksonville, Florida 32207

For Intervenor: Francis E. Pierce, III, Esquire

Gurney & Handley, P.A. Post Office Box 1273

Orlando, Florida 32802-1273 STATEMENT OF THE ISSUE

At issue is whether Christopher White-Maldonado, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On November 3, 2003, Susanna Maldonado, on behalf of and as parent and natural guardian of Christopher White-Maldonado, 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 November 4, 2003, and on February 26, 2004, NICA filed a Motion for Summary Final Order predicated on the opinion of its medical expert that Christopher did not suffer a "birth-related neurological injury," as that term is defined by Section 766.302(2), Florida Statutes. In the interim, Orlando Regional Healthcare System, Inc., d/b/a Arnold Palmer Hospital (ORHS) filed a Petition for Leave to Intervene, and on March 5, 2004, a

Motion to Defer Consideration of NICA's Motion for Summary Final Order. By Order of March 15, 2004, OHRS's Motion for Leave to Intervene was granted, and NICA's Motion for Summary Final Order was denied without prejudice. Thereafter, on March 26, 2004, NICA filed its response to the claim, and averred that Christopher did not suffer a "birth-related neurological injury" within the meaning of the Plan, and requested that "an order [be entered] setting a hearing in this cause on the issue of the compensability of this claim." Such a hearing was initially scheduled for October 1, 2004, but at the parties' request was rescheduled for December 3, 2004.

At hearing Susanna Maldonado testified on her own behalf, and Respondent's Exhibits 1-7 were received into evidence. No other witnesses were called, and no further exhibits were offered.

The transcript of the hearing was filed December 30, 2004, 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. Petitioner, Susanna Maldonado, is the natural mother and guardian of Christopher White-Maldonado, a minor. Christopher was born a live infant on January 1, 2000, at Orlando Regional

   Healthcare System, Inc., d/b/a Arnold Palmer Hospital, a hospital located in Orlando, Florida, and his birth weight exceeded 2,500 grams.

2. The physician providing obstetrical services at Christopher's birth was Virgil Davila, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.

   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 . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat.

4. Here, the medical records and the results of a neurological examination by Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology, demonstrate, and Petitioner agrees, that Christopher does not suffer from a substantial mental or physical impairment, much less a permanent and substantial mental and physical impairment, as required for

   coverage under the Plan.1 (Respondent's Exhibits 1-7, Transcript page 10 and 11). Consequently, the claim is not compensable, and it is unnecessary to resolve whether Christopher's impairments resulted from brain injury caused by birth trauma (oxygen deprivation or mechanical injury), as advocated by Petitioner, or whether they are developmentally based, as advocated by

   Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. § 766.301, et seq., Fla. Stat.

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. § 766.303(1), Fla. Stat.

7. 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. §§ 766.302(3), 766.303(2), 766.305(1), and 766.313, Fla. Stat. 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."

   § 766.305(3), Fla. Stat.

   
   

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. § 766.305(6), Fla. Stat. 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.

   §§ 766.304, 766.309, and 766.31, Fla. Stat.

   
   

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.

      
      

      § 766.309(1), Fla. Stat. 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."

      § 766.31(1), Fla. Stat.

      
      

10. 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, a live infant weighing 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 postdelivery 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. Here, the proof demonstrated that Christopher was neither substantially mentally impaired nor substantially physically impaired. Consequently, given the provisions of Section 766.302(2), Florida Statutes, Christopher does not qualify for coverage under the Plan. 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 mental and physical impairment.); Humana of Florida, Inc. v. McKaughan, 652 So. 2d 852, 859 (Fla. 2d 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."

§ 766.309(2), Fla. Stat. Such an order constitutes final agency action subject to appellate court review. § 766.311(1), Fla.

Stat.

CONCLUSION

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

ORDERED that the claim for compensation filed by Susanna Maldonado, on behalf of and as parent and natural

guardian of Christopher White-Maldonado, a minor, is dismissed with prejudice.

DONE AND ORDERED this 12th day of January, 2005, 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 12th day of January, 2005.

ENDNOTE

1/ Dr. Duchowny examined Christopher on February 4, 2004, and reported the results of his neurologic examination, as follows:

NEUROLOGIC EXAMINATION reveals an alert child who is, at times, playful. He is certainly socially interactive. I was able to gain his attention and play several games with him.

He responds well to verbal commands and could speak in two to three word phrases. He seemed to be goal directed. The speech is dysarthric, particularly for lingual and labial sounds. Cranial nerve examination reveals full fields to direct confrontation testing. The pupils are 3 mm and briskly reactive and there is blink to threat from

both directions. The funduscopic examination was performed very briefly and appeared normal. There are no facial asymmetries.

The tongue and palate move well. Motor examination reveals mild generalized hypotonia. There are no adventitious movements and no focal weakness or atrophy. The deep tendon reflexes are 2+ and symmetric and plantar responses are bilaterally downgoing. The station and gait are narrowly based and there is a symmetric arm swing.

The spine is straight without dysraphic features. Sensory examination is intact to withdrawal of all extremities to stimulation. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries.

Christopher is able to perform finger to knee maneuvers without difficulty.

In SUMMARY, Christopher's neurological examination reveals evidence of mild generalized hypotonia without functional significance. He has good fine motor coordination and age appropriate bimanual dexterity, including individual finger movements. He has an expressive language delay, but his receptive skills seem appropriate for his age . . .

Dr. Duchowny otherwise characterized the results of his neurologic examination, as follows:

Christopher's neurologic examination does not reveal a substantial motor or mental impairment. He has some very mild fine motor coordination problems and hypotonia, but certainly is not severely affected.

Similarly, Christopher suffers from a developmental language delay, but his overall cognitive skills are otherwise

preserved . . . . .

Dr. Duchowny's opinions are consistent with the medical records related to Christopher's birth and subsequent development.

COPIES FURNISHED:

(By certified mail)

Susanna Maldonado 5963 Branch Drive

Orlando, Florida 32822

M. Mark Bajalia, Esquire

Volpe, Bajalia, Wickes, Rogerson & Galloway 1301 Riverplace Boulevard, Suite 1700

Jacksonville, Florida 32207

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association 1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308

Francis E. Pierce, III, Esquire Gurney & Handley, P.A.

Post Office Box 1273 Orlando, Florida 32802-1273

Virgil Davila, M.D.

Physician Associates of Florida, P.A. 3300 West Lake Mary Boulevard

Lake Mary, Florida 32746

Arnold Palmer Hospital

92 West Miller Street Orlando, Florida 32806

Charlene Willoughby, Director Consumer Services Unit - Enforcement 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: 03-004059N

Orders for Case No: 03-004059N