MATTEINI, on behalf of and as parents and natural guardians of SIERRA MATTEINI, a minor,
vs.
Intervenor.
) Case No. 04-4268N
Pursuant to notice, the Division of Administrative Hearings, by Administrative Law Judge William J. Kendrick, held a hearing in the above-styled case on August 22, 2005, by video teleconference, with sites in Tallahassee and Orlando, Florida.
For Petitioners: Elihu H. Berman, Esquire
Elihu H. Berman, P.A.
For Respondent: George W. (Trey) Tate, III, Esquire
For Intervenor: Henry W. Jewett, II, Esquire
Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A.
At issue is whether Sierra Matteini, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Russell Matteini, on behalf of and as parents and natural guardians of Sierra Matteini (Sierra), a minor, filed a petition (claim), and on November 24, 2004, an amended petition, with the Division of Administrative Hearings (DOAH) for compensation under the Plan.
DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the petition on November 23, 2004, and Petitioners served NICA with a copy of the amended petition on November 22, 2004. Thereafter, on February 16, 2005, following a number of extensions of time within which to do so, NICA responded to the claim, and gave notice that it was of the view that Sierra did not suffer a
"birth-related neurological injury," as defined by Section 766.302(2), Florida Statutes, and requested that a hearing be scheduled to resolve whether the claim was compensable. In the interim, Orlando Regional Healthcare System, Inc., d/b/a South Seminole Hospital was granted leave to intervene. Thereafter, a hearing was scheduled for August 22, 2005, to resolve whether the claim was compensable.
At hearing, Petitioners presented the testimony of David Turell, M.D., Eric Trumble, M.D., Michelle Webster,
Bonnie Bear, and Michele Matteini, and Petitioners' Exhibits 1-3 were received into evidence. Respondent's Exhibits A-L were likewise received into evidence. No other witnesses were called, and no further exhibits were offered.
The transcript of the hearing was filed August 31, 2005, and the parties were accorded 10 days from that date to file written argument or proposed orders. Petitioners elected to file written argument and Respondent elected to file a proposed order. The parties' submittals have been duly considered.
Michele Matteini and Russell Matteini, are the natural parents and guardians of Sierra Matteini, a minor. Sierra was born a live infant on December 28, 2001, at South Seminole
Hospital, a hospital located in Longwood, Florida, and her birth weight exceeded 2,500 grams.
The physician providing obstetrical services at Sierra's birth was John F. Sweet, 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
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
. . . 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(1) and 766.31(1), Fla. Stat.
In this case, it is undisputed that due to the natural forces associated with her vaginal delivery, Sierra suffered a mechanical injury to the brain, a subarachnoid hemorrhage, which precipitated an epidural hematoma, the compression of the left temporal lobe, and a left temporal contusion (bruise), that left an area of encephalomalacia. What is disputed, is whether Sierra's brain injury was the likely cause of her current impairments, and whether Sierra is permanently and substantially
mentally and physically impaired. As to those issues, Petitioners are of the view that the brain injury Sierra sustained rendered her permanently and substantially mentally and physically impaired. In contrast, NICA is of the view that Sierra's impairments were not occasioned by the injury she sustained at birth and, regardless of the etiology of her impairments, Sierra is not permanently and substantially mentally and physically impaired.
The etiology and significance of Sierra's impairments
To address the etiology and significance of Sierra's impairments, the parties offered medical records related to Sierra's birth and subsequent development, and the testimony of Dr. Michael Duchowny, a pediatric neurologist; Dr. David Turell, a pediatrician; Dr. Eric Trumble, a pediatric neurosurgeon; Michelle Webster, an occupational therapist; Bonnie Bear, a speech language pathologist; and Michele Matteini, Sierra's mother.1
Dr. Duchowny, whose testimony was offered by Respondent, is board-certified in pediatrics, neurology with special competence in child neurology, and neurophysiology. (Respondent's Exhibit K.) It was Dr. Duchowny's opinion, based on the results of his neurologic evaluation of Sierra on January 19, 2005, and review of the medical records, that
Sierra's impairments were most likely developmentally based, and unrelated to her brain injury. Dr. Duchowny was also of the opinion that Sierra did not have a substantial mental or physical impairment. Dr. Duchowny explained his findings and the basis for his opinions, as follows:
Q. Could you tell us . . . about the neurological examination . . . ?
A. At the time of the examination, Sierra was three years old. She exhibited behavior that was both impulsive and overactive.
In fact, she was somewhat difficult to evaluate just because of her high activity level. I tried to have her sit in her mother's lap, but she even then would have trouble sitting there in a consistent fashion.
She was able to speak to me, but the speech sounds were dysarthric, and her lexicon, meaning the number of words that she had in her vocabulary, were probably diminished with respect to age matched controls.
Q. . . . Could you please tell us what dysarthric means in layman's terms?
A. It means her speech was thick and difficult to understand.
Q. What else did you observe during the neurological examination?
A. Her understanding of information was clearly better. She knew colors and she knew body parts without difficulty.
She tended to babble, but did not drool.
I evaluated her cranial nerve[s] . . ., which means the nerves that serve her head and neck, and found those to be normal.
There were eye movements that were quite fluid and well-developed. Her pupils reacted normally, and the back part of her eye was also entirely normal.
With respect to motor functioning, there were no problems with her strength. She had good range of movement. There's no evidence of weakness or loss of muscle bulk, and her gait was quite stable and appropriate for age. There is no evidence of gait incoordination.
I thought that Sierra's reflexes were symmetric and normal, and there were no pathological reflexes.
Examination of the blood vessels supplying the neck and head disclosed no significant abnormalities, and there were no changes in the temperature or pulses of blood vessels supplying the neck and head.
Sierra had good manual dexterity, in that she was able to construct a tower made of eight cubes, and she used both hands in a fluid manner and had very good dexterity with regard to individual finger movements.
Her fine motor coordination was somewhat immature, but she was able to accomplish tasks without difficulty.
Q. Based on the records you reviewed and the examination you conducted, were you able to form an opinion regarding whether or not Sierra has a substantial and permanent physical impairment?
A. Yes. I believe the findings on examination indicate that Sierra does not have a substantial physical impairment.
Q. And what was the basis for that specific opinion?
A. She's functioning very close to age level with respect to her physical abilities.
Q. With regard to your examination and the records that you reviewed, did you form an opinion regarding whether or not Sierra has a substantial and permanent mental impairment?
A. Yes. I further do not believe that Sierra has a substantial mental impairment either.
Q. Could you tell us what the basis of that opinion specifically is?
A. Well, again, although she has an expressive language disorder, her receptive language skills were good, and I think that she'll continue to improve in the future.
* * *
Q. Have all of your opinions been rendered within a reasonable degree of medical certainty?
A. Yes, they have.
* * * CROSS EXAMINATION
* * *
Q. Would you agree that the left temporal area of the brain is the area that's related to speech?
A. In 92 percent of individuals, yes.
Q. Dr. Trumble's opinion is that her speech delay is a mental impairment with anatomical
relationship to her area of encephalomalacia. Do you have any reason to differ with that opinion?
A. Yes. I believe that Sierra's speech problems are developmentally based and unrelated to that anatomic defect.
Q. Explain what you mean by developmental?
A. That is based on brain maturation, not on brain damage.
Q. And what's brain maturation?
A. Meaning that individuals can have patterns of strength and weaknesses based on brain maturation, and it's different for different individuals.
Q. And you're saying that's unrelated to trauma or anything that occurred at birth?
A. That's correct.
Q. And there is no way to determine if that is so, is it? There is no testing that could be performed which would definitely relate her speech delay to brain maturation?
A. First of all, she has other developmental disorders, for example, hyperactivity and attention deficit, so we already know she has developmental problems.
Secondly, her language problems mainly have to deal with expressive language, which is not located in the temporal lobe.
Q. Expressive language?
A. Yes.
Q. What do you mean by that?
A. Her ability to speak, as opposed to her ability to understand language.
Q. Her ability to speak is not related to the left temporal lobe?
A. That's correct.
* * *
Q. You said in your direct testimony that her fine motor coordination seems slightly immature for her age. Would you expand on that a little bit? What did you mean by that?
A. This is another developmental finding. When she put out her hands, she would posture her fingers. Her ability to have rapid alternating movement sequences was slightly immature for her age. This is yet another developmental finding. In other words, it's related to brain immaturity, in this case, for fine motor movement.
Q. . . . You commented in your report that she is not yet toilet trained. Would that be another developmental deficiency?
A. Yes.
Q. That would have nothing to do with brain injury?
A. That's correct.
Q. You said that she does not demonstrate ataxia. Did I pronounce that correctly?
A. Yes.
Q. Ataxia, which means incoordination, correct?
A. Correct.
Notably, as will be seen from the testimony of Doctors Turell and Trumble, Ms. Webster, and Ms. Bear, who were called to offer
testimony on behalf of Petitioners with regard to the likely etiology or significance of Sierra's impairments, Dr. Duchowny's opinions stand largely uncontroverted.2
Dr. Turell is board-certified in pediatrics, and practices general pediatrics at Altamonte Pediatric Associates, Sierra's primary care provider until March 2004, when the family transferred to another pediatric group. According to
Dr. Turell, and the records of Altamonte Pediatric Associates, Sierra's development was age appropriate until approximately April 1, 2003, when Sierra's mother voiced concerns about her speech. Thereafter, on July 1, 2003, Dr. Turell diagnosed a speech delay, but noted good comprehension, and referred Sierra for speech therapy and audiology. Audiology reported normal hearing and, according to Dr. Turell and the records of Altamonte Pediatric Associates, apart from an expressive language delay, Sierra's development continued to be normal, including her receptive language functions. The records from Sierra's subsequent provider were not offered at hearing.
Dr. Trumble is board-certified in adult and pediatric neurosurgery, and first saw Sierra on December 30, 2001, in the neonatal intensive care unit at Arnold Palmer Hospital, where she was transferred following delivery. There, Dr. Trumble was consulted to review Sierra's CT scan, and decide whether the epidural hemorrhage she suffered required evacuation. At the
time, Dr. Trumble was of the opinion that evacuation was not required, and indeed the resulting hematoma and left temporal contusion resolved, but left an area of encephalomalacia. As for the etiology of Sierra's speech delay and the significance of her impairment, Dr. Trumble offered the following observations at hearing:
Q. Is there a relationship between . . . a contusion to the left temporal area and the speech delay that Sierra has sustained -- has demonstrated?
* * *
A. Okay. . . . [A]natomically, speech is localized to the left temporal lobe in more than 95 percent of the population, and so if you were to pick an area of the brain to cause a speech delay, you'd roughly pick where Sierra's injury was. So a long answer to say yes.
Q. Is it your opinion, Doctor, that the -- that this was a neurological injury?
A. Yes.
Q. Was it a physical injury?
A. It was a brain injury, and the brain's part of the body. So yes, it was clearly physical.
Q. Is there a mental injury, mental impairment resulting?
A. Yes.
Q. Is it substantial?
* * *
A. You know, "substantial" gets into the subjective realm that I would defer to . . . somebody else. If this were my child and she was having speech issues, it would be substantial to me.
Q. All right. In your opinion, is this a permanent injury?
A. Certainly the anatomical abnormalities seen on the MRI are permanent. She will probably always have some speech issues. The hope is with therapy she will learn to compensate with -- for it.
Q. Do you have an opinion as to whether, therefore, she has suffered both mental and physical impairment from her epidural hematoma which she suffered at birth?
A. Yeah, yes, she did.
Q. And is that opinion based on a reasonable degree of medical certainty?
A. Yes.
* * * CROSS EXAMINATION
Q. Doctor, what is the physical impairment?
A. Speech delay.
Q. Okay. So you consider that a physical impairment, not a mental impairment?
A. I would consider it both, yeah. I mean, if you want to look at the physical impairment, then you -- it depends if we want to talk anatomical where she has -- you know, based on the MRI she had 1/21/04 she has a one centimeter left mid-temporal area of encephalomalacia . . . . [That] specific physical anomaly within the brain . . .
would be . . . most likely related to her speech impairment.
Q. Okay. I think the part where we're miscommunicating is I think you're talking about a physical injury where I’m talking about a physical impairment. Do you understand the distinction?
A. I do -- no, I do not see any left-sided
-- or it's a left lesion, so any right-sided weakness. I do not see any motor abnormalities, if that is what you mean by a physical impairment.
Q. That's where I was going, okay.
Dr. Duchowny who is a pediatric neurologist testified that the temporal lobe is associated with receptive language ability and the frontal lobe is associated with expressive language ability. Do you disagree with that or agree with that?
A. . . . [T]he difference between the two areas . . . is not as hard wired in children as it is in adults. So . . . while I would say that in general that is true, in any individual patient there is overlap.
Q. Okay. So what you're saying is that if it's an adult the temporal lobe deals with receptive language ability and the frontal lobe deals with expressive language ability, but because children's brains are more malleable, there's some overlap in the temporal lobe that could affect both?
A. Correct.
Notably, when called upon to describe the physical impairment caused by Sierra's brain injury, Dr. Trumble agreed that no physical impairment ensued, and he declined to offer an opinion,
within a reasonable degree of medical certainty, whether Sierra's mental injury (an expressive language delay) was substantial.3
Ms. Webster is an occupational therapist, and has been working with Sierra for approximately one year. Currently, they are working on Sierra's fine motor skills, which Ms. Webster describes as "[b]elow-average skills for grasping for her age level," but their main focus is on sensory integration skills. According to Ms. Webster, Sierra's difficulties in sensory integration skills include auditory processing, vestibule processing (sense of balance), touch processing, multisensory processing, and oral sensory processing.4 Related issues include impulsive and overactive behavior (hyperactivity), and a low attention span (attention deficit). Ms. Webster offered no opinion as to the etiology of Sierra's fine motor impairment or of the etiology of Sierra's sensory integration skill deficits, and offered no opinion regarding the significance or permanence of those disorders.
Ms. Bear is a speech language pathologist, and has worked with Sierra since December 2003. According to Ms. Bear, she last saw Sierra on August 10, 2005, at which time Sierra evidenced a "severe deficit in articulation" (an expressive language deficit), but her receptive language skills were within normal limits for her age. With regard to Sierra's expressive
language deficit, Ms. Bear noted that Sierra currently had a lexicon of about 40 words, when a normal range would be "over
100 . . . maybe 125." However, Ms. Bear also observed that with an additional 18 to 24 months of therapy, it was likely Sierra's expressive language would be within 6 months of her chronological age. Ms. Bear offered no opinion regarding the etiology of, or any other opinion regarding the significance or permanence of, Sierra's expressive language disorder.
In this case, there is no reason to credit
Dr. Trumble's opinion regarding the etiology of Sierra's expressive language disorder, over the opinion of Dr. Duchowny. Indeed, as between the two, Dr. Duchowny's opinion was the more compelling. Moreover, there was a dearth of proof, apart from the opinion of Dr. Duchowny, as to the likely cause of Sierra's other deficits. Finally, regardless of the etiology of Sierra's deficits, she is not permanently and substantially mentally or physically impaired. See, e.g., Wausau Insurance Company v.
Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obliged to present expert medical evidence establishing that causal connection."); Ackley v. General Parcel Service, 646 So. 2d 242 (Fla. 1st DCA 1995)(determining cause of psychiatric illness is essentially a medical question, requiring expert
medical evidence); Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation.")
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. § 766.301, et seq., Fla. Stat.
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.
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), and 766.305(1), 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(4), Fla. Stat.
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(7), 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.
In discharging this responsibility, the administrative law judge must make the following determination based upon the available evidence:
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).
Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery 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 postdelivery 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.
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 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.
As the proponent of the issue, the burden rested on Petitioners to demonstrate that Sierra suffered a "birth-related neurological injury." § 766.309(1)(a), Fla. Stat. See also Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349, 350 (Fla. 1st DCA 1997)("[T]he burden of proof,
apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.")
Here, the proof failed to support the conclusion that, more likely than not, Sierra's neurologic impairment was the result of a brain or spinal cord injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital, or that Sierra was permanently and substantially mentally and physically impaired. Consequently, given the provisions of Section 766.302(2), Florida Statutes, Sierra does not qualify for coverage under the Plan. See also
§§ 766.309(1) and 766.31(1), Fla. Stat.; Humana of Florida, Inc. v. McKaughan, 652 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 constructed 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); 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.)
Where, as here, the administrative law judge determines that ". . . the injury alleged is not a birth-related neurological injury . . . she or 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.
ORDERED that the claim for compensation filed by Michele Matteini and Russell Matteini, on behalf of and as
parents and natural guardians of Sierra Matteini, a minor, is dismissed with prejudice.
DONE AND ORDERED this 26th day of September, 2005, in Tallahassee, Leon County, Florida.
WILLIAM J. KENDRICK
Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 2005.
1/ Respondent also offered the testimony of Dr. Donald Willis, a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine. (Respondent's Exhibit L.) However, Dr. Willis' opinions were limited to the likely cause of Sierra's brain injury, and he offered no opinion on the etiology or significance of Sierra's impairment.
2/ Petitioners also offered the testimony of Mrs. Matteini regarding Sierra's developmental delays, sensitivity issues, and frustrations. These issues have been adequately addressed by other witnesses, and Mrs. Matteini's testimony will not be individually addressed.
3/ On August 4, 2004, Dr. Trumble wrote an addendum to a letter of January 29, 2004, he had written to Sierra's pediatrician (Dr. Turell) that illustrates the misunderstanding Dr. Trumble harbored regarding the relationship between brain injury and physical impairment, as those terms are used in the Plan. In that addendum, Dr. Trumble wrote:
I have spoken with Sierra's attorney today. I have expressed the opinion that the area of encephalomalacia is secondary to her epidural hematoma, which she suffered at birth. This is a permanent injury and is expected to be visible on every MRI she has in the future. Her speech delay is a mental impairment whose anatomical relationship is with her area of encephalomalacia.
Therefore, Sierra has suffered both mental and physical impairment from her epidural hematoma, which she suffered at birth. (Petitioners' Exhibit 2.)
4/ When asked to explain what was meant by "sensory integration," Ms. Webster responded:
I work on some of the sensory skills that Sierra is having problems processing and how she modulates herself and organizes herself.
And I work with those skills to help her to function more in her environment . . . .
When asked what she meant by "processing," Ms. Webster responded:
It's just how she interprets the information that she's being given through her body.
She may under-interpret it or over-interpret it. (Transcript, page 29.)
Henry W. Jewett, II, Esquire Rissman, Weisberg, Barrett, Hurt,
Donahue & McLain, P.A.
(Certified Mail No. 7099 3400 0010 4399 3038)
(Certified Mail No. 7099 3400 0010 4399 3021)
George W. Tate, III, Esquire Broad & Cassel
(Certified Mail No. 7099 3400 0010 4399 3014)
Elihu H. Berman, Esquire Elihu H. Berman, P.A.
(Certified Mail No. 7099 3400 0010 4399 3007)
John F. Sweet, M.D.
Advanced Women's Health Specialists 4106 Lake Mary Boulevard, Suite 110 Lake Mary, Florida 32746
(Certified Mail No. 7099 3400 0010 4399 2994)
(Certified Mail No. 7099 3400 0010 4399 2987)
Charlene Willoughby, Director Consumer Services Unit - Enforcement Department of Health
(Certified Mail No. 7099 3400 0010 4399 2970)
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.
