TATEANNA PRICE, on behalf of and as parent and natural guardian of DEMARCUS COOK, a minor,
vs.
Respondent.
) Case No. 05-0411N
This cause came on to be heard on the parties' Stipulation of Non-Compensability, filed June 14, 2005.
On February 4, 2005, Tateanna Price, on behalf of and as parent and natural guardian of Demarcus Cook (Demarcus), 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 4, 2005, and on April 19, 2005, following an
extension of time within which to do so, NICA filed its Response to the Petition for Benefits, wherein it gave notice that it was of the view that Demarcus 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.
By Order of April 20, 2005, the parties were accorded until May 4, 2005, to advise the administrative law judge, as to the earliest date they would be prepared to proceed to hearing on the issue of compensability, their estimate of the time required for hearing, and their choice of venue. Subsequently, the deadline to respond to the Order of April 20, 2005, was extended to June 14, 2005.
On June 14, 2005, the parties filed a Stipulation of Non-Compensability, wherein they agreed that the following "facts . . . are true and shall be considered as established by competent, substantial evidence before the Administrative Law Judge:"
Tateanna Price (the "Petitioner"), currently of 493 NW 5th Street, Miami, Florida 33128, is the parent and legal guardian of Demarcus Cook, and is the "Claimant" as defined by Section 766.302(3), Florida Statutes.
On February 4, 2005, a claim for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (the "Plan") was filed with the Division of
Administrative Hearings ("DOAH") by the Petitioner, individually and as parent and natural guardian of Demarcus Cook, a minor. Such Petition is fully incorporated herein by reference.
Demarcus Cook was born on April 29, 2004, at North Shore Medical Center (the "Hospital"), in Miami, Florida. The Hospital is the "hospital" as that term is defined in Section 766.302(6), Florida Statutes.
At birth, Demarcus Cook weighed over 2500 grams.
Ramon Hechavarria, M.D., rendered obstetrical services in the delivery of Demarcus Cook and, at all material times, was a "participating physician" as defined in Section 766.302(7), Florida Statutes.
The attached medical records for both Tateanna Price and Demarcus Cook are true and correct copies of medical records kept in the normal course of business and which were submitted to NICA by the Petitioner and/or submitted to NICA by the healthcare providers on behalf of the Petitioner. The Petitioner hereby authorizes NICA to provide the attached medical records to the Division of Administrative Hearings for purposes of resolution of the instant claim.
Michael S. Duchowny, M.D., is board- certified in pediatric neurology with special competence in child neurology and clinical neurophysiology, and is qualified as an expert to render an opinion as to the nature of the injury suffered by
Demarcus Cook.
The Parties stipulate that
Dr. Duchowny's opinion attached hereto regarding the injury suffered by Demarcus Cook is a true and correct copy of
Dr. Duchowny's opinion and represents the
current opinion of Dr. Duchowny with respect to the issue of compensability of the instant claim.
Attached to the parties' stipulation was an affidavit of Dr. Duchowny, who evaluated Demarcus on March 30, 2005.
Dr. Duchowny reported the results of his neurologic evaluation, as follows:
PHYSICAL EXAMINATION reveals an alert, well- developed, well-nourished 11-month-old male infant. Demarcus weighs 21 pounds. The skin is warm and moist. There are no neurocutaneous stigmata. There are no dysmorphic features. The spine is straight without dysraphism. The head circumference measures 47 centimeters, which is within standard percentiles. There are no cranial or facial anomalies or asymmetries. The anterior and posterior fontanels are minimally patent. The neck is supple without masses, thyromegaly or adenopathy.
The cardiovascular examination reveals normal heart sounds. The lung fields are clear. The abdomen is soft and nontender and there is no palpable organomegaly.
Peripheral pulses are 2+ and symmetric.
NEUROLOGIC EXAMINATION reveals Demarcus to be quiet curious and socially interactive. He is playful and interacts well with the examiner. He sits in his father's lap. He makes babbling sounds and displays an appropriate level of concentration. He smiles frequently. Cranial nerve examination reveals full visual fields to direct confrontation testing. The extraocular movements are full and conjugate and the pupils are 3 mm and react briskly to direct and consensually presented light.
Funduscopic examination reveals well- demarcated disc margins without optic pallor. There are no retinal abnormalities. The facial muscles are symmetric. The
tongue moves well. The uvula is midline. The pharyngeal folds are symmetric. There is no evidence of a torticollis. Motor examination reveals symmetric strength, bulk and tone. There are no adventitious movements and no focal weakness or atrophy. Demarcus is able to pull to a standing position and did not fall. He has good head control and good axial support. He grasps for outstretched objects using both hands and has a well-defined pincher grasp. He readily transfers between hands. There are no pathological reflexes. 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.
In SUMMARY, Demarcus' neurological examination today is entirely normal. He has no evidence of ongoing neurologic problems and certainly does not have a substantial mental or motor impairment. On the basis of today's neurological examination, I do not feel that Demarcus is eligible for compensation under the NICA statute.
Based on the foregoing, it was further agreed that:
The Petitioner does not dispute that Demarcus Cook is not permanently and substantially mentally and physically impaired so as to qualify the injury to Demarcus Cook as a "birth-related neurological injury," as that term is defined in Section 766.302(2), Florida Statutes. See attached report of Michael S. Duchowny, M.D.
By signing this Stipulation, the Petitioner acknowledges that neither she nor Demarcus Cook is entitled to compensation under the Plan.
The record demonstrates that Demarcus is neither substantially mentally nor substantially physically impaired. Consequently, for reasons appearing more fully in the Conclusions of Law, the claim is not compensable.
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 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.
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 Petitioner to demonstrate that Demarcus 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, Demarcus was "permanently and substantially mentally and physically impaired." Consequently, given the provisions of Section 766.302(2), Florida Statutes, Demarcus does not qualify for coverage under the Plan. See also
§§ 766.309(1) and (2) and 766.31(1), Fla. Stat.; 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. 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).
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 Stipulation of Non-Compensability, filed June 14, 2005, is approved, and the parties are directed to comply with the provisions thereof.
It is further ORDERED that the claim for compensation filed by Tateanna Price, on behalf of and as parent and natural guardian of Demarcus Cook, a minor, is dismissed with prejudice.
DONE AND ORDERED this 17th day of June, 2005, in Tallahassee, Leon County, Florida.
WILLIAM J. KENDRICK
Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2005.
Tana D. Storey, Esquire Roetzel & Andress
F. Shields McManus, Esquire
Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando, P.L.
Ramon Hechavarris, M.D.
Charlene Willoughby, Director Consumer Services Unit - Enforcement Department of Health
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.
