This cause came on to be heard on Respondent's Motion for Summary Final Order, served April 17, 2008.
On December 13, 2007, Richard A. Davis and Marlene C. Pinera, as parents and guardians of Michael A. Pinera-Davis (Michael), 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). Pertinent to the pending motion, the petition alleged:
DESCRIPTION OF DISABILITY
As a result of the birthing process at Memorial Hospital Miramar on January 12, 2006, the minor, Michael A. Pinera-Davis, suffered a severe injury to his brain that
is permanent due to a herpes encephalitis infection transmitted to the infant during birth.
STATEMENT OF FACTS
Michael A. Pinera-Davis suffers from severe and permanent neurological deficits with a diagnosis of cerebral palsy.
Marlene C. Pinera and Richard A. Davis are the adoptive parents of 22 month old, Michael. The adoption was finalized on 12/14/06.
Michael's birth mother was followed through her pregnancy by Dr. Jorge Martin. Michael's adoptive mother accompanied the birth mother to prenatal visits and was present at the delivery.
The birth mother reported to
Mrs. Pinera-Davis during her pregnancy that she had sexual relations (unprotected) with someone (not Michael's birth father) who had sores on his penis. She developed burning and itching, difficulty with urination.
This was reported to Dr. Martin and was tested for syphilis, but no other STDs. Marlene C. Pinera-Davis reports that the testing for syphilis was negative. The complaints continued through the time of delivery, although nothing is documented in the prenatal or the Labor and Delivery records from Memorial Hospital Miramar. The adoptive mother reported that Dr. Martin never did a visual exam of the birth mother's vagina or perineal area. Labor was induced at 37 weeks and Michael was delivered vaginally.
There were no apparent concerns at birth and Michael was discharged home on day
2 with his adoptive parents.
At 20 days old, Michael suffered a seizure and was taken to Memorial West,
where he was diagnosed with Herpes Meningitis that was due to the mother's herpes infection and transmitted to Michael at birth. Michael was transferred to Joe DiMaggio Children's Hospital until stabilized. Michael experienced additional seizures and a CVA.
DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on December 14, 2007, and on March 25, 2008, following a number of extensions of time within which to do so, NICA served its response to the petition and gave notice that it was of the view that Michael 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 the issue.
Such a hearing was scheduled for July 8, 2008. However, on April 17, 2008, NICA served the subject Motion for Summary Final Order,1 which was heard by telephone conference on June 6, 2008.2 The predicate for the motion was NICA's contention that, indisputably, while Michael was permanently and substantially mentally and physically impaired, such impairments did not result from a brain injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation, as required for coverage under the Plan. Rather, NICA was of the view that, although the cause of Michael's brain injury may be traced to the herpes simplex virus (HSV) he acquired at birth, he did not suffer a brain injury until some
three weeks after birth when, at age 21 days, he presented with the onset of acquired herpes encephalitis (inflammation of the brain).
Attached to NICA's motion was an affidavit of
Michael Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital, who evaluated Michael on February 20, 2008.3 Based on that evaluation, as well as the medical records associated with Michael's birth and subsequent development,
Dr. Duchowny concluded, within a reasonable degree of medical probability, that Michael's brain injury, and resulting impairment, was most likely caused by a developing herpes encephalitis which presented itself at approximately 21 days of life, as opposed to oxygen deprivation or mechanical injury during labor, delivery, or resuscitation. Dr. Duchowny's observations and conclusions were documented in his written report of February 20, 2008, as follows:
I evaluated Michael Pinera-Davis on February 20, 2008. Michael is a 2-year-old boy who is brought by his adoptive parents Richard Davis and Marlene Pinera.
Dr. Pinera is a veterinarian. Both parents were quite knowledgeable about Michael's medical background and provided historical information in detail.
MEDICAL HISTORY: Michael was adopted on day one of life. He was born at Miramar Memorial Hospital. The biological mother was Nicaraguan and had a history of substance abuse. Michael was delivered at
weeks gestation. He was delivered
vaginally and weighed 7 pounds 12 ounces. Prenatal care had apparently been given since the 5th month of gestation. The delivery itself was uncomplicated and Michael was discharged from the nursery at age two days.
Michael represented at age 20 days with a fever and focal seizures. He was admitted to Memorial Hospital and was ultimately confirmed to have herpes simplex encephalitis.
The herpes virus type was consistent with acquisition in the birth canal. According to the family, examination of the biological mother's cervix and cervical cultures were not performed. He went on to have a stormy course complicated by apparent seizures. He was treated with antibiotics and acyclovir. He remained on acyclovir until age 18 months. With initial seizure control with phenobarbital, he essentially went seizure- free until a single breakthrough of status epilepticus at age 18 months which was triggered by an upper respiratory infection. He subsequently stabilized and there have been no further seizures.
Michael's development is significantly delayed. He does not have use of his arms or legs and his movement is limited to the right hand. His spasticity is being treated with AFOs. He receives therapy twice weekly at the Memorial Rehab Program. This includes physical, occupational, and speech therapy for oromotor training. Therapy is also obtained twice weekly at the ARC Program and supplemental therapy is provided on weekends. His progress has been slow and he still is unable to roll over or sit up independently.
Michael's vision is good and his hearing is excellent. He has been evaluated at the Bascom-Palmer Eye Institute. He still has not developed speech but does make "some
sounds." Michael has recently begun sleeping through the night and sleeps in his parent's room. His diet consists of pureed foods. He is just starting to eat solids.
Drooling is a small problem.
* * *
Michael's NEUROLOGICAL EXAMINATION reveals a child who has a significant neurological disability. He sits propped up on his father's lap. The eyelids are closed for much of the evaluation but he is able to open them and look around without difficulty. He clearly reacts to his mother and father's voice and smiles appropriately. He became scared when his mother began laughing and started to cry. Michael was easily soothed. He had no meaningful language or speech at any time and I heard only intermittent sounds. He was unable to obey simple one-step commands. Cranial nerve examination reveals brief gaze fixation with horizontal conjugate following movements. The pupils are 3 mm and react briskly to direct and consensually presented light. The fundi were visualized briefly and appeared normal. There is blink to threat from both directions. There are no family asymmetries. The tongue is moist and papillated. The tongue movements are poorly coordinated. The pharyngeal folds are symmetric. The uvula is midline. Motor examination reveals four-limb spasticity and a double hemiparetic presentation. There is relatively greater spasticity on the left side but full range of motion could be elicited without evidence of fixed contractures. Michael would not grasp for objects offered in his hands and did not have individual finger dexterity or evidence of fine motor coordination. There was no focal weakness, fasciculations, or atrophy. Scissoring is noted in vertical suspension. Michael demonstrated significant head lag on pull-to-sit maneuver and had a reflex traction response. He did not display
obligate tonic neck responses. His deep tendon reflexes are 3+ with the exception of the ankle jerks which are 4+ with sustained ankle clonus. There are bilateral Babinski signs. A positive jaw jerk and facial jerks are easily elicitable. Sensory examination is intact to withdrawal of all extremities to stimulation. Neurovascular examination is unremarkable.
In SUMMARY, Michael's neurological examination is consistent with a substantial mental and motor impairment. He has absent speech development and manifests a spastic quadriparesis, hyperreflexia and motor development at the 2-3 month-old level.
I have not yet had an opportunity to review medical records. A final determination will await the record review.
Dr. Duchowny's observations and conclusions were further documented in his supplemental report of March 19, 2008, as follows:
I have had an opportunity to review the additional medical records supplied on Michael Pinera-Davis. The medical records document the onset of acquired herpes encephalitis at age 21 days. The encephalitis was devastating and provides a clear explanation for Michael's brain damage and his substantial mental and motor impairment. The records provide no evidence of a acquired birth injury as a consequence of either oxygen deprivation or mechanical injury. I therefore believe that Michael is not compensable under the NICA statute on this basis.
Also attached to NICA's motion was an affidavit of Donald Willis, M.D., an obstetrician, specializing in maternal- fetal medicine. Based on Dr. Willis' evaluation of the medical
records he, like Dr. Duchowny, concluded, within a reasonable degree of medical certainty, that Michael's brain injury occurred about three weeks after birth due to HSV encephalitis, and not from oxygen deprivation or mechanical injury occurring during labor, delivery or resuscitation. Dr. Willis' observations and conclusions were documented in his written report of March 24, 2008, as follows:
I have reviewed the medical records for the above individual. The birth mother, Yanderi Soto, was a 22 year old G4P1021 with a history of cocaine abuse during pregnancy.
The baby was to be given for adoption. The patient was a carrier for Group B Streptococcus.
Spontaneous onset of labor occurred at about
weeks. Antibiotics were given for + GBS culture during pregnancy. Membranes were ruptured during pregnancy with clear fluid. The fetal heart rate monitor tracing was not available for review. Vaginal birth with vacuum assistance was described as uncomplicated. Birth weight was 7 lbs 12 ozs. The baby was not depressed at birth. Apgar scores were 8/9. The newborn hospital course was uncomplicated.
About three weeks after birth, the baby presented with onset of seizures. Spinal fluid tested positive for herpes simplex virus. CT scan was normal on admission, but the MRI showed acute infarctions, mostly due to meningitis. The baby was diagnosed with HSV encephalitis.
There was no apparent obstetrical event that resulted in loss of oxygen or brain injury during labor and delivery. The baby's brain injury occurred about three weeks after birth due to HSV encephalitis. It is most
likely the baby cont[r]acted the herpes virus during birth, but brain injury did not occur until weeks later.
Petitioners did not respond to the Motion for Summary Final Order. Therefore, on May 6, 2008, an Order to Show Cause was entered, as follows:
On April 17, 2008, Respondent served a Motion for Summary Final Order. To date, Petitioners have not responded to the motion. Fla. Admin. Code R. 28-106.204(4). Accordingly, it is
ORDERED that within 10 days of the date of this Order, Petitioners show good cause in writing, if any they can, why the relief requested by Respondent should not be granted.
On March 16, 2008, Petitioners filed their response to Respondent's Motion for Summary Final Order and Response to the Administrative Law Judge's Order to Show Cause. Petitioners' response included the following statements of position:
The Respondent argues that the Petition for NICA Benefits should be denied by this Court because they believe that the injury sustained by the minor child, Michael A. Pinera-Davis, is not a birth related neurological injury as defined by the NICA Statute. Petitioner respectfully disagrees and affirmatively alleges that the injuries to this unfortunate child were caused by mechanical injury occurring during the course of labor and delivery on January 12, 2006.
It is agreed by all parties to this case that Michael's substantial brain injury was caused by the contracting Herpes Simplex Virus during the delivery occurring on
January 12, 2006. As Dr. Duchowny states in his report of February 20, 2008 "[T]he herpes virus type was consistent with acquisition in the birth canal." Additionally, Dr. Willis, in his report to NICA states "it is most likely that the baby contracted the herpes virus during birth, but brain injury did not occur until weeks later."
Petitioners also will present an affidavit from a qualified expert, Dr. Paul Gatewood, indicating that the child contracting the herpes virus during the mechanical passage through the birth canal on the day of birth, January 12, 2006. The infection that was contracted on that day caused the outbreak of herpes encephalitis on February 2, 2006, which resulted in severe asphyxial brain injury to Michael Pinera-Davis . . . .
7. It is the Petitioners' contention that the contracting of the herpes virus during the mechanical process of delivery through the vaginal canal on January 12, 2006 rendered Michael Pinera-Davis permanently and substantially, mentally and physically impaired as the infection contracted during birth continued to worsen until February 2, 2006.
The Affidavit of Petitioners' expert, Paul Gatewood, M.D., a physician board-certified in obstetrics and gynecology, was filed May 27, 2008. Based on his review of the medical records, as well as the reports of Doctors Duchowny and Willis; Dr. Gatewood opined, as follows:
It is my opinion based upon a reasonable degree of medical certainty that Michael Pinera-Davis' injuries occurred as a result of the mechanical process of labor and
delivery during which he contracted the herpes simplex virus.
It is further my opinion that the herpes simplex virus led to a progressive infection leading to asphyxial brain injury.
It is therefore my opinion that the injury to the brain of Michael Pinera-Davis is caused by mechanical injury occurring in the course of labor and delivery which renders him permanently and substantially mentally and physically impaired.
Notably, Dr. Gatewood's affidavit did not dispute or contradict the conclusions of Doctors Duchowny or Willis that Michael's brain injury occurred at age 21 days, and not during his birth.
Given the record, it is undisputed that Michael did not suffer a brain injury caused by oxygen deprivation or mechanical injury during labor, delivery, or resuscitation. Rather, Michael's brain injury, was caused by the onset of HSV encephalitis at age 21 days. Consequently, NICA's Motion for Summary Final Order is well-founded.4 Nagy v. Florida Birth- Related Neurological Injury Compensation Association, 813 So. 2d 155, 160 (Fla. 4th DCA 2002)("According to the plain meaning of the words as written, the oxygen deprivation or mechanical injury to the brain must take place during labor or delivery, or immediately afterward.").
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), 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.
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.
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), 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.
Here, indisputably, Michael's neurologic problems were not "caused by an injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation." Rather, they were caused by a brain injury that occurred at age 21 days.
Nagy v. Florida Birth-Related Neurological Injury Compensation Association, supra. Consequently, given the provisions of Section 766.302(2), Florida Statutes, Michael does not qualify for coverage under the Plan. See also 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).
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.
ORDERED that Respondent's Motion for Summary Final Order is granted, and the petition for compensation filed by Richard A. Davis and Marlene C. Pinera, as parents and guardians of
Michael A. Pinera-Davis, a minor, be and the same is dismissed with prejudice.
It is further ORDERED that the hearing scheduled for July 8, 2008, is cancelled.
DONE AND ORDERED this 24th day of June, 2008, in Tallahassee, Leon County, Florida.
WILLIAM J. KENDRICK
Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2008.
(h) Any party to a proceeding in which an administrative law judge of the Division of Administrative Hearings has final order authority may move for a summary final order when there is no genuine issue as to any material fact. A summary final order shall be rendered if the administrative law judge determines from the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that no genuine issue as to any material fact exists and that the moving party is entitled as a matter of law to the entry of a final order . . . .
2/ Ruling on Respondent's motion was deferred until the transcript (Tr.) of the hearing was filed. (Tr., page 18). The transcript was filed June 20, 2008.
3/ To have been attached to Dr. Duchowny's affidavit as Exhibit 1, was a copy of Dr. Duchowny's report of neurological evaluation dated February 20, 2008, and as Exhibit 2, a copy of his supplemental report dated March 19, 2008. Inadvertently, these exhibits were not attached to the affidavit filed with DOAH. However, Petitioner agreed copies of Dr. Duchowny's reports previously filed with DOAH on March 28, 2008, or subsequently filed with DOAH on June 9, 2008, could be
considered with Dr. Duchowny's affidavit. (Tr., pages 4 and 5).
4. When, as here, the "moving party presents evidence to support the claimed non-existence of a material issue, he . . . [is] entitled to a summary judgment unless the opposing party comes forward with some evidence which will change the result; that is, evidence to generate an issue of a material fact. It is not sufficient for an opposing party merely to assert that an issue does not exist." Turner Produce Company, Inc. v. Lake Shore Growers Cooperative Association, 217 So. 2d 856, 861 (Fla. 4th DCA 1969). Accord, Roberts v. Stokley, 388 So. 2d 1267 (Fla. 2d DCA 1980); Perry v. Langstaff, 383 So. 2d 1104 (Fla. 5th DCA 1980).
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.
