STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent Florida Birth-Related Neurological Injury Compensation Association's (NICA's) Motion for Summary Final Order, filed December 16, 2009.

STATEMENT OF THE CASE

1. On July 6, 2009, Petitioners Maxine Samuels (mother) and Errol Tomlinson (father) as parents and natural guardians of Teshawn Tomlinson, a minor, whose date of birth is alleged as December 16, 2005, filed a petition (claim) with the Division of Administrative Hearings (DOAH) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).

2. DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on July 9, 2009. All potential intervenors also were served in July 2009.

3. No petitions to intervene have been filed.

   
   

4. After two extensions in which to do so, Respondent NICA filed a Response to the Petition, denying compensability of the claim and requesting a hearing to determine compensability.

5. On December 16, 2009, NICA served by U.S. Mail, a Motion for Summary Final Order, pursuant to Section 120.57(1)(h), Florida Statutes.1 The predicate for NICA's Motion was its assertion that, indisputably, there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to Teshawn's brain during labor, delivery, or the immediate post-delivery period.

6. Attached to NICA's Motion was an affidavit of Donald C. Willis, M.D., an obstetrician specializing in maternal-fetal medicine. In his affidavit, Dr. Willis opined, within a reasonable degree of medical probability, in pertinent part:

3. . . . The purpose of my review of the medical records of TESHAWN TOMLINSON and MAXINE SAMUELS was to determine whether an injury occurred in the course of labor, delivery or resuscitation in the immediate post-delivery period in the hospital due to oxygen deprivation or mechanical injury occurring in the course of labor, delivery,

or resuscitation in the immediate post- delivery in the hospital.

* * *

1. In summary, labor was induced for post- dates and a non-reactive NST. There was thick meconium at delivery. Bag and mask ventilation was required for about 30 seconds at the birth for respiratory depression. However, Apgar scores were 8/9. The baby had an uneventful newborn course. There was no apparent obstetrical event that would suggest oxygen deprivation or mechanical trauma to the child's brain during labor, delivery or the immediate

   post-delivery period.

   
   

2. As such, it is my opinion that there was no oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post- delivery period in the hospital. Further, in that there was no oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period in the hospital, then accordingly, there was no causal event which could have rendered TESHAWN TOMLINSON permanently and substantially mentally and physically impaired as a result of same.

   
   

3. Dr. Willis' affidavit incorporated, by reference, his September 1, 2009, letter-report, which stated, in pertinent part:

   . . . Labor was induced for post-dates and a non-reactive NST. Biophysical profile was normal with a score of 8/8. Fetal heart rate monitor during labor did not show fetal distress. Cesarean [sic] section was done for 'failed induction.' . . .

   . . . Bag & mask ventilation was required for about 30 seconds after birth for respiratory depression. However, Apgar scores were 8/9. The baby had an uneventful newborn course. . . .

   
   

   There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor, delivery, or the immediate post-delivery period.

   
   

4. Also attached to the Motion for Summary Final Order was an affidavit of Michael S. Duchowny, M.D., a pediatric neurologist. Dr. Duchowny's affidavit reads, in pertinent part:

   * * *

   
   

   1. I evaluated TESHAWN TOMLINSON on October 28, 2009. A true and accurate copy of my neurology evaluation is attached hereto. All of the statements and opinions

      expressed therein are true and correct based upon my review of the records, the history taken, and my opinions from the evaluation of the child.

      
      

   2. In summary, TESHAWN TOMLINSON most likely has the syndrome of ataxic cerebral palsy that was acquired prenatally.

      However, there is no evidence in the medical record for an hypoxic event or mechanical injury during labor, delivery or the immediate postnatal period.

      
      

      * * *

      
      

      7. It is my opinion that TESHAWN TOMLINSON does have substantial mental and motor impairment, most likely caused by the ataxic cerebral palsy. However, I do not regard his neurological presentation as consistent with a neurological injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury occurring

      during the course of labor, delivery, or the immediate post-delivery period in the hospital during the birth of TESHAWN TOMLINSON. . . .

      
      

5. Dr. Duchowny's affidavit also incorporates by reference his written neurologic evaluation (independent medical evaluation or IME) dated October 28, 2009, which written evaluation states, in pertinent part:

   In SUMMARY, Teshawn's neurological examination reveals evidence of substantial mental and motor impairment. . . .

   
   

   * * *

   
   

   . . . Teshawn most likely has the syndrome of ataxic cerebral palsy that was acquired prenatally. I do not regard his presentation as consistent with a neurological injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury at birth. [2]

   
   

6. On December 16, 2009, the same day that Respondent NICA's Motion for Summary Final Order was filed, Petitioners filed a letter-motion requesting 60 days in which to provide mutually agreeable hearing dates and in which to obtain legal counsel.3 NICA filed a Response to that letter-motion on December 21, 2009, which response acquiesced in a continuance but which opposed the length of continuance requested.

7. On December 29, 2009, an Order of Abatement, Providing for Future Filings was entered, which provided:

   1. Petitioners' letter-motion is granted in part and denied in part.

      
      

   2. This cause is abated to and until January 28, 2010 (30 days) or until Petitioners' attorney, if any, enters a formal notice of appearance, whichever occurs first.

      
      

   3. Petitioners or their attorney, if any, are granted to and until February 15, 2010, in which to file a response to the pending Motion for Summary Final Order, and

      
      

   4. Absent a further order ruling otherwise, Respondent's Motion for Summary Final Order will be ruled upon on or about February 25, 2010.

   
   

8. Petitioners filed no timely response to the Motion for Summary Final Order, so on March 10, 2010, an Order to Show Cause was entered, which provided, in pertinent part:

   To date, no attorney has filed an appearance on behalf of Petitioners, and Petitioners have filed no response in opposition to the Motion for Final Summary Order [sic].

   
   

   The Motion for Summary Final Order asserts, upon attached affidavits of two physicians, that Teshawn Tomlinson's claim does not medically meet the statutory definition of a compensable injury under Sections 766.301- 766.366, Florida Statutes. A ruling granting the Motion for Summary Final Order would resolve this case against Petitioners.

   
   

   Therefore, in an abundance of caution, Petitioners are granted to and until

   March 24, 2010, to show cause why the Motion for Summary Final Order should not be granted.

   
   

9. On March 26, 2010, a date beyond the response time specified in the March 10, 2010 Order, Petitioners filed a

   letter requesting an extension of time.4 On April 5, 2010, Respondent filed a Response to Petitioners' March 10, 2010 letter. On April 7, 2010, a Scheduling Order was entered, which quoted from Petitioners' March 26, 2010, letter-motion and provided, in pertinent part:

   Petitioners' letter, filed March 26, 2010, is here treated as an unopposed motion for additional time.

   
   

   However, to date, Petitioners have failed to meet each timeline set by either DOAH's rules or by Order of the undersigned, and their letter-motion filed March 26, 2010, specifies neither an additional time period during which Petitioners reasonably believe they will obtain legal counsel nor a specific reference as to when, or if, they can produce the 'substantial documentation

   . . .' Petitioners allege is 'missing from the medical records on which the medical expert [sic] based their opinions, for example missing lab works, doctor's orders, nurse's notes, progress notes and regular blood gas report.' Petitioners also have not specified what they believe to be '. . . sufficient time to have the child medically examined and to prepare their own discoveries.'

   
   

   Therefore, it is ORDERED:

   
   

   1. By separate Order, a case management conference will be scheduled.

      
      

   2. That Order will provide a date and time for a telephonic case management conference when Petitioners or their attorney, if Petitioners obtain an attorney, and the attorney for Respondent may be connected to the undersigned Administrative Law Judge.

   3. The telephonic conference call will include, but not be limited to, an opportunity for Petitioners to supply the information missing from their March 26, 2010, letter/motion (see above), that is, to state what they regard as a sufficient amount of time for them to obtain counsel as well as a sufficient amount of time they deem necessary to provide exhibits and/or argument in opposition to the pending Motion for Summary Final Order. If appropriate, the parties will also be requested to provide future hearing dates.

   
   

10. Also on April 7, 2010, a Notice of Telephonic Case Management Conference for April 27, 2010, was issued, and on April 27, 2010, a telephonic case management conference was conducted by the undersigned, with Petitioner Errol Tomlinson and NICA's attorney of record present. The following day, April 28, 2010, an Order was entered, which provided, in pertinent part, as follows:

    Petitioners requested until June 28, 2010, in which to obtain an attorney, provide additional medical records to Respondent NICA and/or to submit a counter-affidavit of a healthcare provider in response to NICA's pending Motion for Summary Final Order. In the best interests of the child, Teshawn, NICA agreed to this proposed time frame.

    
    

    It is, therefore, ORDERED:

    
    

    1. Petitioners are granted to and until June 28, 2010, in which to file any counter- affidavits addressing the pending Motion for Summary Final Order or the medical affidavits attached thereto.

       
       

    2. Petitioners should submit directly to NICA's attorney copies of any medical

       records they believe NICA or its experts have not previously considered. The medical records themselves should not be filed with the Division of Administrative Hearings, but Petitioners should file with the Division a Notice of Service, listing any new items submitted to NICA's attorney at the same time as those items are submitted to NICA's attorney.

       
       

    3. Respondent NICA shall notify Petitioners and the undersigned within 10 days of receiving them if any newly submitted medical records alter NICA's position on the pending Motion for Summary Final Order.

       
       

    4. Any attorney entering upon representation of Petitioners shall immediately file a notice of appearance.

    
    

11. To instant date, Petitioners have filed no counter- affidavits addressing the pending Motion for Summary Final Order or addressing the medical affidavits attached to the Motion for Summary Final Order. Likewise, Petitioners also have filed no Notice of Service, listing any items submitted to NICA's attorney, and no attorney has filed a notice of appearance on behalf of Petitioners. Moreover, on July 12, 2010, Respondent NICA filed a Response to Order Issued April 28, 2010, advising that NICA has received no more records from Petitioners and requesting that the Motion for Summary Final Order be addressed.

12. Accordingly, despite ample time in which to do so, Petitioners have filed no argument in opposition, or evidence to refute, the Motion for Summary Final Order which has been pending since December 16, 2009. Nor have Petitioners filed any

    further requests for time to respond thereto. Therefore, given the record, it is undisputed that, substantial and material though Teshawn's problems are, they most likely arose prior to birth and were not the result of oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital. Consequently, for reasons appearing more fully in the Conclusions of Law, NICA's Motion for Summary Final Order is well-founded.5

    CONCLUSIONS OF LAW

    
    

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

14. 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.

15. 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.

16. 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 766.031, Fla. Stat.

17. 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.

18. 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.

    
    

19. Here, indisputably, Teshawn's neurologic problems were not ". . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation."

    Consequently, given the provisions of Section 766.302(2), Florida Statutes, Teshawn 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); Florida Birth- Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearings, 686 So. 2d 1349 (Fla.

    1997).

    
    

20. Where, as here, the administrative law judge determines that "the injury alleged is not a birth-related neurological injury . . . she . . . shall enter an order [to such effect] and shall 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 Statement of the Case and Conclusions of Law, it is

ORDERED that Respondent's Motion for Summary Final Order is granted, and the Petition for compensation filed by

Maxine Samuels and Errol Tomlinson, on behalf of and as parents and natural guardians of Teshawn Tomlinson, a minor, is dismissed with prejudice.

DONE AND ORDERED this 23rd day of July, 2010, in Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2010.

ENDNOTES

1/ Section 120.57(1), Florida Statutes (2009), provides:

(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. A summary final order shall consist of findings of fact, if any, conclusions of law, a disposition or penalty, if applicable, and any other information required by law to be contained in the final order.

2/ See, e.g., Vero Beach Care Center v. Ricks, 476 So. 2d 262,

264 (Fla. 1st DCA 1985)("Lay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observer able."); Ackley v. General Parcel Services, 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The determination of the cause of a non-observable medical condition, such as a psychiatric illness, is essentially a medical question."); 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 obligated to present expert medical evidence establishing that causal connection.").

3/ This letter-motion was in response to a prior order for the provision of hearing dates mutually agreeable to the parties and did not address any medical or causative issue regarding Teshawn.

4/ This letter-motion recited Petitioners' perception of Teshawn's present condition, directly requested time to obtain allegedly missing medical/hospital records, and requested, by implication, time to get an independent medical examination of Teshawn. It asserted that Teshawn had suffered "physical and cognitive injuries or mechanical trauma while in labor at the hospital," but provided no supporting medical opinion.

5/ 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 that 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 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 1960); Perry v. Langstaff, 383 So. 2d 1104 (Fla. 5th DCA 1980).

COPIES FURNISHED:

(Via Certified Mail)

Martin P. McDonnell, Esquire

Rutledge, Ecenia, Purnell & Hoffman, P.A.

109 South Monroe Street Tallahassee, Florida 32302

(Certified Mail No. 7010 0290 0001 2352 0406)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association 2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

Kompal Gadh, M.D. Sheridan Healthcare

1613 North Harrison Parkway, #200

Sunrise, Florida 33323

Amy Rice, Acting Investigation Manager Consumer Services Unit

Department of Health

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

(Certified Mail No. 7010 0290 0001 2352 0451)

Elizabeth Dudek, Deputy Secretary Health Quality Assurance

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7010 0290 0001 2352 0468)

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: 09-003567N

Orders for Case No: 09-003567N