STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALFIE KALA TUFF, on behalf of and as parent and natural guardian of LAVONNE SIMONE TUFF, a minor,

Petitioner,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

)

)

)

)

)

)

)

) Case No. 10-7401N

)

)

)

)

)

)

)

SUMMARY FINAL ORDER

This cause came on for consideration upon Respondent's Motion for Summary Final Order served by U.S. Mail on

October 20, 2011, and filed with the Division of Administrative Hearings (DOAH) the same date.

STATEMENT OF THE CASE

1. On March 22, 2010, Alfie Kala Tuff, on behalf of and as parent and natural guardian of Lavonne Simone Tuff, a minor born February 11, 2010, filed a petition (claim) with 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 August 12, 2010; served Shands Jacksonville [Hospital] on August 13, 2010; and served Rebekah Richmond, M.D., on January 10, 2011.

3. There have been no motions to intervene.

   
   

4. After several extensions of time in which to do so, on February 2, 2011, Respondent Florida Birth-Related Neurological Injury Compensation Association (NICA) filed its response to the Petition for Benefits and gave notice that it was of the view that Lavonne Simone had not suffered a compensable injury.

5. On March 21, 2011, an Order was entered, which provided, in pertinent part:

   This cause came before the undersigned for a case management conference on March 18, 2011, and the undersigned having reviewed the record in this cause, it is

   
   

   ORDERED that upon advices from the parties, they are granted to and until April 22, 2011, in which to respond to the Order entered March 3, 2011.

   
   

6. On April 4, 2011, the undersigned wrote the parties, in pertinent part, as follows:

   Inasmuch as you did not respond to the March 3, 2011, Order, by April 22, 2011, as

   provided-for by the Order of March 21, 2011, it seems reasonable to set this case for hearing upon the issue of compensability.

   
   

   Rather than my unilaterally selecting a date for hearing, my administrative assistant will call each of you to schedule a telephonic conference call so that you can

   
   

   have input on the selection of a date for final hearing.

   
   

7. On May 5, 2011, a Notice of Hearing for October 13, 2011, and Order of Prehearing Instructions were entered.

8. On September 1, 2011, a telephonic pre-hearing conference was held, which, despite written notice thereof, Petitioner did not attend.

9. Neither party complied with the Order of Prehearing Instructions by filing an unilateral prehearing statement or joint prehearing stipulation, and the final hearing was accordingly cancelled. The Order cancelling hearing provided, in pertinent part:

   This cause having come before the undersigned on Respondent's letter- suggestion that Petitioner seeks to abandon her claim; Petitioner's failure to return phone calls from the office of the undersigned; and the failure of the parties to comply with the Order of Prehearing Instructions dated May 5, 2011, it is, ORDERED:

   
   

   1. The final hearing scheduled for October 13, 2011, is canceled.

      
      

   2. The parties shall have until October 21, 2011, in which to file the prehearing stipulation required by the Order of Prehearing Instructions. Simultaneous with the filing of that prehearing stipulation, the parties are invited to submit several mutually agreeable dates in December 2011 or January 2012 for the rescheduling of the final hearing in this cause.

      
      

   3. Should either party fail to submit at least the names of witnesses to be called by that party (and Petitioner may testify as a witness but shall give notice thereof) and a list of exhibits to be introduced by that party, such failure will result in exclusion of that evidence at the final hearing in this cause.[1/]

      
      

10. On October 20, 2011, NICA filed its Motion for Summary Final Order. The predicate for NICA's motion is that

    Lavonne Simone's injury does not meet the definition of a birth- related neurological injury as defined in section 766.302(2), Florida Statutes. Pursuant to section 766.301(3), the Plan only compensates for birth-related neurological injuries caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital.

11. In support of its Motion for Summary Final Order, Respondent attached the affidavit of Michael S. Duchowny, M.D., a pediatric neurologist,2/ who testified therein, within reasonable medical probability, that:

    * * *

    
    

    3. The Florida Birth-Related Neurological Injury Compensation Association retained me as its expert in pediatric neurology to review records from Lavonne Tuff and to conduct an independent medical examination and neurological examination. The purpose of my review of the medical records of Lavonne Tuff and the independent medical examination 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 period in the Hospital has rendered the child with [sic] permanently and substantially mentally and physically impaired.

    
    

    * * *

    
    

    1. In summary, Lavonne's neurologic examination in detail reveals evidence of a substantial mental and motor impairment. She demonstrates spastic quadriparesis with absent motor development past the newborn period, hyperreflexia, pathologic reflexes, an alternating esotropia and poor oromotor

       coordination. The findings are demonstrable both for axial and appendicular musculature. Lavonne also demonstrates severe microcephaly and although she is only ten months old, I suspect that her neurological deficits will be permanent.

       
       

    2. A review of Lavonne's medical records indicates that her neurologic damage was most likely acquired prior to the onset of labor. Her mother was not in active labor when she presented at Shands Jacksonville Hospital and the absence of fetal movement had been noted for at least 24 and probably

       48 hours prior to delivery. Furthermore, Lavonne's Apgar scores were favorable and her cord blood gases and neonatal course are all inconsistent with intrapartum acquisition of damage. Furthermore, the records indicate that Lavonne's MRI scan at approximately 25 hours of age already revealed evidence of advanced cytotoxic edema which also predates Lavonne's hypoxic- ischemic damage before delivery. Given the weight of evidence from the medical records, I do not believe that Lavonne is compensable under the NICA statute.

       
       

    3. 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 a Hospital that resulted in oxygen or mechanical trauma to the baby's brain which rendered the child permanently and substantially mentally and physically impaired.

    
    

12. Petitioner did not file a timely response in opposition to the Motion for Summary Final Order.3/

13. An Order to Show Cause was entered on November 2, 2011, which provided, in pertinent part:

    On October 20, 2011, Respondent served a Motion for Summary Final Order. To date,

    Petitioner has not responded to the

    motion. Fla. Admin. Code R. 28-106.103 and 28-106.204(4). Nevertheless, and notwithstanding that she has been accorded the opportunity to do so, it is

    
    

    ORDERED that by November 14, 2011, Petitioner shall show good cause in writing, if any she can, why the relief requested by Respondent should not be granted, thereby disposing the case against Petitioner. (emphasis added).

    
    

14. No timely response to the November 2, 2011, Order nor to the Motion for Summary Final Order has been filed. Accordingly, nothing has been provided to refute the expert medical opinion tendered by the affidavit filed concurrently with the motion.4/

15. It is of some concern that affiant neurologist is testifying concerning what are essentially obstetrical matters

    
    

    and Respondent has not provided analysis, by an obstetrician, of the mother's and child's labor and delivery records,5/ but absent a response in opposition, there can be no dispute of material fact. Specifically, there is no dispute that Lavonne's injury, with resultant deficits, did not originate during labor, delivery or resuscitation in the immediate postdelivery period in a hospital.

16. Given the record, there is no dispute of material fact. Specifically, there is no dispute that Lavonne Simone Tuff's situation does not meet the definition of a "birth- related neurological injury" as set out at section 766.302(2).

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. §§ 766.301-766.316, Fla. Stat.

18. 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.

19. 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(4), Fla. Stat.

20. 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.

21. 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 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.

22. 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. (emphasis added).

    
    

23. Here, indisputably, Lavonne Simone Tuff suffers from permanent and substantial mental and physical impairment, probably developmental, but her injury apparently did not occur during the statutory period for compensability and it affirmatively appears that the damage was most likely acquired prior to the onset of labor. Given the provisions of section 766.302(2), Lavonne Simone Tuff does not qualify for coverage under the Plan. See also Fla. Birth-Related Neurological Injury Comp. Ass'n v. Fla. Div. of Admin. 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 Fla. 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, Fla. Birth-Related

Neurological Injury Comp. Ass'n v. McKaughan, 668 So. 2d 974, 979 (Fla. 1996).

CONCLUSION

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED:

1. NICA's Motion for Summary Final Order is granted.

   
   

2. The Petition for Benefits Pursuant to Florida Statute Section 766.301, et seq., filed by Alfie Kala Tuff, on behalf of

and as parent and natural guardian of Lavonne Simone Tuff, a minor, be, and the same, is dismissed with prejudice.

DONE AND ORDERED this 15th day of November, 2011, 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 15th day of November, 2011.

ENDNOTES

1/ The standard procedure where a hearing is cancelled because the parties have not complied with the pre-hearing order is for the Administrative Law Judge (ALJ) to not reschedule the case until all parties have at least disclosed their witnesses and exhibits in response to a new order to that effect. In a situation such as the instant case, where a petitioner bears the burden to go forward and the burden of proof, (See Balino v.

Dep't of Health and Rehab. Servs., 348 So. 2d 349, 350 (Fla. 1st DCA 1997)), and does not file any witness or exhibit list in response to the order requiring them, a third order is usually entered to solicit a report from the petitioner as to whether s/he still intends to testify or present evidence. In the event a petitioner does not respond to the third order, a fourth order is entered to show cause why the case should not be dismissed.

This standard procedure has not been followed in the instant case due to the intervening Motion for Summary Final Order.

2/ See, e.g., Vero Beach Care Ctr 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 observable."); Ackley v. Gen. Parcel Servs., 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 Ins. Co. 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/ Rule 28-106.103 provides:

In computing any period of time allowed by this chapter, by order of a presiding officer, or by any applicable statute, the day of the act from which the period of time begins to run shall not be included. The last day of the period shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day which is not a Saturday, Sunday, or legal holiday. When the period of time allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in these rules, legal holiday means those days designated in Section 110.117, F.S. Except as provided in Rule 28-106.217, F.A.C., five days shall be added to the time limits when service has been made by regular U.S. mail. One business day shall be added when service is made by overnight courier. No additional time shall be added if service is made by hand, facsimile transmission, or electronic mail or when the period of time begins pursuant to a type of notice described in Rule 28-106.111, F.A.C.

Rule 28-106.204 provides:

1. All requests for relief shall be by motion. All motions shall be in writing unless made on the record during a hearing,

   
   

   and shall fully state the action requested and the grounds relied upon. The original written motion shall be filed with the presiding officer. When time allows, the other parties may, within 7 days of service of a written motion, file a response in opposition. Written motions will normally be disposed of after the response period has expired, based on the motion, together with any supporting or opposing memoranda. The presiding officer shall conduct such proceedings and enter such orders as are deemed necessary to dispose of issues raised by the motion.

   
   

2. Unless otherwise provided by law, motions to dismiss the petition or request for hearing shall be filed no later than 20 days after service.

   
   

3. Motions, other than a motion to dismiss, shall include a statement that the movant has conferred with all other parties of record and shall state as to each party whether the party has any objection to the motion.

   
   

4. In cases in which the Division of Administrative Hearings has final order authority, any party may move for summary final order whenever there is no genuine issue as to any material fact. The motion may be accompanied by supporting affidavits. All other parties may, within seven days of service, file a response in opposition, with or without supporting affidavits. A party moving for summary final order later than twelve days before the final hearing waives any objection to the continuance of the final hearing.

   
   

5. In cases in which the Division of Administrative Hearings has recommended order authority, a party may file a motion to relinquish jurisdiction whenever there is no genuine issue as to material fact.

   
   

6. Motions for extension of time shall be filed prior to the expiration of the deadline sought to be extended and shall state good cause for the request.

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 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 Co., Inc. v. Lake Shore Growers Coop. Ass'n, 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).

5/ However, it is noted that the Motion for Summary Final Order recites that, "The baby was born on February 11, 2010, at Shands Jacksonville Hospital. The circumstances of the labor, delivery and birth of the child are reflected in the medical records of Shands Jacksonville Hospital and were submitted with the Petition." Dr. Duchowny's affidavit shows he reviewed these records.

COPIES FURNISHED:

(Via Certified Mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association

Tallahassee, Florida 32399-3275

(Certified Mail No. 7010 3090 0000 0717 1833)

Elizabeth Dudek, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308

(Certified Mail No. 7010 3090 0000 0717 1840)

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 § 766.311, Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n 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: 10-007401N

Orders for Case No: 10-007401N