00-005144N Randy And Denise Larkin, As Natural Parents And Guardians Of Miranda P. Larkin, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, June 15, 2001.

Summary: Infant did not present with a substantial motor or mental impairment. Therefore, claim was not compensable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RANDY and DENISE LARKIN, as parents )

and natural guardians of MIRANDA )

P. LARKIN, a minor , )

)

Petitioners , )

)

vs. ) Case No. 00-5144N

)

FLORIDA BIRTH-RELATED NEUROLOGICAL )

INJURY COMPENSATION ASSOCIATION , )

)

Respondent , )

)

and )

)

BIG SUN HEALTHCARE SYSTEMS, INC. , )

d/b/a MUNROE REGIONAL MEDICAL )

CENTER, INC. and SEABORN M. )

HUNT, M.D. , )

)

Intervenors. )

____________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings,

by Administrative Law Judge William J. Kendrick, held a final

hearing in the above-styled case on May 16, 2001, by telephone.

APPEARANCES

For Petitioner : Keith J. Carden, Esquire

Morgan, Colling & Gilbert, P.A.

Post Office Box 4979

Orlando, Florida 32802-4979

For Respondent : David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

For Intervenor B ig S un H ealthcare S ystems, I nc.,

d/b/a M unroe R egional M edical:

David O. Doyle, Jr., Esquire

Hill, Reis, Adams, Hall & Schieffelin, P.A.

1417 East Concord Street

Post Office Box 533995

Orlando, Florida 32853-3995

For Intervenor Seaborn M. Hunt, M.D.:

M. Suzanne Chistolini, Esquire

Siboni, Hamer & Buchanan, P.A.

307 Northwest 3rd Street

Ocala, Florida 34475

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Miranda P. Larkin, a

minor, suffered an injury for which compensation should be

awarded under the Florida Birth-Related Neurological Injury

Compensation Plan.

PRELIMINARY STATEMENT

On November 20, 2000, Petitioners, Randy Larkin and

Denise Larkin, as parents and natural guardians of Miranda P.

Larkin (Miranda), 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

January 1, 2001. 1 NICA reviewed the claim and on January 22,

2001, gave notice that it had "determined that such claim is not

a 'birth-related neurological injury' within the meaning of

Section 766.302(2), Florida Statutes," and requested that "an

order [be entered] setting a hearing in this cause [on such

issue]." Such a hearing was held on May 16, 2001.

At hearing, the parties stipulated to the factual matters

set forth in paragraphs 1 and 2 of the Findings of Fact.

Petitioners' Exhibit 1 (the medical records filed with DOAH on

December 29, 2000) and Respondent's Exhibit 1 (the deposition of

Michael S. Duchowny, M.D., filed with DOAH on May 14, 2001) were

received into evidence. No witnesses were called, and no further

exhibits were offered.

The transcript of the hearing was filed May 30, 2001, and

the parties were accorded 10 days from that date to file proposed

final orders. Respondent elected to file such a proposal and it

has been duly considered.

FINDINGS OF FACT

Fundamental findings

1. Petitioners, Randy Larkin and Denise Larkin, are the

parents and natural guardians of Miranda P. Larkin, a minor.

Miranda was born a live infant on November 24, 1998, at Munroe

Regional Medical Center, a hospital located in Ocala, Florida,

and her birth weight was in excess of 2,500 grams.

2. The physician providing obstetrical services during the

birth of Miranda was Seaborn Hunt, M.D., who was at all times

material hereto a "participating physician" in the Florida Birth-

Related Neurological Injury Compensation Plan, as defined by

Section 766.302(2), Florida Statutes.

Coverage under the Plan

3. Pertinent to this case, coverage is afforded under the

Plan when the claimants demonstrate, more likely than not, that

the infant suffered an "injury to the brain or spinal cord . . .

caused by oxygen deprivation or mechanical injury occurring in

the course of labor, delivery, or resuscitation in the immediate

post-delivery period in a hospital, which renders the infant

permanently and substantially mentally and physically impaired."

Section 766.302(2), Florida Statutes. Here, the uncontroverted

proof demonstrates that the infant has neither a substantial

mental nor a substantial physical impairment. Consequently, it

is unnecessary to address whether she suffered an injury to the

brain or spinal cord, and if so, whether any such injury occurred

in the course of labor, delivery, or resuscitation in the

immediate post-delivery period in the hospital.

Miranda's mental and physical presentation

4. On February 9, 2000, at Petitioners' request, Miranda

was examined by Michael S. Duchowny, M.D., a pediatric

neurologist associated with Miami Children's Hospital, Miami,

Florida. The results of that evaluation were reported, as

follows:

. . . Miranda is a 14 month old girl who was

brought by her mother for an evaluation of

developmental status.

Mrs. Larkin began by explaining that

Miranda's problems are the result of birth

related trauma. She was born at 37 weeks

gestation at Monroe Regional Hospital.

Mrs. Larkin's pregnancy was complicated by

gestational diabetes and toxemia with

hypertension. The delivery, itself, was

complicated by some respiratory distress and

metabolic instability, followed by 1 or 2

seizures. Miranda was transferred to Shan's

Hospital and remained in their Newborn Unit

for 13 days. Mrs. Larkin's feels that

Miranda was "under stress for a long time".

Upon returning home, Miranda's course

stabilized. She did have a history of her

head turning to the right and her skull

growth was noted to be asymmetric. She was

ultimately diagnosed with right coronal

synostosis and had surgical repair in October

of 1999 at age 11 months. She had a prior

work up including an MRI, EEG and EKG. The

MRI apparently revealed "fluid on the brain

on one side", but Mrs. Larkin does not have

further information. She does not believe

that Miranda has lateralized weakness.

Miranda sat at 6 months and stood at 7

months. She was walking now in an unsteady

fashion, but is able to ambulate without

support. She speaks in multiple words.

Miranda's health has otherwise been stable.

She is on no chronic medications. Her vision

and hearing are said to be normal. Miranda

is not yet sleeping through the night. She

has an excellent appetite.

The FAMILY HISTORY reveals the father to be

44; the mother to be a 35 year old, gravida

1, para 1, ABO. There are no family members

with neurodegenerative illnesses, mental

retardation or cerebral palsy.

Miranda is fully immunized and has no known

allergies. She has had additional surgeries,

including a probe of her tear duct and tubes

in her ears.

PHYSICAL EXAMINATION reveals Miranda to be

alert, pleasant and cooperative. She sits

quietly in her mother's lap and displays an

appropriate degree of stranger anxiety. The

head circumference measures 47 .9 cm, which is

at the 80th percentile for age matched

controls. The coronal synostosis surgical

scar is healing well. There is an asymmetric

cranial vault with relative depression on the

left and the left eye appears lower than the

right with narrowing of the palpebral

fissure. The tongue movements are

coordinated. The neck is supple without

masses, thyromegaly or adenopathy. There are

no neurocutaneous stigmata and no digital or

palmar abnormalities. The cardiovascular,

respiratory and abdominal examinations are

normal.

Miranda's NEUOLOGIC EXAMINATION reveals her

to be socially alert and interactive. She

maintains good central gaze fixation and has

conjugate following eye movements. The

pupils are 3 mm and react briskly to direct

and consensually presented light. There are

no fundoscopic changes. Motor examination

reveals symmetric strength and bulk. The

tone is slightly diminished for age. There

is no focal weakness and no atrophy. There

are no adventitious movements. Miranda is

able to walk with some developmental

instability, but she does not fall or lean to

either side. There is no evidence of

torticollis. The stance is somewhat wide

based. There is withdrawal of all

extremities to stimulation. The deep tendon

reflexes are 2 throughout and the plantar

responses are equivocal. Neurovascular

examination reveals no cervical, cranial or

ocular bruits and no temperature or pulse

asymmetries.

In SUMMARY, Miranda's neurologic examination

reveals evidence of mild generalized

hypotonia with some axial instability. She

additionally has craniofacial dysmorphism,

secondary to her coronal synostosis.

5. It was Dr. Duchowny's opinion that Miranda's neurologic

examination revealed no significant neurologic abnormalities, and

that she does not suffer either a substantial motor or mental

impairment. Such opinion is uncontroverted, grossly consistent

with the record, and credible. Consequently, for reasons

appearing more fully from the Conclusions of Law which follow, it

must be resolved that Miranda does not qualify for coverage under

the Plan.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction

over the parties to, and the subject matter of, these

proceedings. Section 766.301, et seq. , Florida Statutes.

7. 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. Section 766.303(1),

Florida Statutes.

8. The injured "infant, 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. Sections 766.302(3),

766.303(2), 766.305(1), and 766.313, Florida Statutes. 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." Section 766.305(3), Florida

Statutes.

9. 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. Section 766.305(6), Florida Statutes. 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 C hapter 120,

F lorida Statutes. Sections 766.304, 766.307, 766.309, and

766.31, F lorida Statutes.

10. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a ) 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).

(b ) 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.

Section 766.309(1), Florida Statutes. 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." Section 766.31(1), Florida Statutes.

11. 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 at

birth caused by oxygen deprivation or

mechanical injury occurring in the course of

labor, delivery, or resuscitation in the

immediate post-delivery 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.

12. As the claimants, the burden rested on Petitioners to

demonstrate entitlement to compensation. Section 766.309(1)(a),

Florida Statutes. See also Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349, 350 (Fla. 1st DCA 1977),

("[T ]he burden of proof, apart from statute, is on the party

asserting the affirmative issue before an administrative

tribunal").

13. Here, the proof failed to demonstrate that Miranda is

permanently and substantially mentally and physically impaired.

Consequently, the proof failed to demonstrate that the claim is

compensable under the Plan. Sections 766.302(2), 766.309(1), and

766.31(1), Florida Statutes.

14. 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."

Section 766.309(2), Florida Statutes. Such an order constitutes

final agency action subject to appellate court review. Section

766.311(1), Florida Statutes.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the petition for compensation filed by

Randy Larkin and Denise Larkin, as parents and natural guardians

of Miranda P. Larkin, a minor, be and the same is hereby denied

with prejudice.

DONE AND ORDERED this 15th day of June, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of June, 2001.

ENDNOTE

1/ The delay in service was occasioned by Petitioners' initial

failure to submit the filing fee, as well as adequate copies of

the petition and medical records for service as required by

Section 766.305(2), Florida Statutes.

COPIES FURNISHED:

(By certified mail)

Keith J. Carden, Esquire

Morgan, Colling & Gilbert, P.A.

Post Office Box 4979

Orlando, Florida 32802-4979

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

David O. Doyle, Jr., Esquire

Hill, Reis, Adams, Hall & Schieffelin, P.A.

1417 East Concord Street

Post Office Box 533995

Orlando, Florida 32853-3995

M. Suzanne Chistolini, Esquire

Siboni, Hamer & Buchanan, P.A.

307 Northwest 3rd Street

Ocala, Florida 34475

Lynn Larson, Executive Director

Florida Birth-Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32317-4567

Seaborn Hunt, M.D.

150 Southeast 17th Street, Suite 703

Ocala, Florida 34474

Munroe Regional Medical Center

Legal Department

121 Northwest Third Street

Ocala, Florida 34475

Ms. Charlene Willoughby

Agency for Health Care Administration

Consumer Services Unit

Post Office Box 14000

Tallahassee, Florida 32308

Mark Casteel, General Counsel

Department of Insurance

The Capitol, Lower Level 26

Tallahassee, Florida 32399-0300

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 one copy of a Notice of Appeal with the Agency Clerk of the

Division of Administrative Hearings and a second copy, accompanied

by filing fees prescribed by law, with the appropriate District

Court of Appeal. See Section 120.68(2), 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.