00-004536N David Greene And Lizbeth Greene, On Behalf Of And As Natural Guardians Of Thalya Greene, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, July 25, 2001.

Summary: Infant`s brain injury, caused by meningitis, secondary to a Group B streptococcal infection acquired during the birthing process, was not the result of oxygen deprivation or mechanical injury. Therefore, claim was not compensable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID GREENE and LIZBETH GREENE , )

as parents and natural guardians )

of THALYA GREENE, a minor, )

)

Petitioners , )

)

vs. ) Case No. 00-4536N

)

FLORIDA BIRTH-RELATED NEUROLOGICAL )

INJURY COMPENSATION ASSOCIATION , )

)

Respondent , )

)

and )

)

R. WILLIAM QUINLAN, M.D. and )

REGIONAL OBSTETRIC CONSULTANTS, P.A. , )

)

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 June 11, 2001, by telephone.

APPEARANCES

For Petitioners : Richard L. Nichols, Esquire

3000 Hartley Road, Suite 5

Jacksonville, Florida 32257

For Respondent : Lynn Walker Wright, Esquire

Wright, Railey & Harding, P.A.

2716 Rew Circle, Suite 102

Ocoee, Florida 34761

For Intervenors : Ronald S. Wasilenko, Esquire

Gobelman, Love, Gavin, Blazs & Mathis

815 South Main Street, Suite 300

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Thalya Greene, a

minor, suffered an injury for which compensation should be

awarded under the Florida Birth-Related Neurological Injury

Compensation Plan.

PRELIMINARY STATEMENT

On November 2, 2000, David Greene and Lizbeth Greene, as

parents and natural guardians of Thalya Greene, 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

November 7, 2000. NICA reviewed the claim, and on December 15,

2000, 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 the

administrative law judge "enter an order setting a hearing in

this cause on the issue of the compensability of this claim."

Such a hearing was duly held on June 11, 2001.

At hearing, the parties stipulated to the matters set forth

in paragraphs 1 and 2 of the Findings of Fact, and that Joint

Exhibit 1 (the medical records filed with DOAH on November 2,

2000), Joint Exhibit 2 (the deposition of Charles Kalstone, M.D.,

filed with DOAH on April 12, 2001), Joint Exhibit 3 (the

deposition of Joseph A. Cimino, M.D., filed with DOAH on

April 12, 2001), Joint Exhibit 4 (the deposition of James B.

P erry, M.D., filed with DOAH on April 19, 2001), and Joint

Exhibit 5 (the Three Member Panel Report signed by Doctors A. D.

Brickler and James Perry) be received into evidence. No

witnesses were called and no other exhibits were offered.

The hearing transcript was filed June 20, 2001, and the

parties were accorded 10 days from that date to file proposed

final orders. The parties elected to file such proposals and

they have been duly considered.

FINDINGS OF FACT

Fundamental findings

1. Daniel Greene and Lizbeth Greene, are the parents and

natural guardians of Thalya Greene (Thalya), a minor. Thalya was

born a live infant on August 27, 1998, at Baptist Medical Center,

a hospital located in Jacksonville, Florida, and her birth weight

was in excess of 2,500 grams.

2. The physician providing obstetrical services during

Thalya's birth was R. William Quinlan, 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(7), Florida Statutes.

Thalya's birth

3. At or about 4:35 a.m., August 27, 1998, Mrs. Greene

(with an estimated date of confinement of September 19, 1998, and

the fetus at 36 weeks) presented to Baptist Medical Center in

early labor. Vaginal examination revealed the membranes to be

intact, and the cervix at 3 centimeters dilatation, effacement at

50 percent, and the fetus at station -2. External fetal

monitoring applied at 4:37 a.m., reflected a reassuring fetal

heart tone, and Mrs. Greene was admitted to labor and delivery at

or about 4:40 a.m.

5. Mrs. Greene's labor progressed steadily, and external

fetal monitoring reflected a reassuring fetal heart tone

throughout the course of labor and delivery. At or about

7:30 a.m., dilatation was noted as complete; at 7:49 a.m., the

membranes were artificially ruptured, with clear fluid noted; and

at 7:55 a.m. Thalya was delivered spontaneously (cephalic

presentation) without incident.

6. On delivery, Thalya was noted as "pale blue" in color,

and was bulb suctioned and accorded free flow oxygen; however,

she breathed spontaneously, and did not require resuscitation.

Initial newborn assessment noted no apparent abnormalities.

Apgar scores were recorded as 7 at one minute and 8 at five

minutes.

7. The Apgar scores assigned to Thalya are a numerical

expression of the condition of a newborn infant, and reflect the

sum points gained on assessment of heart rate, respiratory

effort, muscle tone, reflex irritability, and color, with each

category being assigned a score ranging from the lowest score of

0 through a maximum score of 2. As noted, at one minute,

Thalya's Apgar score totaled 7, with heart rate, muscle tone, and

reflect irritability being graded at 2 each; respiratory effort

being graded at 1; and color being graded at 0. At five minutes,

Thalya's Apgar score totaled 8, with heart rate, respiratory

effort, muscle tone, and reflex irritability being graded at 2

each, and color again being graded at 0.

8. Thalya was admitted to the newborn nursery at or about

8:50 a.m. Assessment on admission was grossly normal.

9. Thalya's status post-delivery was uneventful until

11:30 a.m. (approximately 3 1/2 hours after delivery) when she

experienced a choking episode (secondary to spitting up) and

turned dusky over the face and chest. In response, Thalya was

placed under a radiant warmer, suctioned, and given blow by

oxygen (for approximately 3 minutes) until she pinked up.

10. Thereafter, Thalya's course was again uneventful until

1:00 a.m., August 28, 1998, when she again appeared dusky, and

was accorded blow by oxygen. At the time, it was noted that the

CBC drawn during the first dusky spell was within normal limits

and that the blood culture that had been obtained was

preliminarily negative.

11. Thereafter, Thalya's course was again without apparent

complication until approximately 10:23 p.m., when she "became

dusky not associated with feed," and was again suctioned and

accorded blow by oxygen. At that time, Thalya was noted as "pink

and intermittently tachypneic with rare grunting." Following

neurologic consult, Thalya was transferred to the neonatal

intensive care unit (NICU) for further observation and

management.

12. Thalya was received in the NICU at 10:34 p.m. At the

time, she was observed as "warm and pink with grunting noted."

EKG leads were applied and revealed a heart rate of 180,

respiratory rate of 50, blood pressure of 76/49, and a rectal

temperature of 100.3. Examination revealed nystagmus (an

involuntary rapid movement of the eyeball) and some jerky

movements of her extremities. CBC showed a white blood count of

5,000, and blood culture was ordered. Working diagnosis was

"suspected septis" and Thalya was started on ampicillin and

gentamicin.

13. At 12:35 a.m., August 29, 1998, Thalya evidenced

symptoms of seizure activity, and was loaded with phenobarbital.

Spinal tap of August 29, 1998, as well as the results of the

blood culture drawn of August 28, 1998, was positive for Group B

Streptococcus.

14. An infectious disease consult was obtained and Thalya

was managed on antibiotics for three weeks, and maintained on

phenobarbital for her seizure activity. CT and MRI of the head

on August 29, 1998, were normal; however, a head ultrasound of

September 3, 1998, showed minimal intra-axial fluid. Chromosomal

studies were normal.

15. Thalya was discharged to her parents' care on

September 15, 1998, on phenobarbital and ampicillin. Final

diagnosis on discharge included bacterial infection due to

S treptococcus, Group B; streptococcal meningitis; and seizures.

Thalya's subsequent development

16. Following her discharge from Baptist Medical Center,

Thalya was initially followed by Carlos H. Gama, M.D., a

pediatric neurologist. Dr. Gama's first neurological examination

occurred on November 3, 1998, when Thalya was 2 months of age,

and was reported as follows:

I had the opportunity of seeing Thalya for a

neurological evaluation. The following are

my diagnosis and recommendations.

Diagnosis:

1. Status post neonatal Group B

Streptococcal meningitis.

2. Seizures.

3. Hypotnia.

Recommendations:

1. Obtain EEG.

2. Obtain trough Phenobarbital level.

3. Obtain records.

4. Return to this office in one month

for reevaluation and further recommendations.

Comments:

* * *

. . . Since discharged from NICU mother

reports that Thalya had done well. She is

feeding well and thriving. No seizures have

been noted. She continues on Phenobarbital,

taking 4mls po bid. A blood level was

obtained prior to this visit but this result

is not available. Mother reports that Thalya

has normal awake and sleep cycles. She seems

to be moving all extremities spontaneously

and symmetrically. There has not been any

apneic spells or unusual behaviors suggestive

of seizure like activity . . . .

The examination today reveals a head

circumference is 40.5cm (in the 90th

percentile). Her weight is in the 90th

percentile and height is in the 50th

percentile. The baby is alert. She is able

to turn her eyes to light, but does not track

the examiner in a 90 degree range. The

pupils were equal and reactive. Red reflex

was present bilaterally. Facial grimace was

symmetric. Suck was appropriate. Strength

seems to be grossly unremarkable. Deep

tendon reflexes were in the upper

extremities, in the lower extremities at

the knees and at the ankles. No clonus

was seen. Babinski's were present

bilaterally. There was evidence of hypotonia

of her axial musculature, being approximately

moderate in severity. There was also

decrease in head control. The patient's moro

reflex reveals appropriate abduction of her

upper extremities symmetricallyaction

response was decreased. Tone and neck reflex

was absent. Palmar and Plantar reflexes were

present. Muscle tone was low. The sensory

examination to touch seemed to be

unremarkable. Spine examination was

noncontributory. The patient has no obvious

dysmorphic features, organomegalies or skin

abnormalities. Anterior fontanel was open

and normal tense with no musculatures.

Therefore, it is my opinion that Thalya has a

history of neonatal Group B Streptococcal

meningitis and sepsis associated with

seizures. She is now seizure free. Her

examination is remarkable for hypotonia,

which most likely is on central basis.

Therefore, the above recommendations were

made. She will be reassessed in one month in

this office.

17. The EEG (Electroencephalogram) recommended by Dr. Gama

was obtained on November 9, 1998, and read as abnormal.

Specifically, the EEG report noted:

This EEG is abnormal because of mild

background disorganization which was seen

bilaterally but more prominently over the

right hemisphere, especially in the frontal

region. This finding suggest[s] a diffused

cerebral dysfunction such as seen in mild

encephalopathy. In addition, a structural

lesion in the right hemisphere cannot be

excluded.

18. Thalya was next seen by Dr. Gama on December 7, 1998.

The results of that examination were reported as follows:

Diagnosis:

1. Seizure disorder. Stable on

Phenobarbital.

2. S/P [status post] Bacterial Group B

Streptococcal Meningitis.

3. Hypotonia. Developmental delay.

4. Abnormal EEG.

* * *

Comments:

. . . Thalya continues to be active. She is

feeding well and gaining weight properly.

She is making more cooing sounds and

attempting to roll over, but she has not been

successful in this area.

Her examination demonstrates that her head

circumference is 42cm. She is alert. She

follows the examiner. Her pupils are equal

and reactive. Face is unremarkable. She

does seem to stick her tongue out

intermittently. The motor examination

demonstrates that she has decrease traction

and head control for her age. She also has a

tendency to keep her hands fisted, but this

is only intermittently. She does not reach

for objects yet. She is unable to hold

weight in her lower extremities. Muscle tone

seems to be slightly decreased in the axial

musculature in particular.

Therefore, it is my recommendation that we

proceed with an MRI of the brain to rule out

structural abnormalities of the right

hemisphere. 1 In addition, we have discussed

the treatment with Phenobarbital. This

should be continued for at least six months

before making any further recommendations

. . . She will be reassessed in this office

in 1-2 months.

19. Dr. Gama's next neurological examination of Thalya

occurred on January 12, 1999, and was reported as follows:

Diagnosis:

1. Seizure disorder. Stable on

Phenobarbital.

2. S/P bacterial group B streptococcal

meningitis.

3. Hypotonia. Improving. Borderline

developmental delay.

4. Abnormal EEG

* * *

Comments:

Thalya is doing extremely well. She is

getting physical therapy twice a week and

making progress. She is more attentive. She

follows the examiner in a 180 degree range.

She has good social skills. Anterior

fontanel is soft. Head circumference is 44cm

which is slightly above the 90th percentile,

but she has been growing parallel to this

with no problems. Cranial nerve examination

is unremarkable. Motor examination

demonstrates that she is unable to put weight

in lower extremities, otherwise, she moves

all extremities spontaneously. Deep tendon

reflexes were unremarkable. No obvious

pathological reflexes were elicited during

today's visit. Muscle tone was normal to

low. Denver Developmental Screen test

reveals that she seems to be appropriate for

her age in most of the areas. However, she

is unable to roll over but she is showing

some attempts to do this. The rest of the

examination was noncontributory.

20. Thalya was last seen by Dr. Gama on April 29, 1999, and

he reported the results of that follow-up neurological

examination as follows:

Diagnosis:

1. Seizure disorder. Stable on

Phenobarbital.

2. S/P Bacterial Group B Streptococcal

Meningitis.

3. Hypotonia. Improved.

Comments:

Thalya continues to do extremely well, with

no recurrent seizures. She is tolerating the

medication properly . . . . The patient

continues to make progress in her

development.

The examination today demonstrates that her

head circumference is 46.7cm. She is

maintaining this in the 90th percentile. She

has no obvious focal or lateralizing

deficits. Her muscle tone has improved

considerably and she is gaining milestones

appropriately. She was felt to be at her age

level in most of the areas tested . . . .

21. Thalya's subsequent neurologic development was followed

by Joseph A. Cimino, M.D., a board-certified pediatric

neurologist. Dr. Cimino reported the results of his first

neurological examination by October 15, 1999, as follows:

DIAGNOSES: 1 ) GBS meningitis/sepsis.

2) Neonatal seizures.

3) Static encephalopathy with

motor and language delay.

* * *

DEVELOPMENTAL HISTORY : The history is

obtained from the parents. The child rolled

from front to back at 7 months, back to front

at 8 months, sat at 7 to 8 months, crawled at

11 months. She was getting in to sitting at

10 to 11 months, pulled to stand at 12

months, began to cruise at 13 months, is not

yet walking independently, says mama but not

specifically, does not say dada nor does she

wave hi or bye. She began physical therapy

at 3 months of age and this was initially

twice a week and 1 month ago was decreased to

once a week.

She is not in speech therapy, although the

family states the EIP evaluation at 10 months

showed she had a receptive language at 4

months. The concern is that audiological

evaluation have shown some missed frequency

hearing deficit.

* * *

PHYSICAL EXAMINATION:

The head circumference is 48 1/4 cms which is

between the 75th and 98th percentile for

chronologic age of 14 months.

GENERAL EXAM : On inspection this is a well-

nourished, healthy youngster who is alert and

attentive. The abdomen was soft and

nontender without organomegaly. The

cardiovascular exam revealed regular rate and

rhythm and no murmurs were appreciated. No

cranial bruits are noted. The extremities

were normal. The lungs were clear to

auscultation. The skin exam was without café

au lait spots or hypopigmented macules. The

spine was without hair tufts or dimpling. In

observing this child crawl and again reaching

for objects I did not see any focality,

nothing to suggest an old infarction which

may be a complication of neonatal bacterial

meningitis. In addition a CT scan was

reported as negative.

NEUROLOGICAL EXAM : The child is very social

and attentive with good reciprocal play with

a puppet. She smiled quite easily. Although

with hands-on evaluation she did become

irritable and cried. Assessment of tone was

quite difficult. She tracked very nicely

with full extraocular movements no

ophthalmoparesis or nystagmus. The pupils

were equal and reactive to light and facial

movements were symmetric. I was not able to

get an adequate look at the fundi.

Corneal reflexes were intact. With regards

to the motor exam, she reached quite nicely

for objects without preference. She in fact

did crawl well, transitioned into a sitting

position but did W sit, usually associated

with low muscle tone. With hands-on exam it

was very difficult as she was crying and had

a lot of active resistance to know exactly

the status of her tone. She pulls to stand

with a mature pattern with hip flexion. She

sat quite nicely with her back straight, able

manipulate objects. She did not slip through

my grip on vertical suspension. Her deep

tendon reflexes were 2/4 and symmetric in

both the upper and lower extremities. The

sensory exam was grossly intact to pain.

IMPRESSION:

1) GBS meningitis/sepsis . . . early onset.

2) Neonatal seizure without recurrence,

successfully tapered off of Phenobarbital.

3) Prematurity 36 weeks gestation.

4) Language delay. I think at 13 months

adjusted age she should be saying mama and

dada specifically, have more jargoning,

waving hi and bye, and say several other

words in addition to mama and dada which are

used specifically. There is clearly risk of

hearing deficit given meningitis and the use

of Gentamicin and this child needs to be

followed closely.

5) History of motor delay. Clearly rolling

at 6 months adjusted age is delayed. Sitting

at 6 to 7 months adjusted age is normal, the

family gave a chronologic age of 7 to 8

months but at 36 weeks gestation it is fair

to make a 1 month adjustment which I am

assuming they would do at EIP. She began to

cruise at 13 months chronologic age which is

1 year. Her adjusted age is now 13 months

and clearly walking independently can be

normal up to 18 months at the outside limits.

She appears to be making nice improvement in

this area . . . .

22. Thalya was next seen by Dr. Cimino on May 1, 2000, and

most recently on November 10, 2000. Dr. Cimino reported the

results of his most recent follow-up examination as follows:

DIAGNOSES: 1 ) GBS meningitis.

2) Neonatal seizures.

3) Prematurity 36 weeks

gestation

4) Language delay.

CLINICAL HISTORY : This is a 2 year old

female seen in follow up on 5/1/2000. At

that time she was having episodes of spacing

out. We obtained an EEG that was normal for

the awake and sleep state. Because of the

GBS meningitis and developmental delay we

obtained an MRI also done in September that

was normal. She underwent a speech

evaluation on 6/23/2000 that showed auditory

comprehension at 9-12 months, verbal

expression at 6-9 months. Impression was

overall global delay and she has been in

speech therapy twice a week at Brook's Rehab.

Her chronologic age at the time of the

evaluation was 22 months.

At this time she began to walk at 15 months.

She says mama and specifically, dada non-

specifically. She will repeat words but does

not have a lot of spontaneous words. She

does wave hi and bye.

PHYSICAL EXAMINATION:

The head circumference is 50 1/4 cms which is

between the 75th and 98th percentile. This

continues to grow at the same rate. She is

crying and extremely uncooperative. She is

very frightened by many of her past

appointments. She did track, had full

extraocular movements without nystagmus or

ophthalmoparesis. Her facial movements do

appear sysmetric. Tone is low even with her

resisting. She ran to her mother , I did not

see any abnormalities. Her gait certainly

was not wide based. She seemed to get off

the floor well. Her sensory exam was grossly

intact to pain. The deep tendon reflexes

were difficult due to her withdrawal.

IMPRESSION:

1) Status-post Group B strep neonatal

meningitis with neonatal seizure without

recurrence.

2) Language delay. Most likely reflecting

sequela of the meningitis. There is a good

percentage of these children who do have

severe deficits. However, the EEG and MRI

did not show any abnormalities. There is no

slowing of the background activity and no

decrease or delay in myelination reported on

the MRI.

PLAN: . . . Continue speech therapy . . .

Reassess in 6 months.

The cause of Thalya's neurologic dysfunction

23. Regarding the cause of Thalya's neurological

dysfunction, the proof is compelling that during labor and

delivery Mrs. Greene was vaginally infected with Group B

Streptococcal (GBS), that during delivery the infection was

transmitted to Thalya, and that over the next 24 to 48 hours the

infection process rapidly progressed causing meningitis and the

resultant brain injury. Consequently, it may be said that

Thalya's neurologic dysfunction is associated with a brain injury

caused by meningitis (an inflammation of the membranes that

envelop the brain and spinal cord), secondary to a GBS infection

acquired during the birthing process (most likely subsequent to

rupture of the membranes and during the course of delivery).

The dispute regarding compensability

24. As a touchstone to resolving the dispute regarding

compensability, it is worthy of note that the Plan establishes a

no-fault administrative system that provides compensation for an

infant who suffers a narrowly defined "birth-related neurological

injury." Under the Plan, a "birth-related neurological injury"

is defined as:

[I ]njury 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.

Section 766.302(2), Florida Statutes.

25. Here, there is no serious dispute that Thalya is

neurologically impaired or that such impairment is attributable

to a brain injury caused by the infection process discussed

infra . Rather, what is at issue is whether the cause of Thalya's

brain injury and the nature of her impairment fit the narrowly

defined term "birth-related neurological injury." In this

regard, it is Intervenor's view that Thalya's brain injury

(occasioned by an infectious process) may reasonably be described

as having been "caused by mechanical injury occurring in the

course of labor, delivery, or resuscitation in the immediate

post-delivery period," and that such injury rendered her

"permanently and substantially mentally and physically impaired."

Conversely, Petitioners and Respondent are of the view that that

the cause of Thalya's brain injury was not a "mechanical injury,"

and that she was not rendered "permanently and substantially

mentally and physically impaired." Of the two, Petitioners' and

Respondent's view is by far the more compelling.

The nature and timing of Thalya's injury

26. To address the nature and timing of Thalya's injury,

the parties offered the opinions of three physicians :

Charles Kalstone , M.D., a physician board-certified in obstetrics

and gynecology; Joseph Cimino, M.D., a physician board-certified

in pediatric neurology; and James Perry, M.D., a Fellow of the

American Academy of Neurology. (Joint Exhibits 2-4). Notably,

these physicians shared strikingly similar views, and were of the

opinion that Thalya's brain injury was caused by infection

induced meningitis, a process distinguishable from an injury

caused by oxygen deprivation or mechanical injury. Stated

otherwise, the physicians were of the opinion that Thalya's

injury could not reasonably be described as having been caused by

oxygen deprivation or mechanical injury. 2 Given the plain and

ordinary meaning of the words used in the term "mechanical

injury" (as physical harm or damage caused by machinery, tools,

or physical forces), their conclusion was most reasonable. 3

Consequently, it is resolved that Thalya's brain injury was not

caused by oxygen deprivation or mechanical injury occurring in

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

post-delivery period.

Thalya's current mental and physical presentation

27. At hearing, the only authoritative proof offered with

regard to Thalya's current mental and physical presentation was

the testimony of Dr. Cimino, Thalya's pediatric neurologist. It

was Dr. Cimino's opinion that while Thalya may evidence

substantial cognitive impairment, she does not evidence

substantial physical impairment. Such opinions are grossly

consistent with the record and are credited.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of, this

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

29. The Florida Birth-Related Neurological Injury

Compensation Plan (the "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.

30. 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 (NICA), 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.

31. 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 Chapter 120,

Florida Statutes. Sections 766.304, 766.307, 766.309, and

766.31, Florida Statutes.

32. 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.

33. 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.

34. 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.")

35. Here, the proof failed to demonstrate that Thalya's

brain injury was "caused by oxygen deprivation or mechanical

injury occurring in the course of labor, delivery, or

resuscitation in the immediate post-delivery period." Moreover,

notwithstanding any injury Thalya may have received to her brain,

she was not rendered permanently and substantially physically

impaired. Consequently, the record developed in this case failed

to demonstrate that Thalya suffered a "birth-related neurological

injury," within the meaning of Section 766.302(2), Florida

Statutes. Florida Birth-Related Neurological Injury Compensation

Association v. Florida Division of Administrative Hearings ,

686 So. 2d 1349 (Fla. 1997.) Acc ordingly, the subject claim is

not compensable under the Plan. Sections 766.302(2), 766.309(1),

and 766.31(1), Florida Statutes.

33. 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 David

Greene and Lizbeth Greene, as parents and natural guardians of

Thalya Greene, a minor, be and the same is hereby denied with

prejudice.

DONE AND ORDERED this 25th day of July, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tall ahassee, 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 Hearin gs

this 25th day of July, 2001.

ENDNOTES

1/ Whether an MRI of the brain was obtained, as recommended by

Dr. Gama, is not apparent from the record; however, one was

obtained on September 6, 2000, and read as normal.

2/ To quote Dr. Cimino, an injury caused by a bacteria is "not a

mechanical injury by any stretch of the imagination."

3/ When, as here, the Legislature has not defined the words used

in a phrase, they should usually be given their plain and

ordinary meaning. Southeastern Fisheries Association, Inc. v.

Department of Natural Resources , 453 So. 2d 1351 (Fla. 1984).

Pertinent to the context in which the words are used in the

statutory provision at issue, "Mechanical" is commonly understood

to mean pertaining to or accomplished by machinery, tools, or

physical forces, and "injury" is commonly understood to mean

physical harm or damage to a person. See Dorland's Illustrated

Medical Dictionary, 28th Edition; Webster's New Twentieth Century

Dictionary, Unabridged, Second Edition; and The American Heritage

Dictionary of English Language (1979).

COPIES FURNISHED:

(By certified mail)

Lynn Larson, Executive Director

Florida Birth-Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32312

Richard L. Nichols, Esquire

3000 Hartley Road, Suite 5

Jacksonville, Florida 32257

Mary Bland Love, Esquire

Ronald S. Wasilenko, Esquire

Gobelman, Love, Gavin, Blazs & Mathis

815 South Main Street, Suite 300

Jacksonville, Florida 32202

Wilbur E. Brewton, Esquire

Kenneth J. Plante, Esquire

Brewton, Plante & Plante

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

Lynn Walker Wright, Esquire

Wright, Railey & Harding, P.A.

2716 Rew Circle, Suite 102

Ocoee, Florida 34761

R. William Quinlan, M.D.

836 Prudential Drive, Suite 1800

Jacksonville, Florida 32207

Baptist Medical Center

800 Prudential Drive

Jacksonville, Florida 32207

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.