01-001657N Sandra Shoaf And James Shoaf, On Behalf Of And As Parents And Natural Guardians Of Raven Shoaf, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, March 11, 2002.

Summary: Proof failed to demonstrate that infant was permanently and substantially mentally impaired. Therefore, claim was not compensable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANDRA SHOAF and JAMES SHOAF, )

as parents and natural )

guardians of RAVEN SHOAF, a )

minor, )

)

Petitioners, )

)

vs. ) Case No. 01 - 1657N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

MICHAEL GEILING, D.O.; JUAN )

RAVELO, M.D.; and ADVENTIST )

HEALTH SYSTEM/SUNBELT, INC., )

d/b/a FLORIDA HOSPITAL - )

ALTAMONTE, )

)

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 December 20 and 21, 2001, by

video teleconference, with sites in Tallahassee and Orlando,

Florid a.

APPEARANCES

For Petitioners: John Elliott Leighton, Esquire

Patricia M. Kennedy, Esquire

Leesfield, Leighton, Rubio & Mahfood

2350 South Dixie Highway

Mi ami, Florida 33133

For Respondent: John R. Dunphy, Esquire

Blank, Meenan & Smith, P.A.

204 South Monroe Street

Tallahassee, Florida 32301

For Intervenors Michael Geiling, D .O. and Juan Ravelo, M.D.:

William H. Olney, Esquire

McEwan, Martinez, Dukes & Ruffier, P.A.

108 East Central Boulevard

Post Office Box 753

Orlando, Florida 32802

and

Hector A. Moré, Esquire

Grower, Kercham, Moré, Rutherford, Noecker,

Bronson & Eide, P.A.

390 North Orange Avenue, Suite 1900

Orlando, Florida 32801

For Intervenor Adventist Health System/Sunbelt, Inc., d/b/a

Florida Hospital - Altamonte:

Robert A. Hannah, Esquire

Christopher C. Curry, Esquire

Hannah, Estes & Ingram, P.A.

Post Office Box 4974

Orlando, Florida 32802 - 4974

STATEMENT OF THE ISSUES

1. Whether the notice provisions of the Florida Birth -

Related Neurological Injury C ompensation Plan (Plan) were

satisfied.

2. If so, whether Raven Shoaf, a minor, qualifies for

coverage under the Plan.

PRELIMINARY STATEMENT

On April 30, 2001, Petitioners, Sandra Shoaf and

James Shoaf, as parents and natural guardians of Raven Shoaf

(R aven), a minor, filed a petition (claim) with the Division of

Administrative Hearings (DOAH) to resolve whether Raven qualified

for coverage under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan). Pertinent to this case, the petition

averred:

4. Statement of the case and Description of

disability : The Petitioners herein seek a

determination by this tribunal as to the

compensability of any claims under Fla.Stat.

Section 766.305. It is alleged by the

Petitioners herein that RAVEN SHO AF did not

sustain a compensable injury under the

statute as she does not meet the criteria

enumerated in Fla. Statutes Sec. 766.302(2)

insofar as she has not sustained a permanent

and substantial mental impairment. A civil

action for medical negligence a gainst the

physicians and hospital has been instituted

in Seminole County ( C ase No. 2000 - CA - 201 - 09 -

K). Pursuant to an Order by the Circuit

Court of Seminole County, the case in Circuit

Court has been abated and Petitioners are

mandated to have the compens ability of this

claim determined herein . . . . The filing

of this Petition shall in no manner be

construed as an election of remedies or a

waiver of any rights the Petitioners may have

to pursue the civil action.

DOAH served the Florida Birth - Related Ne urological Injury

Compensation Association, as well as the physician (Michael

Geiling, D.O.) and the hospital (Adventist Health System/Sunbelt,

Inc., d/b/a Florida Hospital - Altamonte) named in the petition,

with a copy of the claim on May 3, 2001. By moti ons filed

May 21, 2001, Michael Geiling, D.O., Juan Ravelo, M.D., and

Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital -

Altamonte requested leave to intervene, and by order of June 6,

2001, their requests were granted.

Subsequently, Petitioners requested and by order of

August 31, 2001, were granted, leave to amend their petition.

That amendment placed the following additional matter at issue:

In addition, Petitioners allege that the

Florida Birth - Related Neurological Injury

Compensation Plan is inapplicable to the

claims on behalf of RAVEN SHOAF because

Adventist Health System/Sunbelt, Inc., d/b/a

Florida Hospital - Altamonte failed to provide

pre - delivery notice to SANDRA SHOAF as

mandated by Fla. Stat. §766.316.

NICA filed its response to the amended petition on

September 13, 2001. In that response, NICA averred that upon

review of the claim it had determined that Raven had suffered a

"birth - related neurological injury" within the meaning of Section

766.302(2), Florida Statutes; however, sinc e Petitioners

contended that Raven's condition was not compensable and that

Florida Hospital - Altamonte failed to comply with the notice

provisions of the Plan, NICA requested that a hearing be

scheduled to resolve whether the claim was compensable and

whet her notice was given. Such a hearing was duly held on

December 20 and 21, 2001.

At hearing, Petitioners Sandra Shoaf and James Shoaf

testified on their own behalf, and called as witnesses Janice E.

Brunstrom, M.D.; Patricia H. Smith; Donna L. Hoffberg;

Libah Castrillo; Bernard L. Maria, M.D.; Eileen B. Fennall, Ph.D;

and Barbara S. Buwalda. Petitioners' Exhibits 1A - 1F, 2A and 2B,

3A and 3B, 4A and 4B, and 5 - 26 were received into evidence. 1

Respondent called Mary Waters, Ph.D., as a witness, and

Respond ent's Exhibits 1 - 5 were received into evidence. 2

Intervenors called Michael S. Duchowny, M.D., and Laura Aldridge

as witnesses, and Intervenors' Exhibits (collectively identified

in the record as Florida Hospital Exhibits) 1A and 1B, 2 - 6, 7A,

7B, and 8 - 11 were received into evidence. 3

The transcript of the hearing was filed January 10, 2002,

and the parties were initially accorded 10 days from that date to

file proposed final orders; however, at Respondent's and

Intervenors' request they were accorded unti l January 31, 2002,

to request leave to supplement the record. 4 Moreover, given the

granting of Petitioners' Motion to Enlarge Page Limit for

Proposed Findings of Fact and Conclusions of Law, Respondent and

Intervenors were, by order of February 8, 2002, accorded leave

through February 18, 2002, to file supplemental findings of fact

and conclusions of law. 5 The proposals filed by the parties have

been duly considered.

FINDINGS OF FACT

Fundamental findings

1. Petitioners, Sandra Shoaf and James Shoaf, are the

parents and natural guardians of Raven Shoaf, a minor. Raven was

born a live infant on November 28, 1997, at Adventist Health

System/Sunbelt, Inc., d/b/a Florida Hospital - Altamonte, a

hospital located in Altamonte Springs, Seminole County, Florid a,

and her birth weight exceeded 2,500 grams.

2. The physicians providing obstetrical services at Raven's

birth were Michael Geiling, D.O., and Juan Ravelo, M.D., who, at

all times material hereto, were "participating physician[s]" in

the Florida Birth - Re lated Neurological Injury Compensation Plan,

as defined by Section 766.302(7), Florida Statutes.

The dispute regarding notice

3. Normally, the presence or absence of notice is not

relevant to the resolution of a claim for benefits under the

Plan. Howeve r, it is relevant when, as here, the claimants have

attempted to invoke a civil remedy and the healthcare provider

asserted Plan exclusivity as an affirmative defense. Braniff v.

Galen of Florida, Inc. , 669 So. 2d 1051, 1053 (Fla. 1st DCA

1995)("The prese nce or absence of notice will neither advance nor

defeat the claim of an eligible NICA claimant who has decided to

invoke the NICA remedy . . . . Notice is only relevant to the

defendants' assertion of NICA exclusivity where the individual

attempts to inv oke a civil remedy.") Under such circumstances,

the administrative law judge must resolve whether the notice

provisions of the Plan have been satisfied. O'Leary v. Florida

Birth - Related Neurological Injury Compensation Association , 757

So. 2d 624 (Fla. 5 th DCA 2000).

4. Pertinent to the notice issue, Section 766.316, Florida

Statutes (1997), provided:

Each hospital with a participating physician

on its staff and each participating physician

. . . shall provide notice to the obstetrical

patients thereof a s to the limited no - fault

alternative for birth - related neurological

injuries. Such notice shall be provided on

forms furnished by the association and shall

include a clear and concise explanation of a

patient's rights and limitations under the

plan.

5. Here, the parties have stipulated that Mrs. Shoaf's

obstetricians provided her timely notice as required by the Plan. 6

Consequently, it is not subject to debate that her obstetricians

(the participating physicians) provided Mrs. Shoaf "notice . . .

as to the limited no - fault alternative for birth - related

neurological injuries" by providing her with a "form[] furnished

by the association . . . [that] include[d] a clear and concise

explanation of a patient's rights and limitations under the

Plan." What rem ains for resolution is whether Florida

Hospital - Altamonte complied with the notice provisions of the

Plan. Section 766.316, Florida Statutes.

6. As for Florida Hospital - Altamonte and the notice issue,

the proof demonstrates that prior to November 1997, Florida

Hospital - Altamonte established a practice whereby the

registration representative from patient financial services, who

already met with every expectant mother on admission, would give

the patient a copy of the NICA brochure, titled "Peace of Mind

f or an Unexpected Problem," during their meeting. In practice,

when an expectant mother presented to the maternity floor, the

business office would be notified. Thereafter, a registration

representative would come to the patient's room to obtain a

signed consent to treatment form, and to discuss billing and

other financial matters. During that meeting, the NICA brochure

would be given to the patient, with the patient's copy of the

consent form folded and placed inside it.

7. Here, with regard to Mrs. Sho af's admission to Florida

Hospital - Altamonte on November 26, 1997, for induction of labor,

the proof demonstrates that, consistent with the hospital's

established routine, Laura Aldridge (then known as Laura Lynds),

the registration representative on duty at the time, met with

Mrs. Shoaf and secured her signature to the consent to treatment

forms. While Ms. Aldridge has no independent recollection of

having done so, it is reasonable to infer, given the routine

established by the hospital and Ms. Aldridge's training, and

there being no compelling proof to the contrary, that

Ms. Aldridge gave Mrs. Shoaf a copy of the NICA brochure (as she

was trained to do), with the patient's copy of the consent form

folded and placed inside it. 7

The dispute regarding compen sability

8. A claim is compensable under the Plan when it can be

shown, more likely than not, 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. See also Section 766.309(1),

Florida Statutes.

9. Pertinent to this case, the Plan defines "birth - related

neurological injury" to mean an "injury to the brain . . . caused

by oxygen deprivation . . . 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.

10. Here, there is no dispute that o bstetrical services

were delivered by a participating physician at birth. There is

likewise no dispute, and the proof is otherwise compelling, that

Raven suffered an injury to the brain caused by oxygen

deprivation occurring in the course of labor, delive ry, or

resuscitation in the immediate post delivery period in the

hospital, which rendered her permanently and substantially

physically impaired. What is disputed is whether the injury

Raven received also rendered her permanently and substantially

mentall y impaired. As to that issue, Petitioners are of the view

that Raven is not permanently and substantially mentally

impaired, while Respondent and Intervenors are of a contrary

opinion.

11. To address the character of Raven's brain injury, and

the stati stical probability that she would present with physical

and mental impairment, Intervenors offered the testimony of

Allen Elster, M.D., a physician board - certified in diagnostic

radiology with special qualifications in neuroradiology. As for

the character of Raven's brain injury, Dr. Elster reviewed a

series of imaging studies (CTs and MRIs of the head) which

revealed evidence of bilateral perinatal hypoxic - ischemic

encephalopathy, with, inter alia , damage in both basal ganglia

(caudate nuclei, globus pall idi, and putamina), both halves of

the thalamus, both hippocampi, the midportion of the corpus

callosum, and both frontal and parietal lobes.

12. Given the nature of Raven's injury, Dr. Elster opined

that, based on existent studies, one could calculate the

statistical probability that Raven would present with physical

and mental impairment. As for physical impairment, Dr. Elster

calculated that there was a 99 percent probability of that, and

that for mental impairment "when this type of problem exists

. . . 51 percent will have some degree of cognitive impairment[,]

. . . at least . . . of a moderate degree." (Florida Hospital

Exhibit 1A, at page 77.) However, as Dr. Elster and Petitioners'

expert (Dr. Thomas Naidich 8 ) noted, statistical probabilit y is not

diagnostic, and an accurate assessment of Raven's cognitive

function requires clinical correlation (evaluation).

13. Considering the disparity in severity which frequently

exists between physical and mental impairment following hypoxic -

ischemic insult, Dr. Elster's observations, as well as those of

Petitioners' expert, are clearly consistent with current

understanding. Indeed, statistically, a little less than one -

half the children who present with cerebral palsy, as Raven does,

are not cognitiv ely impaired. With regard to the others, the

degree of impairment may vary considerably from infant to infant.

Consequently, absent clinical correlation, it cannot be resolved,

based solely on imaging studies, whether Raven is permanently and

substantial ly mentally impaired.

14. To further demonstrate that Raven was permanently and

substantially mentally impaired, Intervenors offered the

testimony of Michael Duchowny, M.D., a physician board - certified

in pediatrics, neurology with special qualifications in child

neurology, and clinical neurophysiology, and Respondent offered

the testimony of Mary Waters, Ph.D., a licensed psychologist,

with experience in evaluating infants at risk for developmental

disorders.

15. As for Dr. Duchowny's observations, the p roof

demonstrates that on February 22, 2001, for approximately 1/2

hour, Dr. Duchowny examined Raven (then 3 1/4 years of age) in

his office at Miami Children's Hospital, Miami, Florida.

Pertinent to this case, Dr. Duchowny fairly reported the results

of that neurologic examination as follows:

I evaluated Raven Shoaf on February 22, 2001.

Raven was accompanied by both parents who

supplied historical information. The

evaluation was video recorded.

Mr. and Mrs. Shoaf began by explaining that

Raven is a 3 year old girl with significant

motor disabilities. She has a stiffness of

all limbs and easily becomes tense. When

this occurs, she can become fully

incapacitated. In contrast, when relaxed,

Raven is capable of much greater mobility.

The parents noted that Raven moves her

fingers well when relaxed and generally has

good head and truncal mobility. Raven is

wheelchair bound and her only motor milestone

is being able to rollover. She cannot sit or

stand independently. Raven attends the Kid's

Medical Clu b where she receives physical,

occupational and speech therapy on a 5 to 6

times weekly basis. She has not developed

meaningful speech.

In contrast, the parents believe that Raven's

cognitive abilities are good. They suggested

that she is aware and foll ows people. She

smiles and is socially interactive. The

parents believe that Raven knows body parts

and can distinguish[] a variety of objects,

indicating a reasonable verbal comprehension.

Raven is working with a word board and points

to body parts on a doll. She sing[s] songs

and recognizes many objects. She often

vocalizes and "talks to the T.V.".

* * *

NEUROLOGIC EXAMINATION reveals Raven to be

alert with full visual fixation and

following. She smiles frequently, but her

smile has a reflex p seudobulbar quality. I

was unable to document a clear visual

fixation in response to verbal commands,

although she does move her eyes conjugately.

The pupils are 3 mm and react briskly to

direct and consensually presented light.

There are no fundoscopic abnormalities.

Raven did not speak at anytime during the

evaluation. The tongue is moist and

papillated, and there is good dentition. The

extremities are small. There is double

hemiparesis, decorticate posturing of the

upper extremities with stiffenin g and

scissoring of the lowers. Raven has poor

head control and an obligate tonic neck

response while supine. She has no

adventitious movements, but slight

provocation increases her spasticity

significantly and she displays fisting of her

thumbs with a v ery strong grip bilaterally.

There are bilateral AFO's; her ankles can

just be dorsiflexed to neutrality without

orthotic devices. Deep tendon reflexes are

3 bilaterally with the exception of the

ankle jerks which are 4 with sustained

clonus. There ar e bilateral Hoffman

responses and a jaw jerk. She has sucking

and rooting response. There is scissoring in

vertical suspension and crossed abductor

responses at the pelvic and pectoral girdles.

She remains vertical with scissoring, but

cannot bear weigh t and has poorly developed

axial tone. Babinski responses and attitudes

are noted. There is triple flexion

withdrawal with repeated stimulation of the

bottoms of the feet. Sensory examination is

intact to withdrawal of all extremities to

touch. Cerebel lar testing is deferred. The

neurovascular examination reveals no

cervical, cranial or ocular bruits and no

temperature or pulse asymmetries.

In SUMMARY, Raven's neurological examination

is significant for small statute,

microcephaly and spastic tetrapar esis with

double hemiparetic and decorticate postures,

along with hyperreflexia and pathologic

reflexes. She has no evidence of expressive

language 9 and her knowledge of her

surroundings is unclear despite her parents

impression that she relates well to h er

environment. They apparently believe they

are able to detect responses that are not

evident on examination . . . .

16. Following his examination, and prior to hearing,

Dr. Duchowny reviewed Raven's medical records; MRIs and CT scans;

various reports of healthcare providers, including Dr. Fennell,

Dr. Maria, Dr. Brunstrom, Ms. Buwalda, Sheila Hostetler, and

Patty Smith; video footage of Raven's speech therapy sessions;

and the video tape of his February 22, 2001, evaluation. Given

those materials, as well as his clinical findings, Dr. Duchowny

concluded that Raven was not only permanently and substantially

physically impaired, but also permanently and substantially

mentally impaired.

17. As for the discrepancy between his conclusions and

those drawn by the healthcare providers whose opinions were

offered on behalf of Petitioners, Dr. Duchowny was of the belief

that those healthcare providers misinterpreted Raven's responses

on examination or during therapy, and that her responses (whether

on video tap e or otherwise) do not support a conclusion that

Raven relates to her environment or that she is capable of

cognitive choice.

18. As for Dr. Waters, the proof demonstrates that

Dr. Waters examined Raven on August 24, 2001, for nearly 2 hours.

The results of that examination, which occurred in Raven's home,

were addressed by Dr. Waters at hearing, and are fairly

summarized in her report (Respondent's Exhibit 3), as follows:

OBSERVATIONS: The evaluation was conducted

at Raven's home. Present were Raven's

mother, her sister, the attorney representing

the family, a videographer, Raven's speech

therapist and the director of NICA. Raven's

speech therapist assisted at various times

during the evaluation by holding Raven in her

lap and by holding test items. W ith the

exception of the speech therapist and the

videographer, the other people present

attempted to remain out of Raven's line of

vision in order to decrease distractibility.

Raven presented as a very sociable little

girl. She smiled readily and displa yed an

interest in the activities of people in the

room and the test materials. Raven's

position was varied during the testing in an

effort to decrease fatigue. Testing was

conducted with Raven sitting in her speech

therapist's lap, seated in her wheelch air and

seated in a molded chair on the floor . . .

A break was taken a little more than midway

through the testing in order for a feeding to

be provided to her . . . . Raven was

observed following simple directions. She

was particularly successful when prompts were

provided. At times, directions had to be

repeated prior to her following them. Raven

occasionally made vocalizations but has

limited oral motor skills and does not speak.

Raven made brief eye contact with the

examiner when spoken to. She often displayed

what appeared to be random or scanning eye

movements but at times, was able to display

what appeared to be purposeful gazes to

indicate responses to questions or

directions. Such eye movements were often

quick glances rather than sustained eye

gazing. Questions or directions were

sometimes repeated in an effort to clarify a

response. This sometimes resulted in

negating what had previously appeared to be a

correct response, but after the item was

reintroduced, seemed to have been a random

rather than deliberate choice of the correct

answer. Raven was observed more frequently

turning her head to the left and gazing to

the upper right. She more often achieved a

correct response when the desired stimulus

was in the upper right quadrant of th e board.

Raven appeared to enjoy the attention the

session afforded her and was responsive to

speech and touch.

TESTS ADMINISTERED: Standardized scores

could not be obtained due to Raven's limited

motor and vocalization skills. Tests

available for a ch ild her age would be apt to

reflect Raven's physical limitations rather

than her capabilities if the entire tests

were to be administered. Portions of the

Bayley Scales of Infant Development - 2nd

Edition, Stanford - Binet Test of Intelligence -

Fourth Edition, and Weschsler Preschool and

Primary Scales of Intelligence - III were used

to assess Raven.

TEST RESULTS: When directed to do so,

particularly when prompts were provided,

Raven gazed at each of four stimuli pictures

prior to making a requested choice. Sh e

appeared to correctly identify by eye gaze

pictures of a number of items on the Bayley

and Stanford - Binet. She was able to identify

two of three objects by eye gaze when they

were placed in front of her. Raven

identified several pictures of action verb s

and correctly chose a picture of an object

described by function. She did not match

pictures of like items. She matched one

color but did not do so when the item was

repeated. Using the "yes/no" on her

wheelchair board, Raven appeared to display

an un derstanding of one preposition but did

not do so when the test item was repeated.

She did not display an understanding of the

concept of more. Raven attended to a story

read to her. She did not immediately find a

like picture when the stimuli card was

r emoved from sight. Raven did not

discriminate patterns or classify objects.

Raven was able on occasion to choose the

correct container when sorting colors but did

not do so consistently. She did not display

an understanding of social inconsistencies.

S he appeared to display an understanding of

the concept of "smaller," but not of other

size related concepts.

The Bayley Scales of Infant Development - 2nd

Edition are normed for children up to 42

months of age. The items used from this test

and from the ot her two tests involve concepts

that fall within the range of expectancy for

children Raven's age and younger.

SUMMARY AND RECOMMENDATIONS: Although no

standardized scores could be obtained due to

Raven's motor and speech limitations,

information regardin g Raven's cognitive

functioning could be obtained. Raven does

appear to be able to consistently identify

objects by name and by function when she is

familiar with them. Object identification

appears to be a relative strength for Raven.

In this area, she appears to be functioning

on an age appropriate level. However, in

other areas, she appears to be functioning

more on a nineteen to twenty - three month

level. Short - term memory appears to be a

relative weakness for her. She did not learn

concepts that w ere demonstrated during

testing. She appears to require much

repetition in order to make associations part

of her repertoire. Tasks involving more

abstract thinking or complex reasoning appear

to be difficult for Raven. Certainly her

motor limitations h ave interfered with

sensory input and her having a ready access

to some experiential information available in

the environment. Despite this, in her daily

living situation, exposure to certain

concepts would most likely occur but have not

to date become pa rt of her general knowledge.

Raven is very responsive to attention and

touch but her responses may be somewhat

indiscriminant. She responds to sounds and

sights but may have some problems attaching

meaning to what she sees and hears. Although

she seems to have been able to pair objects

and words and objects and function, her

problem solving skills appear to be limited.

The prognosis is guarded in regard to Raven

making steady gains in terms of skill

acquisition and a concern is that she may

plateau. Ra ven does present with cognitive

delays, which appear to be significantly

large. Raven can be expected to acquire

additional skills but the rate of such

acquisition is apt to be slow. As a result,

the lag between Raven and her peers may well

increase, wit h Raven continuing to display

cognitive delays.

As for the magnitude of Raven's deficit, Dr. Waters described

Raven's cognitive deficit an "significantly large," or

substantial. (Transcript, page 219)

19. To address Raven's neurologic presentation, Pet itioners

offered the testimony of a number of physicians who had examined

her, including Dr. Janice E. Brunstrom, the current director of

the Pediatric Neurology Cerebral Palsy Center at St. Louis

Children's Hospital, and an assistant professor of neurolog y and

cell biology at Washington University School of M edicine,

St. Louis, Missouri. Dr. Brunstrom is board - certified in

pediatrics, as well as neurology with special qualifications in

child neurology, and is Raven's current treating pediatric

neurologist . Dr. Brunstrom examined Raven on three occasions:

February 2, 2001, for nearly 3 hours; March 29, 2001, for nearly

3 hours; and August 14, 2001, for nearly 2 hours.

20. Dr. Brunstrom's neurologic evaluations of February 2,

2001, and March 29, 2001, wer e addressed by her at hearing, and

are fairly summarized in her report (Petitioners' Exhibit 6), as

follows:

Raven is a 3 year old girl with mixed

athetoid - spastic quadriplegic cerebral palsy.

I have examined her on two occasions:

1) On February 2nd, 200 1, I spent nearly 3

hours with Raven and her parents at the

Pediatric Neurology Cerebral Palsy Center at

Saint Louis Children's Hospital.

2) On March 29th, 2001, I traveled to Orlando

to see Raven at the Kids Medical Club and

evaluated her in the company of her speech

therapist, Barbara Buwalda, along with her

physical therapist and occupational

therapist. I spent nearly three hours with

her at that visit and observed her in

therapies and interacting with people in that

setting.

I have reviewed extensive records detailing

Raven's prenatal history, post - delivery

hospital course, follow up examinations by

Raven's pediatrician and pediatric

neurologist, and numerous notes and

evaluations from various therapists,

including Barbara Buwalda's evaluations. I

re viewed Raven's brain - imaging studies (CT

and MRI films). I also watched 2 video

recordings of Raven during speech therapy

with Barbara Buwalda (each for 30 minutes)

and a videotaped recording of a neurological

examination performed by Michael Duchowny

M.D ., a pediatric neurologist (approximately

25 minutes).

Development: 10 The parents report that Raven

has been attempting to reach out and grab

objects for the past 8 - 12 months. She tries

to point but has a lot of difficulty bringing

her hands to midline due to her tone. She

used to fist her hands but is learning to

open them up, especially when people aren't

"looking" at her. She cannot sit without

support. She rolled over at age 2. She

babbles and makes noises. She hollers or

cries when she wants so mething. She looks at

things she wants and uses her expressions to

verify.

Raven uses a board on her wheelchair tray and

looks to Yes or No. She identifies pictures.

Her parents feel she is learning some colors

and that she knows her body parts. She

r ecognizes the people at her school. She has

favorite Movies that she likes to watch

including Tarzan, Mulan, Toy Story and

Barney. She is able to make choices. The

parents feel that she understands everything

that is going on around her.

Raven continue s to learn new things and has

had no evidence of regression (loss of

skills).

EXAMINATIONS:

Feb 2nd, 2001, St. Louis Children's Hospital.

I performed a general physical examination

and detailed neurological examination

including a lengthy period of observ ation and

interaction with Raven to understand her

ability to comprehend and follow directions:

* * *

NEUROLOGICAL TESTING:

Mentation : Raven was alert and very

engaging. She regarded me and followed me

with her eyes as I moved around the room.

She smiled responsively. She tried very hard

to follow commands but was very limited by

her motor difficulties. I had to wait a

minute or more as she tried to move her arm

when I asked her to reach for an object

placed in front of her. She tried with her

r ight hand but immediately stiffened at the

elbow and fisted the hand, which stopped her

from reaching the target. At rest she was

able to relax and open her hand. When she

tried to move anything, she concentrated very

hard and moved her entire body in th e effort,

including opening her mouth.

When I asked her to "Give mommy a kiss" she

turned in her mother's direction and tried to

open her mouth. (The parents confirmed that

this is how Raven gives kisses). Raven was

able to quickly identify where her m other or

father were by looking at them when I asked

"where is mommy" or "where is daddy?" With

the parent's help, I held up 4 different

objects and asked Raven to look at specific

ones. She did so with 100% accuracy if given

time to turn her head toward s the objects.

(NOTE: Raven had significant difficulty

turning towards her right due to an abnormal

tonic neck reflex). When I used this same

method to ask Raven about colors, she was

able to identify the correct colored object

every time.

Cranial nerve testing : Raven had symmetrical

pupils, normal papillary size and reactivity.

She was able to track objects in all

directions. Her face was symmetrical but

weak. She vocalized. She had a hyperactive

gag reflex. She did drool.

Motor : She had diffuse ly increased tone

throughout in all four extremities. This

included spasticity that was more elicitable

in her legs. She tended to scissor with her

legs when held vertically. Without her

orthotics, she would not bear much weight on

her legs. In her arm s she had rigidity and

dystonia that occurred with any attempt at

effort on her part. She had marked truncal

weakness and a minimal head lag. She was

able to support her head briefly before

toppling forward. She had an obligate tonic

neck reflex to the right that she had to

overcome. She was markedly weak in all

extremities but did have better than

antigravity strength.

Sensation - she withdrew appropriately to

touch. Detailed sensory testing was not

possible.

Deep tendon reflexes/ Plantar responses :

Diffusely brisk (3) except at the ankles

(4) where there was spontaneous clonus.

Plantar responses were extensor bilaterally.

Coordination : no tremor at rest. Reach

severely limited by motor difficulties noted

above.

March 29,2001, Kids Medical Club . At the

medical club, when I met Raven, she had just

finished taking a nap. She was happy and

smiling and appeared to recognize familiar

faces. Most of this evaluation was focused

on Raven's communication and cognitive

abilities.

Raven was very alert and inquisitive. She

clearly recognized all of her different

caretakers and was able to identify them by

looking at them when asked. She was able to

use eye gaze to look at a yes or no card to

confirm which person was sitting in which

position around the room. For much of the

exam she was seated on the physical

therapist's lap while the speech therapist,

Barbara Buwalda, worked with her and I

interjected and asked Raven many questions.

Raven's ability to control her body movements

was severely limited. She had an obligate

tonic neck reflex to the left and had to try

to relax and overcome this to look midline or

to the right. Despite full ocular motility,

it was particularly difficult for her to

avert her gaze to the right for more than a

second or two or to turn and maintain her

head position or eye gaze to the right. She

had markedly increased tone in all

extremities with rigidity at the elbows and

fisting of both hands. This precluded her

ability to reach out to point at objects.

She was not able t o sit without support. She

had to be reminded to hold her head up at

times. She did not say any words but

vocalized sounds.

She was able to make choices based on eye

gaze using hand held cards with pictures or

with "yes" and "no" printed on them. In

add ition to looking at the correct object

when asked, she also answered questions about

the pictures, correctly. For example, when

asked "which of these things do you use when

you are drinking?" She looked at the cup.

She was also able to use eye gaze to l et

Barbara know that she wanted a drink of water

or something to eat. She insisted several

times that she wanted chocolate pudding (not

applesauce) even though Barbara moved the

choices around and required Raven to turn to

the right (against her tendency to turn to

the left).

Raven was very aware of changes in her

surroundings. She looked up when she heard

people walk by the open door to see who was

there. She appeared to understand that we

wanted her to answer questions, but preferred

to look at me ins tead of her speech

therapist. (I was someone new). At one

point, I explained to Raven that I would need

to cover my eyes and not look at her until

she did what she was asked. She immediately

answered the questions (correctly) after I

prompted her.

He r speech therapist held up two cards, one

of which had socks. When Raven was asked

which picture is something that belongs with

shoes, Raven looked at the socks. After

that, I asked Raven whether her speech

therapist was wearing shoes. Raven correctly

l ooked at the "no" card. Then, I asked Raven

"Where are Barbara's shoes?" and Raven looked

towards the speech therapists shoes on the

floor. Then I asked Raven whether one of the

other people in the room she knew was wearing

shoes. This adult was sitting on the far

side of the room, and in order to answer the

question, Raven had to turn her head to the

far right (against her obligate reflex that

causes her to turn to the left), she had to

fix her gaze to the right and look down at

his feet. (She was not given specific

instructions about how to figure out the

answer). Raven looked over at this person's

feet and then turned back and looked at the

card that said "yes" (the correct answer).

It was an obvious effort for Raven to move

her head and hold still to answer questions

with eye gaze or head turning. She was not

able to reach out with her arms to activate a

simple 4 choice device. Despite the fact

that she seemed to get a little tired, she

paid attention for more than 2 hours and

worked to do the thi ngs that I asked of her.

Raven also got upset when her therapist tried

to put her orthotics (DAFOs) on her feet. I

explained to Raven that the braces would help

her be able to stand and that she needed to

wear them. After I spoke to her, Raven let

the t herapist put them on Raven's feet.

At the end of the interview, Raven was placed

in her wheelchair and taken out of the room.

She became very upset and then used the

picture boards on her wheel chair tray to let

the staff know that she wanted to go back in

the room where I was. Once she was back in

the examining room, she immediately calmed

down.

* * *

IMPRESSION : Raven has a mixed form of

quadriplegic cerebral palsy that includes

both spastic and athetoid/dystonic

components. She is motorically very limited.

She will need aggressive (medical and

therapeutic) intervention and assistive

technology to allow her to function in the

world despite her motor limitations.

Raven's motoric difficulties are NOT

indicative of a cognitive impairment. In

fac t, Raven appears to be quite bright and

most likely has at least normal and probably

"above normal" intellect. This is supported

by her lengthy attention span despite the

effort required on her part to perform, and

by her preference for interacting with a dults

and her ability to remain engaged by them.

She listens to adult conversations. She

displays an understanding for object

recognition and concepts consistent with her

age or above age level and is demonstrating

age appropriate cognitive skills includ ing

the emergence of color recognition. It is my

expectation, that with appropriate

intervention, Raven will be able to complete

in a regular classroom -- beginning with

Kindergarten and beyond . . . .

Based on her evaluation, Dr. Brunstrom recommended tha t, due to

the limitations on her expressive language skills occasioned by

her motor impairment, 11 Raven have an augmentative communication

evaluation to ascertain whether she could utilize current

technology to augment her expressive language skills. 12

Dr . Brunstrom also recommended that Raven continue to receive

aggressive therapies to address gross motor function, feeding

skills and communication (including access to her augmentative

communication device once she receive it).

21. As noted in her repor ts, as well as her testimony at

hearing, it was Dr. Brunstrom's opinion that, while Raven's brain

injury did result in permanent and substantial motor (physical)

impairment, Raven is cognitively intact. It was further

Dr. Brunstrom's opinion that Raven is educable, and that she can

function in a school environment with adaptive technology and

assistance.

22. Apart from the opinions offered by Dr. Brunstrom,

Petitioners also offered the opinions of two other physicians who

performed a neurologic evaluat ion of Raven. Those physicians

were Dr. Bernard Maria, a physician board - certified in

pediatrics, as well as neurology with special qualifications in

child neurology, who devoted approximately 2 hours examining

Raven on December 12, 2000, and Dr. Warren C ohen, another

physician board - certified in pediatrics, as well as neurology

with special qualifications in child neurology, who devoted

approximately 2 hours examining Raven in March 2001. The

opinions expressed by Doctors Maria and Cohen were consistent

with those expressed by Dr. Brunstrom, and no useful purpose

would be served by addressing their testimony further.

23. On November 30, 2001, Raven was examined by

Eileen Fennell, Ph.D., a board - certified clinical

neuropsychologist, at the Psychology C linic of the Shands

Hospital, University of Florida, to ascertain her level of

cognitive functioning. 13 That examination, which lasted

approximately 2 hours, was addressed by Dr. Fennell at hearing,

and the results of that examination are fairly summarize d in her

report of December 18, 2001 (Petitioners' Exhibit 19), as

follows:

Behavioral Observations: Raven arrived

seated in her adaptive chair and was bright

and happy that morning. She separated easily

from her parents and was interested when we

moved to the testing room, accompanied by

Barbara Buwalda. She had obviously grown

physically since her last visit and looked

her chronological age. She was positioned in

her chair in front of the examiner so that I

might present test objects to her at a

dista nce of between 18 and 24 inches and at

midline of her visual field. This was done

to minimize the degree of visual movement

needed to indicate a clear response to each

question. When there was a response that was

unclear, the question would be repeated a nd

Ms. Buwalda was asked to opine about the

position of Raven's eyes. If a disagreement

occurred between myself and Ms. Buwalda, the

answer was counted as wrong. Raven worked

from 9:30 AM until 11:30 AM with one short

break to drink water. She was activ ely

interested in the procedures but by 11:30,

she became fatigued and began to have

difficulty responding to test items.

Evidence of her fatigue included difficulty

holding her head up, sweating, increased

spasticity and difficulty focusing on the

test i tems. At that point, the formal

examination was discontinued. Based upon the

degree of interest and cooperation she

displayed, results of this evaluation were

judged to provide a fairly accurate

assessment of a variety of her cognitive

functioning. Asse ssment results are affected

by the limits of the response options

available to Raven and the modifications in

standardized techniques necessitated by her

severe motor difficulties.

Test and Procedures Employed: Components of

the examination included the following

1. Tests of color recognition;

2. Tests of size discrimination;

3. Tests of Same vs. Different (colors,

shapes, sizes);

4. Modified Multiple Choice version of the

Berry Buktenica Test of Visual Motor

Integration;

5. Peabody Pi cture Vocabulary Test - III;

6. Selected items from Bracken Basic Concept

Scale - Revised;

7. Test of Verbal Absurdities; and,

8. Tests of Anticipation and Responsive

Vocalizing.

* * *

Test Results and Interpretation:

The examination began w ith presentation of a

series of colored large plastic lego - type

blocks in six colors (red, yellow, blue,

white, black, green). [Raven] . . . was

asked to look at a specified color of block

(e.g., where is the red block). This was

performed with 100% accu racy. She was then

asked to look at which block was larger or

smaller when presented with blocks that

differed either in color or the number of

raised conical tops. She was given a total

of six trials and performed with 100%

accuracy. She was then asked whether two

blocks (of the same color but with same or

different conical tops ) was the same or

different. She answered with 80% accuracy.

Raven was then presented with a multiple

choice version of the 24 designs of the Beery

Buktenic Test of Visual M otor Integration.

She was shown a design for five seconds. The

page was then flipped to a following page

that had three designs on it, one of which

was the target design. She was asked to look

at the design that matched the one she had

been shown. Raven correctly identified 20 of

the 24 designs. The four errors that were

committed were ones in which she chose the

correct design presented in the wrong

orientation (e.g., drawn at a rotated 45

degree orientation). Thus, this test

assessed both her immedia te memory for

designs as well as her ability to make

perceptual matches to sample. Notably, Raven

loved doing this test and became very excited

and laughed a great deal with each successful

answer.

I then tested her ability to recognize verbal

absurditie s by asking her questions of

improbable events. For example, "Raven, did

you drink your hamburger this morning?" She

would respond to each type of inquiry by

laughing in response indicating that the idea

being presented was "funny" rather than

responding with a yes or no response.

Another example of this type of question was

"Raven, did you put your shoes on your ears

today?".

I then assessed her responsiveness to music

and to voicing. For example, I sang the

Rainbow song to her and she sat very still

looking at me, smiling. I repeated the song

and she began to vocalize with me. I then

examined her ability to respond to changes in

the quality of my voice by slowing and

quieting my speech to which she consistently

responded by slowing her movements dow n and

visibly relaxing. This latter observation

suggested to me that she might have some

relief from her spasticity when excited by

use of training in relaxation techniques.

She clearly would try to relax to reduce her

spastic movements and stiffening wh en told to

do so by her speech therapist or myself

during portions of the exam.

I then switched to selected subtests from the

Bracken. Specifically, she correctly

responded to items (now detailed pictures

rather than plastic legos) asking about

compariso ns on which she scored 6 out of 7

correct. She was also able to correctly

identify selected shape items (concepts "in a

line" and "in a row"[)]. Items relating to

counting (enumeration) were unsuccessfully

attempted (0/2 correct).

At this time, we took a break from testing so

that Raven could drink some water. After she

drank the water, I recited a different verse

to her (i.e., The Crawly Mousy). The verse

describes a mouse crawling to the child's

house. While reciting the verse, the

examiner walks hi s/her fingers up the child's

arm heading either to under the chin or the

stomach. Upon arrival on this site, the

child realizes the connection between the

verse and the tickle that follows the mouse's

arrival. After one exposure, Raven caught on

to the g ame and began to show anticipatory

excitement. This was repeated several times

and again at the end of the day as a game

that I now played on her. Each time, it was

evident that she expected some tickling from

me at the end of the verse and seemed to

enj oy the game thoroughly (as evidenced by

smiles and laughter and even some motor

activity such as trying to stretch out her

arm to me).

In the last portion of the exam, I

administered the Peabody Picture Vocabulary

Test to Raven. At this point, she had be en

working with me for over an hour and one half

and had begun to fatigue yet she remained

interested and cooperative. Beginning with

the training items, Raven was shown a total

of 44 test items before I discontinued

testing due to her obvious fatigue. T he test

was scored in a non - standard fashion

according to the number of items correctly

identified rather than according to the basal

and ceiling rules. In this modified version

on a discontinued test, she obtained an Age

equivalent score of 2 years - 4 mon ths. Had

this been the only testing attempted, I am

confident that she would have achieved a

higher score. The items passed involved

names of objects, body parts, action verbs

and concepts suggesting that her receptive

vocabulary is broader than simple o bject

identification.

Summary Clinical Impressions:

Raven Shoaf is a 4 year - 2 day old child with

a diagnosis of Spastic/Athetoid Cerebral

Palsy who has been receiving Speech

Occupational and Physical Therapy for the

past two years. In that time period, her

receptive vocabulary has been estimated by

her Speech Therapist to have grown to

approximately 500 words. Prior assessments

of her gross and fine motor skills, including

oral motor skills, document her severe

physical disabilities. These motor

disabi lities require that assessing her

cognitive abilities, of necessity, requires

modification of testing techniques and

response requirements. The only avenue by

which she can express her knowledge is

through eye movements and facial and

emotional gestures. Testing also requires

that the examiner must give her sufficient

time to respond and be sensitive to the

effects of fatigue on her ability to sustain

effort and respond. The exam must also be

conducted in such a manner so as not to bias

the responses to her preferred left - sided

gaze. As there are no standardized tests of

cognitive abilities that specifically deal

with each of these limitations, this exam was

adapted to get around the limitations imposed

by her physical difficulties. Results

suggest that her receptive vocabulary is, at

worst, mildly delayed and she has shown

dramatic acquisition of word and concept

knowledge in the two years that she has

received Speech and Language therapy. Her

rate acquisition of language knowledge

attests to her abili ty to learn. Her ability

to accurately remember and discriminate

visuoperceptual material (designs) also

appears to be intact when tested in a

multiple choice format over a short delay.

Long term recognition was not tested in this

exam. Raven clearly und erstands verbal

absurdities when stated to her although she

could not respond to a visual adaptation of a

similar test of absurdities from the Stanford

Binet when seen by Dr. Waters. She also

evidenced anticipatory responding indicating

the ability to for mulate a concept of a

future event. She also spontaneously

vocalized when sung to and was easily guided

by verbal directions and voicing quality

changes that suggest an ability to initiate

cognitive activities, to attempt to imitate

another and to compreh end complex directions

about her muscular state. All of these

behaviors are indicators that she is not able

only to understand a "yes/no" response format

and that there is a working and developing

brain guiding these aspects of her behavior.

As she becom es more proficient in

communicating with the Dynavox and as her

strength improves, she is likely to become

more able to be tested to the limits of her

knowledge. At this time, results from the

present examination do not indicate that she

is functioning in the Severely Impaired range

of cognition. She is, however, severely

motorically impaired. This discrepancy

between her cognitive attainments and the

severity of her motor limitations is the

basis for continuing her therapies, providing

her with assistiv e/augmentative communicative

devices and working with the family to

enhance communication approaches in the home

environment.

24. As noted in her report, as well as her testimony at

hearing, Dr. Fennell is of the opinion that, at worst, Raven's

receptiv e language is mildly delayed. Dr. Fennell, like

Dr. Brunstrom was also of the opinion that Raven is educable, and

can function in a school environment with adaptive technology and

assistance.

25. Finally, to further support their contention that Raven

wa s not cognitively impaired, Petitioners offered the testimony

of Raven's speech - language therapist, Barbara Buwalda, and

occupational therapist, Donna Hoffberg. 14 Notably, until Raven

enrolled in the public school system, and entered Durrance

Elementary S chool's Handicapped Center, these professionals had

provided therapy for Raven for almost 2 years, at a rate of 4 to

5 sessions a week, and therefore, were in a position to garner

insight into Raven's progress and status.

26. In the opinion of these thera pists, Raven has

demonstrated that she is cognitively intact by demonstrated

normal or above normal receptive language development. In this

regard, Ms. Buwalda notes that at less than four years of age

Raven has consistently demonstrated, by eye gaze and eye

scanning, that she can identify some letters of the alphabet,

that she can identify some words (her name, cat and dog), that

she has mastered her colors (all her primary colors, as well as

orange, purple, black and white), and that she can identify

sha pes (circle, square, and diamond). Ms. Buwalda also notes

that Raven can identify words by function, that she can make

inferences, that she knows plurals, that she can make size

comparisons (big/little), that she knows spacial concepts (top,

below, beside ), and that she knows her body parts (eyes, ears,

nose, hair, hands, feet, legs, and arm). As with Ms. Buwalda,

Ms. Hoffberg notes, as evidence of Raven's cognitive status,

Raven's consistency of choice. Ms. Hoffberg further notes that

Raven is focused a nd attentive, that she demonstrates preferences

for people and things, that she demonstrates appropriate social

skills for her age, and that she responds to verbal commands. In

all, these therapists are of the opinion that Raven demonstrates

an awareness of her surroundings, as well as an understanding of

her environment, and does not present with any evidence of mental

impairment.

27. The medical records and other proof, including the

testimony of the various healthcare providers and the videos

offered b y the parties have been carefully considered. So

considered, it must be resolved that the proof does not permit a

conclusion to be drawn, with any sense of confidence, that, more

likely than not, Raven is permanently and substantially mentally

impaired.

2 8. In reaching such conclusion, it is noted that the

physicians and other healthcare providers who testified on behalf

of Petitioners were well qualified and positioned to offer

compelling proof as to Raven's cognitive status. In contrast,

while also wel l qualified, the physician (Dr. Duchowny) and

psychologist (Dr. Waters) who testified on behalf of Respondent

and Intervenors were not so well positioned (with limited

personal contact, as well as numerous distractions during the

course of their contact wi th Raven). Moreover, the difference in

perspective aside, there is no compelling reason to prefer their

testimony over that offered by Petitioners' experts.

CONCLUSIONS OF LAW

29. 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.

The notice issue

30. Pertinent to the notice issue, Section 766.316, Florida

Statutes (1997), provided:

Each hospital with a participating physician

on its sta ff and each participating physician

. . . shall provide notice to the obstetrical

patients thereof as to the limited no - fault

alternative for birth - related neurological

injuries. Such notice shall be provided on

forms furnished by the association and shal l

include a clear and concise explanation of a

patient's rights and limitations under the

plan.

31. In Galen of Florida, Inc. v. Braniff , 696 So. 2d 308,

309 (Fla. 1997), the Florida Supreme Court described the

legislative intent and purpose of the notic e requirement as

follows:

. . . the only logical reading of the statute

is that before an obstetrical patient's

remedy is limited by the NICA plan, the

patient must be given pre - delivery notice of

the health care provider's participation in

the plan. Sect ion 766.316 requires that

obstetrical patients be given notice "as to

the limited no - fault alternative for birth -

related neurological injuries." That notice

must "include a clear and concise explanation

of a patient's rights and limitations under

the plan ." Section 766.316. This language

makes clear that the purpose of the notice is

to give an obstetrical patient an opportunity

to make an informed choice between using a

health care provider participating in the

NICA plan or using a provider who is not a

participant and thereby preserving her civil

remedies. Turner v. Hubrich , 656 So. 2d 970,

971 (Fla. 5th DCA 1995). In order to

effectuate this purpose a NICA participant

must give a patient notice of the "no - fault

alternative for birth - related neurologic al

injuries" a reasonable time prior to

delivery, when practicable.

Consequently, the court concluded:

. . . as a condition precedent to invoking

the Florida Birth - Related Neurological Injury

Compensation Plan as a patient's exclusive

remedy, health care providers must, when

practicable, give their obstetrical patients

notice of their participation in the plan a

reasonable time prior to delivery.

32. Given the Florida Supreme Court's holding in Galen , it

has been resolved that where, as here, Petitioner s have sought to

avoid a healthcare provider's attempt to invoke the Plan as their

exclusive remedy in a civil action (by responding that the

healthcare provider failed to comply with the notice provisions

of the Plan) it is necessary for the administrativ e law judge to

resolve whether, as alleged by the healthcare providers,

appropriate notice was given. Braniff v. Galen of Florida, Inc. ,

669 So. 2d 1051, 1053 (Fla. 1st DCA 1995)("The presence or

absence of notice will neither advance nor defeat the claim of an

eligible NICA claimant who has decided to invoke the NICA remedy

. . . . Notice is only relevant to the defendant's assertion of

NICA exclusivity where the individual attempts to invoke a civil

remedy."), and O'Leary v. Florida Birth - Related Neurol ogical

Injury Compensation Association , 757 So. 2d 624, 627 (Fla. 5th

DCA 2000)("All questions of compensability, including those which

arise regarding the adequacy of notice, are properly decided in

the administrative forum"). As the proponent of such is sue, the

burden rested on the healthcare providers to demonstrate, more

likely than not, that the notice provisions of the Plan were

satisfied. Balino v. Department of Health and Rehabilitative

Services , 348 So. 2d 349, 350 (Fla. 1st DCA 1997)("[T]he burd en

of proof, apart from statute, is on the party asserting the

affirmative issue before an administrative tribunal.") See also

Galen of Florida, Inc. v. Braniff , supra , at 311 ("[T]he

assertion of NICA exclusivity is an affirmative defense.")

33. Here, t he parties have stipulated that the

participating physician who provided obstetrical services at

Raven's birth provided Mrs. Shoaf notice as required by the Plan.

And, for reasons heretofore noted in the Findings of Fact, it has

been resolved that the hos pital likewise provided notice as

required by the Plan. Consequently, the notice provisions of the

Plan were satisfied.

The compensability issue

34. In resolving whether a claim is compensable under the

Plan, 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 neurol ogical injury

as defined in s. 766.302(2).

(b) 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.

Section 766.309(1), Florida Statutes. An award may be sustained

only if the administrat ive 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.

35. Pertinent to this case, "birth - relate d 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 o f

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

disabil ity or death caused by genetic or

congenital abnormality.

Consequently, to obtain coverage, an infant must suffer both

substantial mental and substantive physical impairments that are

permanent in nature. Florida Birth - Related Neurological Injury

Compens ation Association v. Florida Division of Administrative

Hearings , 686 So. 2d 1349 (Fla. 1977).

36. Here, the parties stipulated that obstetrical services

were delivered by a participating physician at birth, that Raven

was born a live infant weighing at l east 2,500 grams at birth,

and that Raven suffered an injury to the brain caused by oxygen

deprivation occurring in the course of labor, delivery, or

resuscitation in the immediate postdelivery period in the

hospital, which rendered her permanently and sub stantially

physically impaired. The only dispute regarding coverage was

whether the injury Raven suffered also rendered her permanently

and substantially mentally impaired. 15

37. As the proponents of coverage, the burden rested on the

healthcare provider s and NICA to demonstrate that Raven was

permanently and substantially mentally impaired. Balino v.

Department of Health and Rehabilitative Services, supra . Here,

for reasons stated in the Findings of Fact, the healthcare

providers and NICA failed to sus tain such burden. Accordingly,

the proof failed to demonstrate that Raven suffered a "birth -

related neurological injury," within the meaning of Section

766.302(2), Florida Statutes, and the claim is not compensable.

Sections 766.302(2), 766.309(1), and 7 66.31(1), Florida Statutes.

38. 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 orde r 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.

DONE AND ORDERED thi s 11th day of March, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 306 0

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of March, 2002.

ENDNOTES

1/ Petitioners' Exhibits are identified as follows:

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

April 30, 2001), Exhibits 2A and 2B (the transcript and video of

the deposition of Warren Cohen, M.D.), Exhibits 3A and 3B (the

transcript and video of the deposition of Michael Johnston,

M.D.), Exhibits 4A and 4B (the transcript and video of the

deposition of Thomas Naidich, M.D.), Exhibit 5 (the Curriculum

Vitae (CV) of Dr. Brunstrom), Exhibits 6 (report of

Dr. Brunstrom's neurology evaluations of 2/2/01 and 3/29/01),

Exhibit 7 (report dated 8/16/01 of Dr. Brunstrom's neurology

evaluation of 8/14/01), Exhibit 8 (Speech - Language Pathology

Occupational Therapy Augmentative Communication Evaluation of

8/13/01), Exhibit 9 (video of neurological examination by

Dr. Michael Duchowny on 2/22/01), Exhibit 10 (CV of Patricia

Smith), Exhibit 11 (report dated 12/9/01 of Patricia Smith's

evaluation of 12/5/01), Exhibit 12 (CV of Donna L. Hoffberg),

Exhibit 13 (video of 11/8/01 therapy session at Kids Medical

Club), Exhibit 14 (CV of Libah G. Castrillo), Exhibit 15 (CV of

Bernard L. Maria, M.D.), Exhibit 16 (report of Dr. Maria dated

12/12/00), Exhibit 17 (CV of Eileen Fennell, Ph.D.), Exhibit 18

(report of Dr. Fennell dated 2/28/01), Exhibit 19 (report of Dr.

Fennell dated 12/18/01), Exhibit 20 (CV of Barbara S. Buwald a),

Exhibit 21 (Speech Language Evaluation by Ms. Buwalda dated

10/1/01, Speech - Language Progress Summary by Ms. Buwalda dated

6/21/01, a two - page undated Summary by Ms. Buwalda, Speech -

Language Evaluation by Ms. Buwalda dated 2/5/01,

Receptive/Expressive Language Summary by Ms. Buwalda dated

12/12/00, and an Integrated Therapy Evaluation and Therapy Care

Plan dated 8/30/00 by Ms. Buwalda and others), Exhibit 22 (video

of 2/1/01, and 11/8/01 speech therapy sessions), Exhibit 23

(Florida Hospital's Response to P etitioners' R equest for

P roduction, with attached redacted copy of OB/GYN Section Minutes

of 6/3/97 and redacted copy of the L & D Unit Meeting Minutes of

August 26, 1998), Exhibit 24 (Petitioners' Request for A dmissions

to Florida Hospital, served 11/ 9/01), Exhibit 25 (Florida

Hospital's response to Petitioners' Request for Admissions served

11/29/01), and Exhibit 26 (Florida Hospital's response to

Petitioners' Request for Admissions, served 12/6/01.

2/ Respondent's Exhibits are identified as follo ws:

Respondent's Exhibit 1 (the CV of Dr. Waters), Exhibit 2

(Dr. Waters' report of an evaluation conducted on 8/24/01),

Exhibit 3 (Dr. Waters' report of an evaluation conducted on

8/24/01), Exhibit 4 (video of a speech therapy session on

12/20/00) and Ex hibit 5 (video of Dr. Waters' evaluation).

3/ Intervenors' Exhibits, collectively identified in the record

as Florida Hospital Exhibits, are identified as follows: Florida

Hospital's Exhibit 1A and 1B (the transcript and video of the

deposition of Allen Elster, M.D.), Exhibit 2 (transcript of the

deposition of James Shoaf), Exhibit 3 (transcript of the

deposition of Sandra Shoaf), Exhibit 4(CV of Dr. Duchowny),

Exhibit 5 (report of 2/22/01 neurology evaluation by

Dr. Duchowny), Exhibit 6 (composite of MR I and CT scans of

Raven Shoaf), Exhibit 7A and 7B (hospital consent forms with

beginning date of treatment noted as 11/25/97 and 11/26/97,

respectively), Exhibit 8 (NICA brochure), Exhibit 9 (physician's

receipt of NICA notice form), Exhibit 10 (transcript of the

deposition of Bonnie Hache), and Exhibit 11 (transcript of the

deposition of Sharon L. Paine).

4/ Neither Respondent nor Intervenor made such a request and,

consistent with the order of January 23, 2002, the record was

closed.

5/ Neither Respo ndent nor Intervenors availed themselves of the

opportunity to file S upplemental F indings of F act and Conclusion

of Law.

6/ Consistent with that stipulation, the proof demonstrates that

on October 21, 1997, when she presented at the offices of Mid -

Flor ida Obstetrics & Gynecology Specialists, Mrs. Shoaf was

provided with a form (the acknowledgment form) which informed her

that her physicians were participants in the Florida Birth -

Related Neurological Injury Compensation Plan. Specifically, the

acknowled gment form provided, as follows:

I have been furnished information by Mid -

Florida Obstetrics & Gynecology Specialists

prepared by the Florida Birth Related

Neurological Injury Compensation Association,

and have been advised that Drs. Ravelo,

Mowere & Geil ing are participating Physicians

in that program, wherein certain limited

compensation is available in the event

certain neurological injury may occur during

labor, delivery or resuscitation. For

specifics on the program, I understand I can

contact the Fl orida Birth Related

Neurological Injury Compensation Association

(NICA), Barnett Bank Building, 315 South

Calhoun Street, Suite 312, Tallahassee,

Florida 32301, (904) 488 - 8191. I further

acknowledge that I have received a copy of

the brochure prepared by NICA.

The brochure prepared by NICA, titled "Peace of Mind for an

Unexpected Problem," contained (as Petitioners conceded) a clear

and concise explanation of a patient's rights and limitations

under the Plan. Mrs. Shoaf acknowledged her understanding of the

acknowledgment form, as well as receipt of the brochure, by

dating and signing the form.

7/ In reaching such conclusion, the testimony of Mr. and Mrs.

Shoaf regarding notice, and their denial of having received a

copy of the brochure at the hospital , has not been overlooked.

Their testimony regarding this issue was not, however,

persuasive.

As one would expect given the passage of time, Mrs. Shoaf

evidenced very little recall regarding the events surrounding her

admission to Florida Hospital - Alta monte. She did not recall

meeting with the registration representative, did not remember

seeing or signing the consent form, and did not remember if she

received a copy of any documents. As explained by Mrs. Shoaf,

"it was a long, long time ago." (Flori da Hospital Exhibit 3,

page 8) As for Mr. Shoaf, he also evidenced very little recall

regarding the events surrounding his wife's admission. He

likewise did not recall meeting with the registration

representative, and did not recall his wife signing any

documents.

Nevertheless, and notwithstanding their lack of recall regarding

the events surrounding Mrs. Shoaf's admission, Mr. and Mrs. Shoaf

testified they were sure they did not receive the NICA brochure.

Mrs. Shoaf explained the basis for her certai nty, as follows:

. . . I'm completely sure at Florida Hospital

they did not give me a paper like this.

* * *

Q. Why are you so sure?

A. Because I would have remembered it?

Q. Why would you have remembered it?

A. Because it's an important docu ment, and I

would have tried to find out through my

husband about that document, because I would

have tried to find out exactly what the

document was about.

[Florida Hospital Exhibit 3, page 11]

As for Mr. Shoaf, he explained the basis for his certainty, as

follows:

Q. Mr. Shoaf, when I took your deposition

the first time -- which was on September 27th

a year ago, 2000 -- on page 26, line 9, I

asked you the following question: "Did you

receive any NICA information at Florida

Hospital when your wife wa s admitted?" And

your answer was, "I don't recall."

A. Right.

Q. Now, was that your answer back then?

A. Yeah.

Q. All right. Now, today you seem to be

saying that you're absolutely, positively

certain that you didn't receive it.

A. Well, if I h ad receive it, I would have

read it. And since I didn't know about the

program until after she was born, I can

assume that I didn't receive it. That's, you

know, my line of thinking.

[Florida Hospital Exhibit 2, page 16)

The rationale advanced by Mrs. Shoaf and Mr. Shoaf to support

their conclusion that they did not receive the NICA brochure at

the hospital is not compelling. A more compelling explanation

for their lack of recall is that they did not read the brochure

or did not place any importance on its content. Indeed, a NICA

brochure was provided by Mrs. Shoaf's physicians, and Mrs. Shoaf

even executed the acknowledgment form without any apparent

concern for its import or notable impact on Mr. and Mrs. Shoaf's

memory. Given such circumstances, th ere is no reason to credit

their testimony that they were not provided notice by the

hospital.

8/ Dr. Naidich, like Dr. Elster, is board - certified in

diagnostic radiology with special qualifications in

neuroradiology.

9/ At hearing, Dr. Duchowny expl ained that, by lack of

expressive language, he meant that Raven didn't speak in words.

(Transcript, page 119)

10/ As reflected by Dr. Brunstrom's report, Raven's

developmental history was obtained from her parents. Mr. Shoaf

offered similar testimony a t hearing, and Raven's developmental

history was corroborated by, among others, Barbara Buwalda,

Raven's speech - language therapist, Donna Hoffberg, Raven's

occupational therapist, and Dr. Eileen Fennell, a board - certified

clinical neuropsychologist, who e valuated Raven's cognitive

status.

11/ Raven is unable to speak, and therefore severely impaired in

her ability to communicate verbally.

12/ As recommended by Dr. Brunstrom, Raven did have an

augmentative communication evaluation at St. Louis Childre n's

Hospital, and a DynaVox 3100 (an electronic speech output device,

that can be accessed with a switch or head tracker, which will

communicate verbally for Raven) and the Madentec Tracker 2000

bundle were recommended. Apparently, Raven received a DynaVo x

and her head tracker in or about early December 2001, and met

with Patricia Smith, a speech - language pathologist specializing

in augmentation communication on December 5, 2001, to assess the

best access method for Raven. As of the date of hearing, Raven

was in the early stage of familiarizing herself with the

equipment.

13/ Raven was also examined by Dr. Fennell in December 2000, but

that effort was apparently unsuccessful. (Transcript, page 387

and 388)

14/ Petitioners also offered the testimony o f Raven's physical

therapist, Libah Castrillo, but her observations were less

insightful.

15/ Permanent and substantial are not defined by the Plan,

however, the American Heritage Dictionary of the English Language,

New College Edition, defines "permane nt" as:

. . . 1. Fixed and changeless; lasting or

meant to last indefinitely. 2. Not expected

to change in status, condition, or

place . . .

It further defines "substantial" as:

. . . 1. Of, pertaining to, or having

substance; material. 2. Not imaginary;

true; real. 3. Solidly built, strong. 4.

Ample, sustaining . . . 5. Considerable in

importance, value, degree, amount, or extent

. . . -- sub - stan'tial - ly adv.

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.) Where,

however, the phrase contains a key word like "substantially," the

phrase is p lainly susceptible to more than one meaning. Under

such circumstances, consideration must be accorded not only the

literal or usual meaning of the word, but also to its meaning and

effect in the context of the objectives and purposes of the

statute's enac tment. See Florida State Racing Commission v.

McLaughlin , 102 So. 2d 574 (Fla. 1958.) Indeed, "[i]t is a

fundamental rule of statutory construction that legislative

intent is the polestar by which the court must be guided [in

construing enactments of t he legislative]." State v. Webb , 398

So. 2d 820, 834 (Fla. 1981).

Turning to the provisions of the Plan, certain insights may be

gleaned regarding the meaning the Legislature intended to ascribe

to the word "substantially," and more particularly its use in the

phrase "permanently and substantially mentally and physically

impaired." First, the Legislature has expressed its intent in

Section 766.301(2), Florida Statutes, as follows:

It is the intent of the Legislature to

provide compensation, on a no - fa ult basis,

for a limited class of catastrophic injuries

that result in unusually high costs for

custodian care and rehabilitation. This plan

shall apply only to birth - related

neurological injuries. (Emphasis added)

"Catastrophic," an adjective of the no un "catastrophe," is

defined by The American Heritage Dictionary of the English

Language, New College Edition, as "a great and sudden calamity;

disaster." (Emphasis added.)

It is further worthy of note that physicians commonly use terms

such as "mild," " moderate," and "severe" to describe the scope of

an infant's mental and physical injury.

Finally, as observed by the court in Humana of Florida, Inc. v.

McKaughn , 652 So. 2d 852, 858 (Fla. 2d DCA 1995), the Florida

Birth - Related Neurological Injury Compen sation Plan, like the

Worker's Compensation Act, is a "limited statutory substitute for

common law rights and liabilities." Accordingly, "because the

Plan . . . is a statutory substitute for common law rights and

liabilities, it should be strictly constru ed to include only

those subjects clearly embraced within its terms . . . [and] a

legal representative of an infant should be free to pursue common

law remedies for damages resulting in an injury not encompassed

within the express provisions of the Plan." Humana of Florida,

Inc. v. McKaughn , supra , at page 859. Accord, Carlile v. Game

and Fresh Water Fish Commission , 354 So. 2d 362 (Fla. 1977)(A

statute designed to change the common law rule must speak in

clear, unequivocal terms, for the presumption is t hat no change

in the common law was intended unless the statute is explicit in

this regard.)

Given the Legislature's intent to restrict no - fault coverage

under the Plan to "a limited class of catastrophic injuries," as

well as the common practice among ph ysicians to use terms such as

"mild," "moderate," or "severe" to describe the degree of an

infant's injuries, it is concluded that the word "substantially,"

as used in the phrase "permanently and substantially mentally and

physically impaired," denotes a " catastrophic" mental and

physical injury, as opposed to one that might be described as

"mild" or "moderate."

COPIES FURNISHED:

(By certified mail)

John R. Dunphy, Esquire

Jeffrey W. Joseph, Esquire

Blank, Meenan & Smith, P.A.

204 South Monroe Street

Tal lahassee, Florida 32301

John Elliott Leighton, Esquire

Patricia M. Kennedy, Esquire

Leesfield, Leighton, Rubio & Mahfood

2350 South Dixie Highway

Miami, Florida 33133

Robert A. Hannah, Esquire

Christopher C. Curry, Esquire

Hannah, Estes & Ingram, P.A.

Post Office Box 4974

Orlando, Florida 32802 - 4974

William H. Olney, Esquire

Thomas E. Dukes, III, Esquire

McEwan, Martinez, Dukes & Ruffier, P.A.

108 East Central Boulevard

Post Office Box 753

Orlando, Florida 32802

Lynn Larson, Executive Director

Flori da Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32317 - 4567

Hector A. Moré, Esquire

Benjamin W. Newman, Esquire

Grower, Kercham, Moré, Rutherford, Noecker,

Bronson & Eide, P.A.

390 North Orange Avenue, Suite 1900

Orlando, Florida 32801

Michael Geiling, D.O.

1403 Medical Plaza Drive, Suite 102

Sanford, Florida 32771

Florida Hospital Altamonte

601 East Altamonte Drive

Altamonte Springs, Florida 32701

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

NOTIC E 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. Su ch 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 Sect ion 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.