01-002476N Silvia Castillo And Cesareo Castillo, On Behalf Of And As Parents And Natural Guardians Of Kathy Evelyn Castillo, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, July 24, 2002.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SILVIA CASTILLO and CESAREO )

CASTILLO, as parents and )

natural guardians of KATHY )

EVELYN CASTILLO, a minor, )

)

Petitioners, )

)

vs. )

) Case No. 01 - 2476N

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

)

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 25, 2002, in West Palm

Beach, Florida.

APPEARANCES

For Petitioner: Silvia C astillo, pro se

Post Office Box 246

Lake Worth, Florida 33460

For Respondent: Ronald A. Labasky, Esquire

Ronald A. Labasky, P.A.

Post Office Box 669

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Kathy Evelyn

Castillo, a minor, suffered an in jury for which compensation

should be awarded under the Florida Birth - Related Neurological

Injury Compensation Plan.

PRELIMINARY STATEMENT

On June 8, 2001, Silvia Castillo and Cesareo Castillo, as

parents and natural guardians of Kathy Evelyn Castillo (Ka thy), 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

Compensatio n Association (NICA) with a copy of the claim on

June 26, 2001. NICA reviewed the claim and on November 8, 2001,

gave notice that it had "determined that such claim is not a

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

766.302(2), Flo rida Statutes," and requested that "an order [be

entered] setting a hearing in this cause on the issue of the

compensability of this claim." Such a hearing was held on

June 25, 2002.

At hearing, the parties stipulated to the factual matters

set forth in p aragraphs 1 and 2 of the Findings of Fact.

Silvia Castillo testified on Petitioners' behalf, and

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

May 16, 2001, and June 4, 2001) and Petitioners' Exhibit 2 (a

composite exhibit which included medical records and a variety of

other documents) were received into evidence. 1 Respondent's

Exhibit 1 (the deposition of Michael Duchowny, M.D.) and

Respondent's Exhibit 2 (the deposition of Donald Willis, M.D.),

were received into evidence. No other wi tnesses were called, and

no further exhibits were offered.

The transcript of the hearing was filed July 11, 2002, and

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

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

has be en duly considered.

FINDINGS OF FACT

Fundamental findings

1. Petitioners, Silvia Castillo and Cesareo Castillo, are

the parents and natural guardians of Kathy Evelyn Castillo, a

minor. Kathy was born a live infant on April 4, 1997, at

St. Mary's Hospit al, a hospital located in West Palm Beach,

Florida, and her birth weight exceeded 2,500 grams.

2. The physician providing obstetrical services at Kathy's

birth was Sebastian Kent, M.D., who, at all times material

hereto, was a "participating physician" in the Florida Birth -

Related Neurological Injury Compensation Plan, as defined by

Section 766.302(7), Florida Statutes.

Coverage under the Plan

3. Pertinent to this case, coverage is afforded by the Plan

when the claimant demonstrates, more likely than not , that the

infant suffered an "injury to the brain . . . 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.

4. Here, the proof failed to demonstrate that Kathy was

substantially mentally impaired, as required for coverage under

the Plan. Consequently, it is unnecessa ry to address whether she

suffered an injury to the brain caused by oxygen deprivation or

mechanically injury and, if so, whether such injury occurred in

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

post - delivery period. Moreover, it i s unnecessary to resolve

whether Kathy is substantially physically impaired. Florida

Birth - Related Neurological Injury Compensation Association v.

Florida Division of Administrative Hearings , 686 So. 2d 1349

(Fla. 1997)(The Plan is written in the conjunct ive and can only

be interpreted to require both substantial physical and mental

impairment).

Kathy's current mental presentation

5. The only proof of record which addressed Kathy's mental

presentation were the observations of Dr. Michael Duchowny, a

phys ician board - certified in pediatrics, neurology with special

competence in child neurology, and clinical neurophysiology, who,

at Respondent's request, examined Kathy on October 23, 2001, and

the observations of Enrique Riveria, Ph.D., a clinical

psychologi st, who, at Petitioners' request, tested Kathy on

May 14, 2002. (Respondent's Exhibit 1 and Petitioners' Exhibit

2.)

6. Dr. Duchowny reported the results of his evaluation, as

follows:

Kathy's NEUROLOGIC EXAMINATION reveals her to

be quiet and cooperativ e with good social

skills and easily answers questions.

Kathy can name colors and body parts without

difficulty and answers simple questions quite

directly. Her speech sounds are fluent and

well articulated. She is helpful in the

examination and clearly anticipates complex

tasks and performs them without difficulty.

The cranial nerve examination reveals full

visual fields to confrontation testing,

normal ocular fundi and papillary light

responses. There is an alternating esotropia

more prominent on the left. She has good

conjugate gaze fixation and following. There

are no facial asymmetries. The tongue and

palate move well. There is no drooling.

Motor examination reveals generalized static

hypotonia, with some slight dynamic

hypertonicity more promi nent on the left.

There is full range of movement without

limitation and she is able to stand on her

own. Kathy is able to take several steps,

but she demonstrates gross truncal ataxia.

Her gait is wide - based with prominent foot

inversion and some inter nal rotation at the

hips. There are no adventitious movements or

atrophy. The deep tendon reflexes are brisk

throughout at 3, with plantar responses in

neutrality. Sensory examination is intact to

withdrawal of all extremities to pin. She

can do finge r - to - nose maneuvers without

difficulty for age level. The neurovascular

examination reveals no cervical, cranial or

ocular bruits and no temperature or pulse

asymmetries.

In SUMMARY, Kathy's neurologic examination

reveals evidence of generalized hypotoni a,

ataxia with limited gait and bilateral

hyperreflexia. She also has an alternating

esotropia. In contrast, Kathy's cognitive

skills appear well preserved for age.

7. At a deposition held January 17, 2002, and received into

evidence as Respondent's Ex hibit 1, Dr. Duchowny expanded on the

results of his examination and conclusions regarding Kathy's

mental presentation, as follows:

Q. And would you explain, please, what your

observations were, as it relates to Kathy

Castillo?

A. I thought that Kathy w as a quiet and

cooperative child.

She was four - years - old, and had good

social skills and communications skills. Her

speech milestones seemed to be appropriate

for her age, and she clearly was interactive

with me throughout the whole time.

* * *

Q. And based upon your examination . . . you

did not note any type of mental impairment?

A. That's . . . correct.

Q. She was normal, based upon your

examination, as it relates to a four - year -

old?

A. That was my impression.

8. Dr. Rivera summarize d the results of his testing, as

follows:

Kathy Castillo is a five year old who is

currently functioning within the Average

intellectual range. When her intellectual

potential is compared with the Standard

Scores on an Achievement Test, there are no

indic ations of a Learning Disability. In

fact, Kathy appears to be learning at a pace

that is congruent with her intellectual

abilities.

9. Given the record, it must be concluded that the proof

failed to demonstrate, more likely than not, that Kathy was

subs tantially mentally impaired. To the contrary, the proof

compels the conclusion that Kathy suffers no mental impairment.

CONCLUSIONS OF LAW

10. 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.

11. The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurolog ical injury claims" relating to births

occurring on or after January 1, 1989. Section 766.303(1),

Florida Statutes.

12. The injured "infant, his personal representative,

parents, dependents, and next of kin," may seek compensation

under the Plan by filin g a claim for compensation with the

Division of Administrative Hearings. Sections 766.302(3),

766.303(2), 766.305(1), and 766.313, Florida Statutes. The

Florida Birth - Related Neurological Injury Compensation

Association, which administers the Plan, has " 45 days from the

date of service of a complete claim . . . in which to file a

response to the petition and to submit relevant written

information relating to the issue of whether the injury is a

birth - related neurological injury." Section 766.305(3), Flor ida

Statutes.

13. 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 ha s 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.

14. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the injury cl aimed 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

l abor, 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 neurolog ical injury and that

obstetrical services were delivered by a participating physician

at birth." Section 766.31(1), Florida Statutes.

15. Pertinent to this case, "birth - related neurological

injury" is defined by Section 766.302(2), Florida Statutes, to

m ean:

. . . 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.

16. As the claiman ts, 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 proo f, apart from statute, is on the party

asserting the affirmative issue before an administrative

tribunal.")

17. Here, the proof failed to support the conclusion that,

more likely than not, Kathy was permanently and substantially

mentally impaired. Conseq uently, the record developed in this

case failed to demonstrate that Kathy suffered a "birth - related

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

Florida Statutes, and the subject claim is not compensable under

the Plan. Sections 766.30 2(2), 766.309(1), and 766.31(1),

Florida Statutes. See also Florida Birth - Related Neurological

Injury Compensation Association v. Florida Division of

Administrative Hearings , supra .

18. 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), Florid a 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 compensat ion filed by

Silvia Castillo and Cesareo Castillo, as parents and natural

guardians of Kathy Evelyn Castillo, a minor, be and the same is

hereby denied with prejudice.

DONE AND ORDERED this 24th day of July, 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 - 3060

(850) 488 - 9675 S UNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of July, 2002.

ENDNOTE

1/ Petitioners' Exhibit 2 was received into evidence subje ct to

Respondent's hearsay objection and the limitations imposed on the

use of hearsay evidence by Section 120.57(1)(c), Florida

Statutes.

COPIES FURNISHED:

(By certified mail)

Cesareo Castillo

Silvia C astillo

Post Office Box 246

Lake Worth, Florida 3 3460

Ronald A. Labasky, Esquire

Ronald A. Labasky, P.A.

Post Office Box 669

Tallahassee, Florida 32302

Lynn Larson, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32312

Sebastian Kent, M.D.

1500 North Dixie Highway, No. 306

West Palm Beach, Florida 33401 - 2732

St. Mary's Medical Center

901 45th Street

West Palm Beach, Florida 33407

Ms. Charlene Willoughby

Agency for Health Care A dministration

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 co py 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.