01-003585N Cecelia Roberts Young, As Grandmother And Guardian Of Alonzo Hall, Jr. vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, November 25, 2003.

Summary: Proof failed to demonstrate that the infant`s neurologic impairments were caused by oxygen deprivation or mechanical injury, or that they were associated with events occurring during labor and delivery.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CECILIA ROBERTS YOUNG, as )

grandmother and guardian of )

ALONZO HALL, JR., a minor, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3585N

)

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 Octobe r 2, 2003, by

video teleconference with sites in Tallahassee and Orlando,

Florida.

APPEARANCES

For Petitioner: Ronald S. Gilbert, Esquire

Morgan, Colling & Gilbert, P.A.

20 North Orange Avenue, Suite 1600

Post Office Box 4979

Orlando, Florida 32802 - 4979

and

Horace N. Moore, Sr., Esquire

235 South Main Street, Suite 101W

Post Office Box 2146

Gainesville, Florida 32602

For Respondent: Andrew W. Rosin, Esquire

Phelps Dunbar LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

STATEMENT OF THE ISSUE

Whether Alonzo Hall, Jr., a minor, qualifies for coverage

under the Florida Birth - Related Neurological Injury Compensation

Plan.

PRELIMINARY STATEMENT

On September 7, 2001, Cecilia Roberts Young, as grandmother

and guardian of Alon zo Hall, Jr., a minor (Alonzo), 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 I njury

Compensation Association (NICA) with a copy of the claim on

September 12, 2001. NICA reviewed the claim and on January 22,

2002, gave notice that it had "determined that such claim is not

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

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

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

of compensability."

The final hearing was initially convened on January 28,

2003; however, upon review of the record, it became app arent

that Andrew Cracker, M.D., the participating physician, was not

named in the petition and had not been served a copy of the

claim. Consequently, the hearing was continued to accord

Petitioner an opportunity to file an amended petition naming

Dr. Cra cker, and to serve a copy of the amended petition on

Dr. Cracker.

On March 5, 2003, Petitioner filed an amended petition,

which named Dr. Cracker as the physician providing obstetric

services at Alonzo's birth, and served Dr. Cracker with a copy

of the a mended petition on March 10, 2003. Thereafter, on

October 2, 2003, the hearing was reconvened to resolve whether

the claim was compensable.

At hearing, Cecilia Roberts Young testified on her own

behalf, and Petitioner's Exhibits 1 - 9 were received into

evi dence. No other witnesses were called, and no further

exhibits were offered.

The transcript of the hearing was filed October 29, 2003,

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

proposed orders. Respondent elected to file such a proposa l and

it has been duly considered.

FINDINGS OF FACT

Fundamental findings

1. Petitioner, Cecilia Roberts Young, is the maternal

grandmother and legal guardian of Alonzo Hall, Jr., a minor.

Alonzo was born a live infant on January 25, 1997, at HCA Putnam

Community Hospital, a hospital located in Palatka, Florida, and

his birth weight exceeded 2,500 grams.

2. The physician providing obstetrical services at

Alonzo's birth was Andrew Cracker, M.D., who, at all times

material hereto, was a "participating phy sician" in the Florida

Birth - Related Neurological Injury Compensation Plan, as defined

by Section 766.302(7), Florida Statutes. 1

Coverage under the Plan

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

Plan for infants who suffer a "birth - related n eurological

injury," defined as 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

perm anently and substantially mentally and physically impaired."

§ 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, F la.

Stat.

4. Here, indisputably, Alonzo is permanently and

substantially mentally and physically impaired. What remains to

resolve is whether the proof supports the conclusion that, more

likely than not, Alonzo's neurologic impairment resulted from an

"injury to the brain . . . caused by oxygen deprivation or

mechanical injury, occurring in the course of labor, delivery,

or resuscitat ion in the immediate post - delivery period," as

required for coverage under the Plan.

The cause and timing of Alonzo's

neurologic impairment

5. To address the cause and timing of Alonzo's neurologic

impairment, Petitioner offered selected medical records relating

to Alonzo's birth and subsequent development (Petitioner's

Exhibits 1 and 2); the deposition of Michael Duchowny, M.D., a

pediatric neurologist (Petitioner's Exhibit 3); the results of

Dr. Duchowny's neurologic examination of Alonzo, as well as

Dr . Duchowny's conclusions following review of the medical

records (Petitioner's Exhibits 5 - 7); the deposition of

Donald Willis, M.D., an obstetrician (Petitioner's Exhibit 4);

Dr. Willis' conclusions following review of the medical records

(Petitioner's Exh ibit 8); and the testimony of Cecilia Young, as

well as her deposition (Petitioner's Exhibit 9).

6. As for the cause and timing of Alonzo's impairments, it

was Dr. Duchowny's opinion, based on the results of his

neurologic examination and review of the me dical records, that

Alonzo's impairments were prenatal (developmental) in origin,

having occurred prior to the onset of labor, and not associated

with oxygen deprivation or mechanical injury during labor,

delivery, or resuscitation. As for Dr. Willis, he was also of

the opinion that the medical records revealed no evidence of

oxygen deprivation or other trauma associated with Alonzo's

birth. Notably, the opinions of Doctors Duchowny and Willis are

consistent with the medical records, and are credited. Fi nally,

the lay views of Ms. Young likewise do not suggest an

association between events surrounding Alonzo's birth and his

neurologic impairment. Consequently, it must be concluded that

the proof failed to demonstrate, more likely than not, that

Alonzo's neurologic impairment was occasioned by 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.

CONCLUSIONS OF LAW

7. The Division of Admi nistrative Hearings has

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

these proceedings. § 766.301, et seq , Fla. Stat .

8. The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose o f providing compensation, irrespective of fault, for

birth - related neurological injury claims" relating to births

occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

9. The injured "infant, her or his personal

representative, parents, depende nts, and next of kin," may seek

compensation under the Plan by filing a claim for compensation

with the Division of Administrative Hearings. §§ 766.302(3),

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

Birth - Related Neurological Injury Comp ensation Association,

which administers the Plan, has "45 days from the date of

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

the petition and to submit relevant written information relating

to the issue of whether the injury is a birth - related

neurological injury." § 766.305(3), Fla. Stat.

10. 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 adm inistrative law judge to whom the claim has

been assigned. § 766.305(6), Fla. Stat. If, on the other hand,

NICA disputes the claim, as it has in the instant case, the

dispute must be resolved by the assigned administrative law

judge in accordance with th e provisions of C hapter 120, F lorida

Statutes. §§ 766.304, 766.309, and 766.31, Fla. Stat.

11. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the inj ury 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 th at

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 cours e of labor, delivery, or

resuscitation in the immediate post - delivery

period in a hospital.

§ 766.309(1), Fla. Stat. An award may be sustained only if the

administrative law judge concludes that the "infant has

sustained a birth - related neurological in jury and that

obstetrical services were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

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

injury" is defined by Section 766.302(2), to mean:

injury to the brain or spinal cor d of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case of a

multiple gestation, a live infant weighing

at least 2,000 grams at birth caused by

oxygen deprivation or mechanical injury

occurring in the course of labor, delive ry,

or resuscitation in the immediate

postdelivery period in a hospital, which

renders the infant permanently and

substantially mentally and physically

impaired. This definition shall apply to

live births only and shall not include

disability or death cau sed by genetic or

congenital abnormality.

13. As the claimant, the burden rested on Petitioner, as

the proponent of the issue, to demonstrate that Alonzo suffered

a "birth - related neurological injury." § 766.309(1)(a), Fla.

Stat. See also Balino v. Dep artment of Health and

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

1997)("[T]he burden of proof, apart from statute, is on the

party asserting the affirmative issue before an administrative

tribunal.")

14. Here, the proof failed to support t he conclusion that,

more likely than not, Alonzo's neurologic impairments resulted

from an "injury to the brain . . . caused by oxygen deprivation

or mechanical injury occurring in the course of labor, delivery,

or resuscitation." Consequently, the record developed in this

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

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

and the claim is not compensable. §§ 766.302(2), 766.309(1),

and 766.31(1), Fla. Stat.

15. 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 regi stered or certified mail."

§ 766.309(2), Fla. Stat. Such an order constitutes final agency

action subject to appellate court review. § 766.311(1), Fla.

Stat.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED tha t the claim for compensation filed by

Cecilia Roberts Young, as grandmother and guardian of

Alonzo Hall, Jr., a minor, is dismissed with prejudice.

DONE AND ORDERED this 25th day of November, 2003, in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRI CK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Divisio n of Administrative Hearings

this 25th day of November, 2003.

ENDNOTE

1/ All citations are to Florida Statutes (2003), unless

otherwise indicated.

COPIES FURNISHED:

(By certified mail)

Ronald S. Gilbert, Esquire

Morgan, Colling & Gilbert, P.A.

20 North Orange Avenue, Suite 1600

Post Office Box 4979

Orlando, Florida 32802 - 4979

Horace N. Moore, Sr., Esquire

235 South Main Street, Suite 101W

Post Office Box 2146

Gainesville, Florida 32602

Andrew W. Rosin, Esquire

Donald H. Whittemore, Esquire

Phelps Dunbar LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32312

G. Simpson, R.N.

Putnam Community Hospital

611 Zeagler Drive

Palatka, Florida 32177 - 3810

Putnam Community Hospital

611 Zeagler Drive

Palatka, Florida 32177 - 3810

Ms. Charlene Willoughby

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

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 proceeding s are governed by the Florida

Rules of Appellate Procedure. Such proceedings are commenced by

filing the original of a notice of appeal with the Agency Clerk

of the Division of Administrative Hearings and a copy,

accompanied by filing fees prescribed by l aw, with the

appropriate District Court of Appeal. See Section 766.311,

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.