01-004501N Jane Blunt, On Behalf Of And As Parent And Natural Guardian Of Anthony Wayne Blunt, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, January 23, 2003.

Summary: Proof failed to demonstrate that infant suffered a "birth-related neurological injury." Therefore, claim was not compensable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANE BLUNT, as parent and )

natural guardian of ANTHONY )

WAYNE BLUNT, a minor, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4501N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

RAUL MONTENE GRO, M.D.; ST. )

PETERSBURG MATERNAL FETAL )

MEDICINE ASSOCIATES, P.A.; )

TENET HEALTHCARE CORPORATION, )

d/b/a NORTH BAY MEDICAL CENTER; )

and LYNDA MCKENRY, CNM, )

)

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 3, 2002, in Tampa,

Florida.

APPEARANCES

For Petitioner: Marvin Ellin, Esquire

Ellin & Baker

1101 St. Paul Street, Second Floor

Baltimore, Maryland 21202

For Respondent: Stanley L. Martin, Esquire

Phel ps Dunbar, L.L.P.

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

For Intervenors Raul Montenegro, M.D., and St. Petersburg

Maternal Fetal Medicine Associates, P.A.:

Tricia B . Valles, Esquire

Hahn, Morgan & Lamb, P.A.

2701 North Rocky Point Drive, Suite 410

Tampa, Florida 33607 - 5917

For Intervenor Tenet Healthcare Corporation, d/b/a North Bay

Medical Cent er:

Andrew R. McCumber, Esquire

Christina Mesa, Esquire

Quintairos, McCumber, Prieto & Wood, P.A.

5102 West Laurel Street, Suite 100

Tampa, Flori da 33607

For Intervenor Lynda McKenry, CNM:

Michael Minkin, Esquire

Stephens, Lynn, Klein, P.A.

101 East Kennedy Boulevard, Suite 250

Tampa, Florida 33602

STA TEMENT OF THE ISSUE 1

1. Whether Anthony Wayne Blunt, a minor, suffered a "birth -

related neurological injury," as defined by Section 766.302(2),

Florida Statutes.

2. If so, whether Petitioner's recovery, through

settlement, with the participating physici an bars her from

recovery under the Florida Birth - Related Neurological Injury

Compensation Plan.

PRELIMINARY STATEMENT

On November 19, 2001, Jane Blunt, on behalf of and as parent

and natural guardian of Anthony Wayne Blunt (Anthony), a minor,

filed a pe tition (claim) with the Division of Administrative

Hearings (DOAH) for compensation under the Plan.

DOAH served the Florida Birth - Related Neurological Injury

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

November 21, 2001, and on April 1, 2 002, NICA gave notice that it

had "determined that such claim is not a 'birth - related

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

Florida Statutes," and requested that "an order [be entered]

setting a hearing in this cause on the issue o f . . .

compensability." In the interim, Raul Montenegro, M.D.; St.

Petersburg Maternal Fetal Medicine Association, P.A.,; Tenet

Healthcare Corporation, d/b/a North Bay Medical Center; and Lynda

McKenry, CNM, were accorded leave to intervene.

On November 26, 2002, the parties filed a joint pre - hearing

stipulation, and on December 3, 2002, the final hearing was held.

At hearing, Petitioner's Exhibits 1A, B, and C (the three volumes

of medical records, filed with DOAH on November 19, 2001);

Respondent's Exh ibit 1 (the deposition of Michael Duchowny,

M.D.), Exhibit 2 (a report of neurological examination prepared

by Dr. Duchowny), and Exhibit 3 (an Order on Petition for

Approval of Settlement entered in an underlying civil action);

Intervenors', Raul Monteneg ro, M.D.'s, and St. Petersburg

Maternal Fetal Medicine Associates, P.A.'s (Montenegro's),

Exhibit 1 (Request for Admissions to Petitioner and Petitioner's

Response to Request for Admissions), Exhibit 2 (Petitioner's

Amended Response to Request for Admissio ns), and Exhibit 3

(Petitioner's Second Amended Response to Request for Admissions);

and North Bay Medical Center's Exhibit 1 (the deposition of Jane

Blunt, filed with DOAH on December 18, 2002), and Exhibit 2

(Petitioner's answers to expert interrogatorie s), were received

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

were offered.

The transcript of hearing was filed January 6, 2002, and the

parties were accorded 10 days from that date to file proposed

final orders. Respondent and Inter venors elected to file such a

proposal, and they have been duly considered.

FINDINGS OF FACT

Preliminary findings

1. Petitioner, Jane Blunt, is the mother and natural

guardian of Anthony Wayne Blunt, a minor. Anthony was born a

live infant on Septemb er 24, 1997, at Tenet Healthcare

Corporation, d/b/a North Bay Medical Center, a hospital located

in New Port Richey, Florida, and his birth weight exceeded 2,500

grams.

2. The physician providing obstetrical services at

Anthony's birth was Melchiades J. Loman, 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, co verage is afforded by the Plan

for infants who suffer a "birth - related neurological injury,"

defined as an "injury to the brain or spinal cord . . . caused by

oxygen deprivation or mechanical injury occurring in the course

of labor, delivery, or resuscitat ion 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. See also Section

766.309(1)(a), Florida Statutes.

Anthony's presentat ion

4. On March 20, 2002, following the filing of the claim for

compensation, Anthony was examined by Michael S. Duchowny, M.D.,

a pediatric neurologist associated with Miami Children's

Hospital, Miami, Florida. Dr. Duchowny reported the results of

that neurological evaluation, as follows:

PHYSICAL EXAMINATION reveals Anthony to be

alert and impulsive. He weights 46 pounds

and is 43 inches tall. The hair is blonde

and of normal texture. The skin is warm and

moist without cutaneous stigmata. There are

no dysmorphic features. The head

circumference measures 50.8 cm which falls

within standard percentile. There are no

cranial or facial anomalies or asymmetries.

The neck is supple without masses,

thyromegaly or adenopathy. The

cardiovascular, respirat ory and abdominal

examinations are normal. Peripheral pulses

are 2 and symmetric.

Anthony's NEUROLOGIC EXAMINATION reveals an

impulsive behavioral style and short

attention span. He is oppositional and the

examination is completed with his mother

provi ding restraint. He talked in completed

sentences and clearly identified objects,

colors and body parts. There is a slight

lingual disarticulation. Cranial nerve

examination reveals full visual fields to

direct confrontation testing and normal

ocular fun di. The pupils are 3 mm and

briskly reactive to direct and consensually

presented light. There are no funduscopic

abnormalities. Facial movements are

symmetric. The tongue and palate move well.

The uvula is midline. Motor examination

reveals an asymm etry of the upper extremities

whereby there is a more downward slant to the

right shoulder and a fixed contracture of the

right upper extremity whereby Anthony is

unable to fully extend the elbow. In

contrast, he has good finger dexterity and

well develop ed pincer grasp. He transfers

readily between hands. Muscle bulk and tone

appear symmetric. Anthony is however unable

to fully extend the right arm above the

shoulder and in fact cannot place the right

arm in a complete horizontal position

parallel to t he left. The lower extremity's

strength, bulk and tone are within normal

limits. Deep tendon reflexes are 2 in the

lower extremities and 1 in the upper

extremities. Plantar responses are down -

going. Station and gait are stable although

there is dimin ished arm swing on the right

side. Sensory examination is grossly intact

to withdrawal of all extremities to touch.

The neurovascular examination reveals no

cervical, cranial or ocular bruits and no

temperature or pulse asymmetries.

In SUMMARY, Anthony' s neurologic examination

reveals findings referable to a mild right

Erb's palsy and mild developmental delay. He

additionally has short attention span and

high activity level. I believe that the

findings on examination suggest neither a

substantial nor p ermanent impairment of

mental or motor functioning.

5. Following his examination, Dr. Duchowny had the

opportunity to review Anthony's medical records, and on August 1,

2002, concluded that:

[t]he medical records, together with the

neurological evaluatio n do not suggest that

Anthony has a permanent or substantial mental

or physical impairment of the central nervous

system acquired in the course of labor,

delivery or resuscitation. Rather, Anthony

has a mild right Erb's palsy and evidence of

mild learning problems which are

developmentally based.

Further, in his deposition testimony (Respondent's Exhibit 1),

Dr. Duchowny offered the following additional observations:

Q. . . . Is it your opinion based upon . . .

your evaluation of Anthony Blunt and by you r

review of the medical records that the only

injury suffered by Anthony Blunt in the

course of labor and delivery was the Erb's

palsy injury?

A. Yes.

Q. And the reason that injury does not fit

within the NICA Statute in your opinion is

because it's lo cated outside the central

nervous system?[ 2 ]

A. Yes.

Q. Therefore, it wouldn't be considered an

injury to the spinal cord?

A. That's correct.

Q. And there was no brain injury based on

your review of the records and your

evaluation of the child that was suffered in

the course of labor and delivery?

A. That's correct.

* * *

Q. Could you explain just briefly if it's

not related to a birth injury what ADHD

[Attention Deficit Hyperactivity Disorder] is

related to or how it develop[ed]?

A. It is related to slow maturation of the

brain, it's a developmental disorder.

Q. Does that slow maturation of the brain

have anything to do in this instance with any

type of injury to the brain during labor and

delivery based upon your experience and

revie w in this case?

A. No.

6. An Erb's palsy, such as that evidenced by Anthony, is a

weakness of the upper extremity due to damage to the nerve roots

of the upper brachial plexus, and does not involve the brain or

spinal cord. Moreover, the impairment An thony suffers is mild,

as opposed to substantial, and there is no evidence of mental

impairment. Consequently, while Anthony may have suffered a

mechanical injury, permanent in nature (to his right brachial

plexus) during the course of birth, he does no t qualify for

coverage under the Plan. 3

Petitioner's settlement with the participating physician

7. By the terms of their Pre - Hearing Stipulation, filed

November 26, 2002, the parties agreed, as follows:

3. The underlying medical negligence lawsuit

capt ioned Jane Lynn Blunt and Wayne A. Blunt,

Individually and as parents and next of

friends of Anthony W. Blunt, a minor, v.

Melchiades J. Loman, M.D.; Loman & Loman,

M.D., P.A., d/b/a Woman's Care Center Center;

Lynda McKenry, CNM; Raul Montenegro, M.D.;

S t. Petersburg Maternal Fetal Medicine

Associates, P.A.; Humana Medical Plan, Inc.;

and Morton Plant Hospital Associates, Inc.,

d/b/a North Bay Hospital, Pinellas County

Case No. 99 - 4566 - CI - 20, is premised upon

injuries allegedly sustained by the

Petitioner and Child during the birth of the

Child.

* * *

9. The Petitioner and Child recovered

$270,000 (before attorney's fees) . . .

[through settlement of] the lawsuit against

Dr. Loman and Humana Medical Plan, Inc.

CONCLUSIONS OF LAW

8. The Divisio n of Administrative Hearings has jurisdiction

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

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

9. The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legisla ture "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims" relating to births

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

Florida Statutes.

10. The injured "infant, her or his pers onal

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

compensation under the Plan by filing a claim for compensation

with the Division of Administrative Hearings. Sections

766.302(3), 766.303(2), 766.305(1), and 766.313, Florida

Statutes. The Florida Birth - Related Neurological Injury

Compensation Association, which administers the Plan, has "45

days from the date of service of a complete claim . . . in which

to file a response to the petition and to submit relevant written

information relat ing to the issue of whether the injury is a

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

Statutes.

11. If NICA determines that the injury alleged in a claim

is a compensable birth - related neurological injury, it may award

compensation to the claimant, provided that the award is approved

by the administrative law judge to whom the claim has been

assigned. Section 766.305(6), Florida Statutes. If, on the

other hand, NICA disputes the claim, as it has in the instant

case, the dispute mus t be resolved by the assigned administrative

law judge in accordance with the provisions of C hapter 120,

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

766.31, F lorida Statutes.

12. In discharging this responsibility, the administrative

law ju dge 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 h as

sustained a brain or spinal cord injury

caused by oxygen deprivation or mechanical

injury and that the infant was thereby

rendered permanently and substantially

mentally and physically impaired, a

rebuttable presumption shall arise that the

injury is a birth - related neurological injury

as defined in s. 766.303(2).

(b) Whether obstetrical services were

delivered by a participating physician in the

course of labor, delivery, or resuscitation

in the immediate post - delivery period in a

hospital; or by a certified nurse midwife in

a teaching hospital supervised by a

participating physician in the course of

labor, delivery, or resuscitation in the

immediate post - delivery period in a hospital.

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

only if the administrative law judge concludes that the "infant

has sustained a birth - related neurological injury and that

obstetrical services were delivered by a participating physician

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

13. Pertinent t o this case, "birth - related neurological

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

mean:

. . . injury to the brain or spinal cord of a

live infant weighing at least 2,500 grams at

birth caused by oxygen deprivation or

mechanical injury occurring in the course of

labor, delivery, or resuscitation in the

immediate post - delivery period in a hospital,

which renders the infant permanently and

substantially mentally and physically

impaired. This definition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

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

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

Florida Statutes. See also Balino v. Departmen t of Health and

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

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

asserting the affirmative issue before an administrative

tribunal.")

15. Here, since the proof failed to demonst rate, more

likely than not, that Anthony suffered an "injury to the brain or

spinal cord . . . caused by oxygen deprivation or mechanical

injury occurring in the course of labor, delivery, or

resuscitation . . . which rendered him permanently and

substanti ally mentally and physically impaired," it must be

resolved that Anthony was not shown to have suffered a "birth -

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

Florida Statutes, and the claim is not compensable. See also

Humana of Florida, Inc . v. McKaughan , 652 So. 2d 852, 859 (Fla.

5th DCA 1995)("[B]ecause the Plan . . . is a statutory substitute

for common law rights and liabilities, it should be strictly

construed to include only those subjects clearly embraced within

its terms."), approved , Florida Birth - Related Neurological Injury

Compensation Association v. McKaughan , 668 So. 2d 974, 979 (Fla.

1996).

16. Having resolved that the claim is not compensable, it

is unnecessary to address the implication of Petitioner's

recovery, through settl ement with the participating physician, on

her ability to pursue an award under the Plan.

17. Where, as here, the administrative law judge determines

that ". . . the injury alleged is not a birth - related

neurological injury . . . he [is required to] enter an order [to

such effect] and . . . cause a copy of such order to be sent

immediately to the parties by registered or certified mail."

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

final agency action subject to appellate court review . Section

766.311(1), Florida Statutes.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the petition for compensation filed by

Jane Blunt, as parent and natural guardian of Anthony Wayne

Blunt, a minor, is h ereby denied with prejudice.

DONE AND ORDERED this 23rd day of January, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 30 60

(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 23rd day of January, 2003.

ENDNOTES

1/ Initially, notice was also at issue; however, at hearing, the

parties stipulated that the participating physician (Melchiades

J. Loman, M.D.) and the hospital (North Bay Medical Center)

satisfied the notice provisions of the Plan, as prescribed by

Section 766.316, Florida Statutes. Consequently, that issue need

not be addressed.

2/ The "central nervous system" is commonly understood to mean

"that portion of the nervous system consisting of the brain and

spinal cord." Dorland's Illustrated Medical Dictionary, Twenty -

Sixth Edition.

3/ Here, the only medical testimony offered by the parties that

addressed whether Anthony suffered a "bir th - related neurological

injury" was the testimony of Dr. Duchowny. Consequently, given

that Dr. Duchowny is, by training and experience, well qualified

to address the issue, it must be resolved that Anthony did not

suffer a "birth - related neurological inj ury." See , e.g. , Thomas

v. Salvation Army , 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In

evaluating medical evidence, a judge of compensation claims may

not reject uncontroverted medical testimony without a reasonable

explanation.")

COPIES FURNISHED:

(By certified mail)

Marvin Ellin, Esquire

Ellin & Baker

1101 St. Paul Street, Second Floor

Baltimore, Maryland 21202

Robert T. Joyce, Esquire

Joyce & Reyes Law Firm

307 South Hyde Park Avenue

Tampa, Florida 33606 - 2233

Kenney Shipley, Executive Director

Fl orida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32312

Andrew R. McCumber, Esquire

Christina Mesa, Esquire

Quintairos, McCumber, Prieto & Wood, P.A.

5102 We st Laurel Street, Suite 100

Tampa, Florida 33607

Michael Minkin, Esquire

Stephens, Lynn, Klein, P.A.

101 East Kennedy Boulevard, Suite 2500

Tampa, Florida 33602

Tricia B. Valles, Esquire

Hahn, Morgan & Lamb, P.A.

2701 North Rocky Point Drive, Suite 41 0

Tampa, Florida 33607 - 5917

Stanley L. Martin, Esquire

Donald H. Whittemore, Esquire

Phelps Dunbar, L.L.P.

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

Melchiades J. Loman, M.D.

5422 U.S. Highway 19

New Port Richey, Florida 34652

Lynda McK enry, CNM

5422 U.S. Highway 19

New Port Richey, Florida 34652

North Bay Medical Center

6600 Madison Street

New Port Richey, Florida 34652

Ms. Charlene Willoughby

Agency for Health Care Administration

Consumer Services Unit

Post Office Box 14000

Tallah assee, 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 r eview 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 the original of a notice of appeal with the Agency Clerk of

the Divisio n of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, 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.