02-001086N Dawn Tabor And Britt Tabor, On Behalf Of And As Parents And Natural Guardians Of Noah Tabor, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, February 11, 2003.

Summary: While infant suffered brain injury during birth caused by oxygen deprivation, infant was not rendered permanently and substantially physically impaired. Therefore, claim was not compensable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAWN TABOR AND BRITT TABOR, on )

behalf of and as parents and )

natural guardians of NOAH )

TABOR, a minor, )

)

Petitioners, )

)

vs. ) Case No. 02 - 1086N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Res pondent. )

)

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 January 21, 2003, by

telephone conference.

APPEARANCES

For Petitioners: Scott M. Whitley, Esquire

Morgan, Colling & Gilbert, P.A.

101 East Kennedy Boulevard, Suite 1790

Tampa, Florida 33602

For Respondent: Stanley L. Martin, Esquire

Phelps Dunbar, LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

STATEMENT OF THE ISSUE

At issue is whether Noah Taber (Noah), a minor, suffered a

"birth - related neurological injury," as defined by Section

766.302(2), Florida Statutes. 1

PRELIMINARY STATEMENT

On March 15, 2002, Petitioners, Dawn Tabor and Britt Tabor,

on behalf of and as parents and n atural guardians of Noah Tabor,

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

Administrative Hearings (DOAH) for compensation under the Florida

Birth - Related Neurological Injury Compensation Plan.

DOAH served the Florida Birth - Related Neurological Injury

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

March 18, 2002, and on April 25, 2002, Petitioners filed an

amended petition. On September 3, 2002, NICA gave notice that it

had resolved that Noah did not suffer a "birth - related

neurolo gical injury within the meaning of Section 766.302(2),

Florida Statutes," and requested that a hearing be scheduled to

address, inter alia , the issue of compensability.

On January 21, 2003, a hearing was held to address, inter

alia , the issue of compensa bility. At hearing, the parties

stipulated to the factual matters set forth in paragraphs 1 and 2

of the Findings of Fact, and Petitioners' Exhibit 1A and 1B (two

volumes of medical records, filed with DOAH on March 15, 2002)

and Respondent's Exhibit 1 (a report of Neurological Evaluation

and a report of Neurological Review by Michael S. Duchowny, M.D.)

were received into evidence. No witnesses were called and no

further exhibits were offered.

The transcript of hearing was filed January 27, 2003, and

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

orders. Neither party elected to file such a proposal.

FINDINGS OF FACT

Preliminary findings

1. Dawn Tabor and Britt Tabor, are the parents and natural

guardians of Noah Tabor, a minor. Noa h was born a live infant on

June 19, 1999, at Largo Medical Center, a hospital located in

Largo, Florida, and his birth weight exceeded 2,500 grams.

2. The physician providing obstetrical services at Noah's

birth was Ivelisse Ruiz - Robles, M.D., who, at al l 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.

Noah's presentation

3. On April 23, 2002, following the filing of the claim f or

compensation, Noah 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 his

neurological evaluation, as follows:

Noah's PHYSICAL EXAMINATION reveals Noah to

be an alert, extremely active youngster. He

weighs 25 - pounds. The hair is blond and of

normal texture. The head circumference

measures 43.3 cm, which is several standard

deviations below age level and median for age

5 - month males. He ha s frequent tongue

thrusting movements and drooling. There are

no dysmorphic features and no cutaneous

stigmata. The spine is straight. There is a

small nevus flambeaus. The neck is supple

without masses, thyromegaly or adenopathy.

The cardiovascular, respiratory and abdominal

examinations are normal.

Noah's NEUROLOGIC EXAMINATION reveals a small

child with a short attention span and high

activity level. Noah is difficult to control

and has poor social skills. He did not

articulate words during the e valuation. Noah

tends to engage in simple games and there is

no evidence of overtly aggressive behavior.

He will perform very simple commands. Noah

would not identify body parts for me.

Noah's MOTOR EXAMINATION reveals generalized

hypotonia in all extr emities, with a slight

dynamic increase of tone on the right. He

has exaggerated range of motion on the left

side, with normal range of motion on the

right. There is no evidence of spasticity.

Noah demonstrates a clear left hand

preference and will gras p with both hands on

the right. He can clearly use the right hand

to manipulate objects and transfer to the

left. There is also diminished arm swing on

the right side, compared to the left. His

overall movement is clearly more fluid on the

left side of his body. He has bilateral pes

planus and there is no clear asymmetry of

gait with regard to the lower extremities.

Muscle bulk is symmetric throughout. The

deep tendon reflexes are bilaterally brisk at

3 and both plantar responses are in

extension. H e walks in a straightforward

manner and turns crisply. He would not

cooperate for formal finger - to - nose or heel -

to - shin testing. A sensory examination is

grossly intact to withdrawal all extremities

to touch. The cardiovascular examination

reveals no ce rvical, cranial, or ocular

bruits and no temperature or pulse

asymmetries. An AFO is appreciated over the

right ankle.

In SUMMARY, Noah's neurologic examination is

significant for microcephaly and a prominent

cognitive impairment. In contrast, his motor

deficit is much less severe and it appears to

be improving steadily. I am not sure that he

needs an AFO, as he has good range of motion.

Noah also suffers from epilepsy.

4. Following his examination, Dr. Duchowny had the

opportunity to review Noah's m edical records and concluded that:

Although Noah has a substantial mental

impairment, his motor abilities are only

mildly behind age level and I suspect that he

will continue to improve over the next

several years. For this reason, I do not

believe that N oah is eligible for

compensation under the Florida NICA statute.

Coverage under the Plan

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

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

defined as a "injury to the brain . . . ca used 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." Sec tion

766.302(2), Florida Statutes. See also Section 766.309(1)(a),

Florida Statutes.

6. Here, the medical records and the results of

Dr. Duchowny's neurological evaluation demonstrate Noah suffered

an injury to the brain caused by oxygen deprivation in t he course

of labor, delivery, or resuscitation in the immediate post -

delivery period that rendered him permanently and substantially

mentally impaired; however, physically, he was not similarly

affected or, stated otherwise, he was not rendered permanently

and substantially physically impaired.

CONCLUSIONS OF LAW

7. 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.

8. The Florida Birth - Re lated Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims" relating to births

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

Florida Statutes.

9. The injured "infant, her or his personal representative,

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

under the Plan by filing a claim for compensation with the

Division of Administrative Hearings. Sect ions 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), Florida

Statutes.

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 administrative law judge to whom the claim has been

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

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

case, the dispute must be resolved by the assigned administrative

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

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

766.31, F lorida Sta tutes.

11. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the injury claimed is a birth -

related neurological injury. If the claimant

has demonstrate d, 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 physic ally 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 re suscitation

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 ho spital.

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

only if the administrative law judge concludes that the "infant

has sustained a birth - related neurological injury and that

obstetrical services were delivered by a participating ph ysician

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

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

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

mean:

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

live infant weighing at lea st 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.

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

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

Florida Statutes. See also Balino v. Department of Health and

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

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

asserting the affirmative issue before a n administrative

tribunal.")

14. Here, while the proof demonstrated that Noah did suffer

an injury to the brain caused by oxygen deprivation occurring in

the course of labor, delivery, or resuscitation that rendered him

permanently and substantially menta lly impaired, it also

demonstrated that such injury did not result in permanent and

substantial physical impairment. Consequently, the record

developed in this case failed to demonstrate that Noah 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 766.302(2), 766.309(1),

and 766.31(1), Florida Statutes. See also Florida Birth - Related

Neurological Injury Compensation Association v. Fl orida Division

of Administrative Hearings , 686 So. 2d 1349 (Fla. 1997)(The Plan

is written in the conjunctive and can only be interpreted to

require both substantial physical and mental impairment.); and

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 Neurol ogical Injury

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

1996).

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 registered or certified mail."

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

final agency action subject to appellate court review. S ection

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

Dawn Tabor and Britt Tabor, on behalf of and as parents and

natural guardians of Noah Tabor, a minor, is hereby denied with

prejudice.

DONE AND ORDERED this 11th day of February, 2003, in

Tallahassee, Leon County, Florida.

__________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tal lahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of t he

Division of Administrative Hearings

this 11th day of February, 2003.

ENDNOTE

1/ Also at issue were whether the participating physician and

the hospital complied with the notice provisions of the Florida

Birth - Related Neurological Injury Compensation Plan (Plan), as

prescribed by Section 766.316, Florida Statutes, and whether

Petitioners' recovery, through settlement with the hospital

(Largo Medical Center), bars them from recovery under the Plan;

however, since it was resolved that Noah did not suffer a "birth -

related neurological injury," it was unnecessary to address those

issues.

COPIES FURNISHED:

(By certified mail)

Scott M. Whitley, Esquire

Morgan, Colling & Gilbert, P.A.

101 East Kennedy Boulevard, Suite 1790

Tampa, Florida 33602

Stanley L. Martin, 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

Post Office Box 14567

Tallahassee, Florida 32317 - 4567

Ivelisse Ruiz Robles, M.D.

3131 North McMullen Booth Road

Clearwater, Florida 33761

Largo Medical Center

201 14th Street, Southwest

Largo, Florida 33770

Ms. Char lene Willoughby

Agency for Health Care Administration

Consumer Services Unit

Post Office Box 14000

Tallahassee, Florida 32308

Mark Casteel, General Counsel

Department of Insurance

The Capitol, Lower Level 26

Tallahassee, Florida 32399 - 0300

NOTICE OF R IGHT 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 pro ceedings 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 law, with the appropriate District Court

of Appeal. See Section 766.3 11, 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.