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.
DOAH Final Order on Tuesday, February 11, 2003.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DAWN TABOR AND BRITT TABOR, on )
15behalf of and as parents and )
22natural guardians of NOAH )
27TABOR, a minor, )
31)
32Petitioners, )
34)
35vs. ) Case No. 02 - 1086N
42)
43FLORIDA BIRTH - RELATED )
48NEUROLOGICAL INJURY )
51COMPENSATION ASSOCIATION, )
54)
55Res pondent. )
58)
59FINAL ORDER
61Pursuant to notice, the Division of Administrative Hearings,
69by Administrative Law Judge William J. Kendrick, held a final
79hearing in the above - styled case on January 21, 2003, by
91telephone conference.
93APPEARANCES
94For Petitioners: Scott M. Whitley, Esquire
100Morgan, Colling & Gilbert, P.A.
105101 East Kennedy Boulevard, Suite 1790
111Tampa, Florida 33602
114For Respondent: Stanley L. Martin, Esquire
120Phelps Dunbar, LLP
123100 South Ashley Drive, Suite 1900
129Tampa, Florida 33602
132STATEMENT OF THE ISSUE
136At issue is whether Noah Taber (Noah), a minor, suffered a
"147birth - related neurological injury," as defined by Section
156766.302(2), Florida Statutes. 1
160PRELIMINARY STATEMENT
162On March 15, 2002, Petitioners, Dawn Tabor and Britt Tabor,
172on behalf of and as parents and n atural guardians of Noah Tabor,
185a minor, filed a petition (claim) with the Division of
195Administrative Hearings (DOAH) for compensation under the Florida
203Birth - Related Neurological Injury Compensation Plan.
210DOAH served the Florida Birth - Related Neurological Injury
219Compensation Association (NICA) with a copy of the claim on
229March 18, 2002, and on April 25, 2002, Petitioners filed an
240amended petition. On September 3, 2002, NICA gave notice that it
251had resolved that Noah did not suffer a "birth - related
262neurolo gical injury within the meaning of Section 766.302(2),
271Florida Statutes," and requested that a hearing be scheduled to
281address, inter alia , the issue of compensability.
288On January 21, 2003, a hearing was held to address, inter
299alia , the issue of compensa bility. At hearing, the parties
309stipulated to the factual matters set forth in paragraphs 1 and 2
321of the Findings of Fact, and Petitioners' Exhibit 1A and 1B (two
333volumes of medical records, filed with DOAH on March 15, 2002)
344and Respondent's Exhibit 1 (a report of Neurological Evaluation
353and a report of Neurological Review by Michael S. Duchowny, M.D.)
364were received into evidence. No witnesses were called and no
374further exhibits were offered.
378The transcript of hearing was filed January 27, 2003, and
388the parties were accorded 10 days from that date to file proposed
400orders. Neither party elected to file such a proposal.
409FINDINGS OF FACT
412Preliminary findings
4141. Dawn Tabor and Britt Tabor, are the parents and natural
425guardians of Noah Tabor, a minor. Noa h was born a live infant on
439June 19, 1999, at Largo Medical Center, a hospital located in
450Largo, Florida, and his birth weight exceeded 2,500 grams.
4602. The physician providing obstetrical services at Noah's
468birth was Ivelisse Ruiz - Robles, M.D., who, at al l times material
481hereto, was a "participating physician" in the Florida Birth -
491Related Neurological Injury Compensation Plan, as defined by
499Section 766.302(7), Florida Statutes.
503Noah's presentation
5053. On April 23, 2002, following the filing of the claim f or
518compensation, Noah was examined by Michael S. Duchowny, M.D., a
528pediatric neurologist associated with Miami Children's Hospital,
535Miami, Florida. Dr. Duchowny reported the results of his
544neurological evaluation, as follows:
548Noah's PHYSICAL EXAMINATION reveals Noah to
554be an alert, extremely active youngster. He
561weighs 25 - pounds. The hair is blond and of
571normal texture. The head circumference
576measures 43.3 cm, which is several standard
583deviations below age level and median for age
5915 - month males. He ha s frequent tongue
600thrusting movements and drooling. There are
606no dysmorphic features and no cutaneous
612stigmata. The spine is straight. There is a
620small nevus flambeaus. The neck is supple
627without masses, thyromegaly or adenopathy.
632The cardiovascular, respiratory and abdominal
637examinations are normal.
640Noah's NEUROLOGIC EXAMINATION reveals a small
646child with a short attention span and high
654activity level. Noah is difficult to control
661and has poor social skills. He did not
669articulate words during the e valuation. Noah
676tends to engage in simple games and there is
685no evidence of overtly aggressive behavior.
691He will perform very simple commands. Noah
698would not identify body parts for me.
705Noah's MOTOR EXAMINATION reveals generalized
710hypotonia in all extr emities, with a slight
718dynamic increase of tone on the right. He
726has exaggerated range of motion on the left
734side, with normal range of motion on the
742right. There is no evidence of spasticity.
749Noah demonstrates a clear left hand
755preference and will gras p with both hands on
764the right. He can clearly use the right hand
773to manipulate objects and transfer to the
780left. There is also diminished arm swing on
788the right side, compared to the left. His
796overall movement is clearly more fluid on the
804left side of his body. He has bilateral pes
813planus and there is no clear asymmetry of
821gait with regard to the lower extremities.
828Muscle bulk is symmetric throughout. The
834deep tendon reflexes are bilaterally brisk at
8413 and both plantar responses are in
848extension. H e walks in a straightforward
855manner and turns crisply. He would not
862cooperate for formal finger - to - nose or heel -
873to - shin testing. A sensory examination is
881grossly intact to withdrawal all extremities
887to touch. The cardiovascular examination
892reveals no ce rvical, cranial, or ocular
899bruits and no temperature or pulse
905asymmetries. An AFO is appreciated over the
912right ankle.
914In SUMMARY, Noah's neurologic examination is
920significant for microcephaly and a prominent
926cognitive impairment. In contrast, his motor
932deficit is much less severe and it appears to
941be improving steadily. I am not sure that he
950needs an AFO, as he has good range of motion.
960Noah also suffers from epilepsy.
9654. Following his examination, Dr. Duchowny had the
973opportunity to review Noah's m edical records and concluded that:
983Although Noah has a substantial mental
989impairment, his motor abilities are only
995mildly behind age level and I suspect that he
1004will continue to improve over the next
1011several years. For this reason, I do not
1019believe that N oah is eligible for
1026compensation under the Florida NICA statute.
1032Coverage under the Plan
10365. Pertinent to this case, coverage is afforded by the Plan
1047for infants who suffer a "birth - related neurological injury,"
1057defined as a "injury to the brain . . . ca used by oxygen
1071deprivation or mechanical injury occurring in the course of
1080labor, delivery, or resuscitation in the immediate post - delivery
1090period in a hospital, which renders the infant permanently and
1100substantially mentally and physically impaired." Sec tion
1107766.302(2), Florida Statutes. See also Section 766.309(1)(a),
1114Florida Statutes.
11166. Here, the medical records and the results of
1125Dr. Duchowny's neurological evaluation demonstrate Noah suffered
1132an injury to the brain caused by oxygen deprivation in t he course
1145of labor, delivery, or resuscitation in the immediate post -
1155delivery period that rendered him permanently and substantially
1163mentally impaired; however, physically, he was not similarly
1171affected or, stated otherwise, he was not rendered permanently
1180and substantially physically impaired.
1184CONCLUSIONS OF LAW
11877. The Division of Administrative Hearings has jurisdiction
1195over the parties to, and the subject matter of, these
1205proceedings. Section 766.301, et seq. , Florida Statutes.
12128. The Florida Birth - Re lated Neurological Injury
1221Compensation Plan was established by the Legislature "for the
1230purpose of providing compensation, irrespective of fault, for
1238birth - related neurological injury claims" relating to births
1247occurring on or after January 1, 1989. Secti on 766.303(1),
1257Florida Statutes.
12599. The injured "infant, her or his personal representative,
1268parents, dependents, and next of kin," may seek compensation
1277under the Plan by filing a claim for compensation with the
1288Division of Administrative Hearings. Sect ions 766.302(3),
1295766.303(2), 766.305(1), and 766.313, Florida Statutes. The
1302Florida Birth - Related Neurological Injury Compensation
1309Association, which administers the Plan, has "45 days from the
1319date of service of a complete claim . . . in which to file a
1334response to the petition and to submit relevant written
1343information relating to the issue of whether the injury is a
1354birth - related neurological injury." Section 766.305(3), Florida
1362Statutes.
136310. If NICA determines that the injury alleged in a claim
1374is a compensable birth - related neurological injury, it may award
1385compensation to the claimant, provided that the award is approved
1395by the administrative law judge to whom the claim has been
1406assigned. Section 766.305(6), Florida Statutes. If, on the
1414other hand , NICA disputes the claim, as it has in the instant
1426case, the dispute must be resolved by the assigned administrative
1436law judge in accordance with the provisions of C hapter 120,
1447F lorida Statutes. Sections 766.304, 766.307, 766.309, and
1455766.31, F lorida Sta tutes.
146011. In discharging this responsibility, the administrative
1467law judge must make the following determination based upon the
1477available evidence:
1479(a) Whether the injury claimed is a birth -
1488related neurological injury. If the claimant
1494has demonstrate d, to the satisfaction of the
1502administrative law judge, that the infant has
1509sustained a brain or spinal cord injury
1516caused by oxygen deprivation or mechanical
1522injury and that the infant was thereby
1529rendered permanently and substantially
1533mentally and physic ally impaired, a
1539rebuttable presumption shall arise that the
1545injury is a birth - related neurological injury
1553as defined in s. 766.303(2).
1558(b) Whether obstetrical services were
1563delivered by a participating physician in the
1570course of labor, delivery, or re suscitation
1577in the immediate post - delivery period in a
1586hospital; or by a certified nurse midwife in
1594a teaching hospital supervised by a
1600participating physician in the course of
1606labor, delivery, or resuscitation in the
1612immediate post - delivery period in a ho spital.
1621Section 766.309(1), Florida Statutes. An award may be sustained
1630only if the administrative law judge concludes that the "infant
1640has sustained a birth - related neurological injury and that
1650obstetrical services were delivered by a participating ph ysician
1659at birth." Section 766.31(1), Florida Statutes.
166512. Pertinent to this case, "birth - related neurological
1674injury" is defined by Section 766.302(2), Florida Statutes, to
1683mean:
1684. . . injury to the brain or spinal cord of a
1696live infant weighing at lea st 2,500 grams at
1706birth caused by oxygen deprivation or
1712mechanical injury occurring in the course of
1719labor, delivery, or resuscitation in the
1725immediate post - delivery period in a hospital,
1733which renders the infant permanently and
1739substantially mentally and physically
1743impaired. This definition shall apply to
1749live births only and shall not include
1756disability or death caused by genetic or
1763congenital abnormality.
176513. As the claimants, the burden rested on Petitioners to
1775demonstrate entitlement to compensation . Section 766.309(1)(a),
1782Florida Statutes. See also Balino v. Department of Health and
1792Rehabilitative Services , 348 So. 2d 349, 350 (Fla. 1st DCA 1977),
1803("[T]he burden of proof, apart from statute, is on the party
1815asserting the affirmative issue before a n administrative
1823tribunal.")
182514. Here, while the proof demonstrated that Noah did suffer
1835an injury to the brain caused by oxygen deprivation occurring in
1846the course of labor, delivery, or resuscitation that rendered him
1856permanently and substantially menta lly impaired, it also
1864demonstrated that such injury did not result in permanent and
1874substantial physical impairment. Consequently, the record
1880developed in this case failed to demonstrate that Noah suffered a
"1891birth - related neurological injury," within the meaning of
1900Section 766.302(2), Florida Statutes, and the subject claim is
1909not compensable under the Plan. Sections 766.302(2), 766.309(1),
1917and 766.31(1), Florida Statutes. See also Florida Birth - Related
1927Neurological Injury Compensation Association v. Fl orida Division
1935of Administrative Hearings , 686 So. 2d 1349 (Fla. 1997)(The Plan
1945is written in the conjunctive and can only be interpreted to
1956require both substantial physical and mental impairment.); and
1964Humana of Florida, Inc. v. McKaughan , 652 So. 2d 852 , 859 (Fla.
19765th DCA 1995)("[B]ecause the Plan . . . is a statutory substitute
1989for common law rights and liabilities, it should be strictly
1999construed to include only those subjects clearly embraced within
2008its terms."), approved , Florida Birth - Related Neurol ogical Injury
2019Compensation Association v. McKaughan , 668 So. 2d 974, 979 (Fla.
20291996).
203015. Where, as here, the administrative law judge determines
2039that ". . . the injury alleged is not a birth - related
2052neurological injury . . . he [is required to] enter an order [to
2065such effect] and . . . cause a copy of such order to be sent
2080immediately to the parties by registered or certified mail."
2089Section 766.309(2), Florida Statutes. Such an order constitutes
2097final agency action subject to appellate court review. S ection
2107766.311(1), Florida Statutes.
2110CONCLUSION
2111Based on the foregoing Findings of Fact and Conclusions of
2121Law, it is
2124ORDERED that the petition for compensation filed by
2132Dawn Tabor and Britt Tabor, on behalf of and as parents and
2144natural guardians of Noah Tabor, a minor, is hereby denied with
2155prejudice.
2156DONE AND ORDERED this 11th day of February, 2003, in
2166Tallahassee, Leon County, Florida.
2170__________________________________
2171WILLIAM J. KENDRICK
2174Administrative Law Judge
2177Division of Administrative Hearings
2181The DeSoto Building
21841230 Apalachee Parkway
2187Tal lahassee, Florida 32399 - 3060
2193(850) 488 - 9675 SUNCOM 278 - 9675
2201Fax Filing (850) 921 - 6847
2207www.doah.state.fl.us
2208Filed with the Clerk of t he
2215Division of Administrative Hearings
2219this 11th day of February, 2003.
2225ENDNOTE
22261/ Also at issue were whether the participating physician and
2236the hospital complied with the notice provisions of the Florida
2246Birth - Related Neurological Injury Compensation Plan (Plan), as
2255prescribed by Section 766.316, Florida Statutes, and whether
2263Petitioners' recovery, through settlement with the hospital
2270(Largo Medical Center), bars them from recovery under the Plan;
2280however, since it was resolved that Noah did not suffer a "birth -
2293related neurological injury," it was unnecessary to address those
2302issues.
2303COPIES FURNISHED:
2305(By certified mail)
2308Scott M. Whitley, Esquire
2312Morgan, Colling & Gilbert, P.A.
2317101 East Kennedy Boulevard, Suite 1790
2323Tampa, Florida 33602
2326Stanley L. Martin, Esquire
2330Donald H. Whittemore, Esquire
2334Phelps Dunbar, LLP
2337100 South Ashley Drive, Suite 1900
2343Tampa, Florida 33602
2346Kenney Shipley, Executive Director
2350Florida Birth - Related Neurological
2355Injury Compensation Association
2358Post Office Box 14567
2362Tallahassee, Florida 32317 - 4567
2367Ivelisse Ruiz Robles, M.D.
23713131 North McMullen Booth Road
2376Clearwater, Florida 33761
2379Largo Medical Center
2382201 14th Street, Southwest
2386Largo, Florida 33770
2389Ms. Char lene Willoughby
2393Agency for Health Care Administration
2398Consumer Services Unit
2401Post Office Box 14000
2405Tallahassee, Florida 32308
2408Mark Casteel, General Counsel
2412Department of Insurance
2415The Capitol, Lower Level 26
2420Tallahassee, Florida 32399 - 0300
2425NOTICE OF R IGHT TO JUDICIAL REVIEW
2432A party who is adversely affected by this final order is entitled
2444to judicial review pursuant to Sections 120.68 and 766.311,
2453Florida Statutes. Review proceedings are governed by the Florida
2462Rules of Appellate Procedure. Such pro ceedings are commenced by
2472filing the original of a notice of appeal with the Agency Clerk of
2485the Division of Administrative Hearings and a copy, accompanied by
2495filing fees prescribed by law, with the appropriate District Court
2505of Appeal. See Section 766.3 11, Florida Statutes, and Florida
2515Birth - Related Neurological Injury Compensation Association v.
2523Carreras , 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of
2535appeal must be filed within 30 days of rendition of the order to
2548be reviewed.
- Date
- Proceedings
- PDF:
- Date: 02/06/2003
- Proceedings: Order issued. (Largo Medical Center is no longer a party to this proceeding)
- PDF:
- Date: 02/05/2003
- Proceedings: Notice of Dismissal of Motion to Intervene (filed by Largo Medical Center via facsimile).
- PDF:
- Date: 02/04/2003
- Proceedings: Order issued. (ordered that Intervenors Ivelisse Ruiz-Robles, M.D., and Diagnostic Clinic Medical Group, P.A., are no longer parties to this proceedings)
- Date: 01/27/2003
- Proceedings: NICA Medical Records filed (not available for viewing).
- Date: 01/27/2003
- Proceedings: Transcript filed.
- PDF:
- Date: 01/21/2003
- Proceedings: Notice of Cancellation of Deposition Duces Tecum, M. Duchowny, M.D. filed.
- PDF:
- Date: 12/18/2002
- Proceedings: Notice of Serving Expert Interrogatories to Intervenor Diagnostic Clinic Medical Group, P.A. (filed by Respondent via facsimile).
- PDF:
- Date: 12/18/2002
- Proceedings: Notice of Serving Interrogatories to Intervenor Diagnostic Clinic Medical Group, P.A. (filed by Respondent via facsimile).
- PDF:
- Date: 12/18/2002
- Proceedings: Notice of Serving Expert Interrogatories to Intervenor Ivelisse Ruiz-Robles, M.D. (filed by Respondent via facsimile).
- PDF:
- Date: 12/18/2002
- Proceedings: Notice of Serving Interrogatories to Intervenor Ivelisse Ruiz-Robles, M.D. (filed by Respondent via facsimile).
- PDF:
- Date: 12/18/2002
- Proceedings: Notice of Serving Expert Interrogatories to Petitioner Britt Tabor, as Parent and Natural Guardian of Noah Tabor, a Minor (filed by Respondent via facsimile).
- PDF:
- Date: 12/18/2002
- Proceedings: Notice of Serving Respondent`s First Set of Interrogatories to Petitioner Britt Tabor, as Parent and Natural Guardian of Noah Tabor, a Minor (filed via facsimile).
- PDF:
- Date: 12/18/2002
- Proceedings: Notice of Serving Expert Interrogatories to Petitioner Dawn Tabor, as Parent and Natural Guardian of Noah Tabor, a Minor (filed by Respondent via facsimile).
- PDF:
- Date: 12/18/2002
- Proceedings: Notice of Serving Respondent`s First Set of Interrogatories to Petitioner Dawn Tabor as Parent and Natural Guardian of Noah Tabor, a Minor (filed via facsimile).
- PDF:
- Date: 12/16/2002
- Proceedings: Amended Notice of Taking Deposition Duces Tecum, M. Duchowny, M.D. filed.
- PDF:
- Date: 12/12/2002
- Proceedings: Notice of Taking Deposition Duces Tecum, M. Duchowny, M.D. filed by J. Hunter.
- PDF:
- Date: 12/12/2002
- Proceedings: Notice of Taking Deposition, D. Tabor, B. Tabor filed by J. Hunter.
- PDF:
- Date: 12/11/2002
- Proceedings: Notice of Taking Deposition, M. Duchowny, M.D. filed by S. Whitley.
- PDF:
- Date: 12/09/2002
- Proceedings: Notice of Service of Expert Interrogatories to Defendants filed by S. Whitley.
- PDF:
- Date: 12/06/2002
- Proceedings: Notice of Cancellation of Depositions, J. Belisle, J. Petrie filed.
- PDF:
- Date: 11/21/2002
- Proceedings: Notice of Taking Deposition, J. Belisle, R.N., J. Petrie, R.N. filed by S. Whitley.
- PDF:
- Date: 11/14/2002
- Proceedings: Amended Notice of Taking Deposition, I. Robles, M.D. filed by S. Whitley.
- PDF:
- Date: 09/10/2002
- Proceedings: Notice of Hearing issued (hearing set for January 21, 2003; 9:00 a.m.; St. Petersburg, FL).
- PDF:
- Date: 09/06/2002
- Proceedings: Notice of Filing Status Report Pursuant to Court`s Order Dated August 20, 2002 filed by Intervenor.
- PDF:
- Date: 09/06/2002
- Proceedings: Notice of Filing Status Report Prusuant to Court`s Order Dated August 20, 2002 filed by Petitioner.
- PDF:
- Date: 09/03/2002
- Proceedings: Letter to Judge Kendrick from L. Martin in reply to Order Issued (filed via facsimile).
- PDF:
- Date: 09/03/2002
- Proceedings: Notice of Filing Status Report Pursuant to Court`s Order Dated August 20, 2002 (filed via facsimile).
- PDF:
- Date: 08/20/2002
- Proceedings: Order issued. (within 14 days of the date of this order the parties shall advise the undersigned in writing as to the status of the claim)
- PDF:
- Date: 07/11/2002
- Proceedings: Petitioner`s Notice of No Objection to Motion to Intervene by Largo Medical Center filed.
- PDF:
- Date: 05/28/2002
- Proceedings: Order issued. (motion to stay proceedings is granted, and these proceedings are stayed until August 1, 2002; motion to intervene is denied.)
- PDF:
- Date: 04/25/2002
- Proceedings: Amended Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. filed.
- PDF:
- Date: 04/15/2002
- Proceedings: Order issued. (respondent`s motion to accept L. Larson as its qualified representative is granted)
- PDF:
- Date: 03/26/2002
- Proceedings: Motion to Act as a Qualified Representative Before the Division of Administrative Hearings filed by Respondent
- PDF:
- Date: 03/25/2002
- Proceedings: Motion to Intervene by Florida Insurance Guaranty Association filed.
- PDF:
- Date: 03/25/2002
- Proceedings: Motion to Intervene by Ivelisse Ruiz-Robles, M. D., and Diagnostic Clinic Medical Group, P. A. filed.
- PDF:
- Date: 03/25/2002
- Proceedings: Ivelisse Ruiz Robles, M. D., Dagnostice Clinic Medical Group, P. A., d/b/a Diagnostice Clinic and The Florida Insurance Guaranty Association`s Motion to Stay Proceedings filed.
- PDF:
- Date: 03/18/2002
- Proceedings: Letter to parties of record from Ann M. Luchini enclosing NICA claim for compensation with medical records sent out.
- PDF:
- Date: 03/18/2002
- Proceedings: Notice that this case is now before the Division of Administrative Hearings sent out.
- Date: 03/15/2002
- Proceedings: NICA Medical Records filed (not available for viewing).
Case Information
- Judge:
- WILLIAM J. KENDRICK
- Date Filed:
- 03/15/2002
- Date Assignment:
- 03/18/2002
- Last Docket Entry:
- 02/11/2003
- Location:
- St. Petersburg, Florida
- District:
- Middle
- Agency:
- Florida Birth-Related Neurological Injury Compensation Associati
- Suffix:
- N
Counsels
-
Kenney Shipley, Executive Director
Address of Record -
Scott M Whitley, Esquire
Address of Record -
Donald H Whittemore, Esquire
Address of Record