02-002147N Angel Lewis And Jerry Lewis, Natural Guardians Of Hunter Lewis, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, December 17, 2003.

Summary: The proof failed to demonstrate that the infant suffered a "birth-related neurological injury." Therefore, the claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGEL LEWIS and JERRY LEWIS, as )

parents and natural guardians )

of HUNTER LEWIS, a minor, )

)

Petitioners, )

)

vs. ) Case No. 02 - 2147N

)

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 hearing

in the above - styled case on Nove mber 20, 2003, in Tallahassee,

Florida.

APPEARANCES

For Petitioners: Ken Davis, Esquire

Post Office Box 37190

Tallahassee, Florida 32315

and

Donald M. Hink le, Esquire

Hinkle & Foran

1545 Raymond Diehl Road, Suite 150

Tallahassee, Florida 32308

For Respondent: Ronald A. Labasky, Esquire

Landers & Parsons, P.A.

310 West College Avenue

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Hunter Lewis, a minor, qualifies for coverage under

the Florida Birth - Related Neurological Injury Compensation Plan.

PRELIMINAR Y STATEMENT

On May 22, 2002, Angel Lewis and Jerry Lewis, individually

and as parents and natural guardians of Hunter Lewis (Hunter), 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

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

May 23, 2002. NICA reviewed the claim and, following a number of

agreed time extensions, on February 3, 2003, 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 th is case on the issue of . . .

compensability." Following a number of continuances, such a

hearing was ultimately held on November 20, 2003.

At hearing, the parties stipulated to the factual matters

contained in paragraphs 1 and 2 of the Findings of Fact, and

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

May 22, 2002), Exhibit 2 (the V erified Medical Opinion of

Richard J. Inwood, M.D.), and Exhibit 3 (the deposition of

Donald C. Willis, M.D.), and Respondent's Exhibit 1 (the

deposition of P aul R. Carney, M.D.), were received into evidence.

No witnesses were called, and no further exhibits were offered.

The transcript of the hearing was filed December 3, 2003,

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

proposed orders. Nei ther party elected to file such a proposal.

FINDINGS OF FACT

Fundamental findings

1. Petitioners, Angel Lewis and Jerry Lewis, are the

parents and natural guardians of Hunter Lewis, a minor. Hunter

was born a live infant on June 2, 2000, at Tallahass ee Memorial

Hospital, a hospital located in Tallahassee, Florida, and his

birth weight exceeded 2,500 grams.

2. The physician providing obstetrical services at Hunter's

birth was Arthur S. Clements, M.D., who, at all times material

hereto, was a "particip ating physician" 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 neurological 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 postdelivery

period in a hospital, which renders the inf ant permanently and

substantially mentally and physically impaired." § 766.302(2),

Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat.

The cause and timing, as well as the significance

of Hunter's neurologic impairment

4. To address the cause and tim ing of Hunter's neurologic

impairment, as well as its significance, Petitioners offered

selected medical records relating to Hunter's birth and

subsequent development (Petitioners' Exhibit 1); the Verified

Medical Opinion of Richard J. Inwood, M.D., a neon atologist

(Petitioners' Exhibit 2); and the deposition of Donald C. Willis,

M.D., an obstetrician (Petitioners' Exhibit 3). In turn,

Respondent offered the deposition of Paul R. Carney, M.D., a

pediatric neurologist (Respondent's Exhibit 1).

5. As for th e significance of Hunter's impairments, it was

Dr. Carney's opinion, based on the results of his neurologic

evaluation of November 21, 2002, that Hunter's assessment

"indicates substantial cognitive and language impairment," but

"very mild long tract neuro logical findings." Dr. Carney

described Hunter's developmental delay as static, as opposed to

progressive, and he ventured no opinion as to the cause or timing

of Hunter's impairments. As for Dr. Inwood, he was of the

opinion that:

. . . Hunter Lewis [ ] was delivered by

induced labor prior to 38 weeks and had

immature lungs. Because of the immaturity of

the lungs he suffered hypoxic insult and, to

a reasonable degree of medical probability,

sustained significant neurological injury.

This injury would n ot have occurred had his

delivery been delayed until he had

demonstrated lung maturity. His problems are

not congenital and did not occur during labor

or delivery, but rather after

delivery . . . .

Notably, Dr. Inwood did not further address Hunt er's neurologic

injury or, stated otherwise, did not speak to whether in his

opinion, Hunter suffered both cognitive and motor impairment and,

if so, the significance of each. As for Dr. Willis, he was of

the opinion that the medical records revealed no e vidence of

oxygen deprivation or other trauma associated with labor,

delivery, or resuscitation immediately following Hunter's birth.

Significantly, the medical records are consistent with the

opinions of Doctors Inwood and Willis that the cause and timin g

of Hunter's impairment was not associated with labor, delivery,

or resuscitation, and with the opinion of Dr. Carney that, while

Hunter may demonstrate substantial cognitive delay, his motor

impairment is mild.

6. Given the record, it must be conclu ded that the proof

demonstrated, more likely than not, that Hunter's impairments

were not 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 p ost - delivery

period in the hospital, and that he is not 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. § 766.301, et seq , Fla. Stat .

8. 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 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, dependents, and next of kin," may seek compensation

under the Plan by filing a claim for compensation with the

Di vision of Administrative Hearings. §§ 766.302(3), 766.303(2),

766.305(1), and 766.313, Fla. Stat. The Florida Birth - Related

Neurological Injury Compensation Association, which administers

the Plan, has "45 days from the date of service of a complete

clai m . . . 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 administrative law judge to whom the claim has been

assigned. § 766.305(6), Fla. Stat. If, on the other han d, 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.

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

11. In dischar ging 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 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

rebut table 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 imm ediate 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.

§ 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 injury and that obstetrical services

were delivered by a participating physician at birth."

§ 766.31(1), Fl a. 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 cord of a live

infant weighing at least 2,500 grams at birth

caused by oxygen deprivation or mechanical

injur y occurring in the course of labor,

delivery, 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 caused by genetic or

congenital abnormality.

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

the proponent of the issue, to demonstrate that Hunter suffered a

"birth - related neurological injury." § 766.3 09(1)(a), Fla. Stat.

See also Balino v. Department 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 the conclusion that,

more likely than not, Hunter'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." Moreover, the proof failed to demonstrate

that Hunter was "permanently and substantially mentally and

physically impaired." Consequently, the record developed in this

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

ne urological 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. See also Florida Birth - Related

Neurological Injury Compensation Association v. Florida Division

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

is written in the conjunctive and can only be interpreted to

require both substantial mental and substantial physical

impairment.); 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 Co mpensation 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 e ffect] and . . . cause a copy of such order to be sent

immediately to the parties by registered 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.

CONC LUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by Angel Lewis

and Jerry Lewis, individually and as parents and natural

guardians of Hunter Lewis, a minor, is dismissed with prejud ice.

DONE AND ORDERED this 17th day of December, 2003, in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bu ilding

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

Division of Administrative Hearings

this 17th day of D ecember, 2003.

ENDNOTE

1/ All citations are to Florida Statutes (1999), unless otherwise

indicated.

COPIES FURNISHED:

(By certified mail)

Ken Davis, Esquire

Post Office Box 37190

Tallahassee, Florida 32315

Donald M. Hinkle, Esquire

Hinkle & Foran

1545 Raymond Diehl Road, Suite 150

Tallahassee, Florida 32308

Mike Carter, Esquire

Post Office Box 566

Crawfordville, Florida 32326

Ronald A. Labasky, Esquire

Landers & Parsons, P.A.

310 West College Avenue

Tallahassee, Florida 32301

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32308 - 4567

Tallahassee Memorial Hospital

1407 Centerville Road

Tallahassee, Florida 3 2317

Arthur S. Clements, M.D.

Robert McDavid, M.D.

Florida Women's Care

1401 Centerville Road, Suite 202

Tallahassee, Florida 32308

Ms. Charlene Willoughby

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

NOTICE O F 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 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 76 6.311, 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.