02-002647N Bridget Jackson And Horace Jackson, On Behalf Of And As Natural Guardians Of Brenay Janelle Jackson, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, December 23, 2002.

Summary: Infant`s injury at birth, an injury to the left brachial plexus resulting in a Erb`s palsy, was not an injury to the brain or spinal cord and therefore not compensable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIDGET JACKSON and HORACE )

JACKSON, as natural guardians )

of BRENAY JANELLE JACKSON, a )

minor, )

)

Petitioners, )

)

vs. ) Case No. 02 - 2647N

)

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 ca se on November 25, 2002, by video

teleconference, with sites in Tallahassee and Fort Lauderdale,

Florida.

APPEARANCES

For Petitioners: Alexander Clark, Esquire

Law Offices of Bradley Winston, P.A.

8211 We st Broward Boulevard, Suite 420

Plantation, Florida 33324

For Respondent: David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Brenay Janelle

Jackson, a minor, suffered an injury for which compensation

should be awarded under the Florida Birth - Related Neurological

Injury Compensation Plan.

PRELIMINARY STATEMENT

On July 1, 2002, Bridget Jackson and Horace Jackson, as

parents and natural guardians of Brenay Janelle Jackson, 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

July 3, 2002. NICA reviewed the claim, and on September 10,

2002, gave not ice 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 the

administrative law judge "enter an order setting a hearing in

this cause on the iss ue of the compensability of this claim."

Such a hearing was duly held on November 25, 2002.

At hearing, the parties stipulated to the matters set forth

in paragraphs 1 and 2 of the Findings of Fact, and Petitioners'

Exhibit 1 (the medical records filed wi th DOAH on July 1, 2002)

and Respondent's Exhibit 2 (the deposition of Michael Duchowny,

M.D., filed with DOAH on December 2, 2002) were received into

evidence. 1 The hearing transcript was filed on December 9, 2002,

and the parties were accorded 10 days f rom that date to file

proposed final orders. Respondent elected to file such a

proposal, and it has been duly considered.

FINDINGS OF FACT

1. Petitioners, Bridget Jackson and Horace Jackson, are the

parents and natural guardians of Brenay Janelle Jackso n (Brenay),

a minor. Brenay was born a live infant on January 11, 2002, at

Palmetto General Hospital, a hospital located in Hialeah,

Florida, and her birth weight was in excess of 2,500 grams.

2. The physician providing obstetrical services during the

bi rth of Brenay was Ignacio Alfredo Ramirez, M.D., who was, at

all times material hereto, a participating physician in the

Florida Birth - Related Neurological Injury Compensation Plan, as

defined by Section 766.302(7), Florida Statutes.

Coverage under the Pl an

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

Plan when the claimants demonstrate, more likely than not, that

the infant suffered an "injury to the brain or spinal cord . . .

caused by oxygen deprivation or mechanical injury occurring in

th e 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."

Brenay's presentation

4. On August 15, 2002, following the filin g of the claim

for compensation, Brenay was examined by Michael S. Duchowny,

M.D., a physician board - certified in pediatrics, neurology with

special competence in child neurology, and clinical

neurophysiology. Dr. Duchowny reported the results of that

neu rology evaluation, as follows:

HISTORY ACCORDING TO MR. & MRS. JACKSON: The

parents began by explaining that Brenay is

seven months old and has a "weak left arm."

They indicated that Brenay's arm has been in

this condition since birth and has "not

improv ed very much." They believe that

Brenay's left arm has limited mobility

despite physical therapy provided on a

routine basis. She additionally receives

direct electrical stimulation to the muscles

of the upper extremity. They noted that

Brenay's "thumb turns in" and that she

"cannot get her palm up." However, there is

certainly a dexterity in the hand and she is

able to use both hands in a cooperative

fashion. There are more problems at the

shoulder in that she is unable to raise her

left arm as high a s the right.

Brenay underwent surgical reconstruction of

the left brachial plexus three weeks ago.

Surgery was performed by Dr. John Grossman

and included a transplant of the left sural

nerve. The procedure was uncomplicated.

Brenay is also followed by Dr. Michael

Tidwell in the Orthopedics department at

Miami Children's Hospital.

Brenay's right arm has full function and

there are no problems with regard to her

lower extremities. She rolled over at six

months and is now sitting on her own. Her

head and neck have a slight tilt to the

right, but this does not compromise Brenay

functionally.

Brenay's hearing and vision are said to be

adequate and there have been no changes in

her appetite. She sleeps through the night.

Brenay is on no intercurrent m edications.

There has been no recent exposure to toxic or

infectious agents and no significant

postnatal injuries.

FAMILY HISTORY: Brenay's mother and father

are both 36 years old. Two brothers, ages

eight and seven are healthy. No family

members have paralysis, mental retardation,

epilepsy or developmental delay.

PRE and PERINATAL HISTORY: Brenay was born

at term at Palmetto General Hospital. She

weighed 8 - pounds, 15 - ounces and was delivered

vaginally. She remained in the hospital for

two days. T he parents stated that she

breathed well at birth and did not have

postnatal jaundice. Brenay's immunizations

have been proceeding on schedule and she has

no known drug allergies.

Brenay's PHYSICAL EXAMINATION reveals an

alert and playful seven month - old , well -

developed, well - nourished black female.

Brenay weighs 18 - pounds. Her skin is warm

and moist and there are no neurocataneous

stigmata. There are no digital, skeletal, or

palmar abnormalities and no dysmorphic

features. The cranial contour appears normal

and the head circumference measures 43.4 cm,

placing Brenay in the 60th percentile for

age - matched controls. The anterior and

posterior fontanelles are both patent and

flat. There are no significant facial

asymmetries. Tongue thrusting is noted

intermittently and there is some drooling.

The head has a very slight tilt to the right

side. The neck is supple without masses,

thyromegaly or adenopathy, and the

cardiovascular, respiratory and abdominal

examinations are normal. There are healed

linea r scars over the left calf and left

lower lateral cervical region.

Brenay's NEUROLOGIC EXAMINATION reveals an

alert infant sitting in her mother's lap.

She is extremely engaging and smiles

frequently. Brenay makes frequent cooing

noises and appears extr emely interested in

objects and people in her immediate surround.

Her cranial nerve examination reveals full

visual fields to confrontation testing. The

extraocular eye movements are full and

conjugate and the pupils are 3 mm and briskly

reactive to dire ct and consensually presented

light. There is no ptosis. Fundoscopic

examination reveals appropriately demarcated

disc margins without pallor and no evidence

of retinopathy. The facial movements are

symmetric and the tongue moves well. The

uvula is mid line.

Motor examination reveals a functional

asymmetry of the upper extremities. Brenay

tends to move her right arm much more

actively, and in contrast, the left shoulder

mobility is diminished. There are no fixed

contractures. The shoulder is held i n a

position of mild internal rotation and

adduction. The elbow is flexed and the wrist

is pronated. There is full range of motion

at the wrist and finger joints and Brenay

demonstrates good individual finger

dexterity. There were no asymmetries of

moto r bulk in the forearm compartments, but

the arm showed a slightly greater ridging

over the lateral surface on the left. There

is no asymmetry of the dorsal musculature and

the shape and slope of the shoulders appeared

symmetric and normal.

I was unable t o accurately assess sensory

function in the upper extremities. The deep

tendon reflexes are 2 at the knees and

ankles and 1 to 2 in the right biceps and

brachial radialis. The right triceps is

trace. In contrast, the left biceps and

brachial radial is are trace and there is no

evidence of a left triceps jerk.

Brenay is able to sit with good head control

and has a good grasping bilaterally. There

are no pathologic reflexes. She stands with

support.

The NEUROVASCULAR EXAMINATION reveals no

cervical , cranial or ocular bruits, and no

temperature or pulse asymmetries. Brenay is

able to grasp objects with either hand, and

she demonstrates reasonably well - developed

pincer grasp with both the right and left

fingers. She does not yet transfer.

IN SUMMAR Y, Brenay's neurologic examination

reveals evidence of a mild left Erb's palsy,

affecting the fifth, sixth, and seventh

cervical roots. The lower brachial plexus

appears preserved, and there are no other

neurologic abnormalities. Brenay's Erb's

palsy app ears to be improving slightly, but

it is as yet too early to know how well she

will do subsequent to her surgical repair.

In contrast, the neurologic examination

demonstrates no evidence of mental or motor

impairment referable to the central nervous

syste m.

5. An Erb's palsy, such as that evidenced by Brenay, is a

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

of the upper brachial plexus, 2 and does not involve the brain or

spinal cord. 3 Moreover, the impairment Brenay suffers is mild , as

opposed to substantial, and there is no evidence of mental

impairment. Consequently, while Brenay may have suffered a

mechanical injury, permanent in nature (to her left brachial

plexus) during the course of birth, she does not (for reasons

appeari ng more fully in the Conclusions of Law) qualify for

coverage under the Plan.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction

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

proceedings. Section 766.301, et seq. , Flor ida Statutes.

7. 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

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

Florida Statutes.

8. 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

Divi sion 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 co mplete 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.

9. If NICA determines tha t 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), Flo rida 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 Statutes.

10. 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 inj ury. 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

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

i mmediate post - delivery period in a hospital.

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 physician

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

11. 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 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 perman ently 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.

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

de monstrate 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

ass erting the affirmative issue before an administrative

tribunal").

13. Here, the proof demonstrated that Brenay did not suffer

an injury to the brain or spinal cord caused by oxygen

deprivation or mechanical injury occurring in the course of

labor, delive ry, or resuscitation that rendered her permanently

and substantially mentally and physically impaired.

Consequently, the record developed in this case failed to

demonstrate that Brenay 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. Florida Divisi on 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.)

14. 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 co mpensation filed by

Bridget Jackson and Horace Jackson, as parents and natural

guardians of Brenay Janelle Jackson, a minor, is hereby denied

with prejudice.

DONE AND ORDERED this 23rd day of December, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

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

Division of Administrative Hearings

this 23rd day of December, 2002.

ENDNOTES

1/ Respondent did not offer an Exhibit 1.

2/ Dorland's Illustrated Medical Dictionary, Twenty - sixth

Edition.

3/ According to Dr . Duchowny, an Erb's Palsy, a weakness of an

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

brachial plexus, does not involve an injury to the central

nervous system (the brain or spinal cord). Accord , Dorland's

Illustrated Medical Dictiona ry, Twenty - sixth Edition, The

"central nervous system" is commonly understood to mean "that

portion of the nervous system consisting of the brain and spinal

cord."

COPIES FURNISHED:

(By certified mail)

Alexander Clark, Esquire

Law Offices of Bradley Win ston, P.A.

8211 West Broward Boulevard

Suite 420

Plantation, Florida 33324

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32312

Ignacio Alfredo Ramirez, M.D.

Fem Care, P.A.

Obstetrics & Gynecology

7150 West 20th Avenue, Suite 615

Hialeah, Florida 33106

Palmett o General Hospital

2001 West 68th Street

Hialeah, Florida 33016

Ms. Charlene 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 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 proce edings 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 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 with in 30 days of rendition of the order to

be reviewed.

MS CHARLENE WILLOUGH BY

AGENCY FOR HEALTH CA RE ADMINISTRATION

CONSUMER SERVICES UN IT

PO BOX 14000

TALLAHASSEE FL 3230 8

MARK CASTEEL GEN COU NSEL

DEPARTMENT OF INSURA NCE

THE CAPITOL LL 26

TALLAHASSEE FL 3239 9 - 0300

IGNACIO ALFREDO RAMI REZ MD

FEM CARE PA

OBSTETRICS & GYNECOL OGY

7150 W 20TH AVE STE 615

HIALEAH FL 33106

PALMETTO GENERAL HOS PITAL

2001 W 68TH ST

HIALEAH FL 33016