03-003340N John Joseph Duss, Iii, And Krystal T. Duss, On Behalf Of And As Parents And Natural Guardians Of Daniel J. Duss, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, January 16, 2004.

Summary: Indisputably, infant was not substantially mentally and physically impaired. Consequently, the Florida Birth-Related Neurological Injury Association`s Motion for Summary Final Order of dismissal was granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN JOSEPH DUSS, III, and )

KRYSTAL T. DUSS, on behalf of )

and as parents and natural )

guardians of DANIEL J. DUSS, a )

minor, )

)

Petitioners, )

)

vs. ) Case No. 03 - 3340N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATIO N ASSOCIATION, )

)

Respondent. )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on to be heard on Respondent's Motion for

Summary Final Order, filed Decemb er 12, 2003, and the Order to

Show Cause, entered December 26, 2003.

STATEMENT OF THE CASE

1. On September 15, 2003, John Joseph Duss, III, and

Krystal T. Duss, on behalf of and as parents and natural

guardians of Daniel J. Duss (Daniel), a minor, filed a petition

(claim), and on October 6, 2003, an amended petition, with the

Division of Administrative Hearings (DOAH) for compensation

under the Florida Birth - Related Neurological Injury Compensation

Plan (the Plan).

2. DOAH served the Florida Birth - Rel ated Neurological

Injury Compensation Association (NICA) with a copy of the

petition and amended petition on September 19, 2003, and

October 9, 2003, respectfully, 1 and on December 12, 2003, NICA

filed a Motion for Summary Final Order, pursuant to Section

120.57(1)(h), Florida Statutes. 2 The predicate for NICA'S motion

was, inter alia , its assertion that, indisputably, Daniel is not

permanently and substantially mentally and physically impaired

and, consequently, does not qualify for coverage under the Pla n. 3

See §§ 766.302(2), 766.309(1), and 766.31(1), Fla. Stat.

3. Attached to NICA's Motion for Summary Final Order was

an affidavit of Michael Duchowny, M.D., a pediatric neurologist

associated with Miami Children's Hospital, who evaluated Daniel

(born o n December 3, 2002) on November 19, 2003. Dr. Duchowny

reported the results on this neurologic evaluation, as follows:

Daniel's NEUROLOGIC EXAMINATION reveals him

to be alert and quite socially interactive.

He has good central gaze fixation and

conjugate following movements. He babbles

actively and tends to observe objects and

faces in the environment quite keenly. He

was not overly fussy or colicky. Cranial

nerve examination reveals normal ocular

fundi. The pupils are 3 mm and react

briskly to direct and consensually presented

light. The sclerae are clear. There are no

significant facial asymmetries. The tongue

moves well and the uvula is midline. There

is a positive gagging response. Daniel does

not drool actively.

MOTOR EXAMINATION reveals an obvious

asymmetry of the upper extremities, whereby

Daniel tends to exclusively favor the left

hand. He crosses the midline and has well

developed pincher grasp and thumb/first

finger opposition. In contrast there is

less voluntary movement on the right and

Daniel does not grasp an offered object. He

tends to maintain a palmar grasp and does

not have individual finger dexterity. The

resting muscle tone is slightly increased on

the right as compared to the left. There is

a much less noticeable lower ex tremity

asymmetry. Daniel tends to have a mild

plantar grade on the right, but has full

range of motor at all lower extremity

joints. The upper extremity range of motion

is also within normal limits and there are

no fixed contractures of any of his limbs .

Daniel's biceps and knee jerks are at 3

compared to 2 on the left and he has a

right Babinski sign. The left toe is

downgoing. Gross sensory testing reveals no

asymmetry of withdrawal response. Daniel

has a well developed stepping and placing

respo nse and he has excellent sitting

balance. There is no head lag on pull - to -

sit and he has good axial stability. There

is no obvious fasciculation or atrophy. The

peripheral pulses are 2 and symmetric and

there are no cranial, cervical, or ocular

bruits, temperature or pulse asymmetries.

He withdraws all extremities in response to

stimulation. The spine is straight without

dysraphism.

IN SUMMARY, Daniel's neurologic examination

reveals evidence of a motor asymmetry of the

upper extremities, relatively good

preservation of the lower extremity strength

bulk, and muscle tone. Daniel also

manifests a mild asymmetry of his deep

tendon reflexes and a right - sided Babinski

response. In contrast his communication,

social, and behavioral skills appear quite

wel l preserved for age.

Dr. Duchowny concluded, based on his neurologic evaluation of

Daniel and review of his medical records, that Daniel did not

reveal evidence of a substantial mental or motor impairment.

4. Petitioners did not respond to NICA's Motio n for

Summary Final Order. Consequently, an Order to Show Cause was

entered on December 26, 2003, which provided, as follows:

On December 12, 2003, Respondent served a

Motion for Summary Final Order. To date,

Petitioners have not responded to the

motion. Fla. Admin. Code R. 28 - 106.204(4).

Accordingly, it is

ORDERED that within 10 days of the date of

this Order, Petitioners show good cause in

writing, if any they can, why the relief

requested by Respondent should not be

granted.

Petitioners did not res pond to the Order to Show Cause.

5. Given the record, it is indisputable that Daniel is not

permanently and substantially mentally and physically impaired.

Consequently, NICA's Motion for Summary Final Order is well -

founded. §§ 120.57(1)(h), 766.309, a nd 766.31(1), Fla. Stat.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

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

these proceedings. § 766.301, et seq ., Fla. Stat.

7. The Florida Birth - Related Neurological Injury

Co mpensation 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.

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 Division of Administrative Hearings. §§ 766.302(3),

766.303(2), 766.305(1), and 76 6.313, 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 claim . . . in which to file a response to

the petition and to submit relevant writte n information relating

to the issue of whether the injury is a birth - related

neurological injury." § 766.305(3), Fla. Stat.

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

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

compensa tion 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 hand,

NICA disputes the claim, as it has in the instant case, the

dispute must be res olved 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.

10. In discharging this responsibility, the administrative

law judge must make the following de termination 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 rebuttable presumption shall

arise that the injury is a birth - related

neurological inj ury 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 t eaching 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 con cludes 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), Fla. Stat.

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

injury" is defi ned by Section 766.302(2), to mean:

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case of a

multiple gestation, a live infant weighing

at least 2,000 grams at birth caused by

oxygen depr ivation or mechanical injury

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 ap ply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

12. Here, indisputably, Daniel's neurologic presentation

does not disclose permanent and substantial mental and physical

impairment. Consequen tly, given the provisions of Section

766.302(2), Florida Statutes, he does not qualify for coverage

under the Plan. See also Florida Birth - Related Neurological

Injury Compensation Association v. Florida 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.)

13. 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."

§ 766.309(2), Fla. Stat. Such an order constitutes final agency

act ion subject to appellate court review. § 766.311(1), Fla.

Stat.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the amended petition for compensation filed by

John Joseph Duss, III, and Krystal T. Duss, on behalf of and as

parents and natural guardians of Daniel J. Duss, a minor, be and

the same is dismissed with prejudice.

DONE AND ORDERED this 16th day of January, 2004, in

Tallahassee, Leon County, Florida.

S

WILLIAM J. K ENDRICK

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

Di vision of Administrative Hearings

this 16th day of January, 2004.

ENDNOTES

1/ Consistent with Section 766.305(2), Florida Statutes, DOAH

also served the physician (Martin A. Garcia, M.D.) named in the

petition as having provided obstetrical services at the infant's

birth, as well as the hospital (Baptist Medical Center) named in

the petition as the facility at which the infant's birth

occurred, with a copy of the petition on September 19, 2003.

Thereafter, on October 9, 2003, DOAH served the physician and

hospital with a copy of the amended petition. To date, neither

the physician nor hospital has requested leave to intervene or

otherwise sought leave to participate in these proceedings.

2/ All citations are to Florida Statutes (2002) unless

otherw ise indicated.

3/ NICA also averred that the infant's injury did not occur

during labor, delivery, or resuscitation in the immediate

postdelivery period in the hospital, as required for coverage

under the Plan, and attached an affidavit of an obstetricia n

(Dr. Donald C. Willis) who, based on his review of the medical

records opined that:

I have reviewed the medical records for the

above individual. The mother, Krystal Duss,

was a 28 year old with a twin pregnancy.

She was admitted to the hospital at 35 weeks

with severe preeclampsia. Labor was induced

for this indication. The fetal heart rate

tracing during labor did not suggest

distress. Daniel was the presenting twin.

Vaginal delivery was accomplished with

vacuum assistance. Birth weight was 5 lb s 8

ozs. The baby was not depressed at birth.

Apgar scores were 7/8 and the umbilical

blood pH was normal at 7.21. The baby was

described as having a "lusty" cry at birth.

Hypotension developed shortly after birth

and blood transfusions were required. MRI

three days after birth suggested a

thrombotic infarct in the middle cerebral

artery.

This newborn was not depressed at birth.

There was no apparent obstetrical event that

would explain the child's injury. I am not

aware of the extent of the child 's injury.

Pertinent to a consideration of NICA's contention, as well as

the conclusiveness of Dr. Willis' opinion, are the following

well pled allegations of the amended petition:

Description of disability:

4. It is alleged that Daniel Duss suffere d

a left middle cerebral artery infarct and is

disabled as a result thereof. Specifically,

Daniel has right sided neurological

weakness.

Time and place of injury:

5. The injured infant suffered an injury to

his scalp during delivery at Baptist Medical

Center, 820 Prudential Drive, Jacksonville,

Florida 32207 on December 3, 2002, between

approximately 07:34 - 07:59 am. He

sustained the above - described brain injury

thereafter.

Brief Statement of facts and circumstances

giving rise to claim:

6. A brief statement of the relevant facts

is as follows:

A. On December 2, 2002, after having

elevated blood pressure, massive weight gain

and edema with 3 proterinuria, Krystal T.

Duss was sent to Baptist Medical Center for

labor and delivery of twins.

B. She was admitted to Baptist Medical

Center Jacksonville at 14:50.

* * *

G. After becoming fully dilated at

07:03, Krystal Duss was moved to the

delivery room for instrumental assistance

during delivery with the Caesarean team on

standby.

H. The fetal monitoring strips document

6 vacuum delivery attempts between 07:34 and

07:59.

I. Daniel J. Duss was delivered at

08:00 - at a gestational age of 35 weeks,

having been conceived by in vitro

fertilization on April 16, 2002.

J. The Physician Progress Record -

Neonatology Resuscitation Note documented

that at delivery, the patient was pale and

hypotonic. He had a cephalhematoma and a

boggy scalp with possible subgaleal bleeding

that did cross suture lines.

K. The Progress N ote for 12/3/02 noted

bleeding over his scalp which dissected down

around his right ear with his head

circumference increasing by 1 cm during the

previous 2 hours.

L. Daniel was admitted to the Neonatal

Intensive Care Unit for prematurity, apnea,

res piratory insufficiency, and possible

sepsis. The admission notes record

metabolic acidosis which resolved the

following day.

M. Daniel received a blood transfusion

after admission to the NICU for anemia.

N. On 12/6/02, a cranial ultrasound was

performed to evaluate for intraventricular

hemorrhage. The study found no

intraventricular hemorrhage but did

demonstrate a cerebral infarct in the middle

cerebral artery distribution: "abnormal

parenchymal echogenecity in left basil

ganglia and left pa rietal perivent white and

grey matter. No IVH. Findings suspicious

of left MCA infarct."

O. An MRI, which was also done on

12/6/02, found evidence of an infarction in

the middle cerebral artery distribution.

Notably, neither Dr. Duchowny nor Dr. W illis addressed the

likely cause and timing of the infant's brain injury.

Consequently, the record does not conclusively demonstrate that

the infant's injury was not caused by the vacuum delivery or

that it did not occur during delivery or resuscitation. Under

such circumstances, NICA is not entitled to the entry of a

summary final order based on its contention that the infant's

injury did not occur during labor, delivery, or resuscitation in

the immediate postdelivery period. Holl v. Talcott , 191 So. 2d

40, 43 (Fla. 1996)("[T]he burden of providing the absence of a

genuine issue of material fact is upon the moving party.")

Accord , Lenhal Realty, Inc. vansamerica Commercial Finance

Corporation , 615 So. 2d 207 (Fla. 4th DCA 1993); Campbell v.

Sands , 4 04 So. 2d 402 (Fla. 5th DCA 1981).

COPIES FURNISHED:

(By certified mail)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Fl orida 32308

Matthew W. Sowell, Esquire

Matthew W. Sowell, P.A.

One Independent Drive, Suite 3220

Jacksonville, Florida 32202 - 5026

Martin A. Garcia, M.D.

836 Prudential Drive, No. 1202

Jacksonville, Florida 32207

Baptist Medical Center

820 Prudential Drive

Jacksonville, Florida 32207

Ms. Charlene Willoughby

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled

to j udicial 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 th e 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 within 30 days of

rendition of the order to be reviewed.