04-000300N Raimara Pereira Costa And Claudio Dasilva, As Parents And Natural Guardians Of Ryan Costa Dasilva, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, January 6, 2005.

Summary: The infant`s brain injury was caused by an overwhelming infection (sepsis), that occurred well prior to the onset of labor. Therefore, the claim is not compensable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAIMARA PEREIRA COSTA AND )

CLAUDIO DASILVA, as parents and )

natural guardians of RYAN COSTA )

DASILVA, a minor, )

)

Petitioners, )

)

vs. ) Case No. 0 4 - 0300N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

UNIVERSITY OF MIAMI, d/b/a )

UNIVERSITY OF MIAMI SCHOOL OF )

MEDICINE and PUBLIC HEALTH )

TRUST, d/b/a JACKSON MEMORIAL )

HOSPITAL, )

)

Intervenors. )

)

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 November 15, 2004,

by video teleconference, with sites in Tallahassee and Miami,

Florida.

APPEARANCES

For Petitioners: Jose F. Torres , Esquire

Freidin & Brown, P.A.

Two South Biscayne Boulevard, Suite 3100

Miami, Florida 33131

For Respondent: David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

For Intervenor University of Miami, d/b/a University of

Miami School of M edicine:

James D. DeChurch, Esquire

Marc J. Schleier, Esquire

Fowler, White, Burnett, P.A.

Bank of America Tower, 17th Floor

100 Southeast S econd Street

Miami, Florida 33131

For Intervenor Public Health Trust, d/b/a Jackson Memorial

Hospital:

Stephen J. Keating, Esquire

Miami - Dade County Attorney's Office

Stephen P. Clark Center, Suite 2810

111 Northwest 1st Street

Miami, Florida 33128 - 1993

STATEMENT OF THE ISSUE

At issue is whether Ryan Costa DaSilva, a minor, qualifies

for coverage under the Flor ida Birth - Related Neurological Injury

Compensation Plan.

PRELIMINARY STATEMENT

On January 26, 2004, Ryan Costa DaSilva, a minor, by and

through Raimara Pereira Costa and Claudio DaSilva, as parents

and natural guardians, 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 o n

January 27, 2004, and on June 10, 2004, following a number of

extensions of time within which to do so, NICA filed its

response to the petition for benefits and gave notice that it

was of the view that the infant did not suffer a "birth - related

neurologi cal injury," as defined by Section 766.302(2), Florida

Statutes. In the interim, the University of Miami, d/b/a

University of Miami School of Medicine, and the Public Health

Trust, d/b/a Jackson Memorial Hospital, requested and were

accorded leave to inte rvene.

At the hearing held on November 15, 2004, Petitioners

offered no evidence; Respondent's Exhibit 1 (the deposition of

Donald Willis, M.D.) and Exhibit 2 (the deposition of

Michael Duchowny, M.D.) were received into evidence; and

University of Miami E xhibit 1 (the hospital records of

Raimara Costa), Exhibit 2 (the hospital records of Ryan Costa),

Exhibit 3 (University of Miami's discovery requests and

Petitioners' responses) and Exhibit 4 (affidavits of Doctors

Willis and Duchowny, with attached medica l reports) were

received into evidence. No witnesses were called, and no

further exhibits were offered.

The transcript of the hearing was filed December 3, 2004,

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

proposed orders. Respondent a nd Intervenors elected to file

such proposals, and they have been duly considered.

FINDINGS OF FACT

Preliminary findings

1. Raimara Pereira Costa and Claudio DaSilva are the

parents and natural guardians of Ryan Costa DaSilva, a minor.

Ryan was born a live infant at 10:15 p.m., December 10, 2001, at

Jackson North Maternity Center (also referred to as JNMC or

Jackson North), Dade County, Florida, and on December 11, 2001,

following the onset of seizure activity, he was transported by

ambulance to Jackson Memorial Hospital, where he was admitted to

the Neonatal Intensive Care Unit (NICU) at or about 8:44 a.m.

At birth, Ryan's weight exceeded 2,500 grams.

2. Among the physicians who provided obstetrical services

at Ryan's birth was Nahida H. Chakhtoura, M .D., who, at all

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.

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

pos tdelivery period in a hospital, which renders the infant

permanently and substantially mentally and physically impaired."

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

Stat.

4. Here, while the uncontroverted proof demonstrated that

Ryan suffered an injury to the brain which rendered him

permanently and substantially mentally and physically impaired,

it also demonstrated that his brain injury was caused by an

overwhelming infection (sepsis), that occurred well prior to the

onset of labor, as opposed to having been caused by oxygen

deprivation or mechanical injury occurring in the course of

labor, delivery, or resuscitation, as required for coverage

under the Plan. 1

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

jurisdict ion over the parties to, and the subject matter of,

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

6. The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providing compensation, irresp ective of fault, for

birth - related neurological injury claims" relating to births

occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

7. 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 766.313, Fla. Stat. The Florida

Birth - Related Neurological Injury Compensation Association,

which admi nisters 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." § 766.305(3), Fla. Stat.

8. 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 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 lor ida

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

9. 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 ne urological 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 rendere d 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 participatin g 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

resuscit ation 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 service s were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

10. 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 le ast 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 deprivation or mechanical injury

occurring in the course of labor, delivery,

or resuscitation in the immed iate

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 abno rmality.

11. As the proponents of the issue, the burden rested on

Petitioners or Intervenors to demonstrate that Ryan suffered a

"birth - related neurological injury." § 766.309(1)(a), Fla.

Stat. S ee 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.").

12. Here, the proof failed to support the conclusion that,

more likely tha n not, Ryan suffered an "injury to the brain or

spinal cord caused by oxygen deprivation or mechanical injury

occurring in the course of labor, delivery, or resuscitation

. . . which render[ed] . . . [him] permanently and substantially

mentally and phys ically impaired." Consequently, the record

developed in this case failed to demonstrate that Ryan suffered

a "birth - related neurological injury," within the meaning of

Section 766.302(2), and the claim is not compensable.

§§ 766.302(2), 766.309(1), and 7 66.31(1), Fla. Stat. See also

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 constructed to include only those subjects clearly

embraced within its terms."), approved , Florida Birth - Related

Neurological Injury Compensation Association v. McKaughan , 668

So. 2d 974, 979 (Fla. 1996).

13. Where, as here, the administrative law judge

determines that ". . . the injury a lleged 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 orde r constitutes final agency

action 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 the claim for compensation filed by Raimara Pereira

Costa and Claudi o DaSilva, as parents and natural guardians of

Ryan Costa DaSilva, a minor, is dismissed with prejudice.

DONE AND ORDERED this 6th day of January, 2005, in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Admini strative 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 Admi nistrative Hearings

this 6th day of January, 2005.

ENDNOTE

1/ To address the cause and timing of Ryan's brain injury, NICA

offered the deposition of Donald Willis, M.D., a physician

board - certified in obstetrics and gynecology, as well as

maternal - feta l medicine (Respondent's Exhibit 1); and the

deposition of Michael Duchowny, M.D., a physician board -

certified in pediatrics, pediatric neurology, and clinical

neurophysiology (Respondent's Exhibit 2). Additionally,

Intervenor University of Miami (UM) off ered the hospital records

of Raimara Costa pertinent to Ryan's birth (UM Exhibit 1); the

hospital records of Ryan's birth at Jackson North and postnatal

course at Jackson Memorial Hospital (UM Exhibit 2); University

of Miami's discovery requests to Petitio ners and Petitioners'

responses (UM Exhibit 3); and affidavits of Doctors Willis and

Duchowny, with attached reports (UM Exhibit 4). Notably,

Dr. Willis reviewed the medical records related to Ryan's birth

and immediate postnatal course and was of the opi nion that the

records failed to reveal any evidence of trauma or oxygen

deprivation during labor, delivery, or resuscitation, to support

a conclusion that Ryan suffered a "birth - related neurological

injury." Further, Dr. Duchowny reviewed a videotape of R yan, to

assess his degree of impairment, as well as the medical records

related to Ryan's birth and postnatal course, and was of the

opinion that, while Ryan suffered an injury to the brain that

rendered him permanently and substantially mentally and

physi cally impaired, his brain injury was caused by an

overwhelming infection (sepsis), that occurred well prior to the

onset of labor, and was not the result of oxygen deprivation or

mechanical injury occurring in the course of labor, delivery, or

resuscitatio n. Importantly, the opinions of Doctors Willis and

Duchowny are consistent with the medical records, and otherwise

uncontroverted. Consequently, the proof fails to support the

conclusion that Ryan's neurologic impairments resulted from an

injury to the b rain caused by oxygen deprivation or mechanical

injury occurring in the course of labor, delivery, or

resuscitation. Rather, the uncontroverted proof demonstrates

that Ryan's brain injury was caused by an overwhelming

infection, that occurred prior to the onset of labor. See

Wausau Insurance Company v. Tillman , 765 So. 2d 123 (Fla. 1st

DCA 2000)("Because the medical conditions which the claimant

alleged had resulted from the workplace incident were not

readily observable, he was obliged to present expert medical

evidence establishing that causal connection."); Ackley v.

General Parcel Service , 646 So. 2d 242 (Fla. 1st DCA

1995)(determining cause of psychiatric illness is essentially a

medical question, requiring expert medical evidence); Thomas v.

Salvatio n Army , 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In

evaluating medical evidence, a judge of compensation claims may

not reject uncontroverted medical testimony without a reasonable

explanation.").

COPIES FURNISHED:

(By certified mail)

Philip Freidin, Es quire

Freidin & Brown, P.A.

Two South Biscayne Boulevard, Suite 3100

Miami, Florida 33131

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 3 2308

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

James D. DeChurch, Esquire

Marc J. Schleier, Esquire

Fowler, White, Burnett, P.A.

Bank of America Tower, 17th Floor

100 Southeast Second Street

Miami, Florida 33131

Stephen J. Keating, Esquire

Miami - Dade County Attorney's Office

Stephen P. Clark Center, Suite 2810

111 Northwest 1st Street

Miami, Florida 33128 - 1993

Jackson Memorial Hospital

1611 Northwest 12th Avenue

Miami, Florida 33136

Ras hida Blake, M.D.

Jackson Memorial Hospital

1611 Northwest 12th Avenue

Miami, Florida 33136

Nahida Chakhtoura, M.D.

Jackson Memorial Hospital

1611 Northwest 12th Avenue

Miami, Florida 33136

Charlene Willoughby, Director

Consumer Services Unit - Enforcem ent

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 judicial review pursuant to Sections 120.68 and 766.311,

F lorida 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,

accompa nied 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 notic e of appeal must be filed within 30 days of

rendition of the order to be reviewed.