04-000407N Tammy Lea Albritton And Douglas Edward Albritton, On Behalf Of And As Parents And Natural Guardians Of Elizabeth Nicole Albritton, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, December 13, 2004.

Summary: The child was not substantially mentally impaired. Therefore, the claim was not compensable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TAMMY LEA ALBRITTON AND DOUGLAS )

EDWARD ALBRITTON, on behalf of )

and as parents and natural )

guardians of ELIZABETH NICOLE )

ALBRITTON, a minor, )

)

Petitioners, )

)

vs. ) Case No. 04 - 0407N

)

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 case on October 28, 2004, by

video teleconference, with sites in Tallahassee and Orlando,

Florida.

APPEARANCES

For Petitioners: George H. Anderson, III, Esquire

Best & Anderso n, P.A.

1201 East Robinson Street

Orlando, Florida 32801

For Respondent: George W. (Trey) Tate, III, Esquire

Broad & Cassel

390 North Orange Avenue, Suite 1100

Orlando, Florida 32801

STATEMENT OF THE ISSUES

At issue is whether Elizabeth Nicole Albritton, a minor,

qualifies for coverage under the Florida Birth - Related

Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On February 2, 2004, Tammy Lea Albritton and Douglas Edward

Albritton, on behalf of and as parents and natural guardians of

Elizabeth Nicole Albritton (Elizabeth), a minor, filed a

petition (claim) with the Division of Administrative Hearings

(DOAH) for compe nsation 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

February 4, 2004, and on April 20, 2004, NICA gave notice that

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

related neurological injury" as defined by Section 766.302(2),

Florida Statutes, and requested that a hearing be scheduled to

address the issue of compensability. Such a hearing was

i nitially scheduled for September 9 and 10, 2004, but at

Petitioners' request was re - scheduled for October 28 and 29,

2004.

At hearing, Petitioners' Exhibit 1 and Respondent's

Exhibits A - I were received into evidence. No witnesses were

called, and no fur ther exhibits were offered.

The transcript of the hearing was filed November 30, 2004,

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

proposed orders. Respondent elected to file such a proposal on

December 2, 2004, and by filing of Decembe r 9, 2004, Petitioners

gave "notice of their election not to file a proposed order in

this matter, inasmuch as the proposed final order of the

Respondent accurately sets forth the testimony in this matter."

The parties' filings have been duly considered.

FINDINGS OF FACT

Preliminary findings

1. Tammy Lea Albritton and Douglas Edward Albritton are

the natural parents and guardians of Elizabeth Nicole Albritton,

a minor. Elizabeth was born a live infant on December 10, 2001,

at Central Florida Regional H ospital, a hospital located in

Sanford, Florida, and her birth weight exceeded 2,500 grams.

2. Obstetrical services were provided at Elizabeth's birth

by Ca'sha L. Archer, C.N.M., who was supervised by

Christopher Quinsey, M.D. At the time, both Certifie d Nurse

Midwife Archer and Doctor Quinsey were "participating

physicians," as that term is used in the Plan. § 766.314(4)(c),

Fla. Stat.

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 or spinal cord . . .

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 r enders 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, the medical records and the results of various

neurological examinations demonstrate that El izabeth, who

presents with a diagnosis of cerebral palsy, is permanently and

substantially physically impaired; however, mentally, Elizabeth

was not similarly affected or, stated otherwise, she is not

permanently and substantially mentally impaired. Conse quently,

for reasons appearing more fully in the Conclusions of Law, the

claim is not compensable, and it is unnecessary to resolve

whether Elizabeth's cerebral palsy resulted from brain injury

caused by birth trauma (oxygen deprivation or mechanical injur y)

or whether it was developmentally based.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

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

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

6. The Florida Birth - Related Neu rological 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.

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 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 sub mit 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 lorida

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

9. In discharging this responsibility, the administrative

law judge must mak e 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 rebuttable presumption shall

arise that the injury is a birth - relate d

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

nu rse 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

administra tive 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), Fla. Stat.

10. Pertinent to this case, "birth - related neurologic al

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 for a

single gestation or, in the case of a

multiple gestation, a live infant weighing

at least 2,000 grams at birth cau sed 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 infant permanently and

substantially mentally and physically

impaired. This d efinition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

11. Here, while the proof demonstrated that Elizabeth was

permanently and substantially physically impaired, it also

demonstr ated that she was not permanently and substantially

mentally impaired. Consequently, given the provisions of

Section 766.302(2), Florida Statutes, Elizabeth 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 mental and physical impairment.);

Humana of Florida, Inc. v. McKaughan , 652 So. 2d 852, 859 (Fla.

2d 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 , Flo rida Birth - Related Neurological

Injury Compensation Association v. McKaughan , 668 So. 2d 974,

979 (Fla. 1996).

12. 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

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 that the claim for compensation filed by Tammy Lea

Albritton and Douglas Edward Albritton, on behalf of and as

parents and natural guardians of Elizabeth Nicole Albritton, a

minor, is dismissed with prejudice.

DONE AND ORDERED this 13th day of December, 2004, in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Divis ion 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 13th day of December, 2004.

COPIES FURNISHED:

(By certified mail)

George H. Anderson, III, Esquire

Best & Anderson, P.A.

1201 East Robinson Street

Orlando, Florida 32801

Michael K. Wilson, Esquire

George W. (Trey) Tate, III, Esquire

Broad & Cassel

390 North Orange Avenue, Suite 1100

Orlando, Florida 32801

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

C a'sha L. Archer, MSN, CNM

Advanced Women's Health Specialists

1403 Medical Plaza Drive, Suite 207

Sanford, Florida 32771

Central Florida Regional Hospital

1401 West Seminole Boulevard

Sanford, Florida 32771

Charlene Willoughby, Director

Consumer Servic es Unit - Enforcement

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,

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 a nd 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.