04-001992N Karen D. Kempf And Jeremiah Brooks, Individually And On Behalf Of And As Parents And Natural Guardians Of Taylor Brooks, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, February 16, 2005.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KAREN D. KEMPF AND JEREMIAH )

BROOKS, individually and on )

behalf of and as parents and )

natural guardians of TAYLOR )

BROOKS, a minor, )

)

Petitioners, )

)

vs. ) Case No. 04 - 1992N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COM PENSATION ASSOCIATION, )

)

Respondent. )

)

FINAL ORDER

With the parties' agreement, this case was heard on an

agreed record.

STATEMENT OF THE ISSUE

At issue is whe ther Taylor Brooks, a minor, qualifies for

coverage under the Florida Birth - Related Neurological Injury

Compensation Plan.

PRELIMINARY STATEMENT

On June 7, 2004, Karen D. Kempf and Jeremiah Brooks,

individually and on behalf of and as parents and natural

guardians of Taylor Brooks (Taylor), a minor, filed a petition

(claim) with the Division of Administrative Hearings (DOAH) to

resolve whether Taylor suffered an injury compensable under the

Florida Birth - Related Neurological Injury Compensation Plan

(Plan) , and whether the physicians who provided obstetrical

services during Taylor's birth and the hospital at which the

birth occurred complied with the notice provisions of the Plan.

DOAH served the Florida Birth - Related Neurological Injury

Compensation Associ ation (NICA) with a copy of the claim on

June 9, 2004, and on August 20, 2004, following an extension of

time within which to do so, NICA gave notice that it was of the

view that Taylor did not suffer a "birth - related neurological

injury, as defined by Sec tion 766.302(2), Florida Statutes

[2002]" 1 and requested that a hearing be scheduled to address the

issue of compensability.

By Notice of Hearing dated October 7, 2004, a hearing was

scheduled for February 7 and 8, 2005, in Jacksonville, Florida,

to addres s the issue of compensability. However, on February 3,

2005, the parties filed a Joint Pre - Hearing Stipulation, wherein

they stipulated to certain facts, agreed to submit the case for

resolution on a stipulated record, and requested that the

hearing sched uled for February 7 and 8, 2005, be cancelled. The

parties' stipulation was approved by Order of February 7, 2005,

and the hearing scheduled for February 7, 2005, was cancelled.

The parties filed their Stipulated Record on February 10,

2005, and on Februa ry 14, 2005, NICA filed its proposed F inal

O rder, and Petitioners filed their response to NICA's proposed

Final Order. The parties' submittals have been duly considered.

FINDINGS OF FACT

Stipulated facts

1. By their stipulation, the parties agree that Karen D.

Kempf and Jeremiah Brooks, are the natural parents and guardians

of Taylor Brooks, a minor. The parties also agree that Taylor

was born a live infant on December 19, 2002, at Shands Hospital,

Jacksonville, Florida, and her birth weight exceeded 2,500

grams.

2. Finally, the parties agree the physicians providing

obstetrical services during Taylor's birth were John M. Baten,

M.D.; Amy D. Greenwald, M.D.; Kimberly Beth Loar, M.D.; and

Monica Joy George, M.D. However, there was no agreement that

an y of these doctor were participating physicians in the Plan. 2

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 . . . cause d 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."

§ 766. 302(2), Fla. Stat. See also §§ 766.309 and 766.31,

Fla. Stat.

4. Regarding compensability, Petitioners contend that

Taylor "has a profound and permanent injury as a result of

birth - related events, but do not dispute that Taylor's injury is

not compensabl e within the definition of Section 766.302(2),

Florida Statutes." (Joint Pre - hearing Stipulation, paragraph

B1.) In response, NICA agrees Taylor did not suffer a "birth -

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

Florida Statutes, pre dicated on its view that the proof fails to

support the conclusion that Taylor "suffers from a permanent and

substantial mental impairment." (Joint Pre - hearing Stipulation,

paragraph B2.)

5. Here, the records related to Taylor's birth and

subsequent deve lopment, as well as the reports of neurologic

evaluation by Michael Duchowny, M.D., demonstrate that Taylor is

not substantially mentally impaired, much less permanently and

substantially mentally impaired. Consequently, for reasons

appearing more fully i n the Conclusions of Law, the claim is not

compensable, and it is unnecessary to resolve the degree of

Taylor's physical impairment, whether Taylor's impairments

resulted from a brain injury caused by oxygen deprivation or

mechanical injury occurring in th e course of labor, delivery, or

resuscitation, or whether obstetrical services were delivered by

a participating physician at birth.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matte r of,

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

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 neurologica l 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 766.313, Fla. Stat. The Florida

Birth - Related Neurological Injury Compensation Association,

which administers the Plan, has "45 days from the date o f

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.

9. 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.

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 injury. If the

claimant has demon strated, 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 immediate post - delivery

period i n 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), Fla. Stat.

11. 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 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 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.

12. Here, the proof demonstrated t hat Taylor was not

permanently and substantially mentally impaired. Consequently,

given the provisions of Section 766.302(2), Florida Statutes,

Taylor does not qualify for coverage under the Plan. See also

Florida Birth - Related Neurological Injury Compen sation

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. McKau ghan ,

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 , Florida B irth -

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 alleged is not a birth - related

neurological injury . . . he [is req uired 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 revie w. § 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 Karen D.

Kempf and Jeremiah Brooks, individually and on behalf of and as

parents and natural gu ardians of Taylor Brooks, a minor, is

dismissed with prejudice.

DONE AND ORDERED this 16th day of February, 2005, in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Admi nistrative 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 16th day o f February, 2005.

ENDNOTES

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

otherwise indicated.

2/ The medical records related to Ms. Kempf's labor and

Taylor's birth suggest that Isaac Delke, M.D., may also have

participated in Taylor's birth ; however, neither the

significance of that participation nor whether Dr. Delke was a

participating physician is of record. Notably, Dr. Delke was

accorded leave to intervene in this proceeding, but subsequently

voluntarily withdrew as a party.

COPIES F URNISHED:

(By certified mail)

C. Rufus Pennington, III, Esquire

Margol & Pennington, P.A.

Suite 1700

One Independent Drive

Jacksonville, Florida 32202 - 5005

M. Mark Bajalia, Esquire

Volpe, Bajalia, Wickes, Rogerson & Galloway

1301 Riverplace Boulevard , Suite 1700

Jacksonville, Florida 32207

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308

John M. Baten, M.D.

5706 Kristen Avenue

Bos sier City, Louisiana 71112

Amy D. Greenwald, M.D.

836 Prudential Drive, Suite 1001

Jacksonville, Florida 32207

Kimberly Beth Loar, M.D.

653 - 1 West 8th Street

Jacksonville, Florida 32209

Monica Joy George, M.D.

653 - 1 West 8th Street

Jacksonville, Flor ida 32209

Shands Jacksonville

655 West 8th Street

Jacksonville, Florida 32209

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

NOTICE OF RIGHT TO J UDICIAL REVIEW

A party who is adversely affected by this F inal O rder 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 766.311,

Flori da 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.