04-002368N Elizabeth Amisia And Charitable Michel, Individually And As Parents And Natural Guardians Of Their Minor Child, Chele Michel vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, January 18, 2005.

Summary: Infant`s injury to her brachial plexus during birth was unrelated to the brain or spinal cord and, regardless of the origin of her injury she was not substatially mentally and physically inpaired. Association`s Motion for Summary Final Order granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELIZABETH AMISIA AND CHARITABLE )

MICHEL, individually and as )

parents and natural guardians )

of their minor child, CHELE )

MICHEL, )

)

Petitioners, )

)

vs. ) Ca se No. 04 - 2368N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENS ATION ASSOCIATION, )

)

Respondent, )

)

and )

)

UNIVERSITY OF MIAMI, d/b/a )

UNIVERSITY OF MIAMI SCHOOL OF )

MEDICINE and PUBLIC HEALTH )

TRUST OF MIAMI - DADE COUNTY, )

)

Intervenors. )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration of Respondent's Motion

for Summary Final Order, served October 19, 2004.

STATEMENT OF THE CASE

1. On June 28, 2004, Elizabeth Amisia and Charitable

Michel, indivi dually and as parents and natural guardians of

their minor child, Chele Michel (Chele), filed a petition

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

resolve whether Chele suffered an injury compensable under the

Florida Birth - Related Neu rological Injury Compensation Plan

(Plan). Pertinent to the pending motion, the petition stated:

5. Petitioner does not allege that CHELE

MICHEL suffered brain damage as the result

of the birth related neurological injury.

However, this Petition for Ben efits is being

submitted as a result of the filing of a

Motion to abate civil action by counsel for

the physicians and hospital. This Petition

is submitted so that a determination may be

made as to whether there is any compensable

injury under NICA. Peti tioner alleges that

CHELE MICHEL suffered a brachial plexus

palsy [attributable to a shoulder dystocia

encountered during delivery] that resulted

in limited use of her left arm.

2. DOAH served the Florida Birth - Related Neurological

Injury Compensation As sociation (NICA) with a copy of the claim

on July 8, 2004, and on September 10, 2004, following an

extension of time within which to do so, NICA filed its response

to the claim and, based on the opinions of their experts, denied

that Chele suffered an inju ry compensable under the Plan. In

the interim, University of Miami, d/b/a University of Miami

School of Medicine, and the Public Health Trust of Miami - Dade

County, requested and were accorded leave to intervene.

3. Given NICA's response to the petition, an Order was

entered on September 14, 2004, which accorded the parties 14

days to advise the administrative law judge (ALJ) as to the

earliest date they would be prepared to proceed to hearing on

the issue of compensability, their estimate of the time requ ired

for hearing, and their choice of venue. In response,

Petitioners filed a "Request for the Administrative Law Judge to

Dispense with Compensability Hearing," wherein they requested

that, given the opinions of NICA's experts (Doctors

Michael Duchowny a nd Donald Willis), the ALJ "dispense with any

compensability hearing, determine the claim is not compensable

. . . and forthwith enter an Order that the . . . claim is not

compensable." Not surprisingly, the University of Miami took

exception to the reli ef requested by Petitioners, and in so

doing stated:

4. As a threshold matter, the Petitioners'

Request must be denied because there is no

evidence in the record reflecting that CHELE

MICHEL has not suffered a compensable injury

under the Plan. While NIC A has denied

compensability, no affidavits or reports

were attached to its response to the

Petition for Benefits. Further, the

Petitioners have failed to file any evidence

establishing that CHELE MICHEL's injury is

not NICA compensable.

5. In addition, as no discovery has been

conducted in this matter to date, it would

be premature to dispense with a

compensability hearing at this time. As a

party who has a substantial interest in the

outcome of the Petition for Benefits, the

University of Miami is enti tled to take

discovery to determine whether CHELE MICHEL

has been rendered permanently and

substantially mentally and physically

impaired. To that end, the University

would, at a minimum, seek to take the

deposition of the Petitioners' expert. If,

at dep osition, the Petitioners' expert

agrees with NICA's experts that CHELE MICHEL

did not suffer a compensable injury under

the Plan, the University would likely be

amenable to dispensing . . . [with] a

compensability hearing. Prior to that time,

however, the University intends to take

whatever discovery is appropriate under the

DOAH rules.

WHEREFORE, Intervenor, UNIVERSITY OF MIAMI,

respectfully requests that the DOAH deny the

Petitioners' Request for the Administrative

Law Judge to Dispense with Compensabil ity

Hearing.

4. By Order of October 5, 2004, Petitioners' Request for

the Administrative Law Judge to Dispense with Compensability

Hearing was denied, and by Notice of Hearing, dated October 7,

2004, a hearing was scheduled for January 18, 2005, to res olve

whether the claim was compensable.

5. In the interim, on October 19, 2004, NICA served a

Motion for Summary Final Order, pursuant to Section

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

was its assertions that, indisputably, Chel e's neurologic

impairment (a left Erb's Palsy) originated in the left brachial

plexus, not the brain or spinal cord, and while such injury may

have resulted in significant physical limitations in the left

upper extremity, Chele's neurologic functioning, me ntal and

physical, was otherwise fully preserved. Attached to NICA's

motion was an affidavit of Michael Duchowny, M.D., a pediatric

neurologist associated with Miami Children's Hospital, who,

based on his review of Chele's medical records and his

evaluati on of Chele's on August 18, 2004, concluded:

5. It is my opinion that CHELE MICHEL

suffers from neither a substantial mental

nor motor impairment originating within the

central nervous system.[ 1 ] Rather, her

neurologic impairment originates in the left

b rachial plexis and constitutes a peripheral

nerve injury. She has a left Erb's Palsy

involving the C - 5 and C - 6 nerve roots, and

her deficits are moderately severe and

permanent. Her mental function is entirely

normal, and she has neither a permanent nor

severe mental impairment, nor any mental

impairment whatsoever.

6. Neither Petitioners nor Intervenors responded to NICA's

Motion for Summary Final Order. Consequently, an Order to Show

Cause was entered on November 3, 2004, which provided:

On October 1 9, 2004, Respondent served a

Motion for Summary Final Order. To date,

neither Petitioners nor Intervenors have

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, Petitio ners and Intervenors show

good cause in writing, if any they can, why

the relief requested by Respondent should

not be granted.

7. On November 12, 2004, Intervenor, University of Miami,

filed its response to the Order to Show Cause, and stated:

2. While a review of Dr. Duchowny's

affidavit and medical report reflects that

this claim is probably not compensable under

the Plan, the University of Miami has not

yet been afforded the opportunity to cross -

examine Dr. Duchowny with respect to his

opinions. As a party who has a substantial

interest in the outcome of his proceeding,

the University of Miami is entitled to take

any discovery necessary to determine whether

CHELE MICHEL has been rendered permanently

and substantially mentally and physically

impaired. Thus, the University would

request that it be given the opportunity to

take the deposition of Dr. Duchowny before

the DOAH considers dismissing this action.

If, at deposition, Dr. Duchowny testifies

that Chele Michel did not suffer a

compensable injury under the Plan, the

University would likely be amendable to

entering into a joint stipulation for

dismissal at that time.

WHEREFORE, Intervenor, UNIVERSITY OF MIAMI,

respectfully requests that the DOAH deny

NICA's Motion for Summary Final Order.

Interv enor, Public Health Trust of Miami - Dade County filed its

response to the Order to Show Cause on November 16, 2004, and

adopted the University of Miami's response.

8. Intervenors' responses to the Order to Show Cause were

addressed by Order of November 18, 2004, as follows:

This cause came on for consideration on

Intervenor, University of Miami's Response

to Order to Show Cause W hy NICA's Motion for

Final Summary Order Should N ot be Granted,

filed November 12, 2004, and Intervenor,

Public Health Trust's Not ice of Joinder in

Intervenor, University of Miami's Response

to Order to Show Cause W hy NICA's Motion for

Final Summary Order Should N ot B e G ranted,

filed November 16, 2004. The premises

considered, it is

ORDERED that, although Intervenors have yet

to av ail themselves of the opportunity for

discovery in this case, their request that

they be given further opportunity to take

Dr. Duchowny's deposition is granted, and

ruling on Respondent's Motion for Summary

Final Order is deferred until December 17,

2004, to accord Intervenors a further

opportunity to depose Dr. Duchowny and file

any further response to the Motion for

Summary Final Order. Thereafter, the

undersigned will address Respondent's Motion

for Summary Final Order without further

delay.

Interven ors' request that Respondent's

Motion for Summary Final Order be denied is

denied.

9. On December 2, 2004, Intervenor, University of Miami,

filed its response (a Motion to Defer DOAH's Determination on

Respondent's Motion for Summary Final Order) to the Order of

November 18, 2004, and stated:

3. On November 19, 2004, the UNIVERSITY OF

MIAMI contacted Dr. Duchowny's office to

procure dates for his deposition. On

November 29, 2004, Dr. Duchowny's office

advised that Dr. Duchowny was unavailable

during the entire month of December and that

the earliest dates that he would be

available were January 13, 2005, January 20,

2005, and January 21, 2005. As January 13,

2005 was the only date provided for a time

prior to the January 18, 2005 final hearing,

the UNIVE RSITY OF MIAMI accepted that date.

4. In light of the foregoing, the

UNIVERSITY OF MIAMI will not be able to take

Dr. Duchowny's deposition or respond to

Respondent's Motion for Summary Final Order

prior to December 17, 2004 in the absence of

an order co mpelling Dr. Duchowny to appear

for deposition prior to that date.

Accordingly, the UNIVERSITY OF MIAMI

respectfully requests that the DOAH defer

ruling on the Motion for Protective Order

[sic] until a reasonable time after the

UNIVERSITY OF MIAMI is affo rded the

opportunity to take Dr. Duchowny's

deposition.

10. On December 17, 2004, a hearing was held to address

Intervenor's response to the Order of November 18, 2004, and an

Order was entered that day, as follows:

This cause came on for consideration o f

Intervenor University of Miami's Motion to

Defer DOAH's Determination on Respondent's

Motion for Summary Final Order, filed

December 2, 2004. Upon consideration and

consistent with the discussion, and the

parties' concurrence, at hearing on

December 17, 2004, it is

ORDERED that:

1. Intervenor's motion is granted, and

Intervenor University of Miami, as well as

Intervenor Public Health Trust of Miami - Dade

County, are accorded until 5:00 p.m.,

January 14, 2005, to file any further

response they may have to Respondent's

Motion for Summary Final Order and to

deliver same to the other parties of record.

2. The undersigned will address

Respondent's Motion for Summary Final Order,

giving due consideration of any further

response, the morning of January 17, 2 005,

and will advise all parties as to whether

the motion has been granted or denied. If

denied, the case will proceed to hearing on

January 18, 2005, as scheduled.

11. Intervenors elected not to file any response in

opposition to the Motion for Summary Final Order. Consequently,

given the record, it is indisputable that, while Chele suffered

a mechanical injury, permanent in nature (to her left brachial

plexus) during the course of birth, such injury is unrelated to

the brain or spinal cord and, regard less of the origin of her

injury, she was not rendered permanently and substantially

mentally and physically impaired. Therefore, NICA's Motion for

Summary Final Order is well - founded. §§ 120.57(1)(h),

766.302(2), and 766.309, Fla. Stat.

CONCLUSIONS OF L AW

12. The Division of Administrative Hearings has

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

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

13. 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

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

14. The injured "infant, her or his personal

r epresentative, 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 - R elated 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 written information relating

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

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

15. 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 t he 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.

16. 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 demonstrated, to the

satisfaction of the administrative law

judge, that the infant has sustained a brain

or spinal cord injury caused by oxygen

depriva tion 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 part icipating 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 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.

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

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

i njury 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 postdelivery period in a hospital,

whi ch 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.

18. Here, indisputably, Chele's neurologic impairment was

not caused by an injury to the brain or spinal cord and,

whatever the cause, she is not permanently and substantially

mentally and physically impaired. Consequently, given the

provisions of Section 766.302(2), Florida Statutes, C hele 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 b e strictly construed 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).

19. Where, as here, the administrative la w 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 mai l."

§ 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 Statement of the Case and

Conclusions of law, it is

ORDERED that Respondent's Mot ion for Summary Final Order is

granted, and the petition for compensation filed by

Elizabeth Amisia and Charitable Michel, individually and as

parents and natural guardians of their minor child,

Chele Michel, be and the same is dismissed with prejudice.

It is further ORDERED that the hearing scheduled for

January 18, 2005, is cancelled.

DONE AND ORDERED this 18th day of January, 2005, in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Divi sion 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

thi s 18th day of January, 2005.

ENDNOTE

1/ The "central nervous system" is commonly understood to mean

"that portion of the nervous system consisting of the brain and

spinal cord." See "central nervous s." under "system,"

Dorland's Illustrated Medical Di ctionary, Twenty - eighth Edition

(1994).

COPIES FURNISHED :

(By certified mail)

David M. Dudgeon, Esquire

Petosa & Associates, P.L.

7251 West Palmetto Park Road, Suite 206

Boca Raton, Florida 33433

Kenney Shipley, Executive Director

Florida Birth Relate d Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6 Court

Plantation, Florida 33324

James D. DeChurch, Esquire

Fowler, W hite, Burnett, P.A.

Bank of America Tower, 17th Floor

100 Southeast Second Street

Miami, Florida 33131

James J. Allen, Esquire

Miami - Dade County Attorney's Office

111 Northwest First Street, Suite 2810

Miami, Florida 33128 - 1993

Jackson Memorial Hospita l North

1611 Northwest 12th Avenue

Miami, Florida 33187

Luis Calder - Nieves, M.D.

University of Miami R - 136

1611 Northwest 12th Avenue

Miami, Florida 33187

Claudia Helena Costa, M.D.

University of Miami

1611 Northwest 12th Avenue

Miami, Florida 33187

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 JUDICIAL REVIEW

A party who is adversely affected by this F inal O rder is entitl ed

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 Cler k

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 Associa tion 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.