04-002538N Tristen Onofry, A Minor By And Through His Parents And Next Best Friends, Victoria Hill And Keith Onofry, And Victoria Hill And Keith Onofry, Individually vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, September 13, 2005.

Summary: The child`s neurologic impairment was most likely developmentally based and unrelated to events of labor. The child was also not substantially mentally impaired. Therefore, the claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRISTEN ONOFRY , a minor , by and )

through his parents and next )

best friends , VICTORIA HILL AND )

KEITH ONOFRY, AND VICTORIA HILL )

AND KEITH ONOFRY, individually, )

)

Petitioner s , )

)

vs. ) Case No. 04 - 2538N

)

FLORIDA BIRTH - RELA TED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

MINAL K. KRISHNAMURPHY, M.D. )

and TALL A HASSEE MEMORIAL )

REGIONAL MEDICAL CENTER, INC., )

)

Intervenor s . )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative

Hearings, by Administrative Law Judge William J. Kendrick, held

a hearing in the above - styled case on August 23, 2005, in

Tallahassee, Florida.

APPEARANCES

For Petitioners: Kevin C. Smith, Esquire

Fountain & Williams, LLP

515 North Flager Drive, Suite 1000

West Palm Beach, Florida 33402 - 4056

For Respondent: Ronald A. Labasky, Esqui re

Landers & Parsons, P.A.

310 West College Avenue

Tallahassee, Florida 32301

For Intervenor Minal K. Krishnamurphy, M.D.:

Rogelio J. Fontela, Esquire

Dennis, Bowman, Jackson, Martin

& Fontela, P.A.

2367 Centerville Road

Tallahassee, Florida 32317 - 5589

For Intervenor Tallahassee Memorial Regional Medical

Center, Inc.:

Jesse F. Suber, Esquire

Henry, Buchanan, Hudson,

Suber & Carter, P.A.

Post Office Drawer 1049

Tallahassee, Florida 32302

STATEMENT OF THE I SSUE

At issue is whether Tristen Onofry, a minor, qualifies for

coverage under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan).

PRELIMINARY STATEMENT

On July 20, 2005, Victoria Hill and Keith Onofry, as

parents and next best friend s of Tristen Onofry (Tristen), a

minor, filed a petition (claim) with the Division of

Administrative Hearings (DOAH) for compensation under the Plan.

DOAH served the Florida Birth - Related Neurological Injury

Compensation Association (NICA) with a copy of t he claim on

July 21, 2004, and on November 4, 2004, following a number of

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

response to the petition, and gave notice that it was of the

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

i njury," as defined by Section 766.302(2), Florida Statutes, and

requested that a hearing be scheduled to resolve whether the

claim was compensable. In the interim, Minal K. Krishnamurphy,

M.D., and Tallahassee Memorial Regional Medical Center, Inc.,

were accorded leave to intervene.

At hearing, Joint Exhibits 1 and 2 were received into

evidence. No witnesses were called and no further exhibits were

offered.

The transcript of the hearing was filed August 29, 2005,

and the parties were accorded 10 days fr om that date to file

proposed orders. T he parties declined such opportunity.

FINDINGS OF FACT

Stipulated facts

1. Victoria Hill and Keith Onofry are the parents of

Tristen Onofry, a minoristen was born a live infant on

July 29, 2002, at Tallahasse e Memorial Regional Medical Center,

Tallahassee, Florida, and his birth weight exceeded 2,500 grams.

2. The physician providing obstetrical services at

Tristen's birth was Minal K. Krishnamurphy, M.D., wh o at all

times material hereto, was a "participatin g 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 - rel ated 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 rend ers the infant

permanently and substantially mentally and physically impaired."

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

Fla. Stat.

4. To resolve whether Tristen suffered a "birth - related

neurological injury," the parties offered the m edical records

related to Tristen's birth and subsequent development (Joint

Exhibit 1), and the opinions of Michael Duchowny, M.D., a

physician board - certified in pediatrics; neurology, with special

competence in child neurology; and clinical neurophysiolo gy

(Joint Exhibit 2). Notably, Dr. Duchowny evaluated Tristen on

October 6, 2004, and reported the results of his evaluation , as

follows:

PHYSICAL EXAMINATION reveals an [] alert and

cooperative, well developed, well - nourished,

2 - year - old, left - handed boy. Tristen weighs

23 pounds and is 32 inches tall. His head

circumference measures 46.4 centimeters,

placing him at the 10th percentile for age

match controls. There are no dysmorphic

features and no cranial or facial anomalies

. . . [or] asymmetries. Th ere are no

neurocutaneous stigmata. The neck is supple

without masses, thyromegaly, or adenopathy.

The cardiovascular, respiratory and

abdominal examinations are normal.

Tristen's NEUROLOGIC EXAMINATION reveals him

to be cooperative but with no speech o utput.

He does know colors by pointing. He does

not interact with meaningful speech sounds.

He seems to enjoy the examination and

actively participated. There are prominent

tongue thrusting movements and intermittent

drooling. The cranial nerve examin ation

reveals full visual fields to direct

confrontation testing. Fund u scopic

examination reveals sharply demarcated disc

margins without optic pallor. There is no

retinopathy. Pupils are 3 mm and react

briskly to direct and consensually presented

light . The extraocular movements are

conjugate and full in all planes of gaze.

The motor examination reveals a static

hypotonia with dynamic hypertonicity most

prominent in the lower extremities. At

rest, Tristen demonstrates an overly full

range of motion a t all joints. He will then

stiffen with activated movement. There are

bilateral AFO's in placeisten shows no

evidence of stable weightbearing and has

poor head control with the head flopping

forward. He has a wide based stance and

demonstrates trun cal ataxia. He is able to

grasp objects only with a palmar grasp and

has no evidence of developed pincher grasp

in either hand. He tends to grasp cubes but

cannot transfer and drops them readily. He

cannot build a tower of cubes. There are no

pathologi cal reflexes. The deep tendon

reflexes are 2 in the upper extremities but

3 at both knees and 3 at the ankles.

There are bilateral Babinski responses. The

spine is straight without dysraphic

featuresisten maintains a plantar grade

attitude when held in the vertical position.

His shoulder girdle seems to slip through

the examiner's hands. Sensory examination

is intact to withdrawal of all extremities

to stimulation. The neurovascular

examination reveals no cervical, cranial, or

ocular bruits an d no temperature or pulse

asymmetries.

5. As for the etiology of Tristen's impairments, it was

Dr. Duchowny's opinion, based on the results of his neurologic

evaluation of Tristen and review of the medical records, that,

while of unknown etiology, Tris ten's impairments were most

likely developmentally based, and not associated with oxygen

deprivation or mechanical injury occurring in the course of

labor, delivery, or the immediate postpartum period. In so

concluding, Dr. Duchowny observed that the impa irments

demonstrated by Tristen are consistent with the syndrome of

ataxic ce rebral palsy, a developmentally - based brain disorder

acquired before the onset of labor. Dr. Duchowny was also of

the opinion that the medical records did not reveal evidence of

a substantial mechanical or hypoxic event having occurred during

labor and delivery. As for the significance of Tristen's

impairments, it was Dr. Duchowny's opinion that Tristen is

permanently and substantially physically impaired. However,

mentally, Tri sten is not similarly affected or, stated

otherwise, he is not permanently and substantially mentally

impaired. Notably, Dr. Duchowny's opinions were uncontroverted,

grossly consistent with the record, and credible.

CONCLUSIONS OF LAW

6. The Division o f 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

Compensation Plan was established by the Legislature "for the

pu rpose 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, d ependents, 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),

and 766.305(1), Fla. Stat. The Florida Birth - Related

Neurological Injury Compensa tion 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 - rela ted neurological injury."

§ 766.305(4), 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 administ rative law judge to whom the claim has

been assigned. § 766.305(7), 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 pro visions 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 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

t he 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 wer e

delivered by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

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 postdelivery

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 a nd 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), Florida Statutes,

to mean:

injury to the brain o r 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 l abor, 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. As the proponent of the issue, the burden rested on

Petitioners to demonstrate that Tristen suffered a "birth -

related neurological injury." § 766.309(1)(a), Fla. Stat. S ee

also Balino v. Departm ent 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.")

13. Here, the proof failed to support the c onclusion that,

more likely than not, Tristen's neurologic impairment was the

result of a brain or spinal cord injury caused by oxygen

deprivation or mechanical injury occurring in the course of

labor, delivery, or resuscitation in the immediate postdeliv ery

period in the hospital, or that Tristen was permanently and

substantially mentally impaired. Consequently, given the

provisions of Section 766.302(2), Florida Statutes, Tristen does

not qualify for coverage under the Plan. See also §§ 766.309(1)

and 766.31(1), Fla. Stat.; 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 subj ects clearly embraced within its terms."), approved ,

Florida Birth - Related Neurological Injury Compensation

Association v. McKaughan , 668 So. 2d 974, 979 (Fla. 1996);

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.)

14. Where, as here, the administrative law judge

determines that ". . . t he injury alleged is not a birth - related

neurological injury . . . she or 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. S tat. 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

Victoria H ill and Keith Onofry, as parents and next best friends

of Tristen Onofry, a minor, is dismissed with prejudice.

DONE AND ORDERED this 13th day of September, 2005, in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRIC K

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

Division of Administrative Hearings

this 13th day of September, 2005.

COPIES FURNISHED :

(Via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Tallahasse e, Florida 32308

(Certified Mail No. 7099 3400 0010 4399 5681)

Kevin C. Smith, Esquire

Fountain & Williams, LLP

515 North Flager Drive, Suite 1000

West Palm Beach, Florida 33402 - 4056

(Certified Mail No. 7099 3400 0010 4399 5674)

Rogelio J. Fontela, Esq uire

Dennis, Bowman, Jackson, Martin

& Fontela, P.A.

2367 Centerville Road

Tallahassee, Florida 32317 - 5589

(Certified Mail No. 7099 3400 0010 4399 5667)

Jesse F. Suber, Esquire

Henry, Buchanan, Hudson,

Suber & Carter, P.A.

Post Office Drawer 1049

Tal lahassee, Florida 32302

(Certified Mail No. 7099 3400 0010 4399 5650)

Ronald A. Labasky, Esquire

Landers & Parsons, P.A.

310 West College Avenue

Tallahassee, Florida 32301

(Certified Mail No. 7099 3400 0010 4399 5643)

Charlene Willoughby, Director

Cons umer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7099 3400 0010 4399 5636)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final ord er 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,

Florida Statutes, and Florida Birth - Related Neurological Injury

Compensa tion 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.