04-003932N Brandi Barbalace On Behalf Of And As Parent And Natural Guardian Of Brianna Victoria Barbalace, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, August 30, 2005.

Summary: The proof demonstrates that the infant`s neurologic deficits were unrelated to events that occurred during the course of birth. The claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRANDI BARBALACE , on behalf of )

and as parent and natural )

guardian of BRIANNA VICTORIA )

BARBALACE, a minor , )

)

Petitioner, )

)

vs. ) Case No. 04 - 3932N

)

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 hearing in the above - styled case on June 21, 2005, by video

teleconference, with sites in Tallahassee and Tampa, Florida.

APPEARANCES

For Petitioner: No appearance at hearing.

For Respondent: Tana D. Storey, Esquire

Roetzel & Andress, LPA

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue is whether Brianna Victoria Barbalace, a minor,

qualifies for coverage under the Florida Birth - Related

Neurological In jury Compensation Plan (Plan).

PRELIMINARY STATEMENT

On November 1, 2004, Brandi Barbalace, on behalf of and as

parent and natural guardian of Brianna V ictoria Barbalace

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

of Administrative Hear ings (DOAH) for compensation under the

Plan.

DOAH served the Florida Birth - Related Neurological Injury

Compensation Association (NICA) with a copy of the claim on

November 2, 2004, and on March 17, 2005, following a number of

extensions of time within whic h to do so, NICA filed its

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

that Brianna 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 resolve whether the

claim was compensable. Such a hearing was duly - scheduled for

July 21, 2005.

Although duly - noticed, neither Petitioner nor anyone on her

behalf appeared at hearing, and no evidence was offered to

support her claim . Respondent appeared through counsel, and

called Donald C. Willis, M.D., as a witness. Respondent's

Exhibits 1 through 4 were received into evidence.

The transcript of the hearing was filed August 16, 2005,

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

writt en argument or proposed final orders. Respondent elected

to file written argument, and it has been duly - considered.

FINDINGS OF FACT

1. As observed in the Preliminary Statement, neither

Petitioner nor anyone on her behalf appeared at hearing, and no

pro of was offered to support her claim.

2. Contrasted with the dearth of proof offered by

Petitioner, NICA offered the testimony of Donald C. Willis,

M.D., a physician board - certified in obstetrics and gynecology,

as well as maternal - fetal medicine . NICA al so offered me dical

records related to Brianna's birth , immediate postnatal course,

and subsequent development.

3. It was Dr. Willis' opinion that the medical records

related to Brianna's birth and immediate postnatal course failed

to support a conclusion that Brianna suffered an injury to her

brain or spinal cord caused by oxygen deprivation or mechanical

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

immediate postdelivery period. In so concluding, Dr. Willis

noted that the fetal monitoring st rips failed to reveal any

evidence of fetal distress during labor; a spontaneous vaginal

delivery was done without difficulty; Apgar scores were normal

(8 and 9, at one and five minutes, respectively); resuscitation

was not required; the birth records reve aled no evidence of

trauma; and Brianna 's stay in the newborn nursery was

uncomplicated.

4. The opinion s of Dr. Willis are rationally based,

supported by the record, and credible. Consequently, it must be

resolved that, more likely than not, Brianna's current

neurologic condition (which reveals evidence of developmental

delay and hypotonia) , is unrelated to events that occurred

during the course of birth , and it is unnecessary to resolve

whether Brianna is permanently and substantially mentally and

phys ically impaired.

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 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.

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 Inju ry 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.

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 t he 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 w ith 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 make the following determination based upon the

available evidence:

(a) Whether t he 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 - related

neurological injury as defined in s.

766.303(2).

(b) Whether obstetrical ser vices 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 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 neurologic al 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 neurological

injury" is defined by Section 766.302(2), Florida Statutes

(1999) , 1 to mean:

in jury 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,

whic h 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.

11. Here, the proof failed to dem onstrate that Brianna

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 in the immediate postdelivery

period in the hospital that rendered her perma nently and

substantially mentally and physically impaired. Consequently,

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

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

Humana of Florida, Inc. v. McKaughan , 652 So. 2d 852, 85 9 (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 Birth - Related Neurologica l

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

s uch 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

Brandi Barbalace, on behalf of and as parent and natural

guardian of Brianna V ictoria Barbalace, a minor, is dismissed

with prejudice.

DONE AND ORDERED this 30th day of August, 2005, in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkw ay

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 30th day of August, 2005 .

ENDNOTE

1/ Brianna was born December 10, 1999. Consequently, the

amendments to Section 766.302(2), Florida Statutes, "[e]ffective

July 1, 2001, and applicable to births occurring on or after

that date," are not applicable to this case. Ch. 2001 - 277,

§ 149, Laws of Fla.

COPIES FURNISHED:

(By certified mail)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308

(Certified Mail No. 7099 3400 0010 4399 2178)

Wilbur E. Brewton, Esq uire

Tana D. Storey, Esquire

Roetzel & Andress, LPA

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

(Certified Mail No. 7099 3400 0010 4399 2161)

Brandi Barbalace

300 Congress Street

Auburndale, Florida 33823

(Certified Mail No. 7099 3400 0 010 4399 2154)

Brandi V. Barbalace

3953 Big Bend Trail

Polk City, Florida 33868

(Certified Mail No. 7099 3400 0010 4399 2147)

Lisa Jardine, M.D.

635 First Street, North

Winter Haven, Florida 33881

(Certified Mail No. 7099 3400 0010 4399 2130)

Winter H aven Hospital - Regency

101 Southeast Avenue O

Winter Haven, Florida 33880 - 9854

(Certified Mail No. 7099 3400 0010 4399 2123)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahasse e, Florida 32399 - 3275

(Certified Mail No. 7099 3400 0010 4399 2116)

NOTICE OF RIGHT TO JUDICIAL 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. Rev iew 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 p rescribed 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 f iled within 30 days of

rendition of the order to be reviewed.