04-004471N Larry And Carol Jutras On Behalf Of And As Parents And Natural Guardians Of John Mark Jutras, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, December 20, 2005.

Summary: The infant`s neurologic impairments were most likely developmentally based, and not related to the birth process, and regardless of the etiology of his impairments, he was not substantially impaired. The claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY AND CAROL JUTRAS on )

behalf of and as parents and )

natural guardians of JOHN MARK )

JUTRAS, a minor , )

)

Petitioner s , )

)

vs. ) Case No. 04 - 4471N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

R espondent , )

)

and )

)

ORLANDO REGIONAL HEALTHCARE )

SYSTEM, INC., d/b/a ARNOLD )

PALMER HOSPITAL, )

)

Intervenor . )

)

FINAL ORDER

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

agreed record.

STATEMENT OF THE ISSUE

At issue is whether John Mark Jutras, a minor, qualifies

for coverage under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan).

PRELIMINARY STATEMENT

On December 16, 200 4 , La rry and Carol Jutras, as the

parents and natural guardians of John Mark Jutras (John), a

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

Administrative Hearings (DOAH) to resolve whether John suffered

an injury compensable under the Plan, and whether Orlando

Regional Healthcare System, Inc., d/b/a Arnold Palmer Hospital

(Arnold Palmer Hospital), the hospital at which John was born,

complied with the notice provisions of the Plan.

DOAH served the Florida Birth - Related Neurological Injury

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

December 16, 2004, 1 and on January 13, 2005, Respondent filed a

Motion for Summary Final Order, predicated on its perception

that the physician named in the petition as having provided

obstetrical services at Jo hn's birth (William T. Scott, M.D.)

was not a participating physician in the Plan because he had not

paid the assessment required for participation. Respondent's

motion was denied by Order of February 21, 2005, predicated on

its failure to negate the like lihood that Dr. Scott was exempt

from payment of the assessment required for participation in the

Plan, and a hearing was subsequently scheduled for April 26,

2005, to resolve whether obstetrical services were provided by a

participating physician at John' s birth. In the interim, on

April 15, 2005, the parties filed a Joint Motion for Summary

Final Order, predicated on their perception that, indisputably,

the record demonstrated that Dr. Scott was not a "participating

physician," as defined by the Plan, si nce he had neither paid

the assessment required for participation nor was he exempt from

payment of the assessment. Given the record, the parties'

motion was granted by order of April 22, 2005, and the claim was

dismissed with prejudice.

Shortly thereafte r, on May 2, 2005, Arnold Palmer Hospital

filed a Petition for Leave to Intervene, and Respondent filed a

Petition to Reopen Administrative Proceeding and Set Aside

Summary Final Order of Dismissal. Thereafter, on May 6, 2005,

the parties being in agreeme nt that there was good cause to do

so, Arnold Palmer Hospital's Petition for Leave to Intervene was

granted, Respondent's Petition to Reopen Administrative

Proceeding and Set Aside Summary Final Order of Dismissal was

granted, and the Summary Final Order o f Dismissal dated

April 22, 2005, was vacated. Additionally, Respondent was

directed to file its response to the claim on or before July 1,

2005.

On August 12, 2005, following an extension of time within

which to do so, NICA filed its response to Petition for

Benefits, and gave notice that it was of the view that John 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

compensabl e. Accordingly, b y Notice of Hearing, dated

August 26, 2005, a hearing was scheduled for November 15, 2005,

to resolve whether the claim was compensable , whether Arnold

Palmer Hospital provided notice as required by the Plan , and, if

not, whether the givi ng of notice was excused because the

patient had an emergency medical condition as defined by Section

395.002(8)( b ), Florida Statutes, or the giving of notice was not

practicable. However, on November 7, 2005, the parties agreed

to submit the claim for re solution on an agreed record, and by

order of November 9, 2005, the hearing was cancelled.

The parties filed their Agreed Record on November 23, 2005,

and were accorded until December 5, 2005, to file proposed

orders. Notably, the Agreed Record provided t hat " Petitioner [ s ]

withdr a w [] . . . [their] contention that notice, under section

766.316, Fla. Stat., i s an issue in this matter." Subsequently,

t he parties file d a Proposed Stipulated Final Order, which has

been adopted, although not necessarily verbati m.

FINDINGS OF FACT

Preliminary findings

1. Larry and Carol Jutras are the parents and natural

guardians of John Mark Jutras, a minor. John was born a live

infant on June 25, 2001, at Arnold Palmer Hospital, Orlando,

Florida, and his birth weight excee ded 2,500 grams.

2. At birth, obstetrical services were provided , at least

in part, by Peter F. McIlveen, M.D. , who, at all times material

hereto, was a "participating physician" in the Florida Birth -

Related Neurological Injury Compensation Plan . More

pa rticularly, Dr. McIlveen was a "participating physician" since

he was a resident in an approved postgraduate residence program

in obstetrics and gynecology, and was exempt from payment of the

assessment required for participation. §§ 766.302(7) and

766.31 4(4)(c) and (5), 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 depri vation or mechanical injury occurring in

the course of labor, delivery, or resuscitation in the immediate

postdelivery period in a hospital which render s 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 parties stipulated that John did not suffer a

"birth - related neurological injury," as defined by Section

766.302(2), Florida Statutes. Moreover, the parties , offered

the medical records related to John's birth and subsequent

development; the opinions of Michael Duchowny, M.D., a physician

board - certified in pediatrics, neurology with special competence

in child neurology, and clinical neurophysiology; and the

opinions of Donald Willis, M.D., a physi cian board - certified in

obstetrics and gynecology, and maternal - fetal medicine , which

were consistent with their stipulation.

5. Dr. Duchowny evaluated John on July 27, 2005, and

reported the results of his neurological evaluation as follows:

NEUROLOGICAL EXAMINATION reveals John to be

cooperative but with minimal speech output.

He has a thick lingual dysarthria and tends

to speak only when provoked. He prefers to

play with toys and his eye contact is

intermittent. John would cooperate with the

examinat ion and there were no behavioral

outbursts or temper tantrums. He understood

simple commands. Cranial nerve examination

reveals full visual fields to direct

confrontation testing and normal ocular

fundi. The pupils are 3 mm and react

briskly to direct a nd consensually presented

light. There are conjugate and full

extraocular movements with a slight

alternating esotropia. There are no facial

asymmetries. The tongue moves well and the

uvula is midline. There is no drooling.

Motor examination reveals m ild generalized

hypotonia. There is full range of motion at

all joints with excess laxity. No

adventitious movements are noted. There is

no focal weakness or atrophy. John is able

to walk with a symmetric arm swing, although

his gait is slightly wide b ased. The deep

tendon reflexes are 1 and symmetric and

both plantar responses are downgoing. The

sensory examination revealed withdrawal of

all extremities to stimulation. Tests of

cerebellar coordination were deferred. The

neurovascular examination r eveals no

cervical, cranial or ocular bruits and no

temperature or pulse asymmetries. John was

excessively attached to a blanket through

the examination.

In SUMMARY, John reveals findings consistent

with a pervasive developmental disorder. He

has delaye d language milestones and a

prominent speech dysarthria. He

additionally demonstrates short attention

span, poor eye contact, and diminished

social interaction. His examination

additionally revealed hypotonia and

hyporeflexia. I believe that John is

cle arly at risk for falling with in the

autism spectrum.

6. As for the etiology of John's neurologic impairment, it

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

neurologic evaluation of John and review of the medical records,

that, while of unkn own etiology, John's neurologic impairment s

were most likely developmental ly based , a nd not associated with

oxygen deprivation or mechanical injury occurring in the course

of labor, delivery, or resuscitation. As for Dr. Willis, he,

like Dr. Duchowny, was of the opinion that the medical records

failed to support a conclusion that John suffered an injury to

his brain or spinal cord caused by oxygen deprivation or

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

the immediate postdelivery per iod. As for the significance of

John's impairment, Dr. Duchowny was of the opinion that John's

mental impairment was mild to moderate and his physical

impairment was mild, as opposed to substantial, and that he

would likely improve with time. The opinion s of Doctors

Duchowny and Willis are consistent with the medical records,

uncontroverted, and credible.

7. Given the record, it must be resolved that John's

impairments were, more likely than not, occasioned by a

developmental abnormality, as opposed to events that may have

occurred during labor , delivery , or resuscitation. Moreover ,

regardless of the etiology of John's impairments, he is not

permanently and substantially mentally and physically impaired.

See , e.g. , Wausau Insurance Company v. Tillman , 765 So. 2d 123,

124 (Fla. 1st DCA 2000)("Because the medical conditions which

the claimant alleged had resulted from the workplace incident

were not readily observable, he was obliged to present expert

medical evidence establishing that causal connection." ); Ackley

v. General Parcel Service , 646 So. 2d 242 (Fla. 1st DCA

1995)(determining cause of psychiatric illness is essentially a

medical question, requiring expert medical evidence); Thomas v.

Salvation Army , 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In

ev aluating medical evidence, a judge of compensation claims may

not re j ect uncontroverted medical testimony without a reasonable

explanation.") .

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subj ect matter of,

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

9. In resolving w hether a claim is compensable, 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

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.

766.30 2 (2).

(b) Whether obstetrical services were

delivered b y 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, deliv ery, 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

obs tetrical 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, to

mean:

injury to the brain or spinal co rd 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,

which renders the infant permanent ly 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 demonstrated that John's neurologic

impairm ents were not "caused by an injury to the brain or spinal

cord . . . caused by oxygen deprivation or mechanical injury

occurring in the course of labor, delivery, or resuscitation"

and, regardless of the etiology of his impairments, John was not

" permanent ly and substantially mentally and physically

impaired. " Consequently, given the provisions of Section

766.302(2), Florida Statutes, John does not qualify for coverage

under the Plan. See also 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 , Florida Birth -

Related Neurological Inju ry 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.).

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by Larry and

Carol Jutras, as the pare nts and natural guardians of John Mark

Jutras, a minor, is dismissed with prejudice.

DONE AND ORDERED this 20th day of December , 2005 , in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

D ivision 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 20th day of December , 2005 .

ENDNOTE

1/ Consistent with Section 766.305(2), Florida Statutes, DOAH

also served the physician (William T. Scott, M.D.) named in the

petition as having provided obstetrical services at John's

birth, as well as the hosp ital (Arnold Palmer Hospital) named in

the petition as the facility at which John's birth occurred.

COPIES FURNISHED :

(By certified mail)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

2360 Christop her Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7003 1010 0001 2044 4395)

Mark V. Morsch, Esquire

Mark V. Morsch and Associates, P.A.

2425 Lee Road

Winter Park, Florida 32789

(Certified Mail No. 7003 1010 0001 2044 4401)

Tana D. Store y, Esquire

Roetzel & Andress, LLP

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

(Certified Mail No. 7003 1010 0001 2044 4418)

George W. Tate, II, Esquire

Broad & Cassel

Post Office Box 4961

Orlando, Florida 32802 - 4961

(Certified Mail No. 7003 1010 0001 2044 4425)

Francis E. Pierce, III, Esquire

Cooney, Mattson, Lance, Blackburn,

Richards & O'Connor, P.A.

Post Office Box 4850

Orlando, Florida 32802 - 4850

(Certified Mail No. 7003 1010 0001 2044 4432)

William T. Scott, M.D.

24 West Sturt evant Street

Orlando, Florida 32806

(Certified Mail No. 7003 1010 0001 2044 4449)

Orlando Regional Healthcare System, Inc.

d/b/a Arnold Palmer Hospital for

Children and Women

52 West Miller Street

Orlando, Florida 32806

(Certified Mail No. 7003 1010 0001 2044 4456)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7003 1010 0001 2044 4463)

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. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such proceedings are commenced by

f iling 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 F lorida 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.