05-000411N Tateanna Price, On Behalf Of And As Parent And Natural Guardian Of Demarcus Cook, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, June 17, 2005.

Summary: The infant was neither substantially mentally nor substantially physically impaired. The claim is dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TATEANNA PRICE, on behalf of )

and as parent and natural )

guardian of DEMARCUS COOK, a )

minor, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0411N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

)

FINAL ORDER

This cause came on to be heard on the parties' Stipulation

of Non - Compensability, filed June 14, 2005.

STATEMENT OF THE CASE

1. On February 4, 2005, T ateanna Price, on behalf of and

as parent and natural guardian of Demarcus Cook (Demarcus), a

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

Administrative Hearings (DOAH) for compensation under the

Florida Birth - Related Neurological Injury Compensat ion Plan

(Plan).

2. DOAH served the Florida Birth - Related Neurological

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

on February 4, 2005, and on April 19, 2005, following an

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

to the Petition for Benefits, wherein it gave notice that it was

of the view that Demarcus 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

whet her the claim was compensable.

3. By Order of April 20, 2005, the parties were accorded

until May 4, 2005, to advise the administrative law judge , as to

the earliest date they would be prepared to proceed to hearing

on the issue of compensability, their e stimate of the time

required for hearing, and their choice of venue. Subsequently,

the deadline to respond to the Order of April 20, 2005, was

extended to June 14, 2005.

4. On June 14, 2005, the parties filed a Stipulation o f

Non - Compensability, wherein the y agreed that the following

"facts . . . are true and shall be considered as established by

competent, substantial evidence before the Administrative Law

Judge: "

1. Tateanna Price (the "Petitioner"),

current ly of 493 NW 5th Street, Miami,

Florida 33128 , is the parent and legal

guardian of Demarcus Cook, and is the

"Claimant " as defined by Section 766.302(3),

Florida Statutes.

2. On February 4, 2005, a claim for

compensation under the Florida Birth - Related

Neurological Injury Compensation Plan (the

"Pl an") was filed with the Division of

Administrative Hearings ("DOAH") by the

Petitioner, individually and as parent and

natural guardian of Demarcus Cook, a minor.

Such Petition is fully incorporated herein

by reference.

3. Demarcus Cook was born on Apri l 29,

2004, at North Shore Medical Center (the

"Hospital"), in Miami, Florida. The

Hospital is the "hospital" as that term is

defined in Section 766.302(6), Florida

Statutes.

4. At birth, Demarcus Cook weighed over

2500 grams.

5. Ramon Hechavarria, M. D., rendered

obstetrical services in the delivery of

Demarcus Cook and, at all material times,

was a "participating physician" as defined

in Section 766.302(7), Florida Statutes.

6. The attached medical records for both

Tateanna Price and Demarcus Cook a re true

and correct copies of medical records kept

in the normal course of business and which

were submitted to NICA by the Petitioner

and/or submitted to NICA by the healthcare

providers on behalf of the Petitioner. The

Petitioner hereby authorizes NICA to provide

the attached medical records to the Division

of Administrative Hearings for purposes of

resolution of the instant claim.

7. Michael S. Duchowny, M.D., is board -

certified in pediatric neurology with

special competence in child neurology and

cli nical neurophysiology, and is qualified

as an expert to render an opinion as to the

nature of the injury suffered by

Demarcus Cook.

8. The Parties stipulate that

Dr. Duchowny's opinion attached hereto

regarding the injury suffered by Demarcus

Cook is a t rue and correct copy of

Dr. Duchowny's opinion and represents the

current opinion of Dr. Duchowny with respect

to the issue of compensability of the

instant claim.

5. Attached to the parties ' stipulation was an affidavit

of Dr. Duchowny, who evaluated De marcus on March 30, 2005.

Dr. Duchowny reported the results of his neurologic evaluation,

as follows:

PHYSICAL EXAMINATION reveals an alert, well -

developed, well - nourished 11 - month - old male

infant. Demarcus weighs 21 pounds. The

s kin is warm and moist. There are no

neurocutaneous stigmata. There are no

dysmorphic features. The spine is straight

without dysraphism. The head circumference

measures 47 centimeters, which is within

standard percentiles. There are no cranial

or facial anomalies or asymmetr ies. The

anterior and posterior fontanels are

minimally patent. The neck is supple

without masses, thyromegaly or adenopathy.

The cardiovascular examination reveals

normal heart sounds. The lung fields are

clear. The abdomen is soft and nontender

and there is no palpable organomegaly.

Peripheral pulses are 2 and symmetric.

NEUROLOGIC EXAMINATION reveals Demarcus to

be quiet curious and socially interactive.

He is playful and interacts well with the

examiner. He sits in his father's lap. He

makes babbling sounds and displays an

appropriate level of concentration. He

smiles frequently. Cranial nerve

examination reveals full visual fields to

direct confrontation testing. The

extraocular movements are full and conjugate

and the pupils are 3 mm and react briskly to

direct and consensually presented light.

Funduscopic examination reveals well -

demarcated disc margins without optic

pallor. There are no retinal abnormalities.

The facial muscles are symmetric. The

tongue moves well. The uvula is midl ine.

The pharyngeal folds are symmetric. There

is no evidence of a torticollis. Motor

examination reveals symmetric strength, bulk

and tone. There are no adventitious

movements and no focal weakness or atrophy.

Demarcus is able to pull to a standing

p osition and did not fall. He has good head

control and good axial support. He grasps

for outstretched objects using both hands

and has a well - defined pincher grasp. He

readily transfers between hands. There are

no pathological reflexes. Sensory

examin ation is intact to withdrawal of all

extremities to stimulation. Neurovascular

examination reveals no cervical, cranial or

ocular bruits and no temperature or pulse

asymmetries.

In SUMMARY, Demarcus' neurological

examination today is entirely normal. He

has no evidence of ongoing neurologic

problems and certainly does not have a

substantial mental or motor impairment. On

the basis of today's neurological

examination, I do not feel that Demarcus is

eligible for compensation under the NICA

statute.

6. Based on the foregoing, it was further agree d that:

9. The Petitioner does not dispute that

Demarcus Cook is not permanently and

substantially mentally and physically

impaired so as to qualify the injury to

Demarcus Cook as a "birth - related

neurological injury," as that term is

defined in Section 766.302(2), Florida

Statutes. See attached report of Michael S.

Duchowny, M.D.

10. By signing this Stipulation, the

Petitioner acknowledges that neither she nor

Demarcus Cook is entitled to compensation

under the Plan.

7. T he record demonstrates that Demarcus is neither

substantially mentally nor substantially physically impaired.

Consequently, for reasons appearing more fully in the

Conclusions of Law, the claim is not compensable.

CONCLUSIONS OF LAW

8. T he Division of Administrative Hearings has

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

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

9. The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislatur e "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.

10. The injured infant, her or his personal

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

Related Neurological I njury 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 i s a birth - related neurological injury."

§ 766.305(4), Fla. Stat.

11. 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(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 accordan ce with the provisions of C hapter 120, F lorida

Statutes. §§ 766.304, 766.309, and 766.31, Fla. Stat.

12. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whet her 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 in jury 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 obstetric al 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 i n

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 neur ological injury and that

obstetrical services were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

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

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

to mean:

inju ry 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 i n 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 in clude

disability or death caused by genetic or

congenital abnormality.

14. As the proponent of the issue, the burden rested on

Petitioner to demonstrate that Demarcus suffered a "birth -

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

also Balino v. Department 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.").

15. Here, the proof faile d to support the conclusion that,

more likely than not, Demarcus was "permanently and

substantially mentally and physically impaired." Consequently,

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

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

§§ 766.309(1) and (2) and 766.31(1), Fla. Stat.; 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. 5th DCA 1995)("[B]ecause the Plan . . . is a

statutory substitute for common law rights and liabilities, i t

should be strictly constructed 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).

16. Where, as here, the admin istrative law judge

determines that ". . . the 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 register ed 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 Statement of the Case and

Conclusions of Law, it is

ORDERED that the Stipulation of Non - Compensability, filed

June 14, 2005, is approved, and the parties are directed to

comply with the provisions thereof.

It is further ORDERED that the claim for compensation filed

by Tateanna Price, on behalf of and as parent and na tural

guardian of Demarcus Cook, a minor, is dismissed with prejudice.

DONE AND ORDERED this 17th day of June, 2005, in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Adminis trative 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 17th day of J une, 2005.

COPIES FURNISHED :

(Via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308

Tana D. Storey, Esquire

Roetzel & Andress

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

F. Shields McManus, Esquire

Gary, Williams, Parenti, Finney, Lewis,

McManus, Watson & Sperando, P.L.

221 East Osceola Street

Stuart, Florida 34994

Ramon Hechavarris, M.D.

1190 Nor thwest 95th Street, Suite 302

Miami, Florida 33150

North Shore Medical Center

1100 Northwest 95th Street

Miami, Florida 33150 - 2098

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

T allahassee, Florida 32399 - 3275

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 F lorida

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

appropriat e 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 filed within 30 days of

rendition of t he order to be reviewed.