05-002153N Cheryl Lambright And Paul Vincent Lambright, Individually And As Parents And Natural Guardians Of Patrick Lambright, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, July 7, 2006.

Summary: The infant was not shown to be substantially mentally and physically impaired. The claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHERYL LAMBRIGHT AND PAUL )

VINCENT LAMBRIGHT, individually )

and as parents and natural )

guardians of PATRICK LAMBRIGHT, )

a minor, )

)

Petitioner s , )

)

vs. ) Case No. 05 - 2153N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENS ATION ASSOCIATION , )

)

Respondent . )

)

FINAL ORDER

With the parties' agreement, the Division of Administrative

Hearings, by Administrative Law Judge William J. Kend rick, held

a hearing in the above - styled case on June 28, 2006, by

teleconference.

APPEARANCES

For Petitioners: Philip Freidin, Esquire

Freidin & Brown, P.A.

One Biscayne Tower

2 S outh Biscayne Boulevard, Suite 3100

Miami, Florida 33131

For Respondent: Donald H. Whittemore, Esquire

Phelps Dunbar, LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

STATEMENT OF THE ISSUES

1. Whether Patrick Lambright, a minor, qualifies for

coverage under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan).

2. If so, whether the hospital and the participating

physician g ave the patient notice, as contemplated by Section

766.316, Florida Statutes, or whether notice was not required

because the patient had an "emergency medical condition," as

defined by Section 395.002(9)(b), Florida Statutes, or the

giving of notice was no t practicable.

PRELIMINARY STATEMENT

On June 13, 2005, Cheryl Lambright and Paul Vincent

Lambright, individually, and as parents and natural guardians of

Patrick Lambright (Patrick), a minor, filed a petition with the

Division of Administrative Hearings (D OAH) to resolve whether

Patrick qualified for compensation under the Plan and, if so,

whether the health care providers complied with the notice

provisions of the Plan.

DOAH served the Florida Birth - Related Neurological Injury

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

June 14, 2005, and on August 25, 2005, following an extension of

time within which to do so, NICA responded to the petition and

gave notice that it was of the view Patrick 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. In the

interim, Naples Community Hospital, Inc., d/b/a North Collier

Hospital (the hospital at which the infant was born) and

Jeffrey Heitmann, M.D. (the participating physician who provided

obstetrical services at the infant's birth) were granted leave

to intervene.

A hearing to address compensability and notice was

initially scheduled for March 14 and 15, 2006, ho wever, at the

parties' request, the hearing was rescheduled for June 28 and

29, 2006. Notably, by notice filed June 19, 2006, and June 26,

2006, respectively, North Collier Hospital and Dr. Heitmann

withdrew from these proceedings.

At hearing, Respondent' s Exhibit 1 was received into

evidence. No witnesses were called and no further exhibits were

offered.

FINDINGS OF FACT

Stipulated facts

1. Cheryl Lambright and Paul Vincent Lambright are the

natural parents and guardians of Patrick Lambright, a minor.

Patrick was born a live infant on September 25, 2001, at North

Collier Hospital, a hospital located in Naples, Florida, and his

birth weight exceeded 2,500 grams.

2. Obstetrical services were delivered at Patrick's birth

by Jeffrey Heitmann, M.D., who, at all times material hereto,

was a "participating physician" in the Florida Birth - Related

Neurological Injury Compensation Plan, as defined by Section

766.302(7), Florida Statutes.

Further findings related to compensability

3 . The only proof offered at h earing on the issue of

compensability was a r eport of neurology evaluation prepared by

Michael Duchowny, M.D., a pediatric neurologist associated with

Miami Children's Hospital, who, based on his review of Patrick's

birth records and his evaluation of Patr ick on August 3, 2005,

concluded that Patrick's abnormalities were most likely

developmentally based, as opposed to birth - related , and,

regardless of the etiology of his abnormalities, Patrick was not

substantially mentally or physically impaired. (Respon dent's

Exhibit 1) Dr. Duchowny noted the results of his evaluation, as

follows:

NEUROLOGICAL EXAMINATION reveals Patrick to

have difficulty with the evaluation as his

attention span wanders and he does not make

good eye contact. His speech output is

dimi nished and there is marred lingual and

labial disarticulation. The tongue

movements are poorly coordinated. The uvula

is midline and the pharyngeal folds are

symmetric. Motor examination reveals

symmetric strength and bulk. There is

generalized hypoton ia and bilateral SMO's

are inserted into Patrick's shoes. He can

build a tower of seven cubes but his fine

motor coordination is poor and there is a

mild intention tremor. There are no other

adventitious movements. No focal weakness

or atrophy is noted. Sensory examination is

intact to withdrawal of all extremities to

stimulation. The deep tendon reflexes are

2 - 3 and plantar responses are downgoing.

Patrick walks in a consistent fashion with

symmetric arm swing and turns crispy. He

gets up from a st anding position without

difficulty and his head control is well -

developed. There are no pathological

reflexes. The neurovascular examination

reveals no cervical, cranial, or ocular

bruits and no temperature or pulse

asymmetries.

In SUMMARY, Patrick's ne urological

examination reveals developmental

abnormalities in multiple domains consistent

with a diagnosis of pervasive developmental

disorder. He is clearly most affected in

the area of language but has problems in

motor coordination, social development, and

attention. Patrick is developmentally

abnormal, I do not believe that he has a

substantial mental or motor impairment and I

suspect that he will improve considerably in

the future. A review of his birth records

does not support the contention that

P atrick's problems were acquired during

labor and delivery. His MRI scan of

April 14, 2004 reveals periventricular

leukomalacia and thalamic gliosi s . They are

most likely to be acquired prenatally. I

therefore do not believe that Patrick is

compensable u nder the NICA statute.

CONCLUSIONS OF LAW

4 . The Division of Administrative Hearings has

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

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

5 . The Florida Birth - Related Neurological Injury

Com pensation 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.

6 . The i njured "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 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(4), Fla. Stat.

7 . If NICA determines that the injury alleged in a claim

is a compensable birth - related neurological injury, it may award

compensat ion 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 reso lved 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.

8 . In discharging this responsibility, the administrative

law judge must make the following dete rmination 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 c ord 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 injur y 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 tea ching 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 concl udes 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.

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

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

injury 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 depriva tion or mechanical injury

occurring in 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 include

disability or death caused by genetic or

congenital abnormality.

10 . Here, the proof failed to support a conclusion that,

more likely than not, Patrick, suffered a "birth - related

neurological injury," as defined by the Plan. Consequently,

Patrick does not qualify for coverage under the Plan, and it is

unnecessary to address whether the hospital and the

participating physician complied with the notice provisions of

the Plan. See § 766.309, Fla. Stat.

11 . 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

such effect] and . . . cause a copy of such order to be sent

immediately to the parties by re gistered 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 t hat the petition for compensation filed by

Cheryl Lambright and Paul Vincent Lambright, individually, and

as parents and natural guardians of Patrick Lambright, a minor,

is dismissed with prejudice.

DONE AND ORDERED this 7th day of July, 2006 , in

Tallahass ee, Leon County, Florida.

S

WILLIAM J. KENDRICK

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 7th day of July, 2006 .

COPIES FURNISHED :

(Via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Inju ry Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7005 1820 0002 9840 6567)

Philip Freidin, Esquire

Freidin & Brown, P.A.

One Biscayne Tower

2 South Biscayne Boulevard, Suite 3100

Miami, Florida 3 3131

(Certified Mail No. 7005 1820 0002 9840 7038)

Donald H. Whittemore, Esquire

Phelps Dunbar, LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

(Certified Mail No. 7005 1820 0002 9840 7052)

Dr. Jeffrey Heitman n

1660 Medical Boulevard, No. 30 0

Naples, Florida 34110

(Certified Mail No. 7005 1820 0002 9840 7069)

North Collier Hospital

11100 Health Park Boulevard

Naples, Florida 33942

(Certified Mail No. 7005 1820 0002 9840 6581)

Charlene Willoughby, Director

Consumer Services Unit - Enforcem ent

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7005 1820 0002 9840 6703)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled

to judicial re view 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

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.