06-000149N Dawn Vose, On Behalf Of And As Parent And Natural Guardian Of Robert Donald Vose, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, September 18, 2006.

Summary: The infant was not substantially mentally and physically impaired. Therefore, the claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAWN VOSE, on behalf of and as )

parent and natural guardian of )

ROBERT DONALD VOSE, a minor, )

)

Petitioner , )

)

vs. ) Case No. 06 - 0149N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent, )

)

an d )

)

JILL PRAFKE, M.D. and WOMEN'S )

HEALTH, P.A., )

)

Intervenor s . )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative

Hearings, by Administ rative Law Judge William J. Kendrick, held

a hearing in the above - styled case on August 29, 2006, by video

teleconference, with sites in Tallahassee and Pensacola,

Florida.

APPEARANCES

For Petitioner: James R. Barnes, Esquire

Michles & Booth, P.A.

240 East Intendencia Street

Pensacola, Florida 32502

For Respondent: Ronald A. Labasky, Esquire

Young Van Assenderp, P. A.

Gallie's Hall

225 South Adams Street, Suite 200

Tallahassee, Florida 32301

For Intervenors: Joseph A. Wilson, Esquire

Wilson, Harrell, Farrington & Ford, P.A.

307 South Palafo x Street

Pensacola, Florida 32502

STATEMENT OF THE ISSUE

At issue is whether Robert Donald Vose, a minor, qualifies

for coverage under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan).

PRELIMINARY STATEMENT

On January 12, 2006, Dawn Vose, on behalf of, and as parent

and natural guardian of Robert Donald Vose (Robert), a minor,

filed a petition with the Division of Administrative Hearings

(DOAH) to resolve whether Robert suffered an injury compensable

under the Plan.

DOAH served the Florida Birth - Related Neurological Injury

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

January 12, 2006, and on May 30, 2006, following a number of

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

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

view that Robert 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, Jill Prafke, M.D., and

Women's Health, P.A., were accorded leave to intervene.

At hearing, Respondent's Exhibits 1 - 3 were received into

evidence. No witnesses were called and no further exhibits were

offered.

FINDINGS OF FACT

Stipulated facts

1. Dawn Vose is the parent of Robert Donald Vose, a minor.

Robert was born a live infant on August 15, 2001, at Baptist

Hospital, Pensacola, Florida, and his birth weight exceeded

2,500 grams.

2. The physician providing obstetrical services at

R obert's birth was Jill Prafke, M.D., who , at all times material

hereto , was a "participating physician" in the 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 f or infants who suffer a "birth - related 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

postdeliver y period in a hospital, which renders the infant,

permanently and substantially mentally and physically impaired."

§ 766.302(2), Fla. Stat.

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

neurological injury," the parties offered the medical reco rds

related to Robert's birth and subsequent development

(Respondent's Exhibit 3), as well as the opinions of Donald C.

Willis, M.D., a physician who practices maternal - fetal medicine,

and Michael Duchowny, M.D., a physician board - certified in

pediatrics, neurology with special competence in child

neurology, and clinical neurophysiology. (Respondent's Exhibits

1 and 2).

5. With regard to injury, Dr. Willis was of the opinion

that Robert suffered a brain injury (a venous sinus thrombosis

and choroid plexus hemorrhage) at or around the time of

delivery, that resulted in the development of hydrocephalus.

However, he offered no opinion regarding the extent or

significance of the brain damage. (Respondent's Exhibit 2).

6. In contrast, Dr. Duchowny evaluated Robert on May 4,

2006, and concluded that his "normal neurological status

together with a review of the accompanying medical records does

not suggest that he has a substantial mental or motor

impairment," as required for coverage under the Plan.

(Respond ent's Exhibit 1 ) . Dr. Duchowny reported the results of

his evaluation, and the basis for his opinion, as follows:

I had the pleasure of evaluating Bobby Vose

on May 4, 2006. Bobby is a 4 - year - old,

left - handed, prekindergarten student who was

brought by h is father for evaluation. This

was conducted in my office at Miami

Children 's Hospital.

HISTORY ACCORDING TO THE FATHER: Mr. Vose

explained that Bobby was brought in order to

"verify his abilities for NICA." He

believes that Bobby is developing normall y

and in fact, is above average in several

areas. He will be starting kindergarten in

September and has done extremely well in his

prekindergarten class setting. In fact, his

language abilities are above average for age

and he is bilingual with approxima tely 70

words of Spanish. He is a sociable boy who

plays well with other children and his motor

milestones have progressed normally. He

sleeps through the night. His vision and

hearing are intact. There has been no

regression and no toxic or infectious

exposure. Bobby is on no intercurrent

medications.

Bobby's PAST MEDICAL HISTORY is significant

for placement of a ventriculoperitoneal

shunt as a newborn. He apparently

experienced an intercranial hemorrhage into

the right ventricle and had a shunt pl a ced

from the anterior horn of the right

ventricle into the peritoneal cavity. His

shunt has functioned well and there have

been no complications or revisions . . . .

Otherwise, Bobby enjoys good health. He is

not being followed for any chronic illnesses

and has not required medical or surgical

intervention subsequent to the newborn

period.

PERINATAL HISTORY: Bobby was born at

Baptist Hospital in Pensacola at 37 - weeks

gestation. There was an attempt at a

vaginal delivery but "the head was wedged"

and B obby was ultimately delivered by

emergency cesarean section. He weighed 8

pounds and breathed well at birth. He

remained in the hospital for approximately

11 days.

GROWTH AND DEVELOPMENT: Bobby's father

could not recall Bobby's motor or language

mile stones except to note that all occurred

at the normal time. Bobby is fully

immunized and has no known drug allergies.

He has had a hernia repaired.

* * *

PHYSICAL EXAMINATION reveals an alert, well -

developed, pleasant and cooperative 4 - year -

old boy . Bobby weighs 38 pounds. The skin

is warm and moist. Bobby's head

circumference measures 51.9 centimeters,

which is within standard percentiles for

age. The fontanels are closed. The

ventriculoperitoneal shunt reservoir is

palpated over the right fro ntal bone and

shunt tubing is noted in the right anterior

lateral neck region and across the thorax

and abdomen. There is a healed right, upper

quadrant abdominal scar. There are no

cranial or facial anomalies or asymmetries.

No dysmorphic features or c utaneous stigmata

are noted. The neck is supple without

masses, thyromegaly or adenopathy. The lung

fields are clear and the heart sounds are

normal. There is no palpable abdominal

organomegaly. Peripheral pulses are 2 and

symmetric.

NEUROLOGICAL EXA MINATION likewise discloses

no significant findings. Bobby is alert,

pleasant and cooperative. He answers all

questions fluently with a good fund of

information and an age appropriate stream of

both thought and attention. He cooperated

with all aspects of the evaluation. The

cranial nerve examination reveals full

visual fields to direct confrontation

testing and normal ocular fundi. The optic

disc margins are clearly demarcated and

there is no optic pallor. There are no

significant retinal findings. The

extraocular movements are full and

conjugate. The pupils are 3 mm and react

briskly to direct and consensually presented

light. There is blink to threat from both

directions. The tongue is moist and

papillated and moves well in all plains.

The uvul a is midline. The pharyngeal folds

are symmetric. Motor examination reveals

symmetric strength, bulk, and tone. There

are no adventitious movements and no focal

weakness or atrophy. The deep tendon

reflexes are 2 throughout. Plantar

responses are dow ngoing. Station and gait

are appropriate for age. The arm swing is

symmetric. Sensory examination 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, Bobby's neurological examination

in detail reveals no significant focal or

lat eralizing findings. The

ventriculoperitoneal shunt is likely to be

nonfunctional at this point.

Bobby's normal neurological status together

with a review of the accompanying medical

records does not suggest that he has a

substantial mental or motor impairment.

. . . I, therefore, do not believe that he

is eligible for compensation under the NICA

statute.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

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

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

8. The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

pur pose 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.

9. 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), 766.305(1), and 766.313, Fla. Stat. The Florida

Birth - Related Neurological Injur y 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.

10. 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(7), Fla. Stat. However, if a dispute

exists, as it does in the instant case, the dispute must be

resolved by the assigned administrative law judge in accordance

with the provision s of C hapter 120, F lorida Statutes.

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

11. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the injury claime d 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 inf ant 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 were

deli vered 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 neurological injury and t hat

obstetrical services were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

12. 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 liv e

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 labor, delivery,

or res uscitation 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 gen etic or

congenital abnormality.

13. Here, the proof demonstrated that any brain injury

Robert may have suffered at birth did not render him

"permanently and substantially mentally and physically

impaired." Consequently, Robert does not qualify for cover age

under the Plan. § 766.302(2), Fla. Stat. 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

Injury Compensation Association v. McKaughan , 668 So. 2d 974,

979 (Fla. 1996).

14. Where, as here, the administrative law judge

determines th at "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 registered or certified mail."

§ 766.309(2), Fla. Sta t. 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 Robert Donald Vose, a minor, does not qualify

for coverage under the Plan, and the petition filed by Dawn

Vose, on behalf of, and as parent and natural guardian of Robert

Donald Vose, a minor, is dismissed with prejudice.

DONE AND ORDERED this 18th day of September, 2006 , in

Tallahassee, 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 18th day of September, 2006 .

COPIES FURNISHED :

(Via Certified Mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensa tion Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7002 0860 0000 9192 9748)

J ames R. Barnes, Esquire

Michles & Booth, P.A.

240 East Intendencia Street

Pensacola, Florida 32502

(Certified Mail No. 7002 0860 0 000 9192 9755)

J oseph A. Wilson, Esquire

Wilson, Harrell, Farrington

& Ford, P.A.

307 South Palafox Street

Pensacola, Florida 32502

(Certified Mail No. 7002 0860 0000 9192 9762)

Ronald A. Labasky, Esquire

Young Van Assenderp, P. A.

Gallie's Hall

225 S outh Adams Street, Suite 200

Tallahassee, Florida 32301

(Certified Mail No. 7002 0860 0000 9192 9779)

Jill Prafke, M.D.

4900 Grande Drive

Pensacola, Florida 32504

(Certified Mail No. 7002 0860 0000 9192 9786)

Baptist Hospital

1000 West Moreno Street

Pe nsacola, Florida 32501

(Certified Mail No. 7002 0860 0000 9192 9793)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7002 0860 00 00 9192 9809)

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

to judicial review pursuant to Sections 120.68 and 766.311,

Florida Statutes. Review proceedings are governed by the Florida

Rules of Appe llate 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 revie wed.