06-000847N Jonathan Buchanan And Krystal King, On Behalf Of And As Natural Parents And Guardians Of Nicholas Buchanan, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, September 28, 2006.

Summary: Indisputably, the infant`s brain injury did not result from asphyxia or trauma, and he was not substantially mentally or physically impaired. The motion for summary final order of dismissal is granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JONATHAN BUCHANAN and KRYSTAL )

KING, on behalf of and as )

natural parents and guardians )

of NICHOLAS BUCHANAN, a minor , )

)

Petitioner s , )

)

vs. ) Case No. 06 - 0847N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSO CIATION, )

)

Respondent. )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on to be heard on Respondent’s Motion for

Summary Final Order, served August 29, 2006.

STA TEMENT OF THE CASE

1. On April 3, 2006, Jonathan Buchanan and Krystal King,

on behalf of and as natural parents and guardians of Nicholas

Buchanan (Nicholas), a minor, filed a petition (claim) with the

Division of Administrative Hearings (DOAH) for compen sation

under the Florida Birth - Related Neurological Injury Compensation

Plan (Plan).

2. DOAH served the Florida Birth - Related Neurological

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

on April 4, 2006, and on August 7, 2006, following a number of

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

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

view that Nicholas did not suffer a " birth - related neurological

injury, " as defined by Section 766.302(2), Florida Statutes, a nd

requested that a hearing be scheduled to resolve whether the

claim was compensable.

3. Thereafter, on August 29, 2006, NICA served a Motion

for Summary Final Order. 1 The predicate for the motion was

NICA’s contention that , indisputably, any brain inju ry Nicholas

may have suffered was not caused by oxygen deprivation or

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

resuscitation in the immediate post delivery period in the

hospital, and that, regardless of the etiology of any injury

N icholas suffered, he was neither substantially mentally nor

substantially physically impaired.

4. Attached to NICA’s motion was an affidavit of Donald

Willis, M.D., an obstetrician, who reviewed the medical records

related to Nicholas’ birth and concluded , within a reasonable

degree of medical probability, that " [t]here was no apparent

obstetrical event that resulted in loss of oxygen or mechanical

injury to the brain."

5. Also attached to NICA’s motion was an affidavit of

Michael Duchowny, M.D., a pediat ric neurologist associated with

Miami Children’s Hospital, who evaluated Nicholas on July 26,

2006. Based on that evaluation, as well as a review of the

medical records, Dr. Duchowny concluded, within a reasonable

degree of medical probability, that the b rain injury Nicholas

suffered was a consequence of his Group B steptoccal meningitis,

not intrapartum asphyxia or trauma, and that Nicholas was

neither substantially mentally nor substantially physically

impaired. The bases for Dr. Duchowny’s conclusions were

documented in his written report, as follows:

I evalua ted Nicholas Buchanan on July 26 ,

2006. The evaluation was performed at my

office in Miami Children’s Hospital.

Nicholas is 15 - months old and was brought by

his mother and maternal grandmother. Both

supplied historical information.

MEDICAL HISTORY: Nicholas’ mother began by

explaining that Nicholas has hydrocephalus

and seizures. She related both problems to

a bout of Group B strep meningitis which was

diagnosed at six - days of age. Nicholas w as

born at the East Pasco Medical Ce nter and

discharged on the 5th day of life. He

presented the next day with seizures and

irritability and was ultimately diagnosed

with Group B streptococcal meningitis.

Nicholas was transferred to Arnold Palmer

Hospita l where he remained for two - months.

He was treated aggressively with antibiotics

and had a PIC line. This ultimately became

infected and he was " in and out of

hospitals " for another two months.

Nicholas’ seizures were treated with

phenobarbital and he h ad no further

recurrences. In retrospect, Nicholas’

mother believes that Nicholas may have had

seizures since the first day of life. She

recalls Nicholas having " eyelid flutters "

and with his tongue being pushed to the roof

of his mouth.

Nicholas was mai ntained on phenobarbital

until one - year of age at which time he was

switched to Trileptal. He is being followed

by Dr. Carl Barr. His present dosage of

Trileptal is 120 mg twice per day. An EEG

at one - year of age apparently continued to

show evidence of seizure activity.

Nicholas also developed hydrocephalus as a

consequence of the meningitis . A serial

head circumference measurement indicated

rapid head growth culminating in placement

of a left ventriculoperitoneal shunt at age

four - months. The proced ure was performed by

Dr. Gregg in Orlando. The procedure is

uncomplicated and Nicholas’ head growth has

subsequently returned to normal. He has not

had serial imaging studies. No shunt

infections or complications have occurred.

In other respects Nichol as has been doing

well. He has been growing and developing

satisfactorily. Nicholas walked at 14 -

months of age and now says one or two words.

He is not in any interventional therapies.

His vision and hearing are both good. His

appetite is described as " picky " but he eats

table foods along with baby foods. He

sleeps through the night but may wake up

crying on occasion.

PRE - AN D PERINATAL HISTORY: Nicholas was the

product of an uncomplicated 41 - week

gestation with delivery by cesarean section

because o f postdates. He breathed well at

birth and had some transient physiological

jaundice. Nicholas’ immunizations have been

slightly delayed due to his medical

problems. He has no known drug allergies.

* * *

PHYSICAL EXAMINATION reveals an alert and

c ooperative, well - developed will - nourished

15 - month - old infant. Nicholas weights 24

pounds. His head circumference of 48.4

centimeters is within normal percentiles for

age. There are no neurocutaneous stigmata

and no dysmorphic features. The skin is

war m and moist. The anterior and posterior

fontanels are closed. There are no cranial

or facial anomalies or asymmetries. The

neck is supple without masses, thyromegaly

or adenopathy. The cardiovascular,

respiratory and abdominal examinations are

unremark able. Peripheral pulses are 2 and

symmetric.

NEUROLOGICAL EXAMINATION reveals a socially

interactive infant who is cooperative for

the evaluation. He sits quietly in his

mother or grandmother’s lap but does

frequently get up to explore the room. He

is quite inquisitive and actively plays with

toys. He obeys simple commands, such as

" bring the toy to me " . He made one sound

during the evaluation which was perhaps a

word but difficult to decipher. His

behavior was appropriate. Cranial nerve

examinatio n reveals full visual field to

direct confrontation testing. There are

full conjugate extraocular movements in the

horizontal and vertical plains. The pupils

are 3 mm and react briskly to direct and

consensually presented light and the ocular

fundi are u nremarkable including well -

demarcated disc margins without optic pallor

and normal eye grounds. There are no facial

asymmetries. The tongue moves well and the

dentition is normal. The pharyngeal folds

are symmetric. Motor examination reveals

full range of motion and relatively normal

muscle tone. Nicholas is able to stand from

a sitting position without holding on and he

walks on a narrow based gait without

evidence of ataxia. He demonstrates

bimanual dexterity without hand preference

and transfers re adily between his hands. He

has age appropriate fine motor coordination

with individual finger movements and thumb

first finger opposition. There are no

adventitious movements and no fasciculations

or atrophy. The deep tendon reflexes are 2

at the knee s and biceps. Plantar responses

are repeatedly downgoing. Sensory

examination is intact with withdrawal of all

extremities to stimulation. The

neurovascular examination demonstrates no

cervical, cranial or ocular bruits and no

temperature or pulse asymm etries.

In SUMMARY, Nicholas’ neurological

examination is essentially unremarkable. He

is progressing at the expected developmental

milestones and has shown a remarkable

recovery from his early meningiti s. The

hydrocephalus has also stabilized and his

s hunt appears to be intact.

I have had an opportunity to review medical

records sent on May 11, 2006. These include

records from a Place for Women in Pasco

County, East Pasco Medical Center, Arnold

Palmer Hospital and Pediatric Neurosurgery,

P.A. The inf ormation in these records

together with the findings on today’s

evaluation leads me to conclude that

Nicholas has neither a substantial mental

nor motor impairment. The hydrocephalus and

seizures are the consequence of his Group B

streptococcal meningitis ; therefore

unassociated with intrapartum asphyxia or

trauma. I therefore do not believe that

Nicholas is compensable under the NICA

statute.

6. Petitioners did not respond to the Motion for Summary

Final Order. Therefore, on September 12, 2006, an Ord er to Show

Cause was entered as follows:

On August 29, 2006, Respondent served a

Motion for Summary Final Order. To date,

Petitioners have not responded to the

motion. Fla. Admin. Code R. 28 - 106.204(4).

Accordingly, it is

ORDERED that within 10 da ys of the date of

this Order, Petitioners show good cause in

writing, if any they can, why the relief

requested by Respondent should not be

granted.

7. On September 15, 2006, Petitioners filed their Response

to Order to Show Cause. Pertinent to NICA’s M otion for Summary

Final Order, the response stated:

1. Petitioners’ expert witnesses agree

that the hydrocephalus and seizures suffered

by NICHOLAS BUCHANAN, a minor, are the

consequence of his Group B streptococcal

meningitis and were not associated wi th any

intrapartum asphyxia or trauma.

Petitioners’ expert witnesses also agree

that there was no apparent obstetrical event

that resulted in loss of oxygen or

mechanical injury to the child’s brain.

2. Therefore, Petitioners agree with

Respondent tha t this claim is no t

compensable because the injury does not meet

the definition of a " birth - related

neurological injury " as defined by Florida

Statute §766.302(2).

3. Therefore, Petitioners cannot show any

reason that Respondent should not be

entitled to a Summary Final Order

determining that this claim is not

compensable under the Plan so that this

claim should be dismissed with prejudice.

8. Given the record, it is undisputed that Nicholas’ brain

injury was not caused by intrapartum asphyxia or trau ma, and

that, regardless of the etiology of his injury , Nicholas is not

permanently and substantially mentally and physically impaired.

Consequently, for reasons appearing more fully in the

Conclusions of Law, NICA’s Motion for Summary Final Order is

well - founded. 2 § 120.57(1)(h), Fla. Stat.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

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

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

10 . The Florida Birth - Related Neurolo gical Injury

Compensation Plan was established by the Legislature " for the

purpose of providing compensation, irrespective of fault, for

birth - rel ated neurological injury claims" relating to births

occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

11 . 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), 76 6.305(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(3), Fla. Stat.

1 2 . If NICA determines that the injury alleged in a claim

is a compensable birth - related neurological injury, it m ay 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(6), Fla. Stat. If, on the other hand,

NICA disputes the claim, as it has in the instant case, the

di spute must be resolved 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.

1 3 . In discharging this responsibility, 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.

766.303(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

nur se 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

administrat ive law judge concludes 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.

1 4 . Pertinent to this case, " birth - related neurologica l

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 caus ed 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 permanently and

substantially mentally and physically

impaired. This de finition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

1 5 . Here, indisputably, Nicholas did not suffer an injury

to the brain , caused by oxygen deprivation or mechanical injury

occu rring in the course of labor, delivery, or resuscitation,

and, whatever the cause of his brain injury , he is not

permanently and substantially mentally and physically impaired.

Consequently, given the provisions of Section 766.302(2),

Florida Statutes, Ni cholas 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 con strued 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).

1 6 . Where, as here, the administrative law judge

determ ines 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 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 Statement of the Case and

Conclusions of Law, it is

ORDERED that Respondent's Motion for Summary Final Order is

granted, and the petition for compensation filed by Jonathan

Buchanan and Krystal King, on behalf of and as natural parents

and guardians of Nicholas Buchanan , a minor, be and the same is

dismissed with prejudice.

DONE AND ORDERED this 28 th 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 - 30 60

(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 28th day of September, 2006 .

ENDNOTES

1/ Pertinent to this case, Section 120.57(1)(h), Florida

Stat utes, provides:

(h) Any party to a proceeding in which an

administrative law judge of the Division of

Administrative Hearings has final order

authority may move for a summary final order

when there is no genuine issue as to any

material fact. A summary final order shall

be rendered if the administrative law judge

determines from the pleadings, depositions,

answers to interrogatories, and admissions

on file, together with affidavits, if any,

that no genuine issue as to any material

fact exists and that th e moving party is

entitled as a matter of law to the entry of

a final order. . . .

2/ Notably, when, as here, the " moving party presents evidence

to support the claimed non - existence of a material issue, he

. . . [is] entitled to a summary judgment unles s the opposing

party comes forward with some evidence which will change the

result; that is, evidence to generate an issue of material fact.

It is not sufficient for an opposing party merely to assert that

an issue does exist. " Turner Produce Company, In c. v. Lake

Shore Growe r s Cooperative Association , 217 So. 2d 856, 861 (Fla.

4th DCA 1969). Accord , Roberts v. Stokley , 388 So. 2d 1267

(Fla. 2d DCA 1980); Perry v. Langstaff , 383 So. 2d 1104 (Fla.

5th DCA 1980).

COPIES FURNISHED :

(Via Certified Mail)

D avid R. Best, Esquire

Best & Anderson, P.A.

Bank of America Center

390 North Orange Avenue, Suite 1875

Orlando, Florida 32801

(Certified Mail No. 7099 3400 0010 4404 4241)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Com pensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7099 3400 0010 4404 4258)

Tana D. Storey, Esquire

Roetzel & Andress

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

(Certified Mail No. 709 9 3400 0010 4404 4265)

Terri L. Mcendree, M.D.

38030 Daugherty Road

Zephyrhills, Florida 33540

(Certified Mail No. 7099 3400 0010 4404 4272)

Sheila A. Bahn, M.D.

38030 Daugherty Road

Zephyrhills, Florida 33540

(Certified Mail No. 7099 3400 0010 4404 42 89)

East Pasco Medical Center

7050 Gall Boulevard

Zephyrhills, Florida 33541

(Certified Mail No. 7099 3400 0010 4404 4302)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahass ee, Florida 32399 - 3275

(Certified Mail No. 7099 3400 0010 4404 4319)

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.