07-000525N Cassandra Drewes, On Behalf Of And As Parent And Natural Guardian Of Daniel J. Williamson, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, July 30, 2007.

Summary: The infant`s neurologic impairments were most likely developmentally based, as opposed to birth-related. The claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CASSANDRA DREWES, ON BEHALF OF ) )

AND AS PARENT AND NATURAL )

GUARDIAN OF DANIEL J. )

WILLIAMSON, A MINOR, )

)

Petitioner, )

) Case No. 07-0525N

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

FINAL ORDER

Pursuant to notice, the Division of Administrative

Hearings, by Administrative Law Judge William J. Kendrick, held

a hearing in the above-styled case on July 19, 2007, by video

teleconference, with sites in Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: David R. Best, Esquire

Best & Anderson, P.A.

Bank of America Center

390 North Orange Avenue, Suite 1875

Orlando, Florida 32801

For Respondent: Robert J. Grace, Esquire

Stiles, Taylor & Grace, P.A.

Post Office Box 460

Tampa, Florida 33606

STATEMENT OF THE ISSUE

At issue is whether Daniel J. Williamson, a minor,

qualifies for coverage under the Florida Birth-Related

Neurological Injury Compensation Plan (Plan).

PRELIMINARY STATEMENT

On January 29, 2007, Cassandra Drewes, on behalf of and as

parent and natural guardian of Daniel J. Williamson (Daniel), a

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

Administrative Hearings (DOAH) for compensation under the Plan.

DOAH served the Florida Birth-Related Neurological Injury

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

January 31, 2007, and on May 9, 2007, following an extension of

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

gave notice that it was of the view that Daniel 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 the issue.

Pursuant to notice, such a hearing was convened on July 19,

2007, and the parties offered Joint Exhibit 1, which was

received into evidence. That exhibit included the medical chart

of Cassandra Drewes from Rose Mary Sobel, M.D., and Crystal

River Women's Health Care; the medical chart of Cassandra Drewes

from Seven Rivers Community Hospital; Fetal Monitor Strips; the

medical chart of Daniel J. Williamson from Seven Rivers

Community Hospital; the medical chart of Daniel J. Williamson

from Shands Hospital; a report of Donald Willis, M.D., dated

April 30, 2007; and a report of Michael S. Duchowny, M.D., dated

April 25, 2007. By agreement of the parties, the reports of

Dr. Willis and Dr. Duchowny were received into evidence in lieu

of their testimony at hearing.

FINDINGS OF FACT

Stipulated facts

1. Cassandra Drewes is the natural mother of Daniel J.

Williamson, a minor. Daniel was born a live infant on July 8,

2005, at Seven Rivers Community Hospital, a licensed hospital

located in Crystal River, Florida, and his birth weight exceeded

2,500 grams.

2. The physician providing obstetrical services at

Daniel's birth was Rose Mary Sobel, 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.

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 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."

§ 766.302(2), Fla. Stat.

The etiology of Daniel's impairments

4. Michael Duchowny, M.D., a pediatric neurologist

associated with Miami Children's Hospital, based on his review

of the medical records, as well as his evaluation of Daniel on

April 25, 2007, was of the opinion that Daniel's neurologic

impairments were most likely developmentally based, as opposed

to birth-related. Dr. Duchowny expressed his findings and

conclusions in his report, dated April 25, 2007, as follows:

I evaluated Danny Williamson on April 25,

2007. Danny is a 21-month-old toddler

brought to the office by his mother and both

grandmothers. They all participated in the

evaluation and provided historical

information.

MEDICAL HISTORY: Danny is now 21 months old

and is developmentally delayed. His mother

explained that Danny had difficulties during

delivery and that she was "in distress"

during labor. She recalled that Danny's

"heart rate dropped" and that he "had a

small brain hemorrhage." Danny was born at

Seven Rivers Hospital but was transferred to

Shands Hospital where he remained for nine

days. He had respiratory and feeding

difficulties that required mechanical

ventilation and a gastrostomy. He was

discharged at nine days of age. His birth

weight was 6 pounds 10 ounces.

Developmental delay was noted in the first

year of life. He was late to roll over

(eight months) and did not sit until nine

months. He stood at 13 months and walked

independently at age 15 months. Speech

development [h]as also been delayed in that

he did not speak single words until one

month ago. He continues to have

difficulties with speech and presently

speaks in single words. He has a tendency

to repeat words spoken to him, especially

the last word of a command. His speech

articulation is also a problem. Danny

receives speech therapy at All Children's

Hospital once weekly. Occupational therapy

has been discontinued.

Danny is also extremely active and has a

fascination with drawers, knobs and buttons.

He will play with them all day long. In

contrast, he does not socialize well with

other children and often plays by himself.

He is "scared of other children" and tends

to play in parallel. He is neither

aggressive nor destructive and apparently,

"does not defend himself if attacked."

Danny also has problems with motor

coordination such as climbing up or down

stairs. He behaves "as if his legs are

stiff." He postures his right hand when

running and at rest.

Danny's health is otherwise good. His

vision is normal. He has a slight hearing

impairment and tubes were placed in his

ears. He sleeps through the night but for a

period of time would scream and not fall

asleep. His appetite is stable. There has

been no regression. There has been no

significant toxic or infectious exposure and

no postnatal trauma.

Danny is under the care of Dr. Joseph

Cassodonte and is followed by a nurse

practitioner. An MRI scan at 12-months of

age revealed nonspecific abnormalities. Two

EEGs performed to rule out epilepsy were

normal.

* * *

PHYSICAL EXAMINATION reveals a well-

developed, well-nourished 21-month-old boy.

Danny weighs 38 pounds and is 35 inches

tall. His hair is light brown and of normal

texture. The anterior and posterior

fontanels are closed. The head

circumference measures 48.6 centimeters

which approximates the 55th percentile for

age. There are no cranial or facial

anomalies or asymmetries. There are no

neurocutaneous stigmata and no dysmorphic

features. The spine is straight without

dysraphism. The neck is supple without

masses, thyromegaly or adenopathy. The

cardiovascular, respiratory and abdominal

examinations are normal. Peripheral pulses

are 2 and symmetric.

Danny's NEUROLOGICAL EXAMINATION was

difficult to complete as he is extremely

overactive and oppositional. He virtually

fought off all attempts to examine him and

required restraint by his multiple

caregivers. I measured his head

circumference at 48.6 centimeters which is

at the 55th percentile for age. His speech

output is clearly diminished and he tends to

use single words with marked labial

disarticulation. He did not drool, although

the tongue movements were poorly

coordinated. In contrast, he understands

simple commands and could identify body

parts readily. His attention span is short

and he is clearly overactive and impulsive

in terms of his overall behavioral

interactions. His eye contact is poor and

he does not socialize well. His attention

span consistently wandered during the

examination. Cranial nerve examination is

unremarkable. The visual fields are grossly

intact to confrontation testing. I was not

able to perform a funduscopic examination.

The pupils were 3 mm and react briskly to

direct and consensually presented light.

There are no significant facial asymmetries.

The uvula is midline and the pharyngeal

folds are symmetric. Motor examination

reveals symmetric strength, bulk and tone.

There are no adventitious movements and no

evidence of weakness or focal atrophy. Deep

tendon reflexes are slightly diminished at

1 bilaterally and the plantar responses are

downgoing. There is withdrawal of all

extremities to stimulation. The

neurovascular examination reveals no

cervical, cranial or ocular bruits and no

temperature or pulse asymmetries.

In SUMMARY, Danny's neurological examination

in detail reveals no specific focal or

lateralizing findings. In contrast, he

displays findings consistent with

developmental delay in multiple domains

including attention, behavior,

socialization, speech and motor ability[.]

Danny's presentation is most consistent with

a diagnosis of pervasive developmental

disorder and he likely fits within the

autism spectrum. Certainly, there are no

findings to suggest significant structural

brain damage[.] I believe that Danny's

neurological presentation is developmentally

based and acquired due to prenatally

acquired factors. A review of Danny's

medical records mailed on March 14, 2007

further confirms that he did not have a

significant neurological injury related to

oxygen deprivation or mechanical injury at

birth. I therefore believe that Danny is

not compensable under the NICA statute.

5. Dr. Duchowny's opinions regarding the etiology of

Daniel's impairments were not controverted or shown to lack

credibility. Consequently, it must be resolved that Daniel's

impairments are most likely developmentally based, as opposed to

birth-related. See , e.g. , 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 evaluating medical evidence, a judge of

compensation claims may not reject uncontroverted medical

testimony without a reasonable explanation."). Therefore, the

proof fails to support the conclusion that Daniel suffered a

"birth-related neurological injury," as required for coverage

under the Plan.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

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

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

7. The Florida Birth-Related Neurological Injury

Compensation 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.

8. 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),

and 766.305(1), 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.

9. 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 accordance with the provisions of Chapter 120, Florida

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

10. 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 postdelivery

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 postdelivery

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

obstetrical services were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

11. 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 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 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.

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

Petitioner to demonstrate that Daniel suffered a "birth-related

neurological injury." § 766.309(1)(a), Fla. Stat. See 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.").

13. Here, the proof failed to support the conclusion that,

more likely than not, Daniel's neurologic impairments were the

result of 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 postdelivery

period in the hospital. Consequently, given the provisions of

Section 766.302(2), Florida Statutes, Daniel was not shown to

qualify for coverage under the Plan. See also §§ 766.309(1) and

766.31(1), Fla. Stat.; 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 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).

14. Where, as here, the administrative 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 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 Findings of Fact and Conclusions of

Law, it is

ORDERED the claim for compensation filed by

Cassandra Drewes, on behalf of and as parent and natural

guardian of Daniel J. Williamson, a minor, is dismissed with

prejudice.

DONE AND ORDERED this 30th day of July, 2007, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of July, 2007.

COPIES FURNISHED :

(Via Certified Mail)

David R. Best, Esquire

Best & Anderson, P.A.

Bank of America Center

390 North Orange Avenue, Suite 1875

Orlando, Florida 32801

(Certified Mail No. 7002 0860 0000 9191 7288)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7002 0860 0000 9191 7295)

Robert J. Grace, Esquire

Stiles, Taylor & Grace, P.A.

Post Office Box 460

Tampa, Florida 33606

(Certified Mail No. 7002 0860 0000 9191 7301)

Rose Mary Sobel, M.D.

6151 North Suncoast Boulevard

Suite 1-C

Crystal River, Florida 34428

(Certified Mail No. 7002 0860 0000 9191 7318)

Seven Rivers Community Hospital

6201 North Suncoast Boulevard

Crystal River, Florida 34428-6712

(Certified Mail No. 7002 0860 0000 9191 7325)

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 0000 9191 7332)

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 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.