07-000605N Tod Murto And Molly Peri, On Behalf Of And As Parents And Natural Guardians Of Noah Murto, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, June 25, 2007.

Summary: The record demonstrated that the infant was not substantially mentally or physically impaired. The claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOD MURTO AND MOLLY PERI, ON )

BEHALF OF AND AS PARENTS AND )

NATURAL GUARDIANS OF NOAH )

MURTO, A MINOR , )

)

Petitioner s , )

)

vs. ) Case No. 07 - 0605N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respo ndent . )

)

FINAL ORDER

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

Stipulation of Facts and Agreed Record, with exhibits, filed

June 11, 2007.

PRELIMINARY S TATEMENT

On February 5, 2007, Ted Murto and Molly Peri, on behalf of

and as parents and natural guardians of Noah Murto (Noah), a

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

Administrative Hearings (DOAH) for compensation under the

Florida Birth - Related Neurological Injury Compensation Plan

(Plan).

DOAH served the Florida Birth - Related Neurological Injury

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

February 6, 2007, 1 and on May 3, 2007, following an extension of

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

gave notice that it was of the view that Noah 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 iss ue.

Given NICA's response to the petition, an Order was entered

on May 7, 2007, which directed that "the parties . . . confer

and advise the . . . [administrative law judge ] no later than

May 21, 2007, as to the earliest date they will be prepared to

proce ed to hearing on the issue of compensability, their

estimate of the time required for hearing, and their choice of

venue.

On May 22, 2007, the parties filed a Joint Motion to Submit

Stipulation of Facts and Proposed Order to Resolve Petitioners'

Claim in L ieu of Contested Hearing (Joint Motion), and on

June 11, 2007, the parties filed a Joint Stipulation of Facts

and Agreed Record, with exhibits. By their stipulation, the

parties agreed to the facts set forth in paragraph 1 of the

Findings of Fact which fo llow, and agreed that the record

consists of the following exhibits:

a. Exhibit 1: Prenatal records of

Edwin Hayes, M.D. , for Molly Peri

b. Exhibit 2: Hospital record of Holmes

Regional Medical Center for Noah Murto

c. Exhibit 3: Office re cords of

Joseph Cimino, M.D., for Noah Murto

d. Exhibit 4: Office records of

John Weare, Jr., M.D., for Noah Murto

e. Exhibit 5: Report of Paul Carney, M.D.,

dated April 19, 2007

f. Exhibit 6: Report of Donald Willis,

M.D., dated April 2, 2007

g. Exhibit 7: Office records of Early

Steps - CATCH of Brevard for Noah Murto

The parties' Joint Motion was approved by Order of June 11,

2007, and they were accorded until June 21, 2007, to file a

proposed order. The parties file d suc h a proposal and it has

been duly - considered.

FINDINGS OF FACT

1. By their Joint Stipulation of Facts and Agreed Record,

the parties stipulated to the following facts:

a. The Petitioners filed a Petition for

Benefits under the Florida Birth - Related

Neuro logical Injury Compensation Plan

("Plan") on February 5, 2007, stating that,

"It is alleged that NOAH MURTO suffered

brain damage as a result of a birth - related

neurological injury."

b. NICA conducted its review of the instant

claim and retained as its m edical experts,

Paul R. Carney, M.D. [ , a pediatric

neurologist,] and Donald C. Willis, M.D.

[, a physician board - certified in maternal -

fetal medicine], to opine whether an injury

occurred in the course of labor, delivery or

resuscitation in the immediate postdelivery

period in a hospital due to oxygen

deprivation or mechanical injury which

renders the child permanently and

substantially mentally and physically

impaired.

c. After conducting the review of the

medical records, Dr. Willis opined that,

"There was no apparent obstetrical event

that would have been expected to result in

loss of oxygen and brain injury to the

child." Further, Dr. Carney, upon

examination of the child [ , at age 10 -

months,] and the pertinent medical records,

opined that, "Developm entally, he is

currently on track. He at this time is not

noted to suffer permanent substantial mental

or physical impairment. "

d. Further, Dr. Carney, after examining the

child and reviewing the pertinent records,

stated, "At this time, the child does have a

need for occupational and physical therapy

given very subtle issues noted on his motor

exam. It is felt that this patient has a

very favorable prognosis but he will require

ongoing therapy for this time." As pointed

out by Dr. Carney in his said R eport, the

child is meeting his developmental

milestones such as rolling over, sitting up

unassisted, crawling, pulling himself up to

stand and walking while holding onto

furniture.

e. Based primarily on Dr. Carney's

opinions, together with the availab le

medical records, the parties hereby agree

and stipulate that the instant claim is not

compensable as the injury does not meet the

definition of a "birth - related neurological

injury" as defined in Section 766.302(2),

Florida Statutes, which specifically

requires that the injury render "the infant

permanently and substantially mentally and

physically impaired." §766.302(3), Florida

Statutes.

2. The parties' stipulation is consistent with the record,

which demonstrates that Noah is neither substantially mentally

nor substantially physically impaired. Consequently, for

reasons appearing more fully in the Conclusions of Law, the

claim is not compensable , and it is unnecessary to resolve the

etiology of Noah's impairments.

CONCLUSIONS OF LAW

3. The Div ision of Administrative Hearings has

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

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

4. 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.

5. The injured "infant, her or his personal

representative, pa rents, 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 Neurologic al 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 inju ry is a birth - related

neurological injury." § 766.305(4), Fla. Stat.

6. 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

approv ed by the administrative law judge to whom the claim has

been assigned. § 766.305(7), Fla. Stat. However, if a dispute

exists, it 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.

7. 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 i njury. 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 permanentl y

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

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 that

obstetrical services were deliv ered by a participating physician

at birth." § 766.31(1), Fla. Stat.

8. 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 gra ms 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

postdeli very 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.

9. Here, the record demonstrated that Noah was not

"permanently and substantially mentally and physically

impaired." Consequently, Noah does not qualify for coverage

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

Birth - Related Neurological Inju ry 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 a substantial mental and physical

impairment.); Humana of Florida, In c. 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).

10. Where, as here, the administrative law judge

determines that "the injury alleged is not a birth - related

neurological injury . . . he [i s 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 that the claim for compensation filed by Ted Murto

and Molly Peri, on behalf of and as parents and natural

guardians of Noah Murt o, a minor, is dismissed with prejudice.

DONE AND ORDERED this 25th day of June, 2007 , in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto B uilding

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 25th day of June , 2007 .

ENDNOTE

1/ Con sistent with Section 766.305(2), Florida Statutes, DOAH

also served the physician (Edwin Bruce Hayes, M.D.) named in the

petition as having provided obstetrical services at Noah's

birth, as well as the hospital (Holmes Regional Medical Center)

named in the petition as the facility at which Noah's birth

occurred. To date, neither the physician nor the hospital has

requested leave to intervene or otherwise sought leave to

participate in these proceedings.

COPIES FURNISHED :

(Via Certified Mail)

David R. Be st, Esquire

Best & Anderson, P.A.

Bank of America Center

390 North Orange Avenue, Suite 1875

Orlando, Florida 32801

(Certified Mail No. 7099 3400 0010 4399 2420)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7099 3400 0010 4399 2413)

Edwin Bruce Hayes, M.D.

1314 Pine Street

Melbourne, Florida 32901

(Certified Mail No. 7099 3400 0010 4399 2406)

Holmes Regional Medica l Center

1350 Hickory Street

Melbourne, Florida 32901 - 3278

(Certified Mail No. 7099 3400 0010 4399 2390)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3 275

(Certified Mail No. 7099 3400 0010 4399 2383)

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 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, wi th 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.