07-003394N Richard Smith, Jr., And Rachel Smith As Parents Of Rory R. Smith, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, January 14, 2008.

Summary: Indisputably, the infant`s impairments were developmentally based and not birth-related. The Motion for Summary Final Order of Dismissal is granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD SMITH, JR., AND RACHEL )

SMITH AS PARENTS OF RORY R. )

SMITH, A MINOR, )

)

Petitioners, )

)

vs. ) Case No. 07-3394N

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

LAWNWOOD REGIONAL MEDICAL )

CENTER, INC., )

)

Intervenor. )

)

SUMMARY FINAL ORDER OF DISMISSAL

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

Summary Final Order, served November 30, 2007.

STATEMENT OF THE CASE

1. On July 23, 2007, Richard Smith, Jr., and Rachel Smith,

on behalf of and as parents and natural guardians of Rory R.

Smith (Rory), 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).

2. DOAH served the Florida Birth-Related Neurological

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

on July 23, 2007, and on November 6, 2007, following an

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

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

that Rory 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 of

compensability. Such a hearing was scheduled for March 27,

2008. However, on November 30, 2007, NICA served the subject

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

was NICA's contention that, indisputably, Rory's neurologic

problems were most likely developmentally based, as opposed to

birth-related, and that, regardless of the etiology of his

impairments, Rory was neither substantially mentally nor

substantially physically impaired.

3. Attached to NICA's motion was an affidavit of

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

Miami Children's Hospital, who evaluated Rory on October 24,

2007. 2 See , e.g. , Vero Beach Care Center v. Ricks , 476 So. 2d

262, 264 (Fla. 1st DCA 1985)("[L]ay testimony is legally

insufficient to support a finding of causation where the medical

condition involved is not readily observable."); Ackley v.

General Parcel Service , 646 So. 2d 242, 245 (Fla. 1st DCA

1994)("The determination of the cause of a non-observable

medical condition, such as a psychiatric illness, is essentially

a medical question."); Wausau Insurance Company v. Tillman , 765

So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical

conditions which the claimant alleged had resulted from the

workplace incident were not readily observable, he was obligated

to present expert medical evidence establishing that causal

connection."). Based on that evaluation, as well as a review of

Rory's medical records and those of his mother, Dr. Duchowny

concluded, within a reasonable degree of medical probability,

that Rory's neurological problems were likely developmentally

based, as opposed to birth-related and that Rory was neither

substantially mentally nor substantially physically impaired.

Dr. Duchowny's observations and conclusions were documented in

his written report, as follows:

I evaluated Rory Smith on October 24, 2007.

Rory was brought by both parents for

evaluation at my office at Miami Children's

Hospital. Both parents supplied historical

information.

MEDICAL HISTORY: Mr. and Mrs. Smith began

by explaining that Rory has longstanding

motor and visual problems. He came to

medical attention in the first months of

life when he presented with abnormal eye

movements and [was] diagnosed with

nystagmus. A brain MRI scan at age four

months at Palms West Hospital demonstrated

ex vacuo dilation of the left lateral

ventricle. Follow-up MRI at age nine months

at Miami Children's Hospital to evaluate his

brainstem and 2 more MRI scans at Palms West

and Arnold Palmer Hospital showed no change

in ventricular size. One study was

performed to rule out neuroblastoma. A CT

scan of the abdomen was reportedly negative.

Rory's visual impairment consists of

strabismus and severe nearsightedness, and

he lacks full depth perception. The parents

believe his visual problems may have

worsened slightly in the past few months.

Rory has been evaluated at the Bascom-Palmer

Eye institute and receives therapy through

the division of Blind Services.

Rory's motor development has been a further

source of concern. The parents indicated

that Rory has right-sided weakness and has

been diagnosed with "slight cerebral palsy."

Rory's right leg intermittently stiffens and

"gives out," particularly when he is tired.

Rory cannot run, climb stairs, or walk down

stairs. He intermittently circumducts his

right leg and slightly fists his right hand

with fatigue.

Rory received occupational and physical

therapy for the past 18 months. He receives

each twice weekly at the Advanced Motion

Therapy Center in Vero Beach.

Rory recently developed a head tilt to the

left when his eyes move to the right. He

has periodic side-to-side head movements and

occasional up and down movements. Father

commented that Rory has frequent tongue

thrusts with facial and mouth grimacing.

Rory has not had seizures but he "may go

into a daze" for 20-30 seconds. His eyes

appear fixated. These behaviors were noted

at age seven months. A sedated EEG study

was normal. Their frequency has declined in

recent months.

Rory's speech is well-developed and his

hearing is "heightened." He sleeps through

the night with occasional awakenings. His

appetite is stable. He is on no

medications.

PRE- AND PERINATAL HISTORY: Rory was the

product of a 42 week gestation born by

emergency cesarean at Lawnwood Regional

Hospital. He had a "double nuchal cord" and

was cyanotic. He remained at the Newborn

Intensive Care Unit for seven days. He was

treated for hypoglycemia. Apparently, the

nystagmus was not noted in the nursery and

was not picked up until age two months.

Rory weighed 7 pounds 4 ounces at birth.

GROWTH AND DEVELOPMENT: Rory rolled over at

nine months, sat at 11 months, stood at 14

months, and walked at age 15 months. He

began speaking single words at age 18

months. He is not yet toilet trained. Rory

is fully immunized and has no known drug

allergies. He has undergone urological

surgery for an undescended testicle.

FAMILY HISTORY: The father is 45 years old

and the mother is 39 years old. Both are

healthy, as is a 6-year-old brother. There

are no family members with degenerative

illnesses, mental retardation, movement

disorders, epilepsy or stroke.

Rory has been under the care of two

different pediatric neurologists. Dr. Barr

and Dr. Haleem. He has not been evaluated

by orthopedic surgery. There are no

prosthetic devices.

PHYSICAL EXAMINATION reveals an alert, well-

developed, pleasant and cooperative 2

year-old toddler. Rory weighs 35 pounds.

The hair is blond and of normal texture.

There are no neurocutaneous stigmata. The

spine is straight without dysraphism. There

are no cranial or facial anomalies or

asymmetries. The dentition is good. The

tongue is moist and papillated. The neck is

supple without masses, thyromegaly or

adenopathy. The cardiovascular,

respiratory, and abdominal examinations are

unremarkable. Peripheral pulses are 2 and

symmetric. There is a right lower extremity

clinodactyly.

NEUROLOGICAL EXAMINATION reveals Rory to be

alert, pleasant and cooperative. His head

circumference measures 48.7 centimeters.

The fontanels are closed. He maintains an

age appropriate stream of thought and

attention and has excellent expressive

language skills. He answered questions with

good verbal content and responded to

commands readily. There was a slight labial

dysarthria. Rory easily puts three and four

words together into short sentences.

Cranial nerve examination reveals prominent

oculomotor gaze palsy. Rory's eyes move

together in a conjugate fashion but he does

not fixate well nor can he follow

conjugately in response to directed

stimulation. He tends to look past targets

and his eyes will frequently deviate to the

right side. His head makes side-to-side

movements but he gives the impression of not

adequately maintaining visual fixation. I

could not detect horizontal or vertical jerk

nystagmus. The pupils are 3 mm and react

briskly to direct and consensually presented

light. Rory refused to allow me to do a

funduscopic examination. There are no

facial asymmetries. The uvula is midline.

The pharyngeal folds are symmetric. Motor

examination reveals generalized hypotonia of

all extremities. There is full range of

motion at all joints. There are no

fasciculations, adventitious movement, or

focal atrophy noted. I detected no

lateralized weakness. Rory's gait is

unstable due to ataxia but he did not fall.

In contrast, the outstretched hands are

postured in an age appropriate fashion.

Sensory examination is intact to withdrawal

of all extremities to stimulation. Deep

tendon reflexes are 2 and symmetric.

Plantar responses are equivocal.

Neurovascular examination reveals no

cervical, cranial or ocular bruits and no

temperature or pulse asymmetries.

In SUMMARY, Rory's neurological examination

reveals an oculomotor apraxia, hypotonia and

ataxia. Rory additionally demonstrates

right lower extremity clinodactyly. Rory's

neurological examination is most consistent

with a diagnosis of ataxic cerebral palsy

and congenital oculomotor gaze abnormality.

His MRI findings are most likely

developmentally based.

I have additionally reviewed medical records

that were sent to me on August 21, 2007.

The record review, together with the

findings on today's evaluation, are

incompatible with either a substantial

mental or motor impairment. Furthermore,

Rory's neurological problems were likely to

be acquired prenatally. For these reasons,

I do not believe that Rory is compensable

under the NICA statute . . . .

4. By letter of December 10, 2007, counsel for Petitioners

responded to NICA's Motion for Summary Final Order, as follows:

Dear Judge Kendrick:

We are in receipt of a copy of the

Respondent's Motion for Summary Final Order.

We respectfully request that the Motion be

scheduled for hearing and that we be

provided with your deadline for submission

of our opposition thereto and supporting

affidavits.

In response, by letter of December 17, 2007, counsel was advised

that:

In response to your letter of December 10,

2007, please note that responses to all

motions are normally due within 7 days of

service of a written motion (within 12 days

of service if the motion is mailed). Fla.

Admin. Code R. 28-106.204. However, I will

certainly honor your request for a hearing

on Respondent's motion and will consider any

written submissions filed before the

hearing. Please coordinate with opposing

counsel and schedule a telephone hearing to

address Respondent's motion for January 3,

4, 9, 10, or 11, 2008.

Oral argument was subsequently scheduled for, and held on

January 10, 2008.

5. Petitioners filed their Response to Motion for Summary

Final Order on January 9, 2008, to which they attached a number

of documents they assert relate to Rory's medical condition.

However, the response was not verified, and the documents

attached to the response were not sworn to or certified, were

not accompanied by an affidavit of the records custodian or

other proper person attesting to their authenticity or

correctness, and could not be considered. Bifulco v. State Farm

Mutual Automobile Insurance, Co. , 693 So. 2d 707 (Fla. 4th DCA

1997). Intervenor did not respond to the Motion for Summary

Final Order. Consequently, neither Petitioners nor Intervenor

offered evidence, by affidavit or otherwise, to generate a

genuine issue of material fact.

6. Given the record, it is undisputed that Rory's

neurologic problems are most likely developmentally based, as

opposed to birth-related, and that Rory 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. 3

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

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.

9. 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), 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(3), 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 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

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.

11. 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

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 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 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.

13. Here, indisputably, Rory's neurologic problems were

not "caused by an injury to the brain or spinal cord . . .

caused by oxygen deprivation or mechanical injury occurring in

the course of labor, delivery, or resuscitation" and, regardless

of the etiology of his problems, Rory is not permanently and

substantially mentally and physically impaired. Consequently,

given the provisions of Section 766.302(2), Florida Statutes,

Rory 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

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); Florida Birth-Related Neurological Injury

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

substantial mental and substantial physical impairment.).

14. 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 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

Richard Smith, Jr., and Rachel Smith, on behalf of and as

parents and natural guardians of Rory R. Smith, a minor, be and

the same is dismissed with prejudice.

It is further ORDERED that the hearing scheduled for

March 27, 2008, is cancelled.

DONE AND ORDERED this 14th day of January, 2008, 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 14th day of January, 2008.

ENDNOTES

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

Statutes, 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 the moving party is

entitled as a matter of law to the entry of

a final order . . . .

2/ Also attached to NICA's motion was an affidavit of Donald

Willis, M.D., an obstetrician, specializing in maternal-fetal

medicine, who reviewed the medical records related to Rory's

birth and concluded, within a reasonable degree of medical

certainty, that "[t]here was no apparent obstetrical event that

resulted in loss of oxygen during labor, delivery or the

immediate post delivery period." Dr. Willis did not otherwise

discuss or discount likely causes of Rory's neurologic problems.

3/ 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 unless the opposing

party comes forward with some evidence which will change the

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

fact. It is not sufficient for an opposing party merely to

assert that an issue does exist." Turner Produce Company, Inc.

v. Lake Shore Growers 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)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7007 2680 0000 9309 0809)

Evan I. Fetterman, Esquire

Fetterman & Associates

648 US Highway One

North Palm Beach, Florida 33408

(Certified Mail No. 7007 2680 0000 9309 0816)

Adam W. Rhys, Esquire

Wicker, Smith, O'Hara, McCoy & Ford, P.A.

Post Office Box 2508

West Palm Beach, Florida 33402

(Certified Mail No. 7007 2680 0000 9309 0823)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

(Certified Mail No. 7007 2680 0000 9309 0830)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7007 2680 0000 9309 0847)

Gerald A. Ross, DO

Coastal OBGYN Specialists

1850 Southwest Fountainview Boulevard

Suite 104

Port St. Lucie, Florida 34986

(Certified Mail No. 7007 2680 0000 9309 1004)

Lisa Mallard, ARNP

Coastal OBGYN Specialists

1850 Southwest Fountainview Boulevard

Suite 104

Port St. Lucie, Florida 34986

(Certified Mail No. 7007 2680 0000 9309 0861)

Lawnwood Regional Medical Center

1700 South 23rd Street

Fort Pierce, Florida 34950

(Certified Mail No. 7007 2680 0000 9309 0878)

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.