07-005364N Jennifer Baker And Michael Baker, On Behalf Of And As Parents And Natural Guardians Of Tyler Baker, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, February 3, 2009.

Summary: The cause of infant`s neurologic impairment was a developmental brain disorder, and not a birth-related neurological injury. The claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JENNIFER BAKER AND MICHAEL )

BAKER, ON BEHALF OF AND AS )

PARENTS AND NATURAL GUARDIANS )

OF TYLER BAKER, A MINOR, )

)

Petitioners, )

)

vs. ) Case No. 07-5364N

)

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

)

Respondent, )

)

and )

)

GALENCARE, INC., d/b/a BRANDON )

REGIONAL HOSPITAL, )

)

Intervenor. )

)

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 January 21, 2009, by video

teleconference, with sites in Tallahassee and Tampa, Florida.

APPEARANCES

For Petitioners: No appearance at hearing.

For Respondent: Robert J. Grace, Jr., Esquire

Stiles, Taylor & Grace, P.A.

Post Office Box 460

Tampa, Florida 33606

For Intervenor: Richard K. Bowers, Jr., Esquire

Banker, Lopez, Gassler, P.A.

501 East Kennedy Boulevard, Suite 1600

Tampa, Florida 33602

STATEMENT OF THE ISSUE

At issue is whether Tyler Baker, a minor, qualifies for

coverage under the Florida Birth-Related Neurological Injury

Compensation Plan (Plan).

PRELIMINARY STATEMENT

On November 21, 2007, Jennifer Baker and Michael Baker, on

behalf of, and as parents and natural guardians of Tyler Baker

(Tyler), 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 petition on

November 26, 2008, and on February 29, 2008, following a number

of extensions of time within which to do so, NICA responded to

the petition and gave notice that it was of the view that Tyler

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. In the interim,

Galencare, Inc., d/b/a Brandon Regional Hospital, was granted

leave to intervene.

At hearing, neither Petitioners nor anyone on their behalf

appeared, and no evidence was offered to support Petitioners'

claim. Respondent's Exhibit 1 (a composite of medical records),

Exhibit 2 (the deposition of Michael Duchowny, M.D.), and

Exhibit 3 (the deposition of Donald Willis, M.D.) were received

into evidence. However, Respondent's Exhibit 1 was hearsay, and

received in evidence subject to the limitations of Section

120.57(1)(c), Florida Statutes. No witnesses were called, and

no further exhibits were offered.

The parties were accorded 10 days from the date of the

hearing to file proposed orders. Respondent elected to file

such a proposal and it has been duly-considered.

FINDINGS OF FACT

1. As observed in the Preliminary Statement, neither

Petitioners nor anyone on their behalf appeared at hearing, and

no proof was offered to support their claim. In contrast, NICA

offered the testimony of Donald Willis, M.D., a physician board-

certified in obstetrics and gynecology, as well as maternal-

fetal medicine, and Michael Duchowny, M.D., a physician board-

certified in pediatrics; neurology, with special competence in

child neurology; and clinical neurophysiology.

2. Dr. Duchowny is a pediatric neurologist associated with

Miami Children's Hospital, who evaluated Tyler on January 16,

2008. Based on that evaluation, as well as his review of the

medical records associated with Tyler's birth and subsequent

development, Dr. Duchowny concluded that, although Tyler was

permanently and substantially mentally and physically impaired,

the cause of such impairment was likely a developmentally-based

brain abnormality, as opposed to a brain injury caused by oxygen

deprivation or mechanical injury during labor, delivery, or the

immediate postdelivery period. Dr. Duchowny offered the

following basis for his opinion:

A. That opinion is based on several

factors. If one looks through the records,

it's clear that when Tyler was born, he had

reasonably good Apgar Scores, and was

actually relatively stable at birth.

By that I mean, he didn't show evidence of

any respiratory embarrassment. He did not

require intubation and mechanical

ventilation, and he did not show evidence of

multi-system organ involvement of, for

example, the heart, the liver or kidneys, as

one would expect in a child who suffered

from hypoxic ischemic damage or mechanical

injury.

Furthermore, Tyler's normal MRI scans of the

brain argue strongly that there was no

damage due to mechanical injury or oxygen

deprivation at birth.

Q. And why is that, Dr. Duchowny?

A. If Tyler's neurological problems were

caused by lack of oxygen at birth, one would

expect to see changes on his MRI scan of the

brain. Particularly, one would expect to

see evidence of brain atrophy, enlargement

of the ventricles deep within the brain or

possibly abnormalities of white matter.

None of these findings are evident in

Tyler's MRI scan, suggesting that lack of

oxygen at birth is simply not a realistic

possibility.

(Respondent's Exhibit 2, pp. 14 and 15).

3. Similarly, Dr. Willis, based on his evaluation of the

medical records, concluded that Tyler did not suffer a brain

injury due to oxygen deprivation or mechanical injury occurring

during labor, delivery, or resuscitation. Dr. Willis based his

opinion on the fetal monitor strips, which did not reveal any

significant abnormalities that would be suggestive of fetal

distress; Tyler's Apgar score of 8 at five minutes, which was

normal; and Tyler's newborn course, which was uncomplicated.

4. The opinions of Doctors Duchowny and Willis were

rationally based, and not contradicted. Consequently, it must

be resolved that the cause of Tyler's neurologic impairments was

likely a developmental brain disorder, as opposed to a birth-

related brain injury. See 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.");

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 Tyler suffered a "birth-related

neurological injury," as required for coverage under the Plan.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

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

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

6. 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.

7. 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 within five years

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.

8. 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.

9. 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.

10. 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.

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

the Petitioners to demonstrate that Tyler suffered a "birth-

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

see also Balino v. Department of Health and Rehabilitative

Services , 348 So. 2d 349, 350 (Fla. 1st DCA 1977)("[T]he burden

of proof, apart from statute, is on the party asserting the

affirmative issue before an administrative tribunal.").

12. Here, the proof failed to demonstrate that Tyler's

impairments were, more likely than 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 in the immediate postdelivery period in a

hospital." Indeed, the more compelling proof established that

the cause of Tyler's neurologic impairment was a developmental

brain disorder, and not a birth-related brain injury.

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

Florida Statutes, Tyler does not qualify 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).

13. 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 Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by

Jennifer Baker and Michael Baker, on behalf of and as parents

and natural guardians of Tyler Baker, a minor, is dismissed with

prejudice.

DONE AND ORDERED this 3rd day of February, 2009, in

Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of February, 2009.

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. 7099 3400 0010 4404 3978)

Michael Baker

Jennifer Baker

1415 Hartsell Avenue

Lakeland, Florida 33803

(Certified Mail No. 7099 3400 0010 4404 3930)

Richard K. Bowers, Jr., Esquire

Banker, Lopez, Gassler, P.A.

501 East Kennedy Boulevard, Suite 1600

Tampa, Florida 33602

(Certified Mail No. 7099 3400 0010 4404 3589)

Robert J. Grace, Jr., Esquire

Stiles, Taylor & Grace, P.A.

Post Office Box 460

Tampa, Florida 33606

(Certified Mail No. 7099 3400 0010 4404 3572)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7099 3400 0010 4404 3565)

Urmila Patel, M.D.

Tampa Obstetrics

505 Oakfield Drive

Brandon, Florida 33511-6007

(Certified Mail No. 7099 3400 0010 4404 3558)

Brandon Regional Hospital

119 Oakfield Drive

Brandon, Florida 33511-6007

(Certified Mail No. 7099 3400 0010 4404 3923)

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.