07-005822N John And Mariana Prisco, On Behalf Of And As Parents And Natural Guardians Of Victor Prisco, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, August 19, 2008.

Summary: Indisputably, the infant`s neurologic impairments were not birth-related. The Association`s motion for summary final order of dismissal is granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN AND MARIANA PRISCO, ON )

BEHALF OF AND AS PARENTS AND )

NATURAL GUARDIANS OF VICTOR )

PRISCO, A MINOR, )

)

Petitioners, )

)

vs. ) Case No. 07-5822N

)

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

)

Respondent, )

)

and )

)

ANNETTE LAUBSCHER, M.D. andST. )

VINCENT'S MEDICAL CENTER, INC., )

)

Intervenors. )

)

FINAL SUMMARY ORDER

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

Summary Final Order, served July 22, 2008.

STATEMENT OF THE CASE

1. On December 31, 2007, John and Mariana Prisco, on

behalf of and as parents and natural guardians of Victor Prisco

(Victor), 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 January 2, 2008, and on June 20, 2008, 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 Victor 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, Annette Laubscher, M.D., and St. Vincent's Medical

Center, Inc., were granted leave to intervene.

3. By Notice of Hearing dated July 23, 2008, a hearing was

scheduled for November 17, 2008, to resolve the issue of

compensability. However, on July 22, 2008, NICA served, and on

July 23, 2008, filed, a Motion for Summary Final Order, pursuant

to Section 120.57(1)(h), Florida Statutes. 1 The predicate for

the motion was NICA's contention that while Victor's neurologic

presentation reveals evidence of substantial mental and physical

impairment, his impairments were not the consequence 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 a hospital," as required for coverage under the Plan.

§ 766.302(2), Fla. Stat. See also §§ 766.309(1) and 766.31(1),

Fla. Stat.

4. Attached to NICA's motion was an affidavit of Raymond

Fernandez, M.D., a pediatric neurologist, who evaluated Victor

on May 21, 2008. Based on that evaluation, as well as a review

of Victor's medical records and those of his mother,

Dr. Fernandez concluded, within a reasonable degree of medical

probability, that Victor's neurologic problems were not birth-

related. Dr. Fernandez's conclusions were documented in his

affidavit, as follows:

4. I evaluated VICTOR PRISCO on May 21,

2008. A true and accurate copy of my

neurology evaluation is attached hereto as

Exhibit 1. All of the statements and

opinions expressed therein are true and

correct based upon my review of the records,

the history taken, and my opinions from the

evaluation of the minor child.

5. It is my opinion that VICTOR PRISCO

suffers from a pervasive neurobehavioral

syndrome suggestive of autistic spectrum

disorder. There has been fluctuation in

speech and motor development skills, but

probably no true regression over time.

There is historical and clinical evidence

for substantial mental and physical

impairment, and while he will probably

improve over time, I suspect he will always

be substantially impaired. Etiology is not

clear, but we do not have any evidence for

Victor's impairment to be the result of a

neurological injury due to oxygen

deprivation or mechanical injury during

labor and delivery. He required only

routine care after delivery and was admitted

to the regular nursery. He was discharged

routinely on day 2 of life (except for mild

elevation of bilirubin), so that there is no

possibility of acute neurological injury of

any type during labor and delivery.

6. As such, it is my opinion that VICTOR

PRISCO was not permanently and substantially

mentally impaired nor was he permanently and

substantially physically impaired due to

oxygen deprivation or mechanical injury

occurring during the course of labor,

delivery or the immediate post-delivery

period in the hospital during the birth of

VICTOR PRISCO. (Emphasis deleted).

5. 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 of Victor and

his mother, and concluded, within a reasonable degree of medical

probability, that Victor did not suffer brain damage as a result

of oxygen deprivation or mechanical injury occurring in the

course of labor, delivery, or resuscitation in the immediate

postdelivery period in the hospital. Dr. Willis' conclusions

were documented in his affidavit, as follows:

3. The Florida Birth-Related Neurological

Injury Compensation Association retained me

as its expert in maternal-fetal medicine to

review the medical records from both VICTOR

PRISCO and his mother, MARIANA PRISCO. The

purpose of my review of the medical records

of VICTOR PRISCO and MARIANA PRISCO was to

determine whether an injury occurred in the

course of labor, delivery or resuscitation

in the immediate post-delivery period in the

Hospital due to oxygen deprivation or

mechanical injury occurring in the course of

labor, delivery, or resuscitation in the

immediate post-delivery period in the

Hospital.

* * *

5. It is my opinion that labor, delivery

and newborn hospital course were apparently

uncomplicated. There was no apparent

obstetrical event that resulted in loss of

oxygen to the fetus during labor and

delivery. The delivery was by spontaneous

vaginal birth. Birth weight was 3071 grams

(6 lbs 12 ozs). The baby was not depressed

at birth. Apgar scores were 8/9. No

resuscitation was required. The newborn

hospital course was normal and discharge[]

occurred on day two of life. There was no

apparent obstetrical event that resulted in

loss of oxygen or mechanical trauma to the

baby's brain during delivery or the

immediate post-delivery period.

6. As such, it is my opinion that there was

no oxygen deprivation or mechanical injury

occurring in the course of labor, delivery

or resuscitation in the immediate post-

delivery in the Hospital. Further, in that

there was no oxygen deprivation or

mechanical injury occurring in the course of

labor, delivery or resuscitation in the

immediate post-delivery period in the

Hospital, then accordingly, there was no

causal event which would have rendered

VICTOR PRISCO permanently and substantially

mentally and physically impaired as a result

of same. (Emphasis deleted).

6. Neither Petitioners nor Intervenors responded to the

Motion for Summary Final Order. Therefore, on August 5, 2008,

an Order to Show Cause was entered, as follows:

On July 22, 2008, Respondent served a Motion

for Summary Final Order. To date, neither

Petitioners nor Intervenors have responded

to the motion. Fla. Admin. Code R. 28-

106.204(4). Accordingly, it is

ORDERED that by August 15, 2008, Petitioners

and Intervenors show good cause in writing,

if any they can, why the relief requested by

Respondent should not be granted.

7. On August 11, 2008, Petitioners filed their Response to

Order to Show Cause, and stated:

The premise of this NICA claim is based on

mechanical injury sustained during the birth

process. In this case, mechanical injury is

defined as any physical or chemical action

taken to affect the course of labor

induction. An over dosage of the labor

inducing drug Pitocin falls into this

category. It can be shown in the birth

records that an excessive amount of Pitocin

(defined as an amount greater than the

manufacturer's recommended dosage) was

administered for a period of time exceeding

7 hours. Also, the intrauterine catheter

was placed after the recommended dosage was

already exceeded.

* * *

It remains our position on this matter that

the birth process caused our son's current

condition. We respectfully request the

Motion for Summary Final Order be denied so

we may properly prepare for hearing.

Attached to the response were several documents, described as

follows: A "Pitocin Administration Sheet from Monarch

Pharmaceuticals," a "Pitocin MSDS Safety Sheet," and a "Labor

Flow summary sheet (derived from birth records)." Notably, the

response was not verified, and the documents attached to the

response were not sworn to, certified, authenticated, or

otherwise shown to be competent proof. Intervenors did not

respond to the Order to Show Cause. Consequently, neither

Petitioners nor Intervenors offered evidence, by affidavit or

otherwise, to generate a genuine issue of material fact. See

Bifulco v. State Farm Mutual Automobile Insurance Co. , 693 So.

2d 707 (Fla. 4th DCA 1997)(The documents attached to the motion

for summary judgment could not be considered since they 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 were not otherwise

admissable.); Lenhal Realty, Inc. vansamerica Commercial

Financial Corp. , 615 So. 2d 207, 209 (Fla. 4th DCA 1993)("[A]n

affidavit in support of a motion for summary judgment is

defective if it fails to be made on personal knowledge, set

forth facts that would be admissible in evidence, and

affirmatively show that the affiant is competent to testify as

to the matters stated in the affidavit."); 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."). Therefore, NICA's Motion

for Summary Final Order is well-founded. Turner Produce

Company, Inc. v. Lake Shore Growers Cooperative Association , 217

So. 2d 856, 861 (Fla. 4th DCA 1969)(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.").

Accord , Roberts v. Stokley , 388 So. 2d 1267 (Fla. 2d DCA 1980);

Perry v. Langstaff , 383 So. 2d 1104 (Fla. 5th DCA 1980).

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

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

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

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. Here, indisputably, Victor's neurologic impairments

were not the consequence 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 a hospital." Consequently,

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

Victor 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).

15. 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 John and

Mariana Prisco, on behalf of and as parents and natural

guardians of Victor Prisco, a minor, be and the same is

dismissed with prejudice.

It is further ORDERED that the hearing scheduled for

November 17, 2008, is cancelled.

DONE AND ORDERED this 19th day of August, 2008, 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] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of August, 2008.

ENDNOTE

1/ 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 . . . .

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 0380)

Victor Prisco

Mariana Prisco

11910 Swooping Willow Road

Jacksonville, Florida 32223

(Certified Mail No. 7007 2680 0000 9309 0397)

S. Scott Ross, Esquire

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

50 North Laura Street, Suite 2700

Jacksonville, Florida 32202

(Certified Mail No. 7007 2680 0000 9309 0403)

Brian D. Stokes, Esquire

Unger, Stokes, Acree, Gilbert,

Tressler & Tacktill, P.L.

Amherst Building

3203 Lawton Road, Suite 200

Orlando, Florida 32803

(Certified Mail No. 7007 2680 0000 9309 0410)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

(Certified Mail No. 7007 2680 0000 9309 0427)

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 0434)

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.