08-004568N Gavin Kelly, A Minor, By And Through His Parents And Natural Guardians, Gillian Kelly And Kenneth Kelly, And Gillian Kelly And Kenneth Kelly, Individually vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, February 17, 2009.

Summary: Indisputably, the infant`s impairments were not birth-related, and regardless of the cause of his impairments he was not substantially mentally impaired. The Association`s motion for summary final order of dismissal is granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GAVIN KELLY, A MINOR, BY AND )

THROUGH HIS PARENTS AND NATURAL )

GUARDIANS, GILLIAN KELLY AND )

KENNETH KELLY, AND GILLIAN )

KELLY AND KENNETH KELLY, )

INDIVIDUALLY, )

)

Petitioners, )

)

vs. ) Case No. 08-4568N

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

PLANTATION GENERAL HOSPITAL )

LIMITED PARTNERSHIP, d/b/a )

PLANTATION GENERAL HOSPITAL, )

)

Intervenor. )

)

SUMMARY FINAL ORDER

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

Summary Final Order, served January 20, 2009.

STATEMENT OF THE CASE

1. On September 17, 2008, Gillian Kelly and Kenneth Kelly,

individually, and as parents and natural guardians of

Gavin Kelly (Gavin), a minor, filed a petition (claim) with the

Division of Administrative Hearings (DOAH), to resolve whether

the claim was compensable under the Florida Birth-Related

Neurological Injury Compensation Plan (Plan), and whether the

health care providers complied with the notice provisions of the

Plan.

2. DOAH served the Florida Birth-Related Neurological

Injury Compensation Association (NICA) with a copy of the

petition on September 18, 2008, and on December 22, 2008,

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 Gavin 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, Plantation General Hospital was

granted leave to intervene.

3. By Notice of Hearing dated January 13, 2009, a hearing

was scheduled for April 14, 2009, to resolve the issues of

compensability and notice. However, on January 20, 2009, NICA

served 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 Gavin's impairments were most likely

related to a brain injury that post-dated labor, delivery, and

the immediate postdelivery period, and, regardless of the

etiology of his impairments, Gavin was not permanently and

substantially mentally and physically impaired.

4. 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

Gavin's birth and concluded, within a reasonable degree of

medical probability, that Gavin's brain injury was not birth-

related. In reaching his conclusion, Dr. Willis observed that

the medical records revealed:

Fetal heart rate had a normal baseline and

was reactive during early labor. Some

variable decelerations occurred about ninety

minutes before delivery. Fetal tachycardia

of 170 to 180 bpm was present when the fetal

heart rate monitor was removed for delivery.

Cesarean section was done for fetal

tachycardia and arrest of decent. Birth

weight was 3,835 grams. Apgar scores were

9/9. The baby was not depressed at birth.

No resuscitation was required. The baby was

described as active, alert and cried

spontaneously at birth. Physical exam on

admission to the normal newborn nursery was

normal.

Two cyanotic episodes were observed at two

days of age. The baby was transferred to

the NICU for evaluation. Neurologic exam

was normal. Arterial blood gas was normal.

Condition on admission to the NICU was

described as vigorous, active and

responsive. Antibiotics were given.

Cultures were negative. Several episodes of

apnea and bradycardia were observed after

feedings. The baby did not have any

seizures. No etiology was identified for

the episodes and the baby was discharged

home on the 8th day of life.

MRI at six months of age showed extensive

cystic and degenerative changes throughout

the left hemisphere of the brain. The child

had clinical weakness on the right side.

Thrombophilia laboratory evaluation was

negative.

Consequently, Dr. Willis concluded:

. . . [T]his baby was not depressed at birth

and had an apparently normal newborn course

until the second day of life when two

cyanotic episodes were observed. MRI at six

months of age is consistent with a cerebral

vascular accident. However, there was no

obstetrical event that would suggest oxygen

deprivation or mechanical trauma to the

brain occurred during labor, delivery or the

immediate post delivery period.

5. Also attached to NICA's motion was an affidavit of

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

Miami Children's Hospital, who evaluated Gavin on December 3,

2008. Based on his evaluation, as well as his review of Gavin's

medical records and those of his mother, Dr. Duchowny also

concluded, within a reasonable degree of medical probability,

that Gavin's brain injury was not birth-related, and further

resolved that Gavin did not have a significant mental

impairment. Dr. Duchowny documented his findings and the basis

for his opinion, as follows:

PHYSICAL AND NEUROLOGICAL EXAMINATIONS today

reveal Gavin to be an alert and cooperative,

well-behaved, appropriately proportioned 22-

month-old infant. He sits quietly and

attentively in his father's lap. He

maintains an age appropriate stream of

attention and will answer questions with

appropriate responses. The skin is warm and

moist. There are no neurocutaneous

stigmata. There is one café au lait spot

over the left ankle. The head circumference

is asymmetric with left posterior

plagiocephaly. The fontanels are closed.

The head circumference measures 47.1

centimeters which is within standard

percentiles. The spine is straight without

dysraphism. The neck is supple without

masses, thyromegaly or adenopathy. There

are no significant facial asymmetries. If

anything, the left palpebral fissure is

slightly wider than the right. The tongue

movements are well coordinated. The uvula

is midline and the pharyngeal folds are

symmetric. There is no drooling. Motor

examination reveals a right upper extremity

monoparesis more prominent distally. Gavin

tends to grasp almost exclusively with his

left hand. I was able to get him to place

objects in his right hand but he would

readily transfer it to the left. He could

build a tower of five cubes with his left

hand and had a well-developed left pincher

grasp. He could not fully supinate the

right hand. There is no obvious muscle bulk

asymmetry of the arm or forearm. There is

full range of motion at all joints when

resistance is overcome. There are no

fasciculations, adventitious movements or

focal atrophy. The cranial nerve

examination reveals full visual fields to

direct confrontation testing. There are

full extraocular movements. The pupils are

3mm and react briskly to direct and

consensually presented light. The

funduscopic examination is unremarkable.

Gavin's speech showed significant dysarthria

but he could name animals, body parts, and

could count to five. His attention span was

appropriate for age. Sensory examination is

intact to withdrawal of all extremities to

stimulation. The deep tendon reflexes are

2 at the biceps and knee jerks. Plantar

responses are downgoing. His gait is stable

with diminished right arm swing. He could

elevate his left arm fully and could do so

with the right but the movement clearly

lagged the left side. Both arms were held

sideways without difficulty. Gavin could

get up from a sitting position on the floor

with reasonably good balance for age.

Neurovascular examination reveals no

cervical, cranial or ocular bruits and no

temperature or pulse asymmetries.

In SUMMARY, Gavin's neurological examination

reveals a right upper extremity monoparesis.

I could detect no involvement in the face or

lower extremities. His station and gait are

appropriate for age. His cognitive

development also appears to be proceeding

satisfactory. Gavin therefore does not have

a significant mental impairment at his

neurocognitive status is at age level.

I have reviewed medical records sent to me

on October 23, 2008. The records indicate

that Gavin suffered a stroke in the

distribution of the left middle cerebral

artery. His MRI scan of July 24, 2007

demonstrates cystic encephalomalacia in the

left cerebral hemisphere in this vascular

territory. Of note, placental pathology

demonstrated fibrinoid deposition and

microcalcifications suggesting placental

insufficiency in utero. Furthermore, a

laboratory workup disclosed a mutation in

the gene controlling methylene

tetrahydrofolate reductase. The biochemical

abnormality is a predisposing factor for

stroke and indicates that Gavin most likely

has a hereditary disorder.

I therefore do not believe that Gavin is

compensable under the NICA statute . . . .

6. Petitioners responded to the Motion for Summary Final

Order on January 30, 2009, and stated, "they have no opposition

to the entry of a Summary Final Order in accordance with the

Motion for Summary Final Order filed by [NICA]." However,

Intervenor did not respond to the motion. Accordingly, on

February 3, 2009, an Order to Show Cause was entered, which

provided:

ORDERED that Intervenor is accorded until

February 13, 2009, to file a response to

Respondent's Motion for Summary Final Order,

and show good cause in writing, if any it

can, why the relief requested by Respondent

should not be granted. Thereafter,

Respondent's Motion for Summary Final Order

will be addressed without further delay.

7. Intervenor filed a response to the Order to Show Cause

on February 6, 2009, and stated "Intervenor . . . takes no

position regarding the Respondent's pending Motion for Summary

Final Order."

8. Given the record, it is undisputed that Gavin's

impairments are not birth-related and, regardless of the

etiology of his impairments, Gavin is not substantially mentally

impaired. Consequently, NICA's Motion for Summary Final Order

is well-founded. 2

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

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

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

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. Here, indisputably, Gavin's neurologic impairments

were not "caused by an injury to the brain . . . caused by

oxygen deprivation or mechanical injury occurring in the course

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

etiology of his problems, Gavin is not permanently and

substantially mentally impaired. Consequently, given the

provisions of Section 766.302(2), Florida Statutes, Gavin 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.).

16. 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

Gillian Kelly and Kenneth Kelly, individually, and as parents

and natural guardians of Gavin Kelly, a minor, be and the same

is dismissed with prejudice.

It is further ORDERED that the hearing scheduled for

April 14, 2009, is cancelled.

DONE AND ORDERED this 17th 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 17th day of February, 2009.

ENDNOTES

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 . . . .

2/ 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 that 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. 7005 1820 0002 9840 5706)

Scott Newmark, Esquire

Sheldon J. Schlesinger, P.A.

1212 Southeast Third Avenue

Fort Lauderdale, Florida 33316

(Certified Mail No. 7005 1820 0002 9840 7700)

Carol J. Glasgow, Esquire

Billing, Cochran, Lyles, Mauro & Ramsey, P.A.

SunTrust Center, Sixth Floor

515 East Las Olas Boulevard

Fort Lauderdale, Florida 33301

(Certified Mail No. 7005 1820 0002 9840 7717)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

(Certified Mail No. 7099 3400 0010 4404 3916)

Mark S. Grenitz, M.D.

220 Southwest 84th Avenue, Suite 105

Plantation, Florida 33324

(Certified Mail No. 7099 3400 0010 4404 3909)

Plantation General Hospital

401 Northwest 42nd Avenue

Fort Lauderdale, Florida 33317

(Certified Mail No. 7099 3400 0010 4404 3893)

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 3886)

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.