08-001066N Erica Wright And Karl Washington, On Behalf Of And As Parents And Natural Guardians Of Taylor Allen, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, July 7, 2008.

Summary: Infant`s injury, a right Erb`s Palsy, was caused by an injury to the right brachial plexus, not the brain or spinal cord, and she was not substantially mentally and physically impaired. Respondent`s Motion for Summary Final Order granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERICA WRIGHT AND KARL )

WASHINGTON, ON BEHALF OF AND AS )

PARENTS AND NATURAL GUARDIANS )

OF TAYLOR ALLEN, A MINOR, )

)

Petitioners, )

)

vs. ) Case No. 08-1066N

)

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

)

Respondent. )

)

FINAL SUMMARY ORDER

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

Summary Final Order, served June 6, 2008.

STATEMENT OF THE CASE

1. On February 28, 2008, Erica Wright and Karl Washington,

on behalf of and as parents and natural guardians of

Taylor Allen (Taylor), 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 February 29, 2008, and on May 13, 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 Taylor 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.

3. By Notice of Hearing dated May 28, 2008, a hearing was

scheduled for September 8, 2008, to resolve the issue of

compensability. However, on July 6, 2008, NICA served the

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

motion was NICA's contention that, indisputably, Taylor's

neurologic impairment, a right Erb's palsy, was caused by an

injury to the right brachial plexis, not the brain or spinal

cord, and that while such injury may have resulted in some

physical limitations in the right upper extremity, Taylor's

neurologic functioning, mental and physical, was otherwise fully

preserved.

4. Attached to NICA's Motion for Summary Final Order was

an affidavit of Michael Duchowny, M.D., a pediatric neurologist

associated with Miami Children's Hospital, who evaluated Taylor

on April 23, 2008. Based on that evaluation, as well as the

medical records, Dr. Duchowny concluded, within a reasonable

degree of medical probability, that Taylor did not suffer an

injury to the central nervous system, commonly known to refer to

that part of the nervous system consisting of the brain and

spinal cord, 2 and that whatever the etiology of Taylor's

impairment, she was neither permanently and substantially

mentally nor permanently and substantially physically impaired.

Dr. Duchowny's observations and conclusions were documented in

his written report of April 23, 2008, as follows:

I evaluated Taylor Allen on April 23, 2008.

The evaluation was performed in my office at

Miami Children's Hospital. Taylor, age 19

months, was brought by her mother, Ms. Erica

Wright who supplied historical information

to supplement medical records.

MEDICAL HISTORY: Taylor is now age 19

months and "does not have full strength of

her right arm." Her mother believes that

"everything ends up in her left hand" and

that Taylor "doesn't break her fall with her

right arm." Taylor's right arm weakness was

discovered at birth but she has made steady

improvement. She attends physical and

occupational therapy provided at Tallahassee

Memorial Rehab. Taylor attends therapy

twice per month and is winding down from a

more active therapy program. Taylor is

followed by Dr. Ayala in Tallahassee. At

approximately age one year nerve conduction

velocity studies and an EMG were performed.

The results are not available but based on

the results Taylor was referred to Dr.

Pinkus at Shands Hospital for further

treatment of her weakness. She was

diagnosed with Erb's palsy and a shoulder

MRI at Shands apparently demonstrated "nerve

damage." Surgery was contemplated but not

performed.

Taylor's left arm and her legs are

completely normal. Her right arm moves well

for most activities but her mother is

concerned that it is not as strong as the

left. Taylor's vision and hearing are good

and she sleeps through the night. There are

no problems with appetite. She is on no

medications and has never had seizures. Her

past medical history is significant for

gastroesophageal reflux disease in the first

year of life treated with Zantac.

PRE- AND PERINATAL HISTORY: Taylor was the

product of a term pregnancy born at

Tallahassee Memorial Hospital. She was

delivered vaginally. The procedure was

complicated by a shoulder dystocia and a

right Erb's palsy was diagnosed in the

neonatal period. Taylor weighed 7 pounds 9

ounces at birth and was given blow-by

oxygen. She remained in the nursery for six

days for treatment of infection.

FAMILY HISTORY: Taylor's mother and father

are both 34 years old. Taylor has a 13-

year-old sister who is a 7th grade Honor

Student. The parents are not married and

live apart. The mother was adopted and

there is no information regarding her

biological background. On Taylor's father's

side, there is no history of mental

retardation, cerebral palsy, epilepsy or

paralysis.

GROWTH AND DEVELOPMENT: All of Taylor's

milestones have been on time. She walked at

8-9 months and spoke words at age one year.

She is not toilet trained.

Taylor is fully immunized and has no known

drug allergies. She has never been

hospitalized or undergone surgery.

PHYSICAL EXAMINATION reveals an alert,

extremely sociable and active 19-month-old

infant. Taylor weighs 24 pounds. The skin

is warm and moist. There are no

neurocutaneous stigmata or dysmorphic

features. The spine is straight without

dysraphism. There are no cranial or facial

anomalies or asymmetries. The head

circumference measures 46.2 centimeters,

which is within standard percentiles for

age. The fontanels are closed. The neck is

supple without masses, thyromegaly or

adenopathy. The cardiovascular,

respiratory, and abdominal examination are

unremarkable.

Taylor's NEUROLOGICAL EXAMINATION reveals

her to be alert and socially integrated.

She responds well to the evaluation and is

quite playful. She is interactive and will

pass objects back and forth. She frequently

smiles and shows a well-developed level of

curiosity. She speaks in single words.

There is an age appropriate stream of

attention. Her activity level is

appropriate. Cranial nerve examination

reveals full visual fields by confrontation

testing. The pupils are 3 mm and react

briskly to direct and consensually presented

light. The extraocular movements are full

and conjugate. Funduscopic examination

demonstrates well-demarcated disc margins

with normal color. There are no abnormal

retinal findings. There are no significant

facial asymmetries. The uvula is midline.

The pharyngeal folds are symmetric. The

tongue movements are normal. Motor

examination demonstrates an asymmetry of the

upper extremities. There is an asymmetric

downward slope to the right shoulder

compared to the left and the scapula shows a

very slight winging. The right biceps

muscle appeared somewhat more muscular than

the left. There is full range of motion at

all joints. Taylor is able to elevate both

arms well above neutrality and can raise the

right arm over her head. She is able to put

the right arm out laterally but has

difficulty bringing it behind her back.

Distal muscle strength is good and Taylor

demonstrates well-developed bimanual

dexterity. She demonstrates a left hand

preference. She will grab a cube with the

right thumb and finger and transfer it to

her left hand to build a tower. She can

pronate and supinate without difficulty.

There are no abnormalities of the left arm

or lower extremities. Deep tendon reflexes

are 2 in the lower extremities but

demonstrate an asymmetry at the biceps being

1 on the left and trace on the right.

Triceps reflexes are trace bilaterally and

the brachioradialis reflex is 1

bilaterally. There are no pathological

reflexes. Sensory examination reveals a

suspected hypoesthesia to pinprick over the

right arm in a C5 and C6 cutaneous

distribution. The stance is appropriately

narrow and the gait is stable. There is

symmetric arm swing. Neurovascular

examination reveals no cervical, cranial or

ocular bruits and no temperature or pulse

asymmetries.

In SUMMARY, Taylor's neurological

examination reveals evidence of mild right

Erb's palsy. She has done quite well and

has shown good recovery which I believe will

continue in the future. Her neurological

impairment now is minimal and despite her

mother's concern, I believe that she is

functioning at a high level.

I have had an opportunity to review medical

records sent on March 24, 2008. The record

review together with today's evaluation

indicate that Taylor's neurological problems

are limited to the right brachial plexis and

do not include injury to the central nervous

system. I therefore do not believe that she

is compensable under the NICA statute.

Dr. Duchowny's affidavit summarized his conclusions, as follows:

5. It is my opinion that TAYLOR ALLEN

suffers from neither a substantial mental

nor motor impairment originating within the

central nervous system. Rather, her

neurologic impairment originates in the

right brachial plexis and constitutes a

peripheral nerve injury. She has a right

Erb's Palsy. She has done quite well and

has shown good recovery which I believe will

continue in the future. Her neurological

impairment now is minimal and despite her

mother's concern, I believe she is

functioning at a high level. TAYLOR's

neurological problems are limited to the

right brachial plexis and do not include

injury to the central nervous system. I

therefore do not believe that she is

compensable under the NICA statute.

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

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

fetal medicine. Based on Dr. Willis' evaluation of the medical

records, he concluded, within a reasonable degree of medical

probability, that Taylor did not suffer an injury to the brain

or spinal cord due to oxygen deprivation or mechanical injury

during labor and delivery. Dr. Willis' observations and

conclusions were documented in his written report of March 31,

2008, as follows:

I have reviewed the medical records for the

above individual. The mother, Erica Wright,

was a 32 year old G3 P1011 admitted to the

hospital at 39 weeks in labor. Prenatal

record is not available for review. Fetal

heart rate monitoring strip during labor is

also not available for review.

Delivery was complicated by a mild shoulder

dystocia and a nuchal cord. Birth weight

was 3,435 grams or 7 lbs 9 ozs. Apgar

scores were 5/9. Umbilical artery pH was

7.189. Blow by O2 was given for three

minutes after birth. The NICU nursery was

called at twelve minutes after birth. When

they arrived, the baby was pink and crying.

No resuscitation was required. The baby

left the delivery room with the mother and

Labor and Delivery staff. A weakness in the

right ar[m] was noted, consistent with an

Erb's palsy. The newborn hospital course

was otherwise uncomplicated.

Although delivery was complicated by a mild

shoulder dystocia, there are no findings to

suggest brain or spinal cord damage due to

oxygen deprivation or mechanical trauma

during labor or delivery . . . .

Dr. Willis' affidavit summarized his conclusions, as follows:

5. It is my opinion that although delivery

was complicated by a mild shoulder dystocia,

there are no findings to suggest brain or

spinal cord damage due to oxygen deprivation

or mechanical trauma during labor or

delivery.

6. Petitioners did not respond to the Motion for Summary

Final Order. Therefore, on June 20, 2008, an Order to Show

Cause was entered, as follows:

On June 6, 2008, Respondent served a Motion

for Summary Final Order. To date,

Petitioners have not responded to the

motion. Fla. Admin. Code R. 28-106.204(4).

Accordingly, it is

ORDERED that by June 30, 2008, Petitioners

show good cause in writing, if any they can,

why the relief requested by Respondent

should not be granted.

Petitioners did not respond to the Order to Show Cause.

7. Given the record, it is indisputable that while Taylor

suffered a mechanical injury to her right brachial plexis during

the course of birth, with a resulting right Erb's Palsy, such

injury is unrelated to the brain or spinal cord, and that

regardless of the origin of her injury, Taylor is not

permanently and substantially mentally and physically impaired.

Consequently, NICA's Motion for Summary Final Order is well-

founded. 3

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. §§ 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.

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(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.

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, Taylor'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 her problems, Taylor is not permanently and

substantially mentally and physically impaired. Consequently,

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

Taylor 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.).

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 Erica Wright

and Karl Washington, on behalf of and as parents and natural

guardians of Taylor Allen, a minor, be and the same is dismissed

with prejudice.

It is further ORDERED that the hearing scheduled for

September 8, 2008, is cancelled.

DONE AND ORDERED this 7th day of July, 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 7th day of July, 2008.

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/ See "System," "central nervous," Dorland's Illustrated

Medical Dictionary, 28th Edition, 1994. See also "systems,"

"nervous," ("It comprises the central and peripheral nervous

systems: the former is composed of the brain and spinal cord,

and the latter includes all other neural elements."

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 0618)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

(Certified Mail No. 7007 2680 0000 9309 0625)

Phyllis M. Gillespie, Esquire

Gary, Williams, Finney, Lewis

Watson & Sperando, P.L.

221 Southeast Osceola Street

Stuart, Florida 34994

(Certified Mail No. 7007 2680 0000 9309 0649)

Alfredo Nova, M.D.

1405 Centerville Road, Suite 4000

Tallahassee, Florida 32308

(Certified Mail No. 7007 2680 0000 9309 0656)

Tallahassee Memorial Hospital

1300 Miccosukee Road

Tallahassee, Florida 32308

(Certified Mail No. 7007 2680 0000 9309 0663)

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 0632)

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.