08-006343N Lukas Moran, A Minor, By And Through His Parents And Natural Guardians, Joseph Moran And Candess Moran, And Joseph Moran And Candess Moran, Individually vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, October 28, 2009.

Summary: In utero or gestational problems of the child do not meet the statutory test of birth-related neurological injury. There was no oxygen deprivation or mechanical injury causation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUKAS MORAN, A MINOR, BY AND )

THROUGH HIS PARENTS AND NATURAL )

GUARDIANS, JOSEPH MORAN AND )

CANDESS MORAN, AND JOSEPH MORAN )

AND CANDESS MORAN, )

INDIVIDUALLY, )

)

Petitioners, )

)

vs. ) Case No. 08-6343N

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

WILLIAM T. JOYNER, M.D., AND )

WILLIAM T. JOYNER, M.D., P.A., )

)

Intervenors. )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's

Motion for Summary Final Order, served September 4, 2009.

STATEMENT OF THE CASE

1. On December 17, 2008, Lukas Moran (Lukas), a minor, by

and through his parents and natural guardians, Joseph Moran

(father) and Candess Moran (mother), and the parents

individually, filed a Petition (claim) with the Division of

Administrative Hearings (DOAH) for compensation under the

Florida Birth-Related Neurological Injury Compensation Plan

(Plan), for injuries allegedly associated with Lukas' birth on

February 21, 2007.

2. DOAH served the Florida Birth-Related Neurological

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

on December 18, 2008.

3. By Orders entered January 28, 2009, and January 29,

2009, respectively, Holy Cross Hospital and William T. Joyner,

M.D. and William T. Joyner, M.D., P.A., were granted status as

Respondent-Intervenors.

4. On August 3, 2009, following four extensions of time in

which to do so, NICA served its Response to the Petition and

gave notice that it was of the view that Lukas did not suffer "a

birth-related neurological injury" as defined in Section

766.302(2), Florida Statutes, which renders an infant

"permanently and substantially impaired," per Section

766.302(3), Florida Statutes. The Response requested that a

hearing be scheduled to resolve the issue of compensability.

Such a hearing was scheduled for December 2, 2009.

5. By an Order entered August 27, 2009, Holy Cross

Hospital's Motion to Withdraw as Respondent-Intervenor, filed

August 26, 2009, was granted.

6. On September 4, 2009, NICA served the subject Motion

for Summary Final Order. 1 The predicate for the Motion is NICA's

contention that, indisputably, Lukas' neurologic problems were

not birth-related, and that no obstetrical event resulted in a

loss of oxygen or mechanical trauma.

7. Attached to NICA's Motion was an affidavit of

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

with Miami Children's Hospital, who evaluated Lukas on July 20,

2009. 2 Based on that evaluation, as well as a review of Lukas'

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

within a reasonable degree of medical probability, that Lukas'

neurological problems were likely acquired during intrauterine

life as opposed to birth-related, as specifically set out in

Dr. Duchowny's written report, which states, in pertinent part:

I evaluated LUKAS MORAN on July 20, 2009.

He is a 26-month-old toddler who was brought

by both parents. They supplied historical

information.

* * *

PRE- AND PERINATAL HISTORY: Lukas was the

product of a probable term gestation given

his birth weight of 6 pounds 2 ounces. He

remained in hospital for 11 days, two of

which were on the ventilator. He was

discharged home on no medications. He never

experienced seizures.

GROWTH AND DEVELOPMENT: Lukas rolled over

at 13 months, sat at 13 months, and stood at

age two years. He is not toilet trained.

He does not communicate in words.

Lukas is fully immunized and has no known

drug allergies. He has never undergone

surgery.

PHYSICAL EXAMINATION reveals an

appropriately proportioned, well-developed

and well-nourished 2.4 year-old boy. His

weight is estimated at 30 pounds and he is

approximately 30 inches tall. The hair is

blond and of normal texture. There are no

neurocutaneous stigmata. He has a small

nevus flammeus in the posterior occipital

midline. The head circumference measures

46.8 centimeters, which falls just at the

2nd percentile for age. The fontanels are

closed. The spine is straight without

dysraphism. There are no digital, skeletal,

or palmar abnormalities. There are no

cranial or facial anomalies or asymmetries.

The neck is supple without masses,

thyromegaly or adenopathy. The

cardiovascular, respiratory, and abdominal

examinations are unremarkable.

NEUROLOGICAL EXAMINATION reveals Lukas to be

alert and cooperative. He did not speak in

single words at any time during the

examination. However, he understood simple

commands and was particularly oriented

toward his parents. He did not know body

parts. His parents stated that he could "do

animal sounds" but I did not hear clear

sounds approximating animals and most sounds

were repetitious. His attention span

appeared age-appropriate. He did not drool.

Cranial nerve examination reveals intact

visual fields to confrontation testing. He

seemed somewhat visually inattentive but was

able to track in the horizontal and vertical

planes in a conjugate fashion. The pupils

are 3 mm and react briskly to direct and

consensually presented light. The optic

discs appeared pale bilaterally. There are

no facial asymmetries. The uvula is midline

and the pharyngeal folds are symmetric.

Tongue movements are intact in all planes.

Motor examination reveals a complex pattern

of static hypotonia with dynamic

hypertonicity most pronounced in the lower

extremities. His most prominent involvement

is in the distal lower extremities, but his

ankles can be dorsiflexed to several degrees

above neutrality. There were no

fasciculations and no focal weakness or

atrophy. He is clearly able to stand and

bear weight but leans forward and will only

take six or eight steps before dropping to

his knees or collapsing into his parent's

waiting arms. Lukas does have a well-

developed pincher grasp and can grasp cubes

without difficulty. He could not build a

tower. He could transfer blocks to either

hand. Deep tendon reflexes are brisk at the

biceps and knees. Both plantar responses

are upgoing and there are Babinski attitudes

to his big toes. There is a borderline

crossed adductor response of the pelvic

girdle musculature. Sensory examination is

intact to withdrawal of all extremities to

stimulation. The neurovascular examination

reveals no cervical, cranial or ocular

bruits and no temperature or pulse

asymmetries. There is no evidence of

dysmetria or tremor.

In SUMMARY, Lukas' evaluation reveals

evidence of delayed motor and cognitive

development. By history, he has a cortical

visual impairment, although it was not clear

today that his vision is definitely

compromised despite clinical evidence of

optic nerve hypoplasia. He has a complex

pattern of muscle tone consisting of both

hypotonia and hypertonia together with

hyperreflexia and pathological reflexes.

I had an opportunity to review medical

records which were mailed to me on

January 12, 2009. They indicate that Lukas

was a small for gestational age infant. His

Apgar scores and first set of arterial blood

gases were within normal limits. His

postnatal course included ventilatory

support for two days and antibiotic

treatment for suspected sepsis. An MRI scan

performed on February 6, 2008 revealed

delayed myelination in the subcortical white

matter and corpus callosum with focal

encephalomalacia around the left frontal

horn and periventricular leukomalacia. An

EEG on March 19, 2008 was interpreted as

normal.

In summary, the findings on clinical

examination and a record review suggest that

Lukas' neurological problems, particularly

the optic nerve hypolasia, hypotonia and

delayed myelination on MRI were more likely

acquired during intrauterine life and not

from asphyxia or mechanical injury during

labor and delivery. I, therefore, do not

believe that Lukas is compensable within the

NICA program. (Emphasis supplied.)

8. Also attached to NICA's Motion was the affidavit and

report of Donald C. Willis, M.D., an obstetrician specializing

in maternal-fetal medicine, who reviewed the medical records

NICA had received from both Lukas and his mother. He concluded

within a reasonable degree of medical probability that:

* * *

In summary, this child was delivered

prematurely by elective repeat Cesarean

section. The fetal heart rate monitor

before birth did not suggest fetal distress

and the baby was not depressed at birth.

The newborn course was complicated by

respiratory distress related to prematurity.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the baby's brain. The patient was

not in labor. (Emphasis supplied.)

9. No party filed any timely response in opposition to the

Motion for Summary Final Order, as provided for in Florida

Administrative Code Rules 28-106.103 and 28-106.204, so on

September 18, 2009, the Administrative Law Judge then-assigned

to this cause entered an Order to Show Cause providing:

On September 4, 2009, Respondent served a

Motion for Summary Final Order. To date,

Petitioners and Intervenors have not

responded to the motion. Fla. Admin. Code

R. 28-106.103 and 28-106.204(4).

Nevertheless, and notwithstanding they have

been accorded the opportunity to do so, it

is

ORDERED that by September 30, 2009,

Petitioners and Intervenors show good cause

in writing, if any they can, why the relief

requested by Respondent should not be

granted.

10. On September 19, 2009, Petitioner filed a Response to

Motion for Summary Final Order Dated September 4, 2009, which

stated, in pertinent part:

* * *

Petitioners hereby declare that they have no

opposition to the entry of a Summary Final

Order in accordance with the Motion for

Summary Final Order filed by the FLORIDA

BIRTH-RELATED NEUROLOGICAL INJURY

COMPENSATION ASSOCIATION, dated September 4,

2009.

The Petitioners have no opposition to the

Argument set forth by the Florida Birth-

Related Neurological Injury Compensation

Association that the claim is not

compensable under the Plan as the statutory

requisites have not been met.

This Court [sic] should reflect in its

Summary Final order, pursuant to Sections

766.309 and 120.57(1)(h) of Florida

Statutes, that the subject claim is not

compensable in that the Petitioner, LUKAS

MORAN, a minor, does not qualify for

coverage under the plan as defined by

Florida Statute 766.302(2).

* * *

11. Petitioners' Response further states, "The Petitioners

have no objection to the ALJ resolving the issue of notice in

the Summary Final Order."

12. No other response to the September 18, 2009, Order has

been filed.

13. In light of there being no dispute on the issue of

non-compensability, it is not necessary for this Summary Final

Order to address any issue of notice.

14. Given the record, Petitioners' and Respondent's

concurrence, and the absence of any response in opposition from

Respondent-Intervenor William T. Joyner, M.D., and William T.

Joyner, M.D., P.A., it is undisputed that Lukas' neurological

problems most likely arose during intrauterine life, as opposed

to being birth-related. 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

15. The Division of Administrative Hearings has

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

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

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. Here, indisputably, Lukas' neurologic problems arose

in utero and 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." Consequently, given the provisions of Section

766.302(2), Florida Statutes, Lukas 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).

22. Where, as here, the administrative law judge

determines that ". . . the injury alleged is not a birth-related

neurological injury . . . she or he shall enter an order [to

such effect] and shall 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 Florida Birth-Related Neurological

Injury Compensation Association's Motion for Summary Final Order

is granted, and the Petition for Compensation filed by

Lukas Moran, by and through his parents and natural guardians

Joseph Moran and Candess Moran, and by the parents individually,

be and the same is dismissed with prejudice.

DONE AND ORDERED this 28th day of October, 2009, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

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 28th day of October, 2009.

ENDNOTES

1/ The Motion for Summary Final Order was filed with DOAH

September 8, 2009.

Section 120.57(1)(h), Florida Statutes (2008), 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. A summary final order shall

consist of findings of fact, if any,

conclusions of law, a disposition or

penalty, if applicable, and any other

information required by law to be contained

in the final order.

2/ See , e.g. , Vero Beach Care Center v. Ricks , 476 So. 2d 262,

264 (Fla. 1st DCA 1985)("Lay testimony is legally insufficient

to support a finding of causation where the medical condition

involved is not readily observable."); Ackley v. General Parcel

Services , 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.").

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 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. 91 7108 2133 3937 0540 2068)

Linda A. Alley, Esquire

Sheldon J. Schlesinger, P.A.

1212 Southeast Third Avenue

Fort Lauderdale, Florida 33316

(Certified Mail No. 91 7108 2133 3937 0540 2075)

Thomas C. Heath, Esquire

Heath & Carcioppolo, Chartered

888 Southeast Third Avenue, Suite 202

Fort Lauderdale, Florida 33316

(Certified Mail No. 91 7108 2133 3937 0540 2082)

Richard T. Woulfe, Esquire

Bunnell, Woulfe, Kirschbaum, Keller,

McIntyre & Gregoire, P.A.

100 Southeast 3rd Avenue, Suite 1000

Post Office Drawer 030340

Fort Lauderdale, Florida 33303-0340

(Certified Mail No. 91 7108 2133 3937 0540 2099)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

(Certified Mail No. 91 7108 2133 3937 0540 2105)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 91 7108 2133 3937 0540 2112)

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.