09-001581N Elisa Saladrigas, On Behalf Of And As Parent And Natural Guardian Of Javier Saladrigas, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, March 29, 2012.

Summary: Definition of compensability not met. Infant is not permanently and substantially physically impaired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELISA SALADRIGAS, on behalf of )

and as parent and natural )

guardian of JAVIER SALADRIGAS, )

a minor , )

)

Petitioner , )

)

vs. ) Case No. 09 - 1581N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent, )

)

and )

)

BAPTIST HOSPITAL OF MIAMI, )

INC., )

)

Intervenor . )

)

FINAL ORDER

Upon due notice, a final hearing was conducted by Ella Jane

P. Davis, an Administrative Law Judge (ALJ) of the Division of

Administrative Hearings (DOAH) on December 1 and 2 , 20 1 1 , by

video teleconference with sites in Miami and Tallahassee,

Florida.

APPEARANCES

For Petitioner: William G. Wolk, Esquire

Eaton and Wolk, PL

2 South Biscayne Boulevard, Suite 3100

Miami, Florida 33131

For Respondent: Michae l A. Kundid, Esquire

Doran, Sims, Wolfe, Ansay and Kundid

1020 West International Speedway Boulevard

Suite 100

Daytona Beach, Florida 32114

For Intervenor: Scott Edward S olomon, Esquire

Falk, Waas, Hernandez, Cortina,

Solomon & Bonner, P.A.

135 San Lorenzo Avenue , Suite 500

Coral Gables, Florida 33146

STATEMENT OF THE ISSUE

The issue in this case is w hether Javier Saladrigas, a

minor, qualifies for coverage under the Florida Birth - Related

Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On M arch 26, 2009, Petitioner, Elisa Saladrigas, on behalf

of and as parent and n atural guardian of Javier Saladrigas

(Javier), a minor, filed a petition (claim) with DOAH.

DOAH served Florida Birth - Related Neurological Injury

Compensation Association ( NICA ) on March 30, 2009 ; served

Baptist Hospital of Miami, Inc. , on March 31, 2009 ; and served

Dr. Thomas Dimino on or about January 4, 2010. These were the

only po tential intervenors named in the petition/claim.

By a Petition to Intervene, filed April 14, 2009, Baptist

Hospital of Miami, Inc., sought intervention and stated that it

believed that Dr. Maria V. Lopez - Beecham was the participating

physician who delivered obstetric services f or Elisa and

Javier Saladrigas .

Baptist Hospital of Miami , Inc. , was granted I ntervenor

status by an O rder entered April 22, 2009, but Pet itioner did

not move to amend the Petition to include Dr. Lopez - Be e cham , and

Dr. Lopez - Be e cham was not served with a copy of the Petition .

See § 766.305(2) , Fla. Stat.

At final hearing by video - teleconference between

Tallahassee and Miami , Florida , on December 1 - 2, 2011,

Petitioner presented the oral testimony of Daniel Castellanos,

M.D., Elisa Saladrigas, Ph . D., Nicholas Suite, M.D. , and

Kathleen Finneran. Respondent and Intervenors presented no oral

testimony. ALJ Exhibit - 1 (the Amended Joint Pr ehearing

Stipulat ion); Joint Exhi bits 1 - 24; Petitioner's Exhibit - 1 ( see

TR - 23) , and Petitioner's Exhibits 2 and 3 , were admitted in

evidence . 1 /

A Transcript was filed on December 22, 2011 . Fo llowing the

granting of two unopposed motions for extension s of time in

which to file proposed final orders, each party's proposal was

filed by February 9, 2012 . A ll proposals have been considered.

FINDINGS OF FACT

Threshold Facts

1. Notice has been waived and is not a contested issue

herein. (Stipulated) .

2 . Elisa Saladrigas is the mother and natural guardian of

Javier Saladrigas. (Stipulated) . She holds a doctorate in

psychology, and sometimes will be referred - to herein as

"Dr. Saladrigas."

3. Javier was born a live infant on December 14, 2006.

4. Javier weighed at least 2,500 grams at birth and was

the product of a single gestation . (Stipulated) .

5 . Ob stetrical services were delivered to Elisa Saladrigas

in connection with the delivery of Javier Saladrigas by NICA -

participating physicians in Baptist Hospital of Miami, Inc.

(Baptist Hospital) , which is a licensed hospital in Miami,

Florida. (Stipulated) .

The Timing of Javier's Injury

6 . On the date of Javier's birth, Elisa Saladrigas was a

37 - year - old G1 with an IVF pregnancy and history of

hypothyroidism .

7 . On December 14, 2006, at 3:16 p.m., Javier was

delivered , full term at 38 weeks and four days gestation , with

thick meconium - stained amniotic fluid , following a 15 - 1/2 hour

labor. During labor, Javier's fetal monitor strips showed

var iable decelerations that progressed to sever e decelerations

with loss of heart rate variability.

8 . Upon delivery, the umbilical cord was looped around

Javier's neck . He was floppy, tachypnic ( evidencing an

increased rate of respiration) , and grunting, with a weak

respiratory effort and in respiratory distress. He required

"vigorous resuscitation" in the delivery room in the form of b ag

and mask ventilation, oxygen support, oral suctioning, gastric

suctioning , tracheal suctioning, and vi gorous tactile

stimulation .

9 . Subsequent to such resuscitation in the delivery room,

Javier's Apgars were six at one minute, seven at five minutes,

and nine at ten minutes . These scores are within normal lim its .

1 0 . At 3:57 p.m., still requiring oxyge n support and

exhibiting low oxygen saturations, with a working diagnosis of

possible sepsis ( later confirmed by testing as Group B

streptococcus acquired from the mother during labor and/or

delivery ) , hypoglycemia , and respiratory distress, Javier was

transferred to Baptist Hospital's newborn nursery.

1 1 . It is significant that Javier's respiratory distress

continued even after h e a chieve d acceptable Apgar scores ,

because case law provides that the statutory peri od for

compensability may encompass an additional "extended period of

time when a baby is delivered in a life threatening condition "

only if " th e re are ongoing and continuous efforts of

resuscitation , " and that " both the incident of oxygen

deprivation and the brain injury resulting from the oxygen

deprivation must occur in this time period . " 2/

1 2 . N ewborn nursery examination notes indicate that at

4:30 p.m., Javier's overall status w as "critical , " with an

unstabl e respiratory rate and unstable blood pressure , and

describe his condition as "pale and tachypnic i n severe

respiratory distress . " Based upon the evidence as a whole,

particularly by comparison of this entry to other notations made

in the record at or about the same time , it is probable that

these notes were dictated earlier than 4:30 p.m. , and closer in

time to Javier's physical a dmission to the newborn nursery and

simply were not dictated or typed until 4:30 p.m.

1 3 . Due to Javier's on - going respiratory distress and

other indicators, Neonatologist Paul Fassbach, M.D. , transferred

Javier from the newborn unit to Baptist Hospital's Neonatal

Intensive Care Unit (NICU) for treatment of meconium aspiration

syndrome (MAS) . At 4:53 p.m. , Javier was admitted to the NICU

with worsening respiratory distress and poor oxygen saturations.

He was given increased respiratory support, including positive

pressure ventilation by NCPAP. Javier subsequently was

diagnosed with septicemia by group B streptococci (Group B strep

sepsis) ; respiratory distress ; and severe MAS , confirmed by X -

ray, showing diffuse pulmonary opacities throughout both lungs.

MAS occurs when a bab y inhal es his own feces which have been

expelled during labor and/or delivery . These feces are

extremely corrosive to the baby's lungs. 3/

1 4 . Javier continued to desaturate , despite con tinuous

resuscitative measures in the NICU, and at 8:52 p.m. , he was

intubated and placed on a ventilator. Umbilical arterial and

venous catheters were surgically inserted to enable closer

monitoring of his metabolic and respiratory condition.

1 5 . Javier was administered IV antibiotics for sepsis ,

glucose for hypoglycemia, nutriti onal support, dopamine,

dobutamine, and epinephrine for low blood pressure, and

surfactant medication to improve his lung function, but his

condition continued to deteriorate.

1 6 . At 7:21 a.m. , on December 15, 2006, Javier suffered

the first of two cardia c and respiratory arrests. At 9:04 a.m.,

December 15, 2006, he arrested a second time , while still being

assisted for the first arrest . All of the testifying physicians

who had an opinion on the subject agree that , more likely than

not, Javier's subseque ntly - diagnosed brain injury occurred at or

about the time of these two "codes" or that the brain injury

began to evolve at that point in time and worsened thereafter.

Resu s citation at th e point of the cardiac arrests took about 40

minutes .

1 7 . Umbilical artery cord blood gas is indicative of

whether or not there has been oxygen deprivation at birth, but

Javier's umbilical artery cord blood gas was n ever drawn.

Rather, a rterial blood gas drawn about four hours after birth,

via a heel pinprick, s howed a pH of 7.12, with a base excess of

minus 12.8, which is acidotic and indicative of some degree of

acidosis. When the baby coded approximately 18 hours after

birth, the pH was only 6. 78, with a base excess of minus 21 ,

which is profoundly acidotic . Together, the blood gases may be

read to indicate progressive oxygen deprivation preceding the

cardiac arrests .

1 8 . Petitioner presented the testimony of

Daniel Castellanos, M.D., a child and adult psychiatrist, who

did not opine on timing and causalit y of Javier's brain injury ,

and of Nicholas Suite, M.D., a neurologist. Intervenor

presented by deposition the testimony of Dr. William Rhine, a

neonatologist. Respondent NICA presented the testimony by

deposition of Dr. Charles Willis, a board - certified

obstetrician, with special competence in maternal - fetal

medicine, and of Dr. Michael Duchowny, a pediatric neurologist . 4/

19 . Neonatologist Rhine opined that hypoxia (a deficiency

of oxygen reaching the tissues of the body, including the brain)

resulted in the foregoing blood gas values, which were

profoundly acidotic. Obstetrician Willis testified much the

same. See infra .

2 0 . The greater weight of the credible medical evidence as

a whole, but most notably the testimony of Dr. Rhine, the only

neonatologist to testify, Dr. Willis, Dr. Michael Duchowny, a

board - certified pediatric neurologist retained by NICA, who

performed a "hands - on" neurological examination of Javier on

July 15, 2009, and Dr. Nicholas Suite, a neurologist appearing

for Petitioner, who examined Javier in September 2010, support a

finding that simultaneously or concurrently with the two cardiac

arrests in cl ose succession, Javier suffered loss of oxygen to

his brain, resulting in physical damage to his brain, which

damage subsequently became visible on MRI.

2 1 . That is not to say, however, that some brain damage

due to loss of oxygen did not occur during lab or and delivery

and/or during resuscitation in the delivery room, because the

various medical authorities concede that it takes only about six

minutes for such brain damage to occur, killing brain tissue.

2 2 . Most particularly, Dr. Duchowny's formal repo rt to

NICA read:

. . . The records provide evidence of

meconium aspiration syndrome and cardiac

arrest. As they both occurred in the

postnatal period, I believe they are the

consequence of factors operating during

labor and delivery.

2 3 . Dr. Willis coul d not quantify the degree of

respiratory distress at birth , and opined, without further

explanation, that although there may have been some oxygen

deprivation to the baby at birth, it did not appear sufficient

to meet the HIE standards for hypoxic brain in jury.

2 4 . Dr. Willis could not determine from the cold medical

records whether the baby had strep B pneumonia at birth, but he

acknowledged that there was as good a chance that the baby

acquired strep B and MAS during labor and birth as prior

thereto; tha t the baby had respiratory distress "at birth"; and

that upon delivery, the baby immediately required some type of

oxygen support . He further opined that if Javier did have strep

B, then that could result in an inflammatory response in the

lungs. The baby had respiratory distress at birth, which

Dr. Willis thought was most likely caused by MAS, both

irritating the lining of the lungs, and causing them to thicken

and create mechanical obstruction of oxygen exchange in the

lungs. He acknowledged that th e baby's respiratory status

deterior ated after the Apgars were recorded. He described the

baby 's condition on leaving the delivery room as only "improving

somewhat . "

2 5 . Dr. Willis testified, in pertinent part , as follows:

* * *

[ Dr. Willis ] A: . . . the baby went to the,

left the delivery room, improving somewhat,

but once the baby got to the nursery, began

having more respiratory distress, and then

was transferred to the neonatal intensive

care nursery . . . about five or six hours

after t he baby was born that they had to

intubate the baby because of worsening

respiratory distress.

* * *

[ Mr . Wolk ] Q: All right. And respiratory

distress worsens in the immediate post

delivery period even after the baby's

received supplemental oxygen and needed to

be bagged. Also correct?

A: Correct.

Q: The respiratory distress continues

worsening and the baby then needs to be

intubated at five hours after birth?

A: Yes.

Q: Okay. This continuum of respiratory

distress then continues. And I'm tra cking

the language on t h e first page of your

report, Doctor.

A: Uh - huh .

Q: So about 18 hours after birth the baby

codes in the NICU?

A: Correct.

Q: All right. All right. At this point

would you -- do you have an opinion as to

whether t he cause of the code was related to

group B -- more related to group B stress

[sic] or mec onium aspiration, or a

combination of the two?

A: You know, I don't know. I believe by

that time you're probably getting in more to

a neonatal expertise then [sic] a maternal

fetal medicine. I mean, I feel comfortable

with the immediate postdelivery period, but,

you know, hours into the nursery, I would

prefer the neonatologist comment about

that. [5/]

Q: All right. We've got this continuing of

worsening respiratory distress, starting

with birth and then continuing to the code

about 18 hours afterwards in the NICU,

correct?

A: Yes . [6/]

Q: All right. Basically the summary in

your report, baby requires CPR for 40

minutes and dev elops an anoxic brain injury

from the code, correct?

A. That's my assumption, yes.

Q. When you say that's your assumption,

what do you base that assumption on?

A: Well, you know, the baby had a -- an

ultrasound of the head done on the 15th, the

day a fter birth, which w ould be, you know,

after the code, and at that time they showed

a moderate amount of cerebral edema, and

that's often what we see as the earliest

ultrasound findings for hypoxic ischemic

brain injury, so --

Q: So more likely than not the edema show n

on the head ultrasound was the result of a

hypoxic brain injury?

A: Right. And since the baby coded and

required, you know, 40 minutes of CPR, it

would certainly make sense that if there's,

you know, brain injury, that it probably

occurr ed , most of it , during that time.

(Jt . Ex. 18, Willis Depo. p ages 19 - 22)

* * *

[ Mr. Solomon ] Q: Okay. Would you agree

with me that the passage of meconium and the

meconium aspiration was an event which

occurred sometime prior to the delivery of

Javi er . . . ?

* * *

A: . . . -- yes, it could occur at that

time, but also you can get aspiration of

meconium after the baby's born, when the

baby takes the first few breaths as well.

Q: Okay so it either occurred just prior to

delivery or in the immediate post delivery

period , c orrect?

A: Correct. (Jt. Ex. 18, Willis Depo.

p ages 27 - 28)

* * *

Q: Okay. Is this child hypoglycemic at

birth?

A: Yes. The baby did have hypoglyce mia,

had low platelet counts, ha d a lot of

problems, actually.

Q: And all of these conditions would have

existed at or around the time of birth,

correct?

A: Yes. (Jt. Ex. 18, Willis Depo. p age 29)

* * *

Q: I mean , did this child always r e quire

some type of respiratory support?

A: As far as I'm aware, yes. [7/] (Jt. Ex.

18, Willis Depo. p ages 30 - 31)

2 6 . After his two "heart attacks , " see Finding of Fact 1 6 ,

Javier was transferred to Miami Children's Hospital at

10:30 a.m. , on December 15, 2006, in critical condition with

unstable heart rate, respiratory rate, and blood pressure.

2 7 . Javier's admitting diagnoses at Miami Children's

Hospital included MAS , pulmonary hypertension, septic shock,

hypertension, thrombocytopenia, and the need for continuous

ventilator support.

2 8 . Javier was placed on extracorporeal membrane

oxygenation (ECMO) due to severe respiratory distress and

sepsis. ECMO is the equivalent of a heart/lung bypass machine

which breathes for the infant and oxygenates his blood. At this

point, ECMO "stabilize d" Javier, but that is because it breathed

for him.

29 . A brain ultrasound at Miami Children's Hospital at

1: 33 p.m. , on December 15, 20 0 6, rev ealed "moderate diffuse

brain edema." An EEG also showed abnormality. A brain

ultrasound performed on January 9, 2007, was abnormal and showed

signs of periventricular leukomalacia (PVL) within the brain's

left frontal white matter, indicative of dead brain tissue. On

February 14, 2007, a brain ultrasound showed a focal area of

echogen i city in the white matter o f Javier's brain. A CT scan

of Javier's brain on April 3, 2007, showed permanent areas of

calcification in the white matter of the left frontal lobe and

an area of increased density in the white matter adjacent to the

frontal horn of the left lateral ventricle .

3 0 . Encephalopathy and leukomalacia ( signs of permanent

brain injur y resulting from loss of oxygen ) were diagnosed o n

April 4, 2007, by Dr. William F. Carroll, a neonatologist at

M iami Children's H ospital . He noted that Javier was oxygen

depen dent and required oxygen via nasal cannula; was at risk for

developmental delay and required long term follow - up with

physical, occupational, and speech therapies as well as frequent

follow - up with the Early Intervention T eam and multiple

healthcare provid ers.

3 1 . A CT scan on April 3, 2007, showed that the cerebral

edema was largely resolved and that only a "tiny area of

increased density in white matter of the right frontal lobe

remained, and this tiny area might constitute an area of

calcification . " See Finding of Fact 3 6 .

3 2 . Javier remained at Miami Children's Hospital through

April 24, 2007, when he was discharged by Dr. Manuel Campos, a

neonatologist. When discharged, Javier had a doctor's

authorization for "medically necessary" skilled nursing for 24

hours per day for one month, then 12 hours per day for two

weeks . Th ereafter, he transitioned into family care. The

discharge diagnosis was thrombocytopenia, MAS, and pulmonary

hypertension. Javier also had failed his hearing screening.

However , a later test showed his hearing to be intact. See

Finding of Fact 3 6 .

3 3 . An MRI was recommended for further evaluation but was

not performed until four years later, when it showed p hysical

brain damage to Javier's hippocampus . See Finding of Fact 4 3 .

3 4 . Although Petitioner and Intervenor have argued that

oxygen deprivation to Javier's brain persisted through ECMO and

further into the postnatal period, no finding regarding that

period is necessary, because the greater weight of the competent

evi dence supports a finding that the injury to Javier's b rain

occurred during resuscitation in the immediate postdelivery

period in Baptist Hospital no later than when Javier "coded " due

to the cardiac arrests, and that the brain injury from oxygen

deprivation had occurred at least by that point in time.

Javier's Evaluations and Diagnoses

3 5 . Israel Alfonso, M.D., Director of Neonatal Neurology

at Miami Children's Hospital, followe d Javier's progress for

some time. His reports, stipulated in evidence, addressed

Javier's situation on April 30, 2007, July 23, 2007, March 24,

2008, and March 23, 2009.

3 6 . Dr. Alfonso's last narrative report, rendered when

Javier was 27 months of age, describes a CT brain scan on

April 3, 2007, showing a " [ t ] iny area of increased density in

the white matter of the left fronta l lobe that may represent an

area of calcification , " see Finding of Fact 3 1 ; a March 20,

2007, BAEP study, suggesting "normal precochlear and cochlear

functions as well as normal conduction through both peripheral

and central auditory pathways up to the level of the midbrain

bilaterally"; a March 27, 2007 , sacral ultrasound , showing a

normal spinal cord; a VEEG study on January 22, 2007,

represented as " N ormal , . . . events non - epileptic in nature , "

and a January 15, 2007, normal EEG. His report further stated ,

ASSESSMENT:

Neurological examination: minimal gross and

fine motor developmental delay an d

hypotonia.

IMPRESSION: static encephalopathy

temporally related perinatal problems by

history manifested by poor head growth

(following a trend), minimal hypotonicity

and feeding problems (improving). No

craniofacial disproportion .

3 7 anslated from "doctor - speak," the foregoing mean s

that the neurologist associated with Javier for the longest time

in a clinical setting, as opposed to a setting for litigation,

who also is the neurologist who has had the most "hands on"

association to date with Javier , diagnosed him at 27 months, as

having minimal gross and fine motor developmental delay ;

permanent but non - progressing and unchanging encephalopathy;

minimal loss of muscle tone ; poor head growth ; and feeding

problems.

3 8 . Dr. Duchowny, NICA's pediatric neurologist, perform ed

an independent medical examination of Javier on July 15, 2009 ,

when Javier was about 31 months old . Deposed on April 12, 2010,

Dr. Duchowny's ultimate opinion was that his examination of

Javier did not reveal evidence of a substantial motor (physical)

or mental impairment and consequently, Javier would not be

compensable under the NICA statute.

39 . That said, Dr. Duchowny acknowledged that Javier had

Attention Deficit Hyperactivity Disorder (ADHD), hypertonia and

some fine motor impairment and develo pmental delays. He also

noted that Javier's head was in the third deviation too small

for his body and that the fontenelles of his skull had closed,

and that as a result, Javier's brain would not grow as Javier

gr o w s physically. Dr. Duchowny did not view microcephaly as a

"physical impairment , " but as a "physical finding on

neurological examination," and testified that , in his view, "an

impairment would be some problem that prevents one from doing

things . " However , he also conceded that proba bly 90 percent of

microcephalics have a lower IQ than normocephalics; more often

than not, as they age, the majority of microcephalics have other

motor or developmental issues, compared with normocephalic

children; and for the majority of microcephalic chi ldren, these

motor or developmental issues are permanent .

4 0 . Dr. Roberto F. Lopez - Alberola, Assistant Professor and

Chief of the Section of Child Neurology, Pediatrics, at the

University of Miami's Miller School of Medicine, wrote (in

pertinent part) in a letter concerning his February 26, 2010 ,

assessment of Javier, when Javier was approximately three - and - a -

half years of age , that:

PHYSICAL EXAMINATION

VITAL SIGNS: . . . Head circumference of 46

cm, which is below the 2nd percentile.

GENERAL: Awake, alert, fidgety, and

hyperactive, yet very sociable and playful,

interactive both physically and verbally.

Well nourished. No dysmorphic features.

HEENT: Micro cephalic, atraumatic, p upils

eq ually round and reactive to light and

accommod ation. Extraocular movements were

full. Occasional eye blinking noted. No

craniofacial asymmetry.

CARDIOVASCULAR: Irregular rate and rhythm.

RESPIRATORY: Clear to auscultation.

ABDOMEN: No hepatosplenomegaly, soft and

depressible.

SKIN/EXTREMITIES: No rash or lesions. No

joint deformity or limb asymmetry. No hypo

or hyperpigmented skin areas.

NEUROLOGIC: Cranial nerves II through XII

grossly intact.

SENSORY: Romberg was negative. Deep tendon

reflexes symmetric.

MOTOR: Slightly decreased tone throughout.

Fair muscle bulk. No evidence of wasting or

atrophy. No pronator drift.

COORDINATION: No truncal titubation,

however, decreased balance and coordination

with slight dy s metria bilaterally.

GAIT: No ataxia .

ASSESSMENT :

In summary, Javier is a 3 - year - old young boy

with complicated birth history with known

developmental delay, making strides,

microcephaly, abnormal movements, which are

consistent with simple motor tics.

Interestingly today, the patient's mat ernal

grandfather accompanied mother and he also

has a longstanding history of simple motor

tics, which most likely then represent a

familial trait. Nonetheless , the EEG which

was ordered to rule out any epileptic

activity, although these movements are no t

epileptic in nature, the EEG is not normal

and do e s show epileptiform activity. . . .

it is questionable whether the patient's

microcephaly is acquired or if indeed was

congenital . In terms of the patient's

simple motor tic dis order, I have explained

to mother the natural history of tics and as

long as the tics are not bothering the

patient psychologically or emotionally or in

any physical form that treatment would be

deferred. In terms of the patient's

developmental delays, the patient most

certainly w ould benefit from continued

therapies including occupational and

physical therapy, as the p atient's

coordination and balan ce as well as muscle

tone are still impaired. I have also

recommended aqua therapy. In terms of the

patient's behavioral issues, I h ave

recommended behavioral therapy and at some

point if the patient's hyperactivity were to

become an issue interfering with his

behavior and his academic progress, would

then consider pharmacotherapy. . . .

(emphasis added).

4 1 . For purposes of assessing permanent impairments, the

foregoing record appears to state that Javier's head is too

small for his body , which may be a birth injury or congenital ,

and which is a condition that persisted at the date of final

hearing, as also di scussed by other physicians, including

Respondent's expert neurologist, Dr. Duchowny, see Finding s of

Fact 3 9 - 40 , that Javier has tics, which are as likely to be

congenital or hereditary as they are to be the result of brain

injury , and that are not epileptic in nature ; that Javier has

symmetrical and working limbs, muscles, and joints; and that he

is without ataxia , meaning that he has some ability to

coordinate body movements . Ataxia is sometimes associated with

walking or cerebral palsy . This rec ord also states that Javier

evidences dysmeteria ( an abnormal condition typically

characterized by overestimating or underestimating the range of

motion needed to place the limbs correctly during voluntary

movement); that some of his muscles are somewhat f laccid; that

he is without Romberg's sign 8 / ; and that his gait (walking) is

within normal limits. However, the record also states that upon

report by his mother, Javier has developmental delays.

4 2 . Dr. Suite, a neurologist, examined Javier on

September 17 , 2010, and testified on behalf of Petitioner. He

rendered a report of his examination, which, together with his

testimony , shows that Javier's affect was dull and slow; that he

had no history of epileptic seizures; that he could relate some

of his hist ory; and that his head circumference is

microcephalic. Contrary to a previous treating evaluation, see

Finding of Fact 3 7 , some limitation of Javier's lateral spine

and range of hip movement was found . Contrary to a previous

treating evaluation , see Finding of Fact 4 1 , Dr. Suite found a

positive Romberg sign and abnormal gait . He also diagnosed

developmental delay, attention deficit disorder, hypotonia, and

behavioral difficulties.

4 3 . On August 26, 2011, a brain MRI of Javier (age four

years, eigh t months) was done at Miami Children's Hospital. It

concluded:

1. Scattered foci of superatentorial

signal abnormality , likely areas of gliosis

or dys myelination, the result of a remote

insult .

2. Bilateral hippocampal atrophy, on

the left with associated sclerosis .

3. Tiny physiologic pineal cyst and

small choroidal fissure cyst.

4 4 . Dr. Castell a nos, a board - certified child and

adolescent psychiatrist , examined Javier at Dr. Saladrigas'

request on October 31, 2011 . He diagnosed Javier at

approximately five years old, with cerebral palsy, AD H D,

problems fulfilling activities of daily living (ADLs) ,

developmental problems related to personal hygiene, and

intermittent memory deficits currently manifesting as Javier

b eing unable to remember from day to day where his pull - ups are

stored; that he is supposed to place his school gear in his

"cubby"; and his being unable to remember where , within his

school , his "cubby" is located. 9 /

4 5 . Significantly, Dr . Castellanos predicted that Javier's

brain will not continue to grow, but the complexity of academic

tasks required of him will increase and his ability to cope will

diminish; he will become more frustrated; and in the future, he

will be even less able to perform acad emically than at the

present time. Ultimately, Dr. Castellanos deferred to

psychologists for testing IQ and to teachers to determine what

learning disabilities Javier may have .

The Extent of Javier's Mental and Physical Impairments

4 6 . Under the NICA Pla n, a "physical impairment" relates

to impairment of the infant's "motor abnormalities" or "physical

functions." "Mental impairment " also addresses functionality,

as opposed to mere diagnosis. However, under NICA, the

identification of a substantial menta l impairment may include

not only identifying significant cognitive deficiencies but can

include, in a proper case, additional circumstances such as

significant barriers to learning and social development. 10 /

4 7 . As his parent, Javier's mother is better positioned

than anyone else to observe Javier's day - to - day behavior. 11 / In

this case, Dr. Saladrigas is a licensed clinical psychologist,

and accordingly, despite the inherent natural bias of every

parent, her observations and impressions of Jav ier's functioning

are entitled to some greater weight than might ordinarily be

accorded a lay - parent. 12 /

4 8 . That said, Javier's mother's testimony contains

internal contradictions. O n the one hand, she testified that

she tested his IQ prior to his entering the academic year at St.

Thomas Parish School in August 2010, at about age three, and

found it to be in the normal range of IQ. On the other hand,

she states that s uch testing does not have much validity until a

child is six. She testified that Javier has never had an

independent IQ test , but that he had IQ testing by

K e tty Gonzalez , without any elaboration on what was determined .

Under these circumstances , the undersigned is left with a

perception of Javier's possessing a normal IQ at age three .

49 . Javier has epileptiform signals on various brain

examination, but he has never been diagnosed with epileptic

seizures . H is mother believes his tics and eye - rolling signal

seizures , but no physician or test has confirmed this

perception .

5 0 . Javier is bilingual in Spanish and English , because

his family speaks both languages. According to his mother,

Javier started to speak first words "possibly" before he was o ne

year old, and she considers that Javier met his normal

developmental milestone in this regard and later with regard to

when he first spoke in sentences.

5 1 . In the past, Dr. Saladrigas has been diligent in

seeking out and providing private occupational, speech, and

physical therap ies for Javier, but at the present time, he is in

an Exceptional Student Education ( ESE ) class in the public

school system, which can p rovide all these therapies . Even now ,

his mother prefers to pay for occupational therapy in the

private sector. She stated that at the present time, Javier's

speech and the production of his speech is quite good , and his

feeding problems have largely disappeared , so she has

temporarily discontinued private speech therapy .

5 2 . At the present time, Javier is physically able to walk

without assistance; to use the bathroom by himself , although he

wets the bed most nights ; to run around the playground when he

chooses to do so; and to swing on the swings without assistance.

He requires neither braces nor a wheelchair for ambulation.

His mother reported that h e started walking at thirteen months,

which she perceives is a normal age for that developmental

milestone.

5 3 . Dr. Castellanos observed that Javier talks a lot and

is clumsy with his drawing. He has diagnosed Javier has having

cerebral palsy, which is a physical or motor disability, arising

in Javier's damaged brain, as opposed to a mental dis ability,

but Dr. Castellano s agrees t hat Javier is very active and

without physical problems ambulating.

5 4 . Javier's mother also commented on Javier's "floppy"

aspect, that is, his mild hypotonia or muscle weakness, but she

admitted that there is not much Javier cannot now do from a

gross motor standpoint. Nonetheless, she perceives a difference

in the quality of Javier's gross motor functions in comparison

to those of her two - year - old son and her nephews of varying

ages.

5 5 . She described Javier's susceptibility to pneumonia due

to his lung damage from MAS, for which he has had 10

hospitalizations . He h as poor appetite and a general fraility

as a result of the lung damage. She use s a nebulizer with him

and a " Shake Vest " to break up the congestion in his lungs. He

use s oxygen when he travels.

5 6 . Next to his mother, Javier's teachers are probably

best - suited to describe how Javier functions daily and how he

learns. 13 /

5 7 . Javier has been placed in a succession of five pre -

schools where he has had little success and from which he was

either asked to leave as a result of behavioral problems or was

withdrawn by his mother because , according to her , the teachers

in those schools , who were not ESE - qualified , "complained" about

Javier's disruptive behaviors. Javier also ha d not been able to

interact successfully with the other "normal" children in any of

these locations .

5 8 . Dr. Saladrigas perceives Javier's socialization

problems as related to hyperactivity; as not honoring the

"personal space" boundaries required by other children; and as

his withdrawal from interaction with other children when he is

not successful socializing with them or getting their undivided

attention . Her perceptions in this regard were echoed by

Kitty Finner an, associate head of St. Thomas Parish School .

59 . Dr. Saladrigas placed Javier at St. Thomas Parish

School's summer camp in June 2010, when he was three - and - a - half

years old. She sought no special accommodation for him, and, in

fact, withheld from school/camp staff some information regarding

his difficulties in his prior pre - school environments , so that

he would not be pre - judged .

6 0 . Initially, in the first part of the June 2010 , summer

camp, experienced school staff viewed Javier as being in the

normal range for his development, b ased upon their observation

and conversation with him and his mother . After a period of

observing how Javier interacted with other children at camp,

they recognized that he had the types of behavioral, social, and

learning problems testified - to by his mot her and Ms. Finneran .

6 1 . Kathleen Finneran is the associate head of St. Thom a s

Parish School. She has been associated with St. Thomas for 43

years and has been an administrator there for 17 years.

6 2 . Ms. Finneran presided over the summer camp activities

when Javier was enrolled there in June 2010 and over the school

year that began in August 2010 . She describe d Javier as having

no focus; doing inappropriate things; invad ing others' personal

space; being unable to grasp "why" he was forbidden to " stomp "

repeatedly on a teacher's foot , and persisting in such behavior

despite being told not to do so . She described him as

retreating to the swings from other playground play when he

could not get other c hildren to focus on playing with him or

playing what he wanted them to play and as frightening the m.

6 3 . Javier's mother described Javier's home play then , a nd

at the present time , as being almost exclusively on the swings

or dressing up , pretending to be a fictional character, and

running around the house in costume . She maintained that he

could parallel play with toys, but could not play with toys

interactively with his brother or cousins. She indicated that

Javier's role - playing had ca rried over to his annoying other

visitors at Disney World when the family had gone there in the

summer of 2011 . On that trip, Javier imitated the cartoon

character actors by blowing kisses and asking other park

attendees to dance with him .

6 4 . Dr. Saladrigas, Ms. Finneran, and Dr. Castellanos

commented on Javier's propensity to constantly sing to himself.

His mother says he learns songs quickly.

6 5 . In August 2010, Javier began his three - year - old pre -

school program at St. Thomas. He was not able to function in a

regular class with two teachers and 15 other children. One

teacher had to be assigned to exclusively manage him.

Dr. Saladrigas was ultimately asked to remove Javier from St.

Thomas Parish School , which she did .

6 6 . Javier is currently enrolled in an " inclusive " ESE

program in the public school system. His mother is credible in

her assertion that he has not yet been classified as to type of

ESE student at this early grade level. However, so far, he

seems to be functioning adequately in an ESE "inclusionary"

class of 50 percent ESE students and 50 percent mainstream

students.

Analysis

6 7 . It is the child's ability to function mentally which

must control a determination of permanent and substantial mental

impairment or lack thereof. Javier has been diagnosed with

ADHD, developmental delays, dull affect, slow speech, problems

with ADLs, and memory deficits. Although he has been

unsuccessful to date in mainstream educational environments ,

such as St. Thomas Parish pre - school and camp and in what appear

to be other very informal pre - school environments, there are no

standardized IQ or other intellectual tests whereby his degree

of mental impair ment or ability to learn can be assessed . In a

proper case, proof that a child cannot learn once he is placed

in an accredited ESE class could support a finding of permanent

and substantial mental impairment, but there is no such proof

here , and NICA reas onably points out that Javier has made good

progress in private, one - on - one speech therapy , physical

therapy , and occupational therapy .

6 8 . Even so, t here can be no serious debate that Javier's

microcephalic head constitutes a permanent abnormal physical

condition, and that his closed fontenelles mean that his head

and his brain will not continue to grow , as he otherwise

physically grows and matures , or that he will have limited

intellectual functioning as a result . Th ese factors , together

with his failure to understand correction, his inability to

remember physical things and locations, his inability to

sequence tasks, and his failure to process memory , compel a

finding that Javier has , indeed, sustained a " permanent and

substantial mental impairment."

69 . However, the evidence falls short of establishing that

Javier has sustained a " permanent and substantial physical

impairment . "

7 0 . Petitioner assert s that because all of Javier's mental

impairments arise from the physical injury to his brain, which

injury is visible on MRI within the hippocampus, t h en it must

follow that he is permanently and substantially physically

impaired, as well as permanently and subs tantially mentally

impaired. This argument is not persuasive .

7 1 . T he language employed by the Legislature in enacting

s ection 766.302(2), recognizes a distinction between "injury"

and "impairment . " It provides compensation only for an " i njury

to the brain or spinal cord . . . caused by oxygen deprivation

or mechanical injury . . . which renders an infant permanently

and substantially mentally and physically impaired ."

Because of the clear language selected by the enactors, "injury"

and "impair ment" cannot mean the same thing. By statutory

context, the physical or mental "impairment" must come to pass

because of the brain or spinal cord "injury . " Moreover,

" i mpairment" has, throughout the history of the Act, been

equated with functional defect or loss of functionality . 14 /

7 2 . Javier has lung damage and significant recurrent

pneumonia, probably related to MAS and probably not related to

his brain injury in the statutory period, but his lung problems

have been considered as part of the sequelae of the brain injury

which occurred in the statutory period. E ven so , the treatments

Javier has undergone and the maturation process seem to have

lesse ned the physical problems with his lungs .

7 3 . Javier has cerebral palsy and mild, generalized

hypertonia (decreased muscle tone) directly related to his brain

injury in the statutory period. Yet, he can perform all of the

physical demands of daily living. H e has gross control of his

head and use of his hands , arms, and legs, with only some mild

l eg - shaking. His tics and the rolling back of his eyes may or

may not be congenital , but they are intermittant . H is fine

motor control development is stunted, but h e is able to sit

alone, stand alone, walk, run, swing, and play alone or with

others.

7 4 . Javier can see, hear, smell, and speak. There is no

evidence he has an impaired sense of touch.

7 5 . Javier met his early developmental milestones. There

is no evidence suggesting that he cannot be trained to feed and

groom himself, despite current personal hygiene issues. He is

toilet trained, except at night, and his medical records show

his amount and frequency of bedwettings do not amoun t to

eurinesis.

7 6 . On its own, this scenario does not amount to permanent

and substantial physical impai rment. The record also does not

support a finding that any or all of Javier's physical

impairments present significant barriers to learning and social

development.

CONCLUSIONS OF LAW

7 7 . The Division of Administrative Hearings has

jurisdiction of the parties and subject matter of this cause .

§§ 766.301 - 766.316, Fla. Stat.

7 8 . The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth - r elated neurological injury claims" relating to births

occurring after January 1, 1989. § 766.303(1), Fla. Stat.

79 . The injured infant, her or his personal

representative, parents, dependents, and next of kin, may seek

compensation under the plan by fil ing a claim for compensation

with the Division of Administrative Hearings. §§ 766.302(3),

766.303(2), and 766.305(1), Fla. Stat. The Florida Birth -

Related Neurological Injury Compensation Association, which

administers the Plan, has "45 days from the dat e of service of a

complete claim . . . in which to file a response to the petition

and submit relevant written information relating to the issue of

whether the injury is a birth - related neurological injury."

§ 766.305(4), Fla. Stat.

8 0 . If NICA determine s 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.

8 1 . In discharging this responsibility, the ALJ must make

the following determinations based upon all available evidence:

(a) Whether the injury claimed is a birth -

related neurological injury. If the

claimant has demon strated, 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.

766.302(2).

(b) Whether obstetrical services were

delivered by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

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 postdelivery

period in a hospital.

§ 766.309(1), Fla. Stat.

8 2 . An award may be sustained only if the ALJ 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.

8 3 . 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

m ultiple 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 an infa nt 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.

8 4 . Both the brain injury and the oxygen deprivati on that

renders the child permanently and substantially mentally and

physically impaired must occur during the statutory period. See

§ 766.302(2), Fla. Stat. See also Bennett v. St. Vincent's Med.

Ctr., Inc. , 71 So. 3d 828 (Fla. 2011); Nagy v. Fla. Birt h -

Related Neurological Injury Comp. Ass'n , 813 So. 2d 155 (Fla.

4th DCA 2002) . Cf. Orlando Reg . Healthcare Sys ., Inc. v. F l a.

Birth - Related Neurological Injury Comp. Ass'n , 997 So. 2d 426

(Fla. 5th DCA 2008).

8 5 . T he parties have stipul at ed that a physician

participating in NICA delivered services in the statutory

period , and given the evidence , it is not reasonably debatable

that Javier suffered oxygen deprivation to his brain in the

statutory period described in section 766.302(2). Still, the

ALJ must address whether or not that oxygen deprivation has

produced in Javier a permanent and substantial mental impairment

and a permanent and substantial physical impairment, inasmuch as

both are required to establish compensability. Fla. Birth -

Re lated Neurological Injury Comp. Ass'n. v. Fla. Div. of Admin.

Hearings , 686 So. 2d 1349, 1356 (Fla. 1997); Masterton v. Fla.

Birth - Related Neurological Injury Comp. Ass'n . Case 08 - 6032N

(Fla. DOAH FO Jan. 29, 2010) (Corrected Final Order).

8 6 . Herein, t h e proof fails to establish that the child,

Javier, has been rendered both permanently and substantially

mentally and physically impaired, so the rebuttable presumption

found at section 766.309(1)(a) has not arisen.

8 7 . As the proponent of the issue, the burden rested on

Petitioner to demonstrate that Javier suffered a "birth - related

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

Balino v. Dep't of Health and Rehab. Servs. , 348 So. 2d 349, 350

(Fla. 1st DCA 1997)("[T]he burden of proof, apart from statute,

is on the party asserting the affirmative of an issue before an

administrative tribunal.").

8 8 . T he proof clearly supported a finding of brain injury

by oxygen deprivation during the statutory period, and further

support ed a finding that Javier has sustained a permanent and

substantial mental impairment . However , the proof failed to

support a conclusion that, more likely than not, Javier has a

permanent and substantial physical impairment, irrespective of

the timing or cause of any such impairment. Consequently, given

the provisions of section 766.302(2), Javier does not qualify

for coverage under the NICA Plan. See also §§ 766.309(1) and

766.31(1), Fla. Stat. Humana of Fla., Inc. v. McKaughan , 652

So. 2d 852, 859 (Fla. 5th 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."), appr oved , Fla. Birth -

Related Neurological Injury Comp. Ass'n v. McKaughan , 668 So. 2d

974, 979 (Fla. 1996).

89 . Sadly, it must be acknowledged that Javier is not

"normal" in every respect, but the measure of an impairment

under the Plan is not how a normal c hild behaves or competes,

but rather, whether his mental and physical injuries are

"substantial," a benchmark far below the norm. 15 /

9 0 . The Legislature has expressed its intent in section

766.301(2), as follows:

It is the intent of the Legislature to

provide compensation, on a no - fault basis,

for a limited class of catastrophic injuries

that result in unusually high costs for

custodial care and rehabilitation. This

plan shall apply only to birth - related

neurological injuries. (emphasis added).

9 1 . Given the Legislature's intent to restrict no - fault

coverage under the Plan to "a limited class of catastrophic

injuries," it is concluded that the word "substantially," as

used in the statutory phrase "permanently and substantially

mentally and physically impaired," denotes a "catastrophic"

mental and physical injury, as opposed to one that might be

described as "mild" or "moderate."

9 2 . Applying the foregoing standards to the facts of this

case, it must be concluded that Javier is not permanently and

su bstantially physically impaired , and that he therefore has not

suffered a "birth - related neurological injury" as defined by

statute .

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the petition filed by Elisa Saladrigas, on

behalf of and as parent and natural guardian of

Javier Saladrigas, a minor, is dismissed with prejudice.

DONE AND ORDERED this 29th day of March , 2012 , 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

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of March , 2012 .

ENDNOTES

1/ There is some confusion on the "Index of Exhibits" page of

the Transcript, but the body of the Transcript is clear as to

the items admitted in evidence. ALJ Exhibit 1, the Amended

Joint Prehearing Stipulation , is attached to Volume I of the

Transcript. Exhibit P - 1 (photographs) was admitted at TR - 23 and

the two DVDs of Dr. William Rhine's deposition were both

inadvertently designated as "Joint Exhibit 21" and as "Joint

Exhibit 24 . " (There was no videotape of Dr. Rhine's

deposition.) The transcript of Dr. Rhine's deposition is

designated "Joint Exhibit 20 . "

2/ The Florida Supreme Court has ruled, ". . . [W]e hold that

in order for a 'b irth - related neurological injury' to occur, the

injury to the brain caused by oxygen deprivation, which renders

the infant permanently and substantially impaired, must occur

during labor, delivery or resuscitation in the immediate

postdelivery period. Tha t period does not encompass an

additional 'extended period of time when a baby is delivered in

a life - threatening condition' unless there are ongoing and

continuous efforts of resuscitation. Both the incident of

oxygen deprivation and the brain injury res ulting from the

oxygen deprivation must occur in this time period." Bennett v.

St. Vincent's Med . Ctr . , Inc. , 71 So. 3d 828, 847 (Fla. 2011).

3/ Although Respondent NICA suggests obliquely in its propos ed

final order that Javier's situation is not compensable because

of the MAS and strep B, this case bears an extremely close

resemblance to the situation found compensable in Orlando

Medical Healthcare System , Inc. v. Florida Birth - Related

Neurological Injury Compensation Ass ociation , 997 So. 2d 426

(Fla. 5th DCA 2008) . That case also involved MAS and resulting

oxygen deprivation first to the lungs , and consequently to the

brain. It is not lost on the undersigned that Dr. William Rhine

gave testimony in that case remarkably similar to the testimony

he has given in the instant case . S ee infra . The baby in that

case received NICA compensation , and the decision was commented

upon favorably in Bennett , above , n. 2 .

4 / It is noted that Dr. Rhine's and Dr. Willis' testimony

concerning causation and timing, was grounded solely upon the

cold medical records . None of the expert witnesses were

treating physicians and all became involved in the case after

the claim was filed.

5/ Obviously, Dr. Willis had some reservations as to whether or

not the "immediate postdelivery period" extended to this point.

6/ However, Dr. Willis acknowledge d early that there had been a

continuous and extended resuscitation in the immediate

postdelivery period .

7/ Ultimately, Dr. Willis acknowledged continuous and

uninterrupted resuscitation efforts and several points within

that continuous resuscitative period when oxygen deprivation

probably occurred.

8 / P resence of a "Romberg's sign" would signal an inability to

maintain balance while standing with feet together .

9 / Some of this information is obviously of the type "filtered"

by Javier's mother. Also, at one point, Dr. Castellanos

testified that he had consulted Javier's teacher (TR - 57) and at

another stated he had not contacted any of Javier's teachers.

(TR - 86) The undersigned takes this portion of his testimony to

simply mean that the Connors Parental Rating Scale which

Dr. Castellanos testified that he used to elicit information

from Javier's mother, as part of his evaluation of Javier, also

double - filtered the mother's understanding of what Javier's

teachers had told her about Javier. See Findings of Fact 5 7 - 6 7 .

1 0 / "Under the Plan, a 'birth - related neurological injury' is

an injury to the brain or sp inal cord of an infant caused by

oxygen deprivation or mechanical injury during labor or

delivery, which renders the infant both ' permanently and

substantially mentally and physically impaired. ' § 766.302(2),

Fla. Stat. (2005). . . . [ T ] he ALJ was requi red to determine

whether Sierra's [the child's] brain injury was the likely cause

of her current impairments and whether Sierra is substantially

and permanently physically and mentally impaired." Matteini v.

Fla. Birth - Related Neurological , 946 So. 2d 109 2 , 1094 (Fla. 5th

DCA 2006).

"Under the Plan, a 'physical impairment' relates to the infant's

impairment of his ' motor abnormalities or physical functions, '

which, along with the brain injury, significantly affects the

infant's mental capabilities so that the infant will not be able

to translate his cognitive capabilities into adequate learning

or social development in a normal manner." Id. at 1095. See

Fla. Birth - Related Neurological Injury Comp. Ass'n v. Fla Div.

of Admin. Hearings , 686 So. 2d 1349, 1356 (Fla. 1997) .

See Adventist Health Sys . /Sunbelt, Inc. v. Fla. Birth - Related

Neurological Injury Comp. Ass'n , 865 So. 2d 561 (Fla. 5th DCA

2004) , explaining that under the Plan, the identification of a

"substantial mental impairment" may include not only significant

cognitive deficiencies but can include, in a proper case,

additional circumstances such as significant barriers to

learning and socia l development.

1 1 / Adventist Health Sys . /Sunbelt, Inc. v. Fla. Birth - Related

Neurological Injury Comp. Ass'n , above , n.11.

1 2 / McNally v. Fla. Birth - Related Neurological Injury Comp.

Ass'n , Case 09 - 5623N (Fla. DOAH March 12, 2012)(Final Order).

1 3 / A dventist Health Sys . /Sunbelt, Inc. v. Fla. Birth - Related

Neurological Injury Comp. Ass'n , above , nn.11 and 12.

1 4 / In Matteini v. Fla. Birth - Related Neurological , n.11 , the

court held that existence of permanent brain injury or damage

alone, without demo nstrating both permanent and substantial

mental and physical impairment , was not sufficient to

demonstrate that the in fant suffered a birth - related

neurological injury as defined in section 766.302(2).

1 5 / See McNally v. Fla. Birth - Related Neurological Injury Comp.

Ass'n .

COPIES FURNISHED :

(Via Certified Mail

Scott Edward Solomon, Esquire

Falk, Waas, Hernandez, Cortina,

Solomon & Bonner, P.A.

135 San Lorenzo Avenue Suite 500

Coral Gables, Florida 33146

(Certified Mail No. 7011 1570 0001 1540 5574)

Michael A. Kundid, Esquire

Doran, Sims, Wolfe, Ansay and Kundid

1020 West International Speedway Boulevard

Suite 100

Daytona Beach, Florida 32114

(Certified Mail No. 7011 1570 0001 1540 5413)

William G. Wo lk, Esquire

Eaton and Wolk, PL

2 South Biscayne Boulevard, Suite 3100

Miami, Florida 33131

(Certified Mail No. 7011 1570 0001 1540 5240)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christop her Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0001 1540 5437)

Thomas Dimino, M.D.

9595 North Kendall Drive

Miami, Florida 33176

(Certified Mail No. 7011 1570 0001 1540 5444)

Amie Rice, Investigation Manager

Consumer Service s Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7011 1570 0001 1540 5451)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0001 1540 5468)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

by appeal to the District Court of Appeal pursuant to section

766.311(1) , Florida Statutes. Review proceedings are governed

by the Florida Rules of Appellate Procedure. Such proceedings

are commenced by filing the original notice of administrative

appeal with the agency clerk of the Division of Administrative

Hearings within 30 days of rendition of the order to be

reviewed, and a copy, accompanied by filing fees prescribed by

law, with the clerk of the appropriate District Court of Appeal.

See § 766.311(1), Fla. Stat., and Fla. Birth - Related

Neurological Injury Comp. Ass'n v. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).