09-005973N Leigha Myers And Curtis Myers, As Parents And Natural Guardians Of Jaden Myers, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, September 12, 2011.

Summary: Burden of proof of injury in statutory period and of permanent and substantial mental and physical injury not met.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEIGHA MYERS AND CURTIS MYERS, )

as parents and natural )

guardians of JADEN MYERS, a )

minor, )

)

Petitioners , )

)

vs. ) Case No. 09 - 5973N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent, )

)

and )

)

SOUTHERN BAPTIST HOSPITAL OF )

FLORIDA, INC., d/b/a BAPTIST )

MEDICAL CENTER, )

)

Intervenor . )

)

FINAL ORDER ON COMPENSABILITY

Pursuant to the parti es' s tipulation , this cause was

submitted to Ella J ane P. Davis, a n Administrative Law Judge of

the Division of Administrative Hearings , upon a stipulated

record.

APPEARANCES

For Petitioners: Ronald S. Gilbert, Esquire

Colling, G ilbert, Wright & Carter, LLC

801 North Orange Avenue, Suite 830

Orlando, Florida 32801

For Respondent: M. Mark Bajalia, Esquire

Brennan, Manna and Diamond

800 W est Monroe Street

Jacksonville, Florida 32202

For Intervenor: Earl E. Googe, Jr., Esquire

Smith, Hulsey & Busey

1800 Wachovia Bank Tower

225 Water Street

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether Jaden Myers qualifies for coverage under the

Florida Birth - Related Neurological Injury Compensation Plan

(Plan).

PRELIMINARY STATEMENT

On October 28, 2009, Leigha Myers and Cur tis Myers, as

parents and natural guardians of Jaden Myers (Jaden), a minor,

filed a petition (claim) with the Division of Administrative

Hearings (DOAH) entitled "Petition for Determination of

Compensability Pursuant to Florida Statutes Section 766.301 et

seq." The petition sought a determination of whether Jaden's

injuries are qualifying injuries under the Florida Birth - Related

Neurological Injury Compensation Association (NICA) plan.

DOAH served NICA with a copy of the claim on October 29,

2009; served Mitzi Brock, M.D., on November 2, 2009; and served

Baptist Medical Center on November 2, 2009.

On February 9, 2010, NICA filed its response to the

petition and gave notice that it was of the view that Jaden did

not suffer a "birth - related neurological inju ry," as defined by

s ection 766.302(2), Florida Statutes, and requested that a

hearing be scheduled to resolve whether the claim was

compensable. By Order entered August 5, 2010, Southern Baptist

Hospital, Inc., d/b/a Baptist Medical Center was granted lea ve

to intervene.

Thereafter, the parties pursued discovery, and the case was

twice scheduled for hearing and continued upon agreement of the

parties.

An Order entered June 1, 2011, granted the parties' Joint

Motion to Submit Stipulated Factual Record and W ritten Argument

in Lieu of a Contested Hearing . On August 5, 2011, a Joint

Prehearing Stipulation was filed. On August 8, 2011, a

Stipulated Record was transmitted to DOAH. On August 17, 2011,

an Amended Stipulated Record (a supplement by agreement of t he

parties) was transmitted to DOAH. 1/ Upon motion, and by Order

entered August 18, 2011, the parties were accorded until

August 26, 2011, to file their proposed final orders.

Only Respondent NICA filed a proposal , and that proposed

final order has been c onsidered.

FINDINGS OF FACT

1. Leigha Myers and Curtis Myers are the natural parents

and guardians of Jaden Myers, a minor. Jaden was born a live

infant on November 13, 2008, at Southern Baptist Hospital of

Florida, Inc., d/b/a Baptist Medical Center he reafter, Baptist

Medical Center , a licensed hospital located in Jacksonville,

Florida, and his birth weight was in excess of 2,500 grams.

2. The physician providing obstetrical services at the

time of Jaden's birth was Mitzi Brock, M.D. Dr. Brock was, at

all times material, a participating physician in the Florida

Birth - Related Neurological Injury Compensation Plan.

3. Notice is not a contested issue in this case.

4. Mrs. Myers ' prenatal course was complicated by

pregnancy - induced hypertension. She was admitted to Baptist

Medical Center on November 13, 2008, at 40 weeks' gestation, for

induction of labor.

5. Mrs. Myer s was admitted at 7:24 a.m., on November 13,

200 8 . Oxytocin (Pitocin) IV was started at 7:44 a.m. At

8:47 a.m., Mrs. Myers ' membranes were artificially ruptured by

Dr. Brock , and clear fluid was noted. A vaginal exam was

performed at 8:49 a.m., with findings indicat ing Mrs. Myers was

3 - 4 cm dilated; 60% effaced and at a - 2 station. Fetal movement

was reported and audible.

6. The same day, b etween 8:57 a.m., and 11:13 a.m., the

Pitocin dosage was increased from 6 mu/min to 14 mu/min. At

about 11:57 a.m., the infant had an episode of bradycardia. 2/ An

epidural bolus was administered at 12:07 p.m. (Noon).

7. A vaginal exam was perfor med at 12:17 p.m., with

findings indicating that Mrs. Myers was 4 cm dilated; 80%

effaced and at a - 2 station. At 1:36 p.m., an oxygen face mask

was started as a fetal intervention. Mrs. Myers ' labor

continued to progress , and a vaginal exam at 2:26 p.m. ,

indicated she was 4 - 5 cm dilated; 90% effaced and at a

station - 2.

8. A vaginal exam was performed at 3:15 p.m., indicating

that Mrs. Myers was 7 cm dilated; 90% effaced and at a - 2

station. At this time, Dr. Brock also reviewed the fetal

monitor st rips. At 4:17 p.m., a Foley catheter was placed in

preparation for a cesarean section. Another vaginal exam was

performed at 5:2 4 p.m., indicating the mother was 7 - 8 cm

dilated; 90% effaced and at a - 2 station.

9. Dr. Brock was at Mrs. Myers ' bedside an d performed

another vaginal exam at 7:09 p.m. This examination indicated

Mrs. Myers was 9 - 10 cm dilated and 100% effaced. At 7:29 p.m.,

Dr. Brock indicated that she would try to rotate the infant.

Mrs. Myers began to push, starting at 7:30 p.m., and con tinued

pushing with contractions until 8:30 p.m.

10. The fetal monitor strips reveal that the infant

experienced an episode of tachycardia 3/ between 7:50 p.m. and

7:53 p.m.

11. While Mrs. Myer s was pushing between 7:30 p.m., and

8:30 p.m., the Kiwi vac uum extractor was positioned and there

were four pop - offs at 8:01 p.m., 8:04 p.m., 8:10 p.m., and

8:21 p.m.

12. At 8:31 p.m., the baby's head was out. Supra pubic

pressure and the McRoberts maneuver were used, resulting in

delivery of Jaden Myers at 8:32 p.m. Delivery complications

included shoulder dystocia suprapubic pressure, McRoberts

maneuver and possible right clavicle fracture with limp right

arm. Jaden's Apgar 4/ scores were 1 at 1 minute; 3 at 5 minutes;

and 6 at 10 minutes. There was evidence of acidosis.

13. At 8:33 p.m., Jaden was bagged and masked. He was

transferred to NICU with oxygen bagging and masking in progress

at 8:41 p.m. He was admitted to NICU at 8:42 p.m., for neonatal

depression and was noted to be cyanotic, depressed, floppy and

flaccid in minimal respiratory distress. A subgaleal hemorrhage

was present, as was a denuded scalp lesion and vacuum mark.

Jaden had generalized decreased tone and activity. Delivery

complications included shoulder dystocia and deep variable

decel erations. At two minutes of age, Jaden was very pale,

receiving oxygen with bag mask with chest compressions at 45

seconds of age for initial heart rate of 40. Color improved

slightly , and his heart rate increased to 100. By five minutes

of age, Jaden h ad been intubated.

14. At 1 0:40 p.m., Jaden was approximately two hours old.

At that time, he was assessed as having a head circumference of

36 cm . H is scalp abrasions were covered with tegaderm , and Cool

Cap equipment was applied per protocol. At 11 :00 p.m., Jaden

had bicycling - like movements of his arms and legs, which did not

stop with touch. At 11:30 p.m., he was noted to have mild,

intermittent grunting. At 11:52 p.m., Phenobarbital was

administered for continuous movement of his arms and legs.

Jaden continued with bicycling movements of his arms and legs at

12:45 a.m., on November 14, 2008, and at 1:10 a.m., another dose

of Phenobarbital was administered. The medical record reflects

that there were no further bicycl ing movements after the sec ond

dose of Phenobarbital.

15. Jaden remained on the Cool Cap until November 17,

2008, when it was removed at 6:00 a.m., and he was rewarmed.

Scalp abrasions and weeping were noted. A CT scan performed on

November 17, 2008, at 12:44 p.m., identified ext ensive

cephalohematoma; trace amounts of hyperdense hemorrhage beneath

the left coronal suture; hyperdensity of the tentorium , which

could represent a trace amount of subdural hematoma;

obliteration of both external auditory canals, secondary to soft

tissu e swelling/hemorrhage with fluid in both ears.

16. According to the NICU Discharge Summary, Jaden's

hospital course from November 13, 2008, through November 26,

2008, was complicated by respiratory distress, metabolic

acidosis, hypoperfusion , disseminat ed intravascular coagulation,

thrombocytopenia, seizures, jaundice surveillance, renal

dysfunction, hyperglycemia, and hypocalcemia , all of which

subsequently resolved themselves prior to discharge. Upon

Jaden's discharge, diagnoses included anemia, neona tal

depression, subgaleal hemorrhage and fracture of the clavicle.

17. Nonetheless, d espite w hat on its face appears to be a

difficult delivery, Jaden's development has continued to improve

as he has grown. Jaden has been followed by Dr. Rodolfo Pena -

Ariet, a pediatrician with Northeast Florida Pediatric

Association, P.A., from November 29, 2008, to the present.

18. Jaden has been treated for normal childhood illnesses

and has met all of his development al milestones.

19. On January 4, 2009, David O . Childers , M.D. ,

University of Florida, Department of Pediatrics, Division of

Developmental Pediatrics, gave Jaden a newborn neurobiologic

risk score of " three, " whereby a score of greater than " six "

indicated the child was at risk. Jaden scored a "one" or

"normal" for sensory and behavioral response, axial tone,

extremity tone, deep tendon reflexes and primitive reflexes for

an overall combined score of " five. " A core of "five to eight"

indicates low risk. However, Dr. Childers diagnosed Jaden with

tor ticollis, 5 / recommended physical therapy and made a referral

to the Early Intervention Program for evaluation.

20. A referral was made on January 26, 2009, to "Early

Steps" for a development al evaluation. "Early Steps" is

Children's Medical Services ' Ear ly Intervention Program provided

by the Department of Pediatrics of the University of Florida ,

and sponsored by the Florida Department of Health. In addition ,

on March 19, 2009, Jaden's well - child visit at four months of

age indicated that he was doing we ll, being seen by

Dr. Childers, Early Steps , and Brooks Rehabilitation and that

his only problem was torticollis. According to his chart,

subsequent well - child visits with Dr. Pena - Ariet did not

identify any concerns for Jaden's growth and development.

21 . On February 12, 2009, Mr. and Mrs. Myers had concerns

regarding Jaden's motor development , and regarding the diagnosis

of torticollis , as well as concerns regarding his overall

development as might be observed by clinicians. During the

evaluation, Jade n was holding his head turned to the left, or

when his head was midline, it was flexed to his right shoulder.

His thumbs tended to be flexed into his palms. Jaden was

referred to Brooks Rehabilitation to work at being able to turn

his head in all directi ons when on his tummy , when on his back ,

or when he was held so that he could explore and interact with

toys and people in his everyday activities. The goal for

achieving these improvements was set variously at May 2009 and

August 2009 .

2 2 . Jaden recei ved physical therapy at Brooks

Rehabilitation, a provider of physical therapy, from March 12,

2009, until May 21, 2009 , for torticollis affecting his right

side. Jaden's evaluation on March 12, 2009 , found that he kept

his head rotated to the left side on "pull to sit" (head lag),

but that he was able to keep his head in line with his trunk

with no head lag. His head's range of motion in supine position

was limited to right rotation when turning his head to track

objects. Jaden also kept his head rotated to the left side when

holding his head midline with supported sitting. However,

p hysical therapist Shawn T. Hubbard noted in the Discharge

Summary dated May 27, 2009, that Jaden and his caregiver (mom)

had attended all sessions; that Ja d e n had shown an i mprovement

with his cervical range of motion, both actively and passively;

that he was able to sit supported for short periods of time with

good head control; and that he had completed his treatment

program. There have been no subsequent physical therapy

sessions .

2 3 . In his Follow - Up Neurodevelopment Assessment, dated

May 4, 2009, Dr. Childers indicated that at 5.75 months of age ,

Jaden was saying one word other than "mama" and "dada" ; was able

to support himself on his forearms in prone position and s upport

himself on his wrists in prone position ; and that Jaden had full

range of motion with his extremities. Also, Jaden's muscle

bulk, power and tone were age appropriate. His fine motor

skills, including grasp and release, finger opposition and

finger - to - nose skills were normal. Jaden's gross motor skills,

including gait and tandem gait were normal. " Sit - to - stand " was

normal . H is unipedal stand and single leg hop was normal .

Follow - up was recommended in one year.

2 4 . On August 10, 2009, Ellen Hop kins of the Northeastern

Early Steps Program indicated on the Individualized Family

Support Plan Periodic Review that Jaden had successfully reached

his outcome by being able to turn his head in all directions and

was now very mobile, crawling and pulling - up without any

difficulty. Jaden was subsequently released from physical

therapy because he had reached his goals. On February 12, 2010,

Jaden's file at Early Steps was placed on inactive status.

2 5 . On November 2, 2010, at age 23 months and 13 days,

Ja den was again assessed by Dr. Childers, using the Bayley

Scales of Infant and Toddler Development, Third Edition. Upon

cognitive testing, Jaden could discriminate between objects;

regard an object continuously for five seconds; show visual

preference; hab ituate to an object within 30 seconds; prefer to

look longer at a novel object; habituate to picture and prefer a

novel picture; take blocks out of a cup; engage in relational

play to self and others; had visual displacement; could attend

to a whole story; had pegboard series testing; object assembly;

picture matching; representational and imaginative play;

understand the concept of one; and engage in multi - scheme

combination play.

2 6 . Dr. Childers' testing further indicated that Jaden's

receptive language abilities included interaction with others;

that he could identify pictures and three items of clothing;

identify action pictures and five body parts; follow two - part

directions; understand the use of objects; and understand

pronouns. Regarding expressiv e language, Jaden was able to use

two words appropriately, use at least one word to make his wants

known; combine a word or gesture; name pictures; use eight words

appropriately; answer "yes" and "no" in response to questions;

imitate a two - word utterance; make a two - word and multiple word

utterance; and use pronouns.

2 7 . Jaden's fine motor skills at that time of testing with

Dr. Childers included: stacking a series of blocks; imitating

strokes with a crayon, horizontally and vertically; placing ten

pelle ts in a bottle within 60 seconds; transitional grasp with

crayon or pencil; placing three coins in a slot; taking blocks

apart; using his hand to hold paper in place while scribbling ;

and connecting a series of blocks. His gross motor skills

included the ability to: throw a small ball forward; squat

without support; stand up without support; walk up and down

stairs; walk backward and forward; run with good coordination;

balance on one foot, right and left; walk sideways; jump from

bottom step and kick a l arge ball.

2 8 . Respondent offered, via deposition, the findings and

expert opinion of Dr. Michael S. Duchowny, a board - certified

pediatric neurologist, who reviewed and analyzed Jaden's medical

records and who had personally performed an independent medic al

examination of Ja d e n on February 3, 2010, when Jaden was

fourteen months old.

2 9 . Dr. Duchowny did not believe that Jaden had any

permanent and substantial mental or physical impairments as of

the age of fourteen months. He further testified that at t he

time of his evaluation, Jaden's parents indicated that he had

met his age - appropriate developmental milestones. Based on

Dr. Duchowny's evaluation and review of the records, the

acidosis and any oxygen deprivation that Jaden may have

experienced during the birthing process has not had any

permanent or substantial impact on him.

30 . These expert opinions are demonstrated by t he

following excerpts from Dr. Duchowny's deposition of August 4,

2011:

A . [Dr. Duchowny] . . .

The neurologic examination

r evealed him [Jaden] to be an

alert, cooperative and socially

interactive boy. He was curious,

he was easily engaged. In fact,

he sat quietly in his father's lap

and he did make sounds, but I did

not hear him speak words. There

was a slight amount of dro oling,

very small. His cranial nerve

examination was essentially

normal, as detailed in the report.

Similarly, the motor examination

revealed full strength. Muscle

bulk and tone was also normal.

There were no abnormal movements,

no weakness. He actual ly walked

fairly steadily for his age, he

didn't fall, and he climbed well.

He had age - appropriate manual

dexterity with both hands. He had

good fine motor movements and

thumb/finger opposition. He could

transfer an object between his

hands and did not show a hand

preference. That was all normal.

His sensory examination was also

normal. There were no

abnormalities of his neurovascular

examination and, essentially, my

impression of these findings was

that his neurological examination

was normal for dev elopmental age.

Q. All right. And would you describe his

physical examination as normal as well?

A. Yes, sir. In fact, both the physical

and neurological examinations were

absolutely fine.

Q. Would you consider your findings

consistent with what yo u read in the

deposition transcripts from the parents as

to how they described Jaden's growth and

development and how he was performing at the

time of those depositions?

A. I would, yes.

Q. In other words, your findings are

consistent with their own pe rspective as to

how Jaden was doing and what, if any, issues

he may be experiencing?

A. Yes, sir.

Q. Based on your review and examination of

Jaden, did you form an opinion as to whether

or not he suffered from any permanent and

substantial mental impai rment?

A. In my opinion, he had neither a

substantial mental nor substantial motor

impairment.

Q. Based on your examination, did you form

an opinion as to whether or not he would

qualify for coverage under the NICA program?

A. Based on my understandi ng of the NICA

program requirements -- and that is that in

order to be eligible a child should suffer

from a permanent mental -- a permanent and

substantial mental and physical impairment.

I felt that Jaden did not qualify for

eligibility into the NICA progra m.

( Exhibit N : Depo. p ages 14 - 16 ; Bates 1573 -

1575 )

* * *

Q. . . . At the end of your report -- and I

think it may have been attached as an

exhibit now to the deposition -- of

February 3, 2010, you write his, meaning

Jaden, "his neurological examination today

is entirely normal." Entirely normal for a

fourteen - month old?

A. Yes, sir.

Q. Is that what you meant?

A. Yes, sir.

Q. And so you were asked by Mr. Bajalia

what your conclusion was and you said that

he had neither a substantial mental or mot or

impairment. At the time you examined him,

did Jaden have any mental impairment that

you could identify ?

A. No, sir.

Q. Did he have any physical impairment that

you could identify?

A. No.

* * *

Q. Okay. Now in your initial discussion of

your February 3, 2010 report, you talked

about the medical history that was obtained

from the parents. You talked about his

growth and developmental parameters and the

fact, from the parents' perspective, they

were all normal.

Do you recall that?

A. Ye s. ( Exhibit N : Depo. pages 28 - 29 ;

Bates 1587 - 1588 ) (emphasis added).

31 . Leigha Myers' deposition testimony further shows that ,

despite Jaden's initial hospital course , he has shown no

physical or mental impairments , but rather , has grown up as any

oth er child. Specifically, Mrs. Myers testified on May 18,

2011, as follows:

Q. . . . Tell me as his parent generally

how -- how he is doing now.

A. He seems to be doing what every other

kid does that I know of.

Q. When you say he seems to be doing what

e very other kid is doing that you know of,

it is your opinion that he appears to be

normal from a physical standpoint?

A. Yes.

Q. Does he appear to be normal from a

mental perspective?

A. Yes.

Q. Or cognitively?

A. Yeah.

Q. . . . From a physic al perspective, what,

if any, issues does he have?

A. He doesn't have any that I know of right

now.

Q. . . . And from a mental perspective, or

cognitive perspective, what, if any, issues

does he have?

A. None that I know of --

Q. Okay.

A. -- at thi s time.

Q. As his parents -- as his parent, are there

any concerns from your perspective from a

developmental perspective as far as Jaden is

concerned?

A. No, no. (Exhibit M: Depo. pages 8 - 9 ;

Bates 1533 - 1535)

3 2 . Jaden's mother also denied that there were any chronic

physical developmental issues for which Dr. Pena - Ariet is

currently treating Jaden; that there is any ongoing physical

therapy for Jaden; and that Jaden was ever below the standard

child development curve for growth and development. She also

acknowledged that on formal testing "of everything" (presumably

cognitive and physical abilities) Jaden scored " average or

better. "

Q. Has Jaden had any formal testing done to

assess his cognitive level or abilities?

* * *

A. [Mrs. Myers] Yes, I think it was kind of

everything. He had, like, a book he had to

go through, to do all these little tests an d

stuff, but he -- he scored average on it --

Q. Okay.

A. -- like average or better.

Q. Were there any issues or concerns that

were relayed to yo u about his development as

a result of that testing?

A. No. ( Exhibit M: Depo pages 28 - 29 ;

Bates 1553 - 1534)

3 3 . Leigha Myers further testified that Jaden had physical

therapy to resolve an issue with torticollis after he was born

but that he has not r equired speech therapy, occupational

therapy or any additional therapies. Jaden has also never seen

a neurologist. She does not believe Jaden will need physical or

occupational therapy in the future.

3 4 . According to Curtis Myers, Jaden's father , who al so

testified via a May 18, 2011, deposition, Jaden is physically

active playing horseshoes and basketball and appears to have met

his developmental milestones, as follows:

* * *

Q. . . . And you know, from a physical

perspective, when you guys play out side, he

doesn't appear to have any issues running?

A. [Curtis Myers] No.

Q. Or jumping?

A. No.

Q. Or picking up objects like a horseshoe?

A. No.

Q. And throwing it?

A. No.

* * *

A. Right. I think as far as physically, he

seems to be f ine. (Exhibit L: depo pages

10 - 12 ; Bates 1513 - 1515)

* * *

Q. And while you don't remember the exact

timing or dates as to when he met those

milestones, to your knowledge, did he meet

his milestones and develop normally?

A. Yes. He -- you know, it's funny, because,

I mean, he had someone to compare it to with

his little friend Isaac being two years old

and they were real close together as far a s

a lot of stuff. Isaac seems to be a little

bit ahead of Jaden somewhat, but they're

pretty close as far a s the developmental

type stuff.

Q. Nothing that would cause you any

concern?

A. No.

Q: Okay.

A. Makes you proud. ( Exhibit L : Depo .

Pages 17 - 18; Bates 1520 - 1521)

3 5 . While no one disputes that Jaden had a difficult

delivery, given the record, it is resolved that Jaden does not

suffer from permanent or substantial mental or physical

impairments.

CONCLUSIONS OF LAW

36 . The Division of Administrative Hearings has

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

these proceedings. §§ 766.301 - 766.316, Fla. Stat.

37 . T he 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 after January 1, 1989. § 766.303(1), Fla. Stat.

38 . 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 Divisi on 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 date of service of a

complete claim . . . in wh ich 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.

39 . If NICA determines that the injury alleged in a claim

is a co mpensable 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.

40 . In discharging this resp onsibility, the Administrative

Law Judge must make the following determination based upon

available evidence:

(a) Whether the injury claimed is a

birth - related neurological injury. If the

claimant has demonstrated, to the

satisfaction of the administrat ive 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 s hall

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 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. 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.

41 . 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 we ighing

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 infant permanently and

substantially me ntally and physically

impaired . This definition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality. (emphasis added).

42 . As the proponent of the issue, the burden rested on

Petitioner s to demonstrate that Ja d ed 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 part y asserting the affirmative of an issue before an

administrative tribunal." ).

43 . More specifically, it has been held in Florida Birth -

Related Neurological Injury Compensation Ass'n v. Division of

Administrative Hearings , 686 So. 2d 1349, 1356 (Fla. 199 7) that,

the plan "is written in the conjunctive and can only be

interpreted to require permanent and substantial impairment that

has both physical and mental elements." See also Masterton v.

Fla. Bir t h - Related Neurological Injury Comp. Ass'n , Case 08 -

603 2N (Fla. DOAH Jan. 29, 2010)(Corrected Final Order).

44 . Here, the proof failed to support the conclusion that,

more likely than not, Jaden has any permanent and substantial

mental or physical impairments irrespective of the timing or

cause of any such im pairment. Consequently, given the

provisions of section 766.302(2), Jaden does not qualify for

coverage under the Plan. See also §§ 766.309(1) and 766.31(1),

Fla. Stat.; Humana of Florida, Inc. v. McKaughan , 652 So. 2d

852, 859 (Fla. 5th DCA 1995)("[B]ec ause the Plan . . . is a

statutory substitute for common law rights and liabilities, it

should be strictly constructed to include only those subjects

clearly embraced within its terms."), approved , Florida Birth -

Related Neurological Injury Compensation Ass ociation v.

McKaughan , 668 So. 2d 974, 979 (Fla. 1996).

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is ORDERED:

The claim for compensation filed by Leigha Myers and Curtis

Myers, as parents and natural guardians of Ja d ed Myers , a minor ,

is dismissed with prejudice.

DONE AND ORDERED this 12th day of September , 2011 , 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 12th day of September , 2011 .

ENDNOTES

1/ The Stipulated Record includes: Joint Exhibit A: Medical

records, including fetal heart monitor strips from Southern

Baptist Hospital of Florida, Inc., d/b/a Baptist Medical Center ,

dated November 15, 2008 through November 17, 2008 (Bates stamped

1 - 316); Jo int Exhibit B: Medical records for Leigha Myers from

Mitzi Brock, M.D., dated April 3, 2008 through November 17, 2008

(Bates stamped 317 - 371); Joint Exhibit C: Medical records from

Southern Baptist Hospital of Florida, d/b/a Baptist Medical

Center for Ja den Myers dated November 12, 2008 through

November 26, 2008 (Bates stamped 372 - 1071); Joint Exhibit D:

Medical records from Northeast Florida Pediatric Associates,

P.A., Dr. Rodolfo Pena - Ariat [sic] , for Jaden Myers dated

November 26, 2008 through January 20, 2010; and updated records

from November 26, 2008 through June 28, 2010 and November 28,

2008 through February 25, 2011 (Bates stamped 1072 - 1204); Joint

Exhibit E: Medical records from Brooks Rehabilitation for

Jaden Myers dated November 13, 2008 thro ugh May 27, 2009 (Bates

stamped 1205 - 1255); Joint Exhibit F: Medical records from UF,

Developmental Pediatric Clinic for Jaden Myers dated January 21,

2009 through May 4, 2009 and updated records dated January 21,

2009 through April 4, 2011 (Bates stamped 1256 - 1364); Joint

Exhibit G: Medical records from Early Steps for Jaden Myers

dated July 27, 2009 through February 12, 2010; and updated

records dated January 22, 2009 through February 12, 2010 (Bates

stamped 1365 - 1486); Joint Exhibit H: Records from

Te rri Pendleton for Jaden Myers dated June 3, 2009 (Bates

stamped 1487 - 1490); Joint Exhibit I: Michael S. Duchowny,

M.D.'s report dated February 3, 2010 (Bates stamped 1491 - 1493);

Joint Exhibit J: Petitioners' Answers to Respondent's First Set

of Interroga tories dated April 5, 2010 (Bates stamped 1494 -

1502); Joint Exhibit K: Donald Willis, M.D.'s report dated

December 14, 2009 (Bates stamped 1503); Joint Exhibit L:

Transcript of the deposition of Curtis Myers taken on May 18,

2011 (Bates stamped 1504 - 152 5); Joint Exhibit M: Transcript of

the deposition of Leigha Myers taken on May 18, 2011 (Bates

stamped 1526 - 1559); Joint Exhibit N: Transcript of the

deposition of Michael S. Duchowny, M.D., taken on August 4,

2011 , with two exhibits attached, but not no ted in the Index to

the deposition . ( Bates stamped 1560 - 1633 ).

2/ Bradycardia is slowness of the heartbeat as evidenced by

slowing of the pulse rate to less than 60. See Dorland's

Illustrated Medical Dictionary, 223 (28th ed. 1994).

3/ Tachycardia is excessive rapidity in the action of the

heart; the term is usually applied to a heart rate above 100

beats a minute in an adult and is often qualified b y the locus

of origin as well as by whether it is paroxysmal or

nonparoxysmal. See Dorland's Illustrat ed Medical Dictionary,

1655 (28th ed. 1994).

4 / An Apgar score is a numerical expression of the condition of

a newborn infant, usually determined at 60 seconds after birth,

being the sum of points gained on assessment of the heart rate,

respiratory effor t, muscle tone, reflex irritability, and color.

DorlandÓs Illustrated Medical Dictionary , page 1497 ( 28th ed.

1994 ).

5 / Torticollis is wry - neck; a contracted state of the cervical

muscles, producing twisting of the neck and an unnatural

position of the head. See Dorland's Illustrated Medical

Dictionary, 1723 (28th ed. 1994).

COPIES FURNISHED :

(Via Certified Mail)

Ronald S. Gilbert, Esquire

Colling, Gilbert, Wright & Carter, LLC

801 North Orange Avenue, Suite 830

Orlando, Florida 32801

(Certified Mai l No. 7010 3090 0000 0717 1451)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7010 3090 0000 0717 1468)

M. Mark Baja lia, Esquire

Brennan, Manna and Diamond

800 West Monroe Street

Jacksonville, Florida 32202

(Certified Mail No. 7010 3090 0000 0717 1376)

Earl E. Googe, Jr., Esquire

Smith, Hulsey & Busey

1800 Wachovia Bank Tower

225 Water Street

Jacksonville, Florida 32 202

(Certified Mail No. 7010 3090 0000 0717 1383)

Mitzi Brock, M.D.

11945 San Jose Boulevard, Suite 400

Jacksonville, Florida 32223

(Certified Mail No. 7010 3090 0000 0717 1475)

Amy Rice, Acting Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7010 3090 0000 0717 1482)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Flor ida 32308

(Certified Mail No. 7010 3090 0000 0717 1499)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this F inal O rder is entitled

to judicial review pursuant to sections 120.68 and 766.311,

Florida Statutes. Review proceedin gs 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 § 766.311, Fla. Stat.,

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

Carreras , 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of

appeal must be filed within 30 days of rendition of the o rder to

be reviewed.