10-000048N Yolanda Rios And Rene Rios, On Behalf Of And Parents And Natural Guardians Of Christopher Noel Rios, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, August 10, 2010.

Summary: Child's substantial mental and physical impairment was "most likely" the result of intrauterine infection but clearly not the result of oxygen deprivation or mechanical injury.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YOLANDA RIOS AND RENE RIOS, on )

behalf of and parents and )

natural guardians of )

CHRISTOPHER NOEL RIOS, a minor, )

)

Petitioners, )

)

vs. ) Case No. 10-0048N

)

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

)

Respondent, )

)

and )

)

BAYFRONT MEDICAL CENTER, INC., )

AND RAUL MONTENEGRO, M.D., )

)

Intervenors. )

)

FINAL ORDER

Upon due notice, this cause came on for final hearing

before Ella Jane P. Davis, a duly-assigned Administrative Law

Judge of the Division of Administrative Hearings, on June 25,

2010, by video teleconference with sites in St. Petersburg and

Tallahassee.

APPEARANCES

For Petitioners: Yolanda Rios, pro se

1717 49th Street, East

Palmetto, Florida 34221

For Respondent: Robert J. Grace, Jr., Esquire

Stiles, Taylor & Grace, P.A.

Post Office Box 460

Tampa, Florida 33601-0460

For Intervenors: David S. Nelson, Esquire

Barr, Murman, Tonelli, Slother & Sleet

201 East Kennedy Boulevard, Suite 1700

Post Office Box 172669

Tampa, Florida 33672-0669

STATEMENT OF THE ISSUE

Whether Christopher Noel Rios, a minor, qualifies for

coverage under the Florida Birth-Related Neurological Injury

Compensation Plan (Plan).

PRELIMINARY STATEMENT

On January 6, 2010, Yolanda Rios and Rene Rios (parents),

on behalf of Christopher Noel Rios (Chris) 1 filed a petition

(claim) with the Division of Administrative Hearings (DOAH) to

resolve whether Chris qualifies for coverage under the Plan.

The petition included the following allegation:

4. It is alleged that Christopher Noel Rios

suffered brain damage as a result of a

birth-related neurological injury. [2]

DOAH served the Florida Birth-Related Neurological Injury

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

January 7, 2010. By an Order entered February 17, 2010,

Bayfront Medical Center (the hospital) was granted Intervenor

status, and by an Order entered March 4, 2010, Raul Montenegro,

M.D. (participating physician), was granted Intervenor status.

On March 26, 2010, following two extensions of time within

which to do so, NICA responded to the petition and gave notice

that it was of the view the claim was not compensable because

the injury did not meet the definition of a "birth-related

neurological injury as defined in Section 766.302(2)."

Given that Petitioners were of the view that the child had

suffered a "birth-related neurological injury," and that the

Administrative Law Judge had received the parties’ advice

concerning scheduling, a Notice of Hearing by Video

Teleconference, listing "compensability" as the sole issue, and

an Order of Pre-hearing Instructions were mailed on April 22,

2010. Left to resolve in a subsequent proceeding were issues

related to an award of benefits. See §§ 766.309(4), 766.31,

Fla. Stat.

The parties filed their Prehearing Stipulation on June 9,

2010, and a telephonic prehearing conference was held on

June 17, 2010. 3

At final hearing on June 25, 2010, Petitioners orally

raised, for the first time, an issue of "lack of notice." Upon

an oral ruling that a motion to amend the petition in that

regard might be considered if made at a later date, and a denial

of Petitioners’ oral motion to admit, over objection, an exhibit

on the issue of "lack of notice," the hearing proceeded upon

"compensability," the sole issue which had been pled in the

Petition; the sole issue acknowledged in the Prehearing

Stipulation; and the sole issue acknowledged at the prehearing

conference.

At final hearing, Joint Exhibit A (the Prehearing

Stipulation in duplicate original form), Petitioners' Exhibits

1, 2A and 2B, and 3, 4 and Respondent NICA’s Exhibits 1, 2, and

3, 5 were admitted in evidence. Petitioners also presented the

oral testimony of Yolanda Rios. Intervenor presented neither

witnesses nor exhibits.

A Transcript of the hearing was filed with DOAH on July 12,

2010. Respondent’s Proposed Final Order was timely filed and

has been considered. By stipulation at hearing, a letter from

Mrs. Rios faxed to DOAH the night before hearing has been

considered as her proposed final order. (TR-35) Intervenors

filed no proposal and no objection to Respondent’s proposal.

FINDINGS OF FACT

1. Petitioners Yolanda Rios and Rene Rios are Chris’

(Christopher Noel Rios’) natural parents.

2. At all times material, Yolanda Rios was an obstetrical

patient of Intervenor Raul Montenegro, M.D. Raul Montenegro,

M.D., the delivering obstetrician, was a "participating

physician" in the Florida Birth-Related Neurological Injury

Compensation Plan, as defined by Section 766.302(7), Florida

Statutes, who delivered obstetrical services in the course of

labor, delivery and resuscitation in the immediate postdelivery

period related to Chris. Although the parties stipulated to the

foregoing language, the evidence as a whole shows that no need

to "resuscitate" Chris ever arose. ( See Findings of Fact 12 and

14.)

3. Chris was born on January 11, 2005.

4. At birth, Chris weighed in excess of 2,500 grams.

5. Chris was born at Bayfront Medical Center.

6. Bayfront Medical Center is a licensed Florida hospital

located in St. Petersburg, Florida.

7. Coverage is afforded by the Plan for infants who suffer

a "birth-related neurological injury," defined as an "injury to

the brain . . . caused by oxygen deprivation or mechanical

injury occurring in the course of labor, delivery, or

resuscitation in the immediate postdelivery period in a

hospital, which renders the infant permanently and substantially

mentally and physically impaired." § 766.302(2), Fla. Stat.

See also §§ 766.309 and 766.31, Fla. Stat.

8. Herein, there is no dispute that Chris suffers from

some neurologic or brain impairment(s), but Petitioners claimed

that his problem resulted from a birth-related neurological

injury, and NICA was of the view that the record failed to

support the conclusion that Chris’ brain was injured by "oxygen

deprivation or mechanical injury occurring in the course of

labor, delivery or resuscitation in the immediate postdelivery

period" as required by the statute for a finding of

compensability. Intervenors expressed no position on the issue

of compensability.

9. On January 11, 2005, Mrs. Rios was admitted to Bayfront

Medical Center. Her fetus was estimated to be at 38-1/2 weeks’

gestational age with intrauterine growth restrictions. The

baby’s head had been smaller than expected, but within normal

limits, as of her last previous ultrasound. Mrs. Rios was noted

to have a non-reactive, non-stress test with spontaneous

decelerations and a biophysical profile 4/8 with

oligohydramnios. A fetal cardiac abnormality was also reported.

As a result of suspected fetal distress, Mrs. Rios underwent a

primary low transverse caesarian section at 5:03 a.m., on

January 11, 2005.

10. Following delivery, Chris had Apgar scores of 8 and 9

at one and five minutes respectively. 6

11. Mrs. Rios claimed that, based on recorded times on

various medical/hospital records, it is questionable whether

cord blood gas testing was done. Indeed, it is unclear whether

such testing was done. However, a letter dated September 17,

2008, from Maria Watts, Bayfront Medical Center Director of

Health Information Management, to Mrs. Rios states, in pertinent

part, "Although Dr. Boren’s operative note pertaining to the c-

section delivery of your son Christopher states that Cord gas

and PH were sent, there are no laboratory results in either his

or your medical record."

12. The stipulated medical and hospital records reveal,

among other notations, that Chris was administered "blow by"

oxygen for approximately four minutes ("whiffs" of oxygen as

opposed to bag oxygen), shortly after birth. However, he never

had to be intubated. Because he was noted to be microcephalic

and had a heart murmur, Chris was transferred, shortly after

birth on January 11, 2005, to All Children’s Hospital in St.

Petersburg, Florida, for further evaluation of suspected

congenital heart disease and microcephaly.

13. The records further show that on January 12, 2005,

Dr. Joseph Cassadonte, a pediatric neurologist, was consulted

due to a CT scan of Chris’ brain that showed ventriculomegaly

with periventricular calcification and an abnormal scan pattern.

Dr. Cassadonte recorded his impression that Chris had

microcephaly with periventricular calcifications and suspected

congenital infection, especially TORCH. Dr. Cassadonte wrote in

his consult record that Chris’ brain had probably been affected

by an intrauterine ( in utero or "in the uterus") infection. Due

to the microcephaly, a TORCH work-up was completed. 7

14. Chris remained hospitalized until February 8, 2005.

He was able to breathe room air without assistance of any kind

throughout his 28-day hospitalization.

15. With regard to infections within the TORCH spectrum

and Chris’ central nervous system, the Neonatal Discharge

Summary stated, in pertinent part:

INFECTIONS:

* * *

Due to the microcephaly a TORCH workup

was done. The IgMs were remarkable for

positive Rubella and HSV2. The rest were

all negative.

* * *

CENTRAL NERVOUS SYSTEM

This infant was noted to be

microcephalic on admission. A CT scan was

obtained on day 1 of life, which documented

periventricular calcifications. An MRI was

obtained on day 2 of life, which also

documented multifocal areas of brain

destruction consistent with scattered

calcifications, which were consistent with

TORCH infection. An EEG was obtained on day

16 of life and was abnormal with bilateral

amplitude attenuation over the hemisphere

suggestive of bilateral cerebral

dysfunction. This infant has been followed

by Neurology. This infant was also

evaluated by developmental pediatrics. He

will be followed by Neurology and

Developmental Pediatrics as an outpatient.

* * *

16. On February 8, 2005, Chris was discharged from All

Children’s Hospital. The Neonatal Discharge Summary listed

discharge diagnoses of:

1. Term male.

2. Periventricular Calcifications.

3. Hyperbilirubinemia, both direct and

indirect.

4. Bilateral duplication of the collecting

system.

5. Bilateral Grade 3 vesicoureteral reflux.

6. Coagulopathies.

7. Anemia.

8. Aspiration.

9. Mild arytenoids laryngomalacia.

10. Microcephaly.

11. Clinical sepsis.

12. Thrombocytopenia.

13. Patent foramen ovale.

17. Following discharge from All Children’s Hospital,

Chris developed seizures at three months of age, and in

December 2005, Dr. Cassadonte ordered an EEG which was

interpreted as "markedly abnormal because of severe

disorganization of the background as well as multifocal spike

and sharp waves, maximum in the posterior regions." The EEG was

consistent with a modified hypsarrhythmic pattern, and it was

noted that during the study, Chris had multiple clinical events

which appeared to be epileptic spasms unassociated with any

electrographic changes during the events. Since that time,

Chris has continued to experience multiple daily seizures and

has made little motor developmental progress, being unable to

roll over or sit up on his own. He also has cortical visual

impairment. He receives physical, occupational and speech

therapy. A G-tube was placed at 2-1/2 years of age and he is on

a keogentic diet.

18. Donald Willis, M.D., testified by deposition.

Dr. Willis is a physician who is board-certified in obstetrics

and gynecology and in maternal-fetal medicine. Based on his

evaluation of the medical records, Dr. Willis opined that the

medical records reflect that Mrs. Rios was not in labor when

Chris was delivered by caesarian section and that Chris did not

suffer oxygen deprivation or mechanical injury occurring during

delivery or resuscitation in the immediate postdelivery period.

More specifically, he testified:

Q: Dr. Willis, let me ask you this: Did

Christopher Rios suffer oxygen deprivation

or mechanical injury occurring during

delivery or resuscitation in the immediate

postdelivery period?

A: No.

Q: And is that opinion within a reasonable

degree of medical probability?

A: Yes.

Q: Would you explain to us – and I

understand you may be repeating some of your

opinions, but explain to us the basis for

that opinion.

A: Right. If the baby suffered oxygen

deprivation during the time of delivery,

then the baby would be depressed at birth

and would have low Apgar scores, would

require resuscitation, positive pressure

ventilation, intubation with oxygen, would

be acidotic and my [sic] require intervenous

[sic] drip for bicarbonate to correct the

acidosis, and would require, you know, care

in the neonatal intensive care nursery for

newborn depression.

Now, also the babies often have

seizures within the first 24 to 48 hours,

renal failure. Many of the organ [sic] can

be affected. Often feeding difficulties can

occur. But primarily, you know, it have –

the baby would have to be significantly

depressed at birth. And this baby was

really not depressed at birth.

19. Dr. Willis stated that the absence of cord gas results

did not change his ultimate opinion in the case. ( See Finding

of Fact 11.) He noted that many people would not have a cord

blood gas test done when Apgar scores are normal and the baby

does not require resuscitation, as was the situation with Chris.

He noted that microcephaly as recognized at birth happens over a

longer period of time as opposed to being the consequence of

some intrapartum (during birth or delivery) event.

20. Specifically with regard to the role a fetal infection

may have played in Chris’ condition, Dr. Willis testified:

Q: And I think you said that the early

ultrasound suggestive of microscopically [8]

[sic] suggests to you that the infection,

perhaps, or whatever insult on the fetus

that caused these problems occurred sometime

much earlier in pregnancy; is that correct?

A: That’s correct.

Q: All right. And under those

circumstances, would it be uncommon for the

TORCH titers and the other cultures to be

negative at birth if, in fact, the infection

had happened long enough ago to have created

or caused some microcephaly that was noted

early on in the ultrasound?

A: Well – that’s right. I mean, those

titers can revert to negative over time.

And if they occur early enough in pregnancy,

they may be too early for the baby to have

an IGG – IGM immune response, which is the

one that – or an IGG response. So, you

know, that could be, or it could be that

there was some viral infection that was not

included in the TORCH titers, it could be

some other virus that’s less well-known.

Q: All right. And so is it true, Doctor,

we don’t know exactly what kind of

intrauterine viral infection may have

impacted Christopher, you are still of the

impression or opinion that it was a viral

infection of some sort that explains his

current problems?

A: Yes. I agree that the findings are most

consistent with an in utero viral infection,

but the exact virus – I don’t know the virus

that caused this.

21. Michael Duchowny, M.D., a medical physician board-

certified in pediatrics and neurology, with special competence

in child neurology and clinical neurophysiology, particularly

the sub-specialty of pediatric epilepsy, also testified by

deposition. He evaluated Chris on March 10, 2010. Based upon

his evaluation of Chris, and his review of the medical records,

Dr. Duchowny concluded that Chris did, in fact, evidence

findings consistent with a substantial neurological impairment,

involving both mental and motor functioning, that was in all

likelihood permanent. He further opined that the evidence

compellingly suggested that Chris’ permanent and substantial

mental and physical neurological impairment(s) are the result of

an infection acquired in utero , rather than being the result of

intrapartum (during birth) oxygen deprivation or mechanical

injury.

22. More specifically, Dr. Duchowny testified:

Q: And with regard to your opinion, Doctor,

what do you look at to give support for it?

A: I think the support for that comes from

several sources. To begin with,

Christopher’s post – his perinatal course

was inconsistent with oxygen deprivation or

mechanical delivery. Specifically, he was

born with good Apgar scores. His condition,

at birth, was sufficiently stable, so that

his physicians chose not to order either

umbilical cord or arterial blood gases. He

did not have multi-organ failure, as would

be expected in a baby who was hypoxic, and

he did not have a need for prolonged

intubation and medical ventilation.

On the other hand, he did suffer from

thrombocytopenia or low platelet count,

which is more consistent with an infection.

He had elevation of bilirubin, which I also

think was consistent with a – some type of

infectious process.

Furthermore, his neuroimaging studies, both,

the MRI and the CT Scan, suggest both, an

intrauterine acquisition of the brain damage

and an infectious basis, and this is based

on the fact that his MRI Scan, obtained on

the second day of life, was already

evidencing multi-focal damage, which

suggested that it had been acquired a long

time prior to the MRI, in order to produce

that picture, and the multi-focal damage was

most consistent with some type of

intrauterine infection.

Consistent with this hypothesis, were the

findings on the CT Scan which demonstrated

calcified areas surrounding the ventricles

or the cavities of the brain. This finding

is typically seen in patients who have an

intrauterine acquired viral infection with

one of several agents.

Lastly, Christopher’s examination revealed

evidence of congenital anomalies of his face

and head, and these findings, obviously,

reflected abnormalities acquired in the

intrauterine environment during the time

when the – when these structures were being

formed.

So I think the weight of the evidence – and

I would lastly say that Christopher was born

with low birth weight, suggesting

intrauterine growth retardation, and was

congenitally microcephalic, with a head

circumference of 30 centimeters.

I think, putting all of this evidence

together, it strongly suggests that

Christopher’s neurologic impairment was

acquired prenatally during intrauterine

life, and resulted from an intrauterine

viral infection.

23. Mrs. Rios testified that she believed the hospital’s

determination of viral infection had to be in error because

infections always progress but Chris’ condition is not

progressing and his CAT scans have remained consistent.

However, no medical verification for this theory was presented.

Additionally, Dr. Willis and Dr. Duchowny effectively refuted

it, as both physicians testified that it is common to be unable

to identify a specific viral infection and that the infection of

concern would have affected Chris in the uterus, as opposed to

after birth. 9

24. Mrs. Rios testified that, in her opinion, she had

experienced a normal pregnancy except for narrowing of the PDA,

which was "followed" throughout her pregnancy. She had no

explanation for what caused Chris’s neurologic problems, but

testified from personal observation that he was dusky and blue

with eyes swollen shut and facial bruising when he was first

shown to her over the drape for the caesarian section. She

inferred an oxygen deprivation or mechanical injury from these

signs. Chris’ newborn photographs, the Newborn Assessment, and

some nurses’ notes in evidence do show these conditions and some

nurses’ notes assume them to be traumatic in origin, but

Dr. Duchowny offered contrary, but reasonable, medical

explanations.

25. Dr. Duchowny stated, in response to questions by

Mrs. Rios, at his deposition:

Q: (Mrs. Rios) Okay. Because I don’t know

if you read in the reports that, actually,

he had extensive bruising in his – and his

eye was swollen shut, and it states that on

the report, and we also have photographs

pertaining to that, that when Chris – after

he was born, the nurse took a photograph,

that she submitted to me, and there was

extensive bruising on Christopher’s face,

pertaining to – right a little bit above the

eyebrow. It was in the area. It went from

one end of the eyebrow to the other end, and

his eyes were actually swollen shut. They

were also bruised, and he had a hemorrhage

in one of his eyes.

Dr. Duchowny: Well, again. I would – and

it’s not to take anything away from the

difficulties associated with the delivery,

but there was no evidence on either of the

scans, either the CT or the MRI of a

traumatic brain injury. So that although

there were facial or cranial areas that were

bruised, it does not appear that there was

any traumatic injury to the brain.

26. Dr. Duchowny also testified, concerning his 2010

examination of Chris, as follows:

Q: And in Christopher’s case, what

dysmorphic features or dysmorphisms did you

observe?

A: Well, the shape of his forehead, I

thought, was abnormal. He had some

abnormalities of the mid facial region,

including his nasal bridge. There was – I

thought that there was kind of what we call

a mid facial compression. In other words,

the distance from the eyes down to the mouth

was less than it should be. The eyes had a

slant to it. I also recall that the ears

were slightly low set, as well. I’m not

sure –

Q: And what did those dysmorphic features

suggest to you, as a pediatric neurologist,

if anything?

A: These types of abnormalities occur due

to some problem that occurs during the time

that they are forming. So this malformation

suggests not that anything was destroyed or

altered, after it was formed, but, rather,

it did not form correctly.

So it places the timing, you know,

quite far back during intrauterine life,

either the first or perhaps early second

trimester, but I don’t think we can date it

more than that.

27. Dr. Duchowny also opined:

. . . I can say that children – newborns

oftentimes appear dusty, because they are

peripherally vasoconstricted . It’s not

uncommon for babies to appear blue or dusty

in the delivery room, and to remain that way

while they vasoconstrict, just to shunt

blood to the core, including the vital

organs and the brain.

That actually does not mean that there

is a neurologic impairment or that the baby

is having any problems with oxygen. It’s

just simply a physiologic adjustment that

shunts blood centrally. It’s a reflex.

It’s normal, and it doesn’t suggest that

there’s any type of oxygen deprivation at

that time.

28. Dr. Duchowny also was asked hypothetically to assume

cord blood gas testing had been done and to assume the PH

thereof was at or below seven and whether this set of

hypothetical facts would impact his opinions:

Q: Dr. Duchowny, I would like you to assume

that the cord blood gases in this particular

case were done and were, hypothetically,

reported as below – or with a PH at or below

seven. Would that, in any way, impact your

opinions you’ve expressed today regarding

the etiology of Christopher’s neurological

problems?

A: It would not.

Q: Why not?

A: Again, I think the overwhelming evidence

suggests that Christopher’s neurologic

impairment was acquired remotely in

intrauterine life, and if there is a cord PH

that was low, it still wouldn’t make me

believe that Christopher had a significant

intrapartum event. Furthermore, his post-

natal course was inconsistent with it, as

well.

So I recognize that you’re putting that

out as a hypothetical situation, but even in

that hypothetical situation, I could not

understand how Christopher’s damage would be

acquired during labor and delivery.

Q: And how is his neonatal course or how

was his neonatal course inconsistent with an

abnormally low PH, if it was?

A: Well, I discussed that previously, but

the findings that one would expect to see

were not there, including intubation,

prolonged mechanical ventilation, multi-

organ failure, cardiovascular instability,

and, in fact, what did transpire, which was

thrombocytopenia, is probably more

consistent with some type of infection,

rather than intrapartum hypoxia or

mechanical injury.

29. As previously noted, Mrs. Rios provided lay testimony

questioning the expert medical opinions and assailing the

veracity of certain medical records, most notably the failure to

perform a cord blood test or the absence of a record of the cord

blood test if such a test had been done. ( See Finding of Fact

11.) Her testimony was, however, lay testimony without any

other substantiating lay or expert medical evidence, and the

expert medical opinions herein were not dependent on the

presence or absence of cord blood testing. Where a medical

condition is not readily observable, issues of causation are

essentially medical questions, requiring expert medical

evidence. See , e.g. , Vero Beach Care Ctr. v. Ricks , 476 So. 2d

262, 264 (Fla. 1st DCA 1985)("[L]ay testimony is legally

insufficient to support a finding of causation where the medical

condition is not readily observable."); Ackley v. Gen. Parcel

Serv. , 646 So. 2d 242, 245 (Fla. 1st DCA 1991)("The

determination of the cause of a non-observable medical

condition, such as a psychiatric illness, is essentially a

medical question."); Wausau Ins. Co. v. Tillman , 766 So. 2d 123,

124 (Fla. 1st DCA 2000)("Because the medical conditions which

the claimant alleged resulted from the workplace incident were

not readily observable, he was obligated to present expert

medical evidence establishing that causal connection.").

30. Herein, the opinions of Doctors Willis and Duchowny

are clearly "expert." Moreover, they are logical, consistent

with the record, not controverted by other competent medical

opinion, and not shown to lack credibility. See Thomas v.

Salvation Army , 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In

evaluating medical evidence, a judge of compensation claims may

not reject uncontroverted medical testimony without a reasonable

explanation.") Accordingly, the weight of their expert evidence

is more persuasive than Petitioners' lay testimony.

31. Therefore, it is found that Chris’ physical and mental

problems, substantial though they may be, most likely resulted

from an intrauterine-acquired infection, as opposed to being

caused by oxygen deprivation or mechanical injury occurring in

the course of labor, delivery, or resuscitation in the immediate

postdelivery period in a hospital.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

cause. §§ 766.301-316, Fla. Stat.

33. The Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth-related neurological injury claims" relating to births

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

34. The injured "infant, her or his personal

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

compensation under the Plan by filing a claim for compensation

with the Division of Administrative Hearings within five years

and 766.313, Fla. Stat. The Florida Birth-Related Neurological

Injury Compensation Association, which administers the Plan, has

"45 days from the date of service of a complete claim . . . in

which to file a response to the petition and to submit relevant

written information relating to the issue of whether the injury

is a birth-related neurological injury." § 766.305(3), Fla.

Stat.

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

is a compensable birth-related neurological injury, it may award

compensation to the claimant(s), provided that the award is

approved by the Administrative Law Judge to whom the claim has

been assigned. § 766.305(6), Fla. Stat. If, on the other hand,

NICA disputes the claim, as it has in the instant case, the

dispute must be resolved by the assigned Administrative Law

Judge in accordance with the provisions of Chapter 120, Florida

Statutes. §§ 766.304, 766.309, and 766.31, Fla. Stat.

36. In discharging this responsibility, the Administrative

Law Judge must make the following determination based on

available evidence:

(a) Whether the injury claimed is a birth-

related neurological injury. If the

claimant has demonstrated, to the

satisfaction of the administrative law

judge, that the infant has sustained a brain

or spinal cord injury caused by oxygen

deprivation or mechanical injury and that

the infant was thereby rendered permanently

and substantially mentally and physically

impaired, a rebuttable presumption shall

arise that the injury is a birth-related

neurological injury as defined in s.

766.302(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. An award may be sustained only if the

Administrative Law Judge concludes 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.

37. "Birth-related neurological injury" is defined by

Section 766.302(2), Florida Statutes, to mean:

. . . injury to the brain or spinal cord of

a live infant weighing at least 2,500 grams

. . . at birth caused by oxygen deprivation

or mechanical injury occurring in the course

of labor, delivery, or resuscitation in the

immediate postdelivery period in a hospital,

which renders the infant permanently and

substantially mentally and physically

impaired. This definition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

38. As the claimants, Petitioners bear the burden of proof

to demonstrate entitlement to compensation under the Plan. See

§ 766.309(1)(a), Fla. Stat.; see also Balino v. Dep't of Health

and Rehabilitative Servs. , 348 So. 2d 349, 350 (Fla. 1st DCA

1977)("[T]he burden of proof, apart from statute, is on the

party asserting the affirmative of an issue before an

administrative tribunal.").

39. Here, although there is no doubt that Chris is

"permanently and substantially mentally and physically

impaired," the proof failed to demonstrate that Chris suffered

"an injury to the brain or spinal cord caused by oxygen

deprivation or mechanical injury occurring in the course of

labor, delivery, or resuscitation in the immediate postdelivery

period."

40. Consequently, given the provisions of Section

766.302(2), Florida Statutes, Chris does not qualify for

coverage under the Plan. See also Humana of Fla., Inc. v.

McKaughan , 652 So. 2d 852, 859 (Fla. 2d DCA 1995)("[B]ecause the

Plan . . . is a statutory substitute for common law rights and

liability, it should be strictly construed to include only those

subjects clearly embraced within its terms."), approved , Fla.

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

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

41. Where, as here, the Administrative Law Judge

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

neurological injury . . . she . . . [is required to] enter an

order [to such effect] and . . . cause a copy of such order to

be sent immediately to the parties by registered or certified

mail. § 766.309(2), Fla. Stat. Such an order constitutes final

agency action subject to appellate court review. § 766.311(1),

Fla. Stat.

42. Compensability having not been proven, any issue with

regard to notice or lack thereof by the hospital or any

physician and/or any issue with regard to the type and amount of

benefits which Petitioners might have been entitled to receive

from NICA had they prevailed on the issue of compensability are

rendered moot, and this case must be dismissed without leave to

amend as to notice and without any further hearing as to amount

and type of benefits.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED:

The claim for compensability filed by Yolanda Rios and

Rene Rios on behalf of, and as parents and natural guardians of,

Christopher Noel Rios is dismissed with prejudice.

DONE AND ORDERED this 10th day of August, 2010, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of August, 2010.

ENDNOTES

1/ All records and witnesses/depositions referred to

"Christopher," except in one instance, a doctor misspelled the

child’s name as "Christian." However, it is noted that

Mrs. Rios, the mother, frequently referred to her son as

"Chris," and this Final Order will respect her preference.

2/ The Claim/Petition did not raise any issue of "lack of

notice" by the hospital or any physician.

3/ As part of the telephonic pre-hearing conference, Petitioner

Mrs. Rios orally stipulated on behalf of Petitioners to

admission of all of NICA’s proposed exhibits, including both of

NICA’s physicians' depositions without further qualifying them

by deponent’s and court reporter’s signatures; agreed to forward

a signed duplicate of the Prehearing Stipulation previously

signed by the other two parties (which she did file); and noted

that the parent-Petitioners were without an attorney, but she

also stated that she wanted to proceed to hearing on June 25,

2010, and raised neither an issue of lack of notice or that she

would be submitting any new or different exhibits not included

in NICA Exhibit 1.

4/ Exhibit P-1 is seven pages of medical records, mostly

duplicates of NICA Exhibit 1, and discussed at the prehearing

conference. Exhibits P-2A and 2B are newborn photographs of

Chris, also discussed at the prehearing conference. Exhibit P-3

is a vaccination record showing Mrs. Rios consented to receive,

and did receive, a Rubella vaccination before hospital

discharge, but the remainder of a group of items Petitioners

FAXED to DOAH the night before final hearing (including a NICA

notice form) were not admitted over objection.

5/ NICA’s Exhibit 1 is a composite exhibit, of over 600 pages,

in notebook form, of Chris’ medical records. NICA Exhibit 2 is

the deposition of Dr. Duchowny. NICA Exhibit 3 is the

deposition of Dr. Willis.

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

a newborn infant, and reflects the sum points gained on

assessment of heart rate, respiratory effort, muscle tone,

reflex irritability, and color, with each category being

assigned a score ranging from the lowest score of 0 to a maximum

of 2. Dorland’s Illustrated Medical Dictionary , 28th ed. 1994.

7/ "TORCH" refers to screening for five common infections or

the five infections themselves.

8/ Presumably, this was a mis-transcription of the word,

"microcephaly" as used hereafter in the same answer by the

deponent physician.

9/ Although the Neonatal Discharge Summary ( see Finding of Fact

15) clearly stated positive findings for two types of infection,

the actual test results in the file appear borderline or

equivocal. Therefore, either physicians' seeming to assume that

the type of intrauterine infection that affected Chris was never

identified is, if anything, more persuasive, that some type of

undefined in utero infection caused Chris’ problems.

COPIES FURNISHED :

(Via Certified Mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7010 0290 0001 2352 0550)

David S. Nelson, Esquire

Barr, Murman, Tonelli, Slother & Sleet

201 East Kennedy Boulevard, Suite 1700

Post Office Box 172669

Tampa, Florida 33672-0669

(Certified Mail No. 7010 0290 0001 2352 0567)

Rene Rios

Yolanda Rios

1717 49th Street East

Palmetto, Florida 34221

(Certified Mail No. 7010 0290 0001 2352 0215)

Robert J. Grace, Jr., Esquire

Stiles, Taylor & Grace, P.A.

Post Office Box 460

Tampa, Florida 33601

(Certified Mail No. 7010 0290 0001 2352 0222)

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 0290 0001 2352 0239)

Elizabeth Dudek, Deputy Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7020 0290 0001 2352 0246)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Sections 120.68 and 766.311,

Florida Statutes. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such proceedings are commenced by

filing the original of a notice of appeal with the Agency Clerk

of the Division of Administrative Hearings and a copy,

accompanied by filing fees prescribed by law, with the

appropriate District Court of Appeal. See Section 766.311,

Florida Statutes, and Florida Birth-Related Neurological Injury

Compensation Association v. Carreras , 598 So. 2d 299 (Fla. 1st

DCA 1992). The notice of appeal must be filed within 30 days of

rendition of the order to be reviewed.