10-000856N Brenna Anderson And Geoffrey Anderson, Individually And As Parents And Natural Guardians Of Jared Anderson, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, March 4, 2011.

Summary: The child met all criteria for NICA compensation except for the conjunctive requirement of permanently and substantially mentally impaired and permanently and substantially physically impaired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRENNA ANDERSON AND GEOFFREY )

ANDERSON, individually and as )

parents and natural guardians )

of JARED ANDERSON, a minor , )

)

Petitioners , )

)

vs. ) Case No. 10 - 0856N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASS OCIATION , )

)

Respondent, )

)

and )

)

BAY HOSPITAL, INC., d/b/a GULF )

COAST MEDICAL CENTER, SHAWN )

SIMPSON, DO, AND SMITH, SMITH, )

SIMPSON & PERCY OBGYN )

PHYSICIANS, CHARTERED, )

)

Intervenor s . )

)

FINAL ORDER

Pursuant to the parties' stipulation, this cause was

submitted to Ella Jane P. Davis, a duly - assigned Administrative

Law Judge of the Division of Administrative Hearings upon a

stipulated record.

APPE ARANCES

For Petitioner Brenna Anderson:

Donald Mark Hinkle, Esquire

Hinkle & Foran

3500 Financial Plaza, Suite 350

Tallahassee, Florida 32312

For Petitioner Geoffrey Anderson :

Henry Lawrence Perry, Esquire

Perry and Young, P.A.

2612 West 15th Street

Panama City, Florida 32401

For Respondent:

M. Mark Bajalia, Esquire

Brennan, Manna & Diamond

800 West Monroe Street

Jacksonville, Florida 32202

For Intervenor Bay Medical Center, d/b/a Gulf C oast

Medical Center:

Richard B. Schwamm, Esquire

Haliczer Pettis & Schwamm

225 East Robinson Street, Suite 475

Orlando, Florida 32801

Pamela K. Frazier, Esquire

Lozier, Tipton, Thames & Frazier

24 West Chase Street

Pensacola, Florida 32501

For Intervenor Shawn Simpson, DO, and Smith, Smith, Simpson

& Percy OBGYN Physicians, Chartered:

Clifford C. Higby, Esquire

Bryant & Higby, Chartered

833 Harrison Avenue

Post Office Drawer 860

Panama City, Florida 32401

STATEMENT OF THE ISSUE

Whether Jared Anderson, a minor, qualifies for coverage

under the Florida Birth - Related Neurolo gical Injury Compensation

Plan.

PRELIMINARY STATEMENT

On February 17, 2010, Brenna Anderson and Geoffrey

Anderson, individually and as parents and natural guardians of

Jared Anderson (Jared), a minor, filed a petition (claim) with

the Division of Administr ative Hearings (DOAH), for compensation

under the Florida Birth - Related Neurological Injury Compensation

Plan (Plan) , and if so, to determine whether the notice

requirements of the Plan were satisfied. 1

DOAH served the Florida Birth - Related Neurological In jury

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

February 18, 2010; Bay Medical Center, d/b/a Gulf Coast Medical

Center on February 22, 2010; and Shawn Simpson, D.O., on

February 22, 2010.

By Order dated April 13, 2010, Bay Medical Center, d/b/a

Gulf Coast Medical Center , was granted leave to intervene. On

April 28, 2010, Shawn Simpson, D.O., and Smith, Smith, Simpson &

Percy, OBGYN Physicians, Chartered, were granted leave to

intervene.

On August 10, 2010, after several extensions of time in

which to do so, NICA filed its response to the petition, wherein

it gave notice that it was of the view that Jared did not suffer

a "birth - related neurological injury," as defined by s ection

766.302(2), Florida Statutes, and accordingly the claim was no t

compensable. NICA requested that a hearing be scheduled to

resolve whether the claim was compensable.

Thereafter, discovery ensued, and the cause was scheduled

for final hearing on January 19, 2011, upon issues of both

"compensability" and [lack of] not ice. 2

On December 2, 2010, Petitioner s served an unopposed Motion

to Amend Petition, which was granted by an Order entered

December 15, 2010 , 3 and the case has proceeded upon the Amended

Petition.

A Prehearing Stipulation was filed on January 11, 2011 . At

a January 14, 2011, telephonic prehearing conference, the

parties orally clarified the status of the case , their various

positions , and stated additional stipulations, which

stipulations were memorialized in an Order entered January 18,

2011. On January 14, 2011, Petitioner s filed a Notice of

Withdrawal of Notice Issue. Accordingly, this case has

proceeded upon the sole issue of compensability and upon the

stipulated record. 4

The parties were permitted to file proposed final orders on

or before February 8, 2011, but no objection or motion to strike

having been filed, all proposals have been considered. 5

FINDINGS OF FACT

1. Brenna Anderson and Geoffrey Anderson are the natural

parents and guardians of Jared Anderson, a minor. Jared was

born a live infan t on March 28, 2007, at Bay Medical Center,

d/b/a Gulf Coast Medical Center (hereafter Gulf Coast Medical

Center) , a licensed hospital located in Panama City, Florida,

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

2. The physician providing obstetric al services at the

time of Jared's birth w as Shawn Simpson, D.O., and at all times

material , Shawn Simpson, D.O., and Smith, Smith, Simpson and

Percy OBGYN Physicians, Chartered, were participating physicians

in the Florida Birth - Related Neurological Injur y Compensation

Plan.

3. 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, o r

resuscitation in the immediate post delivery period in a

hospital, which renders the infant permanently and substantially

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

4. Here, the parties disagree as to whether Jared suffered

any injury t o his brain and if so, the timing and cause of any

such injury. However, the parties appear to be in agreement

that, more likely than not, any injury to Jared's brain did not

result in a permanent and substantial mental and physical

impairment as required for coverage under the Plan. 6 See

§ 766.302(2), Fla. Stat.

5 . Mrs. Brenna Anderson's prenatal course was without

significant complications prior to March 28, 2007, the day of

Jared's birth. She was admitted to Gulf Coast Medical Center at

37 weeks ' ge station , in active labor , on March 28, 2007. This

was approximately three weeks early , per the delivery date of

April 18, 2007, estimated by ultrasound .

6 . Mrs. Anderson's contractions began at 0200 (2:00 a.m.),

and she was admitted into the OB Triage f or ruptured membranes

at 0310 (3:10 a.m.) . A vaginal exam was performed at that time,

with findings indicating she was 4cm dilated, 50 percent

effaced , and at - 1 station. She was subsequently admitted for

labor at 0340 (3: 4 0 a.m.) . Mrs. Anderson had a s trong desire to

have a vaginal birth due to a previous caesarian section.

Dr. Simpson explained the risks to mother and baby, and the

Andersons agreed to proceed with a vaginal birth. Dr. Simpson

agreed with their decision , as Mrs. Anderson was in sponta neous

labor three weeks before her due date. The fetal heart monitor

showed the baby with heart tones between 130 - 140 reactive with

occasional contractions.

7 . Mrs. Anderson had received pitocin. At 0700

(7:00 a.m.), her labor was augmented with o xytoci n in

preparation for a vaginal delivery. An epidural was

administered at 1100 (11:00 a.m.). Thereafter, at some point

during Mrs. Anderson's labor, there were changes in the fetal

heart tones.

8 . The records indicate that a n emergency caesarian

sectio n was called for at 1300 (1:00 p.m.). This timing is an

impossibility since the newborn infant record shows that Jared

was delivered at 1103 (11:03 a.m.), and it is presumed that the

record showing that the caesarian occurred at "1300" was a n

error due to transposition of numerals. ( Joint Exhibit A

000074). During the caesarian section, Dr. Simpson diagnosed

uterine rupture . The uterine incision was repaired as well as

the point of uterine rupture .

9 . Due to multiple late decelerations, Jared Anderson was

delivered under general anesthesia for fetal bradycardia by

emergency caesarian section at 1103 (11:03 a.m.) .

10 . At delivery, Jared was pale and flaccid with heart

rate at 40 with no respirations. However, he scored 3, 6, and 8

at 1, 5, and 10 minut es respectively, on the Apgar scale. 7

Resuscitative efforts included tactile stimulation , bulb

suctioning, blowby oxygen , deep suctioning, chest compressions

for 30 seconds, neopuff ventilation for approximately five

minutes , and delee'd 2cc. At some poi nt in time, hard to

determine from the records, C - PAP was also used. His condition

was described as stable , and he was transferred to the neonatal

intensive care unit (NICU).

11 . Jared was admitted to NICU at 1110 (11:10 a.m.) for

"perinatal asphyxia a nd respiratory distress." Upon admission,

his respiratory status was described as "mildly decreased air

exchange bilaterally, coarse breath sounds bilaterally,

gr u nting, nasal flaring and moderately increased respiratory

effort." The NICU Admission Asses sment otherwise described him

as "normal" neurologically, moving all extremities spontaneously

and normal global reflexes for gestation," normal spine; and

with a full range of motion in his upper and lower extremities

and a "strong" suckle reflex.

1 2 . Per the NICU Discharge Summary, Jared's hospital

course was complicated by hypovolemia, sepsis (probably e - coli ,

per later records) , severe metabolic acidosis, hypocalcemia and

hyp o natremia. Jared was also treated for onset asphyxia on

March 28, 2007, whi ch subsequently resolved itself on March 30,

2007.

13 . Dr. Donald C. Willis, a board - certified maternal - fetal

specialist in obstetrics , reviewed Jared's and his mother's

medical records and concluded "[t] hat there was an apparent

obstetrical event that re sulted in loss of oxygen to the baby's

brain during labor, delivery, and continuing into the immediate

pos t delivery period and that the oxygen deprivation was

sufficient enough to cause brain damage. " Dr. Willis did not

examine Jared .

14. Jared's pedi atrician, Dr. Ingrid Johnson Rachesky, has

not identified on Jared's medical chart any areas of concern

other than a speech delay, communication concerns, and "still no

expressive language."

15. However, due to his mother's request, at approximately

sev en months of age, Dr. Rachesky referred Jared for evaluation

by a neurologist. Dr. David Suhrbier, D.O., of the Child

Neurology Center of Northwest Florida, screened Jared for

developmental problems on October 22, 2007, and found Jared's

"development to b e on target" at the time of his evaluation.

16. Regarding Jared's communication skills, both of the

Florida State University First Words Project evaluations of

Jared, performed on June 20, 2008, and October 13, 2008,

indicate that at 15 months and 19 mo nths of age, Jared was

generally communicating as expected for a child his age, and as

of the latter evaluation, he was communicating more frequently.

The April 22, 2009, Early Steps records indicate that at two

years, one month of age, "Mom reports that Jared now has about

15 words total. Jared is learning new words, but he has not

started using words to get his needs and wants met."

17. On July 27, 2009, Jared was again referred to

Dr. Suhrbier to re - evaluate his developmental language delay,

and Dr. Suhrbier then determined Jared to have a developmental

language delay, lack of coordination, and macrocephaly. As of

December 30, 2009, after a variety of tests, Dr. Suhrbier

amended his diagnosis to be: "disorder developmental language;

anomaly, congeni tal brain ne c , lack of coordination , abnormal

result function study, eeg."

1 8 . Despite what facially appears to have be en a difficult

delivery, Jared's physical development has continued to improve

as he has grown. He was first assessed for Early Steps b y

Children's Medical Services on October 27, 2008 , (age

approximately 19 months) . On April 22, 2009, (age approximately

two years old) , Jared's Early Steps assessment indicated that

his gross motor abilities include being able to "walk without

support for 10 feet without falling; moves from sitting position

to standing position." His fine motor abilities include using a

"pincer grasp, throw objects, removes objects from a foam

board." In addition, he was able to feed himself bite - sized

pieces of food as well as use a spoon and fork . With

assistance, he could dress himself and drink from a cup. His

Early Steps assessment of October 27, 2009, (age approximately

30 months) indicates that Jared is age appropriate for gross and

fine motor skills , in that he can run well, walk backwards and

on tip toes, avoids obstacles in his path, jumps in place, and

walks up and down stairs alternating his feet. He can also hold

a pencil with his thumb and fingers and scribbles spontaneously.

Jared is also able to dress a nd undress himself with assistance,

help wash and dry his hands, brush his teeth, wipe his nose, and

bathe himself.

1 9 . Jared qualified for the Bay County District Schools

Special Education Services for speech therapy for the 2010 - 2011

school year where he is receiving speech therapy once a week.

This is the only treatment with which he is currently involved.

He was previously involved with a similar program at another

school.

20. Raymond J. Fernandez , M.D., is a board - certified

pediatric neurologist. He reviewed and analyzed Jared's medical

records, and also issued a July 24, 2010, report of his physical

examination of Jared , which conclude d with the opinion that ,

" . . . [ d ] espite the evidence for fetal distress and severe

metabolic acidosis at b irth, I do not find evidence for

substantial motor impairment and motor skills are improving.

There is speech and language delay, also improving and this

trend should continue."

21 . Dr. Fernandez d oes not believe that Jared has a

substantial motor impair ment , and in essence, he considered that

conclusion to be synonymous with there being no substantial

physical impairment . Dr. Fernandez testified by a November 12,

2010 , deposition as follows, in pertinent part:

Q. [Mr. Schwamm] Okay. In this case you

note from your perspective that there may

have been some fetal distress that appears

based upon the labs to be metabolic

acidosis?

A. Correct.

Q. Do you have the opinion that that fetal

distress or severe metabolic acidosis caused

harm to this child?

A. I did not find evidence for substantial

harm to this child.

* * *

Q. With regard to your opinion that he has

a speech delay, to what extent does this

child suffer from a speech delay in your

opinion?

A. Well, it ' s significant. It's a moder ate

severity. He has useful speech and language

and he is improving.

Q. When you saw Jared how old was he?

A. Three years and I believe four months.

Q. Did you assess to what extent his speech

delay was not age appropriate in terms of he

is not a th ree - year and four - month level,

what level is he? Do you do that type of

analysis?

A. I do.

I don't quantitate it always. I mean, I

form an opinion as to whether it's normal or

not, and, if not, by that then it's delayed.

The severity of it, s ometimes I might

come up with a fair estimate that

quantitates it. I would say that as of July

he was beyond the two - year level, probably

not at the two - and - one - half - year level.

Between two and two - and - one - half years of

age.

Q. He's about a year delaye d?

A. More or less.

Q. You said he's improving. What do you

mean?

A. Well, based on history, his vocabulary

was improving in terms of content and I

believe also in terms of clarity of speech.

Q. And you indicate in your report that you

expect the improvement trend to continue?

A. Correct.

Q. Why?

A. Because i f it's improving at the age of

three, it usually continues to improve.

Q. I'm assuming in your experience you

follow kids who have a delay at this level

and in this quantified amount, a nd then as

you follow the children they do continue to

improve with or without therapy?

A. Most of them do, yes.

Q. What is it about t his speech delay in

this child where you think he will, in fact,

continue t he improvement trend?

A. Well, number one , he is improving.

And when improving at about the age of

three years, those children usually continue

to make good progress. And I think many of

them can end up with perfectly normal speech

and language function.

There's nothing about him in hi s history

or physical examination or MRI or EEG that

indicates anything other than that.

Q. Does his speech delay have a receptive

and/or an expressive component?

A. Mainly expressive.

I think this boy has the ability to

understand language and ca rry out verbal

requests. I think there's probably some

delay there as well, but I'm not sure about

that. That would relate - - I think that puts

us in the cognitive areas, and I think he

does fairly well cognitively.

Q. In your opinion he does not have a

cognitive impairment?

A. Not substantial, no.

Q. Do you have an opinion that he has any

cognitive impairment?

A. There might be some mild impairment,

that's difficult to state at his age, but

I'm certain it's not substantial.

Q. Could he have a spe ech delay without

cognitive impairment?

A. Yes.

* * *

Q. If he has mild cognitive impairment, do

you have an opinion as to why or the cause?

A. No. I think, as before, I think

sometimes the cause is for unknown reasons,

but the cause could be the perinatal anoxia

that he experienced.

* * *

Q. Since you don't use that term, would you

be able to offer an opinion as to whether or

not this child suffers a physical

impairment?

A. Well, if we equate it to motor

impairment, I would say no. If we don't

equate it to anything but just try to define

it more generally, if it's any finding on

the physical examination that might be

abnormal, then I suppose the answer might be

that he has hypermobile joints. That's a

physical finding or a physical abnor mality

so to speak, but it's -- I don't know if it

would be defined as truly a physical

impairment.

I don't think it interferes with his

function, so, therefore, I don't think it's

impairment.

* * *

Q [Mr. Bajalia]. . . . Doctor, just for

clarification [sic] sake I just want to ask

you this. Do you have an opinion as to

whether or not Jared Anderson, based upon

your examination and your review of the

medical records that have been provided to

you, qualifies for coverage under the Birth -

Re lated Neurological Injury Compensation

plan with respect to his impairments, if

any?

* * *

A. Dr. Fernandez: As I understand the NICA

law, he does not.

I don't think I'm the one to pass final

judgment on that. I'm the one to state

whether or not he has substantial mental and

motor impairment, and I do not think that he

does.

And I should add due to the lack of

oxygen or mechanical trauma to the brain

during labor and delivery or the immediate

post delivery period, I don't think he fills

t hose criteria. ( Exhibit N).

2 2 . According to Jared's father, Geoffrey Anderson,

deposed November 10, 2010, Jared suffered from acid reflux as an

infant and his developmental milestones were slightly behind

those of his older brother. However, as Jared has aged, his

gross and fine motor skills have progressed without issue.

Mr. Anderson has no concerns about Jared's gross motor skills,

fine motor skills or problem solving ability. Mr. Anderson is

concerned that Jared's speech and language defects make it hard

to determine or prove that Jared is learning.

2 3 . Jared has continued to have issues concerning his

speech since he first began to talk , but Mr. Anderson

acknowledged that Jared h a s shown improvement.

Q. [Mr. Bajalia] . . . All right. But once

he learned to walk, I mean, there was no

issue with him from a development standpoint

from going from walking to running, as you

saw it?

A [Mr. Anderson] . Right, no. I mean, he --

seemed to progress fine through means of

mobility.

Q. Okay. And let's talk a little bit

about, from a motor perspective, you talked

about walking and running. As he was

developing, did he have any problems that

you were able to detect with respect to

grasping things or using his hands or

manipulating small objects, you know , as he

was developing and --

A. No. I haven't seen any of those issues.

* * *

Q. Okay. All right. Now you talked a

little bit about -- we talked a little bit

about when he first began to talk, Jared.

And you said that he began to talk at one

and a half, saying some basic words like Ma

Ma and Da Da. How did his speech progress

from that point forward?

A. It's gotten better. But then again, I'm

with him a lot. There are people that have

never -- you know, have never seen Jared, that

when he talk s, they can't understand what he

says.

* * *

Q. So Jared has always had some speech

issues, as I understand it; is that a fair

statement?

A. That's fair, yes.

Q. And while he's always had some speech

issues, I think you said that it's gotten

bette r, it's continued to improve; is that

correct?

A. Yes.

* * *

Q. Okay. And is Jared currently undergoing

any treatment for these speech problems?

A. Yes, he is.

Q. And where does he receive treatment for

the speech problems?

A. He goes to Deer Point Elementary School

here in Bay County .

* * *

Q. Okay. And let me -- before I move on, let

me just ask you generally, other than the

speech issues, from your perspective, what

other issues does Jared currently have or is

dealing with from a menta l or motor

perspective?

A. For the most part, it's just speech and

language.

Q. Just speech and language?

A. Yes.

* * *

Q. Well, let me ask you this, and I'm

asking you -- I'm not asking for a medical

opinion, I'm asking you as a parent who

proba bly observes his behavior and what he

can and cannot do better than anybody else.

Do you believe he has any issues learning?

A. Not that I -- not that I've seen, no . I

mean, he learns. (Exhibit L).

2 4 . Jared's mother, Brenna Anderson, also testified at her

deposition on November 10, 2010, that Jared has a speech and

language delay but does not suffer from any physical or motor

impairments. While Jared becomes frustrated by his

speech/language delays, he is, in her opinion , "perfectly

normal" as to ment al and motor skills. Mrs. Anderson also

indicated that Jared was most recently checked by a neurologist

(Dr. Suhrbier ) in 2009. ( See Finding of Fact 17). Excerpts

from Mrs. Anderson's deposition , Exhibit M, include:

Q. [ Mr. Bajalia ] What issues does Ja red

currently have, to your knowledge, from a

mental or physical perspective?

A. He has speech and language delay.

Q. Okay. Any other conditions or issues

that he's been diagnosed with or is being

treated for?

A. No.

Q. Okay. From a physical or m otor

perspective, at this particular point in

time, Jared does not have any issues, to

your knowledge?

A. No, s ir.

* * *

Q: Okay. He is not unlike any other kid

from a physical perspective --

A: That's correct.

* * *

Q. . . . What is your u nderstanding of the

speech issue that Jared currently has? What

are the -- what is your understanding of the

issue or the problem?

A. Well, he has problems relaying [sic] He

understands well, he comprehends, but as far

as trying to get out what he's tryi ng to say

to make someone understand what he's saying,

that's where the speech and language is a

problem. Did I answer --

* * *

Q. Do you have any reason to believe that

as long as Jared continues to receive

therapy, that his speech will continue to

i mprove or won't continue to improve?

A. I hope that it does. It does seem to be

doing him good, yes.

Q. Okay. When was the last time, to your

knowledge, that Jared has been to a

neurologist?

A. Last year, 2009, I believe.

2 5 . Clearly, Jared had a difficult delivery and suffered

oxygen deprivation during the statutory period , but given the

record, it appears that he has consistently progressed and does

not quali f y as having a " birth - related neurological injury" as

defined at section 766.302(2).

CO NCLUSIONS OF LAW

2 6 . The Division of Administrative Hearings has

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

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

2 7 . The Florida Birth - Related Neurological Injury

Compensation Plan was estab lished 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.

2 8 . The injured infant, her or h is personal

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

compensation under the Plan by filing a claim for compensation

with the Division of Administrative hearings. §§ 766. 302(3),

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

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 iss ue

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

§ 766.305(4), Fla. Stat.

2 9 . If NICA determines that the injury alleged in a claim

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

compensation to the claimant, provided that the award is

approved by the Administrative Law Judge to whom the claim has

been assigned. § 766.305(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 Administr ative Law

Judge in accordance with the provisions of chapter 120, Florida

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

30. In discharging this responsibility, the Administrative

Law Judge must make the following determination based upon the

avai lable 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

dep rivation or mechanical injury and that

the infant was thereby rendered permanently

and substantially mentally and physically

impaired, a rebuttable presumption shall

arise that the injury is a birth - related

neurological injury as defined in s.

766.303(2).

(b) Whether obstetrical services were

delivered by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospital; or by a certified

nurse midwife in a teaching hospital

supervised by a par ticipating 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.

31 . Pertinent to this case, "birth - related neurological

injury" is defined by section 766.302(2), to mean:

Inj ury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case of a

multiple gestation, a live infant weighing

at least 2,000 grams at birth caused by

oxygen deprivation or mechanical injury

occurring in the course of labor, deliver,

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 in clude

disability or death caused by genetic or

congenital abnormality.

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

Petitioner s to demonstrate that Jared suffered a "birth - related

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

Bal ino 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

3 3 . More specifically, it has been held in Florida Birth -

Related Neurological Injury Compensation Ass'n v. Div ision of

Administrative Hearings , 686 So. 2d 1349, 1356 (Fla. 1997) that,

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

interpreted to require permanent and substantial i mpairment that

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

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

6032N ( Fla. DOAH Jan. 29, 2010) (Corrected Final Order) .

3 4 . Here, the proof failed to support a conclusion that,

more likely than not, Jared has any permanent and substantial

mental or physical impairments , irrespective of the timing or

cause of any such impairment. Consequently, giv en the

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

coverage under the P lan. 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."), approved , Fl a. Birth - Related

N eurological I njury Comp . Ass 'n v. McKaughan , 668 So. 2d 974,

979 (Fla. 1996).

3 5 . Where, as here, the Administrative Law Judge

determines that " . . . the inj ury alleged is not a birth -

related neurological injury . . . she or he [is required to]

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

order to be sent immediately to the parties by registered or

certified mail." § 766.309(2), Fla. Stat. Such an order

constitutes final agency action subject to appellate court

review. § 766.311(1), Fla. Stat.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by

Brenna Anderson and Geoffrey Anderson, individually and as

parents and natural guardians of Jared Anderson, a minor, is

dismissed with prejudice.

DONE AND ORDERED this 4th day of March , 2011 , in

Tallahassee, Leon County, Florida.

S

ELLA JA NE 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 Admi nistrative Hearings

this 4th day of March , 2011 .

ENDNOTE S

1/ The claim also included language that could be read as

asserting a "willful and wanton" claim.

2/ On September 21, 2010, the undersigned wrote the parties as

follows, in pertinent part:

It is my understand [sic] that prior case

law has held that "willful and wanton"

allegations pursuant to Section 766.303,

Florida Statutes, are to be determined by a

Circuit Court. However, if any of you feel

differently, please immediately schedule a

telep honic case management hearing to

address jurisdiction of the "willful and

wanton" allegations. Thereafter, if

appropriate, I will amend the notice of

hearing and the scope of the January 19,

2011, hearing .

No party responded.

3/ The announced purpose o f this Motion was to clarify that

while Petitioners continued to assert that " while Jared Anderson

sustained neurological injury during birth he did not sustain

permanent and substantial mental and physical impairment as

statutor il y required to make the cl aim compensable."

4/ The stipulated record encompasses Volumes 1 - 4 (Joint

Exhibits A - S ) as set out in the Notice of Filing Stipulated

Record filed January 12, 2011: Joint Exhibit A: Medical

Records, including Fetal Heart Monitor Strips, from Bay Medica l

Center, d/b/a Gulf Coast Medical Center for Brenna Anderson

dated March 28, 2007, through April 2, 2007. (Bates Numbers 1 -

307); Joint Exhibit B: Medical Records for Brenna Anderson from

Shawn Simpson, D.O. , dated May 30, 2006 through May 18, 2007.

(Ba tes Numbers 308 - 382); Joint Exhibit C: Medical Records from

Bay Medical Center, d/b/a Gulf Coast Medical Center for Jared

Anderson Dated March 28, 2007 through April 8, 2007, and updated

medical records dated July 12, 2008 and November 8, 2008.

(Bates Nu mbers 383 - 560); Joint Exhibit D: Medical Records from

Early Steps for Jared Anderson dated July 18, 2008 through

October 27, 2009, and updated records dated March 20, 2009

through May 26, 2009. (Bates Numbers 561 - 659); Joint Exhibit E:

Medical Records f rom First Words for Jared Anderson dated

September 20, 2008 through October 31, 2008, and updated records

dated June 20, 2008 through June 4, 2009. (Bates Number 588 -

659); Joint Exhibit F: Medical Records from Audiology

Consultants for Jared Anderson dat ed December 8, 2008 through

August 4, 2009. (Bates Number s 660 - 676); Joint Exhibit G:

Medical Records from Ingrid Johnson Rachesky, M.D. for Jared

Anderson dated April 11, 2007 through August 25, 2008, and

updated records through September 8, 2008. (Bat es Number s 766 -

798); Joint Exhibit H: Medical Records from Child Neurology

Center of Northwest Florida, P.A., David Suhrbier, M.D. for

Jared Anderson dated July 13, 2007 through October 22, 2007, and

updated records from May 26, 2009 through December 30, 2009.

(Bates Number s 799 - 868); Joint Exhibit I: Records from Bay

District Schools for Jared Anderson dated March 5, 2010 through

August 30, 2010. (Bates Number s 869 - 949); Joint Exhibit J:

Donald Willis, M.D.'s report dates November 9, 2009. (Bates

Num bers 950 - 951); Joint Exhibit K: Raymond Fernandez, M.D.'s

report dated July 24, 2010. (Bates Numbers 952 - 955); Joint

Exhibit L: Transcript of the Deposition of Geoffrey Anderson

taken on November 10, 2010. (Bates Numbers 956 - 1012); Joint

Exhibit M: Tr anscript of the Deposition of Brenna Anderson

taken on November 10, 2010. (Bates Numbers 1013 - 1032); Joint

Exhibit N: Transcript of the Deposition of Raymond Fernandez,

M.D. taken on November 12, 2010 and Exhibits 1 through 6.

(Bates Numbers 1033 - 2226); Joint Exhibit O: Petitioners'

Answers to Respondent's First Set of Interrogatories dated

October 18, 2010. (Bates Numbers 2227 - 2235); Joint Exhibit P:

Petitioners Answers to Intervenor Gulf of Coast Medical Center's

First Set of Interrogatories dated N ovember 15, 2010. (Ba t es

Numbers 2236 - 2242); Joint Exhibit Q: Defendants, Shawn Simpson,

D.O. and Smith, Smith, Simpson & Percy OB/GYN Physicians,

Chartered , Responses an d Objections to Petitioners' Request for

Admissions dated November 22, 2010, and Pet itioners' Request for

Admissions to Intervenors Shawn Simpson, D.O. and Smith, Smith,

Simpson & Percy, OBGYN Physicians, Chartered. (Bates Numbers

2243 - 2250; Joint Exhibit R: Intervenor, Gulf Coast Medical

Center's Responses and Objections to Petitioners ' Request for

Admissions dated November 23, 2010, and Petitioners' Request for

Admissions to Intervenors Gulf Coast Medical Center. (Bates

Numbers 2251 - 2258); and Joint Exhibit S: Florida Birth - Related

Neurological Injury Compensation Association's Respo nse to

Petitioners' Request for Admissions dated December 10, 201 0 , and

Petitioners' Request for Admissions to Respondent Florida Birth -

Related Neurological Injury Compensation Association. (Bates

Numbers 2259 - 2264).

T he Pre - Hearing Stipulation has been marked as ALJ - Exhibit

A, and is admitted.

5/ "Petitioners' Submission of Proposed Findings," filed

February 1, 2011; Respondent's "Final Order on Compensability,"

filed February 8, 2011; and Intervenor Bay Medical Center's

" Notice of Adoption of NIC A's Proposed Final Order and Objection

to Petitioners' Proposed Final Order," filed February 15, 2011,

have been considered as proposed final orders. Intervenors

Shawn Simpson, D.O. et al . , did not file a proposal .

6/ Per their Pre - H earing Stipulation, the parties have asserted

a variety of pos it ions: Petitioners contend that "Jared Anderson

sustained hypoxic injury during labor and delivery . While he

continues to suffer from neurological injury and language delay,

there is no evidence that he has a sub stantial physical injury

or that his injuries are permanent. Based on the evidence of

record the Petition should be denied. " Respondent asserts that

Jared's "claim is not compensable under the Plan because

irrespective of the timing and cause of any brai n injury, if

any, [sic], he does not suffer from permanent or substantial

mental and motor impairments. " Intervenor Gulf Coast Medical

Center argues that " . . . Jared Anderson did not suffer a

permanent injury during labor and delivery, and that, to the

e xtent he suffered any injury at all, the injury was

insubstantial." Intervenors Simpson D.O., et al . , stated, "The

evidence presented establishes that Jared Anderson did not

suffer a permanent injury during labor and delivery, and that,

to the extent he s uffered any injury at all, the injury was

i nsubstantial. " However, the statutory definition , and elements

of that statutory definition, that must be met for

comprehensibility are set out at s ections 766.302(2) and

766.309(1)(a) and (b) . See Conclusions o f Law 30 - 31.

7/ 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 effort, muscle tone, reflex irrita b il ity, and color.

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

1994 ) .

8 / In so ruling, the undersigned has not ignored the language

of section 766.309(1)(a), establishing a rebuttable presumption

in Petitioners' favor or cases related the reto, but under the

posture of this case, no such presumption ever arose.

COPIES FURNISHED :

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 323 08

(Certified Mail No. 7010 1670 0000 3097 0881)

Richard B. Schwamm, Esquire

Haliczer Pettis & Schwamm

225 East Robinson Street, Suite 475

Orlando, Florida 32801

(Certified Mail No. 7010 1670 0000 3097 0898)

M. Mark Bajalia, Esquire

Brennan, Manna & Dia mond

800 West Monroe Street

Jacksonville, Florida 32202

(Certified Mail No. (7010 1670 0000 3097 0904)

Clifford C. Higby, Esquire

Bryant & Higby, Chartered

833 Harrison Avenue

Post Office Drawer 860

Panama City, Florida 32401

(Certified Mail No. (7010 1 670 0000 3097 0911)

Pamela K. Frazier, Esquire

Lozier, Tipton, Thames & Frazier

24 West Chase Street

Pensacola, Florida 32501

(Certified Mail No. (7010 1670 0000 3097 0928)

Donald Mark Hinkle, Esquire

Hinkle & Foran

3500 Financial Plaza, Suite 350

Tallah assee, Florida 32312

(Certified Mail No. (7010 1670 0000 3097 0935)

Henry Lawrence Perry, Esquire

Perry and Young, P.A.

2612 West 15th Street

Panama City, Florida 32401

(Certified Mail No. (7010 1670 0000 3097 0942)

Amy Rice, Acting Investigation Manag er

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. (7010 1670 0000 3097 0959)

Elizabeth Dudek, Deputy Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. (7010 1670 0000 3097 0966)

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 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 19 92). The notice of appeal must be filed within 30 days of

rendition of the order to be reviewed.