10-002191N Patrick Guettler, A Minor, By And Through His Mother Melissa Guettler And His Father, Conrad Guettler And Melissa Guettler And Conrad Guettler As Mother And Father Respectively Of Patrick Guettler vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, September 1, 2010.

Summary: Motion for Summary Final Order is granted where the definition of compensable injury is not met: the infant is not permanently substantially mentally impaired nor permanently and substantially physically impaired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICK GUETTLER, a minor, by )

and through his mother MELISSA )

GUETTLER and his father, CONRAD )

GUETTLER AND MELISSA GUETTLER )

AND CONRAD GUETTLER as mother )

and father respectively of )

PATRICK GUETTLER, )

)

Petitioners, )

)

vs. ) Case No. 10-2191N

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

INDIAN RIVER MEMORIAL HOSPITAL, )

INC., d/b/a INDIAN RIVER )

MEDICAL CENTER, )

)

Intervenor. )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's

Motion for Summary Final Order, served July 16, 2010.

STATEMENT OF THE CASE

1. On April 19, 2010, a Petition for Benefits, styled,

Patrick Guettler, a minor, by and through his mother

Melissa Guettler and his father Conrad Guettler, and

Melissa Guettler and Conrad Guettler as mother and father of

Patrick Guettler, was filed with the Division of Administrative

Hearings (DOAH), for compensation under the Florida Birth-

Related Neurological Injury Compensation Plan (Plan), for

injuries allegedly associated with Patrick Guettler's birth on

July 22, 2008.

2. DOAH served the Florida Birth-Related Neurological

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

on April 26, 2010; George J. Fyffe, M.D., on April 28, 2010;

Indian River Medical Center on or about April 29, 2010;

Phillip Alex Nye, M.D., on June 28, 2010; and John P.

Lindenthal, M.D., also on June 28, 2010. These are the only

hospitals and/or medical personnel named in the Petition as

present at birth. Only Indian River Memorial Hospital, Inc.,

d/b/a Indian River Medical Center, has intervened herein.

3. On June 18, 2010, following an extension of time in

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

gave notice that it was of the view that the minor child,

Patrick Guettler, did not suffer a "birth-related neurological

injury," which renders an infant "permanently and substantially

mentally and physically impaired," per Subsections 766.302(2)

and (3), Florida Statutes. NICA requested that a hearing be

scheduled to resolve the issue of compensability. On June 22,

2010, a scheduling order was entered to permit the parties to

select hearing dates and otherwise advise the undersigned

concerning their needs regarding a hearing on any issues raised

in the Petition. On July 16, 2010, Respondent served and filed

the subject Motion for Summary Final Order. 1

4. Petitioners filed Petitioners' Joinder in Respondent's

Motion for Summary Final Order on August 2, 2010.

5. The Intervenor did not timely respond to the Motion as

permitted by Florida Administrative Code Rules 28-106.103 and

28-106.204(4). In an abundance of caution, on August 23, 2010,

an Order to Show Cause why the Motion for Summary Final Order

should not be granted was entered, which provided:

On July 16, 2010, Respondent NICA

served a Motion for Summary Final Order. On

August 2, 2010, Petitioners filed a Joinder

in Respondent's Motion for Summary Final

Order. By their filings, Petitioners and

NICA seek dismissal of this cause upon

agreed non-compensability for the reasons

cited in Respondent's Motion.

To date, Intervenors have not responded

to the motion. Fla. Admin. Code R. 28-

106.103 and 28-106.204(4). Nevertheless,

and notwithstanding that they have been

accorded the opportunity to do so, it is

ORDERED that by August 17, 2010,

Intervenors [sic] shall show good cause in

writing, if any they can, why the relief

requested by Respondent should not be

granted.

6. On August 13, 2010, Intervenor filed a Response to

Order to Show Cause praying for a delay of the final disposition

of this matter "until after August 31, 2010, to afford

Intervenor the opportunity to provide evidence this matter

should not be disposed of by the granting of Respondents [sic]

Motion for Summary Final Order." However, on August 26, 2010,

Intervenor's counsel of record filed a letter stating, in

pertinent part:

This is to confirm that my client, the

intervenor, Indian River Medical Center,

Inc. will not oppose the summary disposition

of the case.

7. The predicate for the Motion for Summary Final Order is

that, indisputably, the child, Patrick Guettler, is not

permanently and substantially mentally impaired, nor permanently

and substantially physically impaired.

8. Attached to NICA's Motion for Summary Final Order was

the affidavit of Michael S. Duchowny, M.D., a pediatric

neurologist and Professor of Neurology at the University of

Miami School of Medicine, which affidavit incorporated

Dr. Duchowny's letter-report dated June 9, 2010, concerning his

independent medical examination of Patrick on that date. Based

on his examination/evaluation, 2 Dr. Duchowny concluded, within a

reasonable degree of medical probability that:

* * *

5. Patrick Guettler's neurological

examination reveals evidence of fine motor

coordination and articulation problems with

fully preserved cognitive abilities. A

review of the medical records indicates a

high likelihood that Patrick's neurologic

problems were sustained during labor and

delivery but his present neurologic

examination does not reveal a substantial

mental or motor impairment. . . . Because

of Patrick's preserved neurological status,

I believe he is not compensable under the

NICA statute.

6. As such, it is my opinion that Patrick

Guettler is not permanently and

substantially mentally impaired nor is he

permanently and substantially physically

impaired due to oxygen deprivation or

mechanical injury occurring during the

course of labor, delivery or the immediate

postdelivery period in the hospital during

the birth of Patrick Guettler.

9. Given the record, it is undisputed that Patrick's

problems, even if they may be the result of oxygen deprivation

or mechanical injury, do not amount to material and substantial

mental impairment or material and substantial physical

impairment. Consequently, for reasons appearing more fully in

the Conclusions of Law, NICA's Motion for Summary Final Order is

well-founded. 3

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

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

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

11. The Florida Birth-Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth-related neurological injury claims" relating to births

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

12. The injured "infant, her or his personal

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

compensation under the Plan by filing a claim for compensation

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

766.303(2), 766.305(1), and 766.313, Fla. Stat. The Florida

Birth-Related Neurological Injury Compensation Association,

which administers the Plan, has "45 days from the date of

service of a complete claim . . . in which to file a response to

the petition and to submit relevant written information relating

to the issue of whether the injury is a birth-related

neurological injury." § 766.305(3), Fla. Stat.

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

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

compensation to the claimant, provided that the award is

approved by the administrative law judge to whom the claim has

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

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

dispute must be resolved by the assigned administrative law

judge in accordance with the provisions of Chapter 120, Florida

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

14. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the injury claimed is a

birth-related neurological injury. If the

claimant has demonstrated, to the

satisfaction of the administrative law

judge, that the infant has sustained a brain

or spinal cord injury caused by oxygen

deprivation or mechanical injury and that

the infant was thereby rendered permanently

and substantially mentally and physically

impaired, a rebuttable presumption shall

arise that the injury is a birth-related

neurological injury as defined in s.

766.303(2).

(b) Whether obstetrical services were

delivered by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate post-delivery

period in a hospital; or by a certified

nurse midwife in a teaching hospital

supervised by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate post-delivery

period in a hospital.

§ 766.309(1), Fla. Stat. An award may be sustained only if the

administrative law judge concludes that the "infant has

sustained a birth-related neurological injury and that

obstetrical services were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

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

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

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case of a

multiple gestation, a live infant weighing

at least 2,000 grams at birth caused by

oxygen deprivation or mechanical injury

occurring in the course of labor, delivery,

or resuscitation in the immediate

postdelivery period in a hospital, which

renders the infant permanently and

substantially mentally and physically

impaired . This definition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality. (Emphasis added).

16. Here, indisputably, Patrick Guettler's problems,

although birth-related and neurologic in nature, do not render

him both "permanently and substantially mentally impaired" and

"permanently and substantially physically impaired."

Consequently, given the provisions of Section 766.302(2),

Florida Statutes, Patrick Guettler does not qualify for coverage

under the Plan. See Fla. Birth-Related Neurological Injury

Comp. Ass'n v. Fla. Div. of Admin. Hearings , 686 So. 2d 1349

(Fla. 1997)(The Plan is written in the conjunctive and can only

be interpreted to require both substantial mental and physical

impairment.). 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 liabilities, 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. McKaughan , 668 So. 2d

974, 979 (Fla. 1996).

17. Where, as here, the administrative law judge

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

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

such effect] and shall cause a copy of such order to be sent

immediately to the parties by registered or certified mail."

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

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

Stat.

CONCLUSION

Based on the foregoing Statement of the Case and

Conclusions of Law, it is

ORDERED

1. The hearing now scheduled for October 26, 2010, is

hereby cancelled; and

2. Respondent Florida Birth-Related Neurological Injury

Compensation Association's Motion for Summary Final Order is

granted, and the Petition for Compensation filed herein naming

Patrick Guettler, as the child addressed by Sections 766.301-

766.316, Florida Statutes, be and the same is dismissed with

prejudice.

DONE AND ORDERED this 1st day of September, 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 1st day of September, 2010.

ENDNOTES

1/ Section 120.57(1)(h), Florida Statutes (2009), provides:

(h) Any party to a proceeding in which an

administrative law judge of the Division of

Administrative Hearings has final order

authority may move for a summary final order

when there is no genuine issue as to any

material fact. A summary final order shall

be rendered if the administrative law judge

determines from the pleadings, depositions,

answers to interrogatories, and admissions

on file, together with affidavits, if any,

that no genuine issue as to any material

fact exists and that the moving party is

entitled as a matter of law to the entry of

a final order. A summary final order shall

consist of findings of fact, if any,

conclusions of law, a disposition or

penalty, if applicable, and any other

information required by law to be contained

in the final order.

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

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

to support a finding of causation where the medical condition

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

Servs. , 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The

determination of the cause of a non-observable medical

condition, such as a psychiatric illness, is essentially a

medical question."); Wausau Ins. Co. v. Tillman , 765 So. 2d 123,

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

the claimant alleged had resulted from the workplace incident

were not readily observable, he was obligated to present expert

medical evidence establishing that causal connection.").

3/ When, as here, the "moving party presents evidence to

support the claimed non-existence of a material issue, he . . .

[is] entitled to a summary judgment unless the opposing party

comes forward with some evidence which will change that result;

that is, evidence to generate an issue of a material fact. It is

not sufficient for an opposing party merely to assert that an

issue does exist." Turner Produce Co., Inc. v. Lake Shore

Growers Coop. Ass'n , 217 So. 2d 856, 861 (Fla. 4th DCA 1969).

Accord , Roberts v. Stokley , 388 So. 2d 1267 (Fla. 2d DCA 1980);

Perry v. Langstaff , 383 So. 2d 1104 (Fla. 5th DCA 1980).

COPIES FURNISHED :

(Via Certified Mail)

Nancy La Vista, Esquire

Lytal, Reiter, Clark, Fountain and Williams, LLP

515 North Flagler Drive, Suite 1000

West Palm Beach, Florida 33401

(Certified Mail No. 7010 0290 0001 2352 0697)

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 0703)

Roy R. Watson, II, Esquire

Adams, Coogler, Watson, Merkel,

Barry & Kellner, P.A.

Nations Bank Tower, Suite 1600

1555 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33401

(Certified Mail No. 7010 0290 0001 2352 0710)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

(Certified Mail No. 7010 0290 0001 2352 0727)

George J. Fyffe, M.D.

2180 Northeast 186 Terrace

North Miami Beach, Florida 33179

(Certified Mail No. 7010 0290 0001 2352 0734)

John Peter Lindenthal, M.D.

1555 Indian River Boulevard, B-120

Vero Beach, Florida 32960

(Certified Mail No. 7010 0290 0001 2352 0741)

Phillip Alex Nye, M.D.

1555 Indian River Boulevard, B-120

Vero Beach, Florida 32960

(Certified Mail No. 7010 0290 0001 2352 0758)

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 0765)

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 0290 0001 2352 0772)

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.