10-008929N Douglas Stalley, As Guardian Ad Litem And Trustee For Brianna Rose Lumley, Individually vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, November 16, 2011.

Summary: Child suffers from some type of disability, probably developmental, but claim is noncompensable because she is not permanently and substantially both physically and mentally impaired. Some evidence of injury within statutory period. (SFO)

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS STALLEY, as Guardian Ad )

Litem and Trustee for BRIANNA )

ROSE LUMLEY, individually , )

)

Petitioner , )

)

vs. ) Case No. 10 - 8929N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent, )

)

and )

)

UNIVERSITY COMMUNITY HOSPITAL, )

INC., )

)

Intervenor . )

)

SUMMARY FINAL ORDER

This cause came on for consideration upon the Unopposed

Motion for Sum mary Final Order filed on October 14, 2011, by

Respondent.

STATEMENT OF THE CASE

1. On September 7, 2010, Douglas Stalley as Guardian Ad

Litem and Trustee for Brianna Lumley, individually, filed , with

the Division of Administrative Hearings (DOAH), a Peti tion for

Determination of Jurisdiction of NICA Plan, and in the

Alternative, Petition for Benefits. This pleading constituted a

petition for benefits (claim) pursuant to sections 766.301 -

766.316, Florida Statutes.

2. DOAH Served the Florida Birth - Related Neurological

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

on September 10, 2010; served Teena Hughes, M.D., on

September 13, 2010; served William F. Meadows, III, M.D., on

September 13, 2010; and served University Community Hospital on

or about September 15, 2011.

3. Upon proper motion, an Order was entered on October 20,

2010, granting University Community Hospital i ntervenor status.

4. On December 20, 2010, NICA filed its response to

Petition for Benefits setting forth its determin ation that the

instant claim was "not compensable as the injury does not meet

the definition of a birth - related neurological injury as defined

in section 766.302(2), which requires that the injury render the

child permanently and substantially mentally and physically

impaired."

5. Thereafter, the case was scheduled for final hearing on

multiple occasions and continued upon the parties' motions.

6. On October 14, 2011, Respondent NICA filed its

Unopposed Motion for Summary Final Order, reciting therein tha t

Petitioners' counsel and Intervenor's counsel had been contacted

and had no objection to the entry of a Final Summary Order

determining the claim is not compensable. 1/ The predicate for

the motion is that the claim is not compensable because

Brianna Ros e Lumley is not permanently and substantially

mentally and physically impaired.

7. In support of its motion, NICA attached the affidavits

of Donald Willis, M.D., an obstetrician with special competence

in maternal fetal medicine and Michael S. Duchowny, M .D., a

board - certified pediatric neurologist. 2/

8. Dr. Willis's affidavit rendered an opinion in terms of

"reasonable medical probability," as follows:

* * *

There was an apparent obstetrical event that

resulted in loss of oxygen to the baby's

brain. Oxygen deprivation may have occurred

during labor and delivery, but this can not

be determined since there was no fetal heart

rate monitoring during labor and delivery

was not observed. It is clear that oxygen

deprivation occurred in the immediate post

de livery period and resulted in brain

injury. I cannot comment about the degree

of brain injury.

9. Dr. Duchowny's affidavit also couched his opinion in

terms of "reasonable medical probability" based upon the medical

records and a December 8, 2010, "hand s on" examination of

Brianna Rose. He opined:

* * *

In SUMMARY, Brianna's neurological

examination is sign ificant only for

expressive language delay and dysarthia. In

other respects, she is functioning at age

level. She displays no specific focal or

lateralizing findings on neurological

examination.

I fully reviewed medical records on Brianna

that were sent to me on October 6, 2010.

They provide full descriptive detail to

c ompliment the mother's history. My review

of these medical records together w ith

today's findings on examination lead me to

conclude that Brianna does not suffer from

either a substantial mental or motor

impairment and therefore she is not eligible

for compensation under the NICA statute. I

believe that Brianna's neurological find ings

are developmentally based and are not the

result of either mechanical injury or oxygen

deprivation in the course of labor or

delivery. (emphasis added).

10 . Given the record, there is no dispute of material fact

that, regardless of whether or not t he child suffered mechanical

injury or oxygen deprivation in the statutory period , and

although sh e suffers some disabilities, she does not suffer from

either a substantial mental or motor impairment.

CONCLUSIONS OF LAW

1 1 . The Division of Administrative Hearings has

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

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

1 2 . The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providi ng compensation, irrespective of fault, for

birth - related neurological injury claims" relating to births

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

1 3 . The injured "infant, her or his personal

representative, parents, dependents, a nd 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 Compensati on 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 - relate d

neurological injury." § 766.305(4), Fla. Stat.

1 4 . 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 Administr ative Law Judge to whom the claim has

been assigned. § 766.305(7), Fla. Stat. If, on the other hand,

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

dispute must be resolved by the assigned Administrative Law

Judge in accordance with the prov isions of chapter 120, Florida

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

1 5 . In discharging this responsibi lity , the A dministrative

Law Judge must make the following determination based upon the

available evidence:

(a) Whether the injury cla imed 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

del ivered 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

A dministrative 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.

1 6 . 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

i nfant 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 resusc itation 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 geneti c or

congenital abnormality. (emphasis added ).

1 7 . Here, indisputably, Brianna Rose Lumley suffers from

some type of disability, probably developmental, but she is not

permanently and substantially both physically and mentally

impaired. Given the provi sions of section 766.302(2),

Brianna Rose does not qualify for coverage under the Plan. See

also 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.);

Humana of Fl a. 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 , Fl a. Birth - Related Neurological Injury

Comp . Ass 'n v. McKaughan , 668 So. 2d 974, 979 (Fla. 1996).

CONCLUSION

Based upon the foregoing findings of fact an d conclusions

of law, it is ORDERED:

1. NICA's Unopposed Motion for Summary Final Order is

granted.

2. The P etition filed by Douglas Stalley, as Guardian Ad

Litem and Trustee for Brianna Rose Lumley individually, is

dismissed with prejudice.

DONE AND O RDERED this 16th day of November , 2011 , in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flori da 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of November , 2011 .

ENDNOTES

1/ 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 suffici ent 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).

2/ See , e.g. , Vero Beach Care Ctr 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 observa ble."); 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.").

COP IES 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 3090 0000 0717 1857)

Harold L . Sebring, III, Esquire

Sebring Law, P.A.

1509 East 9th Avenue

Tampa, Florida 33605

(Certified Mail No. 7010 3090 0000 0717 1864)

Rodney W. Morgan, Esquire

Morgan, Lamb, Goldman & Valles, P.A.

500 North Westshore Boulevard

Suite 820

Tampa, Florida 33609

(Certified Mail No. 7010 3090 0000 0717 1871)

Robert J. Grace, Jr., Esquire

Stiles, Taylor and Grace, P.A.

Post Office Box 460

Tampa, Florida 33601

(Certified Mail No. 7010 3090 0000 0717 1888)

William F. Meadows III, M.D.

609 Medical Care Drive

Bran don, Florida 33511

(Certified Mail No. 7010 3090 0000 0717 1895)

Teena Hughes, M.D.

4444 East Fletcher Avenue, Suite B

Tampa, Florida 33613

(Certified Mail No. 7010 3090 0000 0717 1901)

Am ie Rice, Investigation Manager

Consumer Services Unit

Departm ent of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7010 3090 0000 0717 1918)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahasse e, Florida 32308

(Certified Mail No. 7010 3090 0000 0717 1925 )

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 s ections 120.68 and 766.311,

Florida Statutes. Review pr oceedings 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 prescri bed by law, with the appropriate District Court

of Appeal. See § 766.311, F la. Stat. , and Fl a. Birth - Related

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

1st DCA 1992). The notice of appeal must be filed within 30 days

of rendition o f the order to be reviewed.