10-010319N Marlena Roberts, On Behalf Of And As Parent And Natural Guardian Of Amel Matthews-Walker, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, May 18, 2011.

Summary: Infant suffered injury at birth that was not caused by oxygen deprivation or mechanical injury; did not affect brain or spinal cord; and no permanent or substantial mental impairment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARLENA ROBERTS, on behalf of )

and as parent and natural )

guardian of AMEL MATTHEWS - )

WALKER, a minor , )

)

Petitioner , )

)

vs. ) Case No. 10 - 10319N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respond ent, )

)

and )

)

DAVID CHOI, M.D., AND OB/GYN )

SPECIALISTS OF THE PALM )

BEACHES, P.A., )

)

Intervenor s . )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause ca me on for consideration upon Respondent's

Motion for Summary Final Order, served by U.S. Mail on

February 8, 2011, and filed with the Division of Administrative

Hearings (DOAH) on February 14, 2011.

STATEMENT OF THE CASE

1. On November 22, 2010, Marlena R oberts, on behalf of and

as parent and natural guardian of Amel Matthews - Walker, a minor,

filed a petition (claim) with DOAH.

2. DOAH served the Florida Birth - Related Neurological

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

on November 29, 2010; served David Choi, M.D. , on November 29,

2010; and received a return of service by certified mail for

St. Mary's Medical Center on or about December 3, 2010 . Only

Dr. Choi and OB/GYN Specialists of the Palm Beaches, P.A., have

moved to interven e, and their intervention was granted by an

O rder entered December 22, 2010.

3. Following an extension of time in which to do so,

Respondent NICA served its r esponse to the p etition, which

r esponse was filed January 26, 2011, and gave notice that it was

o f the view that Amel had not suffered a "birth - related

neurological injury" as defined in s ection 766.302(2), Florida

Statutes, which renders an infant "permanently and substantially

mentally and physically impaired," per s ection 766.302( 2 ).

NICA's r espon se requested that a hearing be scheduled to resolve

the issue of compensability.

4. The parties submitted possible hearing dates, but on

February 14, 2011, NICA filed its Motion for Summary Final

Order. The predicate for NICA's motion was two - fold: fi rst,

that although Amel had suffered an injury at birth, that injury

had not been caused by oxygen deprivation or mechanical injury

and did not affect her brain or spinal cord; and second, that

although Amel has physical disabilities, she is not permanentl y

and substantially mentally impaired.

5. In support of its motion, NICA attached the affidavit

of Michael Duchowny, M.D., a pediatric neurologist, and the

affidavit of Donald Willis, M.D., a board - certified obstetrician

with special competence in materna l - fetal medicine. 1/

6. Dr. Duchowny's affidavit opined, in pertinent part:

* * *

. . . The opinions delivered in this

Affidavit are all within a reasonable degree

of medical probability.

. . . The Florida Birth - Related Neurological

Injury C ompensation Association retained me

as its expert in pediatric neurology . . .

to examine the minor child, AMEL MATTHEWS -

WALKER, and review the medical records from

both AMEL MATTHEWS - WALKER and her mother,

MARLENA ROBERTS. . . .

. . . I evaluated AMEL MATTHEWS - WALKE R on

January 19, 2011. A true and accurate copy

of my neurology evaluation is attached

hereto as Exhibit 1. All of the statements

and opinion s expressed therein are true and

correct based upon my review of the records,

the history taken, and my opinions from the

evaluation of the minor child.

. . . In summary, Amel's neurologic

examination is consistent with a complete

brachial plexus palsy involving both upper

and lower segments from C5 through T1. This

combined Erb's and Klumpke's paralysis is

severe and persistent despite two

rehabilitative surgeries. In contrast,

there is no evidence of mental impairment as

Amel is functioning cognitively at age

level .

. . . The records confirm the mother's

recollections regarding Amel's birth and are

consistent wi th the acquisition of a

brachial plexus injury n [sic] the course of

delivery. Despite the severity of Amel's

right upper extremity neurological findings,

there is no evidence of involvement of the

brain or spinal cord . The injury to the

brachial plexus lies within the peripheral

nervous system and there is no evidence of

involvement of the brain or spinal cord. I

therefore believe that despite the magnitude

of her neurological findings, Amel is not

compensable under the NICA Statute.

. . . As such, it is my opinion that AMEL

MATTHEWS - WALKER is not permanently and

substantially mentally impaired due to

oxygen deprivation or mechanical injury

occurring during the course of labor,

delivery, or the immediate post - delivery

period in the hospital during the b irth of

AMEL MATTHEWS - WALKER . (emphasis added)

7. Dr. Duchowny's incorporated medical report also

provides the following assessment , among other views, " . . .

Her cognitive development is excellent and she has talked since

age 10 months. Amel is descr ibed as very sociable . . . . there

is no evidence of mental impairment as Amel is functioning

cognitively at age level."

8. Dr. Willis' affidavit reads, in pertinent part, as

follows:

. . . I am a [sic] Obstetrician,

specializing in maternal - fetal

medici ne , . . .

. . . The opinions delivered in this

Affidavit are all within a reasonable degree

of medical probability.

. . . The purpose of my review of the

medical records of AMEL MATTHEWS - WALKER and

MARLENA ROBERTS was to determine whether an

injury occurred in the course of labor,

delivery or resuscitation in the immediate

post - delivery period in the Hospital due to

oxygen deprivation or mechanical injury

occurring in the course of labor, delivery,

or resuscitation in the immediate post -

delivery peri od in the Hospital.

* * *

. . . In summary, delivery was complicated

by shoulder dystocia with resulting brachial

plexus injury and Horner syndrome. The

spine itself was not injured. Although

there was avulsion of the seventh cervical

nerve root, the MRI on DOL 3 stated that the

"cervical cord is intact". There was no

apparent obstetrical event that resulted in

loss of oxygen or mechanical trauma to the

baby's brain or spinal cord.

. . . As such, it is my opinion that there

was no oxygen deprivation or mechanical

injury occurring in the course of labor,

delivery or resuscitation in the immediate

post - deliver y in the Hospital that resulted

in loss of oxygen or mechanical trauma to

the baby's brain or spinal cord. . . .

(emphasis added)

9. Neither Pet itioner nor Intervenor filed a timely

response to the Motion for Summary Final Order 2/ alleging any

facts in opposition to NICA's motion for summary final order of

dismissal, but Petitioner Marlena Roberts, did file a letter on

March 11, 2011, alleging med ical negligence in Amel's birth and

expressing distress with NICA for asserting noncompensability.

Accordingly, a telephonic conference call was convened on

April 7, 2011, with all parties present, wherein it was agreed

that additional time would be grant ed for Ms. Roberts to consult

lawyers and medical personnel and to file a response in

opposition to the motion, if she chose to do so. Following that

April 7, 2011, hearing, an O rder was entered the same day, which

provided, in pertinent part:

This cause came on for consideration by

telephonic conference call on April 7, 2011,

with Petitioner Marlena Roberts and all

counsel present.

Upon consideration of all parties'

representations, concerns, and oral

agreements, it is

ORDERED that Petitioner and Inte rvenor are

granted to and until May 9, 2011, in which

to file a response in opposition to

Respondent NICA's pending Motion for Summary

Final Order and to show cause why the motion

should not be granted, finding no

compensability, so as to dispose the case in

this forum against Petitioner.

10. No timely response to the April 7, 2011 Order, nor to

the Motion for Summary Final Order has been filed. Accordingly,

nothing has been provided to refute the expert medical opinions

tendered by affidavits filed conc urrent with the motion.

11. Given the record, there is no dispute of material

fact. Specifically, there is no dispute that although Amel

Matthews - Walker suffered an injury at birth, that injury was not

caused by oxygen deprivation or mechanical injury an d did not

affect her brain or spinal cord, and further, that although Amel

has physical disabilities, she is not permanently and

substantially mentally impaired, because she is functioning at

age level. 3/

CONCLUSIONS OF LAW

12. The Division of Administrat ive Hearings has

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

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

13. The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of pro viding 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 .

14. 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 Compens ation 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 - rel ated

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

15 . 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 Admini strative 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 p rovisions of chapter 120, Florida

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

16 . In discharging this responsibi lity , the A dministrative

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

t he 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 participating physician in

the course of la bor, 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 t hat

obstetrical services were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

17 . 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 liv e

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 y ,

or res uscitation 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 gen etic or

congenital abnormality. (emphasis

supplied).

1 8. Here, indisputably, Amel Matthews - Walker has suffered

an injury at birth, but that injury was not caused by oxygen

deprivation or mechanical injury, and it did not affect her

brain or spinal cord. Further, although Amel has physical

disabilities, she is not permanently and substantially mentally

impaired. Given the provisions of section 766.302(2), Amel does

not qualify for coverage under the Plan. See also Fl a. Birth -

Related Neurological Injury Comp . Ass 'n v. Fl a. Div . of Admin .

Hear . , 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 (F la. 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 Injur y

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

CONCLUSION

Based upon the foregoing findings of fact and conclusions

of law, it is ORDERED:

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

2. The P etition for Benefits Pursuant to Flor ida Statute

Section 766.301, et seq . , filed by Marlena Roberts, on behalf of

and as parent and natural guardian of Amel Matthews - Walker, a

minor , be, and the same , is dismissed with prejudice.

DONE AND ORDERED this 18th day of May , 2011 , in

Tallahassee , Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 684 7

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of May , 2011 .

ENDNOTES

1 / See , e.g. , Vero Beach Care Ctr v. Ricks , 476 So. 2d 262, 264

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

s upport 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 psychiat ric 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 o bligated to present expert

medical evidence establishing that causal connection.").

2 / Rule 28 - 106.103 provides:

In computing any period of time allowed by

this chapter, by order of a presiding

officer, or by any applicable statute, the

day of the act f rom which the period of time

begins to run shall not be included. The

last day of the period shall be included

unless it is a Saturday, Sunday, or legal

holiday, in which event the period shall run

until the end of the next day which is not a

Saturday, Su nday, or legal holiday. When

the period of time allowed is less than 7

days, intermediate Saturdays, Sundays, and

legal holidays shall be excluded in the

computation. As used in these rules, legal

holiday means those days designated in

Section 110.117, F .S. Except as provided in

Rule 28 - 106.217, F.A.C., five days shall be

added to the time limits when service has

been made by regular U.S. mail. One

business day shall be added when service is

made by overnight courier. No additional

time shall be added if service is made by

hand, facsimile transmission, or electronic

mail or when the period of time begins

pursuant to a type of notice described in

Rule 28 - 106.111, F.A.C.

Rule 28 - 106.204 provides:

(1) All requests for relief shall be by

motion. All mot ions shall be in writing

unless made on the record during a hearing,

and shall fully state the action requested

and the grounds relied upon. The original

written motion shall be filed with the

presiding officer. When time allows, the

other parties may, w ithin 7 days of service

of a written motion, file a response in

opposition. Written motions will normally

be disposed of after the response period has

expired, based on the motion, together with

any supporting or opposing memoranda. The

presiding officer shall conduct such

proceedings and enter such orders as are

deemed necessary to dispose of issues raised

by the motion.

(2) Unless otherwise provided by law,

motions to dismiss the petition or request

for hearing shall be filed no later than 20

days af ter service.

(3) Motions, other than a motion to

dismiss, shall include a statement that the

movant has conferred with all other parties

of record and shall state as to each party

whether the party has any objection to the

motion.

(4) In cases in whi ch the Division of

Administrative Hearings has final order

authority, any party may move for summary

final order whenever there is no genuine

issue as to any material fact. The motion

may be accompanied by supporting affidavits.

All other parties may, wit hin seven days of

service, file a response in opposition, with

or without supporting affidavits. A party

moving for summary final order later than

twelve days before the final hearing waives

any objection to the continuance of the

final hearing.

( 5) In cases in which the Division of

Administrative Hearings has recommended

order authority, a party may file a motion

to relinquish jurisdiction whenever there is

no genuine issue as to material fact.

(6) Motions for extension of time shall be

filed prior t o the expiration of the

deadline sought to be extended and shall

state good cause for the request.

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 judgmen t 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 C o., 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)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7010 1670 0000 3097 1628)

Marlena Roberts

1591 West 14th Street

Riviera Beach , Florida 33404

(Certified Mail No. 7010 1670 0000 3097 1635)

Steven Lubell, Esquire

Lubell & Rosen

Museum Plaza, Suite 602

200 South Andrews Avenue

Fort Lauderdale, Florida 33301

(Certified Mail No. 7010 1670 0000 3097 1642)

David W. Black, Esquire

Fr ank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

(Certified Mail No. 7010 1670 0000 3097 1659)

St. Mary's Medical Center

901 45th Street

West Palm Beach, Florida 33407

(Certified Mail No. 7010 1670 0000 3097 1666)

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 1670 0000 3097 1673)

Elizabeth Dudek, Deputy Secretary

Health Quality Assurance

Agenc y for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7010 1670 0000 3097 1680)

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

to judicial rev iew 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.