11-001504N Lisa Longo And Christopher Longo, On Behalf Of And As Parents And Natural Guardians Of Victoria Ann Longo, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, April 24, 2012.

Summary: Child has intractable epilepsy which is a transient impairment. No permanent and substantial mental and physical impairment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LISA LONGO AND CHRISTOPHER )

LONGO, on behalf of and as )

parents and natural guardians )

of VICTORIA ANN LONGO, a minor, )

)

Petitioners, )

)

vs. ) Case No. 11 - 1504N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a final hearing was held in this case

on February 28, 201 2 , by video teleconference in Fort Myers and

Tallahassee , Florida, before Susan B elyeu Kirkland , a n

Administrative Law Judge of the Division of Administrative

Hearings (DOAH) .

APPEARANCES

For Petitioner s : Michael A. Petruccelli, Esquire

Fann, Petruc c elli and Genoves e, P.A.

5100 North Federal Highway, Suite 300B

Fort Lauderdale, Florida 33308

For Respondent : David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

STATEMENT OF THE ISSUE

The issue in this case is whether Victoria Ann Longo has

suffered an injury for which compensation should be awarded

under the Florida Birth - Related Neurological Injury Compensation

Plan (Plan).

PRELIMINARY STATEMENT

On March 18, 2011, Lisa Longo (Mrs. Longo) and

Christopher Longo (Mr. Longo), as the parents and natural

guardians of Victoria Ann Longo (Victoria), a minor, filed a

Petition for Benefits Pursuant to Florida Statute Section

766.301 et seq. (Petition) with DOAH under the Plan. The

Petition alleged that Victoria suffered brain damage as a result

of a difficult birth.

DOAH served the Florida Birth - Related Neurological In jury

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

March 23, 2011; served Naples Community Hospital on March 24,

2011; and served Thomas Beckett, M.D. , on June 6, 2011.

On June 14, 2011, NICA filed a response to the Petition,

giving notice that the alleged injury did not "meet the

definition of a 'birth - rela t ed neurological injury' as defined

in Section 766.3021(2), Florida Statutes, which specifically

requires that the injury render 'the infant permanently and

substantially mentally and ph ysically impaired.'" NICA

requested that a hearing be scheduled to resolve whether the

claim was compensable.

The final hearing was scheduled for November 14, 2011. On

August 17, 2011, NICA filed a Motion for Summary Final Order.

On October 25, 2011, the parties filed a Joint Motion for

Continuance. The motion was granted by Order dated October 26,

2011. By Order dated October 31, 2011, the Motion for Summary

Final Order was denied. The final hearing was rescheduled for

February 28, 2012.

On Octobe r 21, 2011, the parties filed a Joint Pre - hearing

Stipulation, in which they agreed to certain facts as set forth

in section E of the Joint P re - hearing Stipulation. These facts

have been incorporated into this Final Order.

At the final hearing, the partie s agreed that the only

issue to be determined was whether Victoria's injury resulted in

a substantial and permanent mental and physical impairment .

At the final hearing, Mrs. Longo testified in her own

behalf, and Ms. Patricia Dean was called as a live witness by

Petitioners. Petitioners also offered the deposition testimony

of Thomas Vedder, M.D., and Ian Miller, M.D. Petitioner s'

Exhibits 1, 3, 5, and 7 through 23 were admitted in evidence.

At the final hearing, NICA did not call any live witnesses.

NICA presented the deposition testimony of Raymond Fernandez,

M.D. NICA offered Respondent's Exhibits 1 through 5 and 7,

which were admitted in ev idence.

Joint Exhibit 1, the deposition testimony of

Michael D u chowny, M.D., was admitted in evidence.

The one - volume Transcript was filed on March 27, 2012. On

April 12, the parties filed their proposed final orders, which

have been considered in the preparation of this Final Order.

FINDINGS OF FACT

1. Lisa Longo and Christopher Longo are the parents and

natural guardian s of Victoria Ann Longo.

2. Victoria was born a live infant at Naples Community

Hospital in Naples, Florida, on December 20, 2006. Naples

Community Hospital was a hospital licensed in Florida on

December 20, 2006.

3. Thomas A. Beckett, M.D., was a participating physician

in the Plan in 2006 and provided obstetrical services at the

birth of Victoria. Obstetrical services were prov ided by a

participating physician in the course of labor, delivery, or

resuscitation in the immediate post - delivery period in a

hospital.

4. Victoria weighed in excess of 2,500 grams at birth.

5. NICA does not dispute that Victoria sustained an injury

to the brain caused by oxygen deprivation during resuscitation

in the immediate post - delivery period. Donald C. Willis, M.D.,

NICA's expert, opined:

[T]his baby had meconium aspiration syndrome

with severe respiratory depression and

oxygen deprivation. T he baby suffered an

intracranial hemorrhage while on ECMO.

There was no apparent obstetrical even [sic]

that resulted in loss of oxygen or

mechanical trauma to the baby's brain during

labor or delivery. This is supported by the

absence of fetal distress during labor and a

normal umbilical cord blood gas (pH7.35).

However, respiratory depression was present

at birth and progressively worsened with

oxygen deprivation starting shortly after

delivery. ECMO was required due to the

severity of respiratory de pression and was

complicated by an intracranial hemorrhage

documented on DOL 11. Subsequent MRI is

consistent with bra in damage. I am not able

to comment about the severity of the brain

damage.

6. Victoria has an intractable seizure disorder that stems

from the brain damage that she suffered during resuscitation in

the immediate post - delivery period. She has epilepsy which

cannot be controlled by medication. In April 2011, Victoria

underwent surge ry in an attempt to stop the seizures. A right

frontal lobectomy was performed resulting in the

resection/removal of a portion of Victoria's brain. The surgery

was not successful, and Victoria continue s to have seizures.

7. It is now believed that Vic toria's seizures are coming

from her left occipital lobe. Further surgery could damage

Victoria's visual fields and is not recommended by her

physicians at this time , given the risks and benefits invol v ed .

8. Victoria's seizures last on an average of ten minutes ,

which is longer than most children with epilepsy experience .

Prior to her surgery in April 2011, she had experienced a

seizure lasting two hours. It takes her many hours to a couple

of day s to recover from a seizure, depending on the length of

the seizure. However, she does return to baseline, meaning that

she returns to her normal self. There may be some short - term

memory loss. For example, she may have a seizure, and the next

day not remember what she learned in school the day before.

9. On December 2011, Victoria experienced a seizure while

at school. The seizure seemed typical for Victoria, involving

her left side and vomiting. Four minutes into the seizure,

Victoria's teacher gave her Diastat, rectally. After the

administration of t he medication, Victoria had a bowel movement,

and the teacher administered another dose of Diastat rectally.

Victoria subsequently fell asleep. She was transported to the

hospital. By the time she was examined in the emergency room,

Victoria was awake, but appear ed tired. Her parents indicated

to the emergency room staff, that this recovery was typical for

Victoria. She w as discharged from the hospital.

10. According to the records of Kimberly Nicholson, M.D.,

who treated Victoria in the emergency room, the December 2011

seizure was the first seizure that Victoria had had in three

weeks. As of the date of the final hearing, February 28, 2012,

this seizure was the most recent seizure that required a trip to

the emergency room.

11. Victoria has atte nded school since she was three years

old. She currently attends a pre - kindergarten program for

special needs children on a full - time basis. She rides the bus

to school. School personnel are aware of Victoria's seizures

and have medications which they c an administer in case of a

seizure.

12. In the school year 2010 - 2011, Victoria missed 75 days

of school due to medical problems. The majority of these days

would have been related to the surgery performed in April 2011

and an ensuing infection . No testi mony was provided on the

number of days that were missed during the current school year.

According to Ms. Longo, the seizure that occurred in

December 2011, was on a Friday and Vict o ria wa s back in school

the following Monday.

13. Victoria is an active child; she can run, walk, jump,

and play. Her coordination and motor skills are not as good as

her mother would like, but Victoria has been attending physical

therapy and continues to progress. Victoria likes to go to the

park and swing. She likes to co ok and helps her mother in the

kitchen. She like s to go into the swimming pool and can dog

paddle. Her mother describes her as smart and loving.

14. Dr. Michael D u chowny, a board - certified pediatric

neurologist, is Victoria's treating neurologist. He first began

seeing Victoria in November 2010. Dr. Duchowny has been the

chief of the Comprehensive Epilepsy Center at Miami Children's

Hospital for 30 years.

15. Dr . Duchowny has often served as an expert in

pediatric neurology in evaluating children to determine

compensability in terms of the Plan. He has evaluated

approximately 200 to 300 children during the last 20 years as an

expert for NICA. He has significant experience and

qualifications in evaluating children with medical conditions

across a wide spectrum. In the instant case, he was not

retained by NIC A to evaluate Victoria and render an opinion.

16. Dr. Duchowny opined that Victoria had not sustained

eit her a substantial and permanent mental impairment or a

substantial and permanent physical impairment. Dr. Duchowny

believe s that the issue of whether Victoria met the criteria for

NICA benefits to be a clear case and not in a "gray zone."

17. In his deposition, Dr. Duchowny stated the basis for

his opinion that Victoria did not qualify for NICA benefits.

To my knowledge, the children who qualify

for the NICA statute have to meet both,

substantial and mental and motor impairment,

and to be substanti al in the motor domain,

generally speaking, the children are not

ambulatory; and to be eligible within the

mental domain, most of the children,

generally speaking, are mentally retarded,

and that would be the minimum criteria.

From there the children are even further,

could be even further impaired.

So, for example, it is one thing to take

a child who is not ambulatory, for example,

who are bedfast, who can't roll over, who

really have overwhelming substantial motor

impairment.

Similarly, in a cogn itive domain, there

are degrees of mental retardation, beginning

with mild mental retardation, progressing

all the way to really profound cognitive

deficits. As I said, I think Tori

[Victoria] has impairments, but I don't

thinks that she fits within those criteria.

* * *

[M]any of the children, for example, are

quadriplegic, microcephalic, they have

difficult spa s ticity, they might not be able

to roll over or sit up, they have indwelling

ga s trostomy tubes, they might have severe

orthopedic pro blems; this is the typical

profile of the child who is admitted to the

NICA program, in my experience.

18. Dr. Duchowny described Victoria as a very engaging

girl, friendly, outgoing, and fun. She has receptive and

communicative skills. She is able to understand and respond

appropriately and interacts with others. It is Dr. Duchowny's

opinion that her social development is "exceptionally good , " but

delayed for her age. He believes that Victoria will be able to

attend school and will continue to learn and develop.

19. In the future, a s an epileptic, Victoria will not be

able to legally drive in Florida. Dr. Duchowny opines that she

will be able to work, but that her limitations would preclude

her from earning a high income.

20. Victoria has no spas tic i ty, full range of movement,

and no atrophy. She has normal muscle bulk, normal strength and

normal tone. Her fine motor coordination is compromised. She

is clumsy and poorly coordinated for her age.

21. Taking into account all the foregoing, inclu ding

Victoria's permanent seizure condition, it is Dr. Duchowny's

opinion that Victoria's seizure condition and it effects are not

sufficient to qualify her as reaching a threshold of permanent

and substantial mental and physical impairment. His opinions

are credible, well - founded , and supported by his evaluation of

Victoria's medical condition.

22. Ian Miller, M.D., is a pediatric neurologist with an

expertise in epileptology. He was board - certified in 2008 in

neurology with special expertise in child n eurology. He is one

of the team members who have treated Victoria at Miami

Children's Hospital.

2 3 . Prior to the instant case, Dr. Miller has never

testified in a case in which benefits are being sought under the

Plan. He has never be en retained by NICA to give an expert

opinion, and he has never read any opinions or cases involving

children that have been qualified for benefits under the Plan.

2 4 . It is Dr. Miller's opinion that Victoria has a

permanent seizure condition b ut that a seizure condition in and

of itself does not render a child permanently and substantially

mentally and physically impaired. A seizure is a temporary

event, and a person will return to baseline following the

seizure and after recovery from any medications used to control

the s eizure. The seizure should not cause any permanent loss as

to what the person has learned, but there may be a temporary

loss as to what was learned immediately prior to the seizure.

2 5 . Dr. Miller's testimony does not support a conclusion

that Victoria h as a substantial and permanent physical

impairment. She is ambulatory and does not exhibit any

spasticity. While she may not be able to walk while she is

having a seizure, she does recover and can walk after the

seizure. It is Dr. Miller's opinion that Victoria will be able

to attend school, and could probably be in a mainstream class.

2 6 . Dr. Miller is concerned that the seizure condition

will create a significant barrier to Victoria's learning and

social development. He feels that Victoria has the a bility to

learn, but that she may have absences from school as a result of

the seizures that would slow her learning. He also feels that

her social appropriateness in a classroom will be a barrier to

learning. He stated:

Teachers are not accommodating to kids that

stand out in school. They have way too much

on their plates already. They're

underfunded and they have too few resources,

and trouble making kids, which is what this

manifests as later on, to get sent to the

principal's office and expelled.

I t is assumed that this scenario is based on Victoria being

placed in a mainstream class, rather than a special education

class.

2 7 . Dr. Miller's testimony does not support a finding that

Victoria has a permanent and substantial mental and physical

impairm ent.

2 8 . In March 2011, Victoria was evaluated by Brandon

Korman, Psy.D, at Miami Children's Hospital prior to Victoria's

right frontal lobectomy. His examination revealed the following:

Victoria was functioning in the low average

range, with much stronge r verbal than

nonverbal skills, better receptive than

expressive language, and poor speech

articulation. She had weak problem - solving

and fine motor skills, with an inefficient

writing grip. She demonstrated poor

attention and significant off - task behavi or

during testing. Victoria was at that time

about 9 months below grade level

academically.

29 . Victoria 's actions are often socially inappropriate.

When she does not get her way, she will throw a temper tantrum.

Her mother describes her a s a loving c hild who likes attention

and wants to give attention to others with hugs and kisses. She

is impulsive and has a short attention span. Dr. Korman

recommended intense behavioral therapy as well as speech and

occupational therapy.

3 0 . Victoria's pediatrici an is Charles Todd Vedder, M.D.

He does not currently treat any children who have qualified for

NICA be nefits. He has never been asked to evaluate a child to

determine whether the child qualifies for benefits under the

Plan.

3 1 . It is Dr. Vedder's opinion that the recovery time

after a seizure is a transient condition, and the patient will

return to baseline after the recovery.

3 2 . Dr. Vedder believes that Victoria has developmental

delays, but that she will continue to progress. She will be

able to toilet herself, brush her teeth, groom her hair, and

things of that nature. However, it is his opinion that she will

never catch up with her peer s . Dr. Vedder's testimony does not

support a conclusion that Victoria has a permanent and

substantial men tal and physical impairment as contemplated by

the Plan.

3 3 . Patricia Dean, is a nurse practitioner, and the

clinical coordinator of the Comprehensive Epilepsy Program at

Miami Children's Hospital. She has work ed at Miami Children's

Hospital in dealing w ith children with epilepsy for 30 years.

Ms. Dean works under the direction of the neurologists at Miami

Children's Hospital, which includes Dr. Miller and Dr. Duchowny.

3 4 . Ms. Dean was part of the team at Miami Children's

Hospital that treated Victoria . She believes that Victoria has

sustained a significant amount of brain damage and cognitive

impairment. She does not feel that Victoria will ever be able

to live alone when she is age appropriate because of her seizure

condition.

3 5 . Ms. Dean opined t hat Victoria will never drive a car,

hold a job, or live independently. She thinks that Victoria

will continue to improve and progress in school but it will be

at a slower pace than her peers. Ms. Dean agrees with

Dr. Korman that Victoria's intelligence quotient is in the low -

average range.

3 6 . Ms. Dean is in agreement with Dr. Vedder that a

seizure is a transient event and that a person with epilepsy

typically returns to baseline after recovery from a seizure.

Persons who experience seizures will typic ally have short - term

memory loss, meaning that they will forget what they learned the

day before the seizure.

3 7 . Ms. Dean has the opinion that Victoria meets the

qualifications for benefits from the Plan. Other than the

instant case, Ms. Dean has never been asked to testify in a

proceeding to determine compensability under the Plan. Based on

her testimony, it is concluded that Ms. Dean has the opinion

that because Victoria will never be a "normal" child that she

should qualify for benefits pursuant to t he Plan. While it is

true that Victoria will never be "normal," her impairments do

not rise to the level of permanent and substantial mental and

physical impairments c ontemplated as compensable under the Plan.

3 8 . Dr. Raymond Joseph Fernandez, M.D., eval uated Victoria

at the request of NICA. He is board - certified in pediatrics and

neurology together with child neurology and has been practicing

pediatric neurology for 35 years.

39 . Dr. Fernandez has evaluated approximately 15 to 20

children on behalf of NICA to determine whether they qualify for

benefits under the Plan. He is familiar with the applicable

guidelines and, in fact, has opined in the majority of the cases

that the child ren do qualify under the criteria of the Plan.

4 0 . Dr. Fernandez reviewed Victoria's medical records and ,

on June 1, 2011, evaluated Victoria in person. I n this

particular case, he does not feel that Victoria meets the

applicable qualifications. In fa ct, when questioned as to

whether this case is a close call, he opined that it was not a

close call and that Victoria clearly does not qualify under the

applicable criteria. She does not have a substantial and

permanent motor impairment and does not have a substantial and

permanent mental impairment. He opined that the seizure

condition is an intermittent impairment and not a permanent

impairment.

4 1 . When Dr. Fernandez examined Victoria, she displayed a

high activity level, and her attention span was sh ort. He asked

her questions such as her name, age, and birthday. Victoria

responded appropriately to the questions. She told

Dr. Fernandez her brother's name and counted her fingers up to

three correctly. Victoria was able to speak single words and

sho rt phrases. She identified colors, drew circles on request,

and copied an "X" when demonstrated. Dr. Fernandez observed

that Victoria could walk well independently, run, jump off the

ground on two feet, and hop on either foot alone. She was able

to stac k one - inch cubes.

4 2 . It is Dr. Fernandez's opinion that Victoria has the

capacity to learn and to develop socially. Learning will not be

easy for Victoria, but she has the capability to learn. He

believes that she will be eventually able to engage in gainful

employment. He feels that Victoria will be able to attend

school and could be in a mainstream class with some

accommodations for her short attention span , such as a tutor .

4 3 . Dr. Fernandez's opinion that Victoria does not have a

permanent and su bstantial mental and physical impairment is

credited.

CONCLUSIONS OF LAW

4 4 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 766.301 - 766.316 , Fla. Stat. (20 11 ).

4 5 . The Plan was established by the Legislature "to

provide compensation on a no - fault basis, for a limited class of

catastrophic injuries that result in unusually high costs for

custodial care and rehabilitation." § 766.301 . The Plan

applies only to a birth - related neurological injury, which is

defined in section 766.302(2) as follows:

'Birth - related neurological injury' means

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

multipl e 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 pe rmanently 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) .

4 6 . The injured infant, her or his p ersonal

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

compensation under the plan by filing a claim for compensation

with D O AH. §§ 766.302(3), 766.303(2), and 766.305(1). The

Florida Birth - Related Neurological Injury Compensation

Associa tion, 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 submit relevant written information

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

neurologica l injury." § 766.305(4).

4 7 . 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). 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.

4 8 . In discharging this responsibility, the A dministrative

L aw J udge must make the following determinations based upon all

available evidence:

(a) Whether the injury claimed is a

birth - related neurological inju ry. 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

a nd substantially mentally and physically

impaired, a rebuttable presumption shall

arise that the injury is a birth - related

neurological injury as defined in s.

766.302(2).

(b) Whether obstetrical services were

delivered by a participating physician in

t he 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 imme diate 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 b y a participating physician

at birth." § 766.31(1).

49. The parties have stipulated that a participating

physician provided obstetric services at Victoria's birth in a

hospital licensed in Florida. Victoria was born a live infant

and weighed more than 2 ,500 grams. NICA agrees that Victoria

sustained an injury to the brain caused by oxygen deprivation

during resuscitation in the immediate post - delivery period. The

issue to be determined is whether the injury resulted in a

permanent and substantial menta l impairment and a permanent and

substantial physical impairment , inasmuch as both are required

to establish compensability . Fla. Birth - Related Neurological

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

(Fla. 1997)(the "Birnie" decision).

50. Petitioners have the burden to establish that the

i njury Victoria sustained resulted in her being rendered

permanently and substantially menta lly and physically impaired.

§ 766.309(1)(a). See also Balino v. Dep't of Health & Rehab.

Servs. , 348 So. 2d 349, 350 (Fla. 1st DCA 1977)("[T]he burden of

proof, apart from statute, is on the party asserting the

affirmative of an issue before an administrative tribunal. " ) .

51. The Legislature did not define "permanently and

substantially mentally and physically impaired." However, those

terms should be read in the context of the legislation creating

the Plan. The Legislature intended that only a limited class of

catastrophic i njuries be compensable under the Plan.

5 2 . In Matteini v. Florida Birth - Related Neurological

Injury Compensation Association , 946 So. 2d 1092 , 1095 (Fla. 5th

DCA 2006), the court discussed the criteria for a physical

impairment.

Under the Plan, a " physical impairment "

relates to the infant's impa irment of his

"motor abnormalities" or "physical

functions," which along with the brain

injury significantly affects the infant's

mental capabilities so that the infant will

not be able to translate his cogn itive

capabilities into adequate learning or

social development in a normal manner.

5 3 . The evidence is clear that Victoria does not have a

permanent and substantial physical impairment. She can run,

walk, hop, draw, speak, communicate, stand, and sit u p. She has

no spasticity and no atrophy. She helps her mother cook and dog

paddles in the swimming pool.

5 4 . Victoria does have an intractable seizure condition

and during the seizures and part of the recovery time after a

seizure, she may not be able t o walk, sit up, or communicate.

However, once she has recovered from the seizure she returns to

baseline, which means that she can do all the physical

activities that she did before the seizure. The seizures are a

transient impairment.

5 5 . In Adventist Health System/Sunbelt, Inc. v. Florida

Birth - Related Neurological Injury Compensation Association , 865

So. 2d 561, 567 (Fla. 5th DCA 2004), the court in explaining the

Birnie decision stated: "[U]nder NICA, the identification of a

substantial mental impai rment may include not only significant

cognitive deficiencies but can include, in a proper case,

additional circumstances such as significant barriers to

learning and social development."

5 6 . The child in the Birnie decision was found to have

both permanent and substantial mental and physical impairments,

although tests indicated that he was average or above average in

his cognitive skills and preacademic skills. The child in

Birnie is described as follows:

At the time of the hearing in this case,

Eric was 4 1/2 years old. He was unable to

stand up, walk, or crawl. His only method

of independent mobility was to roll over.

The use of his hands and arms was very

limited. He also had great difficulty

talking and/or communicating and he must

take long pauses to formulate a response to

any inquiry.

Eric's brain dysfunction is permanent.

Because Eric's speech is greatly impacted by

his condition, it is virtually certain that

he will always be severely limited in his

verbal expression and other communication

skills. While continued therapy may help

him to communicate better and to become

somewhat more mobile, he will almost

certainly never be able to walk, feed, groom

or toilet himself.

* * *

As a direct re sult of his injury, Eric will

not be able to communicate, attend school or

otherwise learn and develop intellectually

without substantial accommodation. His

social and vocational development have

unquestionably been significantly impaired.

688 So. 2d at 1352.

5 7 . There is a sharp contrast between Victoria and the

child in the Birnie decision. Victoria does have a short

attention span and at times demonstrates social ly inappropriate

actions. Dr. Korman feels that intense behavior therapy would

address a nd rem e diate some of her developmental issues. S he has

the capability to learn and has shown improvement as she

develops. She does attend school and should be able to continue

to do so in the future. There are some disagreements among the

experts whethe r she can attend a mainstream class or whether she

would be better suited to attend a special education class.

However, there is agreement that she can attend school and that

she can learn while in school.

5 8 . Petitioners argue that because of her seizur e

activities, Victoria will be absent from school so much that she

will be unable to learn. The evidence did establish that she

missed an extraordinary amount of time from school during the

2010 - 2011 school year. Much of this time was attributed to her

h ospitalization for surgery and an infection which developed

after surgery. There was no evidence presented as to the number

of days that Victoria has missed in the current school year;

therefore, no conclusion can be drawn that she is currently

missing so much school that she cannot learn or that her

learning would be drastically curtailed. None of the experts

have opined that learning will be easy for Victoria. It will be

hard work for her, but she has the capability to learn.

5 9 . Victoria's intelligence quotient is in the low - average

range. She can communicate and respond to questions

appropriately. She can count and identify colors. She is a

loving child, and her mother describes her as smart.

60 . Petitioners have failed to me et their burden to

demonstrate that Victoria has a permanent and substantial mental

and physical impairment.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the petition filed by Lisa Longo and

Christopher Longo on behalf of and as parents and natural

guardian s of Victoria Longo is dismissed with prejudice.

DONE AND ORDERED this 24th day of April, 2012, in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administr ative 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 Administrative Hearings

t his 24th day of April, 2012.

COPIES FURNISHED :

(Via Certified Mail)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(Certified Mail No. 7011 1570 0001 1540 5550)

Michael A. Petruccelli, Esquire

Fann, Petruccelli and Genovese, P.A.

5100 North Federal Highway, Suite 300B

Fort Lauderdale, Florida 33308

(Certified Mail No. 7011 1570 0001 1540 5567)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation A ssociation

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0001 1540 6014)

Thomas Beckett, M.D.

11181 Health Park Boulevard, Suite 1000

Naples, Florida 34110

(Certified Mail No. 7011 1570 0001 1540 6021)

Naples Community Hospital

350 Seventh Street North

Naples, Florida 33941 - 3028

(Certified Mail No. 7011 1570 0001 1540 6038)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florid a 32399 - 3275

(Certified Mail No. 7011 1570 0001 1540 6045)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7011 1540 0001 1540 6052)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

by appeal to the District Court of Appeal pursuant to section

766.311(1), Florida Statutes. Review proceedings are governed

by the Florida Rules of Appellate Procedure. Such proceedings

are commenced by filing the original notice of administrative

appeal with the agency clerk of the Division of Administrative

Hearings within 30 days of rendition of the order to be

reviewed, and a copy, accompanied by filing fees prescribed by

law, with the cl erk of the appropriate District Court of Appeal.

See § 766.311(1), Fla. Stat., and Fla. Birth - Related

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

(Fla. 1st DCA 1992).