11-003286N Carmen Zumpone And Frank Zumpone, On Behalf Of And As Parents And Natural Guardians Of Nicoletta Zumpone, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, December 20, 2011.

Summary: Infant is not permanently and substantially mentally nor permanently and substantially physically impaired. Motion for Summary Final Order granted. (SFO)

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARMEN ZUMPONE AND FRANK )

ZUMPONE, on behalf of and as )

parents and natural guardians )

of NICOLETTA ZUMPONE, a minor , )

)

Petitioners , )

)

vs. ) Case No. 11 - 3286N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOC IATION , )

)

Respondent, )

)

and )

)

BRIJMOHAN SINGH, M.D., LILY )

WHETSINE, M.D., AND PEDIATRIX )

MEDICAL GROUP OF FLORIDA, INC., )

)

Intervenor s . )

)

SUMMA RY FINAL ORDER

This cause came on for consideration up on Respondent

Florida Birth - Related Neurological Injury Compensation

Association's (NICA's) Motion for Summary Final Order served and

filed November 2, 2011.

STATEMENT OF THE CASE

1. On J une 27, 2011 , Carmen Zumpone and Frank Zumpone, on

behalf of and as parents and natural guardians of Nicoletta

Zumpone, filed with the Division of Administrative Hearings

(DOAH), a "Petition for Benefits Under Protest Pursuant to

Florida Statute Section 766.301 et seq .," for compensation under

the Florida Birth - Related Neurological Injury Compensation Plan

(NICA Plan) for injuries allegedly associated with Nicoletta

Zumpone's birth on January 7, 2010. 1/

2. The petition alleged that Nicoletta Zumpone was born at

Boca R aton Community Hospital 2/ and that Joy Boscove, CNM, was a

"participating physician" delivering obstetrical services at

Nicoletta's birth. The petition made no allegations with regard

to the notice required of obstetricians and hospitals which

participate in NICA, and did not provide information with regard

to whether or not a circuit court civil action already had been

filed concerning the same or other persons or entities

associated with Nicoletta's birth. 3/

3. Pertinent to the pending motion are the fo llowing

allegations of the petition:

* * *

1. . . . Petitioners take the position that

the injuries to the minor are not

compensable under NICA. Petitioners are

also filing this Petition to preserve the

statute of limitations under NICA.

* * *

5. It is alleged that Nicoletta Zumpone

suffered injuries which include , but may not

be limited to a brachial plexus injury .

* * *

It is alleged that Nicoletta Zumpone

suffered injuries which include, but may not

be limited to, a brachial plexus/Erb's Pa lsy

injury as a result of a difficult birth.

(emphasis added).

4. DOAH served NICA with a copy of the claim on June 30,

2011; served Boca Raton Community Hospital on July 5, 2011; and

served Joy A. Boscove, ARNP , on August 17, 2011. DOAH's case

file co ntains signed certified mail receipts from each of these

persons or entities.

5. Upon appropriate petition/motion and order, Brijmohan

Singh, M.D.; Lily Whetstine, M.D.; and Pediatrix Medical Group

of Florida, Inc. ; have been granted Intervenor status. T hese

Intervenors are neonatologists whom Petitioners have sued in

circuit court. They allege that the circuit court action is in

connection with Nicoletta's "immediate postdelivery

resuscitation period in the hospital." 4/ No other person or

entity has mo ved to intervene.

6. On October 24, 2011, after a single extension of time

in which to file its response as contemplated by section

766.305(4), Florida Statutes, NICA filed its Notice of Non -

Compensability and Request for Evidentiary H earing , and on

Novem ber 1, 2011, filed an Amended Notice of Non - Compensability

and Request for Evidentiary Hearing. The filings are consistent

with each other.

7. On November 2, 2011, Respondent NICA served and filed a

Motion for Summary Final Order , the thrust of which is that

Nicoletta Zumpone did not suffer a birth - related neurological

injury as defined by statute because she does not have a

permanent and substantial physical impairment or a permanent and

substantial mental impairment.

8. On November 4, 2011, Petitioners filed a Notice of

Joinder with Respondent's Motion for Summary Final Order.

9. Intervenors did not file a response to the Motion for

Summary Final Order within the time allotted by rule. 5/

10. Accordingly, on November 16, 2011, an Order to Show

Cause wa s entered, which provided, in pertinent part:

On November 2, 2011, Respondent served

a Motion for Summary Final Order.

Petitioners filed a Notice of Joinder

therein on November 4, 2011. Intervenors

have not responded to the Motion within the

time allott ed by rule. 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 November 30, 2011,

Intervenors shall show good cause in

writing, if any they ca n, why the relief

requested by Respondent should not be

granted.

11. No responses in opposition to NICA's Motion for

Summary Final Order have been filed.

12. NICA retained Donald Willis, M.D., a board - certified

obstetrician with special competence in ma ternal - fetal medicine

to examine the child's medical records and Michael Duchowny,

M.D., a pediatric neurologist, to examine the records and the

child. NICA's Motion for Summary Final Order concedes that:

* * *

. . . NICA had the medical records evalua ted

by Dr. Donald Willis, M.D., who did opine

that the delivery was complicated by a

shoulder dystocia and resulted in a

depressed newborn, and that oxygen

deprivation occurred during delivery and the

immediate post - delivery period . . . .

. . . Upon exam ination of the child and the

pertinent medical records, Dr. Duchowny

opined that Nicoletta Zumpone does not have

a permanent and substantial mental

impairment, nor does she have a permanent

and substantial physical impairment.

13. Attached to the Motion for Summary Final Order was the

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

who opined within a reasonable degree of medical probability

that:

* * *

3. The Florida Birth - Related Neurological

Injury Compensation Association retained me

as its expert in pediatric neurology in the

above - styled matter to examine the minor

child, NICOLETTA ZUMPONE, and review the

medical records from both NICOLETTA ZUMPONE

and her mother, CARMEN ZUMPONE. The purpose

of my review of the medical records a nd

evaluation of NICOLETTA ZUMPONE was to

determine whether she suffers from an injury

which rendered her permanently and

substantially mentally and physically

impaired, and whether such injury is

consistent with an injury caused by oxygen

deprivation or m echanical injury occurring

during the course of labor, delivery, or the

immediate post - delivery period in the

hospital.

4. I evaluated NICOLETTA ZUMPONE on

October 12, 2011. A true and accurate copy

of my neurology evaluation dated October 15,

2011 is a ttached hereto as Exhibit 1. All

of the statements and opinions 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.

5. I reviewed medical records which we re

sent to me on August 16, 2011. They provide

detailed information regarding Nicoletta's

medical problems at birth and confirm the

statements articulated by Nicoletta's

mother. There were no findings to suggest

that Nicoletta sustained either a permanen t

or substantial brain injury due to either

mechanical injury or oxygen deprivation . In

fact, Nicoletta's present neurological

examination reveals no mental or motor

impairments apart from her Erb's palsy and

she is essentially at age level in both

domain s. Her residual right upper extremity

Erb's palsy results from trauma outside the

central nervous system. Nicoletta has made

significant progress and I suspect she will

continue to improve in the future.

6. As such, it is my opinion that NICOLETTA

ZUMP ONE does not qualify for coverage under

the criteria of the NICA Plan, based on my

Report and the foregoing reasons. [ 6/ ]

(emphasis added).

14. Given that there has been no response in opposition to

the Motion for Summary Final Order, there is no dispute of

material fact that, regardless of whether or not Nicoletta

suffered some oxygen deprivation in the statutory period (in the

course of "labor, delivery, or resuscitation in the immediate

postdelivery period"), and although she may suffer some residual

p roblems, she does not suffer from either a substantial mental

or motor impairment. 7 /

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

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

these proceedings. §§ 766.301 - 766.316, Fl a. Stat.

1 6 . 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 o n or after January 1, 1989. § 766.303(1), Fla. Sta t .

1 7 . 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 Adminis trative 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(4), Fla. Stat.

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

is a com pensable 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 Administrative Law

Judge in accordance with the provisions of chapter 120, Florida

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

19 . In discharging this respon sibi 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 administra tive 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 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.

20 . 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 wei ghing

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 me ntally 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 ).

21. Here, indisputably, Nicoletta Zumpone suffers no

permanent and substantial motor (physical) impairment apart from

her Erb's palsy, which physical impairment does not affect

either her brain or spinal cord. She also is without

substantial mental or physical impairment , as she is progressing

at age level in both domain s . In order to be compensable under

NICA, the child must be both "permanently and substantially

mentally impaired" and "permanently and substantially physically

impaired." Given the provisions of section 766.302(3),

Nicoletta Zumpone 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 ph ysical 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 and conclusions

of law, it is ORDERED:

1. NICA's Unopposed Mot ion for Summary Final Order is

granted.

2. The P etition filed by Carmen Zumpone and Frank Zumpone,

on behalf of and as parents and natural guardians of Nicolette

Zumpone, is dismissed with prejudice.

DONE AND ORDERED this 20th day of December , 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 (8 50) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of December , 2011 .

ENDNOTES

1/ Petitioners allege d that the NICA Plan is unconstitutional,

but that "out of an abundance of caution and due to other court

rul ings which have required other petitioners to pursue this

avenue initially, Petitioners are filing this Petition for

Benefits Under Protest. "

2/ This is the "hospital" as contemplated by section 766.302(2)

and (6).

3/ See sections 76 6.302(7) and 766.309(1)(b) , defining

"participating physician." See also Tarpon Springs Hospital

Foundation, Inc. v. Anderson , 34 So. 3d 742 (Fla. 3d DCA 2010).

4/ See section 766.316, and All Children's Hospital, Inc. v.

Department of Administrative Hearings , 29 So. 3d 992 (Fla. 2010)

holding non - obstetricians are not re quired to give pre - delivery

notice.

5/ 28 - 106.103 Computation of Time

In computing any period of time allowed by

this chapter, by order of a presiding

officer, or by any applicab le statute, the

day of the act from 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, Sunday, 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.

28 - 106.104

(4) In cases in which 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, within seven days of

s ervice, 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.

6/ See , e.g. , Vero Beach C are 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 observable."); Ackley v. Gen. Parcel

Servs. , 646 So. 2d 242, 245 (Fla. 1s t 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 whic h

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.").

7/ 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 sufficie nt 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)

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

(Certified Mail No. 7011 1570 0001 1540 5062)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(Certified Mail No. 7011 1570 0001 1540 5079)

Karissa L. Owens, Esquire

Rissman, Barrett, Hurt,

Donahue and McLain, P.A.

201 East Pine Street, Suite 1500

Orlando, Florid a 32801

(Certified Mail No. 7011 1570 0001 1540 5086)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0001 1 540 5093)

Joy A. Boscove, ARNP

6853 Southwest 18th Street

Suite 301

Boca Raton, Florida 33433

(Certified Mail No. 7011 1570 0001 1540 5109)

Boca Raton Community Hospital

800 8th Street

Boca Raton, Florida 33486

(Certified Mail No. 7011 1570 0001 154 0 5116)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7011 1570 0001 1540 5123)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0001 1540 5130)

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 clerk of the appropriate District Court of Appeal.

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

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

(Fla. 1st DCA 1992).