98-002991N Crystal Waddell, F/K/A Chelsey Davis vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, May 11, 1999.

Summary: Association`s acceptance of the claim approved, and parental award apportioned between the parents.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRYSTAL WADDELL, as parent and )

natural guardian of CHELSEY DAVIS, )

a minor, )

)

Petitioner, )

)

vs. ) Case No. 98-2991N

)

FLORIDA BIRTH-RELATED NEUROLOGICAL )

INJURY COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

WILLIAM DAVIS, )

)

Intervenor. )

___________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings,

by Administrative Law Judge, William J. Kendrick, held a formal

hearing in the above-styled case on January 27, 1999, by video

teleconference with sites at Tallahassee and Jacksonville,

Florida.

APPEARANCES

For Petitioner: Merrill C. Tunsil, Esquire

Post Office Box 2113

Lake City, Florida 32056

For Respondent: W. Douglas Moody, Jr., Esquire

Graham & Moody, P.A.

101 North Gadsden Street

Tallahassee, Florida 32301

For Intervenor: I. Mark Rubin, Esquire

Rubin & Rubin, P.A.

2107 Hendricks Avenue, Suite 210

Jacksonville, Florida 32207

STATEMENT OF THE ISSUES

At issue in this proceeding is whether Respondent's proposal

to accept the subject claim for compensation under the Florida

Birth-Related Neurological Injury Compensation Plan should be

approved and, if so, the amount and manner of payment (lump sum

or periodic) of the parental award and the appropriate

apportionment of the award between the parents.

PRELIMINARY STATEMENT

On June 9, 1998, Crystal Waddell, as the natural mother and

guardian of Chelsey Davis (Chelsey), a minor, filed a claim with

the Division of Administrative Hearings (hereinafter referred to

as "DOAH") for compensation under the Florida Birth-Related

Neurological Injury Compensation Plan (hereinafter referred to as

the "Plan").

DOAH served the Florida Birth-Related Neurological Injury

Compensation Association (hereinafter referred to as "NICA") with

a copy of the claim on July 13, 1998. 1 NICA reviewed the claim

and on September 24, 1998, gave notice that it "agrees that

Chelsey Davis suffered a birth-related neurological injury as

defined in Section 766.301(2), Florida Statutes," and that it was

"prepared to provide medical benefits as provided by Section

766.31(1)(a) and [was] willing to offer the benefits as provided

in Section 766.31(1)(b)."

On November 2, 1998, DOAH issued a notice of hearing

advising the parties that an evidentiary hearing would be held on

November 30, 1998, to resolve "[w]hether Respondent's acceptance

of the claim should be approved, the amount and manner of payment

(lump sum or periodic) of any parental award, any dispute

regarding expenses previously incurred and any other dispute."

At the request of Petitioner and Respondent, the hearing was

rescheduled for January 27, 1999. The natural father, William

Davis, received notice of the hearing and, at hearing, requested

and was granted leave to intervene.

At hearing, the parties stipulated to the matters addressed

in paragraphs 1 through 4 of the Findings of Fact. Moreover, the

parties agreed that the administrative law judge would officially

recognize and consider the medical records filed with DOAH on

June 15, 1998; the report of Michael S. Duchowny, M.D., filed

with DOAH on September 28, 1998; and the Stipulation filed with

DOAH on December 22, 1998. Finally, Petitioner, Crystal Waddell,

testified on her own behalf and called Cheryl Chieves as a

witness. Intervenor, William Davis, testified on his own behalf

and called Eric Blair as a witness. Intervenor's Exhibits A1

through A30, B, C, and F were received into evidence. 2

The transcript of hearing was filed March 17, 1999, and the

parties were initially accorded 10 days from that date to file

proposed final orders; however, at Petitioner's request the

deadline was extended to May 10, 1999. Petitioner and Intervenor

elected to file such a proposal and they have been duly-

considered.

FINDINGS OF FACT

The claim for compensation

1. Petitioner, Crystal Waddell, and Intervenor, William

Davis, are the natural parents of Chelsey Davis (Chelsey), a

minor. Chelsey was born a live infant on August 23, 1997, at

University Medical Center, a hospital located in Jacksonville,

Florida, and her birth weight was in excess of 2500 grams.

Ms. Waddell and Mr. Davis are not now, nor have they ever been,

husband and wife.

2. The physician providing obstetrical services during the

birth of Chelsey was Edward Illions, M.D., who was, at all times

material hereto, a participating physician in the Florida Birth-

Related Neurological Injury Compensation Plan (the Plan), as

defined by Section 766.302(7), Florida Statutes.

3. Here, the parties agree that Chelsey suffered a "birth-

related neurological injury" as defined by Section 766.302(2),

Florida Statutes, in that she suffered an injury to the brain

caused by oxygen deprivation in the course of labor, delivery, or

resuscitation in the immediate post-delivery period in the

hospital, which rendered her permanently and substantially,

mentally and physically impaired. The medical records filed with

DOAH on June 15, 1998, as well as the report of neurological

evaluation by Michael S. Duchowny, M.D., filed with DOAH on

September 28, 1998, are consistent with the parties' agreement.

Consequently, it is accepted that Chelsey suffered a "birth-

related neurological injury," as defined by Section 766.302(2),

Florida Statutes.

4. Given the compensability of the claim, NICA agreed as

follows:

8. The Association agrees to pay

$100,000.00 as follows:

a) Ms. Crystal Waddell has requested that

$6,000.00 be paid to Ms. Cheryl Chieves as

reimbursement for funds which she has loaned

Ms. Waddell. The Association has no

objection to this payment. The Association

and Ms. Waddell also request that the

Administrative Law Judge schedule a hearing

as soon as feasible to determine the

entitlement of the mother and/or father, if

any, to the parental award.

b) The Association will pay all benefits,

past and future, as authorized by Section

766.31, Florida Statutes. . . .

c) The Association agrees that $3,753.25,

which includes fees and expenses incurred in

the representation of the Claimant in this

case, will be paid to Merrill C. Tunsil,

Esquire, the attorney for the claimant.

(Stipulation filed December 22, 1998.) Consequently, at the

commencement of hearing, the parties stipulated that the only

issues which remained for resolution were the apportionment of

the $100,000.00 award between the parents, and whether such award

should be made in lump sum or by periodic payment. (Transcript,

page 8.)

Background

5. Chelsey's mother, Crystal Waddell (Ms. Waddell), was

born May 30, 1979, and was 18 years of age when Chelsey was

born. 3 Chelsey, born August 23, 1997, was the product of

Ms. Waddell's first pregnancy.

6. According to the proof, Ms. Waddell's formal education

ceased following her completion of the 11th grade. Thereafter,

she was employed by Arby's and, subsequently, by McDonald's in

the years preceding Chelsey's birth. Following Chelsey's birth,

Ms. Waddell, with the assistance of her mother, dedicated herself

to Chelsey's care; however, recently, Ms. Waddell resumed her

formal education, with the aim of completing her high school

education.

7. Chelsey's father, William Davis (Mr. Davis), was born

March 31, 1980, and was 17 years of age when Chelsey was born.

At the time, Chelsey was the second child Mr. Davis had fathered

without the benefit of marriage.

8. According to the proof, Mr. Davis abandoned his formal

education during the 8th grade and, since that time, has been

periodically employed in various unskilled positions. Such

employment has included a term at McDonald's (where he and

Ms. Waddell met); a period of approximately 6 weeks at John

Rigsby Painting Company, Raleigh, North Carolina, at and shortly

after Chelsey's birth; a term at Top Choice Poultry, following

Chelsey's birth and his return to Jacksonville, Florida; and,

most recently (since approximately September 1998), employment by

Bill Williams Heating and Air Conditioning, where he nets

approximately $180.00 each week. As of the date of hearing,

Mr. Davis announced that he had recently (that week) started a

program designed to achieve his GED and, if successful, hoped to

begin an apprenticeship program with his current employer. The

nature of Mr. Davis' current employment or the apprenticeship

program is not of record.

9. Approximately one year preceding Chelsey's birth,

Ms. Waddell and Mr. Davis met while employed at a McDonald's

restaurant in Jacksonville, Florida. Apparently, their

relationship blossomed and, based on a perceived foundation of

love and devotion, they designed to have a child and Chelsey was

conceived.

10. While Ms. Waddell and Mr. Davis may have initially felt

a sense of purpose or closeness, their relationship proved to be

tempestuous. Moreover, while they initially professed commitment

and sought parenthood, the couple was never capable of sustaining

themselves, much less an infant. Indeed, throughout the course

of their relationship, and to this date, Ms. Waddell has

continued to reside with her mother, Cheryl Chieves

(Ms. Chieves).

11. As Ms. Waddell's delivery date neared, Mr. Davis, who

was apparently unemployed at the time, elected to go to Raleigh,

North Carolina. According to Mr. Davis, the reason for the trip

was two-fold. One reason was to visit his son (the issue of a

previous relationship). The other reason was "I had a job

waiting there to get some money up, you know." (Transcript,

page 131.) As for the duration of the trip, the record reflects

that Mr. Davis remained in Raleigh for 3 months, returning at the

end of November 1997 when Chelsey was 3 months old. As for the

promised job, the proof reflects that Mr. Davis was employed by

John Rigsby Painting Company for the first 6 weeks of his stay in

Raleigh, but was otherwise unemployed.

12. At or about 10:54 p.m., August 22, 1997, Ms. Waddell

was admitted to University Medical Center in labor, and at

12:30 a.m., August 23, 1997, her membranes spontaneously

ruptures, with clear fluid noted. Ms. Waddell's labor and

delivery was noted in her discharge summary as follows:

The patient was admitted to Labor and

Delivery . . . with a term intrauterine

pregnancy and spontaneous rupture of

membranes. The patient's cervix at the time

of admission was 6, complete, -3 and vertex

presentation. The patient had a protracted,

active phase, and was started on Pitocin

augmentation. At 7 centimeters, the patient

had an intrauterine pressure catheter which

showed an adequate contraction pattern x one

hour. Her fetal heart tracing showed some

subtle decelerations . . . . Later on that

day, the patient developed a temperature to

101.2 degrees and she was diagnosed with

chorioamnionitis and started on clindamycin

and gentamicin. The patient was allergic to

penicillin. She continued to make no

progress with her cervical examination.

A scalp pH was performed [at 6:50 p.m.] and

came back 7.29 which showed reassurance. The

patient was continued with Pitocin

augmentation. A repeat scalp pH [performed

at 11:10 p.m.] was 7.05 and [at 11:20 p.m.

was] 6.86 [consistent with metabolic

acidosis], so the patient was taken to the

operating room for a stat cesarean section

[and the infant was delivered at 11:36

p.m.]. . . . Apgars were 3 at one minute, 5

at five minutes and 6 at 10 minutes.

Findings at the time of surgery showed a live

born baby with a terminal meconium.

Postoperatively, the baby was taken to the

Neonatal Intensive Care Unit. . . .

13. Ms. Waddell was discharged August 30, 1997, and Chelsey

was ultimately discharged to the care of her mother on

September 12, 1997. Chelsey's course was noted in her discharge

summary as follows:

HISTORY OF PRESENT ILLNESS: This 3075 gram

female infant was born by cesarean section at

38 weeks gestation for decreased fetal heart

rate and a scalp pH of 6.8. . . . Rupture of

membranes was approximately 18 hours prior to

delivery. There was a history of maternal

fever and the mother received Clindamycin and

Gentamicin. The amniotic fluid was meconium

stained and 0.5 cc of thick meconium stained

fluid was suctioned from below the cords.

Apgars were 3 at one minute, 5 at five

minutes and 6 at ten minutes, after receiving

positive pressure ventilation and then blow-

by oxygen. The infant was transported to the

neonatal intensive care unit.

PHYSICAL EXAMINATION: . . . Neurological

examination showed decreased tone with

symmetrical movement and no focal

neurological deficits.

ADMISSION LABORATORY DATA: The infant is A

and Coomb's positive. Arterial blood gas on

100% blow-by oxygen revealed a pH of 7.08,

pC02 of 18, p02 of 479 and a base excess of

-23.

ADMISSION DIAGNOSES:

1. Term female.

2. Respiratory depression.

3. Metabolic acidosis.

4. ABO incapability.

5. Sepsis surveillance.

HOSPITAL COURSE AND PROBLEM LIST:

* * *

Respiratory: Initially she had metabolic

acidosis and received sodium bicarbonate. A

chest x-ray was consistent with retained

fetal lung fluid and she was placed on nasal

cannula. Initially she had tachypnea which

slowly resolved. The nasal cannula was

discontinued on day three and she had no

further respiratory distress and required no

further oxygen. This problem is considered

resolved.

* * *

Central Nervous System: On August 24, 1997

she developed seizure activity at less than

12 hours of age. She was placed on

Phenobarbital. An electroencephalogram (EEG)

showed "status", although clinically no

seizures were noted after the initial episode

of seizure activity. . . . Neurology was

consulted and she was seen by Dr. Shanks

whose impression was acute encephalopathy and

recurrent electrographic seizures from

multiple-foci despite Phenobarbital

therapy. . . . [P]henobarbital was given

until maximal serum levels were achieved.

She was then started on Dilantin. A head

ultrasound on August 25, 1997 was normal. A

CT scan on August 26, 1997 showed extensive

cerebral low attenuation suggesting anoxic

injury. Phenobarbital and Dilantin levels

were followed closely and doses were adjusted

appropriately. Follow up

electroencephalogram (EEG) on September 2,

1997 showed no electrographic seizures and

marked suppression except for bursts of

excessive sharp waves. The Dilantin was

discontinued. No change in the neurological

status was noted. Plan: Discharge home on

Phenobarbital 12 mg.b.i.d. and follow up

Phenobarbital level two weeks after

discharge. . . .

* * *

Discharge Physical Examination: . . .

Neurological examination shows symmetrical

decreased tone, otherwise no gross

neurological deficits were noted.

DISCHARGE DIAGNOSES:

1. Term female, 38 weeks gestation.

2. Neonatal asphyxia, resolved.

3. Neonatal seizures

4. ABO incompatibility with hemolysis.

5. Metabolic acidosis, resolved.

6. Anemia.

7. Hyponatremia, resolved.

8. Hypoxic ischemic encephalopathy. . . .

14. Since her discharge, Chelsey has been cared for by

Ms. Waddell and her mothe r (Ms. Chieves), initially in an

apartment leased by Ms. Chieves and more recently in a single

family residence purchased by Ms. Chieves. Ms. Waddell and

Ms. Chieves have jointly shared the responsibility for Chelsey's

care and, apart from Aid For Dependent Children (AFDC), which

Ms. Waddell started to receive at or about three months after

Chelsey's birth, and Medicaid assistance, all financial support

for the family has been provided by Ms. Chieves. 4 More recently,

Ms. Chieves has added her daughter and Chelsey as dependents to

her health insurance coverage, which she enjoys as an employee of

the State of Florida.

15. The attendant responsibilities and sacrifices

inherently associated with Chelsey's daily care may be gleaned

from Dr. Michael Duchowny's report of neurological evaluation of

August 18, 1998, as follows:

HISTORY ACCORDING TO CHELSEY'S FAMILY:

Chelsey is an almost 1 year old . . . female

who "has cerebral palsy and is legally

blind". Ms. Waddell began by explaining that

Chelsey has severe motor delay and has

essentially made no progress past the newborn

level.

Chelsey is unable to roll over or sit on her

own and requires almost constant feeding.

She had an indwelling gastrostomy for the

first few months of life, but is now able to

mouth and swallow on her own. Still,

Chelsey's oromotor problems limit her caloric

intake. She is quite small for her age and

now weighs only 15 pounds, 14 ounces with a

length of 27 inches. Ms. Waddell feels that

Chelsey's motor problems effect [sic] all

extremities.

Chelsey is also "legally blind". By that,

her mother indicated that Chelsey is unable

to understand what she sees and therefore has

little visual information. She can respond

to her mother's voice and apparently is hyper

alert. She sleeps through the night.

Chelsey also suffers from recurrent seizures.

These apparently are a marked problem and

Chelsey has between 10 and 20 brief tonic

seizures per day. Her head and eyes tend to

be deviated to the right side with stiffening

of the upper extremities. She takes

phenobarbital 8 cc b.i.d. and is under the

care of Dr. Daniel Shanks in Jacksonville.

Chelsey receives physical therapy on a once

weekly basis and speech therapy twice weekly.

Occupational therapy is administered on one

occasion every 2 weeks. . . .

* * *

NEUROLOGIC EXAMINATION reveals an infant who

lies supine with fixed postures in a right

tonic neck response. Chelsey demonstrates a

startle myoclonus. She has intermittent

tongue thrusting movements. There is no

drooling. The head is deviated to the right

side, but can be passively rotated to the

left. There is no central gaze fixation.

Chelsey does have brief limited conjugate

following. The funduscopic examination is

unremarkable. Motor examination reveals

increased tone in all extremities indicative

of a spastic hemiparesis. The tonic neck

response is obligate and can be obtained in

both directions through passive movement of

the head. There is a positive jaw jerk,

sucking and snouting responses. The limbs

are small with diminished muscle bulk.

Fisting of the thumbs is noted bilaterally.

There is evidence of guided reaching. The

deep tendon reflexes are brisk at 3 in all

extremities with crossed adductor responses.

There are florid bilateral Babinski responses

with the large toes being held in passive

Babinski attitudes. Sustained ankle and knee

clonus are easily elicited. The jaw jerk and

facial jerks are both hyperactive. The spine

shows a slight curvature convex to the right.

The neurovascular examination is

unremarkable.

In SUMMARY, Chelsey's neurologic examination

reveals evidence of severe motor and

cognitive delay. Chelsey is showing little

progress past the newborn period and her

microcephaly suggests that there has been

little brain growth since birth. At the same

time, Chelsey manifests cortical blindness

and startle myoclonus. Chelsey additionally

has medically resistant seizures of probable

left frontal lobe origin. . . .

16. As heretofore noted, Mr. Davis did not return to

Jacksonville, or visit his daughter, until Chelsey was 3 months

of age. Thereafter, apart from the first week he was in town and

resided with Ms. Waddell and Ms. Chieves, Mr. Davis has lived

apart from his daughter and Ms. Waddell, and his participation in

his daughter's care, as well as any contribution to his

daughter's support, has been de minimus . 5 Mr. Davis' interest in

Chelsey was stated by him at hearing to be as follows:

Q. . . . You're not telling this Court

that you want custody of this baby and that

you're capable of taking care of it; are you?

A. No, sir. I just want it where I can

see her when I want to and I ain't got to go

through so much trouble, you know, just to

see her.

Apportionment and manner of payment (lump sum or

periodic payment) of the parental award

17. As the primary caretaker for Chelsey, the demands

placed on Ms. Waddell as the custodial parent, are, and will

continue to be onerous. Clearly, without the support of her

mother, the demands placed on Ms. Waddell for Chelsey's care

would have left her little or no time for other activities or

pursuits, and those demands greatly exceed, and will continue to

exceed, those assumed by the parent of an infant not so impaired.

In contrast, Mr. Davis has accepted none of the responsibilities

(financial or otherwise) associated with Chelsey's care, and has

evidenced no sincere inclination to do so.

18. Under the circumstances, it is apparent that, as

between them, the loss suffered by Ms. Waddell as a consequence

of Chelsey's injury has been grossly disproportionate to that

suffered by Mr. Davis, and that such disparity warrants a similar

distinction, as between them, in the apportionment of the

parental award.

19. As for the method of payment, lump sum or periodic, it

should not be subject to serious debate that Ms. Waddell and

Mr. Davis have evidenced poor judgment in the past, and that,

given their positions in life and young ages, they cannot be

relied upon to make sound decisions in the immediate future.

Consequently, except for the lump sums hereafter awarded, it is

resolved that, absent further order, the bulk of the parental

award should be paid periodically to the custodial parent.

20. Given the foregoing considerations, as well as the

legal principles discussed infra , it is resolved that of an award

of $100,000, Ms. Waddell and Mr. Davis are each eligible to

receive $2,500 in lump sum, and that the balance of $95,000 be

paid to the custodial parent, retroactive to August 23, 1997, at

the rate of $500 per month. Ms. Waddell, as the current and past

custodial parent, shall receive the retroactive payment in lump

sum and, absent a change in the custodial arrangement, the sum of

$500 each month thereafter absent further order or until the

principle is exhausted.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

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

these proceedings. Section 766.301, et seq ., Florida Statutes.

22. The Florida Birth-Related Neurological Injury

Compensation Plan (the "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. Section

766.303(1), Florida Statutes.

23. The injured "infant, 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 within five years of the

infant's birth. Sections 766.302(3), 766.303(2), 766.305(1), and

766.313, Florida Statutes. The Florida Birth-Related

Neurological Injury Compensation Association (NICA), 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."

Section 766.305(3), Florida Statutes.

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

is a compensable birth-related neurological injury, as it has in

this case, 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. Section 766.305(6), Florida

Statutes. Here, the parties have stipulated that the attending

physician who provided obstetric services during the birth of

Chelsey was a "participating physician" as that term is defined

by Section 766.302(7), Florida Statutes, and as that term is used

in Sections 766.301 through 766.316, Florida Statutes, and that

Chelsey suffered a "birth-related neurological injury," within

the meaning of Section 766.302(2), Florida Statutes. Such

stipulation is consistent with the medical records and other

documents filed in support of the claim for compensation and

officially recognized. Under such circumstances, NICA's

determination that the claim is compensable is approved. Section

766.305(6), Florida Statutes.

25. Where, as here, it has been found that "the infant has

sustained a birth-related neurological injury and that

obstetrical services were delivered by a participating physician

at the birth," the administrative law judge is required to make a

determination as to "how much compensation, if any, is awardable

pursuant to s. 766.31." Section 766.309(1)(c), Florida Statutes.

Included among the "items relative to such injury" for which the

administrative law judge "shall make an award providing

compensation," are:

Periodic payments of an award to the

parents or legal guardians of the infant

found to have sustained a birth-related

neurological injury, which award shall not

exceed $100,000. However, at the discretion

of the administrative law judge, such award

may be made in lump sum.

Section 766.31(1)(b), Florida Statutes .

26. The foregoing provision offers no guidance as to what

factors should be considered in resolving how the amount of any

"award" to the parents should be derived. Accordingly, it is

presumed that the Legislature intended that the derivation of any

such award be premised on the same factors that support an award

at common law. Vanner v. Goldshein , 216 So. 2d 759, 760 (Fla. 2d

DCA 1968)("The general rule is that statutes are to be construed

with reference to appropriate principles of the common law, and

when possible they should be so construed as to make them

harmonize with existing law and not conflict with long settled

principles."), and Carlile v. Game and Fresh Water Fish

Commission , 354 So. 2d 362 (Fla. 1977)(A statute designed to

change the common law rule must speak in clear, unequivocal

terms, for the presumption is that no change in the common law

was intended unless the statute is explicit in this regard.)

27. Pertinent to this case, the parents of a child who has

suffered a significant injury resulting in the child's permanent

total disability had, at common law, a right to recover indirect

economic losses such as income lost by the parent in caring for

the child and for the permanent loss of filial consortium

suffered as a result of the injury. United States of America v.

Dempsey , 635 So. 2d 961 (Fla. 1994), and Wilkie v. Roberts , 91

Fla. 1064, 109 So. 225 (1926). In this context, "consortium" has

been defined "to include the loss of companionship, society,

love, affection, and solace of the injured child, as well as

ordinary day-to-day services that the child would have rendered."

United States of America v. Dempsey , supra , at 965.

28. Given that the foregoing factors are the premise upon

which the award of $100,000 must rest, so must those factors be

balanced, relative to the impact the child's injury has had on

the respective interests of the parents, in apportioning the

award between the parents. So considered, a significant

difference is apparent between the loss suffered by Ms. Waddell,

as the custodial parent, and Mr. Davis, as the non-custodial

parent, including: Ms. Waddell's lost opportunity in caring for

Chelsey, as compared to Mr. Davis' lack of lost opportunity; and,

Ms. Waddell's daily loss of Chelsey's companionship, society,

love, affection, and solace, as well as ordinary day-to-day

services Chelsey would have rendered had her maturation been age

appropriate, as compared to Mr. Davis' periodic loss of

consortium. Under such circumstances, the proof demonstrates

that of an award of $100,000, Ms. Waddell and Mr. Davis are each

eligible for an award of $2,500 in lump sum, and that the balance

of $95,000 should be paid periodically to the custodial parent,

retroactive to August 23, 1997, at the rate of $500 per month.

Ms. Waddell, as the current and past custodial parent, shall

receive the retroactive payment in lump sum and, absent a change

in the custodial arrangement, the sum of $500 each month

thereafter absent further order or until the principal is

exhausted.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that:

1. The claim for compensation filed by Crystal Waddell, as

parent and natural guardian of Chelsey Davis, a minor, and NICA's

acceptance of that claim for compensation be and the same is

hereby approved.

2. NICA shall make immediate payment of all actual expenses

as defined by Section 766.31(1)(a), Florida Statutes, previously

incurred and shall make payment for future expenses as incurred.

3. The stipulation dated December 18, 1998, and filed

December 22, 1998, is approved. Consistent with such stipulation

NICA shall pay to Merrill C. Tunsil, Esquire, the sum of

$3,753.25, as reasonable expenses incurred in connection with the

filing of the claim for compensation.

4. Petitioner, Crystal Waddell, and Intervenor, William

Davis, are entitled to a parental award of $100,000. Of that

sum, Ms. Waddell and Mr. Davis shall each receive in lump sum

$2,500. The remaining balance of $95,000 shall be paid

periodically to the custodial parent, retroactive to August 23,

1997, at the rate of $500 per month. Ms. Waddell, as the current

and past custodial parent, shall receive the retroactive payment

in lump sum and, absent a change in the custodial arrangement,

the sum of $500 each month thereafter absent further order or

until the principle is exhausted. Of the total lump sum to be

paid to Ms. Waddell, NICA shall deduct and pay, pursuant to the

parties' stipulation, the sum of $6,000 to Ms. Cheryl Chieves.

5. Pursuant to Section 766.312, Florida Statutes,

jurisdiction is reserved to resolve any disputes, should they

arise, regarding the parties' compliance with the terms of this

final order.

DONE AND ORDERED this 11th day of May, 1999, in Tallahassee,

Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of May, 1999.

ENDNOTES

1/ The delay in service of the claim on NICA was occasioned by

Petitioner's failure to tender the filing fee with the claim. The

filing fee was received July 10, 1998, and the claim was served

July 13, 1998.

2/ Intervenor's Exhibits D, E1, and E2 were not moved into

evidence.

3/ The transcript of hearing reflects that Ms. Waddell's date of

birth was May 30, 1978; however, all medical records record her

date of birth as May 30, 1979. Here, the date recorded in the

medical records has been accepted.

4/ Depending on who one chooses to credit, Mr. Davis has

contributed cash and personal items (i.e., disposable diapers) for

Chelsey's care since birth valued at $236 (if one credits

Ms. Waddell's testimony) or $700 (if one credits Mr. Davis'

testimony). Here, Ms. Waddell's testimony is credited; however,

whether $236 (a sum equivalent to approximately $14.00 a month or

$3.00 a week) or $700 (a sum equivalent to approximately $41.00 a

month or $10.00 a week) Mr. Davis' financial contribution has been

de minimus .

5/ In so concluding, neither the proof offered on behalf of

Mr. Davis, nor the proposed final order submitted on Mr. Davis'

behalf has been overlooked; however, the more credible or

persuasive proof compels the conclusion that Mr. Davis'

participation in his daughter's care, as well as any contribution

he has made to his daughter's support, has been de minimus . In

this regard, it is observed that Mr. Davis' participation in Ms.

Waddell's prenatal course was nominal at best, and his

participation post-delivery could not be described as

"substantial," as Intervenor would choose to describe it.

(Intervenor's Findings of Fact and Conclusions of Law, paragraph

12.) Moreover, it cannot be said, as Intervenor suggests (at

paragraph 13 of Intervenor's Findings of Fact and Conclusions of

Law), that Mr. Davis "has shown his love for Chelsey by his

repeated attempts to be with, care for, and beg for time with

her." Rather, Mr. Davis' absence from Florida until Chelsey was

3 months old, as well as his lack of personal or financial

contribution toward her care since his return (as noted in

Endnote 4, supra ), speak volumes, and provide objective and

compelling evidence that Mr. Davis harbors no significant

commitment toward Ms. Waddell or Chelsey.

COPIES FURNISHED:

(By certified mail)

Merrill C. Tunsil, Esquire

Post Office Box 2113

Lake City, Florida 32056

I. Mark Rubin, Esquire

Rubin & Rubin, P.A.

2107 Hendricks Avenue, Suite 210

Jacksonville, Florida 32207

W. Douglas Moody, Jr., Esquire

Graham & Moody, P.A.

101 North Gadsden Street

Tallahassee, Florida 32301

Lynn Dickinson, Executive Director

Florida Birth-Related Neurological

Injury Compensation Association

Post Office Box 14567

Tallahassee, Florida 32317-4567

Edward Illions, M.D.

653-1 West Eighth Street

Jacksonville, Florida 32209

University Medical Center

Legal Department

655 West Eighth Street

Jacksonville, Florida 32209

Ms. Charlene Willoughby

Agency for Health Care Administration

Consumer Services Unit

Post Office Box 14000

Tallahassee, Florida 32308

Daniel Y. Sumner, General Counsel

Department of Insurance

The Capitol, Lower Level 26

Tallahassee, Florida 32399-0300

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 one copy of a Notice of Appeal with the Agency Clerk of the

Division of Administrative Hearings and a second copy, accompanied

by filing fees prescribed by law, with the appropriate District

Court of Appeal. See Section 120.68(2), 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.