ADVENTIST HLTH. v. FL. BIRTH-RELATED INJURY, 5D02-892.

• Decision Date: 02 January 2004
• Docket Number: No. 5D02-892.,5D02-892.
• Citation: 865 So.2d 561
• Parties: ADVENTIST HEALTH SYSTEM/SUNBELT, INC., etc., Appellant, v. FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY etc., et al., Appellees.
• Court: Florida District Court of Appeals

865 So.2d 561

ADVENTIST HEALTH SYSTEM/SUNBELT, INC., etc., Appellant, v. FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY etc., et al., Appellees.

No. 5D02-892.

District Court of Appeal of Florida, Fifth District.

January 2, 2004.

Rehearing Denied February 18, 2004.

Robert A. Hannah, Christopher C. Curry and Robin D. Black, of Hannah, Estes & Ingram, P.A., Orlando, and Raymond T. Elligett, Jr., of Schropp, Buell & Elligett, P.A., Tampa, for Appellant.

Thomas E. Dukes, III, of McEwan, Martinez & Dukes, P.A., Orlando, for Intervenors, Michael Geiling, D.O. and Mid-Florida OB/GYN Specialists, Inc.

Pierre J. Seacord and Gregory M. Krak, of Ringer, Henry, Buckley & Seacord, P.A., Orlando, for Intervenor, Juan Ravelo, M.D.

John Elliott Leighton, Patricia M. Kennedy, of Leesfield, Leighton, Rubio, Mahfood & Boyers, P.A., and Jay M. Levy, of Jay M. Levy, P.A., Miami, and Lora A. Dunlap, of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellees, Sandra Shoaf and James Shoaf.

Wilbur E. Brewton and Kelly B. Plante, of Roetzel & Andress, L.P., Tallahassee, for Appellee, Florida Birth-Related Neurological Injury Compensation Association.

ON MOTION FOR REHEARING EN BANC

GRIFFIN, J.

Upon motion of appellees, we have elected to rehear this case en banc. After consideration of the briefs and en banc oral argument, we withdraw the prior panel opinion and issue the following en banc opinion in its stead.

The Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital-Altamonte ["Florida Hospital"], and intervenors, Michael Geiling, D.O., Juan Ravelo, M.D., and Mid-Florida OB/GYN Specialists, Inc., appeal an order issued by an administrative law judge ["ALJ"] finding that Raven Shoaf ["Raven"] was not subject to compensation under the Florida Birth-Related Neurological Injury Compensation Plan ["the plan"], because she was not permanently and substantially "mentally impaired" within the meaning of the plan. Appellants contend that, based on certain undisputed facts, she was permanently and substantially mentally impaired as a matter of law. We disagree and affirm.

Raven was born at Florida Hospital in Altamonte Springs, Florida, on November 28, 1997. She was deprived of oxygen during birth and sustained serious injuries. Her parents, Sandra and James Shoaf ["the Shoafs"], filed an action for medical negligence in Seminole County circuit court against Florida Hospital, as well as Geiling and Ravelo, the two physicians who provided obstetrical services to Raven's mother, and Mid-Florida OB/GYN Specialists, Inc. Both obstetricians were "participating physicians" under the plan and the hospital was a participating hospital, but the Shoafs did not file or pursue a claim for benefits under the plan.

The Florida Birth-Related Neurological Injury Compensation Association ["NICA"] intervened in the circuit court action, claiming that Raven's injuries were subject to the plan. The circuit court abated the action and required the Shoafs to file a petition with the Division of Administrative Hearings to resolve whether Raven was covered by the plan. The NICA statute defines "birth-related neurological injury" to mean an injury which, among other things, renders the infant both "permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. (1995).¹ (Emphasis added.) The Shoafs' position was that Raven did not meet the criteria for coverage under the plan because, although she had suffered significant physical impairments, she had not sustained a permanent and substantial mental impairment.

A two-day hearing was held before an ALJ, principally to resolve the issue of mental impairment.² The evidence adduced at the hearing showed that Raven had significant and severe physical injuries due to oxygen deprivation. It was essentially undisputed that she has cerebral palsy, which refers to a group of motor disorders caused by an injury to the developing brain. Also, Raven's CAT scans and MRI's showed that she had sustained various permanent injuries to her brain. Her imaging studies show that she has damage to both sides of the basal ganglia and thalamus. There was also damage to the white matter surrounding the basal ganglia (which acts as insulation), the hippocampi, both frontal lobes, both parietal lobes, the corpus callosum, and the cerebral cortex. Most witnesses testified these injuries were diffuse (i.e.selective), as opposed to global in nature.³ Her physical injuries include both spasticity and stiffness; when she tries to move, her body goes in the opposite direction and she gets posturing, as well as a wiggly movement. She is unable to walk or talk and has problems holding her head up and directing her gaze. She can crawl or sit up only with assistance. She cannot reach out and hold objects. She is unable to eat by mouth and must wear a diaper. Statistically, a little less than one-half of the children who present with cerebral palsy, as Raven does, are not cognitively impaired.

The dispute in this case concerns whether Raven has a permanent and substantial "mental impairment" in addition to the cerebral palsy. The parents presented several witnesses, including several physicians, Raven's speech therapist and an occupational therapist, who testified that, despite her physical impairments and the damage shown on the scans, Raven is of normal or above-average intelligence, and can demonstrate that intelligence in many ways. These expert witnesses all agreed that Raven was not "mentally impaired" as a result of her injuries. One witness even testified that Raven may eventually be able to attend classes in a normal classroom, although she may have to have substantial assistance with such things as going to the bathroom and using her feeding tube. These physicians explained that some children with abnormal MRI's and scans can still be very bright, in part due to "plasticity," which refers to the ability of the brain of a young child to rewire itself to take on functions that normally would have been assigned to another part of the brain. Witnesses testifying that Raven had normal cognitive functioning attributed her difficulties in communication to her physical problems. This testimony is outlined in detail in the final order in support of the ALJ's finding that Raven was not "permanently and substantially mentally impaired" within the meaning of the plan. Many of these witnesses had contact with Raven on an ongoing basis, a fact important to the ALJ.

By contrast, witnesses presented by NICA and the intervenors testified that Raven has an I.Q. as low as twenty or thirty due to her injuries and that she has no understanding of the world around her. One of these experts even characterized the belief that Raven was responsive as being nothing more than her parents' wishful thinking.

In the ALJ's forty-nine page order exhaustively reviewing the evidence presented by the parties, along with the reports presented by their experts, the ALJ explained his evaluation of the evidence presented to him. He found that Dr. Duchowny, the pediatric neurologist who opined that Raven had no awareness of the world around her, had examined Raven only for one-half an hour when she was three-and-one-quarter years of age, and his findings conflicted with observations made by her parents. Dr. Waters, who found Raven's cognitive deficit "significantly large," also performed a relatively cursory examination, but even she had detailed in her report some responses made by Raven to various stimuli and testing. By contrast, Dr. Brunstrom, who had found that Raven was "cognitively intact," had examined her on three occasions for a total of nearly eight hours, and the judge quoted extensively from the report, detailing Raven's responses. He also noted that two other pediatricians with special qualifications in child neurology and a board certified clinical neuropsychologist, expressed opinions consistent with Dr. Brunstrom's and each had examined Raven for approximately two hours. The judge concluded that those witnesses who testified that Raven was cognitively intact were "well qualified and positioned" to evaluate Raven, while those who testified on behalf of the intervenors were not. Based on his evaluations of the evidence, the judge concluded that NICA and the intervenors had failed to sustain their burden of proving that Raven is mentally impaired within the meaning of the plan:

The medical records and other proof, including the testimony of the various healthcare providers and the videos offered by the parties have been carefully considered. So considered, it must be resolved that the proof does not permit a conclusion to be drawn, with any sense of confidence, that, more likely than not, Raven is permanently and substantially mentally impaired.

Notwithstanding the evidence adduced at the hearing and the ALJ's factual findings, appellants' position, simply put, is that Raven was permanently and substantially mentally impaired as a matter of law. For this contention, they rely on Florida Birth-Related Neurological Injury Compensation Ass'n v. Florida Div. of Admin. Hearings, 686 So.2d 1349, 1354 (Fla.1997) [the "Birnie" decision].

The Birnie case involved injuries apparently similar to those sustained by Raven in this case. As a result of birth-related events causing oxygen deprivation, Eric Birnie suffered a focal injury to the basal ganglia, an area of the brain which aids the body in performing "physical functions." Despite severe physical limitations, testing indicated that Eric was average or even above average in his cognitive skills. Eric's parents nonetheless sought compensation under the plan, claiming that he was "mentally impaired" within the meaning of section 766.302(2), Florida Statutes (1991). NICA denied coverage, and a hearing was held to determine whether Eric's injury was covered by the plan. Key among the findings of fact made by the Birnie ALJ was:

44. Eric is

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