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A two-day hearing was held before an ALJ,


Appellant Hospital appeals an order issued by an administrative law judge [“ALJ”] finding that claimant 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.

The minor child was born at Florida Hospital in Altamonte Springs, Florida, on November 28, 1997. She was deprived of oxygen during birth and sustained serious birth injuries. An expert said that, her parents filed an action for medical malpractice in Seminole County circuit court against the appellant Hospital, as well as the two physicians who provided obstetrical services to the child’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 parents did not file or pursue a claim for benefits under the plan.

An Injury Lawyer said that, the Florida Birth-Related Neurological Injury Compensation Association [“NICA”] intervened in the circuit court action, claiming that the child’s birth injuries were subject to the plan. The circuit court abated the action and required the parents to file a petition with the Division of Administrative Hearings to resolve whether the child 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.” The parents’ position was that the child 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. 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, the child’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, the hippocampi, both frontal lobes, both parietal lobes, the corpus callosum, and the cerebral cortex. Most witnesses testified these injuries were diffuse, as opposed to global in nature. 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 the child does, are not cognitively impaired.

The issue in this case is whether the minor child has a permanent and substantial “mental impairment” in addition to the cerebral palsy.

Notwithstanding the evidence adduced at the hearing and the ALJ’s factual findings, appellants’ position, simply put, is that the minor child was permanently and substantially mentally impaired as a matter of law.

For this contention, the Court said that, they rely on 1997 Supreme Court decision. The 1997case involved birth injuries apparently similar to those sustained by the minor child in this case. As a result of birth-related events causing oxygen deprivation, the child in this 1997 case 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 he was average or even above average in his cognitive skills. His 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 his injury was covered by the plan. At the close of the opinion, the Supreme Court of Florida approved the hearing officer’s conclusion that he had sustained both mental and physical impairment within the meaning of the plan, briefly explaining: We are left with the hearing officer’s finding which is properly predicated on a reading of the statute in the conjunctive that the child is “permanently and substantially mentally and physically impaired and has suffered a `birth-related neurological injury’ within the meaning of section 766.302(2).” Having thoroughly reviewed the record and the hearing officer’s final order, we conclude that it is supported by competent and substantial evidence. Consequently, we disapprove the opinion below to the extent that it misconstrues the plain language of the statute, but approve the result, and direct that the case be remanded to DOAH for a determination of the amount of compensation he is entitled to under the NICA Plan.

In the case at bar, appellants construe the above-quoted passage from the 1997 case decision to create the definition of “substantial mental impairment” as this phrase is used in NICA. According to appellants, “The 1997 decision added to the definition of substantial mental impairment by effectively adding a requirement that the child be able to translate any cognitive capabilities into adequate learning in a `normal manner.’ “It is apparent, however, that the 1997 case court did not define or redefine “substantial mental impairment.” They simply said that the decision of the ALJ was supported by competent evidence. All this language in the 1997 case suggests is that, under NICA, the identification of a substantial mental impairment 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.

Appellants urge that, although the minor child’s brain injuries have not resulted in cognitive impairment, in the sense that they do prevent her from learning or thinking, they must, as a matter of law, constitute a “mental impairment” within the meaning of the plan because, she will require substantial accommodation in order to translate normal cognitive capabilities into learning. Apart from the evidence adduced and the findings made in this case, there are many other problems with this position. First, as a definition, it is not the plain and ordinary meaning of the undefined statutory term. The 1997 case court made clear that the plain and ordinary meaning of these terms should be applied. Second, it violates the definitional framework approved by the Supreme Court in the 1997 case. ‘The Statute is written in the conjunctive and can only be interpreted to require permanent and substantial impairment that has both physical and mental elements.’

To say that physical disabilities that impede the cognitive and social development of a child alone are enough to constitute a mental impairment violates the dichotomy identified by the high court. If this were the true definition of “substantial mental impairment,” then seemingly most children with cerebral palsy would be classifiable as “substantially mentally impaired,” although the evidence indicates that cerebral palsy and mental defect are two separate injuries. There was expert testimony that children with oxygen deprivation injuries “can be physically disabled, yet be intellectually preserved.” Cerebral palsy is a motor injury which occurs when the circuits in the brain that control movement are damaged, while cognitive injury or impairment occurs when circuits relating to memory or learning are impaired. Furthermore, according to the testimony, oxygen deprivation or hypoxia first attacks those areas of the brain which control motor function, and only secondarily results in damage to mental function.

Courts have always recognized that different juries may reach a different result on similar facts. It is common for us to see, for example, that juries have awarded significantly different sums for apparently identical injuries. We similarly see different outcomes when the fact finder is asked to determine whether a particular injury is “permanent” or “not permanent.” These differences arise not because we have an “unprincipled, incoherent system” but because such differences can arise in a principled and coherent system where every individual is guaranteed an opportunity to lay his own case before an impartial arbiter of the facts. In most cases, this is a jury. In cases such as the one before us, the ALJ, as fact finder, brings his own background, training, experience and expertise to the task of weighing and evaluating very sophisticated evidence. The child’s advocate likewise brings his own communication and strategic skills to the fact-finding process; and finally, the evidence in each case will vary in its power to persuade. This will be especially true in cases where the opinions of experts are considered. In each case, the ALJ appears to have attempted to apply the plain and ordinary meaning of the term “substantial mental impairment” to his evaluation of the evidence. The term is broad enough to encompass more than just damage to cognitive capacity, contrary to appellees’ argument, and more than merely the inability to “translate cognitive capabilities into adequate learning in the normal manner” or “impairment of social and vocational development,” as urged by appellants. Both the ALJ in the 1997 case and the ALJ in this case appear to have understood this and to have done their job conscientiously.

Finally, as judges, we learn, early on, that there are always fact situations at the margins where it is very difficult to determine the side of a line on which a particular decision will fall. That is one reason why our review is limited to whether the decision was supported by substantial competent evidence. Appellants bore the burden of persuasion in this case that the minor child was “substantially mentally impaired” and its evidence was not persuasive to the finder of fact.

Accordingly, The Court held that judgment is affirmed. Courts in Long Island and Staten Island would do the same.

If an Administrative Law Judge decision is supported by competent substantial evidence that factual determination is conclusive and binding. If you are involved in a similar situation in the case at bar, you will need the help of an Orlando Birth Injury Attorney and/or Orlando Medical Malpractice Attorney to explain to you the legal implications of your negligence claim. Orlando Injury Attorney at Stephen Bilkis and Associates can represent your case.

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