Articles Posted in Birth Injury

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The Bronx appellant in this case is appealing by permission an order that denied his motion to vacate a finding of liability made by a medical malpractice panel. There are five main issues to consider on this appeal.

First, the court must consider whether an order that denies a motion to vacate a medical malpractice panel’s finding is appealable in this court.

Second, if the doctor member of the medical malpractice panel must be a specialist that practices in the same field of medicine as the defendant doctor who the malpractice is claimed.

Third, if the medical malpractice panel’s finding in this case is legally insufficient to a finding of liability.

Fourth, whether the medical malpractice panel’s finding should be vacated because the medical panelist failed to disclose that he and one of the codefendant doctors both attended the University of Geneva in Switzerland and are members of the same county wide medical society.

Finally, if the court’s amendments of the rules that regulate medical malpractice panels are retroactive in application and applicable in this case and if they are retroactively applicable if these factors mandate the vacatur of the panel’s finding of liability as to the appellant.

Case Facts
The original medical malpractice action was against the appellant who is a pediatrician and three other doctors who are all obstetricians and the hospital. The plaintiff was seeking damages in the amount of over $5,000,000 for the defendant’s alleged negligence that caused the infant plaintiff to suffer from severe and irreparable damage to his brain and central nervous system. These damages have crippled the infant plaintiff for the rest of his life.

The Clerk of the Supreme Court of Suffolk County issued a letter to the respective counsel to submit pleadings, bills of particulars, and medical and hospital reports. This would then be turned over to the Suffolk County Medical Society for review.

The doctor members of the medical malpractice panel and the attorneys were then identified and told that any objections should be made to the court within five days. There were no objections made and a hearing was held in front of the medical malpractice panel. One of the members of the panel was an obstetrician who the Suffolk County Medical Society had found.
The panel found the appellant liable in the case stating that he had departed from the accepted practices and procedures on his part in the care and treatment that was provided to the infant including his examination of the infant plaintiff and the discharge of the infant from the hospital.

There were no findings made against the defendant obstetricians.

The counsel for the appellant requested that the finding of liability be vacated because the Dr. on the board was an obstetrician and therefor an inappropriate party to review the actions of the appellant and that the doctor had failed to disclose his relationship with one of the defendant obstetricians.

Court Discussion and Decision
In regard to the appellant’s argument that the order should be vacated on account that the doctor representative on the board is an obstetrician and not a pediatrician, the court finds that this fact does not deprive him of a peer review. The issue of disclosure of the doctor’s relationship with another defendant is also not enough evidence to support vacatur. The other issues brought up in this case are found to be insufficient to support the finding of the panel to be vacated and for this reason the appeal is denied.
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This appeal involves new legislation that concerns medical malpractice actions. The issue before the Supreme Court Appellate Division is whether or not the plaintiff’s failure to timely file a notice of the medical malpractice action was properly excused by the Supreme Court.

Case Facts
In March of 1986, the Queens plaintiff individually and as the administrator of her deceased infant’s estate started this action to recover damages for her daughter’s death as well as the conscious pain and suffering predicated by the Staten Island defendant physician’s alleged medical malpractice that resulted in the death of the infant.

In June of 1986, the defendant served an answer and sought discovery including the authorizations of all treating doctors’ records including hospital records and charts. The defendant also demanded a bill of particulars.

During a period of fourth months the defendant’s counsel requested authorizations from the plaintiff for the records that concerned the infant’s admissions. The counsel for the plaintiff does not dispute that the received this correspondence, but did not respond to it.

In March of 1987, the defendant moved for an order to dismiss the complaint on the basis that the plaintiff had failed to file a notice of medical malpractice action within 60 days and that the plaintiff had not made an application to extend her time to file the required notice.
Court Discussion and Decision
The original order made by the Supreme Court was in favor of the plaintiff and allowed an extension to be filed after the statute of limitations.

After reviewing all of the facts that have been presented in the case the court finds that the Supreme Court acted out of their discretion when they allowed the plaintiff to file a late CPLR notice. For this reason, the defendant’s motion to dismiss the complaint should be granted and the complaint against the defendant should be dismissed.
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This is an action to recover damages for fraud. The New York City plaintiffs are appealing an order made by the Supreme Court of Suffolk County that granted the defendant’s motion for summary judgment dismissing the complaint against them.

Case Background

The plaintiffs in this case are an infant and his father. In 1987, the plaintiffs settled a medical malpractice action against an insured of the respondent in this case. The settlement included an annuity that would provide payments to the infant plaintiff in the sum of $3000 per month for life. The respondent estimated the present value of the entire settlement package to be $940,180.

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This is a claim for medical malpractice against the state city health and hospitals corporation brought by a mother, individually and on behalf of her son. The infant was born at one Nassau hospital and allege that the infant sustained meconium aspiration syndrome and hypertonia as a result of the hospital’s mismanagement of the labor and delivery. Though the infant was transferred to another hospital and stayed for almost two weeks, he was then transferred back with the previous hospital where he received continuous treatment. It is also alleged that the infant suffers from brain injury and severe developmental delays.

At the beginning, the court had lack of authority to grant the leave to file a late notice of claim as to the mother’s individual claims because her application is made more than one year and ninety days from the accrual of the incident. As to the infant’s claims, based on the dates of the alleged malpractice, a notice of claim should have been served on the hospital corporations but the infant is the beneficiary of an infancy toll.

Further, entries in the medical records reveal that the infant was developing normally at the time of discharge and there is no indication of a long term injury. In the supporting affidavit, the mother admits to being aware of the conclusion by noting that at the age of three months her son had met all developmental milestones. A neurology visit note also supports the said conclusion. The mother also stated that about 17 months after her delivery, her son had once again met all milestones. The Suffolk mother stated that she did not learn of her son’s alleged delays until some point and that it was not until more findings led her to believe that her son’s injury was in fact related to his birthing process. It is evident that the mother could not have been aware of any damages attributable to the delivery within 90 days of the date of accrual, or a reasonable time thereafter, as there was no indication that the infant experiences any alleged delays. Consequently, the subject medical records alone do not support that the mother, by its acts or omissions, inflicted injuries to the infant and that the mother should have been aware of same within the applicable 90 days, or a reasonable time thereafter.

Based on records, the ignorance of the law requiring that a notice of claim be filed is not an acceptable excuse. Furthermore, there is no support for the assertion that the delay was the product of infancy or of the need to provide the infant with extraordinary care.

Finally, the complainant’s expert explained in a conclusory manner that the hospital committed medical negligence and malpractice by failing to timely deliver the infant, resulting in damages. However, the complainant’s expert fails to offer the necessary nexus between the act of the opponents and any damage to the complainant that would put the hospital on notice that a claim would be filed with regard to the delivery at issue.

As the facts documented in the chart would not place the opponent on notice of a claim and the application is denied. Merely asserting that because the infant suffered a difficult neonatal course, the opponent was on notice of a malpractice claim is rejected. To prevail on the application, the complainant must establish that the hospital corporation had notice that the hospital departed from the standard of care in treating the infant, and that those departures caused the infant’s injuries. As a result, the complainants have not established those elements and their application are denied.
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Petitioner minor child, represented by his parents is permanently and substantially brain damaged as a result of alleged medical malpracticeon the part of respondent physician and respondent medical center, as well as other medical providers. The petitioner parents filed suit in circuit court against their obstetrician, respondent, his professional association, respondent Hospital, and numerous other defendants. A Florida Medical Malpractice Lawyer said that, the trial court abated the circuit court proceedings for a determination by the Division of Administrative Hearings as to whether the infant’s injuries qualified for coverage under the NICA Plan. In the petition for determination of NICA coverage, petitioners alleged that long after the post-delivery period had ended, the minor child’s medical providers committed numerous errors, including administering too much IV fluid and failing to test for serum electrolyte derangements until numerous days after the delivery. As required by statute, NICA was served with the petition in the administrative proceedings. NICA intervened and took the position that he did not suffer a “birth-related neurological injury” within the scope of section 766.302(2).

A Lawyer said that, in a narrow category of cases in which a “birth-related neurological injury” occurs, parents’ common law rights to sue on behalf of their children for medical malpractice are eliminated and replaced by an administrative remedy that provides limited compensation on a no-fault basis. “Birth-related neurological injury” is defined by statute as “injury to the brain caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired.” § 766.302(2), Fla. Stat. (2001).

A Lawyer said that, the First District held that the petitioners were limited to the administrative remedy provided by the NICA Plan, reversing the decision of the administrative law judge (ALJ), who found that the minor child did not suffer a “birth-related neurological injury” as defined by the NICA Plan.

The issue in this case is whether, under the factual circumstances of this case, the minor child suffered a “birth-related neurological injury,” which would require the petitioners to obtain limited compensation through the Florida Birth-Related Neurological Injury Compensation Plan (NICA Plan) instead of full damages in a court of law.

In deciding the case the Court said that, in 1988, the Florida Legislature created the NICA Plan as a means to alleviate the high costs of medical malpractice insurance for physicians practicing obstetrics. The Legislature found that obstetricians were among the most severely affected by the increasing medical malpractice insurance premiums and that the costs of birth-related neurological injury claims were particularly high.. Consequently, the Legislature created the NICA fund to “provide compensation, on a no-fault basis, for a limited class” of birth-related neurological injuries. Because the NICA Plan provides limited remedies as a statutory substitute for common law rights and liabilities, this Court has held that the NICA statute “should be strictly construed to include only those subjects clearly embraced within its terms.” The NICA Plan does not cover all incidents of brain damage sustained by an infant delivered by an obstetrician. No party in this case contends that the statute provides immunity from suit to physicians practicing obstetrics for alleged malpractice occurring during labor and delivery; rather, the immunity is narrowly circumscribed by the term “birth-related neurological injury.” Specifically, the Legislature has limited coverage under the NICA Plan to a “birth-related neurological injury,” which it defined as injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently 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.
Thus, based on the language of the statute, a birth-related neurological injury has four components: (1) an injury to the brain or spinal cord; (2) which is caused by oxygen deprivation or mechanical injury; (3) during labor, delivery, or resuscitation in the immediate post-delivery period; and (4) which renders the infant permanently and substantially impaired.
The ALJ has exclusive jurisdiction to determine whether a claim is compensable under the NICA Plan. (“The issue of whether such claims are covered by this act must be determined exclusively in an administrative proceeding.”). In making this determination, the ALJ is required to make the following determinations: (1) whether the injury claimed is a birth-related neurological injury; (2) whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital; and (3) the amount of compensation that is awardable. In determining whether the injury is a birth-related neurological injury, section 766.309(1)(a) provides for a rebuttable presumption as follows:

If the claimant has demonstrated, to the satisfaction of the administrative law judge, that the infant has sustained a brain or spinal 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. 766.302(2)§ 766.309(1)(a), Fla. Stat. (2001). Through this presumption, the claimant does not need to demonstrate that the injury occurred during labor, delivery, or resuscitation in the immediate post-delivery period. Under the NICA statute, NICA is the administrator of the NICA Plan and has statutory responsibilities, including the responsibility to administer the funds collected on behalf of the Plan, administer the payment of claims on behalf of the Plan, exercise all powers necessary to effect any of the purposes for which the Plan was created, and take legal action as necessary to avoid the payment of improper claims, among other duties.

Because the issue involves whether the First District properly interpreted the NICA statute, this Court’s standard of review is de novo. The Court must begin with the actual language in the statute “because legislative intent is determined primarily from the statute’s text.” As this Court has often repeated, “When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Further, courts are “without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.” Likewise, when a court interprets a statute, “it must give full effect to all statutory provisions. Courts should avoid readings that would render part of a statute meaningless.” Another important principle that applies in this case is that because the NICA Plan limits the remedies as a statutory substitute for common law rights and liabilities, its provisions should be strictly construed. In applying the statute to this case, there is no factual dispute that the minor child suffered from two incidents of oxygen deprivation: one on September 26, 2001, and the other on October 3, 2001. Nor is there any question that she suffered a brain injury that rendered her permanently and substantially mentally and physically impaired. The only question becomes whether the minor child’s brain injury occurred “in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital.”

Here, the ALJ made factual findings that Tristan did not suffer a “birth-related neurological injury” as defined by the NICA Plan because the minor child’s profound neurologic impairments resulted from a brain injury caused by oxygen deprivation that occurred on October 3, 2001, and not during labor, delivery, or resuscitation in the immediate post-delivery period in the hospital.” In making this determination, the ALJ found that although the record established that the minor child, more likely than not, suffered from oxygen deprivation at birth on September 26, resulting in a multi-system failure that included her liver and kidneys, this oxygen deprivation did not cause a substantial neurological impairment. In support of this finding, the ALJ noted that the record established that she was delivered a traumatically, responded well to initial resuscitation, and her neurological examinations during the first seven days of life were normal. However, on October 3, she suffered prolonged and severe acidosis and shortly thereafter evidenced seizure activity and neurological decline. The Court holds that a narrow construction of the statute is the more reasonable interpretation. First, it restricts the impact of the statute to those situations involving obstetricians, who are the group of physicians that the NICA Plan was designed to benefit. Otherwise, as NICA points out in its brief, under the First District’s interpretation, the statute would be expanded to cover situations where an infant is “transferred from the delivery room” and the “obstetrician relinquishes responsibility of the infant to other health care providers.”

The Court concludes that the First District’s statutory construction analysis of the applicable statute was flawed in two separate ways. First, the district court interpreted the phrase “immediate post-delivery period in the hospital” to mean “an extended period of days when a baby is delivered with a life-threatening condition and requires close supervision.” Because the First District failed to read the phrase “immediate post-delivery period” as modifying “resuscitation,” the First District expanded the NICA Plan to cover infants beyond the limit contemplated by the express language of the statute. Second, the First District incorrectly held that under section 766.309(1)(a), Florida Statutes (2001), the rebuttable presumption of coverage under the NICA Plan applied to benefit the defendants, even though the petitioners were not making a claim for compensation under the NICA Plan.

Accordingly, the Court holds that in order for a “birth-related neurological injury” to occur, the birth injury to the brain caused by oxygen deprivation, which renders the infant permanently and substantially impaired, must occur during labor, delivery or resuscitation in the immediate post-delivery period. That period does not encompass an additional “extended period of time when a baby is delivered in a life-threatening condition” unless there are ongoing and continuous efforts of resuscitation. Both the incident of oxygen deprivation and the brain injury resulting from the oxygen deprivation must occur in this time period. Further, regarding the statutory presumption, only the individual seeking compensation under the NICA Plan is entitled to the benefit of the statutory presumption. Based on our analysis, the Court approves the analysis in Orlando Regional to the extent that it is consistent with this decision, quash the First District’s decision below, and remand to the First District with directions to affirm the ALJ’s final order. Long Island and Manhattan Courts have dealt with similar cases.

In view of the foregoing, the Court held that in reviewing the facts under the correct interpretation of the statute, the Court holds that the ALJ’s finding that the minor child did not sustain a “birth-related neurological injury” under the NICA Plan is supported by competent, substantial evidence.
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This is a medical malpractice case where it is alleged that the plaintiff suffered from injuries as a result of the still birth of her infant as a result of prenatal malpractice and negligence of the defendants.

The plaintiff sought prenatal care from the defendants starting in July of 2001 through November of 2001 for her pregnancy. The result was a still birth on the fourteenth of December. The plaintiff states that she was exposed to DES which increased her risk of having an incompetent cervix and that the defendants should have performed a cerclage procedure in order to tighten her cervix to prevent a still birth or miscarriage.

Case Background
The plaintiff started this case in June of 2004. There are six causes of action asserted by the plaintiff including medical malpractice, lack of informed consent, negligent infliction of emotional distress, negligent hiring and retention, and inadequate staffing and negligent health care facility administration.

Case Discussion
The plaintiff’s cause of action for medical malpractice and for lack of informed consent is governed by a 2 and ½ year statute of limitations. It is noted that the plaintiff did not seek treatment from the defendants after the 8th of November, 2001 and because of this these causes of action are both time barred.

The cause of action for negligent infliction of emotional distress was only recently created by the court of appeals where it was held that even in the absence of an independent injury medical malpractice that results in a miscarriage or still birth should be construed as a violation of a duty of care to the expectant mother entitling her to damages for emotional distress.

The Bronx and Brooklyn defendants argue that this is barred by the two and a half year time limit as well. However, the new ruling may have changed this. The plaintiff must provide evidence to demonstrate that the defendant’s action was a departure from the accepted standard of care in the medical community.

The motion by the defendants for leave to reargue separate orders are granted and upon re-argument the summary judgment motion from the doctor is granted to the extent that all of the causes of action that were asserted against him.
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This case is being heard in the Special Term of the Supreme Court of Queens County. NYC in the state of New York. The question before the court is whether the mother of a still born child who alleges that she was caused to endure excruciating pain and unnecessary injury and delay by reason of malpractice of the defendants is able to recover for the alleged emotional and psychic harm that resulted from the still born birth.

Case Discussion
The question before the court is interesting as the defendants of the case have motions for summary judgment to dismiss the complaint against them for failure to state a cause of action that is cognizable under the laws of the state of New York.

The case at hand deals with a medical malpractice action that arises from the obstetrical care that was provided to the plaintiff by the defendant hospital on the second of June, 1981. This is the date that the plaintiff delivered a stillborn fetus.

The plaintiff alleges that while at the defendant hospital she had numerous physicians attending to her pregnancy and delivery. She states that the defendants are guilty of malpractice because they failed to properly anticipate a breach delivery and did not provide competent physicians to handle such an issue.

The defendants tried to deliver the breech baby vaginally. This delayed the delivery of the infant and was extremely painful for the plaintiff. The plaintiff alleges that this was negligent and caused her to suffer from severe and serious physical, emotional, and mental injuries. It is further alleged that this delay in delivery was the cause of the infant being still born.
The defendants are arguing that the plaintiff has not stated a cause of action in the case and is only seeking emotional damages as a result of having a still born baby. The defendants argue that they are not liable for the baby being still born. The defendants offer several cases as evidence to support their case for summary judgment to dismiss the complaint that has been made against them.

Court Decision
Recent legislation in the state of New York allows mothers of still born children who meet certain criteria known as Bovsun criteria, to have their claims recognized as cognizant even if there are no physical injuries in the case. The plaintiff in this matter has met these criteria.
For this reason, the court finds that there are triable issues of fact in this particular case. The plaintiff has met her burden to establish these facts. The court is ruling in favor of the plaintiff in this case. The motion for summary judgment to dismiss the complaint made against them by the defendants is denied.
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This case is being heard in the Supreme Court of Nassau County. The plaintiffs of the case are seeking to recover damages for medical malpractice. The plaintiffs allege that as a result of the negligence of the defendants the infant plaintiff suffered from fetal complications including oxygen deprivation that caused brain damage and resulting complications.

Case background

The infant plaintiff was born on the 29th of April, 2004. By December of 2004 he was diagnosed with cerebral palsy, left – sided hemiparesis, motor deficit, delayed speech, and cognitive deficits. The defendant in the case is the obstetrician of the mother. He treated the mother at his office and at the hospital.

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In this case the plaintiffs are seeking to recover damages for medical malpractice. The plaintiffs allege that the defendants cared for the plaintiff while she was pregnant and that one of the twins died in utero as a result this care.

Case Background
The plaintiffs of the case are seeking to recover damages for alleged malpractice by the defendants. The plaintiffs allege that the defendants cared for the plaintiff while she was pregnant and that one of her twins died in utero as a result of this care. The plaintiff states that she sustained personal injuries, emotional distress, and pecuniary loss.

The Manhattan plaintiffs allege that she came under the care of the midwife in January of 2004. The plaintiffs allege that the other two defendants were employees of the midwife. During her labor and delivery the wife was attended to by one of the employees of the midwife. The plaintiffs allege that the defendant was careless and negligent and departed from good and acceptable standards of medical practice by failing to properly monitor and follow up with the care and treatment of the plaintiff. The plaintiffs further allege that the defendants did not assist in the care and treatment of her and failed to take the necessary precautions in order to prevent damage and injury to the plaintiff and her twins.

The Westchester defendants seek summary judgment in the case to have the complaints against them dismissed. The defendant doctors argue that they cannot be held liable in this matter because the plaintiff had hired a midwife for the delivery of the twins. When a midwife is hired the doctors take a background role and are only there to offer advice and for this reason they cannot be held liable for the incident at hand.

Court Discussion and Decision
The court has carefully reviewed the facts of the case including the care that caused the demise of one of the infant twins. The plaintiff has provided expert affirmation in the case, but has failed to show the existence of material issues of fact in regard to the care and treatment of the plaintiff by the defendant doctors. The plaintiffs have also not established an existence of material issues in regard to the care provided at the defendant hospital.

For this reason, the court is granting the motions from the defendant doctors and the hospital. The complaints made against them are dismissed.

In regard to the case against the midwife, the court finds that there are triable issues of fact in regard to the case. The motion made by the midwife defendant for summary judgment to dismiss the complaint against her is denied. The ruling in this regard is in favor of the plaintiff.
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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.
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