STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARMEN LUNA and ROY VILLARREAL, )

as parents and natural guardians ) of ASHLEY VILLARREAL, a minor, )

)

Petitioners, )

)

vs. ) CASE NO. 93-2954N

) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )

)

Respondent. )

___________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above- styled case on March 3, 1994, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Daniel E. Jacobson, Esquire

Jacobson, Cohen & Cohen, P.A. 800 Northwest 62nd Street Suite 200

Fort Lauderdale, Florida 33309

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

Taylor, Brion, Buker & Greene

225 South Adams Street, Suite 250 Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Whether Ashley Villarreal has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.

PRELIMINARY STATEMENT

On or about April 8, 1992, Carmen Luna and Roy Villarreal, as parents and natural guardians of Ashley Villarreal, a minor, filed a claim with the Division of Workers' Compensation, Florida Department of Labor and Employment Security (hereinafter referred to as "DWC") for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (hereinafter referred to as the "Plan").

DWC served the Florida Birth-Related Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on or about April 10, 1992. NICA reviewed the claim, and on or about May 20, 1992, gave notice of its determination that the claim was not compensable.

Effective May 15, 1993, by operator of Chapter 93- 251, Laws of Florida, jurisdiction to hear and decide all pending and future claims for compensation under the Plan was transferred to the Division of Administrative

Hearings (hereinafter referred to as "DOAH"), and on June 2, 1993, DWC transferred the file in the above- styled case to DOAH.

On July 28, 1993, DOAH issued a notice of hearing advising the parties that an evidentiary hearing would be held on August 25, 1993, to determine "whether the injury claimed is a birth-related neurological injury and whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital." Thereafter, the hearing was continued at the request of the petitioners, and the case was ultimately heard on March 3, 1994.

At hearing, petitioners called David Ross, M.D., as a witness, and petitioners' exhibits 1-6 and 7A-7V were received into evidence. Respondent called Michael S. Duchowny, M.D., as a witness, and its exhibit 1 was received into evidence.

The original transcript of hearing was filed April 28, 1994, and the parties were accorded ten days from that date to file proposed findings of fact. The parties' proposed findings have been addressed in the appendix to this final order.

FINDINGS OF FACT

Preliminary matters

1. Ashley Villarreal (Ashley) is the natural daughter of Roy Villarreal and Carmen Luna. She was born a live infant on January 2, 1989, at Bethesda Memorial Hospital in Palm Beach County, Florida, and her birth weight was 3090 grams.

2. The physician delivering obstetrical services during the birth of Ashley was Allen Dinnerstein, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.

   The birth of Ashley Villarreal

   
   

3. At or about 4:15 p.m., January 2, 1989, Carmen Luna was admitted to Bethesda Memorial Hospital. At the time, Carmen Luna was in active labor, and Ashley was post term with a gestational age of 41 weeks. Otherwise, Carmen Luna's pregnancy had been without complication.

4. External fetal monitoring was commenced at 4:50

   
   

   p.m. and indicated that the fetal heart tone was sporadically within the 60 beat per minute level, with a slow return to baseline; a level sufficient to indicate occasional fetal bradycardia and fetal distress. 1/

   This situation evidenced a need for surgical intervention, and at 5:20 p.m. Carmen Luna was taken to the operating room.

5. Anesthesia commenced at 5:25 p.m., a cesarean section surgical procedure was commenced at 5:39 p.m., and Ashley was delivered at 5:44 p.m. The operative report reflects that the following occurred during the course of the procedure:

   . . . a transverse incision was made into the uterus releasing meconium stained fluid.

   The vertex was delivered and the baby suctioned with DeLee. A loop of cord over the neck was removed and the baby then delivered completely continually being suctioned as the cord was double clamped and severed and the infant given to the neonatologist for care . . . .

   
   

   The delivery records likewise reflect that Ashley had a blue appearance at delivery, the presence of meconium staining, and the following resuscitation measures: "Stimulation," "Bulb Suction," "DeLee Suction," "Mech Suction" and "Whiffs Oz."

6. When delivered, Ashley presented Apgar scores of

   
   

   6 at one minute and 8 at five minutes. These scores are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of the heart rate, respiratory effort, muscle tone, reflex irritability, and color, with each category being assigned a score ranging from the lowest score of 0

   through a maximum score of 2. As noted, at one minute, Ashley's Apgar score totaled 6, with respiratory effort and reflex irritability being graded at 2 each, heart rate and muscle tone being graded at 1 each, and color being graded at 0. At 5 minutes, Ashley's Apgar score totaled 8, with heart rate, respiratory effort and reflex irritability being graded at 2 each, and muscle tone and color at 1 each. Such total scores could be characterized by an obstetrician as "good."

7. Pertinent to this case, color, heart rate and respiratory effort are primarily related to the cardiovascular system, and color is the least significant indicator of an infant's brain or neurological status at birth. The categories of reflex irritability and muscle tone are, however, neurological assessments, which offer the greatest insight into the neurological condition of an infant at birth. Ashley's Apgar scores relative to those categories which reflect neurological status at birth were collectively a total of 3 out of a possible 4 at both 1 and 5 minutes. Under the circumstances, Ashley's Apgar scores, either globally or discretely, fail to reflect a hypoxic event at birth.

8. At 6:00 p.m., following delivery, Ashley was admitted to the neonatal intensive care unit due to

   respiratory distress, possibly secondary to meconium aspiration. Ashley was accorded extra oxygen, via oxygen hood, for two days, and her meconium aspiration was successfully treated with antibiotics. During her admission, no clinical observations were noted that one would typically expect in a child undergoing hypoxic encephalopathy, and no neurological consult was ordered. 2/ On January 7, 1989, Ashley was discharged as an apparently well baby.

   Subsequent developments

   
   

9. On July 29, 1989, Ashley was seen by

   
   

   M. Arenstein, D.O., for a "well baby visit," and no abnormalities were noted; however, on September 6, 1989, Ashley was again seen by Dr. Arenstein at which time the parents expressed their concern regarding Ashley "not sitting up, crawling, etc." Consequently, Dr. Arenstein referred Ashley for a pediatric consult with Jeffrey Perelman, M.D.

10. Ashley was seen by Dr. Perelman on September 19, 1989, and he diagnosed her as

    developmentally delayed, and ultimately referred her to David Ross, M.D., for a neurological evaluation.

    Dr. Ross saw Ashley on July 2, 1990, and concluded:

    
    

    The patient has some mild facial dysmorphism with developmental delay in all fields

    associated with an abnormal neurologic exam with persistence of postural reflexes and hyperreflexia.

    
    

    The spectrum of findings is consistent with mental retardation of a mild to moderate degree probably due to cerebral palsy. 3/

    
    

    Dr. Ross' ultimate diagnosis was mental retardation, and he recommended that Ashley have a full evaluation, including "an image of the brain either with CT scan or MRI (an EEG, torch titers, chromosome analysis)."

11. Ashley was referred in August 1990, for a CT brain scan and an EEG. The CT scan is a neuroimaging study which can identify structural brain abnormalities occasioned by an hypoxic insult, as well as other causes. The EEG is a device used to detect abnormalities of the electrical currents of the brain such as seizure activity, which is often a manifestation of hypoxic insult at birth, and the death of neuronal cells. Here, both the CT scan and EEG were within normal limits.

12. Ashley continued to be treated by Dr. Perelman through June 1991; however, on August 14, 1991, she came under the care of Miguel Simo, M.D., another pediatrician, because the parents were apparently dissatisfied with Dr. Perelman. Upon examination,

    Dr. Simo diagnosed Ashley as developmentally delayed, and referred her to Laszlo Mate', M.D., a physician

    practicing child neurology, for evaluation. Dr. Mate' examined Ashley on August 29, 1991, and observed:

    . . . a small, dysmorphic female in no apparent distress. Her head circumference is 47 cm which is in the 25th percentile. She doesn't have any neurocutaneous abnormalities. Her palmer creases are somewhat abnormal, but not of simian nature. Her fingers are slightly abnormal, extra long, and she seems to have a proximal displacement of both thumbs. Her ears are malformed with very small earlobes. The ears are somewhat posterior rotated and low set. Her eyes are almond shape but in view of her Indian heritage, that's probably normal.

    Both parents seem to have similar shaped eyes. The child has a somewhat prominent nose. The mouth is somewhat fishmouth in character and she has fairly shallow temporal area. She doesn't have any eyelashes on her lower eyelid.

    
    

    Dr. Mate's impression was:

    
    

    This is a markedly abnormal child with a developmental quotient in the 30's. She's currently is 30 months old and she functions around a 9-10 month level.

    
    

    She has multiple minor malformations which made the diagnosis of cerebral palsy somewhat unlikely. I suspect we are dealing with some prenatal etiology, either genetic or pregnancy related. 4/

    
    

13. Dr. Simo also referred Ashley for an MRI of the brain. An MRI, as with a CT scan, is a neuroimaging study which can identify structural abnormalities occasioned by hypoxic insult, as well as other causes. The MRI, performed September 20, 1991, was abnormal, evidencing "poor and decreased white matter myelinization extending to the frontal, occipital, and parietal cortex

    and decrease in white matter content in the centrum semiovale." Such damage could be reflective of birth asphyxia, developmental immaturity of the brain, or a myriad of other causes.

14. Finally, Dr. Simo referred Ashley to Oscar Febles, M.D., a physician practicing genetics.

    Dr. Febles examined Ashley on November 1, 1991, and rendered a diagnosis of "psychomotor retardation of unknown etiology." Concluding, Dr. Febles observed:

    The clinical findings in this patient are not diagnostic of a particular genetic syndrome . . .

    
    

    In conclusion, this patient presents a clinical picture characterized by psychomotor retardation that cannot be diagnosed on the clinical findings and/or testing done. The fact that she presents diffuse demyelinization on the MRI would favor the diagnosis of cerebral palsy and/or a CNS degenerative disease.

    
    

    It is my recommendation that an MRI be repeated in approximately 6 months to see if the demyelinization process of the cortex previously seen is progressive or static. If found to be progressive it would indicate a CNS degenerative disease (e.g. leukodystrophies) and if static the diagnosis of cerebral palsy is most likely. In addition, it is also recommended . . . Genetic re-evaluation in 1 year.

    
    

    Whether, consistent with Dr. Febles' recommendation, an MRI was repeated or Ashley had a subsequent genetic re- evaluation does not appear of record. Notably, however,

    while Ashley was genetically tested and found to have a normal karyotype, such test does not rule out the preponderance of genetic disorders which manifest themselves in microscopic point mutations within a chromosome as opposed to total chromosomal malformation.

    The medical experts at hearing

    
    

15. As to whether Ashley had sustained permanent and substantial mental and physical impairment as a result of an injury to her brain resulting from oxygen deprivation during the course of labor, delivery or resuscitation in the immediate post-delivery period, petitioners offered the testimony of Dr. David Ross, who, although a board certified neurologist, does not regularly treat neonates. Dr. Ross examined Ashley on July 2, 1990, and March 2, 1994. It was Dr. Ross' opinion that Ashley suffered a substantial and permanent mental and physical impairment as a consequence of oxygen deprivation during the course of labor and delivery.

16. Compared with the opinion of Dr. Ross, the respondent offered the testimony of Dr. Michael Duchowny. Dr. Duchowny is a child neurologist who is board certified in pediatrics, neurology with special competence in child neurology and clinical neurophysiology. Dr. Duchowny is associated with the

    department of neurology at Miami Children's Hospital and routinely treats neonates suspected of having suffered a hypoxic event at birth.

17. Dr. Duchowny examined Ashley on September 21, 1992, as well as observed her at hearing, and was familiar, as was Dr. Ross, with the pertinent medical records. It was Dr. Duchowny's opinion that Ashley was substantially and permanently mentally impaired, but that her physical impairment could best be described as mild to moderate. As to causation, it was Dr. Duchowny's opinion that the cause (etiology) of Ashley's mental and physical impairment (neurologic syndrome) was a developmental problem of in utero (prenatal) or genetic origin, and that any fetal distress she may have suffered at birth was not substantial and did not contribute to her condition. [Tr. 97]

18. Here, I accept the testimony and opinion of Dr. Duchowny as being the more credible and substantial as to whether Ashley sustained a substantial and permanent mental and physical impairment, and the cause of such dysfunction. Dr. Duchowny's opinions are credible, supported by the observations of other physicians as heretofore noted, and are most consistent

    with conclusions to be drawn or inferences raised by the medical records received into evidence.

    CONCLUSIONS OF LAW

    
    

19. 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 (1993).

20. 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.

21. 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.

22. If NICA determines that the injury alleged in a claim is a compensable birth-related neurological injury, it may award compensation to the claimant, provided that the award is approved by the Hearing Officer to whom the claim has been assigned. Section 766.305(6), Florida Statutes. If, on the other hand, NICA disputes the claim, as it has in the instant case, the dispute must be resolved by the assigned Hearing Officer in accordance with the provisions of Chapter 120, Florida Statutes. Sections 766.304, 766.307, 76.309 and 766.31, Florida Statutes.

23. In discharging this responsibility, the Hearing Officer must make the following determination based upon the available evidence:

    1. Whether the injury claimed is a birth- related neurological injury. If the claimant has demonstrated, to the satisfaction of the hearing officer, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in S. 766.302(2).

    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; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital.

       
       

       Section 766.309(1)(a), Florida Statutes. An award may be sustained only if the Hearing Officer concludes that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth." Section 766.31(1), Florida Statutes.

24. Pertinent to this case, "birth-related neurological injury" is defined by Section 766.302(2), Florida Statutes, to mean:

    . . . injury to the brain or spinal cord of a live infant weighing at least 2,500 grams at birth 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.

    
    

25. Here, the proof demonstrated that the attending physician who provided obstetric services during the birth of Ashley Villarreal 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. However, the

    record developed in this case demonstrates that Ashley did not suffer a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. As noted in the findings of fact, the proof failed to demonstrate that Ashley suffered an injury to the brain or spinal cord caused by oxygen deprivation during the course of labor, delivery or resuscitation in the immediate post-delivery period that rendered her permanently and substantially mentally and physically impaired, and further failed to demonstrate that Ashley suffered any injury that had rendered her permanently and substantially physically impaired. Rather, the proof demonstrated that the cause of Ashley's mental and physical impairments were developmental in origin, and that any fetal distress she may have suffered during the course of labor, delivery or resuscitation in the immediate post-delivery period did not contribute to her condition. Accordingly, the subject claim is non- compensable under the Plan. Sections 766.302(2), 766.309(1) and 766.31(1), Florida Statutes.

26. Where, as here, "the hearing officer determines

that . . . the injury alleged is not a birth-related neurological injury . . . he [is required to] enter an order [to such effect] and . . . cause a copy of such

order to be sent immediately to the parties by registered or certified mail." Section 766.309(2), Florida Statutes. Such an order constitutes final agency action subject to appellate court review. Section 766.311(1), Florida Statutes.

CONCLUSION

Based on the foregoing findings of fact and conclusions of law, it is

ORDERED that the petition for compensation filed by Carmen Luna and Roy Villarreal, as parents and natural guardians of Ashley Villarreal, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 1st day of June 1994.

_________________________________ WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of June 1994.

ENDNOTES

1/ Bradycardia is defined as slowness of heart beat, as evidenced by slowing of the pulse rate to less than 60. Dorland's Illustrated Medical Dictionary, Twenty-sixth Edition.

2/ Pertinent to this case, a brain dysfunction (encephalopathy) may be caused by hypoxic (decreased oxygen) or anoxia (complete depravation of oxygen), among other causes. Hypoxia results in neurological impairment because the resultant oxygen deprivation kills or destroys parts of the brain. Here, there is nothing in the medical records to indicate asphyxia (hypoxia) at birth or at any other time sufficient to account for Ashley's condition. Given the degree of Ashley's mental impairment, if hypoxia at birth had been the cause, a substantial hypoxic insult would have been required and one would expect dramatic abnormalities on her neuroimaging studies and clinical observations following birth consistent with such an insult. In this case, such abnormalities or observations are not present.

3/ Cerebral palsy is a generic medical term used to describe a plethora of static (nonprogressive) motor impairments which may be acquired prior to, during or shortly after birth. The overwhelming number of cases of cerebral palsy are acquired prenatally.

4/ Dr. Mate's observation of Ashley's dysmorphic features was consistent with those of Dr. Ross, Dr. Febles, and Dr. Duchowny. Dysmorphic denotes abnormal features such as an abnormality in the shape of a head, face, appendage or other feature, and is a reflection of the possibility of developmental problems, problems intrauterine whereby development did not occur normally. Clinically, there is a correlation between dysmophism of the body and abnormal development of the brain such that if the body does not develop properly there is a "high" probability that the brain has similarly suffered. Dr. Ross' efforts to discount the significance of such features on Ashley is rejected as unpersuasive and contrary to the more compelling proof.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 2.

3 Addressed in paragraphs 3-5.

1. First three sentences, to the extent shown to be pertinent, addressed in paragraph 8. Remainder addressed in paragraphs 9-11 and 13.

2. Addressed in paragraph 14.

3. Addressed in paragraph 10. As to Dr. Perelman's diagnosis of cerebral palsey, the date of such diagnosis is not of record, may have post dated Dr. Ross' opinion, and certainly post dated his diagnosis of developmental delay. As to Dr. Ross having noted the problems involved in the birth as probable factors, he did testify at hearing that such was his "working hypothesis", but his records fail to reflect such conclusion.

4. Addressed in paragraphs 15 and 17.8. Addressed in paragraph 17 and 18.

Respondent's proposed findings of fact are addressed as follows:

1-3. Addressed in paragraphs 1 and 2.

1. Addressed in paragraphs 3-5.

2. Addressed in paragraph 6.

6 & 7. Addressed in paragraph 8.

8 & 9. Addressed in paragraphs 10 and 15.

1. Addressed in endnote 3.

2. Subordinate to conclusion reached in paragraph

18.

12 & 13. Addressed in paragraphs 11 and 13.

1. Addressed in paragraph 16 and endnote 4.

2. Addressed in paragraphs 15 and 17.

3. Unnecessary detail or addressed in paragraph

4. 
   

17-22. Addressed in paragraphs 6 and 7, and endnote

2.

23, 25 & 26. Unnecessary detail, argumentative or

subordinate.

24. Addressed in paragraph 4 and endnote 1.

27. Addressed in paragraph 17 and endnote 2. 28-30. Addressed in endnote 4.

31. Addressed in paragraph 14.

COPIES FURNISHED:

Daniel E. Jacobson, Esquire Jacobson, Cohen & Cohen, P.A. Suite 200

800 N.W. 62nd Street

Fort Lauderdale, Florida 33309

W. Douglas Moody, Jr., Esquire Taylor, Brion, Buker & Greene Suite 250

225 South Adams Street Tallahassee, Florida 32302

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 1528

Tallahassee, Florida 32302

Sue Foster, Chief Bureau of Complaints Department of Business

and Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Ms. Tanya Williams

Division of Health Quality Assurance Hospital Section

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Bill O'Neil, Esquire General Counsel Department of Insurance The Capitol, PL-11

Tallahassee, Florida 32399-0300

Dr. Allen Dinnerstein

207 SE 23rd Avenue

Boynton Beach, Florida 33435

Bethesda Memorial Hospital 2815 South Seacrest Boulevard Boynton Beach, Florida 33435

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.

Docket for Case No: 93-002954N

Orders for Case No: 93-002954N