STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCOTT G. THOMAS and MARY E. THOMAS, )

as parents and natural guardians of ) of BRADLEY JOHN THOMAS, a minor, )

)

Petitioners, )

)

vs. ) CASE NO. 93-3353N

) 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 27-30, 1995, in Pensacola, Florida.

APPEARANCES

For Petitioners: Donald P. Welch, Esquire

Emmanuel, Sheppard & Condon

30 South Spring Street Post Office Drawer 1271 Pensacola, Florida 32596

For Respondent: Stephen M. Masterson, Esquire

McConnaughhay, Roland, Maida & Cherr, P.A.

316 South Baylen Street, Suite 500 Pensacola, Florida 32591-3570

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Bradley John Thomas, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On or about August 4, 1991, Mary E. Thomas, as the mother and natural guardian of Bradley John Thomas (Bradley), a minor, filed a claim with the Division of Worker's 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"). 1/

DWC served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on or about August 9, 1991. NICA reviewed the claim, and on January 31, 1992, gave formal notice of its determination that the claim was not compensable.

In January 1993, a formal hearing on the claim was held before the Honorable Michael J. DeMarko, Judge of Compensation Claims, but as of May 15, 1993, a final order had not been rendered.

Effective May 15, 1993, by operation of Chapter 93-251, Laws of Florida, jurisdiction to hear and resolve all pending and future claims for compensation under the Plan was transferred to the Division of Administrative Hearings (hereinafter referred to as "DOAH"). Notwithstanding, Judge DeMarko resolved that, since the formal hearing had been conducted, he retained jurisdiction to resolve the claim and declined to transfer the claim to DOAH.

By petition for writ of prohibition filed with the District Court of Appeal, First District, NICA challenged Judge DeMarko's retention of jurisdiction, and on August 1, 1994, the court issued its opinion which granted the requested writ. Florida Birth-Related Neurological Injury Compensation Association v.

DeMarko, 640 So.2d 181 (Fla. 1st DCA 1994). On August 23, 1995, DWC transferred the file in the above-styled case to DOAH.

Thereafter, the parties were duly noticed that an evidentiary hearing would be held on March 27-31, 1995, 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."

At hearing, petitioners called, as witnesses: Jenny Wolff, Michelle Cleary, Meyer E. Dworsky, M.D., Bayard D. Miller, M.D., Lillian E. Ferreira, Angela F. Boles, John M. Boles, Scott G. Thomas, Bo H. Bagenholm, M.D., Lucretia Lee, Mary E. Thomas, and Patricia Dwiggins. Petitioners' exhibits 1-4, 7, 11-14, 17A, 17B, 18, 20, 21A, 21B, 21C and 22 were received into evidence.

2/ Respondent called Charles Kalstone, M.D., and Michael Duchowny, M.D., as witnesses, and its exhibits 1-4 were received into evidence. 3/ Additionally, joint exhibits 1-21 were received into evidence.

The transcript of hearing was filed May 4, 1995, and the parties were accorded thirty days from that date to file proposed final orders. Consequently, the parties waived the requirement that a final order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The parties' proposed findings of fact, contained within their proposed final orders, have been addressed in the appendix to this final order.

FINDINGS OF FACT

Fundamental findings

1. Bradley John Thomas (Bradley) is the natural son of Scott G. Thomas and Mary E. Thomas. He was born a live infant on July 8, 1989, at Baptist Hospital, a hospital located in Pensacola, Florida, and his birth weight was in excess of 2500 grams.

   
   

2. The physician providing obstetrical services during the birth of Bradley was Bo H. Bagenholm, 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.

   
   

   The birth of Bradley Thomas

   
   

3. At or about 2:10 a.m., July 8, 1989, Mary Thomas was admitted to a labor room at Baptist Hospital. At the time, Mrs. Thomas was in active labor, having experienced a spontaneous rupture of the membranes with the emission of clear amniotic fluid at approximately 1:30 a.m., and Bradley was slightly post- term with a gestational age of approximately 41 weeks. Otherwise, Mrs. Thomas' pregnancy had been without complication.

   
   

4. External fetal heart monitoring was commenced at approximately 2:15 a.m. and indicated a good base line with fetal heart tone between 125 and 140 beats per minute. From 2:30 a.m. to 2:45 a.m., the fetal heart tone was 120 to 150 beats per minute, from 2:45 a.m. to 3:00 a.m., the fetal heart tone was 115 to 145 beats per minute, and from 3:00 a.m. to 3:15 a.m., the fetal heart tone was 110 to 120 beats per minute with occasional acceleration to 160. In all, for such period, the fetal heart rate was normal, and no cause for concern. 4/

   
   

5. At approximately 3:15 a.m., Mrs. Thomas was removed from the monitor, provided a urine sample, and was given an enema, with good results. At 4:01 a.m., the fetal heart monitor was reapplied, and the nurse conducted a vaginal exam, at which point Mrs. Thomas was found to be 3 cm dilated.

6. When the vaginal exam occurred, the fetal heart tone was recorded to be 120 to 130 beats per minute, with a reflex acceleration to 160 and deceleration to 60 following stimulation of the infant. Such heart rate was normal, and the reflex not unusual or ominous given the fetal heart tone recovery to the normal base line rate. 5/

   
   

7. Following the 4:01 a.m. vaginal examination, the fetal heart base line continued in the 120 to 160 or normal base line range until 12:14 p.m. when the fetal monitor was removed and the mother was taken to the delivery room via bed. During that period, an occasional acceleration and variable decelerations were noted, but such were not unusual or ominous given there was no persistent tachycardia or persistent decelerations. Indeed, the data recorded was consistent with the baby's reaction to examination, contractions or umbilical cord compression, and evidenced no fetal compromise. 6/

   
   

8. At 10:19 a.m., following an earlier epidural replacement, Dr. Bagenholm examined Mrs. Thomas and found the epidural effective and her cervical dilatation at rim.

   
   

9. At 11:28 a.m., the nurse conducted a vaginal exam, found the mother's cervical dilation complete, and instructed her on pushing. At 12:00 p.m. (noon) the baby was noted to be at the

   +1/+2 station, at 12:07 p.m. to be at the +2 station, and at 12:14 p.m., the monitor was removed and the mother taken to the delivery room.

   
   

10. Upon admission to the delivery room, the fetus continued to be monitored by doppler and evidenced fetal heart tones of 130-140 beats per minute. At 1:33 p.m., with the assistance of fundal pressure occasioned by the mother's reduced expulsion efforts, Bradley was delivered.

    
    

11. When delivered, no meconium was present and Bradley presented with Apgar scores of 8 at one minute and 10 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 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 Bradley's Apgar score totaled 8, with heart rate, respiratory effort, muscle tone and reflex irritability being graded 2 each and color being graded 0. At five minutes, Bradley's Apgar score totalled 10, with all categories being graded at 2 each.

12. Bradley's Apgar scores are reflective of a healthy, vigorous infant. Indeed, on presentation, Bradley evidenced all the signs of a healthy newborn, with spontaneous respiration, a strong cry, no visible signs of trauma, good heart rate and good muscle tone.

    
    

13. At or about 2:30 p.m., following routine suctioning and administration of oxygen, Bradley was admitted to the newborn nursery. Upon admission, Bradley's physical assessment revealed, inter alia, moderate molding of the head, not unusual in an infant delivered vaginally; soft and flat fontanelle, evidencing

    no intercranial pressure such as one might associate with a significant bleed; strong reflexes; a pink color; and, an alert and active infant.

    
    

14. Bradley's first twenty-five hours of life were essentially uneventful, and he evidenced the normal signs of a healthy infant including the presence of soft and flat fontanelle, at least as late as 8:00 a.m., July 9, 1989. Bradley roomed-in with his mother from 10:30 a.m. to 2:30 p.m., July 9, 1989, when he was returned to the nursery, and during that time he reflected the signs of a healthy baby. 7/

    
    

15. Upon his return to the nursery at 2:30 p.m., Bradley was observed to be "gaggy" and "spit up." Shortly thereafter, at approximately 2:45 p.m., Bradley suddenly turned cyanotic, facial and trunk. The nurse promptly turned Bradley over, stimulated him, and Bradley responded with a "lusty cry" and "pinked up"; however, it was noted that he had a "fixed stare" and "does not blink to threat." At 4:30 p.m., another cyanotic episode was noted and, thereafter, evidence of seizure activity appeared.

    Dr. Jenkins, Bradley's pediatrician, ordered a blood culture to rule out infection and at 5:15 p.m. he performed a lumbar puncture, which evidenced bloody spinal fluid. Arrangements were made to transfer Bradley to the neonatal intensive care unit at Sacred Heart Hospital, and at 7:28 p.m., Bradley left Baptist Hospital with the transport team.

    
    

16. At Sacred Heart Hospital, a physical examination of Bradley revealed that his fontanelle were full and, thereafter, he was diagnosed to have suffered a grade IV intraventricular hemorrhage, which evidenced at approximately his twenty-fifth hour of life. That hemorrhage caused profound injury to Bradley's brain, which has rendered him "permanently and substantially mentally and physically impaired," as that term is used in Section 766.302(2), Florida Statutes.

    
    

    The cause of Bradley's grade IV intraventricular hemorrhage

    
    

17. Given the foregoing, resolution of this claim resolves itself to an identification of the genesis of Bradley's grade IV intraventricular hemorrhage or, stated otherwise, whether the proof demonstrated, more likely than not, that the hemorrhage, which resulted in injury to Bradley's brain and the ensuing neurological injuries, resulted from "oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post deliver period." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. 8/ Considering the proof, for the reasons that follow, it must be concluded that petitioners have failed to demonstrate, by the requisite

    standard, that the injury to Bradley's brain was the consequence of "oxygen deprivation or mechanical injury" and therefore failed

    to demonstrate that Bradley suffered a "birth-related neurological injury," as defined by law. Sections 766.302(2), Florida Statutes.

    
    

18. Here, the proof is compelling that a grade IV intraventricular hemorrhage in a term infant, such as Bradley, is a rare occurrence, and that its cause is often not definable. Indeed, among the physicians who testified, there is apparent agreement that approximately 25 percent of grade IV intraventricular hemorrhages have identifiable causes such as sepsis, a blood disorder, an AV malformation, genetic disorder or an identifiable prenatal event; that approximately 50 percent are related to oxygen depravation or trauma in the intrapartum period; and, that approximately 25 percent can be attributed to no known cause.

    
    

19. As for Bradley, when Mrs. Thomas was admitted to the labor and delivery room, he was assessed to be a viable fetus with no evident signs of stress. Indeed, Mrs. Thomas' pregnancy was without complications, and any prenatal events or other known causes of a grade IV intraventricular hemorrhage, such as sepsis, a genetic disorder, a blood disorder or an AV malformation have been examined and rejected as an identifiable cause of Bradley's hemorrhage.

    
    

20. As for the labor and delivery of Bradley, the proof demonstrates that it was essentially normal and that there was no obstetrical incident or identifiable event during labor and delivery that would evidence that Bradley had suffered a hypoxic insult or mechanical injury. Indeed, Bradley, although large, was not large for his gestational age, given the use of an epidural there was no prolonged labor, there was no cephalopelvic disproportion, no untoward molding of the head, no use of forceps or vacuum extraction in delivery, and the use of fundal pressure was appropriate and not shown to be excessive. Upon delivery, no meconium was present, no apparent cranial injuries were observed, and Bradley presented as a vigorous infant with normal Apgars.

    In summary, there was no identifiable incident during the course of labor or delivery, or thereafter during Bradley's first twenty-five hours of life, evidencing oxygen deprivation, mechanical injury, or other insult, that would account for the hemorrhage he suffered at approximately his twenty-fifth hour of life.

21. Indeed, the neonatologist, Dr. Dworsky, and neurologist, Dr. Miller, who offered testimony on behalf of petitioners, acknowledged that the labor and delivery of Bradley was fairly normal with no identifiable problems that would account for the hemorrhage. Moreover, Dr. Miller concluded that in the 50 percent of hemorrhages attributable to birth trauma,

    the literature suggests clear evidence at birth of compromise to the infant. Notwithstanding, there being no other traumatic event known, they theorize that Bradley failed to tolerate the stress associated with labor and delivery and that, through the mechanism of changes in venous or arterial blood pressure occasioned by variable decelerations caused by compression of the umbilical cord and from compression of the head associated with delivery, Bradley suffered an insult to the intracranial blood vessels which ultimately manifested as a grade IV intraventricular hemorrhage In their opinion, such insult was the product of oxygen deprivation and trauma associated with the stress of labor and delivery. 9/

    
    

22. The opinions of Doctors Dworsky and Miller regarding the probable cause of Bradley's hemorrhage are rejected as unpersuasive. Such opinions are largely speculative, being based on the assumption that the birth process was the only known traumatic event in Bradley's life, ignore that percentage of cases in which it is acknowledged that the cause of hemorrhage can never be known, and are not supported by any objective evidence of trauma or oxygen deprivation of record. Indeed, given the relatively uneventful labor and delivery, as well as Bradley's vigor at birth, the opinion of Dr. Duchowny that "this baby fits into the group of term infants with an intraventricular hemorrhage for which no cause is ever identified" is most credible and is, therefore, accepted.10

    CONCLUSIONS OF LAW

    
    

23. 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).

    
    

24. 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.

    
    

25. 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.

    
    

26. 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, 766.309 and 766.31, Florida Statutes.

    
    

27. 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), Florida Statutes.11 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.

       
       

28. 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.

29. Here, the proof demonstrated that the attending physician who provided obstetric services during the birth of Bradley 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 fails to demonstrate that Bradley has suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. As noted in the findings of fact, the record failed to demonstrate that Bradley suffered an "injury to the brain . . . caused by oxygen deprivation or mechanical injury . . . which rendered [him] permanently and substantially mentally and physically impaired." Accordingly, the subject claim is not compensable under the Plan. Sections 766.302(2), 766.309(1) and 766.31(1), Florida Statutes.

30. 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 Scott

T. Thomas and Mary E. Thomas, as parents and natural guardians of Bradley John Thomas, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 13th day of July 1995.

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 13th day of July 1995.

ENDNOTES

1/ At hearing, Scott G. Thomas, the natural father of Bradley, was joined as a party petitioner.

2/ Petitioners' exhibits 5, 6, 9 and 10 were not moved into evidence. Petitioners' composite exhibit 16 was withdrawn. No exhibits were even identified as petitioners' exhibit numbers 8 and 19. Respondent's objection to petitioners' exhibit 15 was sustained.

3/ Respondent's exhibits 5 and 6 were also received, but for the limited purpose of impeachment.

4/ The circumstances surrounding Bradley's birth were the subject of a Baptist Hospital perinatal conference during which the fetal monitor strips were last seen. The strips were, thereafter, apparently misplaced since despite the parties' best effort they have not been located. There is not, however, any proof that the strips are missing because of some deliberate act or omission of the hospital or any physician. Moreover, the absence of the strips is not crucial to the resolution of this case since they were reviewed periodically during the course of labor and delivery, and data was recorded on the labor chart by the nurses. Consequently, while it would be nice to have the strips to dispel any questions, they are not, given other data of record, as well as Bradley's vigor at birth, essential.

5/ The medically accepted normal fetal base line heart rate is between 120 and 160 beats per minute, although a given infant's rate may, at times, be somewhat lower. "Bradycardia" is considered a persistent base line fetal heart rate below 120, although some physicians suggest 100, for at least two minutes. Low base line rate is not, however, of significant concern unless it drops to 60 and is persistent for about five minutes. In the later case it is considered profound bradycardia and prompt action to deliver the baby must be taken. The former case is considered temporary bradycardia where the baby recovers with the usual maneuvers, such as repositioning and oxygenating the mother, and is not of concern. [Transcript March 29, 1995, pages 23-27.] Here, the reflex drop to 60 beats per minute was more likely a reflex deceleration and not bradycardia, and certainly not profound.

6/ In reaching the foregoing conclusion, the testimony of Mark Bowles and Angie Bowles that they visited Ms. Thomas at or about 9:45 a.m., July 8, 1989, in the labor room and observed a drop in the fetal heart rate from baseline to between 60-65 beats per minute, and upon examination of the data recorded on the fetal heart monitor strip over a 40 minute to one hour period noted a

number of such declarations, which they characterized variously as 20 to 30, or less, has not been overlooked. Such testimony is not, however, persuasive proof of fetal compromise since, ever accepting their observations as accurate, there is no evidence of profound or persistent bradycardia or any evidence of compromise to the infant at birth. Moreover, their lack of knowledge or experience in the field of obstetrics, particularly given the passage of time since the event, renders their observations or perceptions unreliable, given the contemporaneous records available and the observations of experienced health care providers.

7/ During his first 24 hours of life Bradley, although nursing some, did not nurse well. That is not unusual for the first 24 hours of life when the infant is tired. Mrs. Thomas also observed Bradley's eyes twitch on one occasion, but the timing of that event is not of record, and the clinical significance of that event, if any, has not been established.

8/ Pertinent to this case, Section 766.302(2), Florida Statutes, defines a "birth-related neurological injury" as an "injury to the brain . . . of a live infant . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period . . . which renders the infant permanently and substantially mentally and physically impaired." Section 766.309(1)(a), Florida Statutes, provides, however, that where "the claimant has demonstrated . . . that the infant has sustained a brain . . . 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." Accordingly, if petitioners can establish that the cause of Bradley's neurologic impairment was oxygen deprivation or mechanical injury they are entitled to a presumption that the timing of such deprivation or injury was during "the course of labor, delivery, or resuscitation in the immediate postdelivery period."

Here, the petitioners have failed to demonstrate, by the

greater weight of the evidence, that the grade IV intraventricular hemorrhage Bradley sustained, which was the cause of his neurologic injuries, was caused by oxygen deprivation or mechanical injury. It therefore follows, rebuttable presumption or not, that petitioners have failed to demonstrate that Bradley suffered a "birth-related neurological injury," as defined by law.

9/ Petitioners also contended that such forces may have prompted a small bleed which over the course of the next 25 hours progressed into a large bleed or grade IV intraventricular

hemorrhage. Such contention is rejected as contrary to the more credible proof which demonstrates that a grade IV intraventricular hemorrhage is a catastrophic event, and that the event and symptoms appear almost simultaneously.

Petitioners also advanced a theory through Dr. Iffy that during delivery the sutures overrode and caused a destruction of the venous system. Such theory is rejected, as it was by all other physicians who addressed it, since there was not evidence of hemorrhage in the outer portions of the brain, where the alleged shearing would have caused damage. The CT scans present evidence of intraventricular hemorrhage, not epidural hemorrhage.

10/ While not essential to the result reached, since the opinions of Doctors Dworsky and Miller have been rejected as unpersuasive, it is worthy of observation that the "trauma" or insult to the intracranial blood vessels occassioned by blood pressure changes they theorized as the cause of hemorrhage was largely associated with compression of the fetal head during the actual delivery. While such may be "trauma," it is a natural occurrence and not "mechanical injury," as required by Section 766.302(2), Florida Statutes.

11/ Where, as here, NICA disputes the claim, the burden rests on the claimants to demonstrate entitlement to compensation.

Section 766.309(1)(a), Florida Statutes. See also, Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349,

350 (Fla. 1st DCA 1977), ("[T]he burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.")

APPENDIX

Petitioners' proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Adopted in paragraph 2.

3. Adopted in paragraph 1.

4. Adopted in paragraph 1.

5. Rejected as contrary to the facts as found. See paragraphs 11-14.

6. Accepted. See paragraph 19.

7. Addressed in paragraph 20.

8. Rejected as contrary to the facts as found. 8a). Addressed in paragraph 3.

8b). Rejected as contrary to the facts as found. See paragraphs 5 and 6.

8c). See response to respondent's proposed finding of fact

1. Indeed, such delay is not uncommon where epidural anesthesia is used, the delay was properly addressed, and was not shown to

   be an event of concern or significance to the resolution of this case.

   8d). Addressed in paragraphs 4-10. Such episodes of variable decelerations can best be described as "occasional" as opposed to "continuous" as suggested by petitioner.

   8e). Addressed in paragraphs 21 and 22.

   8f). Rejected as contrary to the facts as found. See paragraph 20.

   8g). Rejected as not supported by persuasive proof. See paragraph 20.

   8g). [sic] Accepted that the mother's second degree episiotomy tore and extended to a third degree episiotomy but rejected that it was a consequence of fetal pressure and excessive external mechanical forces as opposed to a natural result of the birth of the fetus. See also, paragraph 20.

   8h). Accepted but not shown to be significant to the result reached.

   8i). Rejected as contrary to the persuasive proof. See paragraph 20.

   8j). Addressed in paragraphs 11-13. Further, petitioners' suggestion that Bradley was resuscitated at birth is rejected as contrary to the proof. Rather, Bradley, although suctioned and administered oxygen as a matter of routine, had spontaneous respiration and did not require resuscitation.

   8k). Rejected as contrary to the persuasive proof. See paragraphs 17-22, and accompanying endnotes.

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

   
   

   1. Addressed in paragraph 23.

   2. Addressed in paragraph 1.

   3. Addressed in paragraph 2.

4-7. Addressed in paragraph 3, otherwise unnecessary detail.

8. Addressed in endnote 4.

9 & 10. Addressed in paragraphs 4-7, otherwise unnecessary detail or recitation of testimony.

1. Accepted, but unnecessary detail.

2. Addressed in endnote 6.

13-15. Addressed in paragraph 20, otherwise argumentative or unnecessary detail.

1. Addressed in endnote 9.

2. Addressed in paragraphs 10 and 11.

3. Addressed in endnote 7.

4. Addressed in paragraph 15, otherwise unnecessary detail.

5. Addressed in paragraph 16, otherwise unnecessary detail.

21 & 22. Addressed in paragraphs 20-22 and endnote 9, otherwise argumentative or unnecessary detail.

23-25. Rejected as legal argument and not a finding of fact.

26-27. Addressed in paragraphs 17-22, otherwise argumentative or unnecessary detail.

28. Addressed in paragraph 16.

COPIES FURNISHED:

(By Certified Mail)

Donald P. Welch, Esquire EMMANUEL, SHEPPARD & CONDON

Post Office Drawer 1271 Pensacola, Florida 32596

Stephen M. Masterson, Esquire McCONNAUGHHAY, ROLAND, MAIDA & CHERR

Post Office Box 13570 Pensacola, Florida 32591-3570

W. Douglas Moody, Jr., Esquire Taylor, Brion, Buker & Greene Post Office Box 11189 Tallahassee, Florida 32302-3189

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 1528

Tallahassee, Florida 32302 Copies furnished continued:

Bo H. Bagenholm, M.D.

400 Bayou Boulevard Pensacola, Florida 32596

Baptist Hospital Legal Department

Post Office Box 17500 Pensacola, Florida 32522

Ms. Charlene Willoughby Department of Business

and Professional Regulation Consumer Services

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0750

COPIES FURNISHED CONTINUED:

Ms. Tanya Williams

Division of Health Quality Assurance Hospital Section

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308 Dan Sumner

Acting General Counsel Department of Insurance The Capitol PL LL

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.

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

SCOTT G. THOMAS and MARY E. NOT FINAL UNTIL TIME EXPIRES TO THOMAS, FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED.

Appellant,

CASE NO. 95-2796

vs. DOAH CASE NO. 93-3353N

FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Appellee.

/ Opinion filed June 7, 1996.

An appeal from order of the Division of Administrative Hearings.

Russell S. Bohn of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, and Donald P. Welch, Pensacola, for Appellants.

Mary E. Cruickshank of McConnaughhay, Roland, Maida & Cherr, Tallahassee, for Appellee.

PER CURIAM.

AFFIRMED.

BARFIELD, ALLEN and KAHN, JJ., CONCUR.

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

To the Honorable, William J. Kendrick, Hearing Officer

Division of Administrative Hearings

WHEREAS, in that certain cause filed in this Court styled: SCOTT G. THOMAS and MARY E.

THOMAS, as parents and natural guardians of BRADLEY JOHN THOMAS, a minor

vs. Case No. 95-2796

Your Case No. 93-3353N

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION

The attached opinion was rendered on JUNE 7, 1996.

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable Edward T. Barfield

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 25th day of June, 1996.

Clerk, District Court of Appeal of Florida, First District.

Docket for Case No: 93-003353N

Orders for Case No: 93-003353N