n

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT JOYCE and LILLIAN REYES )

JOYCE, on behalf of and as )

natural guardians of JILLIAN )

JOYCE, a minor, )

)

Petitioners, )

)

vs. ) CASE NO. 95-1493N

) 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 January 4, 1996, by video teleconference.

APPEARANCES

For Petitioner: Alan F. Wagner, Esquire

Bill Wagner, Esquire

WAGNER, VAUGHAN and MCLAUGHLIN, P.A.

601 Bayshore Boulevard, Suite 910

Tampa, Florida 33606

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

BATEMAN GRAHAM, P.A.

300 East Park Avenue Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

On March 29, 1995, Robert Joyce and Lillian Reyes Joyce, as the parents and natural guardians of Jillian Joyce, a minor, filed a claim with the Division of Administrative Hearings (hereinafter referred to as "DOAH") for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (hereinafter referred to as the "Plan").

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on March 31, 1995. NICA reviewed the claim, and on June 6, 1995, gave notice that it had "determined that such claim is not a 'birth related neurological injury' within the meaning of Section 766.302(2), Florida Statutes" and requested that the Hearing Officer "enter an order setting a hearing in this cause on the issue of the compensability of this claim." Such a hearing was held on January 4, 1996.

At hearing, the parties stipulated to the facts set forth in paragraphs one and two of the findings of fact. Petitioners called, as witnesses, Robert Joyce, Lillian Reyes Joyce, Robert Martinez, M.D., and Joseph Witek, M.D., and their exhibits 1 through 13 were received into evidence.1 Respondent called no witnesses; however, its exhibits 1/ (the deposition of Michael Duchowny, M.D.), 3 and 4 were received into evidence.

The transcript of the hearing was filed January 17, 1996, and the parties were accorded twenty 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, are addressed in the appendix of this final order.

FINDINGS OF FACT

Preliminary matters

1. Petitioners, Robert Joyce and Lillian Reyes Joyce, are the parents and natural guardians of Jillian Joyce (Jillian), a minor. Jillian was born a live infant on March 30, 1990, at St. Joseph's Hospital, a hospital located in Tampa, Hillsborough County, Florida, and her birth weight was in excess of 2,500 grams.

   
   

2. The physician providing obstetrical services during the birth of Jillian was Rufus S. Armstrong, M.D., who was, at all time material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.

3. At the commencement of hearing, the parties were unable to stipulate that Jillian was currently permanently and substantially mentally and physically impaired; however, as hereafter found, the proof compels such conclusion. Consequently, the gravamen of this case concerns whether

   Jillian's condition was the consequence of an injury to her brain caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period in the hospital. For the convenience of the reader, it is noted that petitioners' theory of the case is that Jillian "was injured during a difficult labor which culminated in a forceps delivery and that, during labor or delivery, . . . [she] . . . suffered a stroke event which caused oxygen deprivation to her brain and produced the neurological injury at issue." [Petitioners' proposed final order, at page 2.] The respondent, on the other hand, views Jillian's anomalous brain development, and consequent impairments, as resulting from a congenital anomaly or stroke in-utero, unassociated with labor or delivery. [Respondent's proposed final order, paragraph 16, page 8.]

   Mrs. Joyce's antepartum course

   
   

4. Mrs. Joyce's pregnancy was essentially unremarkable. She had no significant illnesses or injuries during her pregnancy; avoided substances, such as alcohol or tobacco, that could adversely affect her or the fetus; and, received prenatal care throughout her term. 2/

   
   

5. During the course of her antepartum care, Mrs. Joyce had a series of ultrasounds and an amniocentesis. Neither those tests nor any of her examinations revealed any abnormalities or cause for concern with the development of the fetus.

   
   

   Jillian's birth

   
   

6. On March 30, 1990, at approximately 6:30 a.m., Mrs. Joyce's membrane spontaneously ruptured. At the time, her estimated date of confinement had been noted as April 2, 1990, and the fetus was at term, with a gestational age of 39+ weeks.

   
   

7. Later that morning, Mrs. Joyce visited her doctor's office, and the leakage of amniotic fluid was confirmed. Consequently, she was referred to the hospital to await labor and delivery.

   
   

8. Mrs. Joyce was admitted to St. Joseph's Hospital, labor and delivery, at or about 10:30 a.m., March 30, 1990. At the time, vaginal examination revealed the cervix to be at 2

   centimeters, effacement at 80 percent, and the fetus at station

   -1. Fetal monitoring was commenced, which reflected evidence of fetal well-being.

   
   

9. Apparently, labor did not progress, and that afternoon it was induced. By late afternoon, Mrs. Joyce began to experience labor pains, and her labor progressed uneventfully, with concomitant fetal well-being, until shortly before 9:00 p.m. At that time, the fetal monitor began to evidence signs of fetal "distress."

   
   

10. The "distress" noted was fetal tachycardia, with heart rates in the 150 beat per minute range. Such "distress," among those physicians qualified to address the subject, would be consistent with, at most, some mild stress to the infant during birth. [Respondent's exhibit 1, page 27].

    
    

11. Dr. Armstrong, Mrs. Joyce's obstetrician, was promptly summoned, and he and his partner, Dr. J. Garcia, promptly responded. At 9:08 p.m., Jillian was delivered vaginally by Dr. Armstrong, with forceps assistance, while Dr. Garcia applied fundal pressure.

    
    

12. Upon delivery Jillian apparently breathed spontaneously, and did not require resuscitation. Birth weight was 7 pounds, 1 ounce, and the nursing delivery record reflects no nuchal cord at birth, no observed abnormalities, and Apgar scores of 8 at one minute and 9 at five minutes.

    
    

13. The Apgar scores assigned to Jillian 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 Jillian's Apgar score totaled 8, with heart rate, respiratory effort, muscle tone, and reflex irritability being graded at 2 each and color being graded at 0. At five minutes, Jillian's Apgar score totalled 9, with heart rate, respiratory effort, muscle tone, and reflex irritability being graded at 2 each and color being graded at 1. Such scores are, essentially, normal.

    
    

14. While Jillian's Apgar scores and presentation were noted in the records as essentially normal, certain abnormalities did exist. These included mild bruising on both sides of Jillian's head as a consequence of forceps use, and the presence of a ptosis of the left upper eyelid and a small, reddish birth mark like change on the left upper lid. Moreover, the parents observed what they perceived to be rapid horizontal movement of Jillian's right eye, and that Jillian's right side appeared less

    reactive than her left side. The parent's observations were not apparently medically significant, since hospital staff, as well as her pediatrician (Dr. Lane France) noted no significant abnormalities at the time, and on April 2, 1990, following a two day stay in the nursery, Jillian was discharged to her parent's care.

    
    

    Jillian's subsequent development and medical care

    
    

15. On April 6, 1990, Jillian was seen by Dr. France. At the time, Dr. France suspected a strabismus of the left eye but otherwise was of the impression that Jillian was a well infant, without abnormality.

    
    

16. Mr. and Mrs. Joyce (the Joyces), concerned with the continued deviation of Jillian's left eye, sought an ophthalmologic consult on or about April 10, 1990. At the time, the physician noted some edema and erythema (redness of the skin) of the left upper lid, fontanels that were soft to palpitation, and the child blinked to light in both eyes. He apparently suspected exotropia (strabismus in which there is permanent deviation of the visual axis of one eye away from that of the other), that the child appeared otherwise morphologically sound, and recommended a re-evaluation in three to four months.

    
    

17. On April 13, 1990, Jillian came under the care of a new pediatrician, Dr. Kathy Lewis. Dr. Lewis noted that Jillian's left eye was deviated, and diagnosed a "congenital ptosis [with] amblyopia." Otherwise, Dr. Lewis found Jillian to be doing well, and without abnormality.

    
    

18. The Joyces sought a second ophthalmologic opinion from Dr. G.S. Guggino on April 23, 1990. External examination revealed a left upper lid ptosis and left exotropia. Further examination revealed, inter alia, the right pupil at 4 mm. and the left pupil at 3 mm., with both pupils fixed and not reactive to light. His impression was bilateral internal ophthalmoplegia (paralysis of the eye muscles) and external ophthaloplegia on the left. Dr. Guggino further observed the need to address or rule out an intracranial pathology including porencephalic cyst, tumor and CVA, as well as developmental abnormality, as a cause of Jillian's condition. An MRI brain scan was recommended.

    
    

19. On April 26, 1990, Jillian was examined by Dr. Richard Gunderman, a pediatric neurologist, on referral of Dr. Guggino. Examination revealed that:

    
    

    . . . cranial nerves revealed the left eye to be deviated outward. The patient had no movement of the left eye whatsoever past the

    midline. The pupil was slightly large, did not seem to react, and there was ptosis of the left lid. The right eye actually demon- strated an anisocoria, with the right pupil being somewhat larger than the left and there was, I believe pupillary reaction to light on

    the right. I could not tell whether there was consensual reaction. The patient had full range of motion of the right eye. The patient had rapid movement of the right eye with some nystagmus, which I believe could be normal for a child of this age. I could not get the child to fixate well, with either eye. The remainder of her cranial nerves appeared in- tact. The motor examination revealed normal motor tone and strength and the reflexes were

    symmetric. The cerebellar function appeared grossly intact. The patient had an active moro and a minimal tonic neck response.

    
    

    Dr. Gunderman's impression was ophthalmoplegia, possibly third nerve palsy on the left, with ptosis, fixed pupil and deviation of the eye laterally, and an anisocoria of the right eye. Again, an MRI brain scan was recommended.

    
    

20. An MRI brain scan was had on April 27, 1990, which detected enlargement of the third and lateral ventricles with rounded appearance of the frontal horns, compatible with hydrocephalus. 3/ Atrophy of the left cerebral peduncle and associated midbrain structures in this area were noted and considered secondary to dilation of the third ventricle, although the existence of a ventricular cyst causing the mass effect could not be completely ruled out. A flow void was identified within the cerebral aqueduct. The hydroplasia of the left portion of the midbrain appeared to involve the third cranial nerve nucleus and thereby account for Jillian's third nerve palsy. Marked thinning of the corpus callosum was noted. The fourth ventricle appeared normal, but the cerebellum was small and the posterior aspect of the posterior fossa was filled with cerebrospinal fluid. Most likely explanation was a large foramen magnum as opposed to posterior fossa cyst compatible with a Dandy-Walker variant. Impression was enlarged third and lateral ventricles compatible with hydrocephalus with what appeared to be a posterior fossa cyst, although a cyst in the third ventricle due to its asymmetric appearance and associated hydroplasis of the midbrain and cerebral peduncle could not be ruled out.

21. Dr. Guggino discussed the abnormal results of the MRI with the Joyces, and it was agreed that Jillian should be seen by a neuro-ophthalmologist. Dr. J. Lawton Smith of the Bascom Palmer Eye Institute, University of Miami School of Medicine, was selected.

    
    

22. Jillian was examined by Dr. Smith on or about May 4, 1990, and her MRI scan was reviewed with two neuroradiologists. Dr. Smith's initial observations were that:

    
    

    . . . we have a 5 week[] old baby girl, who was found to have a ptotic left upper lid at birth. This brought the child under medical scrutiny, and it is now the consensus of opinion that there is a congenital left III nerve paresis and an abnormal pupil on the right. Her development otherwise has been doing well; she moves all her extremities-- she has no seizures--her head is not part-

    icularly pathologically enlarged, she seems

    to be comfortable and developing well, otherwise.

    
    

    Dr. Smith was of the opinion that the enlargement of the third ventricle observed on the MRI scan would be adequate to account for the sluggish pupil on the right and the III nerve involvement on the left. As for her condition, Dr. Smith observed "[t]his is an unusual anomaly," and further MRI studies were recommended to study the flow in and out of the third ventricle. His impression was, as follows:

    
    

    Congenital left III nerve paresis, asso- ciated with an[] internal opthalmoplegia of the right eye, congenital, associated with an anomalous large fluid collection in the

    left posterior fossa, and an enlarged [third] ventricle, as a developmental anomaly. There does appear to be a hypoplasia of the cere- bellum as well.

    
    

23. On August 1, 1990, Jillian was seen by Dr. Raymond Fernandez, a pediatric neurologist, on the referral of Jillian's pediatrician. His examination revealed:

    
    

    . . . Neurologically, Jillian was alert and she smiled responsively. I agree that she probably fixes with her left eye more often than right and tends to tilt her head up and to the right in order to do this. The left pupil measured about 3 mm. and the right 4 mm.

    Neither reacted very well, if at all, to light. I thought the optic nerves were normal. There was ptosis of the left upper eyelid, with good lid elevation on the right. The left eye was out, slightly down, and did not adduct beyond mid-line. The right eye moved fully horizon- tally with occasional coarse nystagmoid jerks to either side. I could not elicit much ver- tical eye movement. Corneal reflexes brisk.

    No evidence of facial weakness. She alerted to various sounds. Lower cranial nerves normal. Muscle tone was either normal or very only slightly increased, and I was more concerned about this latter possibility in the right upper extremity only. The right hand seemed to be closed more than the left, although this was subtle. She moved all limbs well, without evidence of focal or lateralized weakness. She readily withdrew all extremities when gently stimulated . . .

    The Moro response consisted only of very minimal abduction of the arms. There was some persistence of palmar grasping bilater- ally and this appeared to be symmetric.

    Stepping and placing could be demonstrated.

    Dr. Fernandez's impression was:

    
    

    . . . a four month old girl with a left third nerve palsy, but with pupillary abnor- mality of the right eye as well and only the

    suggestion of a spastic monoparesis involving the right upper extremity. Etiology is un- clear, but she appears to have a pre-natally acquired cerebral and mid-brain abnormality characterized by a smaller left hemisphere and dilatation of the third ventricle versus a cyst in the third ventricle. I should mention that the right upper extremity find- ing is not clear-but and with passage of time might prove to be either insignificant or

    possibly part of a right hemiparesis. Clinic- ally, she seems to be doing well, without evidence of increased intra-cranial pressure and no evidence of progressive expansion of ventricles or possible cyst on serial MRIs.

    With regard to overall development, she is visually attentive and socially responsive.

24. Between May 4, 1990, when Jillian's initial MRI scan was reviewed by Dr. Smith and a number of neuroradiologists, Jillian had a second MRI scan. That scan, taken July 16, 1990, revealed:

    
    

    . . . Again noted is moderate ventricular enlargement unchanged from the previous exam- ination. There is a probable cyst within the posterior aspect of the third ventricle which is again unchanged from the previous study.

    There is a flow void noted within the cere- bral aqueduct suggesting a patency of this structure. There is a large fluid-containing space noted within the posterior fossa with no visible connection to the fourth ven- tricle. This most likely represents an enlarged cisterna magna. The left midbrain and left cerebral peduncle appears smaller than the comparable right side and this finding again is unchanged from the prior study. We are not certain whether this

    represents pressure effects from a cyst within the third ventricle or whether this is cong- enital in nature. This finding also remains unchanged when compared to the prior study. .

    The radiologist's impression was:

    
    

    1. Moderate ventriculomegaly not signifi- cantly changed when compared to the previous exam.

    2. Probable cyst within the posterior aspect of the third ventricle. A repeat MRI examination of the brain with Gadolinium in six months is recommended to exclude any change in this cystic lesion within the post- erior third ventricle.

    3. Prominent cisterna magna as described above.

    4. Immature myelinization pattern. This reversal of the gray/white matter signal intensity reflects immature myelinization and is commensurate with the patient's given age.

       
       

25. On September 20, 1990, Dr. Smith rendered a progress note wherein the review of Jillian's first MRI was compared with her second MRI. The features noted and emphasized on the review of these two MRI scans by Dr. Smith and Dr. Robert Quencer, a neuroradiologist, were as follows:

    
    

    1. the center of interest relates to the abnormally enlarged third ventricle. Dr. Quencer suspects there may be an ependymal cyst in the III ventricle. The midbrain is definitely asymmetric with the smaller side being on the patient's left.

    2. The ventricles are asymmetric. The left temporal lobe is smaller than right. There appears to be some hemiatrophy of the entire left cerebrum. The foramen Monroe is enlarged and appears patent on the left.

    3. Dr. Quencer thought the ventricles were slightly larger now than on the first study, done at one month of age.

    Dr. Quencer still advises that a cine-MR study be done on this child to watch flow through the third ventricle. The point was raised today as to whether an in-utero ependymal cyst of 3rd ventricle existed, which enlarged and then compressed and subsequently occluded a paramedian perforator into the left side of midbrain of the child. Dr. Naidich had previously raised the ques- tion of an in-utero occlusion of a paramedian perforator into midbrain, but the question today proposed was if the child has an

    ependymal cyst of III ventricle, then the softening may have been "egg" rather than "chicken".

    
    

    His impression was:

    
    

    Congenital left III nerve palsy

    * * *

    Enlarged third ventricle--rule out in-utero developmental ependymal cyst of III ventricle.

    Atrophy of left midbrain--rule out in-utero occlusion of a paramedian perforating artery.

    
    

26. A day later, on September 21, 1990, Jillian had a seizure-like episode lasting several seconds, and approximately one such episode each day for the ensuing three days. Consequently, Jillian was examined by Dr. Fernandez on September 26, 1990. That examination revealed:

    
    

    Her EEG was abnormal, showing frequent paroxysmal spike, multi-spike, and spike-wave discharges over the left hemisphere. These usually rose in generalized distribution over the left hemisphere, but on occasion were confined to the posterior quadrant. Less often, they arose further anteriorly. It is possible that she had at lest two independent foci, although this was not clear and I will review the record once again. Background over the left hemisphere was slow and not well- organized. In comparison, the right hemisp- here was normal.

    Dr. Fernandez's impression was:

    
    

    At least one definite seizure on September 21st and it is possible that she has had several subsequent subtle seizures occurring relatively infrequently. Based on Mrs.

    Joyce's observations, it is possible that Jillian is having myoclonic spasms, although this is not certain. Her EEG is abnormal over the left hemisphere in comparison to right which is completely normal. The left hemisphere is not hypsarrhythmic, but it is

    severely disorganized with frequent paroxysmal discharges which might be multi-focal, al- though I am not absolutely certain of this and I will get another opinion on the EEG.

    As an anti-convulsant treatment, Jillian was thereafter placed on ACTH, and her myoclonic seizures came under control by mid- October 1990.

    
    

27. Following an MRI in January 1991, which revealed a moderate enlargement of the ventricles since the prior MRI, Dr. Smith conducted a further neuro-ophthalmologic examination of Jillian on January 7, 1991. A general, brief neurological examination "show[ed] that she ha[d] hyperreflexia throughout, but it [was] more marked on the right than the left and she ha[d] definitely more increased tone on her right upper extremity than the left." Addressing Jillian's presentation and the cause of her condition, Dr. Smith again observed that:

    
    

    . . . The baby was first seen May 4, 1990 at 5 weeks of age. For details see the note at that time. The problem in essence was that the child had presented with a cong- enital left III nerve palsy which prompted

    neuroimaging which showed significant effects. This primarily consisted of a large cystic structure in the posterior fossa, a dilated third ventricle, congenital hemispheral asymmetry with the left hemisphere smaller than the right primarily in the temporal lobe, and some asymmetry of the frontal horns.

    These were reviewed by excellent neuroradio- logists and the opinions varied between this being a congenital anomaly or perhaps a consequence of an in-utero vascular occlusion [blockage] with a mid-brain infarction.

    Dr. Smith concluded:

    
    

    There are two pragmatic questions that need to be resolved in the child at this point.

    (1) Is the dilatation of the ventricles due

    to a progressive hydrocephalus, due to an out- flow impairment, or is the ventricular enlarge- ment secondary to brain atrophy ("hydrocephalus

    - ex-vacuo")? Dr. Naidich feels that the child should have a cine MR as has been re- commended by Dr. Quencer, and I think this is obviously the prudent way to go to see if there is any flow obstruction in the third ventricle. The third ventricle is either dilated from a lack of substance around it, or the possibility exists that there is some outflow impairment--as a very small cyst in the third ventricle itself. We will try to

    arrange for this cine MR. . . .

    
    

28. On January 8, 1991, a cine MRI of the brain was taken to determine whether there was an intraventricular cystic mass within the third ventricle or whether the third ventricle was enlarged simply because of ex-vacuo dilation. That MRI was inconclusive, but noted an:

    
    

    area within the superior aspect of the brain ventricle which fails to demonstrate normal CSF flow on the gated coronal cine study. This may represent an ependymal or intraventricular cyst. Alternatively, this

    may represent an area of stagnant flow or an area of loculation within the third ventricle which may or may not connect with the re- mainder of the ventricle system.

    
    

    A follow-up cine MRI on July 18, 1991, identified a cyst at the superior aspect of the third ventricle. The findings and impressions of that study was as follows:

    
    

    FINDINGS: Again noted is the cystic area

    at the superior aspect of the third ventricle which is grossly unchanged in size. The lateral ventricles remain enlarged. No focal intraparenchymal cerebral lesions are demon- strated. The cine images obtained in the sagittal plane demonstrate normal cerebral spinal fluid flow with patency of the aque- duct of Sylvius. No definite stream of CSF flow is demonstrated within the cystic area.

    IMPRESSION:

    Compared with January 1991, there are no significant changes. There remains a cyst

    at the superior aspect of the third ventricle as described above with dilatation of the lateral ventricles and normal CSF flow through the aqueduct of Sylvius.

    
    

29. Although a third ventricle cyst was observed, no progressive enlargement of the ventricular system was noted between the January and July 1991, MRIs, and Dr. Fernandez's examinations of January 1991 and August 1991, noted no signs of increased intracranial pressure. Consequently, the previous enlargement of the ventricular system was felt to be due to atrophy rather than obstructive hydrocephalus.

30. Jillian remained seizure free until November 9, 1991, when she was admitted to Tampa General Hospital because of a seizure that occurred in association with fever. A CT scan at the time did not show significant change in comparison to prior MRIs; however, her EEG showed left hemisphere slowing, but no epileptiform discharge. Jillian received anti-convulsant treatment during the acute seizure episode, promptly recovered, and remained under good control with ACTH injections until the fall of 1992 when she experienced three seizures from apparently mid-August to mid-October, each occurring about one month apart.

    
    

31. Following the last episode, Jillian was treated with Phenobarbital, and remained seizure free until October 1993. Brain CT did not show progressive change in ventricular size or other progressive anatomic change; however, her EEG showed a left central spike focus which was not present on prior recordings.

    
    

32. Thereafter, Jillian remained seizure free until the fall of 1994, when she experienced two seizures, one in mid- August and one in mid-October, with predominately right side involvement. Thereafter, in January 1995, Jillian began to exhibit sudden flexor spasms, and such have apparently continued, periodically, to date. Coincident with such spasms, Jillian's coordination deteriorated further. There was, however, no note of any progressive change in ventricular size or other progressive anatomic change.

    Jillian's current physical and mental condition

    
    

33. Over time, Jillian's condition, mentally and physically, has deteriorated, albeit with occasional periods of improvement. She presently cannot walk on her own, feed herself, or go to the bathroom unattended.

    
    

34. A neurological examination of Jillian on May 15, 1995, revealed that:

    
    

    . . . tongue movements were poorly coordi- nated and there was excessive drooling.

    Speech sounds were diminished and there was a lingual, labial and guttural dysarthria

    . . . Motor examination revealed evidence of bilateral compromise with much greater right- sided involvement. She demonstrated a right hemiparesis with arm greater than leg involve- ment and with the right arm held in a posture of internal rotation at the shoulder with flexation at the elbow and wrist. There was no individual finger dexterity of the right hand and the right thumb was fisted. Jillian

    grasped only with the left hand and did not transfer using the right only for gross palmar activities. The right hemidecorticate posturing becomes accentuated with gait. Jillian has a broad-based stance and shows evidence of bilateral gait and stability.

    
    

    In summary, neurologic examination revealed "evidence of substantial motor impairment with a right hemiparesis and milder

    . . . left motor problems as well." There was also noted "a complete left thalamoplegia and a significant communication disorder affecting both language and speech articulation."

    
    

35. Given the proof of record, it cannot be subject to serious debate that Jillian is currently permanently and substantially mentally and physically impaired. What remains to be resolved is the genesis of her neurologic impairment or, more pertinent to these proceedings, whether the proof supports the conclusion that such condition was caused by "oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period" in the hospital, as required by Section 766.302(2), Florida Statutes.

    The cause of Jillian's condition

    
    

36. At hearing, neither petitioners nor respondent elected to call or present testimony from any of Jillian's health care providers, including the physicians who provided obstetrical services at birth (Doctors Armstrong or Garcia), Jillian's pediatricians (Doctors France and Lewis), Jillian's pediatric neurologists (Doctors Gunderman and Fernandez), Jillian's neuro- ophthalmologist (Dr. Smith), any of the neuroradiologists who attended or were consulted regarding her condition or progress, or any of the other myriad of health care providers associated with her care, diagnosis and treatment. The parties did, however, introduce into evidence selected records dealing with Jillian's birth and subsequent evaluation and treatment and, presumably, those records adequately address the findings and opinions of those health care professionals. Such findings and opinions are addressed supra. Notably, among the observations and opinions of the physicians who evaluated and treated Jillian, there is not one suggestion that the events surrounding her delivery, whether through oxygen deprivation, mechanical injury or otherwise, resulted in, or contributed to, the onset of any of her present neurological deficits. Given the breadth of expertise employed to evaluate Jillian, the absence of such a hypothesis as to etiology is significant.

37. Apart from the observations and opinions of the health care providers who have examined and treated Jillian, which are

    reflected in the medical records, the parties offered the testimony of three physicians as an aid to resolving whether Jillian's neurologic condition resulted from "oxygen deprivation or mechanical injury occurring in the course of labor [or] delivery." The physicians selected by petitioners to address the issue were Doctors Robert Martinez and Joseph Witek. Respondent selected Doctor Michael Duchowny to address the issue. None of these physicians could be characterized as treating physicians.

    
    

38. Doctor Martinez is a board certified neurologist; however, he does not possess special competence in pediatric neurology, neonatology, pediatrics, or obstetrics, and was not shown to treat neonates. Doctor Witek is a board certified radiologist; however, he does not possess special competence in pediatric neuroradiology and does not review films of neonates. Compared with the experiences of these physicians, respondent's expert, Doctor Duchowny, was shown to possess special competence in the field of pediatric neurology (the subspecialty of medicine that is concerned with disorders affecting the central and peripheral nervous system of infants), as well as pediatrics, and routinely treats neonates in his association with Miami Children's Hospital, Miami, Florida.

    
    

39. In considering the observations and opinions of these physicians, scrutiny has been accorded to, inter alia, their training and experience, the opportunity they had through examination or review of medical records or otherwise to be knowledgeable concerning Jillian's presentation at birth and subsequent development, and the reasonableness of their conclusions based on Jillian's presentation, development, and the observations of her numerous treating physicians. So considered, Dr. Duchowny's opinion that Jillian's neurological impairments are, more likely than not, the consequence of a developmental anomaly of the brain occurring during gestation (a congenital anomaly), as opposed to oxygen deprivation or a stroke suffered during the course of birth, is persuasive, and the opinions of Doctors Martinez and Witek, which seek to ascribe the cause of her impairments to a stroke suffered during the course of birth, are rejected as unpersuasive.

    
    

40. In reaching the foregoing conclusion, it is worthy of note that Jillian's presentation at birth is not consistent with an acute insult, either oxygen deprivation, stroke or otherwise. In this regard it is noted that Jillian's condition, which may be characterized as a smaller left hemisphere of the brain and dilation of the third ventricle, is not consistent with hypoxic insult, which would manifest as a more global insult to the brain. Moreover, while her condition is not inconsistent with a stroke, her presentation at birth is inconsistent with an acute insult at that time. In this regard it is noted that Jillian

    breathed spontaneously, her heart rate, respiratory effort, muscle tone and reflex irritability were normal, and she did not thereafter evidence jitteriness, a high pitched cry or feeding problems. Finally, at birth, Jillian evidenced a congenital left III nerve paresis and curvature of the toes, all evidence of congenital malformation. 4/

    
    

41. It is further worthy of note that Dr. Duchowny's opinions are grossly consistent with the observations and opinions of the consultants and treating physicians who were called upon to attend Jillian's subsequent development. In this regard, the records reflect that Jillian's first MRI of April 27, 1990, reflected the smaller left hemisphere and a moderate third ventricle enlargement, but her second MRI, on July 16, 1990, noted that the ventricular enlargement was unchanged or not significantly changed. 5/ The enlargement evident in the MRIs is, in the opinion of Dr. Duchowny, consistent with a progressive manifestation of a developmental anomaly. Finally, the marked thinning of Jillian's corpus callosum and decreased myelinization of her left cerebral hemisphere are consistent with a developmental anomaly of the brain.

    
    

42. Contrasted with the opinions of Dr. Duchowny, the opinions of Doctors Martinez and Witek do not enjoy a consistency with the opinions and observations of Jillian's consulting and treating physicians, their training and experience fails to evidence a firm foundation upon which to predicate opinions related to fetal or neonatal development or injuries, and their opinions otherwise suffer a lack of persuasiveness. For example, it was the opinion of Dr. Witek that an insult to Jillian's brain occurred at or after birth because of the progressive changes in the MRI scans, and that the ventricles would not have continued to expand if she had suffered a developmental problem or stroke in utero. [Transcript, pages 94, 95, and 98]. Apart from such precision in timing being suspect, Dr. Witek's opinion that Jillian's ventricle would not continue to expand subsequent to birth, whether consequent to developmental anomaly or in utero stroke, is contrary to the more well informed and credible evidence in this case. As for Dr. Martinez, he appears to rule out a developmental anomaly as the cause of Jillian's impairment because the abnormal formation of Jillian's brain is asymmetric, as opposed to symmetrical. [Transcript, pages 36, 37, and 50]. Again, such opinion is contrary to the more well informed and credible evidence of record.

43. Given the proof, and the opinions of those most qualified to address the matter, it is found that the cause of Jillian's neurologic impairments is a congenital or developmental abnormality of her brain, acquired prenatally, and unrelated to any event during labor or delivery.

    CONCLUSIONS OF LAW

    
    

44. 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.

    
    

45. 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.

    
    

46. 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.

    
    

47. 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.

    
    

48. 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 neuro- logical injury as defined in s. 766.303(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. 6/ 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.

    
    

49. 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.

    
    

50. Here, the proof demonstrated that the attending physician who provided obstetric services during the birth of Jillian 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 Jillian 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 demonstrated, more likely than not, that the cause of Jillian's neurologic impairment was a congenital abnormality of the brain, as opposed to an injury to the brain caused by oxygen deprivation or mechanical injury occurring in the course of labor or delivery. Accordingly, the subject claim is not compensable under the Plan. Sections 766.302(2), 766.309(1), and 766.31(1), Florida Statutes.

51. 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 Robert Joyce and Lillian Reyes Joyce, as parents and natural guardians of Jillian Joyce, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 31st day of May 1996 in Tallahassee, Leon County, Florida.

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 31st day of May 1996.

ENDNOTES

1/ Petitioners' exhibits 1 through 11 are the medical records that were filed with the petition on March 29, 1995, and tabbed 1 through 11, consistent with the exhibit number they have been assigned. Petitioners' exhibit 12 consists of the medical records filed with DOAH on March 30, 1995. These exhibits (Exhibits 1 through 12) have further been assigned page numbers so the record is clear as to what documents were filed and in what sequence. As marked, each exhibit carries its exhibit identifier number followed by the page number, i.e., exhibit 1-1, 1-2, 1-3, etc. So noted petitioners' exhibits 1 through 12, are described as follows: exhibit 1, 15 pages, including cover sheet; exhibit 2, one page, with no cover sheet; exhibit 3, 16

pages, including cover sheet; exhibit 4, 3 pages, including cover sheet; exhibit 5, 43 pages, including cover sheet; exhibit 6, 6 pages, including cover sheet; exhibit 7, 6 pages, including cover sheet; exhibit 8, 3 pages, including cover sheet; exhibit 9, 12 pages, including cover sheet; exhibit 10, 58 pages, including cover sheet; exhibit 11, 11 pages, including cover sheet; and exhibit 12, 54 pages, with no cover sheet. The parties were accorded the opportunity to supplement the record with any further medical documentation, but declined. [Transcript, page 7.]

At hearing, petitioners were accorded leave to file, post- hearing, a photograph of Jillian, subject to respondent's opportunity to examine the photograph and raise any objection thereto. Such photograph was to have been marked petitioners' exhibit 14 when filed with DOAH; however, petitioners apparently elected to forego such opportunity since no photograph has been filed with DOAH. Consequently, there is no petitioners' exhibit 14.

2/ The only complication noted was the fact that Mrs. Joyce was on Cloined for three months and had one shot of HCG and then was on Progesterone for the first ten weeks of the pregnancy. The administration of such substances was apparently associated with Mrs. Joyce experiencing difficulty in conception; however, there is no proof or suggestion of record that such procedures had any bearing on Jillian's development.

3/ "Hydrocephalus" is "a condition marked by dilation of the cerebral ventricles, most often occurring secondary to obstruction of the cerebrospinal fluid pathways . . ., and accompanied by an accumulation of cerebrospinal fluid within the skull; the fluid is usually under increased pressure, but occasionally may be normal or nearly so. It is typically characterized by enlargement of the head, prominence of the forehead, brain atrophy, mental deterioration, and convulsions, and may be congenital or acquired, and be of sudden onset." Dorland's Illustrated Medical Dictionary, Twenty-sixth Edition.

4/ There is a dispute among the physicians who have observed Jillian as to whether or not she also has epicanthal folds, further evidence of congenital malformation. It is unnecessary to resolve that dispute in light of the positive dysmorphic or congenital malformations that are notably present.

5/ Jillian's next MRI in January 1991, did reveal moderate enlargement of the ventricles since the last study. At that time, the concern was whether enlargement was due to an outflow impairment, which might require surgical intervention, or whether the enlargement was due to atrophy, which would not be clinically significant at the time. Follow-up studies showed the

enlargement to be due to atrophy, and surgical intervention was not required. Subsequent MRIs showed no significant changes in ventricle size.

6/ Where, as here, NICA disputes the claim, the burden rests on the claimant 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 and 2. Addressed in paragraph 1.

1. Addressed in paragraph 2.

2. Addressed in paragraphs 4, 5, 6, 11 and 12.

5 and 6. Addressed in paragraphs 7 through 11.

7 through 9. Addressed in paragraphs 12 through 14.

1. Addressed in paragraph 15. Note, the date was not "ten days after her birth" but April 6, 1990, as reflected by petitioners' exhibit 6.

2. Addressed in paragraphs 20, 24, 25, 27, 28, 29, 31 and

32.

12 and 13. Addressed in paragraphs 15 through 32, otherwise

rejected as argument.

14. First part of sentence which states "Jillian's physical injuries and her mental and physical condition are not consistent with any know syndrome or developmental disease" is rejected as not supported by competent proof and contrary to the conclusion reached. Second part of sentence accepted.

15 through 25. Addressed in paragraphs 26, 30 through 35, otherwise rejected as recitation of testimony or subordinate.

26. Addressed in paragraphs 35 and 37.

27 through 31. Accepted that Dr. Duchowny so testified; however, such testimony is subordinate to the findings made. See paragraphs 34, 38 through 41 and 43.

1. Accepted; however, see paragraph 38.

2. Accepted; however, Dr. Martinez made no record of his examination and did not then or thereafter treat Jillian.

34 and 35. Accepted that such was Dr. Martinez's testimony; however, his testimony is subordinate and his opinions have been rejected.

36. Accepted that such was Dr. Martinez's testimony; however his testimony is subordinate and his opinions have been rejected. It is further noted that "the benefit of having seen

her develop over a five year period" was occasioned by several social meetings, and that he did not examine or treat Jillian.

37 through 41. Accepted that such was Dr. Martinez's testimony; however, his testimony is subordinate and his opinions have been rejected.

42 through 46. Accepted that such was Dr. Witek's testimony; however, his testimony is subordinate and his opinions have been rejected.

47 and 48. Rejected as argument and not a factual finding.

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

1 and 2. Addressed in paragraph 1.

3. Addressed in paragraph 2.

4 through 6. Addressed in paragraphs 11 through 14.

1. Addressed in paragraphs 16 and 18.

2. Unnecessary detail.

3. Addressed in paragraph 19.

4. Addressed in paragraph 22.

5. Addressed in paragraphs 20, 22 and 27.

6. Addressed in paragraphs 26, 30 through 32, otherwise contrary to the proof.

13 and 14. Addressed in paragraphs 34, 36 through 43.

1. Addressed in paragraph 36.

2. Addressed in paragraphs 36 through 43.

COPIES FURNISHED:

Alan F. Wagner, Esquire Bill Wagner, Esquire

Wagner, Vaughan & McLaughlin, P.A. 601 Bayshore Boulevard, Suite 910

Tampa, Florida 33606

W. Douglas Moody, Jr., Esquire Bateman Graham, P.A.

300 East Park Avenue Tallahassee, Florida 32301

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 14567 Tallahassee, Florida 32317-4567

Rufus S. Armstrong, M.D. 2123 West Buffalo Avenue Tampa, Florida 33607

St. Joseph's Hospital Legal Department

3001 West Buffalo Avenue Tampa, Florida 33677

Ms. Tanya Williams

Agency for Health Care Administration Division of Health Quality Assurance Hospital Section

2727 Mahan Drive

Tallahassee, Florida 32308

Ms. Charlene Willoughby Department of Business and

Professional Regulation Consumer Services

1940 North Monroe Street Tallahassee, Florida 32399-0784

Dan Sumner, General Counsel Department of Insurance

The Capitol, Plaza Level 11 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.

Docket for Case No: 95-001493N

Orders for Case No: 95-001493N