STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN BYRNE, JR., as parent and ) natural guardian of CODY BYRNE, ) a deceased minor, )

)

Petitioner, )

)

vs. ) Case No. 96-5866N

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

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on

May 13, 1997, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Mr. John Byrne, Jr., pro se

Route 14, Box 305-B

Lake City, Florida 32024

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

Graham & Moody, P.A.

101 North Gadsden Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

On December 16, 1996, John Byrne, Jr., as parent and natural guardian of Cody Byrne, a deceased minor, filed a petition (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

December 16, 1996.

NICA reviewed the claim, and on February 5, 1997, 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 administrative law judge "enter an order setting a hearing in this cause on the issue of the compensability of this claim." Such a hearing was held on May 13, 1997.

At hearing, Petitioner presented the testimony of John Byrne, Jr., and Petitioner's Exhibit 1 (the medical records filed with DOAH on December 16, 1996) was received into evidence.

Apart from Respondent's Exhibit 1 (the deposition of Charles Kalstone, M.D.), which was received into evidence, Respondent offered no further proof.

The transcript of the hearing was filed on May 28, 1997, and the parties were accorded ten days from that date to file

proposed final orders. That period was subsequently extended, with Petitioner's last submittal being filed July 14, 1997. The parties' proposals have been duly considered.

FINDINGS OF FACT

Fundamental findings

1. John Byrne, Jr. and Theresa Byrne are the parents and natural guardians of Cody Byrne (Cody), a deceased minor. Cody was born a live infant on June 4, 1995, at Orange Park Medical Center, a hospital located in Orange Park, Florida, and his birth weight was in excess of 2500 grams.

2. The physician providing obstetrical services during the birth of Cody was Meng-Shu Lin, 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.

   Mrs. Byrne's antepartum course and Cody's delivery

   
   

3. Mrs. Byrne's prenatal course was essentially uncomplicated; however, as of June 2, 1995, she was slightly

   post-term, with an estimated date of confinement of May 31, 1995. Consequently, on June 2, 1995, her obstetrician, Dr. Robert Bazley, admitted her to Orange Park Medical Center for a non- stress test to assess the well-being of the fetus.

4. Mrs. Byrne was admitted at 7:20 a.m. At the time, the fetal heart rate base line was noted at 125 to 135 beats per minute. Vaginal examination revealed the cervix to be at

   2 centimeters, the same as disclosed on her last office visit of May 31, 1995; however, effacement and station were not noted on the record. The membranes were intact, and mild, occasional contractions were noted. The non-stress test was reactive, consistent with fetal well-being, with good fetal heart rate accelerations noted with fetal movement.

5. Following the non-stress test, Mrs. Byrne was discharged to return home, with instructions to notify her physician if there was "any change in fetal movements that seem out of the ordinary," "leaking or rupture of membranes," "regular contractions," "any progressive discomfort," or "bright red bleeding." At the time, induction of labor was planned for June 6, 1995, absent intervening changes.

6. At or about 7:30 p.m., June 3, 1995, Mrs. Byrne began to experience unusual or rhythmic fetal activity, initially thought to be hiccups. However, the activity persisted, and at about 9:00 p.m. she and her husband presented to Orange Park Medical Center, where she was admitted at 9:30 p.m. for observation/evaluation of fetal status.

7. Assessment on admission revealed a fetal heart rate baseline of 150 beats per minute. Vaginal examination revealed the cervix to be at 2 centimeters, effacement at 50 percent, and the fetus at station -3. The membranes were intact, and mild, occasional contractions were noted. 1/

8. Initially, difficulty was experienced in acquiring and tracking fetal heart rate by fetal monitor; however, audible monitoring revealed a fetal heart rate of 150 to 160 beats per minute which was non-reactive. Several spontaneous contractions were noted, with questionable variable decelerations, and at or about 10:10 p.m. a biophysical profile was ordered.

9. Vaginal examination at 10:31 p.m. revealed no change in dilation, effacement or station. Continued fetal monitoring revealed a non-reactive fetal heart rate of 150 to 160 beats per minute. The biophysical profile was completed and reported to Dr. Lin at 12:16 a.m., June 4, 1995. The test was abnormal, reflecting unusual fetal breathing movements ("repetitive jerky movements of the diaphragm" at a rate of 30 per minute during the exam), no gross body movement, and no tone.

10. Vaginal examination at 12:43 a.m. again revealed no change in dilation, effacement, or station. The membranes were artificially ruptured, revealing dark, thick meconium stained fluid. Digital fetal scalp stimulation produced no acceleration, and fetal heart tone persisted at about 160 beats per minute.

11. Pitocin was started at 12:57 a.m. and, thereafter, variable decelerations were noted, with mild contractions. Pitocin was discontinued, and at 1:03 a.m. an emergency primary cesarean section was called for by Dr. Lin.

12. At 1:28 a.m. Mrs. Byrne was moved to the operating room, and at 1:46 a.m. Cody was delivered by cesarean section.

    During delivery, the umbilical cord was observed to be "very twisted like [a] cork screw" or "very tightly coiled," and wrapped tight around the infant's neck. Upon delivery, Cody was limp, with minimum respiratory effort. Meconium stained fluid was suctioned from below the cords and, following positive pressure ventilation for approximately 30 seconds, Cody began to gasp. Continuous tremor of the lower jaw was noted. A sustained grunting, shallow respiration was achieved by 2 minutes of age.

    Cody remained pink with good heart rate on blow-by oxygen. Apgars were 4, 6, and 6 at one, five, and ten minutes, respectively. 2/

13. At approximately 2:00 a.m., Cody was transported to the special care nursery and placed in a 100 percent oxygen hood. Arterial blood gas on 100 percent oxihood showed a pH of 7.35 and base excess of -5.4. Umbilical cord pH, at delivery, was 7.22 and base excess -6.6. Cody was noted to be very lethargic, with decreased responsiveness, and Narcan was given without change in status. At approximately 1 1/2 hours of age he was again noted to have continuous tremors of the upper extremities and lower jaw. Phenobarbital was administered. Cody began desaturating, with shallow respirations, and was placed on mechanical ventilation. Further seizure activity was noted, and Phenobarbital was again administered. Finally, at or about 6:00 a.m., Cody was transferred to the neonatal intensive care unit at University Medical Center.

14. Cody's course at University Medical Center is aptly summarized in his discharge resume, as follows:

    Central Nervous System: . . . the infant had seizure activity noted at Orange Park Medical Center and received Phenobarbital prior to transfer to University Medical Center. Once at University Medical Center, the infant had an extensive neurological and metabolic workup performed. Pediatric neurology was involved. The Phenobarbital level was monitored and the Phenobarbital doses were adjusted per neurology. . . . The infant was unresponsive on admission and remained so. No improvement was noted in his neurological status during his hospitalization. The initial electroencephalogram was grossly abnormal.

    Seizure activity was controlled with

    Phenobarbital. However on July 21, 1995 the infant was noted to have multiple episodes of rhythmic movements primarily of the upper extremities. Dr. Shanks was involved and an electroencephalogram done during the above rhythmic motion showed movement artifact and no electrographic evidence of seizures. CT scan on June 6, 1995 showed diffuse increased densities throughout. Repeat CT scan on June 13, 1995 showed diffuse low attenuation throughout the brain with preserved densities in the basal ganglia and posterior fossa.

    There was hyperintensity of the cortex of several areas, possibly hemorrhagic. No mass effect or midline shift was seen. These findings were consistent with anoxic encephalopathy. . . . At the time of discharge the infant is still followed by the neurology department. He was seen by Dr.

    Shanks on August 1, 1995. His impression at that time was encephalopathy with cerebral palsy/spastic quadriplegia. The infant is on Phenobarbital and the last level obtained was

    24.6 on July 31, 1995 at which time the dose was increased. At the time of discharge the infant has no suck or swallow reflex. The infant has hypertonicity in all extremities and the spine. He has splints on the wrists and forearms bilaterally. He has intermittent rhythmic "jerking" motions

    primarily of the upper extremities. The plan is to discharge the infant home with his parents to be followed by Dr. Shanks at Nemours neurology clinic. He will have early intervention program in Gainesville with Sharon Henessey on September 7, 1995 at 10:30. He will be discharged to home on Phenobarbital 38 mg b.i.d. via jejunostomy tube. . . .

15. Cody was discharged from University Medical Center to the care of his parents on August 2, 1995, and expired on November 12, 1995. Cause of death was noted as respiratory failure due to severe ischemic encephalopathy.

    Cody's neurologic injury and its timing

    
    

16. Here, the competent proof is compelling, and not subject to serious debate, that Cody suffered an injury to his brain caused by oxygen deprivation that rendered him permanently and substantially mentally and physically impaired, and led inevitably to his death. Indeed, Respondent's own expert, Charles Kalstone, M.D., upon review of the medical records, was of the opinion that Cody suffered a hypoxic insult, most likely associated with umbilical cord compression, that resulted in severe brain damage. What is disputed, and must be resolved, is the timing of Cody's injury or, stated otherwise, whether such injury "occurr[ed] in the course of labor, delivery, or resuscitation in the immediate post-delivery period." Section 766.302(2), Florida Statutes.

17. In addressing the timing of Cody's injury, it is worthy of note that where, as here, the proof demonstrates that the

    infant suffered an injury to the brain caused by oxygen deprivation which rendered him permanently and substantially mentally and physically impaired, the Petitioner/Claimant is entitled to the benefit of a rebuttable presumption that the injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital. Section 766.309(1)(a), Florida Statutes. 3/ Consequently, absent persuasive proof that, as contended by Respondent, Cody's injury predated Mrs. Byrne's admission to the hospital and without the onset of labor, it must be concluded that he suffered a "birth-related neurological injury" as defined by law, and that the subject claim is compensable. Sections 766.302(2) and 766.309(1)(a), Florida Statutes.

18. Addressing first the timing of Cody's injury, it must be concluded that, more likely than not, his injury occurred after the positive non-stress test of June 2, 1995, and prior to Mrs. Bryne's admission to Orange Park Medical Center the evening of June 3, 1995, and that upon admission he was already severely compromised. In so concluding, it is observed that fetal heart monitoring from the time of admission to the hospital reflected fetal tachycardia at approximately 160 beats per minute without reactivity, and that the fetal heart rate remained essentially unchanged through the course of monitoring until variable decelerations were observed following the administration of Pitocin. The stark contrast between the tracing of June 2, 1995,

    and the tracing of June 3, 1995, is strong evidence that during the intervening period the fetus had suffered a substantial insult, resulting in neurologic damage as evidenced by the altered, tachycardic heart rate. Moreover, the umbilical cord pH, at delivery, was noted as 7.22 and the base excess as -6.6. These are normal values, and do not reflect metabolic acidosis, which would be expected had the fetus suffered an acute hypoxic insult around the time of birth. Finally, it is noted that Cody exhibited evidence of seizure activity at least as early as 1 1/2 hours of life. Such activity is inconsistent with hypoxic injury at birth and dates the injury as prior to Mrs. Byrne's admission.

19. Turning now to the issue of labor, it is, as heretofore noted, Respondent's contention that at the time of Cody's injury Mrs. Byrne was not in labor. Respondent's position is premised on the observation that no change in Mrs. Byrne's cervical dilatation occurred between June 2, 1995, when occasional contractions were observed, and her presentation to Orange Park Medical Center on June 3, 1995, when occasional contractions were also observed. Based on such facts, Respondent's expert, Dr. Kalstone, defining labor as "contractions that become painful, more regular, more frequent, and lead to a progressive change in dilatation and effacement of the uterine cervix," concluded

    Mrs. Byrne was not in labor when Cody's injury occurred. (Respondent's Exhibit 1, at pages 14 and 15)

20. In response, Petitioner suggests that Dr. Kalstone has overlooked the fact that labor is generally accepted to be divided into stages, and that with dilatation and effacement present Mrs. Byrne was, by definition, in stage one labor. 4/ Conversely, were the contractions she suffered false labor, no dilatation would be present. Essentially, all the proof shows, according to Petitioner, is that Mrs. Byrne's labor failed to progress, and not that she was without labor. (Petitioner's letter dated May 19, 1997, filed May 22, 1997.) Moreover, according to Petitioner, Mrs. Byrne's obstetrician noted her to be in "spontaneous labor" on admission to the hospital. 5/ There is merit to Petitioner's response.

21. The Legislature has not chosen to define "labor," as that word is used in the phrase "in the course of labor, delivery, or resuscitation in the immediate post-delivery period." When words used in a statute are not defined, "they must be construed according to their plain and ordinary meaning, or according to the meaning assigned to the terms by the class of persons within the purview of the statute." Florida East Coast Industries, Inc. v. Department of Community Affairs, 677 So. 2d 357, 362 (Fla. 1st DCA 1996). See, Southeastern Fisheries Association, Inc. v. Department of Natural Resources, 453 So. 2d 1351 (Fla. 1984). If necessary, the plain, ordinary meaning of a word can be found by looking in a dictionary. Gardner v.

    Johnson, 451 So. 2d 477 (Fla. 1984), and Hernando County v. Florida Public Service Commission, 685 So. 2d 48 (Fla. 1st DCA 1996).

22. Pertinent to this case, Webster's New Twentieth Century Dictionary, Unabridged, Second Edition, describes the meaning of "labor" as follows:

    . . . in medicine, the process of childbirth; parturition; especially, the muscular contractions of giving birth.

    
    

    To like effect, but more pertinent to the usage of the word in medicine, is the meaning ascribed to "labor" by Dorland's Illustrated Medical Dictionary, Twenty-eighth Edition, as follows:

    . . . the function of the female organism by which the product of conception is expelled from the uterus through the vagina to the outside world. Labor may be divided into four stages: The first (the stage of cervical dilatation) begins with the onset of regular uterine contractions and ends when the os is completely dilated. The second stage (stage of expulsion) extends from the end of the first stage until the expulsion of the infant is completed. The third stage (placental stage) extends from the expulsion of the child until the placenta and membranes are expelled. The fourth stage denotes the hour or two after delivery, when uterine tone is established. Called also childbirth, delivery, and parturition. See also labor pains, under pain.

    Dorland's further describes the meaning of false labor pains and labor pains as follows:

    false p's, ineffective pains which resemble labor pains, but which are not accompanied by effacement and dilatation of the cervix.

    * * *

    
    

    labor p's, the rhythmic pains of increasing severity and frequency, caused by contractions of the uterus during childbirth.

    
    

    Accord, Taber's Cyclopedic Medical Dictionary (1997), and Mosby's Medical Dictionary, Fourth Edition (1994). 6/

23. Given the commonly understood meaning of the term "labor," and the absence of any further explanation from Respondent, it must be concluded that, at best, Respondent's proof merely demonstrates that Mrs. Byrne's labor failed to progress, not the absence of labor. Consequently, Respondent has failed to rebut the presumption, as well as the credible proof, that at the time of Cody's neurologic insult Mrs. Byrne was in labor.

    CONCLUSIONS OF LAW

    
    

24. 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.

25. 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.

26. 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.

27. 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 administrative law judge 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 administrative law judge in accordance with the provisions of Chapter 120, Florida Statutes. Sections 766.304, 766.307, 766.309, and 766.31, Florida Statutes.

28. In discharging this responsibility, the administrative law judge 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 administrative law judge, 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. 766.303(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. An award may be sustained only if the administrative law judge 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.

29. 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.

30. As the claimant, the burden rests on Petitioner 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.")

31. Here, the proof demonstrated that the attending physician who provided obstetric services during the birth of Cody 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. Moreover, the record developed in this case demonstrates that Cody did 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 demonstrated that Cody suffered an injury to the brain caused by oxygen deprivation during the course of labor, delivery or resuscitation in the immediate post- delivery period that rendered him permanently and substantially mentally and physically impaired. Accordingly, the subject claim is compensable under the Plan. Sections 766.302(2), 766.309(1), and 766.31(1), Florida Statutes, and University of Miami v. Klein, 603 So. 2d 651 (Fla. 3d DCA 1992).

32. Where, as here, the administrative law judge determines that "the infant has sustained a birth-related neurological

injury and that obstetrical services were delivered by a participating physician at the birth," the administrative law judge is required to make a determination as to "how much compensation, if any, is awardable pursuant to s. 766.31." Section 766.309(1)(c), Florida Statutes. In this case, the issues of compensability and the amount of compensation to be awarded were bifurcated. Accordingly, absent agreement by the parties, and subject to the approval of the administrative law judge, a further hearing will be necessary to resolve any existent disputes regarding "actual expenses," the amount and manner of payment of "an award to the parents or natural guardians," and the "reasonable expenses incurred in connection with the filing of the claim." Section 766.311(1), Florida Statutes.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED, that:

1. The petition for compensation filed by John Byrne, Jr., as parent and natural guardian of Cody Byrne, a deceased minor, be and the same is hereby granted.

2. NICA shall make immediate payment of all actual expenses previously incurred, as defined by Section 766.31(1)(a), Florida Statutes. 7/

3. Jurisdiction is hereby reserved to enforce this award and to resolve any disputes that may arise concerning the compensability of any previously incurred "actual expenses," and to establish the amount and manner of payment of "an award" to the parents, and the "reasonable expenses incurred in connection with the filing of the claim."

4. The parties are accorded thirty (30) days from the date of this order to resolve, subject to the approval of the administrative law judge, any dispute they may have regarding the compensability of any previously incurred "actual expenses," the amount and manner of payment of "an award" to the parent, and the "reasonable expenses incurred in connection with the filing of the claim." If not resolved within such period, the parties will advise the administrative law judge, and a hearing will be scheduled to resolve such issues.

DONE AND ORDERED this 7th day of August, 1997, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1997.

ENDNOTES

1/ There is some disagreement as to whether Mrs. Byrne was experiencing contractions on admission. According to the "Obstetrical Assessment Record," there were no contractions noted on admission. However, according to the "Labor and Delivery Antepartum Testing/Observation Assessment," obviously prepared after the non-stress test hereafter discussed, mild, occasional contractions were noted. The discharge summary likewise reflects "mild to moderate, irregular contractions palpated" on admission, which is consistent with Mr. Byrne's testimony that when taken to the hospital his wife's contractions had not changed from those experienced the previous day (June 2, 1995) at the non-stress test. Given the proof, the most likely conclusion is that on admission Mrs. Byrne was experiencing mild, occasional contractions, but not frequent contractions.

2/ The Apgar scores assigned Cody are a numerical expression of the condition of a newborn infant, and reflect the sum total of 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 Cody's Apgar score totaled 4, with heart rate being graded at 2, respiratory effort and reflex irritability being graded at 1 each, and muscle tone and color being graded at 0. At five and ten minutes, Cody's Apgar score was six, with heart rate and color being graded at

2 each, respiratory effort and reflex irritability being graded at

1 each, and muscle tone being graded at 0.

3/ See, Berwick v. Prudential Property and Casualty Insurance Co., 436 So 2d 239, 240 (Fla. 3d DCA 1983), wherein it was observed.

Unless otherwise provided by statute, a presumption established primarily to facilitate the determination of an action, as here, rather than to implement public policy is a rebuttable "presumption affecting the burden of producing evidence," see Section 90.303, Fla. Stat. (1981), a "bursting bubble" presumption, see C. Ehrhardt, supra, at Sections 302.1, 303.1. Such a presumption requires the trier of fact to assume the existence of the presumed fact unless credible evidence sufficient to sustain a finding of the non-existence of the presumed fact is introduced, in which event the bubble bursts and the existence of the fact is determined without regard to the presumption. See Section 90.302(1), Fla. Stat. (1981);

C. Ehrhardt, supra, at Section 302.1; see generally Ladd, Presumptions in Civil Actions, 1977 Ariz.St.L.J. 275 (1977)

4/ See, Petitioner's letter of May 19, 1997, filed May 22, 1997. The references noted in Petitioner's letter (The A to Z of Pregnancy and Childbirth, and The American Medical Association Family Medical Guide) were not supplied and were not available to the Administrative Law Judge. However, Dorland's Illustrated Medical Dictionary, Twenty-eighth Edition; Taber's Cyclopedic Medical Dictionary (1997); and Mosby's Medical Dictionary, Fourth Edition (1994), were available and are hereinafter discussed.

5/ The medical dictionaries referenced in the preceding endnote also serve to supplement or explain Dr. Lin's conclusion that Mrs. Byrne was in labor on admission.

6/ Taber's describes "labor" as "the physiological process by which the fetus is expelled from the uterus into the vagina and then outside the body," and the first stage of labor as the period from the "onset of regular uterine contractions to full dilation and effacement of the cervix."

Taber's also notes numerous aspects of labor, including "active labor," false labor," and "arrested labor." "Active labor" is noted as "[r]egular uterine contractions with increasing dilatation of the cervix and descent of the presenting part." "False labor" is noted as "[u]terine contractions occurring before the onset of actual labor. These contractions eventually subside." According to Taber's, "[t]he conclusive distinction [between actual labor and false labor] is made by determining the effect of the pains on the cervix. False labor pains do not cause effacement and dilatation of the cervix as do true labor pains." "Arrested labor" is noted as a "[f]ailure of labor to proceed through the normal stages. This may be due to uterine inertia, obstruction of the pelvis, or systemic disease."

Mosby's Medical Dictionary, Fourth Edition (1994), describes "labor" as "the time and the processes that occur during parturition from the beginning of cervical dilatation to the delivery of the placenta."

7/ Pursuant to Section 766.31(2), Florida Statutes, Petitioner would ordinarily be entitled to an award of "future expenses

. . . as incurred." However, since Cody is deceased, there is no predicate, or need, for such an award.

COPIES FURNISHED:

(By certified mail)

Mr. John Byrne, Jr. Route 14, Box 305-B

Lake City, Florida 32024

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

101 North Gadsden Street Tallahassee, Florida 32301

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 14567 Tallahassee, Florida 32317-4566

Meng-Shu Lin, M.D. 1605 Kingsley Avenue

Orange Park, Florida 32073

Orange Park Medical Center Legal Department

2001 Kingsley Avenue

Orange Park, Florida 32073

Ms. Charlene Willoughby

Agency for Health Care Administration Consumer Services Unit

Post Office Box 14000 Tallahassee, Florida 32308

Dan Sumner, General Counsel Department of Insurance

The Capitol, Lower Level 26 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: 96-005866N

Orders for Case No: 96-005866N