STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CATHERINE LAPOINT, as parent and ) natural guardian of JACQUELINE ) LAPOINT, a minor, )

)

Petitioner, )

)

vs. ) Case No. 97-1460N

) 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 October 21 and 22, 1998, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Dan H. Honeywell, Esquire

Wooten, Honeywell and Kest, P.A. Post Office Box 568188

Orlando, Florida 32856-8188

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

Graham & Moody, P.A.

101 North Gadsden Street Tallahassee, Florida 32301

For Holy Cross Christine Perez, Esquire Hospital: Billing, Cochran, Heath, Lyles

& Mauro, P.A.

888 Southeast 3rd Avenue, Suite 301 Fort Lauderdale, Florida 33316

For Marsh McEachrane, Renee Braeunig, Esquire M.D.: McGrane & Nosich, P.A.

2801 Ponce de Leon Boulevard, 12th Floor

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

On March 26, 1997, Catherine LaPoint, as parent and natural guardian of Jacqueline LaPoint, a 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 March 26, 1997. NICA reviewed the claim, and on July 25, 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 "an order [be entered] setting a hearing in this cause on the issue of the compensability of this claim." Following a number of continuances, such a hearing was ultimately held on October 21 and 22, 1998.

At hearing, the parties stipulated to the factual matters set forth in paragraphs 1 and 2 of the Findings of Fact.

Petitioner testified on her own behalf and called Marsh McEachrane; M.D., Michael Tidwell, M.D.; Lawrence Brown; Lalit Shah, M.D.; Janet Rivera, R.N.; and Jaime Baquero, M.D., as

witnesses. Petitioner's Exhibits 1 through 5 were received into evidence. Respondent called Charles Kalstone, M.D., and Lance E. Wyble, M.D., as witnesses, but offered no additional exhibits.1

The transcript of the hearing was filed November 23, 1998, and the parties were initially accorded until December 3, 1998, to file proposed final orders; however, at Petitioner's request, and with Respondent's acquiescence, the time for filing was extended to January 18, 1999. Consequently, the parties waived the requirement that a final order be rendered within 30 days after the transcript has been filed. Rule 28-106.216(2), Florida Administrative Code. The parties elected to file such proposals and they have been duly considered.2

FINDINGS OF FACT

Preliminary matters

1. Catherine LaPoint is the mother and natural guardian of Jacqueline LaPoint (Jacqueline), a minor. Jacqueline was born a live infant on July 2, 1994, at Holy Cross Hospital, a hospital located in Fort Lauderdale, Florida, and her birth weight was in excess of 2500 grams.

2. The physician providing obstetrical services during the birth of Jacqueline was Marsh McEachrane, 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. LaPoint's antepartum course and Jacqueline's birth

3. At or about 1:00 a.m., July 2, 1994, Mrs. LaPoint's membranes spontaneously ruptured (while she was at home), with

   clear fluid noted, and contractions commenced approximately one to two hours later. At the time her estimated date of delivery had been noted as July 24, 1994, and, apart from the borderline prematurity of the fetus at the time labor commenced, her antepartum course was without apparent complication; however, Mrs. LaPoint did present with a number of risk factors, including a history of chronic smoking; obesity3 (a risk factor of gestational diabetes4); four previous cesarean sections (representing a risk of uterine compromise or rupture); and a large for gestational age fetus. Given the previous uterine surgery, Mrs. LaPoint had been scheduled for a repeat cesarean section.

4. At or about 4:45 a.m., Mrs. LaPoint presented to Holy Cross Hospital in active labor. On presentation, contractions were noted as moderate (with a frequency of 3 to 4 minutes and a duration of 40 to 60 seconds), and vaginal examination revealed the cervix to be at 5 to 6 centimeters, effacement at 80 to 90 percent, and the fetus at station -3. External fetal monitor revealed a normal fetal heart tone (FHT) baseline of 150 to 160 beats per minute. Given her history of previous cesarean sections (uterine surgery) and her presentation of active labor, Mrs. LaPoint was admitted at or about 4:49 a.m. for a repeat cesarean section.

5. FHT was monitored by external fetal monitor from admission until 5:26 a.m., when it was disconnected and

   Mrs. LaPoint was transported to the operating room (OR). During that period, FHT baseline remained consistent at 150 to 160 beats

   per minute, except for one episode of variable/late deceleration to the 90-beat per minute range at about 3:00 a.m., but with good beat-to-beat variability and recovery to baseline was noted. One other variable deceleration was noted shortly thereafter to the 120-beat per minute range with spontaneous recovery to baseline. Notably, while the tape reveals some diminished long term variability with contractions, it does not reveal a pattern of persistent deceleration.

6. Mrs. LaPoint was transported to the OR at 5:26 a.m., at which time FHT was noted as 150 beats per minute, and contractions were noted as moderate (with a frequency of 2 minutes and a duration of 40 to 60 seconds). Anesthesia was noted to commence at 5:50 a.m., the operation started at

   6:08 a.m., and Jacqueline was delivered at 6:14 a.m. Cord specimen was obtained, and when subsequently analyzed revealed that, at delivery, Jacqueline presented with a pH of 7.085, PCO2 of 90.3, PO2 of 19.2, HCO3 of 27, and a Base Excess (BE) of -6.

7. During delivery amniotic fluid was noted to be thin merconium stained, and oropharyngeal suctioning was done before the shoulders were delivered. Jacqueline was noted as limp (hypotonic) and apnic at birth, and intermittent positive pressure ventilation was given by bag and mask for about one minute. Laryngoscopy revealed cords were clear. Apgars of 4 and

   8 were assigned at one and five minutes, respectively.

8. The Apgar scores assigned to Jacqueline are a numeric 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 skin 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 Jacqueline's Apgar score totalled 4, with heart rate being graded at 2; respiratory effort and color being graded at 1 each; and muscle tone and reflex irritability being graded at 0. At five minutes, Jacqueline's Apgar score totalled 8, with heart rate, respiratory effort, and reflex irritability being graded at 2 each, and muscle tone and color being graded at 1 each. While the one minute Apgar was low,5 the five minute Apgar was quite normal or, stated otherwise, not predictive of neurologic complications.6

9. Following stabilization, Jacqueline continued to evidence respiratory difficulty and, at or about 6:30 a.m., she was admitted to the neonatal intensive care unit (NICU) for further evaluation and management.

10. Initial assessment on admission evidenced an unusual neurologic and respiratory presentation. Neurologically, Jacqueline was noted as lethargic, floppy, and jittery. As for her respiratory presentation, although her breathing rate was regular, she evidenced rales, grunting, flaring, and moderate retractions. Dextrostix (a reagent strip designed for determination of blood-glucose levels with the use of fingertip venous blood) on admission was low, at 26, and immediate glucose testing was ordered and also reported as critically low at 24. Diagnosis was respiratory distress syndrome (RDS) and possible hypoglycemia (an abnormally diminished concentration of glucose

    in the blood). Respiratory support (for RDS) and intravenous

    (IV) glucose (for hypoglycemia) were ordered.

11. For respiratory support, Jacqueline was initially placed in an Oxyhood (on an infant warmer bed) with 96 percent oxygen; however, when she continued to require a high oxygen concentration to maintain her gases and saturation levels within normal limits she was intubated (at or about 8:15 a.m.) and ventilator support was provided. Thereafter, her oxygenation was maintained within normal limits without difficulty.7

12. While Jacqueline's RDS was successfully managed, without apparent harm (by oxygen deprivation or otherwise) to the infant, her hypoglycemia proved refractory or, stated differently, recalcitrant or not responsive to treatment. Indeed it was not until the afternoon of July 4, 1994, that her condition started to resolve, and then only after progressively intensive intervention.8

13. Here, Jacqueline may reasonably be described as an infant of a diabetic mother9 (IDM)--a hyperglycemic mother--who, consequently, presented with hyperinsulinism, resulting in hypoglycemia.10 Such presentation is clearly demonstrated by elevated readings of insulin in Jacqueline's blood (of 24.7 at 7:00 p.m. on July 3, 1994),11 as well as the severe hypoglycemia she developed subsequent to delivery.

14. Jacqueline was noted as "jittery" throughout the course of treatment; however, the most pronounced period of physiological abnormality was noted at or about 8:00 a.m.,

    July 4, 1994. At that time, an apnic episode was noted during

    assessment, and tone was flaccid, color pale, and lips dusky. Jacqueline was accorded tactile stimulation without response, and manual breaths were given from the ventilator for approximately

    30 seconds before a response was noted. Jacqueline was noted as jittery and diaphoretic (evidencing profuse perspiration). Other apnic episodes, with similar observations, were noted and addressed at 8:15 a.m., 8:18 a.m., and 8:30 a.m. Neurologic consult was called, and an EEG was recommended to rule out seizures, and an ultrasound to rule out possible intraventricular hemorrhage. The EEG was read as normal and the head ultrasound was read as within normal limits, as follows: "No evidence of intraventricular or subpendymal hemorrhage. The ventricles appear normal in size, left slightly larger than right." Jacqueline was started on a course of antibiotics to address the possible presence of sepsis.

15. At or about 4:00 p.m., July 4, 1994, Jacqueline's urinary output was noted to be diminished. Her output continued as diminished and at or about 5:40 p.m., given such development, as well as her continued complex metabolic problems, her treating physician ordered Jacqueline transferred to the Level III Neonatal ICU at Broward General Medical Center for continued evaluation and management. Final diagnosis on discharge was, as follows:

    1. Prematurity.

    2. Large for gestational age.

    3. Respiratory distress syndrome.

    4. Hyperglycemia.

    5. Hypocalcemia.

    6. Hypomagnesemia.

    7. Rule out hypoparathyroidism.

    8. Seizure disorder.

    9. Ventriculoseptal hypertrophy.

16. Jacqueline was discharged from Holy Cross Hospital at or about 8:30 p.m., July 4, 1994, and transported to Broward General Medical Center, where she was admitted at or about

    9:18 p.m. in stable condition. There, Jacqueline's condition progressively improved and on July 11, 1994, she was discharged in her mother's care. Jacqueline's course at Broward General Medical Center is reasonably stated in her discharge summary as follows:

    Admission diagnoses:

    36 week white female Large for gestational age Grandmultiparity

    Respiratory distress R/O RDS I, RDS II, Pneumonia

    R/O Sepsis

    R/O Meconium aspiration syndrome R/O Congenital heart disease

    R/O Pulmonary hypertension R/O Seizures

    R/O Hyperparathyroid

    R/O Hypoglycemia, hypocalcemia Transfer from Holy Cross

    CLINICAL PROBLEMS:

    Respiratory:

    RDS I

    Persistent pulmonary hypertension was diagnosed.

    The highest delivered FI02 was 0.46, with time spent in increased oxygen = 3 days (total). The infant was intubated and on intermittent mandatory ventilation for approximately 3 days (at BGMC).

    Cardiac:

    A cardiac consultation was performed on 7/5/94 by Dr. Miller to reassess previous consult of 7/2/94 at Holy Cross.

    Echocardiogram revealed hypertrophied left ventricular septum and left posterior wall, turbulance of the left ventricular outflow tract, a PDA with bidirectional shunting and increased pulmonary reistance. Dr. Millers

    impression as that of RDS with evidence of pulmonary hypertension and hypertrophic cardiomyopathy.

    Metabolic:

    Hypoglycemia - treated with IV glucose. Hyponatremia. IV sodium was given.

    Hypocalcemia. There was treatment with IV calcium.

    Endocrine:

    A consultation was performed by Dr. Motkin- Kalia on 7/5/94. Findings were most likely consistent with IDM although there was no maternal history of diabetes/gestational diabetes.

    Infection:

    A septic workup was performed on 7/2/94 at Holy Cross Hospital. There was antibiotic treatment with Ampicillin and Gentamicin for

    10 days (total) due to clinical evidence of sepsis.

    Neurologic:

    Dr. Epstein was consulted on 7/5/94 due to report of seizure at Holy Cross Hospital.

    Most probable etiology [of seizures] was felt to be hypocalcemia. There was no further seizure activity, infant was treated with phenobarbital X 1 dose after the seizure noted on 7/4/94

    An EEG was performed on 7/5/94. It was reported as within normal limits.

    * * * Final Discharge Diagnoses:

    36 week white female Large for gestational age RDS I

    PFC

    Hypoglycemia Hyponatremia Hypocalcemia Seizure Clinical sepsis Probable IDM

    Condition on discharge - Recovered.

    Jacqueline's subsequent development

17. Jacqueline's early infancy was apparently unremarkable until around the age of 5 to 6 months when she was noted to have visual inattention. Around the same time she was also noted to have intermittent deviation of the head downwards without any associated symptoms.

18. On May 5, 1995, Jacqueline was evaluated by Jaime L. Baquero, M.D., a pediatric neurologist. His neurologic evaluation revealed the following:

    PHYSICAL EXAM: . . . she indeed appeared visually inattentive . . . [and] did have intermittent downward head deviation which was not fixed and was not associated with any other signs or symptoms. There were no overt dysmorphic features or evidence of neurocutaneous signs. The appendicular muscle tone was felt to be normal, although her axial tone diminished. No other abnormalities were noted on examination.

    
    

    IN SUMMARY, based on clinical history and examination, it does appear that Jacqueline is experiencing significant visual impairment which at this point in my view is very difficult to distinguish whether this is a congenital blindness or delayed visual maturation. The possibility of optic nerve hypoplasia should be entertained being that the mother has possible maternal gestational diabetes, and in addition manifestations of hypoglycemia and hypocalcemia were seen in the neonatal period with seizures accompanying this metabolic deficit. It is known that there is a higher incidence of septal optic dysplasia associated with infants born to diabetic mothers. This sometimes is accompanied by hypopituitarism, therefore, I would recommend obtaining an MRI of the brain to R/O that possibility. In addition, I would like to obtain an EEG because of the concern with this startle and jerking which is seen more often in the morning. In addition, I would like to obtain a Visual Evoked Response to evaluate the integrity of the visual pathways, although if

    her visual deficits would be cortical, it could still be within normal limits. At some point she would deserve an endocrinologic evaluation to R/O the presence or absence of hypopituitarism. Obviously, being that her APGARS were somewhat low and that she was ventilated, the optic atrophy associated with hypoxic ischemia encephalopathy is still a possibility. I discussed all these different diagnoses with Mrs. LaPointe and we will sit down in a follow-up visit to discuss these issues after the tests have been obtained.

19. Consistent with Dr. Baquero's suggestion, Jacqueline was admitted to Broward General Medical Center on June 6, 1995. The Visual Evoke Response test was normal, "suggesting normal conduction of the pathway between the retina and the occipital lobes bilaterally." The electroencephalogram (EEG) was read as abnormal "due to the presence of intermittent polymorphic slowing noted primarily in the left posterior quadrant but with a field extending sometimes to the right posterior quadrant with admixed spike discharges. These findings are indicative of a regional disturbance of cerebral function that is potentially epiteptogenic maximally noted in the left posterior quadrant."12

20. On June 14, 1995, Jacqueline was referred to Broward General Medical Center for evaluation of "daily episodes of upper extremity rapid 'jerks'" (possible new onset seizure activity). No seizures were noted on the 24-hour video EEG and on June 15, 1995, Jacqueline was discharged.

21. On June 20, 1995, an MRI of the brain was finally obtained. That MRI revealed the following:

    FINDINGS CONSISTENT WITH PERIVENTRICULAR LEUKOMALACIA. DELAYED MYELINATION SEEN THROUGHOUT THE CEREBRAL CORTEX AS DESCRIBED ABOVE. THERE ARE NO MRI FINDINGS SEEN TO SUGGEST SEPTAL OPTIC DYSPLASIA.

    The dispute regarding compensability

22. Here, there is no dispute that Jacqueline suffered an injury to her brain which has resulted in permanent and substantial mental and physical impairment. Indeed, the record reflects, without contradiction, that Jacqueline presents with severe spastic diplegia, is wheelchair dependent for all community mobility, and suffers cortical blindness. What is subject to dispute is the cause and timing (genesis) of Jacqueline's brain injury or, pertinent to these proceedings, whether the proof demonstrates, more likely than not, that her neurologic impairment resulted from an "injury to the brain . . . caused by oxygen deprivation or mechanical injury, occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," as opposed to some other genesis.

23. With regard to such issue, Petitioner is of the view

    that, while there is no dispute that Jacqueline suffered (post- delivery) a significant brain injury caused by severe hypoglycemia, Jacqueline also suffered pre-natal or immediate post-natal oxygen deprivation which caused, or operating in concert with her subsequent hypoglycemia caused, her brain injury. (Petitioner's Proposed Final Order, at page 18.) In contrast, Respondent is of the view that the proof is not consistent with brain injury caused by oxygen deprivation occurring during or immediately following birth and must, therefore, be attributable to Jacqueline's hypoglycemia.

    Respondent's view of the proof has merit. The genesis of Jacqueline's injury

24. To address the genesis of Jacqueline's brain injury, the parties offered selected records relating to Mrs. LaPoint's antepartum and intrapartum course, as well as for Jacqueline's birth and subsequent development.13 Portions of those records have been addressed supra, and further salient portions will be addressed infra. The parties also offered the opinions of six physicians to address the likely cause of Jacqueline's injury. The physicians offered by Petitioner were Marsh McEachrane, M.D., a board certified obstetrician and gynecologist; Michael Tidwell, M.D., a board certified orthopedist; Lalit Shah, M.D., a board certified neonatologist; and Jaime Baquero, M.D., a pediatric neurologist, board certified in pediatrics and board eligible in neurology. The physicians offered by Respondent were Charles Kalstone, M.D., a board certified obstetrician and gynecologist; and Edward Lance Wyble, M.D., a board certified neonatologist.

25. The medical records and other proof, including the testimony of the physicians offered by the parties, have been carefully considered. So considered, it must be concluded that the proof does not support (or allow a conclusion to be drawn with any sense of confidence) that, more likely than not, Jacqueline's brain injury was caused by oxygen deprivation occurring during the course of labor, delivery, or resuscitation in the immediate post-delivery period. Rather, the proof demonstrates, more likely than not, that Jacqueline's brain injury was directly related to the severe and intractable hypoglycemia she suffered following delivery and that it was not associated with any event which may have occurred during the

    course of labor, delivery, or resuscitation in the immediate post-delivery period.14

26. In so concluding, it is observed that Jacqueline's course pre-delivery and post-delivery was inconsistent with hypoxic or ischemic injury having occurred during the course of labor, delivery, or resuscitation. First, the evidence documenting fetal heart rate during the course of labor and delivery does not support the conclusion that Jacqueline suffered an acute intrapartum event that led to hypoxic or ischemic injury. Notably, there were only two variable decelerations (one to 90 beats per minute and the other to 120 beats per minute), but with good beat-to-beat variability and spontaneous recovery to baseline, and no persistent or pattern of persistent decelerations. Under such circumstances, the monitoring tape was reassuring and it is unlikely, based on such tape, that fetal oxygenation was adversely affected during labor and delivery.15

27. Further militating against the conclusion that Jacqueline's brain injury was caused (in whole or part) by oxygen deprivation pre-delivery, or new-onset hypoxia post-delivery, is the lack of trauma associated with Mrs. LaPoint's labor and delivery (labor was short, approximately 5 hours, and delivery was by cesarean section), and the numerous inconsistencies between Jacqueline's presentation and development, and the clinical findings one would expect had she suffered hypoxic ischemic encephalopathy, secondary to perinatal asphyxia, during that period.16 Notably, Jacqueline's Apgar scores were 4 at one minute and 8 at five minutes. While an Apgar of 4 at one minute

    is less than average or not normal, it is but a reflection of the infant's status where, as here, the infant is going through the change process after birth. Importantly, the Apgar did not remain depressed, as it would have had she suffered an acute intrapartum event, but progressed to 8 (a very normal Apgar score) by five minutes. Clearly, the infant was improving over that period, which also compels the conclusion that there was no new or ongoing insult.

28. Also inconsistent with brain injury during or immediately following birth, there was no evidence of metabolic acidosis on the cord blood sample and, consequently, no evidence to support an ongoing hypoxic process during the course of labor. Moreover, had Jacqueline suffered an injury to her brain during or immediately following birth, there are a number of other clinical findings one would reasonably expect to observe that were absent in her case. For example, an infant who suffered a hypoxic ischemic injury during such period would not only present with initial depression (more severe than Jacqueline evidenced), but would continue to demonstrate severe depression at one, five, and ten minutes. Additionally, in cases of substantial neurologic injury, the infant should generally evidence seizure activity within 8 to 24 hours. Finally, inconsistent with brain injury during or immediately following birth, there was no evidence (within 5 or 6 hours of delivery) of other or multi- organ system dysfunction, including kidney dysfunction. Evidence of such dysfunction would be reflected in decreased urine out-put and on biochemical analysis of blood with elevated serum

    creatinine levels. No such dysfunction was present in the hours immediately following Jacqueline's birth.

29. Contrasted with the paucity of compelling evidence of perinatal asphyxia as the cause for Jacqueline's brain injury, the medical records and other persuasive proof clearly demonstrate the presence of severe and untractable hypoglycemia and support the conclusion that Jacqueline's brain injury was caused, post-delivery, by the presence of such metablic derangement. Supportive of such conclusion, it is observed that contemporaneously with the observed on-set of hypoglycemia (at or about 6:30 a.m., following admission to the neonatal ICU), Jacqueline was observed to be jittery, lethargic, and floppy, clinical symptoms typically associated with hypoglycemia. Such presentation persisted as Jacqueline's hypoglycemia proved severe and intractable, and at or about 8:00 a.m., July 4, 1994, Jacqueline was noted to undergo an apnic episode, and her tone was flaccid, color pale, and lips dusky. Such events are clinical evidence of the on-set of seizure activity which, given its timing, is compelling proof of brain injury associated with hypoglycemia and not any event associated with labor or delivery, which occurred over 48-hours previously. Further supporting the timing and cause of Jacqueline's insult, is evidence of kidney dysfunction (diminished urine output) at or about 4:00 p.m.,

    July 4, 1994.

30. Given the proof, it cannot be concluded that, more likely than not, Jacqueline's brain injury, and resultant neurologic impairment, was caused by oxygen deprivation occurring

    in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Notably, Jacqueline's presentation and neonatal course were not consistent with an acutely acquired neurologic injury, and it is improbable that she could have experienced an acute injury during labor and delivery, or immediately thereafter, without evidencing clinical symptoms of such damage. Conversely, a brain injury, resulting from hypoglycemia acquired post-delivery, would be consistent with Jacqueline's presentation at birth and subsequent development.

    CONCLUSIONS OF LAW

31. 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.

32. 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.

33. 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 5 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.

34. 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.

35. 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.

36. 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.

37. As the claimants, the burden rests on Petitioners 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.")

38. Here, it has been established that the attending physician who provided obstetrical services during the birth of Jacqueline 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 proof demonstrated that Jacqueline suffered an injury to the brain that rendered her "permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. However, the proof failed to demonstrate, more likely than not, that Jacqueline's brain injury was "caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period." Rather the proof demonstrated, more likely than not, that her brain injury resulted from severe hypoglycemia, post-delivery, and was not associated with any event which may have occurred during the course of labor, delivery, or resuscitation in the immediate

    post-delivery period. Accordingly, the subject claim has not

    been shown to be compensable under the Plan. Sections 766.302(2), 766.309(1), and 766.31(1), Florida Statutes.

39. Where, as here, the administrative law judge 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 Catherine LaPoint, as parent and natural guardian of Jacqueline LaPoint, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 15th day of February, 1999, 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

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1999.

ENDNOTES

1/ Respondent had one exhibit marked for identification (Respondent's Exhibit 1), but did not move the exhibit into evidence.

2/ Petitioner also filed a written closing argument on January 20, 1999, which was duly considered.

3/ Mrs. LaPoint (date of birth June 28, 1961) was 33 years of age when Jacqueline was born. At the time, she was 5'3" tall, her pregravida (prior to pregnancy) weight was noted as 240 pounds, and her gravida weight was 300 pounds.

4/ Mrs. LaPoint was tested for hyperglycemia (a glucose test) on January 31, 1994, and again on April 20, 1994. Both tests were within normal limits. See transcript at page 17 and Petitioner's Exhibit 3. The reference at page 19 of the transcript that the initial test was on "July 31st of '94" is (obviously) erroneous.

5/ Jacqueline's depressed state at one minute could have resulted from a range of factors, including the consequence of anesthesia administered to the mother or diminished oxygenation. Given the proof, the more likely cause was a reaction to anesthesia.

6/ While an individual factor can not be expected to provide a reliable predictive value for the risk of neurologic injury (sequelae), it is generally accepted that Apgar scores need to be significantly and persistently low (i.e., an Apgar of less than 5 at five minutes, that persists) for them to be predictive of neurologic injury.

7/ Echocardiography, at 4 hours of life, revealed a "hypertropic cardiamyopathy of unknown etiology at this point."

8/ Treatment for Jacqueline's hypoglycemia began with the administration of glucose through central and peripheral IVs. When Jacqueline's hypoglycemia did not respond, glucagon was added to the regimen. Finally, faced with recalcitrant hypoglycemia, the treating physician resorted to hydrocortisone and ultimately diazoxide (a powerful and rarely used drug) before she responded to treatment.

9/ Here, it is reasonable to conclude that Mrs. LaPoint had gestational diabetes mellitus. Such conclusion is evidenced by Jacqueline's presentation (with hypoglycemia), which is characteristic of hyperinsulinism experienced by infants of diabetic mothers (IDM). Other abnormalities evidenced by Jacqueline and associated with IDMs include RDS, hyperkalemia, hypertropic cardiomyopathy, and macrosomatia.

10/ This condition (hypoglycemia) was precipitated by

Mrs. LaPoint's gestational diabetes mellitus, which caused the fetus to produce an excess of insulin that, when separated from the womb, resulted in hyperinsulinism and consequent hypoglycemia.

11/ In a neonate normal range for insulin, when glucose level is low, should be 6 to 10. Jacqueline's presentation was severely abnormal.

12/ Subsequent EEGs of August 22, 1995; September 5, 1995; and March 26, 1996, were likewise noted as abnormal.

13/ The Petitioner also offered the testimony of Lawrence Brown, a respiratory therapist, and Janet Rivera, a registered nurse, who were caregivers during Jacqueline's birth or respiratory therapy at Holy Cross Hospital.

14/ In reaching such conclusion, the testimony of Petitioner's expert, Dr. Tidwell, has not been overlooked, but has been found less than compelling. In this regard, it is noted that

Dr. Tidwell had not reviewed any of the prenatal or neonatal records prior to rendering his opinion as to the likely cause of Jacqueline's injury, and that his conclusions are inconsistent with the other learned physicians who testified. Also not overlooked, was the testimony of Petitioner's experts,

Doctors McEachrane, Shah, and Baquero; however, their testimony was more consistent with the opinions of the experts offered by Respondent, and their testimony does not support a conclusion that, more likely than not (within reasonable medical certainty), Jacqueline suffered oxygen deprivation during the course of labor, delivery, or resuscitation in the immediate post-delivery period which, either directly or operating in concert with her subsequent hypoglycemia, caused brain injury. Indeed, to so conclude, based on the evidence presented and observations elicited, would be little more than speculation, rather than scientific or medical probability. Finally, the analysis and opinions of Respondent's experts (Doctors Kalstone and Wyble) rested on a logical premise, was grossly consistent with the record, and was compelling.

15/ In so concluding, it has not been overlooked that the fetal monitor was disconnected at 5:26 a.m. and, therefore, since delivery occurred at 6:14 a.m., FHT was not monitored for approximately 48 minutes. It is, however, most unlikely that the fetus suffered an acute hypoxic or ischemic event during this time period given the infant's presentation and clinical course, and the absence of metabolic acidosis on delivery.

16/ In so concluding, it has not been overlooked that Jacqueline was limp and apnic at birth, and that hypoxia can be associated with such a presentation; however, depression can also be associated with anesthesia administered during the course of labor and delivery. Here, given the lack of metabolic acidosis on delivery and the absence of other evidence of hypoxic insult during the course of birth, Jacqueline's depression was most likely associated with anesthesia, as opposed to oxygen deprivation. As for her respiratory distress syndrome (RDS), that may be associated with a number of factors, including immaturity of the lungs, fluid in the lungs, or depression (including that resulting from hypoxic insult, hypoglycemia, or anesthesia). Here, given the proof, it is doubtful that Jacqueline's initial depression was associated with hypoxic insult, but ascribing a cause for its initial presence, based on the proof of record, would be, at best, speculative.

COPIES FURNISHED:

(By certified mail)

Catherine LaPoint

4651 Southwest 32nd Avenue Apartment 7

Dania, Florida 33312

Dan H. Honeywell, Esquire Wooten, Honeywell and Kest, P.A. Post Office Box 568188

Orlando, Florida 32856-8188

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 32317-4567

Christine Perez, Esquire

Billing, Cochran, Heath, Lyles & Mauro, P.A. 888 Southeast 3rd Avenue, Suite 301

Fort Lauderdale, Florida 33316

Renee Braeunig, Esquire McGrane & Nosich, P.A.

2801 Ponce de Leon Boulevard 12th Floor

Coral Gables, Florida 33134

Ms. Charlene Willoughby

Agency for Health Care Administration Consumer Services Unit

Post Office Box 14000 Tallahassee, Florida 32308

Daniel Y. 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: 97-001460N

Orders for Case No: 97-001460N