STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAMILLA DURAND, as parent and ) natural guardian of AUSTIN TYLER ) DURAND, a minor, )

)

Petitioner, )

)

vs. ) Case No. 97-4165N

) 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 28, 1998, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Loreen I. Kreizinger, Esquire

SunTrust Center, Suite 1150

515 East Las Olas Boulevard Fort Lauderdale, Florida 33301

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

Graham & Moody, P.A.

101 North Gadsden Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

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

PRELIMINARY STATEMENT

On September 4, 1997, Camilla Durand, as parent and natural guardian of Austin Tyler Durand (Tyler), 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 September 8, 1997. NICA reviewed the claim, and on April 6, 1998, 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 duly held on October 28, 1998.

At hearing, the parties stipulated to the matters set forth in paragraphs 1 and 2 of the Findings of Fact, and further stipulated that Tyler is permanently and substantially mentally and physically impaired, consequent to a brain anomaly.

Petitioner, Camilla Durand, testified on her own behalf, and Petitioner's Exhibits 1 through 191 were received into evidence, subject to the limitations noted of record.2 Respondent's Exhibit 1 (the deposition of Charles Kalstone, M.D.) was also received into evidence.

The transcript of the hearing was filed on November 18, 1998, and the parties were accorded ten days from that date to file proposed final orders. Respondent elected to file such a proposal, and it has been duly considered.

FINDINGS OF FACT

Fundamental findings

1. Camilla Durand is the mother and natural guardian of Austin Tyler Durand (Tyler), a minor. Tyler was born a live infant on September 5, 1992, at Memorial Hospital West, a hospital located in Pembroke Pines, Florida, and his birth weight was in excess of 2500 grams.

2. Among the physicians providing obstetrical services during the birth of Tyler was Michael F. Augustino, 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. Ms. Durand's antepartum course and Tyler's birth

3. At or about 7:30 p.m., September 5, 1992, Ms. Durand presented to Memorial Hospital West complaining of contractions. At the time, her estimated due date was noted as September 7, 1992 (by ultrasound), and her antenatal course was without apparent complication.

4. On presentation, contractions were noted as moderate, with a frequency of 3 to 5 minutes and a duration of 60 to 70 seconds. Examination revealed the membranes to be intact, with

   no apparent bleeding, and the cervix to be at 3 centimeters, effacement at 100 percent, and the fetus at station -1. External fetal monitor revealed a fetal heart tone (FHT) baseline of

   140 to 150 beats per minute, with accelerations. Ms. Durand's obstetrician was advised of her progress, and she was admitted to labor and delivery.

5. At about 9:45 a.m., Dr. Augustino evaluated Ms. Durand and noted no change on vaginal examination. He performed an AROM (artificial rupture of the membranes), noting clear fluid. FHT was stable and reactive. At about 10:00 a.m., at Ms. Durand's request, an epidural was placed.

6. At about 10:12 a.m., Ms. Durand was started on Pitocin drip at 1 mu/min., to augment labor. At the time, her contractions were moderate, at 3 to 4 minutes apart and lasting for 60 to 70 seconds. FHT remained stable in the 140 beat per minute range, with good variability. The Pitocin was increased to 2 mu/min. at 10:35 a.m.

7. At 11:30 a.m., vaginal examination revealed the cervix to be at 4 centimeters, effacement at 100 percent, and the fetus still at station -1. Pitocin was increased to 4 mu/min.

8. At 11:30 a.m. Pitocin was increased to 5 mu/min; at 11:45 a.m. Pitocin was increased to 6 mu/min.; at 12:00 (noon) Pitocin was increased to 7 mu/min.; and at 12:15 p.m. Pitocin was increased to 8 mu/min. Vaginal examination at 12:30 p.m. revealed the cervix to be at 5 centimeters, effacement at 100

   percent, and the fetus still at station -1. Contractions were noted as moderate to strong, at 3 to 4 minutes apart, and lasting for 60 seconds. FHT continued in the 140 beat per minute range, with good variability.

9. At 1:15 p.m., Ms. Durand was noted to have moderate contractions every 2 to 3 minutes, lasting 40 to 50 seconds. Vaginal examination evidenced no progress. Pitocin was increased to 9, 10, and then 11 mu/min. Vaginal examination at 2:45 p.m. showed slight edema of the cervix, and no progress. FHT tone remained stable in the 150 beat per minute range, with good variability.

10. At about 3:15 p.m., Ms. Durand was noted to have a temperature of 100.1, and she was accorded Tylenol. Vaginal examination at 3:45 p.m. noted no progress, but evidence of head molding. Vaginal culture was done, and antibiotics ordered. FHT remained stable in the 150 beat per minute range, with good variability.

11. At 4:00 p.m., it was resolved to deliver by cesarean section for failure to progress and maternal temperature, and Pitocin was discontinued. FHT remained stable in the 150 beat per minute range, but with decreased variability.

12. At about 4:30 p.m., Ms. Durand was noted to have a temperature of 101.2, and there continued to be no progress in cervical dilatation. The infant's head was described as molded and still poorly applied to the cervix. FHT remained stable in

    the 150 beat per minute range, but with decreased variability. Between 4:30 p.m. and 4:40 p.m., the fetal monitor was discontinued, and Ms. Durand was transported to the obstetrical operating room (OB/OR).

13. Ms. Durand was noted on the table in the OB/OR at 4:45 p.m., the operation started at 5:00 p.m., and Tyler was delivered at 5:10 p.m. Nuchal cord x 3 was noted. Following delivery Tyler was accorded free flowing facial oxygen for two minutes. Apgars of 8 and 9 were assigned at one and five minutes by the neonatologist.

14. The Apgar scores assigned to Tyler 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 irritation, 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 Tyler's Apgar score totalled 8, with heart rate, respiratory effort, muscle tone, and reflex irritation being graded at 2 each, and color being graded at 0. At five minutes, Tyler's Apgar score totalled 9, with heart rate, respiratory effort, muscle tone, and reflex irritation being graded at 2 each, and color being graded at 1. Tyler's Apgar scores were essentially normal, suggesting a vigorous infant, and he was transferred to the newborn nursery at 5:30 p.m.

15. On admission to the nursery, Tyler's color was noted as

    pink, and his breathing as unlabored. Subsequent physical assessment was grossly normal, with the exception of a noted hypospandias (a developmental anomaly in the male in which the urethra opens on the underside of the penis or on the perineum3). However, given the maternal fever at delivery, blood cultures were ordered and Tyler was accorded a regimen of antibiotics to address the risk of sepsis. Tyler's newborn course was otherwise uneventful and he was discharged with his mother on September 8, 1992.

    Tyler's subsequent development

    
    

16. Tyler received routine pediatric care following his discharge from the hospital, and his early infancy was essentially unremarkable, until about two years of age when the mother first became concerned about his development. Tyler was, however, a healthy child, except for pneumonia on two occasions, until on or shortly before February 5, 1995, when he was admitted to Memorial Hospital, Hollywood, Florida.

17. The cause for Tyler's admission to Memorial Hospital, as well as the initial impression regarding his presentation, is stated in the admission summary, as follows:

    This is the first admission to any hospital in this two year four month old white male who had a temperature since the 3rd, he was seen by Dr. Budowski in the office and i[n] Dr. Samuels office as well and a screening strep test was shown to be positive.

    Medicine was given but mom did not give it, she took the child home. The patient apparently slept somewhat, mom gave Tylenol and the temperature went down. Apparently the child woke up about 10 o'clock in the evening time and low and behold, we are not sure if there was a spike in the fever but mom said she took the temperature and it was not elevated. Regardless there was a sweating episode, no cyanosis. He became stiff, turned to the right, did not become incontinent and his eyes were staring, this lasted for 10 seconds two episodes within a matter of a few minutes of each other and he was screaming as well before this started.

    This complex type of possible seizure. He

    did not turn cyanotic, however, she brought him to the hospital where he was then cared for and admitted. The patient did not have any seizure since that time. There has been no fever, no coughing, no distress, no rash, etc. He had no painful urination, no bowel

    problems. His appetite was fairly good up until that point. He was exposed from his cousins who had respiratory infections.

    
    

    PAST MEDICAL HISTORY: He was born at Memorial West 7 lbs, breast-fed for three months. He was born hypospadias, was in the hospital seven days because of a questionable sepsis, was delivered by cesarean section.

    Mom was treated with antibiotic and the baby was treated with antibiotics but apparently did well and there has been no trouble since. There is a history of infection, states that he has had several colds in the past and never a urinary tract infection. A month ago he had probable viral pneumonia treated as an outpatient proven by x-ray. No chicken pox.

    
    

    IMMUNIZATIONS: Up to date. No known allergies. His development history is somewhat delayed, his weight and height his mother says since six months of age has fallen off. He walked after a year of age, his speech is down, his receptive qualities are better than his expressive. He has very poor language skills. He runs stiff, clumsy- like, toes in and falls. He has had no tremors but his hand occasionally shakes when he is sucking his thumb, and his mom thinks that his milestones are delayed based on the children in the family. He is not a toe walker and has never had any other seizures. The patient is a poor eater and a picky eater.

    
    

    * * * PHYSICAL EXAMINATION:

    * * *

    
    

    NEUROLOGICAL: He walked with a little clumsiness again, this may be due to the chloral hydrate [administered for his CT scan], slight toeing in, no spasticity, no toe walking. 2+ reflexes, no tremors are present, no athetoid movements whatsoever. He did hold his balance pretty well, no clonus whatsoever. He is aware of his

    surroundings and place. There is an abnormal

    speech with poor communication skills. Gross hearing and vision seem to be normal.

    
    

    IMPRESSION:

    
    

    1. Seizure disorder. Seizures could be febrile.

    2. Definite positive strep test.

    3. Mild development delay ? the CT scan showed borderline lateral ventricle enlargement, could be upper limits of normal. Also speech/language delay, hypospadias, hyponutritution according to weight.

       
       

18. As noted, Tyler's CT brain scan showed borderline lateral ventricle enlargement of uncertain significance. More specifically, the CT scan was reported to read, as follows:

LATERAL VENTRICLES ARE SOMEWHAT PROMINENT FOR THIS AGE GROUP. THE REMAINDER OF THE VENTRICULAR SYSTEM AND BRAIN SUBSTANCE IS NORMAL. NO MASS NOR MIDLINE SHIFT. NO

EXTRA-AXIAL COLLECTION.

IMPRESSION:

PROMINENT LATERAL VENTRICLES OF UNCERTAIN SIGNIFICANCE. SIGNIFICANCE SHOULD BE CORRELATED WITH THE PATIENT'S CLINICAL STATUS.

A chest x-ray, also taken the day of admission (February 5, 1995), was read, as follows;

THERE IS EXTENSIVE BILATERAL PERIHILAR INTERSTITIAL INFILTRATE AND BRONCHIAL WALL THICKENING. THERE IS ALSO EXTENSION OF PATCHY INFILTRATE INTO THE RIGHT LOWER LOBE SUGGESTING PNEUMONIA. THERE IS NO PLEURAL EFFUSION. THE MEDIASTINAL CONTOUR IS WITHIN NORMAL LIMITS.

IMPRESSION:

BILATERAL PERIHILAR DISEASE WITH EXTENSION OF PATCHY INFILTRATE INTO THE RIGHT LOWER LOBE SUGGESTING PNEUMONIA.

An electroencephalogram (EEG) taken on February 9, 1995, was noted as "within normal limits for the age."

1. Following his discharge from the hospital, Tyler was referred to Dr. Stuart B. Brown, a pediatric neurologist, to assess the cause of the incident which resulted in Tyler's hospitalization. Dr. Brown's impressions, based on his examination on February 10, 1995, are noted in his report (of February 15, 1995), as follows:

   The neurological examination revealed this child to be very, very apprehensive and shy. His gait was mildly wide based and unsteady and this was particularly true when he attempted to turn about. Sitting was normal as was crawling and he was able to stand from a sitting position without difficulty. Hand usage appeared to be normal and there was no evidence of striking intention tremor.

   Muscle tone was normal to decreased in the lower extremities and deep tendon reflexes were only plus one but obtainable and equal in all joint areas. Plantar reflexes were flexor bilaterally. Involuntary movements were not seen. Cranial nerve examination revealed full extraocular movements without nystagmus. The pupils were equal and reactive to light. Optokinetic nystagmus was symmetrical. Fundi were normal with regard to optic discs. Facial musculature appeared normal. He often seemed to have his mouth open but was noted to close it. Tongue appeared normal. Cry was lusty. Hearing appeared intact to tuning fork. The neck was supple and head control was normal.

   IMPRESSION: I think that this child had a breath holding-like vasovagal episode following being awakened suddenly from sleep causing a persistent screaming and then tonic posturing. We do not have any evidence clinically, by history, or electrically to suggest a seizure problem here. I am

   concerned however because the child is developmentally delayed from a speech standpoint where he still has basically a jargon speech and from a motor standpoint where he is ataxic. I am not sure as to the basis for this. He also seems to me to be excessively small in stature. I am going to review the MR scans of the brain In

   the meantime I would suggest getting a wrist x-ray for bone age along with a specific DNA test for fragile x and a chromosome analysis to see if there is any translocation. I would obtain a urine organic acid assay and a plasma amino acid assay and some thyroid studies. I am particularly concerned by the

   motor and speech problems and less concerned by these episodes which occurred

   recently. . . .

   
   

   The requested testing was done, and failed to reveal any abnormality.

2. Pertinent to this case, Tyler was seen in neurology consultation on November 17, 1995, by Dr. Roberto F. Tuchman. After considering the perinatal and past medical history, family history, and the results of his neurologic examination,

   Dr. Tuchman summarized his impressions as follows:

   
   

   . . . we have a 3-year-old boy with developmental delays in language and motor function with ataxia and a tremor without any clear history of regression at this present time. His workup today has only been significant for an MRI showing some mild delay in myelination and we do not have the specific diagnosis to explain his present finding. I do think that we may want to do at least an alpha-fetoprotein for now and I would like to review the rest of his workup and see if I could come up with any further ideas. In addition I am referring him to

   Dr. Jean A. Cardi who is widely known

   pediatrist neurologist who is visiting us for the next three months. Once we get this information I will reassess and see if there is anything more that we need to do. . . .

   
   

   After reviewing the history and neurologic examination with

   
   

   Dr. Cardi, it was felt that Tyler "fit the group of children that have been termed cerebral palsy-ataxic type."

3. Also pertinent to this case, Tyler was seen in neurologic consultation on December 28, 1995, by Dr. Robert F. Cullen, Jr. Dr. Cullen's impressions were, as follows:

   . . . Tyler is a 3-3 1/2 year-old lad with

   indeed a picture of ataxia, hyperreflexia and up-going toes. While indeed the terminology of an ataxic cerebral palsy might be appropriate I am concerned that he may indeed have the Angelman syndrome or Happy Puppet syndrome. He indeed has a very stiff and jerky gait. He has an abnormality of speech and has had seizures.

   
   

   What we are going to do now is try to get blood for the fish technique and look and see if he has abnormalities in the region of

   Q11-13 on chromosome 15. I think he should continue with physical, occupational, and speech therapy. I will have the MRI reviewed by Dr. Nolan Altman to see how delayed the myelin is . . . .

4. Tyler's development and the efforts expended to identify the nature of his anomaly, are aptly summarized by Dr. Harvey S. Singer, who documented the results of his September 5, 1996, evaluation, as follows:

   REASON FOR VISIT:

   
   

   This was the first Pediatric Neurology Clinic visit for this 4-year-old white male referred for further evaluation of developmental delay. The patient is accompanied by his mother.

   
   

   HISTORY OF PRESENT ILLNESS:

   
   

   The patient was the product of a relatively normal pregnancy to a 29-year-old gravida-2, AB-1 mother who gained only 11 pounds during the pregnancy. She had a single exposure to x-ray but was wearing protective garb.

   Utrasound during the pregnancy showed normal fetal activity. The patient was delivered at

   39 weeks by a cesarean section after prolonged labor. Birth weight was 7.5 pounds. Apgars were 8 and 9. Color was described as being slightly dusky and Austin was given oxygen via mask. Since Ms Durand developed a fever prior to delivery and was started on antibiotics, blood cultures were

   obtained, an LP was unsuccessful, and the patient was treated with antibiotics for

   1 week. After discharge, he was breast-fed and was always described as being a poor feeder; in fact, he received breast feedings until the age of 2.

   The patient appeared to be doing reasonably well until approximately 6 months at which time decreased growth was noted.

   Subsequently, delays in motor and language areas became more apparent. He sat around 8 months, stood about 12 months, walked at

   14 months, and talked at 18 months. Parents first became concerned at about 2 years; especially about delayed language development. There is no history of a loss of an ability once acquired. At present his vocabulary is approximately 75 words though most are not understandable. He conveys his desires pointing and using garbled speech. His receptive abilities exceed his expressive skills. He is able to follow commands and obtain objects. He has had prior formal evaluations: psychometric testing has shown him to be educably handicapped whereas speech and language evaluation showed him to have a level of 22 months and a motor development of 16-18 months. Two months ago he started a special education program but Ms Durand notes no definite improvements.

   Other described neurologic problems include episodes of breathholding beginning at the age of 2 months and resolving at approximately age 3 years. In addition, in 02/95, he had several seizures. In 01/95 he was hospitalized with pneumonia. One week later he had a temperature to 104 degrees and was continued on antibiotics. At the time of his seizures, he was reportedly afebrile both at home and when evaluated in the emergency ward, although later he did develop a fever. His episodes consisted of crying out, stiffening of all extremities and turning his head to the right, lasting for approximately

   10 seconds. This then resolved but later

   recurred again though for a slightly shorter duration.

   
   

   The patient has had numerous neurologic evaluations by at least 5 pediatric neurologists. He was initially evaluated in 02/95 following the aforementioned seizure- like activity. He has had extensive testing which has included a normal EEG, a CT said to show possibly enlarged ventricles, and an MRI

   with decreased myelinization. Bone age was normal. A renal ultrasound was normal (obtained to further evaluate the patient's hypospadias). He has had a normal karyotype (46XY), negative DNA testing for fragile X, and negative FISH probes for Angelman's syndrome. He has also had negative urine organic acids, serum amino acids, thyroid screens, normal long chain fatty acids, normal alpha fetoprotein, normal vitamin E, and a serum lactate of 2.6 Thyroid stimulating hormone was slightly increased at

   4.76 (normal 0.26 to 4.4), a slightly increased T3 of 2.2 (normal 0.8 to 2.0) and a normal T4. Previous diagnoses have included ataxia cerebral palsy as well as "etiology unknown."

   
   

   Review of systems: Shows short stature, hypospadias, esotropia, an episode of prolonged emesis (etiology undermined with normal laboratory evaluations), and pneumonia X2.

   
   

   Family history: Mother is age 33 in good health. Father is age 42, described as being an alcoholic. Mother's grandmother has hypertension. A maternal cousin is retarded with hearing deficits of unknown etiology.

   Mother has migraines and sinus problems and an uncle has learning problems.

   
   

   MAJOR FINDINGS:

   
   

   On physical examination, this is a small, thin, youngster in no acute distress. He prefers sitting in his stroller or else in his mother's lap. He follows commands.

   Vocabulary appears limited and many of his spoken words are indistinct, although some are appropriate and correct. Skin: No neurocutaneous phenomenon. Head: Head circumference was 50.5 cm (approximately the 60th percentile). At times he keeps his head held back. HEENT: The patient has a slightly dysmorphic appearance. He has squared off teeth that are widely spaced.

   Heart: Regular sinus rhythm. Lungs: Clear. Abdomen: No organomegaly. Extremities: No cyanosis or clubbing. Cranial nerves: The

   patient has an "A-pattern" esotropia. He tracks by using horizontal saccadic movements and prefers to follow an object by moving his head. To doll's maneuver, one is able to obtain full horizontal extraocular movements. The patient does have slight limitation of upgaze with greater downgaze capabilities.

   He is able to converge, has normal quick phases, and adequate gaze holding. He has slight ptosis bilaterally. There was no alteration of facial sensation. Corneal reflexes were present. The patient does have slightly decreased spontaneous facial movements. Hearing is grossly intact.

   Palate is midline. Gag is present. Tongue shows no fasciculations or atrophy.

   Sensation: grossly intact to touch and pin. Motor: Thin extremities, good strength. The patient has a wide based gait and walks with arms held in an extended upward fashion. In addition to being wide based, he also has some slight circumduction of the right lower extremity as well as a steppage-like component. He is flat footed. Genu recurvatum is present in the standing position. Passive movement shows hypotonia in both upper and lower extremities though there is variability during the exam, especially in the lower extremities. He has dysmetria bilaterally. He sits fairly steadily though with occasional periods of slight titubation. Reflexes were 2-3 in the lower extremities, 2+ in the upper extremities; no crossed adductors. Toes were equivocal though tending to be extensor.

   There were no frontal release signs.

   The patient's MRI scan was reviewed with neuroradiology and shows definite evidence of vermal aplasia, a thin corpus callosum and delayed myelination.

   
   

   ASSESSMENTS:

   
   

   This is a 4-year-old with a static encephalopathy [any degenerative disease of the brain] associated with cognitive and motor delays. Examination shows evidence for cerebellar, cranial nerve pathway, and long tract findings. Based upon his history,

   examination and MRI, I strongly favor a developmental brain disorder as the etiology of this patient's difficulties. As described, his MRI shows partial agenesis of the cerebellar vermis and posterior lobe, a thin corpus callosum, and delayed myelination. A partial or complete defect of the cerebellar vermis may occur sporatically or as a component of the Dandy Walker syndrome, the Dandy Walker varient, or Joubert syndrome. Joubert syndrome is an autosomal recessive inherited condition characterized by retinal dystrophy, oculomotor abnormalities, episodic hyperpnea, ataxia and mental retardation (Lewis et al Am J Med Gen 52: 419, 1994). Austin has a history of breath holding but lacks periods of hyperpnea which alternate with episodes of apnea. Most infants with this syndrome are hypotonic, reflexes can be exaggerated and virtually all are retarded. Adamsbaum et al have described vermal agenesis without a posterior fossa cyst or hemispheric abnormalities with clinical signs of oculomotor dysfunction and developmental delay (Ped Radiol 24: 543, 1994). No specific treatment is available for developmental disorders and ongoing rehabilitative services should be vigorously pursued.

   I have arranged for Austin to be evaluated in pediatric genetics by Dr. Michael Garrity. . . .

   
   

5. Tyler was seen in consultation on September 6, 1996, by Dr. Garrity, who reported the results of his analysis as follows:

   . . . Of note, Austin has been seen in Miami Children's Hospital by neurology, ophthalmology, genetics, and has had an extensive work-up in the past. His work-up has not found a cause for his problems. His work-up included a chromosome analysis which was normal, a FISH analysis for the Angelman/Prader-Willi locus. This was also negative. He has had normal very long chain fatty acids, normal alpha-fetoprotein, normal plasma amino acids, normal urine organic

   acids, the latter showed some minor abnormalities, increased pyruvate acid, glutonic acid, and sebacic acid, this does not suggest any diagnostic patterns to me. He has had DNA analysis for Fragile X which was also normal.

   
   

   * * *

   
   

   My overall impression was that Austin had developmental delay, an abnormal neurological examination. By report an MRI of the brain showed a decreased cerebellum, however there was nothing in my examination to suggest a cause for this problem. In view of the minor abnormalities found previously in his urine organic acids, I repeated urine organic acids which were normal. Repeat plasma amino acids were also normal. Blood was taken for analysis of possible carbohydrate deficient glycoprotein syndrome. I am unable to find a record of this sample, and advise it be repeated.

   
   

   At the present time I do not have a specific diagnosis to explain Austin's problems. Ms. Durand had many questions about the cause of Austin's problems, and I indicated to her that there were many causes of cerebellar hypoplasia [incomplete development] including chromosome abnormalities, environmental and infectious exposures during pregnancy, some biochemical disorders, and also some specific genetic developmental syndromes. I indicated that Austin did not really fit any of these at present, and that without a specific diagnosis, it was difficult to give an exact recurrence risk.

   The dispute regarding compensability

   
   

6. Pertinent to this case, coverage is afforded under the Plan when the claimant demonstrates, more likely than not, that the infant suffered 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 in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes.

7. Here, there is no dispute that Tyler suffered an anomaly in brain development that has resulted in permanent and substantial mental and physical impairment. What is subject to dispute or, stated differently, at issue, is the cause and timing (genesis) of Tyler's brain anomaly or, pertinent to these proceedings, whether the proof demonstrates, more likely than not, that his 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.

8. With regard to such issue, Petitioner is of the view that Tyler's neurologic impairment is related to some event which occurred during the birth process. In contrast, Respondent is of the view that the proof is not consistent with brain injury having occurred during or immediately following birth and must, therefore, be attributable to another etiology (i.e., prenatal injury or a developmentally-based disorder). Respondent's view of the proof has merit.

   The genesis of Tyler's impairment

   
   

9. To address the genesis of Tyler's neurologic

   impairment, the parties offered selected medical records and other documents relating to Ms. Durand's antepartum and intrapartum course, as well as Tyler's birth and subsequent development. Portions of those records have been addressed supra, and further portions will be discussed infra. Apart from such documents, Ms. Durand offered her lay observations, and Respondent offered the deposition testimony of Charles Kalstone, M.D., a physician board-certified in obstetrics.

10. The medical records and other competent proof have been carefully considered. So considered, it must be concluded that the proof fails to demonstrate, more likely than not, that Tyler's 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.

11. In so concluding, it is observed that not one of Tyler's treating physicians attributed the genesis of his impairment to any event which may have occurred during the course of labor, delivery, or resuscitation. Rather, to the extent any of his physicians expressed an opinion as to etiology, they favored a developmentally-based brain disorder as the cause of Tyler's presentation.

12. The clinical evidence also fails to support the conclusion that Tyler's neurologic impairment resulted from an injury to the brain which occurred during the course of birth.4

    In this regard, it is observed that the fetal heart rate was monitored by internal heart monitor until approximately 30 minutes before delivery, and detected no evidence of fetal hypoxia or trauma (whether by umbilical cord compression or otherwise), and Tyler's presentation at birth (with normal Apgar scores, suggesting a vigorous infant) and neonatal course (without evidence of injury or neurologic abnormality) were not consistent with an acutely acquired neurologic injury, and it is improbable that he could have experienced an acute injury during labor and delivery, or immediately thereafter, without evidencing any clinical symptoms of such damage. Conversely, the existence of a prenatally acquired, developmentally-based brain disorder would be consistent with Tyler's presentation at birth and subsequent development.

    CONCLUSIONS OF LAW

    
    

13. 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.

14. 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.

15. 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. 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.

16. 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.

17. 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.

18. 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.

19. As the claimants, 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.")

20. Here, the proof demonstrated that the attending physician who provided obstetric services during the birth of Tyler 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, due to a brain anomaly, Tyler has been rendered "permanently and substantially mentally and physically impaired." Section 766.302(2), Florida Statutes. However, the proof failed to support the conclusion that the anomaly Tyler suffered was caused "by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period." Section 766.302(2), Florida Statutes. Accordingly, the subject claim is not compensable under the Plan. Sections 766.302(2), 766.309(1), and 766.31(1), Florida Statutes.

21. 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 Camilla Durand, as parent and natural guardian of Austin Tyler Durand, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 10th day of December, 1998, 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

Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1998.

ENDNOTES

1/ Petitioner's Exhibits 1 through 18 were among the medical records that accompanied the petition filed with DOAH on September 4, 1997. The records filed with DOAH are identified in the "Index of Documents Included with the Petitioner of Austin Tyler Durand," attached to the petition, and are numbered 1 through 25; however, not all of the records filed with DOAH were offered at hearing. Consequently, the records that were offered were designated Petitioner's Exhibits 1 through 18, and may be identified as follows: Exhibit 1, the affidavit of Dr. Paul Gatewood; Exhibit 2, Dr. Augustino's medical records for Tyler; Exhibit 3, Ms. Durand's lab reports; Exhibit 4, Memorial Hospital West medical records for Tyler and Ms. Durand; Exhibit 5, Fetal Monitor Strips (Memorial Hospital West) for Tyler; Exhibit 6, Memorial Hospital West's medical records for Tyler (2/5/95 to 2/9/95); Exhibit 7, Dr. Tuchman's medical records for Tyler; Exhibit 8, Dr. Brown's medical records for Tyler; Exhibit 9,

Dr. Warman's medical records for Tyler; Exhibit 10, Dr. Geraghty's

medical records for Tyler; Exhibit 11, Dr. Labbie's medical records for Tyler; Exhibit 12, Dr. Bruno's medical records for Tyler; Exhibit 13, Child Health Care Associates' medical records for Tyler; Exhibit 14, Children's Medical Center records for Tyler and Ms. Durand; Exhibit 15, Dr. Schultz's medical records for Tyler; Exhibit 16, Dr. Singer's medical records for Tyler; Exhibit 17, Dr. Cullen's medical records for Tyler; and Exhibit 18,

Dr. Benke's medical records for Tyler. Petitioner's Exhibit 19, which was not among the documents previously filed with DOAH, was the Curriculum Vitae of Dr. Paul Gatewood.

2/ Of Petitioner's exhibits, Respondent only objected to Petitioner's Exhibit 1 (the affidavit of Dr. Paul Gatewood), which Respondent observed was hearsay; however, under Section 120.57(1)(c), Florida Statutes, hearsay is admissible for a limited purpose (to supplement or explain other evidence), but is not sufficient in itself to support a finding of fact unless it would be admissible over objection in a civil action. Based on the limitations of subsection 120.57(1)(c), Petitioner's Exhibit 1 was received into evidence. Notably, it is not subject to a hearsay exception and, considering their inconsistency with the credible proof of record, Dr. Gatewood's opinions are less than credible.

3/ Dorland's Illustrated Medical Dictionary, Twenty-sixth Edition (1985).

4/ The clinical evidence was evaluated by Dr. Charles Kalstone, a physician board-certified in obstetrics, who opined that there was no evidence to support the conclusion that Tyler suffered any trauma or injury during the birth process. Dr. Kalstone's

observations are grossly consistent with the proof and are credited.

COPIES FURNISHED:

Loreen I. Kreizinger, Esquire SunTrust Center, Suite 1150

515 East Las Olas Boulevard Fort Lauderdale, Florida 33301

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

Michael F. Augustino, M.D.

601 North Flamingo Road, Suite 402 Pembroke Pines, Florida 33028

Memorial Hospital West Legal Department

703 North Flamingo Road Pembroke Pines, Florida 33028

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: 97-004165N

Orders for Case No: 97-004165N