STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BRENDA R. MARCH and CHARLES MARCH, )
JR., as parents and natural ) guardians of JOEL J. MARCH, a minor, )
)
Petitioners, )
)
vs. ) Case No. 98-0521N
) 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
June 17, 1998, in Tallahassee, Florida.
APPEARANCES
For Petitioners: Brenda R. March, pro se
Charles March, Jr., pro se 2066 Pernod Court
Apopka, Florida 32703
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 Joel J. March, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
PRELIMINARY STATEMENT
On January 30, 1998, Brenda R. March and Charles March, Jr., as parents and natural guardians of Joel J. March (Joel), 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 February 2, 1998. NICA reviewed the claim, and on March 13, 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 scheduled for June 17, 1998, and heard as scheduled.
At hearing, the parties stipulated to the matters set forth in paragraphs 1 and 2 of the findings of fact. Petitioners, Brenda R. March and Charles March, Jr., testified on their own behalf, and Petitioners' Exhibits 1 through 8 were received into evidence.1 Respondent's Exhibits 1 and 2 were received into evidence. At Petitioners' request, the record was forwarded to the medical advisory panel for its review pursuant to Section 766.308(1), Florida Statutes. The reports of the panel members
(Doctors James B. Perry, A. D. Brickler, and Kay Knight Hanley)
were filed with DOAH on September 16, 1998, September 28, 1998,
and November 19, 1998, respectively.
FINDINGS OF FACT
Fundamental findings
Brenda R. March and Charles March, Jr., are the parents and natural guardians of Joel J. March (Joel), a minor. Joel was born a live infant on June 23, 1991, at Arnold Palmer Hospital for Children and Women (Arnold Palmer Hospital), a hospital located in Orlando, Florida, and his birth weight was in excess of 2500 grams.
The physician providing obstetrical services during the birth of Joel was Jerome Leroy Adams, 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. March's antepartum course and Joel's birth
At or about 1:10 a.m., June 23, 1991, Mrs. March presented to Arnold Palmer Hospital complaining of mild, irregular contractions (approximately 10 or 15 minutes apart and lasting 30 to 40 seconds). At the time, her estimated date of confinement was noted as June 21, 1991, and her antenatal course was without apparent complication.
Mrs. March was admitted to Labor and Delivery Triage (Triage) where examination revealed the membranes to be intact, with no apparent bleeding. Examination further revealed the
cervix to be at 1 centimeter, effacement at 60 percent, and the
fetus at station -1. Fetal heart tone (FHT) was noted as 130 to
140 beats per minute, and reactive.
Mrs. March continued to be monitored in Triage until approximately 5:29 a.m., when she was admitted to labor and delivery. In the interim, at 4:25 a.m., contractions were noted to have increased in frequency (at 5 to 10 minutes apart) and vaginal examination revealed the cervix to be at 1+ centimeters, effacement at 60 percent, and the fetus at station -1. FHT continued at approximately 140 beats per minute and reactive, with occasional variables to 90 or 100 beats per minute for up to
20 seconds, with contractions, and rapid return to baseline.
At 6:31 a.m., vaginal examination revealed the cervix to be at 2-3 centimeters, effacement at 80 percent, and the fetus at station -2. Contractions were noted as mild to moderate, at a frequency of 4 to 9 minutes apart and lasting 60 seconds. FHT was noted as 120 to 140 beats per minute, reactive, and with good variability.
Labor progressed uneventfully through the morning hours, and at 9:37 a.m. Mrs. March was evaluated by Dr. Adams. His examination noted the contractions as moderate, with a frequency of 3 to 7 minutes apart and lasting 60 to 70 seconds; however, no progress was evident on vaginal examination. FHT continued at or about 140 beats per minute, reactive, and with good variability. Slight decelerations were noted to 120 to 130 beats per minute, with contractions, but with rapid return to baseline. At Mrs.
March's request, she was administered Stadol for pain.
Throughout the remainder of the morning, FHT continued to evidence the same pattern of deceleration with contractions; however, at 11:20 a.m. the decelerations became more pronounced, being noted in the 90 beats per minute range for 20 to 30 seconds and returning to a 130s baseline following contraction.
At 12:20 p.m., vaginal examination revealed the cervix to be at 5 to 6 centimeters, effacement at 100 percent, and the fetus at station -1. FHT baseline was noted as 130s, with variable decelerations to 70 or 80 beats per minute, but good return to baseline. Dr. Adams was notified by telephone of Mrs. March's progress, as well as the variable decelerations, and he advised he would attend to rupture the membranes and attach the internal lead. In the interim, Mrs. March was administered oxygen and repositioned.
At 1:05 p.m., Dr. Adams attended and the membranes were artificially ruptured, with meconium stained fluid noted. The internal lead was attached, and a fetal heart tone in the 130 beats per minute range was noted, with occasional variable deceleration to the 70s and immediate return to baseline. At 1:12 p.m., the epidural was placed.
At 1:52 p.m., fetal heart tone variable decelerations to the 90s for 60 to 70 seconds were noted, and Mrs. March was repositioned to the right side. At 1:58 p.m., the progress notes reflect Mrs. March was repositioned to the left side with bolus
of Normasol. Fetal heart tone decelerations were noted to the 70s for 2 to 3 minutes. Examination revealed the cervix at
6 centimeters, effacement complete, and the fetus at station -2. Oxygen via face mask was administered.
The variable deceleration pattern apparently persisted, and at 2:10 p.m. Dr. Adams was given a progress report. In response, he requested that he be notified when the patient reached 8 centimeters.
At 2:22 p.m., examination revealed the cervix to be at
8 centimeters, effacement complete, and the fetus at station +1. A FHT deceleration to 40 to 50 beats per minute for 80 seconds was noted. Dr. Adams was notified of Mrs. March's status and progress.
Dr. Adams examined Mrs. March at 2:30 p.m., and noted the cervix at 9 centimeters, effacement complete, and the fetus at station +1. FHT was noted as 120s. At 2:39 p.m., a deceleration to 40 to 50 beats per minute was again noted, with a return to the 110s after 60 seconds.
At 2:45 p.m., labor was complete, with the fetus at station +2, and Dr. Adams was notified. Fetal heart tones were noted as 50 to 130s.
At 2:50 p.m., Dr. Adams was in attendance and fetal heart tones were noted as 40 to 120s. At 2:55 p.m., Mrs. March began pushing, and fetal heart tones were noted as 60 to 120s. At 3:00 p.m., fetal heart tones were again noted as 60 to 120s,
and a midline episiotomy was performed.
At 3:03 p.m., June 23, 1991, Joel was born. Nuchal cord x 1 was noted; however, cord pH was 7.23 artery, 7.36 venous (normal or, stated differently, not acidotic). Joel was noted as "slightly depressed" at birth, was given free oxygen, incubated, given Narcan 0.3 milligrams, and DeLee suctioned. No merconium was noted below the vocal cords. Apgars of 6 and 9 were assigned at one and five minutes, respectively.
The Apgar scores assigned to Joel 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 Joel's Apgar score totalled 6, with heart rate and respiratory effort being graded at 2 each; muscle tone and reflex irritation being graded at 1 each; and color being graded at 0. At five minutes, Joel's Apgar score totaled 9, with heart rate, respiratory effort, muscle tone, and reflex irritation being graded at 2 each, and color being graded at 1. While "slightly depressed" at birth, as reflected by the Apgar scores assigned by the attending pediatrician/neonatologist, Joel's presentation was otherwise unremarkable and his physical examination following delivery was grossly normal.
Joel was admitted to the nursery at 4:00 p.m., where he
was placed on a radiant warmer. Physical assessment, apart from breathing sounds (which were noted as coarse), was grossly normal, and reflected, inter alia, that the infant was alert (a positive neurologic observation) and active (evidencing good tone); the fontanel were soft and flat; suck, gag, grasp, and startle reflexes were present; respiration was unlabored; heart tones were strong and regular; color was pink; no edema was present; and the head features were unremarkable or symmetrical.
Joel's newborn examination on June 24, 1991, and discharge examination on June 25, 1991, were also grossly normal. Indeed, the only ailment or disorder Joel evidenced during his admission was a "nasal stuffiness," which was addressed with suctioning (with bulb syringe) and saline nose drops. Otherwise, Joel evidenced no distress, fed well, and at 8:00 p.m., June 25, 1991, was discharged with his mother.
Joel's subsequent development
Regarding Joel's early development, the Orange County public schools recorded the following history during a February 10, 1997, interview, as related by Mrs. March:
. . . [Joel] was a healthy neonate and his early development occurred within the normal limits. Ms. March states that Joel's speech is delayed at the present time, however.
Joel has a history of good health with no hospitalizations, serious injuries, or serious illnesses. His hearing and vision are good. At the time of the interview he was five years and seven months old. His appetite is normal. He grinds his teeth in his sleep but sleeps about eleven hours each
night.
Joel does not suffer from any chronic medical conditions and he does not take any medications on a regular basis. He did recently contract scarlet fever, his mother stated, but this infection did not become serious and his physician simply gave him a shot. His last examination by a physician was about one week prior to the interview for the treatment of the scarlet fever.
Mrs. March described Joel as ". . . strong willed." Instructions must be repeated to him before he will comply. Joel has minor disputes with his sister but he enjoys sharing. He relates well with his friends.
Joel makes his own bed but he may need assistance doing this chore. He performs all of his own hygiene, dresses himself, and he taught himself to tie his own shoe laces.
Joel has a fascination with objects that can become airborne. He is also fascinated by circular and spherical objects. He enjoys music and he likes to beat drums. He also enjoys riding his bike, playing with play dough, and playing with balls. . . .
On February 20, 1998, following the filing of Petitioners' claim for compensation in this case, Joel was examined by Michael S. Duchowny, M.D., a physician board- certified in pediatrics, neurology, with special competence in child neurology, and clinical neurophysiology. Dr. Duchowny reported the results of his neurological evaluation, as follows:
HISTORY ACCORDING TO MR. AND MRS. MARCH:
Joel is in first grade at the Lovell Elementary School and has been followed for speech delay. The parents believe that Joel's milestones have consistently been behind age level for both speech and language. His father specifically indicated "problems in communication" and Joel
frequently needs to have instructions repeated. He has trouble following the classroom and recently has a central auditory processing study which could not be completed due to poor cooperation.
Joel is noted to have a slight hearing loss because of recurrent left otitis media. He is on no medications and there has been no recent exposure to toxic or infectious agents.
In review of Joel's MOTOR DEVELOPMENT, revealed a slight delay in that he did not walk until 18 months. He is still having coordination problems in that he has trouble tieing his shoes. However, Joel is able to complete all activities without a problem and he apparently can complete his classroom assignments. There has been no recent exposure to toxic or infectious agents.
* * *
FAMILY HISTORY: The father is 37; the mother is a 34 year old gravida 3 para 3 AB0. Two siblings, a brother age 11 months and sister age 15 years are both healthy. There are no family members with neurodegenerative disorders, mental retardation or epilepsy.
PERINATAL HISTORY: Joel was a product of a good pregnancy born at term at Arnold Palmer Hospital. He apparently required oxygen at birth but had a good birth weight and remained in the nursery only 2 days. Joel is fully immunized and has no recognized allergies. He has never undergone surgery.
PHYSICAL EXAMINATION: Reveals an alert, well developed and cooperative 6 year old right handed boy. The weight is 58 pounds and height 49 inches. Head circumference measures 53.1 centimeters. The skin is warm and moist without neurocutaneous stigmata and there are no digital, skeletal or palmer abnormalities. The neck is supple without masses, thyromegaly or adenopathy and a cardiovascular, respiratory and abdominal examinations are normal.
NEUROLOGICAL EXAMINATION reveals Joel to be alert and cooperative with reasonably fluent speech. He does have poor articulation for lingual and labial consonants but easily identifies body parts and pictures of animals. I thought he was socially interactive and that he clearly functioned at age level despite his language and speech difficulties. Cranial nerve and motor examinations revealed no specific findings although Joel tends to posture the outstretched hands. There is no decomposition of rapid alternating movement sequences and the deep tendon reflexes are 2+ and symmetric. Station and gait are age appropriate. The neurovascular examination reveals no cervical, cranial or ocular bruits and there are no temperature or pulse asymmetries.
IN SUMMARY, Joel's neurologic examination
reveals only evidence of mild speech and language delay. These are quite borderline and overall Joel is functioning within standard percentiles for age. . . .
On April 17, 1998, Joel was evaluated by Frank A. Lopez, M.D., a developmental pediatrician. Dr. Lopez reported the results of his evaluation as follows:
Joel is a patient of Dr. Mirtha Cuevas2 and he is accompanied to the visit today by his mother who serves as primary historian. He was last seen on 09/09/97,3 and at that time a diagnosis of a suspected Central Auditory Process Disorder and Mixed Developmental Language Deficits were provided. He had undergone a cognitive functioning evaluation using the Kaufman Brief Intelligence Test which showed a vocabulary domain of 86, matrices of 93, and an overall composite of
88. The vocabulary and overall composite were felt to be below average with a 90% band of confidence. The matrices placed him in the average domain.
At the last visit, the plan was for him to be referred for a Central Auditory Processing Disorder evaluation at Florida Hospital East and a speech-language assessment to enhance communication and comprehension was also recommended. We requested records from school testing and previous language evaluations, as well as behavioral assessment scales to be obtained and reviewed so that further commentary could be provided. To that request, Joel underwent an evaluation for CAPD at the University of Central Florida's Communicative Disorders Clinic.
Results of that evaluation indicated that
Joel's receptive and expressive skills, as evidenced through the PLS-3, are severely delayed and that his phonological analysis and articulation are also severely delayed, especially with syllable reduction and performance which displayed a severe delay of socialization. Recommendations were made for him to initiate speech-language therapy so that communication can be enhanced.
School testing was carried out by Mr. Jim
Sprat using a Weschler's Intelligence Scale for Children on 03/13/98. This particular intellectual evaluation resulted in a full scale IQ of 57, a performance IQ of 69 and a verbal IQ of 53. This places him in the mild Mental Retardation status. The Woodcock- Johnson Psychoeducational Battery Revised was also administered and showed him to have a broad reading equivalent of 5 years 5 months, psychosomatic of 5 years 4 months and broad written language of 6 years 2 months. Both the reading and mathematics were in the sub- average performance. Oral and Written Language Skills (OWLS) were also obtained and these showed a listening comprehension age equivalent of 3 years 7 months and an oral expression of 2 years 10 months, placing him in the 1% rank with a sub-average performance in both. That evaluation, therefore, indicated that Joel's intellectual functioning was in the very low category of cognitive ability, paraphrasing Mr. Sprat's report. His recommendations were for a staffing coordinator to schedule an ESE
multi-disciplinary team staffing.
It is important to recognize mother's frustration level at this point. She feels that the child is not being looked at in a true sense and that they are only going based on numbers. It is noteworthy that this youngster, who has severe language delay, is being tested with evaluations that place a heavy load on expressive language.
In terms of possible causes, we have presented mother with requests for a further work-up to look at possible causes for his delays and have requested that she obtain records from birth. In reviewing such records, the labor and delivery summary indicated that he had Apgar scores of 6 and 9 at one and five minutes, respectively, and had a cord blood Ph of 7.32. He was intubated and had one loop of nuchal chord.
He was deleed and intubated (difficult) and received oxygen by bag and mask as well.
Physical examination at 24 hours and again prior to delivery did not demonstrate any gross abnormalities. Circumcision having been done prior to his delivery (sic). In terms of post-natal care, he did not require
Neo-Natal Intensive Care Unit support, but he was described as being slightly depressed at birth, given free O2, intubated, given Narcan
.3 mg IM, trachea being suctioned and no meconium below the chords. He was felt to have a normal exam at delivery. We have discussed with mother the need for him to return to Dr. Mirtha Cuevas for continued health maintenance and support. We also recommend a MRI scan, EEG and karyotype, the latter due to the significant delays. Once the aforementioned tests have been obtained, he should follow through with Dr. Michael Pollack, a pediatric neurologist. Last, but not least, is a consideration for a possible medication trial to assist with his level of activity and focusing. This should not be undertaken lightly, but we will wait and see what Dr. Pollack will also recommend.
Further testing in the form of a Non-verbal
Intelligence is suggested such as the TONI for Children or the LEITER Scales.
Physical Examination:
Ht: 4' 1.5" Wt: 57 lbs. Temp: 98.6 BP: 94/58
HR: 88/min RR: 18/min HC: 52.5 cm Head: Normocephalic
Eyes: P.E.R.R.L.A.; Fundi benign.
Ears: Canals are patent. Tympanic membranes intact.
Nose: Nares patent, no discharge
Neck: Supple no significant adenopathy. Throat: Mucosas pink and moist, tongue and uvula in the midline. No evidence of exudate or petechial hemorrhages.
Chest: Symmetric and clear to auscultation bilaterally. No retractions or wheeze noted. Heart: Rhythmic and regular, without murmur, gallop, or click.
Abdomen: Soft and non-tender without palpable masses or hepato-splenomegaly.
Genital/Rectal: deferred.
Extremities: Pulses 2+ and symmetrically distributed. No clubbing, cyanosis, or edema.
Neurological: He is awake, alert and active. Frequent redirection, prompting and good en face presentation of commands were required. Cranial nerves II-XII are grossly intact.
Deep tendon reflexes 2/4 and symmetrically
distributed. Babinski absent and gag was preserved.
Language shows no significant interval change.
Cerebellar: Non-focal. Tone is normal. Bulk is age appropriate and strength is 5/5 in all groups. No evidence of pronator or supinator drift. There was no tilt, titubation, or dysmetria. Motoric impersistence was noted and required frequent prompting and redirection. Easily distracted both visually and auditorily. His fine motor is poorly coordinated and poorly organized (dyspraxia).
Impression:
Suspected Central Auditory Processing Disorder;
Mixed Developmental Language Deficits of the severe type;
Fine Motor Incoordination, Mild.
Plan and Clinical Correlation:
As dictated in the body of this report.
He is to return to Dr. Cuevas for continued general health maintenance and support.
I disagree with Dr. Duchowny's opinion that his language deficits are mild, but rather based upon the testing that was done through UCF at our request, there is significant cause for concern and there is a marked delay across the board. Etiology is undetermined. Certainly the cord Ph of 7.23 is borderline for asphyxia (below 7.2).
It is recommended that the MRI, EEG and karyotype be obtained and a Free T4 and TSH should also be obtained if they have not already been done. Urine metabolic screen, at this point, I do not believe is warranted as he is growing well and has gained weight appropriately.
It is recommended that he undergo an occupational therapy evaluation with therapy to be established for his fine motor activity and hand-eye coordination.
5) [sic] He is to return here in three months for follow-up, sooner if necessary.
The EEG was completed on June 5, 1998, and read by Dr. Pollack, as follows:
IMPRESSION:
This is an abnormal electrocardiogram characterized by abundant generalized spike and wave activity in the waking and drowsy states.
CLINICAL CORRELATION: The tracing raises the possibility of a generalized seizure diathesis.
The MRI (magnetic resonance imaging) and karyotype were also
completed, and their results were normal.
Joel was again seen by Dr. Lopez on June 23, 1998. Dr. Lopez reported the results of this evaluation, as follows:
. . . [Since Joel's] last visit, his EEG has been completed and interpreted by
Dr. Michael Pollack and in paraphrasing his report, which Mrs. March gave to us, indicated the general impression is an abnormal electroencephalogram characterized by abundant generalized spike and wave activity in the waking and drowsy states.
Clinical correlation indicates that tracing raises the possibility of a general seizure diathesis.
Mrs. March . . . has been called by
Dr. Michael Pollack and an appointment has been set up for Joel to see him so that he may make some recommendations for medication treatment and management. . . . I have . . . indicated that I am in full agreement with Dr. Pollack in terms of getting a second opinion regarding the possibility of getting treatment and medication for him.
In terms of Dr. Pollack's visit, it will have to occur after July 1 as he is presently out of the country. In the mean time, mother has also asked about other physicians or pediatric neurologists in town. I have now presented her with the name of Dr. Prashant Desai as well as Dr. Morris Bird as possible places for her to seek a second opinion.
Outside of this generalized area,
Dr. Fernandez at the Department of Pediatric Neurology at the University of South Florida Medical School and Dr. Bernard Demoria at the University of Florida in Gainesville. It appears, after presenting her with this information, that she will pursue a visit with Dr. Demoria.
* * *
In summary, Joel is a youngster who presents a history that is consistent with Motor Incoordination/Dyspraxia, Language
Deficits that also including praxis and processing difficulties, now a possible seizure diathesis as well, with a high level of activity and inattentive behavior.
Etiology for all of these is unclear, but may all be related to birth.
Physical Examination:
Ht: 127 cm Wt: 60.5 lbs. Temp: 97.0 BP: 100/62 using a child cuff on the right arm HR: 96/min RR: 20/min HC: 53 cm
Head: Normocephalic
Eyes: P.E.R.R.L.A.; Fundi benign. Fields full to confrontation.
Ears: Canals are patent. Tympanic membranes intact.
Nose: Nares patent, no discharge
Neck: Supple no significant adenopathy. Throat: Mucosas pink and moist, tongue and uvula in the midline. No evidence of exudate or petechial hemorrhages.
Chest: Symmetric and clear to auscultation bilaterally. No retractions or wheeze noted. Heart: Rhythmic and regular.
Abdomen: Soft and non-tender without palpable masses or hepato-splenomegaly.
Genital/Rectal: deferred.
Extremities: Pulses 2+ and symmetrically distributed. No clubbing, cyanosis, or edema.
Neurological: He is awake and alert. He is under no acute stress. No significant interval change from his last visit. Cranial nerves II-XII are grossly intact. Deep tendon reflexes 1-2+/4 and symmetrically distributed. Babinski is absent and gag was preserved.
Cerebellar: Non-focal. Fine motor praxis unchanged. Language unchanged.
Impression:
Fine Motor Incoordination;
Central Auditory Processing Disorder;
Mixed Developmental Language Delay.
Plan and Clinical Correlation:
As dictated in the body of this report.
He is to return to Dr. Cuevas for continued general health maintenance and support.
He is to return here in six months for follow-up, sooner if necessary.
A follow-up visit with Dr. Michael Pollack is recommended and I concur with the request he made of mother to obtain a second opinion. I think it is always wise to do that, especially in light of the possible
seizure diathesis. In so doing, I have given mother the names of different pediatric neurologists in the area.
In terms of his level of activity and his inattentiveness, if this continues to be a problem for him, in light of the seizure diathesis, stimulant medication needs to be monitored as tightly as possible for an increase in the threshold for seizures. Perhaps consideration of overnight monitoring, i.e., EEG monitoring may be of some benefit in light of there being any witnessed episodes.
I have encouraged both occupational therapy for fine motor praxis and speech- language therapy for his deficits. Oral motor therapy as part of the occupational therapy and sensory integration may also be consideration for him.
Whether Petitioners ever kept Joel's appointment with Dr. Pollack or pursued an appointment with Dr. Demoria is not of record. Moreover, apart from Dr. Pollack's impression of Joel's EEG (Petitioners' Exhibit 1), Petitioners offered no evidence from any treating neurologist or pediatric neurologist concerning their impressions, if any, regarding the nature or cause of Joel's presentation.
The dispute regarding compensability
Given the proof, it cannot be subject to serious debate that Joel suffered an anomaly in brain development that has resulted in neurologic impairment. What remains to resolve is the cause and timing (genesis) of the event which led to Joel's anomaly or, more pertinent to these proceedings, whether the proof demonstrates, more likely than not, that Joel's presentation is consistent with an "injury to the brain4 . . . 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.5 Section 766.303(2), Florida Statutes.
With regard to such issues, Petitioners are of the view that Joel's neurologic impairment must be related to some event which occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period. Essentially, Petitioners postulate that since the only trauma (stress) Joel was known to suffer occurred during the course of his birth, his impairments must be birth-related. (Transcript, page 10.) In contrast, Respondent is of the view that the proof is not consistent with neurologic injury having occurred during or immediately following birth, but is consistent with a developmentally based disorder.
The genesis of Joel's impairment
To address the genesis of Joel's neurologic impairment, the parties offered selected medical records and other documents relating to Mrs. March's antepartum and intrapartum course, as well as Joel's birth and subsequent development. Portions of those records have been addressed supra, and further portions will be discussed infra. Apart from such records, the parents (Petitioners) offered their lay observations, and requested that the matter be reviewed by the medical advisory panel, established pursuant to Section 766.308(1), Florida Statutes. Consistent with that request, the matter was reviewed by the medical advisory panel, and the reports of its members, including their
opinions as to whether Joel suffered a "birth-related neurological injury," have been filed of record. Finally, to address the genesis of Joel's impairment, Respondent offered the observations of Michael S. Duchowny, M.D., a physician board- certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology.
The medical records and other documentary proof, as well as the observations of the members of the medical advisory panel and Dr. Duchowny, have been carefully considered. So considered, it must be concluded that the proof is less than compelling that Joel'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. Rather, given the proof, it is most likely that Joel's impairment resulted from an anomaly in brain development, as opposed to brain injury.
In so concluding, it is observed that not one physician who was called upon to offer an opinion regarding the genesis of Joel's impairment related it to any event which may have occurred during the course of labor, delivery, or resuscitation.6 Moreover, while Joel certainly was subjected to stress during the course of labor and delivery, his presentation at birth (with good Apgar scores and pH values) and his neonatal course (without evidence of abnormality) were not consistent with an acutely
acquired neurological 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 Joel's presentation at birth and subsequent development.
CONCLUSIONS OF LAW
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.
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.
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.
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.
In discharging this responsibility, the administrative law judge must make the following determination based upon the available evidence:
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).
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.
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.
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.")
Here, it has been established that the attending physician who provided obstetrical services at Joel's birth 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 Joel suffered neurologic impairment as a result of a brain disorder. However, the proof failed to
demonstrate, more likely than not, that Joel's 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." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Rather, the proof demonstrated that the cause of Joel's impairment was more likely developmental in origin (an anomaly in brain development) that was acquired prenatally.
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.
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 Brenda R. March and Charles March, Jr., as parents and natural
guardians of Joel J. March, a minor, be and the same is hereby denied.
DONE AND ORDERED this 7th 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 7th day of December, 1998.
ENDNOTES
1/ Petitioners' Exhibits 1 through 6 were received into evidence at hearing, and Petitioners were accorded 30 days from hearing to file any further reports addressing Joel's condition. On July 17, 1998, Petitioners filed two further reports, which were marked Petitioners' Exhibits 7 and 8 and received into evidence. See Orders of June 17, 1998, and August 4, 1998.
2/ Apparently, Dr. Cuevas is Joel's pediatrician. Dr. Cuevas did not testify, and none of her records were offered.
3/ The records regarding the 09/09/97 visit were not offered.
4/ Coverage is also accorded under the Plan for an injury to the spinal cord of an infant which results in permanent and substantial mental and physical impairment; however, there is no claim or evidence of spinal cord injury in this case.
5/ Also at issue is whether, if such an injury occurred, Joel was rendered "permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. See also Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearings, 686 So. 2d 1349 (Fla. 1997) (In order to obtain coverage under the Plan, the infant must suffer both substantial mental and substantial physical impairments, and it is insufficient that the infant suffer only substantial impairment, mental or physical.) However, since resolution of the issue regarding the genesis of Joel's brain anomaly is dispositive of the claim, it is
unnecessary to address the significance (magnitude) of Joel's mental or physical impairment.
6/ Regarding Joel's impairments, Dr. Lopez observed that the "[e]tiology of all of these [problems] is unclear, but may all be related to birth." Such observation falls far short of an affirmative opinion concerning causation that is based on reasonable medical certainty. The members of the medical advisory panel (Doctors James B. Perry, A. D. Brickler, and Kay Knight Hanley) also failed to connect Joel's impairments to any event which occurred during labor, delivery, or resuscitation.
Dr. Perry concluded that "I have no way of assessing the problem as occurring at or during the course of labor or immediately after; or being a developmental abnormality totally unrelated to the birth itself." Another panel member, Dr. Brickler, observed that:
The records indicate that he was the product of a full term pregnancy. The labor was uncomplicated. At the time of delivery, the amniotic fluid was found to be stained with meconium. For this reason, high-risk nursery personnel attended the birth to make sure that Joel had not aspirated any of this material. There was no apparent evidence of significant aspiration. Apgar scores were good as were cord pH values. He left the hospital on the second day with no abnormal findings.
After this review, I do not find any evidence of a birth-related injury.
The third panel member, Dr. Kay Knight Hanley, observed that: After reviewing the medical records of Joel
J. March, the records indicate a full term pregnancy. Apgar scores were good as were cord pH values, with no apparent evidence of significant aspiration.
I find no evidence of birth-related injury.
Finally, Dr. Duchowny was of the opinion that Joel's impediments were "not in any way related to loss of oxygen or physical trauma occurring during labor, delivery or the immediate postnatal period," but rather, are "developmentally based, meaning that they are simply a function of how his brain has matured and that they do not represent the consequences of damage, per se."
COPIES FURNISHED:
Brenda R. March, pro se Charles March, Jr., pro se 2066 Pernod Court
Apopka, Florida 32703
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
Jerome Leroy Adams, M.D.
101 West Kaley Street Orlando, Florida 32806-3938
Arnold Palmer Hospital for Children and Women
1414 South Kuhl Avenue Orlando, Florida 32806
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.
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 07, 1998 | DOAH Final Order | Proof failed to demonstrate that brain disorder resulted from injury associated with oxygen deprivation or mechanical injury which occurred during the course of birth or immediately thereafter. |
| Dec. 07, 1998 | DOAH Final Order |
