STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MONIQUE A. CAMPBELL and GREGORY P. )
CAMPBELL, as parents and natural ) guardians of DILLON CAMPBELL, a ) minor, and NOLAN CAMPBELL, a minor, )
)
Petitioners, )
)
vs. ) Case No. 00-0027N
) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )
)
Respondent, )
)
and )
) HCA HEALTH SERVICES OF FLORIDA, INC., ) d/b/a BLAKE MEDICAL CENTER; JAMES S. ) ALBIN, M.D., and WOMEN'S HEALTH ) ASSOCIATES OF MANATEE, P.A., )
)
Intervenors. )
)
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings, by Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on July 18, 2000, in Tampa, Florida.
APPEARANCES
For Petitioner: Joel S. Cronin, Esquire
Romano, Eriksen & Cronin Post Office Box 21349
West Palm Beach, Florida 33416-1349
For Respondent: W. Douglas Moody, Jr., Esquire
Graham, Moody & Sox P.A.
101 North Gadsden Street Tallahassee, Florida 32301
For Intervenor HCA Health Services of Florida, Inc., d/b/a Columbia Blake Medical Center:
Richard K. Bowers, Jr., Esquire Fowler, White, Gillen, Boggs,
Villareal & Banker, P.A. Post Office Box 1438 Tampa, Florida 33601
For Intervenors James S. Albin, M.D., and Women's Health Association of Manatee, P.A.:
Ralph L. Marchbank, Jr., Esquire Post Office Box 3979
Sarasota, Florida 34230 STATEMENT OF THE ISSUE
At issue is whether Dillon Campbell, a minor, is permanently and substantially physically impaired.
PRELIMINARY STATEMENT
On January 5, 2000, Monique A. Campbell and Gregory P. Campbell, as parents and natural guardians of Dillon Campbell and Nolan Campbell, minors, 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".) By Order of February 9, 2000, Petitioners' motion for leave to file an amended petition on behalf of
Dillon Campbell, a/k/a Twin A and to exclude any reference to Nolan Campbell, a/k/a Twin B was granted.
The Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") was served with a copy of the initial claim on January 6, 2000, and was served with a copy of the amended claim on February 3, 2000. By Order of February 10, 2000, the petitions for leave to intervene filed on behalf of HCA Health Services of Florida, Inc., d/b/a Columbia Blake Medical Center (HCA), and James S. Albin, M.D., and Women's Health Association of Manatee, P.A. (collectively referred to as Dr. Albin), were granted.
NICA reviewed the claim, and on February 21, 2000, 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." Such a hearing was duly scheduled for July 18, 2000, to address the limited issue of whether Dillon was permanently and substantially physically impaired.
At hearing, the parties stipulated to the factual matters set forth in paragraphs 1 and 2 of the Findings of Fact. The parties also agreed that Petitioners' Exhibits 1A through 1E, 1G, 1H, and 1J through 1S; Respondent's Exhibits 1 and 2; HCA's
Exhibit 1; and Dr. Albin's Exhibits 1 and 2, be received into evidence. No witnesses were called, and no other exhibits were offered.1
Given the parties' stipulated record, they agreed that any further record of the proceeding (i.e., a transcript of the
hearing) was unnecessary. Consequently, the parties were initially accorded 10 days from the date of hearing to file proposed final orders; however, at Respondent's request, the time for filing proposed final orders was subsequently extended to August 4, 2000. Given such extension, the parties waived the requirement that a final order be rendered within 30 days of the date of hearing. Rule 28.106.216(2), Florida Administrative Code. Respondent, as well as Intervenors HCA and Dr. Albin, filed proposed final orders, and they have been duly considered.
FINDINGS OF FACT
Fundamental findings
Monique A. Campbell and Gregory P. Campbell are the parents and natural guardians of Dillon Campbell (also referred to as "Twin A" in the medical records), a minor. Dillon was born a live infant on November 18, 1996, at HCA Health Services of Florida, Inc., d/b/a Columbia Blake Medical Center (Blake Medical Center), a hospital located in Bradenton, Florida, and his birth weight exceeded 2500 grams.
The physician providing obstetrical services during Dillon's birth was James S. Albin, 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. Women's Health Associates of Manatee, P.A., was at all times material hereto, Doctor Albin's professional association.
Coverage under the Plan
Pertinent to this case, coverage under the Plan is available 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.
Here, Petitioners and Respondent were of the opinion that it was unlikely that the proof would support the conclusion that Dillon was permanently and substantially physically impaired and suggested, given the Plan requirement that the infant suffer both substantial mental and physical impairment for coverage to be afforded by the Plan [Florida Birth-Related
Neurological Injury Compensation Association v. Florida Division
of Administrative Hearings, 686 So. 2d 1349 (Fla. 1997)], that
Dillon's physical presentation be addressed initially, with the view that unnecessary expense might be avoided in resolving the claim. Given the circumstances, it was resolved to bifurcate the issue of physical impairment from the other issues that would also have to be resolved were coverage to be accepted (i.e., the cause and timing of Dillon's brain injury, as well as whether he was also rendered permanently and substantially mentally impaired.) In this case, the proof supports Petitioners' and Respondent's view of the record that Dillon's physical impairments are not substantial, and it is unnecessary to reconvene to take proof with regard to any other issue on the claim.
Dillon's birth and subsequent development
Dillon was born at 3:28 p.m., November 18, 1998, at Blake Medical Center, and by 6:25 p.m., on the orders of Alberto Soto, M.D., was transferred to Manatee Memorial Hospital
for neonatal intensive care. Dillon's birth and subsequent care at Manatee Memorial Hospital were described by Dr. Soto in his discharge summary, as follows:
SUMMARY OF NURSERY STAY: Dillon Campbell was a newborn infant born at Columbia Blake Hospital on November 18, 1996. I was called to Blake Hospital for an emergency cesarean section that was being performed on Monique Campbell. She had twin gestation and it was noted that twin A [Dillon] had a decrease in
fetal heart rate and also developed a non- reassuring strip and because of that emergency cesarean section was being undertaken.
In the operating room, a quick check by one of the nurses could not [detect] heart tones on twin A . . . . On extraction, [twin A] had no pulse and no respiratory effort.
Full cardiopulmonary resuscitation was started with positive pressure ventilation and cardiac compressions. The baby was intubated through endotracheal tube and given Epinephrine through the endotracheal tube as well as per the resuscitation protocol. At first Epinephrine dose got the heart rate to about 80 beats per minute; a second dose was given and that got us to a normal count of above 100. This was achieved at about 2 minutes of age. At that point, there still was no respiratory effort. The first attempt of the baby to breathe were observed at about 6 minutes of age. These appeared to be more like gasping than true breaths. Normal easy respiration's were seen at about 11 minutes of age. As part of our resuscitation, Plasmanate was given intravenously because of low blood pressure and slow capillary refill. Blood sugar was checked by chem strip; this was also low so a bolus of D10W was given IV push; these boluses were given by an umbilical venous catheter which was placed as part of resuscitation measures.
After those two things were given, an umbilical arterial catheter was placed also. [Apgars were 1 at one minute and 3 five minutes.]
I had done an initial venous blood gas from the umbilical vein and this showed a pH of 6.95, a pC02 of 80. Because it was done so quickly from the umbilical vein, I am assuming that this would be the equivalent of a cord blood venous gas.
The first arterial blood gas has pC02 of 7.06, after which we gave sodium
bicarbonate. Once we settled him in the nursery, we repositioned the tubes both endotracheal, oral gastric, and umbilical artery catheters. The blood sugar dropped again so a second bolus was given.
Intravenous fluids were raised and increased from 7 cc per hour to 15 cc per hour of 10 percent Dextrose. A second dose of sodium bicarbonate was given. We gradually had a rising pH. The second pH was 7.32 and the third pH was 7.43. I then went on to get more routine labs and started antibiotics.
On visual inspection of the twins, I saw that this baby looked ruddy or plethoric and that the other twin had looked pale. This made us suspect a twin to twin transfusion. I also contacted the Neonatal Intensive Care Unit at Manatee Memorial Hospital for transfer.
Part of our initial physical assessment on Dillon was that there was . . . generalized edema noticed mostly at the posterior and all other parts of the body were also puffy. The abdomen appeared distended which we felt was possibly due to ascites but x-rays did not show evidence of that. Overall, we did not see any stigmata of genetic abnormalities or birth defects. No overt seizure activity was noted at Blake Hospital although we did observe a degree of obtundation. The baby was transferred then to Manatee Memorial Hospital for Neonatal Intensive Care as the baby was still on the respirator, suspected cause was a twin to twin transfusion with possibility of hydrops non-immune type.
Other than the blood gases, additional laboratory analysis findings at Blake had an liver enzymes that were abnormally high, ALT was 231, AST was 935, and LDH was 2281.
This was right after birth. Another unusual finding was that the laboratory reported a creatine kinase isoenzyme that is very rare. They found a mitral chondral CK isoenzyme
which has been reported only on a handful of babys throughout the world. It seems to be, according to my research, originated in either the liver or the heart and so far in the handful of babys that have been described with this macro C2 creatinine kinase there seems to be no long-term sequelae. The official report on the x-rays from Blake Hospital have pleural effusion on the right and possible ascites. At about 2015 hours over at the Neonatal Intensive Care Unit we noticed some suspicious tongue thrusting movements with tremors, we considered it a possibility that it might be seizure activity and treated it as such with Phenobarbital. It was a brief episode but we knew that this baby was at risk for seizures so we went ahead and started loading the baby with Phenobarb dose of 30 milligrams.
X-rays had showed that the umbilical arterial line was low. I had come back shortly after midnight and replaced the umbilical lines now with good placements for high lines. I stayed with the baby further because of acuity at 0220 hours, we observed movements of arms and posturing of the legs; this was more typical of seizure activity and Lorazepam was given for this episode.
Further dose was required at 0355 hours. Shortly thereafter, the baby[']s blood pressure started to come down at 0435 hours [and] we started Dopamine drip which was able to maintain a normal mean arterial blood pressure. I was at the baby[']s bedside on and off throughout the night up to about 0500 hours.
The day after the admission, we had no[] tonic or clonic activity but still an occasional fasciculation of the tongue was seen; these kinds of autonomatism are very difficult to control. We were getting also brown, thick secretions from the endotracheal tube which were suspicious of either pulmonary hemorrhage or pulmonary
edema. We continued to fine tune treatment for the seizure activity because shortly after 1600 hours, we saw another small episodes of what could [be] tonic activity of one of the arms. Tongue thrusting continued on and off. The nurses had mentioned what they called cogwheel motion of arms. The baby was now on Phenobarbital, Dilantin and p.r.n. Ativan.
We continued trying to determine if there are any other causes of all this symptomatology. We did TORCH titers, chromosome analysis and electroencephalogram. The electroencephalogram to my eyes was abnormal and consistent with deep seizure activity.
Initially on admission, the mother had told me that her brother was a "bleeder".
Eventually, we were able to find the actual charts on him and found him to have had a subacute type of idiopathic thrombocytopenia; this should not be an issue for these infants.
During the baby[']s second day of stay, I had the ophthalmologist examine him. He had seen retinal hemorrhages and suggested coagulation studies which were done; these were abnormal an we started the baby treating him as DIC, that included fresh frozen plasma, cryoprecipitate and intravenous gamma globulins. That day #2, we had two episodes of seizure activities that was treated with intravenous Ativan.
By day #3, the respirator was down to minimal settings, the oxygen was 25 percent only and the mechanical respirations were only 15 breaths per minute. X-rays already did not show any pleural effusions although the monogram of the abdomen did still reveal small effusions present. Still on Dopamine drip, we occasionally had myoclonic movement of the arms and legs and occasional small episodes of seizure activity. The DIC was still being treated by twice a day
cryoprecipitant plasma. Also one transfusion of platelets was required.
On day three, we did not give any more platelets but he did get one transfusion of fresh frozen plasma and one of cryoprecipitant and with one infusion of intravenous gamma globulin.
The baby was still on Dopamine drip for low blood pressure and by the early morning of day number four, we were able to start cutting back on the Dopamine dosage.
We had during day #4, labile blood pressures, we had to adapt and adjust with the Dopamine drip going up and down according to the measurements that we were getting. Late that evening, about 2000 hours, he had another seizure activity with sucking motions and jerky movements also blinking of the eyes. The left leg was rigid and arms were also
clonic. We adjusted Phenobarbital level because the level was 27. Platelet count that day was 78.
On day #5, we had mild metabolic alkalosis with mild C02 retention. The cardiac echo was reported as normal. The generalized edema was slightly improved, had a 15 second episode of seizure activity. Platelets were found to be low so full DIC profile was repeated. Platelets were ordered and given transfusion. Also repeat doses of cryo and FFP added as well.
On day 6, blood levels of Phenobarbital were at 22 and Dilantin was 26. After the transfusion, the platelet count was now 98,000 and held both the Phenobarb and the Dilantin.
On days 6, 7, and 8, no seizure activity was reported. We tried him on continuous
positive airway pressure on day #8, hence we tried to wean him off the ventilator.
In the late evening, day 8, into day 9, we transfused with platelets again because platelet count had dropped to 36,000. On day 9, we tried him off the respirator and extubated him at 1350 hours, started on oxygen by hood. The electroencephalogram was repeated and still was abnormal.
By the early morning hours of day 10, we were able to get him completely off oxygen. Still no overt seizure activities once we had held the medications.
By day 11, we were able to see that he had lost peripheral edema, no apneas were noted and no seizures either.
By day #12, nurses were commenting that he looked more awake and on my physical examination, the only other thing I noted was that there is still neuromuscular irritability as evidenced by increased and clonus beats although they were symmetric. Extensor tone still also was slightly increased. On day #12, I removed the umbilical lines and started oral feedings. On days 13 and 14, we had him on 1/2 strength Nutramigen feeds by tube.
Platelets counts were on the lower range of normal at 53 and 55,000. No overt seizure activity was noted but occasionally the nurses would still comment on tremors and occasional mild irritability.
On day 15, I switched him to 1/2 strength Enfamil feeds, platelet count was still 53, the number of clonus beats at the ankles was normal but the deep tendon reflexes were still brisk. Again, no asymmetries were noted, no dystonias were noted either. On day 16, the platelet count was 91,000 and beyond that it was always above 100,000.
Gradually, he started to tolerate feeds better.
On day #16, he nipple fed all his feeds. We advanced him to full strength feeds and got him into an open crib. We did a hearing screen which he failed on both ears.
On December 7, which was day #19, I repeated the[] DIC profile one more time and this time everything was normal. The blood counts including white blood cells and platelet counts were normal. The chemistry panel done that included liver enzymes were also fully normal.
The baby was then discharged at 1600 hours on December 7, 1996, to the parents, told to be followed in about a week with the pediatrician.
DISCHARGE PHYSICAL EXAMINATION: Discharge
weight 5 pounds and 5.3 ounces. . . DISCHARGE VITAL SIGNS: Temperature 98.7,
pulse 136, respirations 36.
GENERAL APPEARANCE: Strong and vigorous. HEAD, EYES, EARS, NOSE AND THROAT: Anterior
fontanel is flat, sutures feel normal to palpation. Examination of the eye grounds have good red reflexes bilaterally. There is no sign of nasopharyngeal infections, both nares are patent. There is no cleft of lip or palate. No signs of any congenital abnormalities or genetic traits.
NECK: Good range of motion. Clavicles intact to palpation without callus formation. No lymph nodes palpable. No masses, no goiter.
CHEST: Breathing effortlessly in room air. HEART: No murmurs.
LUNGS: All lung fields clear. ABDOMEN: No organomegaly, no abnormal masses. Belly is soft and not tender.
GENITALIA: Normal newborn male. Both testes palpable. The meatus is well placed.
ANUS: Patent and well placed. EXTREMITIES: No hip clicks.
NEUROLOGICAL: Get the impression, the baby[']s muscle tone is normal now which was true since about day 16. The deep tendon
reflexes are still slightly brisk but there is no other evidence of neuromuscular irritability; for example, clonus beats at ankles are normal in terms of numbers and they are symmetric. Cannot detect any asymmetries in muscle tone nor in any of the reflexes. I do have a good Moro reflex, good Perez, and Galant reflexes with again no asymmetries, good placing and stepping reflexes with no focal findings.
DISCHARGE DIAGNOSIS: Full term twin born by cesarean section. Cardiorespiratory arrest at birth. Hypoglycemia. Non-immune hydrops. Hypocalcemia. Hypokalemia. Low Apgar scores. Neonatal seizures.
Hypothrombocytopenia. Disseminated intravascular coagulation. Feeding problems of the newborn. Apnea.
PLAN: Discharged to the parents as noted above with follow-up Dr. Alfredo A. Giangreco.
COMMENT: Areas that need follow-up:
We need to repeat the hearing screen as the baby[']s hearing screen at discharge failed both ears.
Long-term follow-up purposes should also include neuro developmental evaluations preferably by a pediatric neurologist; this may or may not include repeat electroencephalograms. This of course to be left up to the judgment of the pediatric neurologist.
Perhaps a repeat monogram of the brain is warranted since the healing stages of any incidence before birth and after birth may not be visible on sonography of the brain until 6 to 8 weeks of age.2
Following discharge, Dillon was followed by
Alfredo Giangreco, M.D., or other pediatricians associated with his practice. The medical records related to Dillon's first visit on December 12, 1996, reflect an alert, active 3-week-old
infant in no apparent distress, with good Moro-suck, and good muscle tone or, stated otherwise, no hypertonia. Dillon's subsequent visits at 1 month of age (December 26, 1996), 2 months of age (January 17, 1997), and 3 months of age (February 19, 1997) were likewise unremarkable except that his 3-month visit reflects a clinical observation that his head was microcephalic (an abnormal smallness of the head.) Apart from the microcephalia, Dillon's remaining visits were unremarkable until his visit at 7 months of age (June 18, 1997), when the doctor noted a spastic paresis of the left arm and hand, as well as both legs. At the time, the parents disclosed that they planned to move to Rhode Island in 4 days, and the doctor recommended a follow-up on such findings and reminded them of the importance of a hearing evaluation (the parents had failed to pursue following Dillon's discharge from Manatee Memorial Hospital.)
Following the family's move to Rhode Island, Dillon came under the primary care of Roxanne Simmons, M.D., a board- certified pediatrician. On her initial examination of March 11, 1998, Dr. Simmons noted "symmetrical decreased strength throughout all four extremities," as well as expressive language delay with disarticulation. Given the "global issues," which included microcephalia, Dr. Simmons referred Dillon to Dr. Maria Younes, a pediatric neurologist and, given his speech delay,
referred Dillon for a hearing assessment. Dillon was also referred to the Earl Intervention Program for assessment, and occupational and physical therapy, as needed, to address his speech, language, and/or oral-motor delays.
Dr. Younes' evaluation of Dillon will be discussed infra. As for Dillon's hearing assessment, testing on April 2, 1998, revealed a "moderate (probably conductive) hearing loss." Following that test, Dillon had "tubes inserted [in his ears]" by Dr. Blat, on referral by Dr. Simmons, and further assessment on July 13, 1998, found his "hearing is developmentally adequate." Dillon also received occupational and physical therapy through the Early Intervention Program with good results, as noted infra.
Dr. Simmons continued to provide primary care for Dillon, and saw him as recently as June 9, 2000. As of that date, Dr. Simmons noted that Dillon now evidenced good strength in his extremities and no gross motor deficits. As for his fine motor skills, Dr. Simmons offered no opinion, and deferred to others more appropriately suited to make such an assessment. Currently, according to Dr. Simmons, the issues now confronting Dillon are behavioral, as evidenced by his aggressive character (otherwise described as an attention deficit, hyperactivity disorder,) and continued delay in his expressive language with disarticulation. As for any relationship between Dillon's
current presentation and any injury to or anomaly in brain development, Dr. Simmons deferred to Dr. Younes. (Dr. Albin's Exhibit 1, pages 30 and 31.)
Dillon's neurologic assessments
Dillon was first seen by Dr. Younes on June 2, 1998.
At the time, Dr. Younes noted the mother's concerns regarding his speech and language delays, a perceived mild delay in fine motor skills, and a possible mild left hemiparesis (a muscular weakness or partial paralysis affecting the left side of the body); however, Dr. Younes' examination did not reveal any significant difference in his muscle tone or the strength in his extremities. Nonetheless, Dr. Younes noted a working diagnosis of left hemiparesis and developmental delay and, given Dillon's microcephaly, his mother's concerns, and Dillon's birth history, ordered an MRI of the head.
The MRI examination occurred on June 26, 1998, and the results of that examination were reported as follows:
Axial T2 and FLAIR images demonstrate confluent hyperintense white matter signal abnormality predominantly involving the periatrial white matter of the bilateral cerebral hemispheres. In addition, there is periventricular white matter signal abnormality involving the bilateral frontal periventricular white matter, left greater than right. The MR imaging appearance is most consistent with periventricular leukomalacia.
No evidence of hydrocephalus. No evidence of intracranial hemorrhage, mass, or midline shift. Normal vascular flow voids are present.
IMPRESSION: MRI EXAMINATION DEMONSTRATES EXTENSIVE WHITE MATTER HYPERINTENSE SIGNAL ABNORMALITY PREDOMINANTLY INVOLVING PERIVENTRICULAR WHITE MATTER BILATERALLY. GIVEN THE CLINICAL HISTORY OF PERINASAL [SIC] ASPHYXIA, THE PATTERN IS MOST CONSISTENT WITH PERIVENTRICULAR LEUKOMALACIA.
As read, the MRI results are consistent with an abnormality in brain development associated with prematurity or a brain injury associated with hypoxic insult.3
Following receipt of the MRI results, Dillon was further evaluated by Dr. Younes on August 23, 1999, and April 3, 2000. Based on her multiple examinations, Dr. Younes offered the following observations with regard to the physical impairments Dillon manifests, which she perceives are related to his periventricular leukomalacia:
Q. I would ask you, of course, as you respond to questions that I put to you about this child's condition and the way you found him on April 3, 2000, if you need to draw upon your knowledge of him gained from August 23rd of 1999, 6/2/98, or certainly any tests that you ordered or information that you received such as from the school psychologist, that kind of thing.
A. Yes. He was now three years and a half. Because school takes over services at age 3 here in Rhode Island, he had had a complete evaluation from Lincoln School Department,
and he was found to have delays in his speech and language, occupational therapy, the most concerning a low IQ. IQ is 67.4
* * *
Q. With regard to the speech impairment that Dillon Campbell has, do you have an opinion as to whether there is an element of motor dysfunction or motor deficit that is either causing or contributing to the child's speech deficit?
A. He does have articulation problems, but he also has basically both expressive and receptive language delays.
Q. Is the child's speech -- is the child's speech deficit permanent and substantial?
A. He will continue to improve. He will be getting speech and language therapy, so some of these things will improve with time.
Also as he continues to develop, he will continue to improve. Eventually his output could be very good, but his receptive language may be impaired long term.
Q. At the current time, however, clearly the speech impairment that he has is now substantial?
A. Yes.
Q. Are you able to say to a reasonable medical probability that his speech impairment will completely abate, completely go away, or will there always be some speech impairment?
A. There will always be some speech impairment -- impediment.
* * *
Q. Are you able to at this point, based upon the information you have, give an
opinion held to a reasonable medical probability with regard to whether this child for sure does have or doesn't have impairments of fine motor skills?
A. He has impairment of fine motor skills.
Q. Do you believe that the impairment that he has of fine motor skills are substantial?
A. No.
Q. Do you believe that the impairments that he has in fine motor skills, if they do not get better, will affect him in later life?
A. No.
* * *
Q. How has the periventricular leukomalasia affected this child in terms of his physical being outside of the brain?
* * *
Q. Has it affected or contributed to his speech deficit?
A. Yes.
Q. In what way has the . . . periventricular leukomalasia affected this child's speech?
A. Significantly. I think the periventricular leukomalasia will be most significant for this child in the areas of cognitive ability. He is mentally retarded and his speech and language. His fine motor and gross motor will be fine.
Q. In terms of periventricular leukomalasia that this child suffers from, is that periventricular leukomalasia consistent with speech difficulties that are motor related, motor function related?
* * *
A. Speech and language requires a lot of different parts of the brain, the left hemisphere, and it has a lot of different components, and the motor component to the ability of articulating words, he has a problem in that area; but he also has a problem understanding language and also expressing himself.
* * *
Q. Are you able to give an opinion as to how much of the child's speech problem or speech impairment is related to motor deficiency versus cognitive deficiency?
A. It's a combination of both, but the cognitive is probably a greater component.
* * *
Q. The articulation problem that Dillon has, you indicated I believe that there could be several causes to it; is that correct?
A. Yes.
Q. One could be a cognitive dysfunction?
A. Yes.
Q. And the other could be a motor dysfunction?
Q. Yes.
Q. If I understand correctly, when asked by Mr. Marchbank, you said more likely than not it was more cognitive than motor; isn't that true?
* * *
A. I said it is a component of both, that most likely the articulation may improve with time, but the cognitive part may persist.
Q. At the present time, what if anything do you find to enable you to continue, if you do, with the diagnosis of left hemiparesis?
A. Could you ask the question again?
Q. Yes. What is it in his physical condition right now that you have determined by examination that Dillon still has a persistent left hemiparesis?
A. I don't think that's significant. I think it's only been picked up by an occupational therapist, by the mother after a lot of observation of her child, but not something that you could pick up just by looking at him.
Q. In fact, in your examination of him when you see him grossly, it would appear to you that he has no gross motor impairment; is that true?
A. Exactly.
Notably, Dr. Younes was not requested to address and offered no opinion as to the gravity of Dillon's behavior disorder (also referred to as attention deficit, hyperactivity disorder), or whether there was any causal relationship between such disorder and the periventricular leukomalacia he suffered.
In addition to Dr. Younes' evaluation, Dillon's neurologoic status was also assessed by Michael Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital.
Dr. Duchowny's examination occurred on February 17, 2000, and he reported the results of his evaluation as follows:
HISTORY ACCORDING TO MRS. CAMPBELL: Dillon
is a 3 year old right handed boy who is one of monozygotic twins. The family resides in Lincoln, Rhode Island. Mrs. Campbell began by explaining that Dillon is a "very loving child" and that he has been "making progress and wants to learn". His major difficulty centers over speech delay. He can communicate in single words, but the words are poorly articulated.
Dillon has been working in speech therapy at the Fairlawn Early Learning Center where he is in a secluded classroom. He receives speech therapy once a week, as well as occupational therapy on a weekly basis.
Mrs. Campbell also indicated that Dillon "has sensory stuff". She feels that he does not listen and is very active. She went on to express that Dillon is extremely aggressive and will throw things, have temper tantrums and bite indiscriminately .
. . . The teachers have not yet recommended medication for his behavior, but Mrs.
Campbell feels that this is likely in the near term . . . .
Dillon's coordination has been a problem, in that he has had trouble walking up stairs.
These difficulties have apparently resolved. His vision is good and his hearing has been tested on multiple occasions because he has bilateral tubes . . . .
FAMILY HISTORY: The father is 31; the mother is a 30 year old, gravida 3, pare 4, ABO. A 13 year old brother and 16 year old sister are healthy. There is a strong family history of mental illness. The father suffers from depression, anxiety and an obsessive/compulsive disorder for which he takes Paxil and Xanax. A maternal
brother suffers from a bipolar disorder and has a spinal cord injury. He also has been diagnosed as having borderline schizophrenia. The mother's family background is from Portugal. There are no family members with neurodegenerative illnesses or spinocerebellar ataxia. There is no history of familial dementia.
Dillon had a single febrile seizure, but was not . . . been treated with medication.
PRE- AND PERINATAL HISTORY: Dillon was the product of a 38-week gestation at Blake Memorial Hospital. His delivery was by emergency caesarean section and he required immediate resuscitation. His birth weight was 5-pounds, 15-ounces and he remained in the nursery for 19 days. He had recurrent seizures which were treated with 3 anti- epileptic drugs including phenobarbital and Phenytoin.
GROWTH AND DEVELOPMENTAL MILESTONES: Dillon
did not sit up until 8 months. He stood at
11 months and walked at 18 months. Dillon began saying single words at 15 months. He is not yet toilet trained. Dillon is fully immunized, has no significant allergies and has never undergone surgery.
PHYSICAL EXAMINATION reveals Dillon to be an alert, but extremely active well proportioned child. His weight is 26-pounds and height 34-inches. Dillon's head circumference measures 46.8 cm, which is below standard percentiles for age matched controls and approximates the 50th percentile for age 15 months. The hair is brown and of normal texture. There are no cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. The spine is straight without dysraphic features.
Dillon's NEUROLOGIC EXAMINATION was
significant for a high activity level and short attention span. His behavior was virtually uncontrollable for much of the evaluation and he required coaxing and stimulation to keep his interest. Dillon spoke in single words periodically, but these were poorly articulated and it was difficult to understand their meaning. The tongue movements were reasonably well coordinated and he did not drool. Dillon could interact at a very basic level and certainly understood simple commands.
Cranial nerve examination revealed full visual fields to direct confrontation testing and a brief, but normal ocular fundoscopic examination. The pupils were 3 mm and reacted briskly to direct and consensually presented light. The uvula was midline and there were no facial movement asymetries.
Motor examination revealed symmetric strength and bulk. The tone was slightly diminished for age. His gait was stable with symmetric arm swing. Dillon could run and jump without difficulty. The deep tendon reflexes were 1 to 2+ bilaterally with flexor planter responses. The stance was appropriately narrowly based. Sensory examination was deferred. Neurovascular examination revealed no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. Dillon could build a tower of
5 cubes using primarily his right hand. He had well developed pincer grasp bilaterally. Dillon knew simple body parts, but could not identify pictures of animals.
In SUMMARY, Dillon's neurologic examination is significant for a short attention span, high activity level and marked expressive language delay with disarticulation. He additionally manifests microcephaly and has a history of neonatal seizures. Dillon presently is on no medications. I regard Dillon's motor abilities to be within the
normal range and he therefore has no evidence of a significant motor impairment .
. . .
The conclusion regarding Dillon's physical presentation
To address whether Dillon is permanently and substantially physically impaired, the parties offered selected records relating to Mrs. Campbell's antepartum and intrapartum course, as well as for Dillon's birth and subsequent development. The parties also offered the opinions of three physicians and Mrs. Campbell, by deposition, to address the character of his physical presentation. Those physicians were Doctors Simmons, Younes, and Duchowny.
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 demonstrate that, more likely than not, Dillon is permanently and substantially physically impaired. To the contrary, the proof reveals that the physicians most knowledgeable in the area (Doctors Younes and Duchowny) share strikingly similar and consistent opinions regarding the nature of Dillon's presentation, and that he is not permanently and substantially physically impaired.5
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, the proof demonstrated that, notwithstanding any injury Dillon may have received to his brain, he has not been
rendered permanently and substantially physically impaired. Consequently, the record developed in this case fails to demonstrate that Dillon suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes.6 Florida Birth-Related Neurological Injury
Compensation Association v. Florida Division of Administrative Hearings, 686 So. 2d 1349 (Fla. 1997.) Accordingly, the subject claim is not 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 Monique A. Campbell and Gregory P. Campbell, as parents and natural guardians of Dillon Campbell, a minor, be and the same is hereby denied with prejudice.
DONE AND ORDERED this 31st day of August, 2000, 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 31st day of August, 2000.
ENDNOTES
1/ The parties' agreed record is further addressed in an Order of July 20, 2000.
2/ Ulstrasound of the head taken November 18, 1996, at Manatee Memorial Hospital was read as follows:
Findings suggest grade I hemorrhage confined to the subependymal region germinal matrix bilaterally. No evidence intraventricular hemorrhage and no evidence hydrocephalus.
3/ Leukomalacia is an abnormality in the white matter surrounding the ventricle, and a periventricle signal usually indicates a loss of some tissue or some scarring in the area. As noted, the reported results are consistent with an abnormality in brain development associated with prematurity or brain injury.
Here, no conclusion is drawn as to the cause of Dillon's anomaly or the timing of any injury (i.e., whether developmental (prenatal) or perinatal in origin) since such matters were not at issue.
4/ Dr. Younes described Dillon as a child with mild mental retardation; however, since the magnitude of Dillon's mental impairment, if any, was not an issue to be resolved at the hearing on July 18, 2000, no conclusion is made as to whether or
not his mental impairment is more reasonably described as mild or substantial (as required for coverage under the Plan.)
5/ In so concluding, Intervenors' argument, that periventricular leukomalacia and microcephaly are permanent and substantial impairments has not been overlooked. Such argument is, however, at best, disingenuous. Notably, microcephaly is more properly described as an abnormality (frequently associated with an anomaly in brain development) and not an impairment. More fundamental, periventricular leukomalacia is also more appropriately described as an abnormality which, if significant, will be reflected by mental or physical impairment. Under the Plan, it is only when the anomaly in brain development (occasioned by an injury associated with oxygen deprivation or mechanical injury) results (manifests) in substantial mental and physical impairment that coverage is afforded by the Plan. It serves no useful purpose to address brain damage (or discuss its significance) without direct reference to its effect on the infant's mental and physical presentation.
6/ Permanent and substantial are not defined by the Plan, however, the American Heritage Dictionary of the English Language, New College Edition, defines "permanent" as:
. . . 1. Fixed and changeless; lasting or meant to last indefinitely. 2. Not expected to change in status, condition, or place . . . (Middle English, from Old French, from Latin permanens, present participle of permanere, to remain throughout: per-, throughout + manere, to remain . . . --per'-ma-nent-ly adv.
It further defines "subtantial" as:
. . . 1. Of, pertaining to, or having substance; material. 2. Not imaginary; true; real. 3. Solidly built, strong. 4. Ample, sustaining . . . 5. Considerable in importance, value, degree, amount, or extent
. . . --sub-stan'tial-ly adv.
When, as here, the Legislature has not defined the words used in a phrase, they should usually be given their plain and ordinary meaning. Southeastern Fisheries Association, Inc. v. Department of Natural Resources, 453 So. 2d 1351 (Fla. 1984.) Where, however, the phrase contains a key word like "substantially,"
the phrase is plainly susceptible to more than one meaning. Under such circumstances, consideration must be accorded not only the literal or usual meaning of the word, but also to its meaning and effect in the context of the objectives and purposes of the statute's enactment. See Florida State Racing Commission v. McLaughlin, 102 So. 2d 574 (Fla. 1958.) Indeed, "[i]t is a fundamental rule of statutory construction that legislative intent is the polestar by which the court must be guided [in construing enactments of the legislative]." State v. Webb, 398 So. 2d 820, 834 (Fla. 1981.)
Turning to the provisions of the Plan, certain insights may be gleaned regarding the meaning the Legislature intended to acribe to the word "substantially," and more particularly its use in the phrase "permanently and substantially mentally and physically impaired." First, the Legislature has expressed its intent in Section 766.301(2), Florida Statutes, as follows:
It is the intent of the Legislature to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodian care and rehabilitation. This plan shall apply only to birth-related neurological injuries. (Emphasis added)
"Catastrophic," an adjective of the noun "catastrophe," is defined by The American Heritage Dictionary of the English Language, New College Edition, as "a great and sudden calamity; disaster." (Emphasis added.)
It is further worthy of note that physicians commonly use terms such as "mild," "moderate" and "severe" to describe the scope of an infant's mental and physical injury.
Finally, as observed by the court in Humana of Florida, Inc. v. McKaughn, 652 So. 2d 852, 858 (Fla. 2d DCA 1995), the Florida Birth-Related Neurological Injury Compensation Plan, like the Worker's Compensation Act, is a "limited statutory substitute for common law rights and liabilities." Accordingly, "because the Plan . . . is a statutory substitute for common law rights and liabilities, it should be strictly construed to include only those subjects clearly embraced within its terms . . . [and] a legal representative of an infant should be free to pursue common law remedies for damages resulting in an injury not encompassed within the express provisions of the Plan." Humana of Florida, Inc. v. McKaughn, supra, at page 859. Accord,
Carlile v. Game and Fresh Water Fish Commission, 354 So. 2d 362 (Fla. 1977), (A statute designed to change the common law rule must speak in clear, unequivocal terms, for the presumption is that no change in the common law was intended unless the statute is explicit in this regard.)
Given the Legislature's intent to restrict no-fault coverage under the Plan to "a limited class of catastrophic injuries," as well as the common practice among physicians to use terms such as "mild," "moderate" or "severe" to describe the degree of an infant's injuries, it is concluded that the word "substantially," as used in the phrase "permanently and substantially mentally and physically impaired," denotes a "catastrophic" mental and physical injury, as opposed to one that might be described as "mild" or "moderate."
Applying the foregoing standards to the facts of this case, compels the conclusion, as observed by Doctors Younes and Duchowny, that Dillon's injury did not render him "permanently and substantially . . . physically impaired." Therefore, the claim is not compensable under the Plan.
COPIES FURNISHED:
Joel S. Cronin, Esquire Romano, Eriksen & Cronin Post Office Box 21349
West Palm Beach, Florida 33416-1349
W. Douglas Moody, Jr., Esquire Graham, Moody & Sox P.A.
101 North Gadsden Street Tallahassee, Florida 32301
Lynn Larson, Executive Director Florida Birth-Related Neurological
Injury Compensation Association Post Office Box 14567 Tallahassee, Florida 32317-4567
Ralph L. Marchbank, Jr., Esquire Post Office Box 3979
Sarasota, Florida 34230
Richard K. Bowers, Jr., Esquire Robert E. Banker, Esquire Fowler, White, Gillen, Boggs,
Villareal & Banker, P.A. Post Office Box 1438 Tampa, Florida 33601
James S. Albin, M.D.
208 Harris Drive Norfolk, Nebraska 67801
Columbia Blake Medical Center Legal Department
2020 59th Street, West Bradenton, Florida 32406
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.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 31, 2000 | DOAH Final Order | Proof failed to support the conclusion that infant was permanently and substantially physically impaired. Consequently, claim not compensable. |
