STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VACELIA KOUMENDOUROS AND STEVEN )

BOUDREAU, on behalf of and as ) parents and natural guardians ) of ALEXANDER BOUDREAU, a minor, )

)

Petitioners, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

Case No. 04-4301N

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by Administrative Law Judge William J. Kendrick, held a hearing in the above-styled case on November 10, 2005, in

St. Petersburg, Florida.

APPEARANCES

For Petitioners: Vacelia Koumendouros, pro se

Steven Boudreau, pro se 9921 Lakeview Drive

New Port Richey, Florida 34654

For Respondent: Tana D. Storey, Esquire

Roetzel & Andress

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue is whether Alexander Boudreau, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).

PRELIMINARY STATEMENT

On November 24, 2004, Vacelia Koumendouros and Steven Boudreau, on behalf of and as parents and natural

guardians of Alexander Boudreau (Alexander), a minor, filed a petition (claim) with the Division of Administrative Hearings (DOAH) for compensation under the Plan.

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on November 30, 2004, and on February 17, 2005, following an extension of time within which to do so, NICA responded to the claim and gave notice that it was of the view that Alexander did not suffer a "birth-related neurological injury," as defined by Section 766.307(2), Florida Statutes, and requested that a hearing be scheduled to resolve whether the claim was compensable. Such a hearing was ultimately held on November 10, 2005.

At hearing, Vacelia Koumendouros and Steven Boudreau testified on their own behalf, and Petitioners' Exhibit 1 and Respondent's Exhibits 1-3 were received into evidence.1 No other witnesses were called, and no further exhibits were offered.

The transcript of the hearing was filed November 29, 2005, and the parties were accorded until December 9, 2005, to file written argument or proposed orders. Respondent elected to file a proposed order, and it has been duly-considered.

FINDINGS OF FACT

Stipulated facts

1. Vacelia Koumendouros and Steven Boudreau, are the natural parents and guardians of Alexander Boudreau, a minor. Alexander was born a live infant on November 29, 1999, at Morton Plant Hospital, a hospital located in Clearwater, Florida, and his birth weight exceeded 2,500 grams.

2. Obstetrical services were delivered at Alexander's birth by Ivelisse D. Ruiz-Robles, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.

   Coverage under the Plan

   
   

3. Permanent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired."2

   § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat.

4. Here, indisputably, Alexander is permanently and substantially physically impaired. What remains to resolve is whether the record supports the conclusion that, more likely than not, Alexander is also permanently and substantially mentally impaired, and whether Alexander's neurologic impairments 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 postdelivery period," as required for coverage under the Plan. Mrs. Koumendouros' prenatal care

5. Mrs. Koumendouros received her prenatal care at the Diagnostic Clinic, Clearwater, Florida, a group practice comprised of four physicians, including Dr. Ruiz-Robles. According to the records of the Diagnostic Clinic, on November 22, 1999, with an estimated delivery date of December 8, 1999, and the fetus at 37 5/7 weeks' gestation,

   Mrs. Koumendouros' obstetrician recommended delivery by cesarean section, given a breech presentation, polyhydramnios (an excess of amniotic fluid), risk of cord prolapse with rupture of the membranes if dilated, and risk of infection. Mrs. Koumendouros and her husband agreed, and delivery was scheduled for noon, November 29, 1999.

   Alexander's birth and immediate postnatal course

   
   

6. The medical records related to Alexander's birth reveal that at or about 9:45 a.m., November 29, 1999, Mrs. Koumendouros was admitted to Morton Plant Hospital, for an elective cesarean section. Notably, Mrs. Koumendouros was not in labor, when admitted or at any time thereafter, and monitoring revealed a reassuring fetal heart rate, with a baseline in the 140-beat per minute range, accelerations over time, no decelerations, and good fetal movement.3

7. With regard to Alexander's delivery, the medical records reveal that Mrs. Koumendouros was in the operating room at 12:25 p.m., surgery started at 12:50 p.m., and Alexander was delivered at 1:02 p.m., with Apgars of 6, 9, and 9 at one, five, and ten minutes, respectively. Accordingly to Dr. Ruiz-Robles' Operative Report, Alexander was "easily delivered," without incident.

8. The Apgar scores assigned to Alexander are a numerical expression of the condition of a newborn, 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 to a maximum score of 2. As noted, at one minute, Alexander's Apgar score totaled 6, with heart rate and reflex irritation being graded at 2 each, respiratory effort and muscle tone being

   graded at 1 each, and skin color being graded at 0. At five minutes and ten minutes, Alexander's Apgar score totaled 9, with heart rate, respiratory effort, muscle tone, and reflex irritation being graded at 2 each, and skin color being graded at 1.

9. According to the Delivery Record, Alexander was initially cyanotic, and became apneic. However, he responded rapidly to tactile stimulation, suctioning, and whiffs of oxygen, and by three minutes, Alexander's respiratory effort was noted as regular, by five minutes, his Apgar scores were normal, and, by 1:20 p.m., he was transferred to the holding nursery.

10. Following admission to the holding nursery, newborn admission assessment noted an alert, active infant, with normal cry, normal perfusion, and breath sounds equal bilaterally. However, assessment also noted "increased work of breathing for a short period," as well as hypotonia, acrocyanosis, large head (macrocephaly), skin tag on the right breast, small eyes, low set ears, distended abdomen, and abnormal foreskin.

11. Given Alexander's presentation, neonatal consultations were requested, and Alexander was evaluated at 2:25 p.m., and 3:15 p.m. As for the 2:25 p.m., consultation, little information is of record; however, the 3:15 p.m., consultation noted that Mrs. Koumendouros' pregnancy was significant for Level II ultrasounds revealing microcephaly and hydrocephalus,

    which seemed to be resolving, and for polyhydramnios/large abdomen. History also included the not normal findings noted on admission to the holding nursery, discussed supra. The consultant's assessment/plan included, the following:

    1. Term male - c-section

    2. Macrocephaly - needs CT, neurology evaluation. So will xfer to [A]ll C[hildrens] H[ospital]. TORCH eval.

    3. Genetic evaluation

    4. [Increased] ab. size - abd x-ray prior to feeding. Mom had polyhydramnios, [history] 5 - 10 cc suctioned from abdomen [after] delivery.

    5. GU evaluation of penis . . . .

       
       

12. At 3:30 p.m., Alexander was transferred to the Neonatal Intensive Care Unit (NICU) for further management, and at 6:00 p.m., he was transferred to All Children's Hospital, where he remained until his discharge on December 20, 1999. Alexander's care at All Children's Hospital was documented in his Discharge Summary, as follows:

    DISCHARGE DIAGNOSES

    
    

    1. Term Male Infant

    2. Hypotonia

    3. Neonatal Seizures

    4. Pensoscrotal Web

    5. Central, Mixed and Obstructive Apnea

    6. Hypotonia and Collapse of Posterior Pharynx

    7. Macrocephaly

    8. Splenic Cyst

    9. Jaundice

    10. Skin Tag

    11. Micro-ophthalmia

    OPERATIONS AND PROCEDURES

    
    

    1. CT Scan of the Brain

    2. Echocardiogram

    3. Cranial Ultrasound

    4. Abdominal Ultrasound

    5. Karyotype

    6. FISH for Prader-Willi Syndrome

    7. Phototherapy

    8. Laryngoscopy

    9. Total Parenteral Nutrition

    10. Sleep Study CONSULTS

    1. Social Work Services

    2. Genetics

    3. Urology

    4. Neurology

    5. Neurosurgery

    6. Otolaryngology

    7. Developmental Evaluation and Intervention Program

    
    

    HISTORY: Baby Boy Koumendouros was born by a C-section delivery with Breech presentation to a 34 year old G1PO mother. The C-section was for Breech presentation. Apgars were 6, 9, and 9. Birth weight was 3336 gm and estimated gestational age was [3]8 weeks. The mother had a urinary tract infection and pyelonephritis during this pregnancy. There was also Breech presentation and polyhydramnios. A Level II ultrasound showed microcephaly and hydrocephalus, with the most recent ultrasound showing some resolution but beginning polyhydramnios and a large abdomen. The mother took the following medications during this pregnancy: prenatal vitamins and Macrobid. Delivery room resuscitation included stimulation, suctioning, and whiffs of oxygen.

    
    

    Care at the referring hospital included stabilization in the delivery room. The infant was made NPO and was placed on IV

    fluids when microcephaly was noted. The infant was transferred to All Children's Hospital for further management of microcephaly and rule out hydrocephalus.

    
    

    RESPIRATORY/APNEA: The infant was admitted to All Children's Hospital on room air.

    
    

    On day #4 of life, the infant required nasal cannula oxygen that continued until 11 days of life.

    
    

    The infant had a sleep study done [December 9, 1999] which showed a significant amount of obstructive and

    hypopneas throughout the study. The infant had increased work of breathing. He also had an elevated end tidal CO2 that climbed to as high as 60's during the study. The infant had some central apneas in addition to the obstructive apnea. The interpretation is that this is an abnormal study, given the frequency of obstructive apneas as well as the increased work of breathing.

    
    

    The infant was seen by Otolaryngology and had laryngoscopy performed which showed hyponia and collapse of the posterior pharynx. The infant will require follow-up with the Otolaryngology Service one month post-discharge.

    
    

    The infant is being discharged on a home apnea monitor and on a car bed.

    
    

    CARDIOVASCULAR: An echocardiogram was performed due to a murmur and multiple congenital abnormalities on day #1 of life, which showed a small patent ductus arteriosus, a dilated patent foramen ovale versus an atrial septal defect.

    
    

    The infant no longer has a murmur. However, he will need to be followed by Cardiology in

    6 months with a echocardiogram due to the

    presence of a patent foramen ovale versus atrial septal defect.

    
    

    BILIRUBIN: The infant developed jaundice

    . . . . This was treated with 1 day of phototherapy . . . .

    
    

    INFECTIONS: Maternal Group B Strep status was unknown. Blood and CSF cultures were obtained on admission to All Children's Hospital. The infant was started on ampicillin and gentamicin. All cultures were negative and antibiotics were stopped after 6 days.

    * * *

    
    

    METABOLIC: Due to the infant's neurological status, serum amino acids and urine organic acids were obtained. The serum amino acids show ornithine appeared mildly elevated in otherwise normal pattern. This mild elevation alone may be due to diet and does not suggest a well recognized aminoacidopathy. The urine organic acids appeared to be within expected limits and no abnormalities were noted.

    
    

    CENTRAL NERVOUS SYSTEM: Due to

    microcephaly, the infant had a CT scan performed on day #1 of life which showed prominent extra axial fluid with mild prominence of the ventricles. A repeat CT scan done at 14 day of life shows a stable appearance of the ventricular system and brain parenchyma. There was mild prominence of the ventricles and extra axial fluid persists. There is some question about the integrity of the corpus callosum. A MRI was recommended at 8 weeks life.

    
    

    The infant developed seizures on day #1 of life. An EEG showed significant attenuation of the background rhythms without eliptiform discharges of subclinical seizures. The infant was started on Phenobarbital prior to the EEG being obtained. A repeat EEG was obtained at 14 days of life and was within

    normal limits. The infant was weaned off of Phenobarbital prior to discharge.

    
    

    The infant will require follow-up with Neurology as well as the Developmental Evaluation and Intervention Program after discharge.

    
    

    GENETIC PROBLEMS/DYSMORPHOLOGY: The infant

    had the following dysmorphic features noted on admission: Low set ears, abdominal distention, hepatomegaly, penoscrotal web, hypotonia, webbed neck, and skin tag on right nipple. Chromosomes showed 46XY. the infant also had FISH and uniparental disomy testing for Prader-Willi, which both are negative.

    
    

    The infant was seen by Genetics, and the plan is for a follow-up in 2 months.

    
    

    * * *

    
    

    OPHTHALMOLOGY: The infant was seen by Dr. Hess due to the presence of micro- ophthalmia, and recommendations are for follow-up in 6 months.

    
    

    * * *

    
    

    PHYSICAL EXAM AT DISCHARGE: The infant

    continues to be hypotonic but is more alert then he had previously been.

    
    

    FOLLOW UP: Pediatrician, Drs. Hassell and Pham on 12/21/99 at 3 p.m.

    DEI Program on 1/31/00 at 2:40 p.m. Neurology on 1/10/00 at 4:15 p.m.

    OT/PT

    Genetics in 2 months.

    Dr. Hess on 6/26/00 at 10 a.m. Otolaryngology on 1/19/00 at

    11:00 a.m.

    Cardiology on 3/2/00 at 10 a.m. Echocardiogram on 3/2/00 at 9 a.m. Urology on 2/22/00 at 11:15 a.m.

    Use a carbed to transport infant, as instructed

    CPR and monitor training for home monitor use

    
    

    * * *

    
    

    MONITOR INFORMATION: The infant is being discharged on a monitor. The parents have been instructed by All Children's Hospital in CPR and by the monitor company in monitor utilization. The monitor is being provided by Pediatric Health Choice. Regulation of the monitor will be through the pediatrician.

    
    

    Alexander's subsequent development

    
    

13. Alexander's history and early development was documented on a Pasco County School Social Work Report, dated December 7, 2001 (Respondent's Exhibit 1), as reported by Mrs. Koumendouros (Boudreau), as follows:

    Mrs. Boudreau described her pregnancy with Alex as being relatively normal, with the exception of the condition of polyhydraminos or excessive amniotic fluid. This was monitored throughout the pregnancy, though the danger to the fetus was thought to be minimal. A sonogram revealed that Alex had a larger head than normal. Mrs. Boudreau was tested twice for possible diabetes, but both tests were negative. In the 8th month, she was determined to have a low risk for complications.

    
    

    Alex was delivered near his due date by cesarean section due to breech presentation. His birth weight was 7 pounds, 6 ounces and he was determined to be healthy, though a neonatologist was called in after the birth due to the baby's head size being larger than normal. Alex was transferred to All Children's Hospital for tests and

    observation for a possible seizure disorder. He was given Phenobaritol for the length of his 21-day hospital stay, which was reduced and then discontinued upon discharge to home. He was provided with an apnea monitor, which was used for 2 months without incident.

    
    

    At two months of age, Alex did not exhibit adequate head control and he was referred to the Early Intervention Program for a developmental screening. No treatment was prescribed until Alex's follow up at 6 months of age, when he began receiving occupational and physical therapy to address his low muscle tone.

    
    

    At one year of age, Alex was found to have visual acuity problems and a possible nystagmus. He received a prescription for glasses. He can detect and respond to people or objects that are approximately 6 feet from his eyes. His ophthalmologist is Dr. J. Bruce Hess.

    
    

    In December of 2000, Alex was examined by neurologist Dr. Rao, who subsequently ordered an MRI of the brain. The MRI revealed an "atrophy of the brain" and "hemorrhage of the motor area." It was at this time that Alex was diagnosed with cerebral palsy, which [was] described to the parents as a "catch-all" term for a broad range of disabilities involving, but not necessarily limited to motor functioning.[4] A genetic screening revealed no identified syndrome or genetic condition. The Boudreaus are hopeful that Alex's delays are primarily physical in nature and that he will show evidence of more normal intellect, though this has not been confirmed by therapy and evaluation reports at this point. Alex has continued to receive occupational and physical therapy twice weekly in addition to home based visual therapy and additional visual therapies from Lighthouse for the Blind.

    Mrs. Boudreau states that Alex has some form of therapy for 11 hours each week.

    
    

    Alex is able to support his head and is working on the development of trunk support. He is not ambulatory, but is starting to work with a gait trainer. Alex is not able to grasp objects successfully, but can self- feed larger pieces of food and is working with a specially designed spoon. He can pull at his bib or his diaper.

    
    

    Verbal skills include babbling and short cries for attention. Mrs. Boudreau has noted that Alex uses different vocal tones for different purposes and will attempt to "sing" along with music that he likes. For stimulation, Alex has a "little box" at home, which is designed for him to lay down in, facing up, with visual images and hanging objects for grasping. Mrs. Boudreau notes that Alex is more animated and verbal after spending time in the "little box." Alex also has a Rifton chair and a vertical stander in the home . . . .

    
    

14. Currently, insofar as the record demonstrates, Alexander presents with a diagnosis of hypoxic cerebral palsy, severe visual impairment, and severe delay in receptive and expressive language development. There is also evidence that Alexander suffers cognitive delay. However, the proof does not address the significance of Alexander's cognitive or mental delay.

    The cause and timing of Alexander's neurologic impairments

    
    

15. To address whether Alexander's neurologic impairments were related to an "injury to the brain . . . caused by oxygen

    deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period," as required for coverage under the Plan, Petitioners, Valecia Koumendouros and Steven Boudreau, testified on their own behalf, and offered a photograph of Alexander, taken April 2005 (Petitioners' Exhibit 1). Additionally, Respondent offered the medical records relating to Mrs. Koumendouros' antepartum course, as well as those associated with Alexander's birth and subsequent development, and the expert testimony of Dr. Donald Willis, a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine. (Respondent's Exhibits 1 and 2.) Respondent also offered an affidavit and report of Dr. Michael Duchowny, a pediatric neurologist; however, Dr. Duchowny's affidavit was hearsay, and could not support a factual finding in this proceeding. (Respondent's Exhibit 3.) § 120.57(1)(c), Fla. Stat.

16. As for the etiology of Alexander's impairments,

    
    

    Dr. Willis' voiced no opinion. However, based on his review of the medical records, Dr. Willis was confident that, whatever the etiology, Alexander's impairments were not related to an injury to the brain caused by oxygen deprivation or mechanical injury during the birthing process or the immediate postdelivery period. In so concluding, Dr. Willis noted:

    Q. After reviewing the records, what is your opinion concerning whether there was an injury to Alexander's brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period?

    
    

    A. I did not find any apparent births- related obstetrical event that could have led to or resulted in a loss of oxygen or mechanical injury to the child's brain.

    
    

    Q. Would you please explain the basis for your opinion?

    
    

    A. Yes, I would.

    
    

    First, let me say that the mother was not in labor at time of the Cesarean section, so it was an elective Cesarean section for polyhydramnios, too much amniotic fluid, and breech presentation. So the --

    
    

    * * * MS. STOREY: Okay.

    THE WITNESS: Okay. Well, the medical records state that the elective Cesarean section was done for polyhydramnios and breech presentation. I reviewed the fetal heart rate monitor strip that was available prior to delivery, after admission to the hospital. There were some irregular uterine contractions.

    
    

    The fetal heart rate that was available for observation did not show any distress. The mother's cervix was closed and long at time of admission suggesting that there was no active labor at the time.

    
    

    At the time of the elective Cesarean section, the operative note described the delivery as being -- the infant was easily delivered from the breech presentation. So

    I did not have anything to suggest a trauma at the time of the actual birth.

    
    

    And then in the immediate post-delivery period, the baby's one-minute apgar was low at six: and the baby did require some oxygen, which they described as whiffs, for about five minutes. But the baby improved; and by five minutes, the apgar score was nine, which could be a normal apgar score.

    
    

    So based on that, it was my impression that there was no active labor, that there was no incident during the actual delivery of the baby that would have led to oxygen deprivation or a mechanical trauma to the brain; and the same would be said for the immediate post-delivery period.

    
    

    The opinions of Dr. Willis are consistent with the medical records (which speak to the likelihood of a developmental disorder, as opposed to birth trauma, as the likely cause of Alexander's difficulties), uncontroverted, and credible.5

17. In contrast to the proof offered by Respondent, Petitioners offered no expert medical testimony regarding the likely etiology of Alexander's impairments. Consequently, it must be resolved the proof fails to support the conclusion that Alexander's impairments were most likely caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period. See, e.g., Wausau Insurance Company v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because of the medical conditions which the claimant alleged had resulted from the

    workplace incident were not readily observable, he was obliged to present expert medical evidence establishing that causal connection."); Ackley v. General Parcel Service, 646 So. 2d 242 (Fla. 1st DCA 1995)(determining cause of psychiatric illness is essentially a medical question, requiring expert medical evidence); Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation.").

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. § 766.301, et seq., Fla. Stat.

19. In resolving whether a claim is compensable, the administrative law judge must make the following determination based upon the available evidence:

    1. Whether the injury claimed is a birth-related neurological injury. If the claimant has demonstrated, to the satisfaction of the administrative law judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.302(2).

    2. Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital.

    
    

    § 766.309(1), Fla. Stat. 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." § 766.31(1), Fla. Stat.

20. 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 postdelivery 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.

    
    

21. Here, the proof failed to demonstrate, more likely than not, that Alexander's neurologic impairments were caused by "an injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or

resuscitation" or, that Alexander was "permanently and substantially mentally . . . impaired." Consequently, given the provisions of Section 766.302(2), Florida Statutes, Alexander was not shown to qualify for coverage under the Plan. See also Humana of Florida, Inc. v. McKaughan, 652 So. 2d 852, 859 (Fla. 2d DCA 1995)("[B]ecause 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."), approved, Florida Birth-Related Neurological Injury Compensation Association v. McKaughan, 668 So. 2d 974, 979 (Fla. 1996); Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearings, 686 So. 2d 1349 (Fla. 1997)(The Plan is written in the conjunctive and can only be interpreted to require both substantial mental and physical impairment.).

CONCLUSION

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

ORDERED that the claim for compensation filed by Valecia Koumendouros and Steven Boudreau, as the parents and

natural guardians of Alexander Boudreau, a minor, is dismissed with prejudice.

DONE AND ORDERED this 9th day of January, 2006, in Tallahassee, Leon County, Florida.

S

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 9th day of January, 2006.

ENDNOTES

1/ Respondent's Exhibit 3 (an affidavit and report of neurological evaluation by Michael Duchowny, M.D.) was hearsay, and received into evidence subject to the limitations of Section 120.57(1)(c), Florida Statutes ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.")

2/ The definition of "birth-related neurological injury" also includes an "injury to the . . . spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired."

§ 766.302(2), Fla. Stat. However, here there is no contention or proof to support a conclusion that the infant suffered an injury to the spinal cord.

3/ Difficulty was apparently experienced with the fetal monitor, and a tracing is only available for a limited period of Mrs. Koumendouros' admission. However, the Admission Summary reveals a fetal heart tone in the 140s; the Labor Record at 11:00 a.m., reveals fetal heart tones at 130-155 beats per

minute, with good fetal movement; and the Operating Room Report, following admission at 12:25 p.m., notes fetal heart tones at 120-130 beats per minute.

4/ "Cerebral palsy" is commonly understood to mean:

. . . any of a group of persisting, nonprogressive motor disorders appearing in young children and resulting from brain damage caused by birth trauma or intrauterine pathology. They are characterized by delayed or abnormal motor development, such as spastic paraplegia, hemiplegia, or tetraplegia, which is often accompanied by mental retardation, seizures, or ataxia . . . .

See "cerebral p." under "palsy," Dorland's Illustrated Medical Dictionary, Twenty-eighth Edition (1994).

5/ Since Mrs. Koumendouros was never in labor, it was incumbent upon Petitioners to demonstrate that Alexander's impairments were associated with a brain injury caused by oxygen deprivation or mechanical injury occurring in the course of delivery or resuscitation in the immediate postdelivery period in the hospital. Given that Alexander was delivered by cesarean section, it may be said that delivery began at 12:50 p.m., when surgery began and ended at 1:02 p.m., when Alexander was removed from the uterus. As for resuscitation in the immediate postdelivery period, the record reflects that such period ran from Alexander's delivery at 1:02 p.m., until approximately 1:07 p.m., when resuscitative efforts were discontinued.

COPIES FURNISHED:

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association 2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7003 1010 0001 2044 4548)

Tana D. Storey, Esquire Roetzel & Andress

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

Charlene Willoughby, Director Consumer Services Unit - Enforcement Department of Health

4052 Bald Cypress Way, Bin C-75 Tallahassee, Florida 32399-3275

(Certified Mail No. 7003 1010 0001 2044 4593)

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 the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 04-004301N

Orders for Case No: 04-004301N