STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FINAL ORDER ON COMPENSABILITY

By stipulation of the parties and pursuant to a

November 10, 2010, Order, this cause came on for consideration upon the Stipulated Record.

APPEARANCES

For Petitioners: Ronald S. Gilbert, Esquire

Colling, Gilbert, Wright & Carter, LLC 801 North Orange Avenue, Suite 830

Orlando, Florida 32801

For Respondent: M. Mark Bajalia, Esquire

Brennan, Manna & Diamond 800 West Monroe Street Jacksonville, Florida 32202

For Intervenors: Tiffany Rohan-Williams, Esquire

Dennis, Jackson, Martin & Fontela, P.A. 1591 Summit Lake Drive, Suite 200

Tallahassee, Florida 32317 STATEMENT OF THE ISSUE

Whether Tristan A. Hostetler qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).

PRELIMINARY STATEMENT

On December 24, 2009, James D. Hostetler and Elizabeth O. Hostetler, on behalf of and as parents and natural guardians of Tristan A. Hostetler (Tristan), a minor, filed a "Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq." (claim) with the Division of Administrative Hearings (DOAH).

The petition sought a determination of whether Tristan's injuries are qualifying injuries under the Plan.

The petition named Sayra Chi Sievert as the "participating physician" who rendered obstetrical services to Elizabeth O. Hostetler in Baptist Medical Center, Beaches, in connection with Tristan's birth.

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on December 28, 2009, and served Dr. Sievert, and Baptist Medical

Center, Beaches, respectively, on February 22, 2010. On March 5, 2010, Sayra Chi Sievert, M.D., and North Florida Obstetrical & Gynecological Associates, P.A., moved to intervene, and by a March 19, 2010, Order, they were granted Intervenor status. There have been no other petitions to intervene.

On March 26, 2010, NICA filed its response to the petition, giving notice that it was of the view that Tristan had not suffered a "birth-related neurological injury," as defined by section 766.302(2), Florida Statutes, and requested that a hearing be scheduled to resolve whether or not the claim was compensable.

The case was initially set for hearing on November 3, 2010. On October 14, 2010, the parties filed a Joint Motion to

Submit Stipulated Factual Record and Written Argument in Lieu of a Contested Hearing. That motion was granted by an Order entered November 10, 2010, but the timeframe for submittals was extended at the parties' request. Ultimately, the parties' Pre- hearing Stipulation, filed January 20, 2011; Joint Exhibits A through O, as set forth in the parties' Notice of Filing Stipulated Record, dated January 20, 2011, and the Amended Notice of Filing Stipulated Record filed March 30, 2011, have been admitted in evidence and considered.1

Pursuant to an Order dated March 23, 2011, the parties were accorded until April 11, 2011, to submit proposed final orders. Only Respondent filed a proposal, and that proposal has been considered.

FINDINGS OF FACT

1. James M. Hostetler and Elizabeth O. Hostetler are the parents and natural guardians of Tristan A. Hostetler, a minor. Tristan was born a live infant on March 4, 2008, at Baptist Medical Center, Beaches, a licensed hospital located in Jacksonville Beach, Florida, and his birth weight was in excess of 2,500 grams.

2. The physician providing obstetrical services at the time of Tristan's birth was Sayra Chi Sievert, M.D., and at all times material, Dr. Sievert was a participating physician in the Plan.

3. Other than marginal previa, which resolved itself, Mrs. Hostetler's prenatal course was without significant complications prior to March 4, 2008, the day of Tristan's birth. On that date, Mrs. Hostetler was 27 years old.

4. At 7:50 a.m., on March 4, 2008, Mrs. Hostetler was admitted to Baptist Medical Center, Beaches, at 40 weeks' gestation, for elective induction. Her estimated due date had been March 1, 2008.

5. At 8:30 a.m., Mrs. Hostetler's labor was augmented with Pitocin. At 8:59 a.m., the fetal heart rate was at a baseline of 127 bpm with accelerations, moderate long term variability and no decelerations. At 9:02 a.m., her membranes were ruptured and the amniotic fluid was clear. A vaginal examination showed that Mrs. Hostetler was 4-5 cm dilated, 70% effaced, and at station -1. At 10:07 a.m., an epidural was administered.

6. Between 10:14 a.m., and 10:18 a.m., the fetal heart rate had a prolonged deceleration and an episode of bradycardia with another prolonged deceleration at 10:24 a.m. However, the fetal heart rate recovered, with accelerations noted at

   10:30 a.m., returning to a baseline fetal heart rate of 121.

   
   

7. At 2:05 p.m., some fetal heart rate decelerations were noted. Mrs. Hostetler was repositioned at 2:19 p.m., due to difficulty tracing the fetal heart tones, which then stabilized upon her repositioning.

8. A vaginal examination at 4:21 p.m., on March 4, 2008, found Mrs. Hostetler to be 10 cm dilated, 100% effaced, and at station 0. Mrs. Hostetler continued to labor on, and at

   5:11 p.m., was "resting throught [sic]2 several contractions due to slowing descent despite position changes/fetal tachycardia noted/mom temp [maternal temperature] of 99.0."

9. At 5:18 p.m., Dr. Sievert was notified of the fetal tachycardia and slowing descent. At 5:29 p.m., Mrs. Hostetler

   began pushing. Mrs. Hostetler continued to push, but began to become tired at 6:40 p.m. Dr. Sievert, who was at bedside, then discussed the option of using a vacuum to assist with the delivery, and at Mrs. Hostetler's request, vacuum extraction was used, with two "pop-offs" noted in the medical record.

   Mrs. Hostetler continued to push until 7:30 p.m., when a caesarian was called by Dr. Sievert.

10. The emergency caesarian section began at 8:05 p.m., on March 4, 2008, due to failure to descend, despite vacuum assist. At 8:08 p.m., Tristan was delivered. Upon incision into the uterus, meconium-stained fluid had been noted, but it did not require suctioning below the baby's cords. The caesarian section ended at 8:20 p.m.

11. Tristan achieved Apgar Scores of 8 and 9 at 1 and 5 minutes, respectively.3

12. Dr. Sievert's delivery note read:

    
    

    On incision into uterus, MSF [meconium stained fluid] noted. Infant delivered in cephalic presentation without problem. De Lee suction on abdomen. "Well" per OB. Infant cried on abdomen. Infant handed to extendes and placed in radiant warmer.

    Lusty cry. Dried and stimulated. No PP02 needed. Apgars at 1 min=8 (-2 color) and at

    5 min=9 (-1 color). PE: color pink. . . .

    Left cephalhematoma noted. Abrasion noted of left occiput with brusing.

    
    

13. At delivery, Tristan was alert, responsive, active, and pink. He required bulb suctioning of the nose and mouth and

    tactile stimulation. His initial newborn examination noted no abnormality, but did reflect a cephalhematoma, head bruising and a head abrasion on the left side and molding.

14. On March 5, 2008, at 4:30 a.m., Mrs. Hostetler began to breastfeed Tristan. At 11:54 a.m., left arm twitching was noted during breastfeeding instruction and reported to the nurse. The progress note, dated March 5, 2008, at 12:45 p.m., indicates that at 17 hours of age, Tristan experienced myoclonic activity of both upper extremity and lower extremity with eye deviation activity, not stoppable, which lasted for about one- and-a-half minutes. The neonatologist suspected possible seizure-like activity, and noted "Mother reports rhythmic activity in utero from 6 months onward. No family history of seizure activity."

15. At 9:41 a.m., on March 5, 2008, Dr. Sievert had documented within the chart that:

    when [the mother] held the baby last night and it was presumed to be seizure activity, [the mother] . . . said to herself that that was the same exact movement/activity she had felt in utero during the last part of the pregnancy. She stated that people told her it was likely hiccups, so she didn't pay much attention to it.

    
    

16. Dr. Sievert's notes for 9:43 a.m., March 5, 2008,

    
    

    reflected:

    
    

    At the time of birth, the baby was active and crying with normal apgars and a normal

    cord gas which is documented in the paper chart. He had a small abrasion over the top of the cephalohematoma [sic].

    
    

17. Another note by Dr. Sievert on March 5, 2008, stated that Dr. Sievert, at that time, had a conversation with

    Dr. Huddak, who indicated to Dr. Sievert that the CT of Tristan's head showed a right brain infact[sic],4 a left parietal skull fracture and a cephalhematoma, and that Dr. Huddak further indicated to Dr. Sievert that Tristan's fracture was of "no consequence" and no surgery was needed; that he was not sure how the baby got the infarct but that some babies get them; that the infarct was not related to the use of the vacuum; and that

    Dr. Huddak said that "this is not a birth related injury, it happened prior to birth, but uncertain to exactly when." Although this note by Dr. Sievert has been considered as an agreed-upon medical record, it is not probative, by itself, of Dr. Huddak's independent assessment.

18. Tristan was transported to Baptist Wolfson Children's Hospital on March 5, 2008, for evaluation, due to the seizures following myoclonic activity noted in both the upper and lower extremities with eye deviation which lasted for approximately one-and-a-half minutes. The transport team noted myoclonic activity of the left arm with blinking of the left eye which only lasted a few seconds. Ativan was administered prior to the transport. Tristan was admitted at Baptist Wolfson in stable

    condition and was responsive, sleeping and arousable in minimal respiratory distress.

19. Possible sepsis was suspected, so Tristan was started on Ampicillin and Gentamicin for a three-day period and evaluation.

20. Tristan's hospital course was complicated by necrotizing enterocolitis, which subsequently resolved itself with bowel resectioning on April 12, 2008. Tristan's status was further complicated by multiple neonatal seizures and strokes, which were treated with Heparin. An in-depth work-up for hypercoagulable profile was negative.

21. Tristan was discharged at eight weeks on Lovenox and Phenobarbital.

22. On April 22, 2008, Tristan's discharge physical exam showed that his operative site was healing well, with steri- strips in place, and no eyrthema noted. Neurologically, he was responsive on exam and had good tone. His extremities were nondysmorphic.

23. Despite his initially difficult postdelivery course.

    
    

    Tristan's subsequent development has revealed no significant impairments, as described more fully hereafter.

24. Tristan's two-month "well child" checkup by Pediatrician Barbara O'Reilly, M.D., on April 24, 2008, revealed

    no feeding difficulties. Tristan had good tone with full range of motion bilaterally in both upper and lower extremities.

25. On May 8, 2008, at nine weeks of age, Tristan had a follow-up two-month "well child" checkup with Dr. O'Reilly. At that time, Tristan was able to lift his head, move his extremities well, vocalize, and regard face and smile responsively. He still had good tone, with full range of motion bilaterally, including his lower extremities. At that time, he had no feeding issues.

26. At Tristan's May 30, 2008, neurology visit at Nemours Children's Clinic, Elmyra P. Morris, ARNP, regarded him as progressing in all spheres of development, with normal symmetric movements, except for some mild limitation of range of neck motion to the right.

27. On June 9, 2008, when Tristan was three months old, Mrs. Hostetler indicated on the Wolfson Children's Rehabilitation Health History Form that overall, Tristan was "well-coordinated but he falls a little and has left-side weakness of the hand." Oddly, although he was only three months old at the time, she also indicated that developmentally, Tristan had rolled over at three months, sat at five months, crawled at seven months, and walked at ten months.

28. Tristan's Physical Therapy Evaluation/Plan of Care, dated June 9, 2008, indicated that at three months old, he had

    "fluctuating tone, slightly increased tone in the upper extremities as compared to the lower extremities (right side greater than left), muscle strength within functional limits; however, left side weaker than right, mildly delayed equilibrium responses and gross motor skills within normal limits." He was evaluated at high risk for developmental delays but as having a good prognosis for functional gains. Therapy one time per month for three months was recommended.

29. Tristan was also noted at three months of age to be functioning at four months of age for gross motor skills. His abilities included: "prone sustained lifting of the head, prone supports self on forearms, prone legs extended, supine symmetrical arm/head posture predominates, supporting sitting with head erect and steady." Tristan had slightly deceased use of his left upper extremity as compared to the right. However, with minimal facilitation, he was able to activate and use his left upper extremity as appropriate. Despite Tristan's preferring to keep his head rotated right, the evaluation noted no tightness or limitations.

30. Also on June 9, 2008, Tristan was evaluated by a speech therapist due to Dr. O'Reilly's concerns about his oral posture and tremors noted in his tongue. Upon examination by the speech therapist, Terri McDearman, Tristan was found to be experiencing mild oral phase dysphagia, secondary to mild oral

    hypotonia. However, Tristan was able to feed normally, and his speech-language development was also within normal limits, so therapy was not recommended at that time. The therapist requested that he return at six and nine months of age to be sure he was progressing. Tristan's receptive-expressive emergent language was tested and found to be well within normal limits for his age. He attended to voice and face; responded to emotional language; located sound sources; and made a variety of vowel sounds as well as soft/loud- and high/low-pitched sounds.

31. On July 8, 2008, at the four-month "well child" visit, Dr. O'Reilly indicated that Tristan had no feeding difficulties. Tristan also continued to have good tone with full range of motion bilaterally in his lower extremities. The four-month ASQ Information Summary, completed by Mrs. Hostetler at that time, indicated that Tristan used both hands equally well and that Mrs. Hostetler had no other concerns. The screen indicated that there were no abnormal findings. No referrals were issued.

32. According to Tristan's physical therapist,

    
    

    Joanne Ryon, by September 8, 2008, he had made steady progress, despite continuing to present with fluctuating tone, slightly increased tone in the upper extremities as compared to the lower extremities (right side greater than left), and his muscle strength was within functional limits, with the left side weaker than the right, and mildly delayed equilibrium responses. His

    gross motor skills were within normal limits. He was considered to have a good prognosis for functional gains with therapy sessions one time per month for three months.

33. At his six-month "well child" visit with Dr. O'Reilly on September 12, 2008, Tristan was able to bear weight on his legs, chest up-arm support; rolled over; pulled to sit with no head lag; reached for objects; sat unassisted for a brief time; transferred objects from hand to hand; squealed; laughed; initiated sound; turned to rattling sound or voice; visually tracked objects well; appeared to hear and see well; followed

    180 degrees; regarded a raisin; reached; worked for a toy and showed pleasure when reacting with others. However, he had not tried to feed himself yet.

34. Per the office visit note, dated November 24, 2008, Dr. Monica P. Islam, a neurologist at Nemours Children's Hospital Neurology Clinic, recorded that Tristan had previously been seen at Nemours on May 30, 2008, by an ARNP, and at that time he had been seizure-free. (See Finding of Fact 26). A repeat EEG did not demonstrate a significant burden of epileptiform discharges, so it was recommended that he taper off Phenobarbital. Dr. Islam's November 24, 2008, notes further indicate that Tristan, then eight months old, was at the very end of tapering off Phenobarbital, and that there were no concerns regarding recurrence of seizures or for any rhythmic

    activity that would raise suspicion of seizures. Developmentally, Tristan was on track as he began crawling and cruising furniture.

35. Tristan's nine-month "well child" visit with

    
    

    Dr. O'Reilly on December 4, 2008, indicated that he was able to sit unsupported; crawl; creep; scoot; pull to his feet with support; stand holding on; imitate speech sounds; turn to voice; say a single syllable; wave "bye-bye"; say "dada/mama" -- non specific; combine syllables; jabber; feed himself; use a pincer grasp; shake; bang; throw; and look for yarn; rake raisins; pass a cube; take two cubes; respond to his name; and play peek-a- boo.

36. Wolfson Children's Hospital's Occupational Therapy Progress Report of December 8, 2008, indicated that at nine months, Tristan had made steady progress in physical therapy: continued to present with fluctuating tone; had slightly increased tone in the upper extremities, as compared to the lower extremities (right side greater than left); had muscle strength within functional limits, with the left side weaker than the right; and had mildly delayed equilibrium responses. His gross motor skills were within normal limits. He was felt to have a good prognosis for functional gains. Occupational therapy was recommended to rule out any fine motor delays. The mother was considered to have good follow-through at home.

37. According to Wolfson's Physical Therapy Discharge Report dated February 9, 2009, Tristan had made significant progress by 11 months of age. At that time, he presented with low/normal muscle tone and age appropriate balance and equilibrium responses. His gait was normal, and he had above- age gross motor skills. Tristan did continue to present with mild left-sided weakness that did not interfere with gross motor function or coordination, but he was assessed to be functioning at approximately 15 months of age for his gross motor skills. It was determined by the therapist that he no longer needed physical therapy, and Mrs. Hostetler was in agreement.

38. Wolfson's Occupational Therapy Progress Report of March 2, 2009, indicated that Tristan was progressing well, but that he continued to present with a left side weaker than the right and mildly delayed coordination and manipulation on the left side. It was determined that he had a two-month delay for visual motor integration and fine motor skills, but that he had a good prognosis for functional gains. No pain was observed or reported.

39. Tristan's 13-month "well child" visit with

    
    

    Dr. O'Reilly on March 5, 2009, indicated that he had no feeding difficulties, and limited developmental testing was ordered.

    The 12-Month/One Year ASQ Information Summary completed by Mrs. Hostetler indicated that Tristan had weakness on his left

    side from a stroke at birth but that Tristan had no recent medical problems nor did she, his mother, have any other concerns.

40. Wolfson's Speech Therapy Evaluation, dated April 28, 2009, indicated that at 14 months of age, Tristan had age- appropriate language comprehension skills but that his expressive language was at the nine-month level, due to oral/verbal apraxia5 of speech. However, his prognosis was good to attain age-appropriate expression of wants and needs.

41. By May 28, 2009, Wolfson's Occupational Therapy Progress Report reviewed Tristan as having made significant progress with his fine motor and activities of daily living skills. He was spontaneously using his left hand for bilateral tasks, with some mild to moderate difficulty with precise grasp and release. He had begun to scribble with a crayon; stack blocks; place one peg into a foam board; feed himself finger foods; and assist with donning/doffing garments. He was to return in four months for a follow-up visit to assess his progress and determine any need for additional occupational therapy.

42. At Tristan's 15-month "well child" visit on June 16, 2009, Dr. O'Reilly noted that Tristan had met his developmental milestones, including being able to walk quickly; climb stairs with one held hand; stand alone; stoop and recover; stack two or

    more blocks; walk well; say "dada/mama"; say three to six words; understand simple commands; finger-feed himself; drink well from a cup; put blocks in a cup; scribble; indicate his wants by pointing; wave "bye-bye"; play ball; imitate activities; and listen to a simple story.

43. On September 10, 2009, when Tristan was 18 months old, he had a follow-up 13 to 15-month "well child" visit with

    Dr. O'Reilly, who determined he had met his 15 months milestones.

44. At that time, Dr. O'Reilly essentially reiterated the same findings as on June 16, 2009, and added that Tristan's head and neck were "normocephalic, atraumatic," and that his neck was "supple, no tenderness." Although Tristan was noted to have mild weakness in his left hand, the records do not indicate that referrals were requested and/or made at that time.

45. On September 10, 2009, Dr. O'Reilly noted no behavioral or feeding difficulties and only a mild weakness of Tristan's left hand.

46. Tristan saw the neurologist, Dr. Islam, again on November 20, 2009, at age 20 months. At that time, his mother reported that Tristan had continued to make excellent developmental progress, including being discharged from physical and occupational therapies at 11 months of age, as he had begun walking at ten-and-a-half months of age. Dr. Islam's 2009 notes

    reveal that Tristan "continues to favor using the right hand and has diminished fine motor skills in his left hand. His mother encourages him to use his left hand as much as possible."

    Mrs. Hostetler marked no concerns on the Comprehensive Review of Systems Checklist provided to her. During the physical exam, Tristan was noted to have fairly good use of his hand, keeping it open much of the visit. Dr. Islam further noted that, developmentally, Tristan was doing very well, with mild left- hand paresis, although his speech was somewhat delayed. Repeat imaging was deferred unless there were changes in Tristan's rate of developmental progress.

47. Tristan was also seen for speech therapy at Nemours in November 2009, and Nemours' report reveals that at that time, Tristan continued in speech therapy and his mother reported that he knew approximately 15 words; was very socially interactive; appeared to comprehend well; and was learning new things; including letters; shapes; and colors.

48. Subsequently, the Hostetler family moved to Virginia.

    
    

    There, Tristan was seen by Dr. Lynn Cao, on March 5, 2010, for a "well child" checkup, at about two years of age. Dr. Cao recommended that Tristan resume speech therapy, but

    Mrs. Hostetler wanted to wait to see if Tristan continued to make progress on his own. Dr. Cao expressed concerns for autism features, which included poor eye contact, sensitivity to touch

    (including a temper tantrum), and non-responsiveness to verbal engagement. Dr. Cao noted that Mrs. Hostetler was adamant that Tristan did not have autism, as he had normal behavior at home and with other acquaintances. However, she agreed to revisit the autism issue again in one month's time. That said, she did not return to Dr. Cao's office, instead choosing to change Tristan's pediatrician.

49. On March 10, 2010, Tristan had a two-year-old checkup with Barbara Wiater, PNP, at All Pediatrics in Woodbridge, Virginia. No parental concerns were voiced at that visit. At that visit, Tristan's fine motor skills included being able to use a fork, spoon, and cup. His gross motor skills included ambulating without a limp, running, and being up on his toes. He understood two-step commands; asked questions; and spoke in small sentences. Tristan's lower and upper extremity joints were described in the report as "normal." Neurologically, Tristan's sensory situation was described as "sees/hears well" as reported by his mother. His head was considered atraumatic; his neck was supple; his range of motion was normal. His coordination, gait, and motor skills were also described as "normal."

50. Tristan's subsequent visits to All Pediatrics, up to and including December 11, 2010, were for the treatment of

    illnesses, and no developmental concerns were addressed during those visits.

51. Regarding the etiology of Tristan's impairment, Respondent offered the report of Dr. Donald Willis, a board- certified obstetrician with special competence in maternal-fetal medicine. His report, issued February 24, 2010, after review of medical records provided by Respondent, was that those medical records "did not suggest oxygen deprivation to the baby during labor, delivery or in the immediate post delivery period."

    Dr. Willis relied on Tristan's fetal heart rate tracing without distress during labor, his normal Apgar scores, and a normal umbilical artery pH of 7.24. He acknowledged that the records showed a skull fracture during delivery which could have resulted in brain injury and a cerebral infarct that occurred during the perinatal period, but he could not comment on the time of the brain injury.

52. Dr. Michael Duchowny, a board-certified pediatric neurologist, reviewed and analyzed Tristan's medical records and performed a medical examination and evaluation of him on

    March 17, 2010. Dr. Duchowny's deposition was offered to show lack of substantial mental and physical impairment.

53. In short, Dr. Duchowny believed that Tristan was developing only slightly behind his age level, and did not believe that Tristan had a substantial mental or motor

    (physical) impairment, despite commenting on a temper tantrum. He opined further that Tristan's impairment, which in his opinion was not substantial, was most likely caused by a pervasive developmental disorder and was not caused by mechanical injury or oxygen deprivation in the course of labor or delivery. Dr. Duchowny did not discuss postdelivery resuscitation.

54. As to any impairment, Dr. Duchowny testified, in pertinent part, as follows:

    Q. Based upon your review and examination of Tristan, were you able to form an opinion as to whether or not he suffered from a permanent and substantial physical impairment?

    
    

    A. Yes. In my opinion, he did not suffer from a permanent or substantial mental or physical impairment.

    
    

    Q.: . . . Just so that I'm clear, you did form an opinion, and your opinion is that he does not have a permanent or substantial mental or physical impairment.

    
    

    A. That's correct. (Joint Ex. M: Deposition page 21; Bates 811).

    
    

    * * *

    
    

    Q. Now in your summary which you spoke of a moment ago, you mentioned that Tristan, or stated that his presentation is consistent with a pervasive developmental disorder.

    
    

    Could you explain to us what you mean by that?

    A. Yes. Well, I think these problems are developmentally based in the sense that he's going to get better, and I use the term pervasive just because that is a term that is in use if there are developmental problems in more than one domain. And since Tristan is slightly behind in his language and slightly behind in his motor development with respect to using both arms equally, I adopted that term. (Joint Ex. M: Deposition page 22; Bates 812).

    
    

55. Relevant to Tristan's development, Dr. Duchowny testified:

    Q. . . . you mentioned the development milestones that were reported to you by the mother and grandmother, and you mentioned that he [Tristan] rolled over at three months.

    
    

    Is that normal from a developmental perspective?

    
    

    A. That's fine.

    
    

    Q. You were told that he sat up at five months on his own.

    
    

    Is that normal from a developmental perspective?

    
    

    A. Yes, its slightly early.

    
    

    Q. He stood at nine months, is that normal?

    
    

    A. Yes.

    
    

    Q. He walked at ten months, is that normal?

    
    

    A. Yes.

    
    

    Q. As far as his speech is concerned, he began saying single words at twenty months.

    
    

    Is that normal?

    
    

    A. Well, most children, but not all, start to talk at approximately, a year of age. Probably speech should begin between ages twelve and eighteen months. So he was very slightly behind with respect to the onset of his speech.

    
    

    Q. And did she, meaning his mother, in reporting the history to you indicate that despite the fact that he was slightly delayed with the speech, that he was making progress as far as that's concerned?

    
    

    A. Yes. (Joint Ex. M: Deposition pages 15-16; Bates 805-806).

    
    

56. Mrs. Hostetler's deposition testimony of November 19, 2010, shows she believes that, despite his rocky initial hospital course, Tristan has shown improvement and continues to improve. Specifically, she testified that she thought he was now on track with his development. Although it was hard for her to determine this, because Tristan was only two-and-a-half years old, and it was, in her opinion, difficult to understand him, she testified that she believed he was on track with his peers.

57. Mrs. Hostetler testified that Tristan no longer receives any type of speech or language therapy, and that speech and language therapy was discontinued in December 2009, when the family moved to Virginia. If the family had not moved,

    Mrs. Hostetler would have continued Tristan in speech therapy, but this assistance was discontinued at that time because the speech therapist had informed her that Tristan was at a place

    where, if the family chose to discontinue speech therapy and not pursue it further, they were in an "okay place to do that." Mrs. Hostetler testified that the family intends to wait a little longer before thinking about pursuing further speech therapy, although she believes it is still too early to tell whether Tristan is going to have any problems with speech as he gets older. She acknowledged that the speech therapist in Jacksonville, Florida, had diagnosed Tristan with oral-verbal apraxia and that she believed that diagnosis would not go away.

58. However, since the family has moved to Virginia, Mrs. Hostetler has not observed any regression in Tristan's speech or language abilities, and she has observed that he has improved. She expects him to continue to improve, despite his not receiving any speech or language therapy as of November 19, 2010. She stated that she had no "normal" child to reasonably compare with Tristan, but she expected there to be problems in the future with Tristan's physical dexterity due to his left- sided weakness, and she intended to seek more occupational therapy at that point.

59. Therefore, it would appear that, despite some left hand and left side weakness, Tristan has continued to develop normally, and since 2009, he has not required the assistance of any occupational, physical, or speech therapy in order to progress. He has continued to improve without formal physical

    and occupational therapies, and his improvement has been sufficient so that his parents have not considered it necessary to pursue neurological evaluations or treatment since

    November 2009.

    
    

60. According to Tristan's father, James D. Hostetler, who also testified by a November 19, 2010, deposition, Tristan is doing well mentally, and other than left-sided weakness in his arm, Tristan does not suffer from any other physical issues.

61. Specifically, Mr. Hostetler testified to Tristan's mental status, as follows:

    1. Mentally I feel that he is doing well. I feel that he is probably along the track that he should be. Some kids are faster. Some kids are slower.

       
       

       Physically he still has left-sided weakness in his arm and tends not to use it as much.

       
       

       * * *

       
       

       Q. Generally speaking, are there any other physical issues that he is contending with right now?

       
       

       A. Not to my knowledge, not that I have observed, no.

       
       

       Q. Okay. And from a mental perspective, you indicated he was doing well and seems to be performing and progressing along, I think you said, a normal track. I think those were your words. Correct me if I'm wrong.

       
       

       From that perspective as his parent, just observing him in his development, you

       don't currently see any issues there as far as his mental development is concerned?

       
       

       A. With my limited knowledge of development, no, I don't. (Joint Ex. K: Deposition pages 10-11; Bates 666-667).

       
       

       * * *

       
       

62. Mr. Hostetler testified with regard to Tristan's current physical situation as follows:

    [Mr. Hostetler continuing] From my perspective, he favors his right side. It is definitely not only his dominant side but his preferred side.

    
    

    When I speak of left-sided weakness, what I refer to--and will provide an example--is we have him stand on a step stool and wash his hands before and after meals, and he will only extend his right arm underneath the faucet to wash his hand. He won't put his arms together and lean over together, nor will he just extend his arm fully to only wash that.

    
    

    Because he does that, we want to make sure both of his hands are clean. So we pull his left hand towards the faucet so that we can wash it, and it brings him into a panic state. He starts crying, starts screaming.

    
    

    So, I'm unsure if it is psychological, whether he just doesn't want to do it, or if it is actually causing him pain. I can't distinguish between the two cries.

    
    

    Q. Has he received any care or treatment from a medical professional for that issue?

    
    

    A. The only treatment that I can recall was when he was in Jacksonville with I believe their name is Baptist Medical Center

    Rehabilitation Services. He was receiving occupational therapy from them.

    
    

    Q. And when was the last time that he would have received that type of therapy?

    
    

    A. It would have been late 2009, because we left the Jacksonville area the beginning of January 2010. (Joint Ex. K: Deposition pages 20-21; Bates 676-677).

    
    

    * * *

    
    

    Q. What hand does he use when he colors?

    
    

    A. His right hand.

    
    

    Q. I assume he is right-handed.

    
    

    A. Yes. He is definitely right-handed.

    
    

    So I do expect to see some dominance of his right hand. But I also expect to see him use his left hand more than he does.

    
    

    Q. Now that's what I was about to ask you.

    
    

    It is not that he doesn't use his left hand. It is just that he doesn't use it as much or as you would like him to or expect him to. Is that fair?

    
    

    A. Well, if I had to put a number on it, I would give it a 95 percent right hand, 5 percent left hand, just from what I have observed. (Joint Ex. K: Deposition pages 33-34; Bates 689-690).

    
    

    * * *

    
    

    Q. My only question is, Tristan can run without any problems or issues?

    
    

    A. Yes, he can run.

    
    

    Q. Do you have stairs in your house?

    A. Yes, I do.

    
    

    Q. Does he have any problem walking up or walking down those stairs?

    
    

    A. He has a problem holding--well, let me answer that. No, he doesn't. He just has a problem listening to us when we tell him to hold the rail while he is doing it.

    
    

    Q. Understood. From a physical stand point, there's no issue there with respect to his ability to walk up and down stairs?

    
    

    A. Physically, he can walk up and down stairs.

    
    

    But we have to constantly remind him that we want him to lead with his left foot, because if we don’t tell him, he will walk up with his right foot. He will take one step with his right foot onto the next step, bring his left leg up and then bring the right foot up to the next step again.

    
    

    We have to constantly remind him to use the left foot, use the left foot. When we do tell him that, he will do it. (Joint Ex. K: Deposition pages 35-36; Bates 691-692).

    
    

    * * *

    
    

    Q. Are you saying that the left-sided weakness applies to his entire body?

    
    

    A. I would stay that, because he prefers to walk upstairs with his right foot leading first always, unless we tell him to use his left foot or use his left leg first.

    
    

    Q. Is there anything that you notice in his face, like an eye droop or anything obvious on the left side of his face regarding this weakness?

    
    

    A. Nothing that I notice, no.

    Q. Okay. And does he ever kick a ball when he is out in the yard?

    
    

    A. Yes. He has kicked a ball around.

    
    

    Q. Okay. Will he kick with his left foot?

    
    

    A. I have never seen him kick with his left foot. But you know, again, until my wife started working, she was the one who was pretty much at home with him all the time, and my hours are pretty ridiculous.

    
    

    Q. So then, I would understand the left- sided weakness to apply to I guess all of his body, at least under the neck. But he can use the left side of his body. He just prefers the right side?

    
    

    A. He is not paralyzed on the left side. But yes, I think that's fairly accurate to say below the neck, since it deals with his left arm and his left leg, left foot.

    
    

    Q. Okay. Is there any noticeable difference in the size of his left leg compared to his right leg? Is there any atrophy that you can see or does he appear physically equal on both legs?

    
    

    A. I would say he appears equal.

    
    

    Q. Would that same statement hold true to his left and right arms?

    
    

    A. Yes.

    
    

    Q. Okay. So when he is walking around, not doing any particular task, you don't notice any discrepancy in his left arm or his right arm. Is that true?

    
    

    A. That is true.

    
    

    Q. He doesn't guard his left arm or walk around with it across or somehow held up close to his trunk. Correct?

    
    

    A. What do you mean by "up close to his trunk"?

    
    

    Q. He doesn't guard his left arm, does he? Both arms are physically held similarly when he is not doing any particular task, just standing there or just walking around?

    
    

    A. Yes. He doesn't guard his left arm. (Joint Ex. K: Deposition pages 42-44; Bates 698-700).

    
    

63. Tristan had a difficult delivery and a difficult postdelivery course, but given the record, it must be resolved that Tristan's impairments were, more likely than not, occasioned by a developmental abnormality that preceded the onset of labor, and not by an injury to the brain occurring in the course of labor, delivery, or resuscitation.

64. More significant for the instant case, however, is that Petitioners, who bear the burden of proof, have failed to establish that Tristan is permanently and substantially physically and mentally impaired, regardless of whether or not he sustained an injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or the immediate postdelivery period in a hospital.

    CONCLUSIONS OF LAW

    
    

65. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. §§ 766.301-766.316, Fla. Stat.

66. The Florida Birth-Related Neurological Injury Compensation 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 after January 1, 1989. § 766.303(1), Fla. Stat.

67. The injured infant, her or 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. §§ 766.302(3), 766.303(2), and 766.305(1), Fla. Stat. The Florida Birth- Related Neurological Injury Compensation Association, 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 submit relevant written information relating to the issue of whether the injury is a birth-related neurological injury."

    § 766.305(4), Fla. Stat.

    
    

68. 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. § 766.305(7), Fla. Stat. 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. §§ 766.304, 766.309, and 766.31, Fla. Stat.

69. In discharging this responsibility, the Administrative Law Judge must make the following determination based upon available evidence:

    1. Whether the injury claimed is a birth- related neurological injury. If the claimant has demonstrated, to the satisfaction of the administrative law judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.303(2).

       
       

    2. Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery 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 postdelivery 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.

70. Pertinent to this case "birth-related neurological injury" is defined by section 766.302(2), to mean:

    injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 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 an 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.

    
    

71. As the proponent of the issue, the burden rested on Petitioners to demonstrate that Tristan suffered a "birth- related neurological injury." § 766.309(1)(a), Fla. Stat. See

    also Balino v. Dep't of Health and Rehab. Servs., 348 So. 2d 349, 350 (Fla. 1st DCA 1997)("[T]he burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal." (citation omitted)).

72. The record does not affirmatively demonstrate that Tristan's infirmities were acquired during the statutory period or that they are the result of mechanical injury or oxygen deprivation. Also, the proof failed to support a conclusion that, more likely than not, Tristan has permanent and substantial mental impairment and permanent and substantial physical impairment. Consequently, given the provisions of

section 766.302(2), Tristan does not qualify for coverage under the Plan. See also §§ 766.309(1) and 766.31(1), Fla. Stat.; Humana of Fla., Inc. v. McKaughan, 652 So. 2d 852, 859 (Fla. 5th 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, Fla. Birth-Related Neurological Injury Comp. Ass'n v. McKaughan, 668 So. 2d 974,979 (Fla. 1996).

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED:

The claim for compensation filed by James D. Hostetler and Elizabeth O. Hostetler, on behalf of and as natural guardians of Tristan A. Hostetler, a minor, is dismissed with prejudice.

DONE AND ORDERED this 29th day of April, 2011, in Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2011.

ENDNOTES

1/ Joint Exhibit A: Medical records from Baptist Medical Center Beaches for Elizabeth Hostetler dated March 4, 2008 to March 6, 2008 (Bates 1-45); Joint Exhibit B: Fetal monitor strips dated March 4, 2008 (Bates 46-137); Joint Exhibit C: Medical records from Baptist Medical Center Beaches for Tristan Hostetler dated March 4, 2008 (Bates 138-153); Joint Exhibit D: Medical Records from Wolfson's Children's Hospital for Tristan Hostetler dated March 5, 2008 through April 22, 2008 (Bates 154- 466); Joint Exhibit E: Medical records from Nemours Children's Hospital for Tristan Hostetler dated March 6, 2008 through November 20, 2009 (Bates 467-520); Joint Exhibit F: Medical records from Oceanside Pediatrics for Tristan Hostetler dated April 24, 2008 through November 19, 2009 (Bates 521-618); Joint Exhibit G: Medical records from Baptist Medical Center Rehabilitation Services for Tristan Hostetler dated June 9, 2008 through May 29, 2009 (Bates 619-640); Joint Exhibit H: Report of Dr. Michael Duchowny dated March 17, 2010 (Bates 642-646); Joint Exhibit I: Report of Dr. Donald Willis dated February 24, 2010 (Bates 647-648); Joint Exhibit J: Petitioners' Answers to Respondent's Interrogatories served on September 22, 2010 (Bates 649-656); Joint Exhibit K: Transcript of Deposition of James Hostetler taken on November 19, 2010 (Bates 657-715); Joint Exhibit L: Transcript of the Deposition of Elizabeth Hostetler taken on November 19, 2010 and Deposition Exhibits 1-2 (Bates 716-790); Joint Exhibit M: Transcript of Deposition of Dr.

Michael Duchowny taken on January 6, 2011 and Deposition Exhibits 1-2 (Bates 791-880); Joint Exhibit N: Medical records from Dr. Lynn Cao, Children's Health, for Tristan Hostetler, dated March 5, 2010 (Bates 881-884); Joint Exhibit O: Medical records from All Pediatrics for Tristan Hostetler, dated March 10, 2010 through December 11, 2010 (Bates 885-894).

2/ Interpreted by the undersigned as "through" or "throughout."

3/ Apgar scores are a numerical expression of the condition of a newborn infant and reflect the sum of points gained on assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and color, with each category being assigned a score ranging from the lowest score of zero to a

maximum of two. See Dorland's Illustrated Medical Dictionary, 1497 (28th ed. 1994).

4/ Interpreted by the undersigned as "infarct."

5/ "Apraxia" is a loss of ability to carry out familiar, purposeful movements in the absence of paralysis or other motor or sensory impairment. See Dorland's Illustrated Medical Dictionary, 110-111 (28th ed. 1994).

COPIES FURNISHED:

(Via Certified Mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association 2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

Amy Rice, Acting Investigation Manager Consumer Services Unit

Department of Health

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

(Certified Mail No. 7010 1670 0000 3097 1390))

Elizabeth Dudek, Deputy Secretary Health Quality Assurance

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7010 1670 0000 3097 1406)

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: 09-007043N

Orders for Case No: 09-007043N