STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBIN DUPONT and STEVE L. DUPONT, )

as parents and natural guardians ) of BRITTNAY DUPONT, a minor, and ) ROBIN DUPONT and STEVE L. DUPONT, )

individually, )

)

Petitioners, )

)

vs. ) CASE NO. 93-5805N

) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )

)

Respondent, )

and )

)

ERIC N. FRELING, M.D., )

)

Intervenor. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on June 22, 1994, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioners: Scott P. Schlesinger, Esquire

Sheldon J. Schlesinger, P.A. 1212 Southeast Third Avenue Fort Lauderdale, Florida 33316

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

Taylor, Brion, Buker & Greene

225 South Adams Street, Suite 250 Post Office Box 11189 Tallahassee, Florida 32302-3189

For Intervenor: Darlene Stosik, Esquire

Klein, Tanner & Cohen, P.A. Presidential Circle, Suite 620 North 4000 Hollywood Boulevard

Hollywood, Florida 33021 STATEMENT OF THE ISSUE

Whether Brittnay Dupont has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.

PRELIMINARY STATEMENT

On or about October 8, 1993, Robin Dupont and Steve L. Dupont, as parents and natural guardians of Brittnay Dupont, a minor, and Robin Dupont and Steve L. Dupont, individually, filed a claim with the Division of Administrative Hearings (hereinafter referred to as "DOAH") for compensation under the Florida Birth- Related Neurological Injury Compensation Plan (hereinafter referred to as the "Plan").

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on or about October 11, 1993. NICA reviewed the claim, and on or about May 11, 1994, gave notice that it had "determined that such claim is not a `birth-related neurological injury' within the meaning of Section 766.302(2), Florida Statutes," and requested that the Hearing Officer "enter an order setting a hearing in this cause on the issue of the compensability of this claim."

On May 19, 1994, DOAH issued a notice of hearing advising the parties that an evidentiary hearing would be held on June 22, 1994, to resolve the issue of compensability.

At hearing, petitioners called no witnesses, but their exhibits 1-10 were received into evidence. Respondent likewise called no witnesses but its exhibit

1 was received into evidence. Intervenor called no witnesses and offered no exhibits.

The transcript of hearing was filed July 18, 1994, and the parties were accorded ten days from that date to file proposed findings of fact. Respondent elected to file such proposals and they are addressed in the appendix to this final order.

FINDINGS OF FACT

1. Brittnay Dupont (Brittnay) is the natural daughter of Robin Dupont and Steve L. Dupont. She was born a live infant on October 11, 1991, at Memorial Hospital in Hollywood, Broward County, Florida, and her birth weight was in excess of 2500 grams.

   
   

2. The physician providing obstetrical services during the birth of Brittnay was Eric N. Freling, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.

   
   

3. Brittnay was the product of an uncomplicated pregnancy when her mother, Robin Dupont, was admitted to Memorial Hospital on October 10, 1991, ten days post term.

   
   

4. At or about 1:30 p.m., October 10, 1991, the vaginal membrane was artificially ruptured, and the presence of lightly meconium stained amniotic fluid was observed. As a result, Dr. Freling called the attending neonatologist to be present during the delivery of Brittnay to prevent the aspiration of meconium.

   
   

5. According to the delivery summary, the first stage of labor began at 3:00 p.m., and lasted seven hours and forty-five minutes; the second stage of labor lasted one hour and fifty-four minutes; and the third stage of labor

   lasted eleven minutes, with Brittnay being delivered at 12:29 a.m., October 11, 1991. At approximately two and a half hours prior to delivery, the fetal heart rate monitor indicated that Brittnay experienced "some late decelerations down to as low as 90 with good recoveries to 120 to 150." Pitocin was stopped, and the "late decelerations lasted approximately one hour which were then followed by a reassuring heart rate pattern of 150 with accelerations to 180." During the third stage of labor there were also variable decelerations noted but, as with the prior decelerations, were not felt to be, and were not shown in this proceeding to be, significant or reflective of any problem with the delivery.

   
   

6. Upon delivery, Brittnay was immediately suctioned, successfully, by Dr. Freling and the attending neonatologist to prevent the aspiration of meconium, and was administered positive pressure ventilation with 100 percent oxygen for two minutes to address what may be characterized as mild respiratory distress.

   
   

7. At birth, Brittnay's Apgar scores at one and five minutes were three and eight, respectively. These scores are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of the heart rate, muscle tone, respiratory effort, color and reflex irritability, with each category being assigned a score ranging from the lowest score of zero through a maximum score of two. 1/ As noted, at one minute Brittnay's Apgar score totaled three, with heart rate being graded at two, reflex irritability being graded at one, and muscle tone, respiratory effort and color being graded at zero. At five minutes, Brittnay's Apgar score totaled eight, with heart rate, reflex irritability and respiratory effort being graded at two each, and muscle tone and color being graded at one each.

   
   

8. At fifteen minutes of age, Brittnay was noted to have some "respiratory stridor with poor perfusion and some jitteriness," and was taken to the Newborn Intensive Care Unit for further evaluation. Neurological examination revealed a "jittery infant who was tremulous and with decreased tone throughout." The discharge summary further reflects that:

   
   

   The patient was evaluated by Dr. Brown of neurology. He noted that the infant had a left partial brachial palsy, that her tone was generally decreased. She had a

   high-pitched cry. She was irritable. She had sustained ankle clonus, left greater than right. Facial muscles were felt to be within normal limits. There was a small parietal cephalhematoma present. His impression was perinatal distress with upper and probable lower partial brachioplexus palsy.

   
   

   The infant was followed over as period of several days, begun on feeding. On the second day of life although she had initial trouble latching on she would take her feedings without difficulty and tolerated them without problems. She was advanced to full feedings and was doing well on them on the day of discharge, 10/14/91.

   Discharge examination showed continued neurological irritability with tremulousness at rest and irritability with stimulation.

   She had still small partial right mouth droop. Her left arm had improved motion of the forearm. Hand motion was good but the left shoulder did not respond to stimulation.

   There was excessive clonus noted at the feet and generalized hypotonia was persistent.

   Her high-pitched cry had improved to a more normal cry. She was in stable condition and eating well and was discharged for further follow up on an outpatient basis.

   
   

9. Over the years that have ensued since Brittnay's discharge from Memorial Hospital she has been evaluated by numerous physicians who have spent a considerable period of time trying to determine the etiology or cause of her impairment (i.e., whether prenatal in origin or acquired during the birthing process). That Brittnay suffers a profound impairment of her motor ability, as evidenced by a marked generalized hypotonia and hyporeflexia, that has rendered her permanently and substantially physically impaired is evidence from the proof in this case, and not subject to dispute. What is disputed is whether such physical impairment was caused by oxygen depravation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post delivery period, and whether Brittnay is permanently and substantially mentally impaired.

   
   

10. Turning first to the issue of Brittnay's mental condition, it must be concluded that the proof fails to support the conclusion that Brittnay suffers any mental impairment, much less a substantial and permanent mental impairment. Rather, the proof is compelling that Brittnay's attention and overall cognitive functioning are age appropriate, that she has not suffered any mental impairment, and that she suffered no oxygen deprivation or mechanical injury during the course of labor, delivery or resuscitation in the immediate post- delivery period that was, more likely than not, apt to cause any permanent and substantial mental impairment. 2/

    
    

11. As to the etiology of Brittnay's motor impairment, the proof demonstrates that, more likely than not, such impairment is a consequence of a congenitally acquired peripheral muscle disease, which is wholly unrelated to any brain or spinal cord injury, and is not associated with any event that might have occurred during labor, delivery or resuscitation in the immediate post delivery period. 3/

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceeding. Section 766.301, et seq., Florida Statutes (1993).

    
    

13. 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.

14. 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 within five years of the infant's birth. 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.

    
    

15. 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 Hearing Officer 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 Hearing Officer in accordance with the provisions of Chapter 120, Florida Statutes. Sections 766.304, 766.307, 766.309 and 766.31, Florida Statutes.

    
    

16. In discharging this responsibility, the Hearing Officer must make the following determinations 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 hearing officer, 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.

       
       

       Section 766.309(1), Florida Statutes. 4/ An award may be sustained only if the Hearing Officer 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.

17. 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.

    
    

18. Here, the parties stipulated that the attending physician who provided obstetric services during the birth of Brittnay Dupont was a "participating physician" as that term is defined by Section 766.302(7), Florida Statutes, and as that term is used in Sections 766.301 through 766.316, Florida Statutes. However, the record developed in this case failed to demonstrate that Brittnay suffer a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. As noted in the findings of fact, the persuasive proof demonstrated that the physical impairment she suffered was congenital in origin and not related to any event which occurred during the birthing process, and, moreover, that Brittnay had not suffered any mental impairment. Accordingly, since Brittnay was not shown to be "permanently and substantially mentally and physically impaired" the subject claim is non-compensable under the Plan. Sections 766.302(2), 766.309(1) and 766.31(1), Florida Statutes

    
    

19. Where, as here, "the hearing officer 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 Robin Dupont and Steve

L. Dupont, as parents and natural guardians of Brittnay Dupont, a minor, and Robin Dupont and Steve L. Dupont, individually, be and the same is hereby denied with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of August 1994.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of August 1994.

ENDNOTES

1/ See, Petitioners' exhibit 10, volume 1, delivery summary, and Dorland's Illustrated Medical Dictionary, Twenty-Sixth Edition (1985).

2/ In reaching the foregoing conclusion, the opinion of Dr. David Abramson (petitioner's exhibit 1) has not been overlooked. I do not, however, accept Dr. Abramson's opinion on the issue of whether Brittnay suffered a substantial and permanent mental impairment. His opinion on this issue lacks credibility based on the lack of information utilized to formulate his opinion, including his failure to examine the infant or speak with the parents and treating physicians, and is contrary to the credible proof of record. Rather, the credible proof, including the observations of the parent and Dr. Michael Duchowny, which are most consistent with the medical documentation, demonstrates that Brittnay has suffered no mental impairment.

3/ Dr. Abramson's opinion with regard to the cause of Brittnay's physical impairment has also been rejected as not persuasive. Rather, Dr. Duchowny's opinion has been found most consistent with the proof and has, accordingly, been credited.

4/ Where, as here, NICA disputes the claim, the burden rests on the claimant 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), ("The burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.")

APPENDIX

Respondent's proposed findings of fact are addressed as follows:

1. Adopted in paragraph 1.

2. Adopted in paragraph 2.

3. Addressed in paragraphs 3 and 4.

4. Addressed in paragraph 5.

5. Addressed in paragraph 6.

6. Addressed in paragraph 7.

7-9. Addressed in paragraph 8, otherwise unnecessary detail.

10-19 Addressed in paragraphs 9-11 and endnotes 2 and 3, otherwise unnecessary detail or subordinate.

COPIES FURNISHED:

(By Certified Mail)

Scott P. Schlesinger, Esquire Sheldon J. Schlesinger, P.A. 1212 Southeast Third Avenue Fort Lauderdale, Florida 33316

W. Douglas Moody, Jr., Esquire Taylor, Brion, Buker & Greene

225 South Adams Street, Suite 250 Post Office Box 11189 Tallahassee, Florida 32302-3189

Darlene Stosik, Esquire Klein, Tanner & Cohen, P.A.

Presidential Circle, Suite 620 North 4000 Hollywood Boulevard

Hollywood, Florida 33021

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 1528

Tallahassee, Florida 32302

Ms. Charlene Willoughby Department of Business

and Professional Regulation Consumer Services

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0750

Ms. Tanya Williams

Division of Health Quality Assurance Hospital Section

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Bill O'Neil General Counsel

Department of Insurance The Capitol PL LL

Tallahassee, Florida 32399-0300

Eric Freling, M.D.

12251 Taft Street

Pembrook Pines, Florida 33026

South Broward Hospital District d/b/a Memorial Hospital

Legal Department 3501 Johnson Street

Hollywood, Florida 33021

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules Of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk Of The Division Of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See, Section 120.68(2), Florida Statutes, and Florida Birth- Related Neurological Injury Compensation Association v. Carreras, 598 So.2d 299 (Fla. 1st DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 93-005805N

Orders for Case No: 93-005805N