STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MANUEL PALMERO and MARY JANE )
PALMERO, as parents and natural ) guardians of BRITNEY PALMERO, a ) minor, )
)
Petitioners, )
)
vs. ) Case No. 95-0660N
) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )
)
Respondent. )
___________________________________)
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on February 4, 1998, in Miami, Florida, and, with the parties' agreement, by teleconference on February 27, 1998.
APPEARANCES
For Petitioner: Andrew Needle, Esquire
Needle, Gallagher and Areces, P.A. 1401 Brickell Avenue, Suite 900
Miami, Florida 33131
For Respondent: W. Douglas Moody, Jr., Esquire
Graham & Moody, P.A.
101 North Gadsden Street Tallahassee, Florida 32301
STATEMENT OF THE ISSUE
At issue in this proceeding is whether Britney Palmero, a
minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
PRELIMINARY STATEMENT
On January 30, 1995, Manuel Palmero and Mary Jane Palmero, as parents and natural guardians of Britney Palmero, a minor, filed a petition (claim) with the Division of Administrative Hearings (hereinafter referred to as "DOAH") for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (hereinafter referred to as the "Plan").
DOAH served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on February 15, 1995,1 and on March 22, 1995, following review of the claim, NICA gave notice that it had "determined that such claim is not a 'birth-related neurological injury' within the meaning of Section 766.302(2), Florida Statutes," and requested that "an order [be entered] setting a hearing in this cause on the issue of the compensability of this claim." Following a period of abatement, requested by Petitioners, such a hearing was held on February 4 and 27, 1998.
At hearing, Petitioners, Manuel Palmero and Mary Jane Palmero, testified on their own behalf, and called, as
additional witnesses, Esther Feldman, Ph.D., a neuropsychologist, and Sara Dorison, M.D., a pediatric neurologist. Petitioners' Exhibits 1A through 1I, and 2 through 13, were received into evidence. Respondent called, as witnesses, Charles Kalstone, M.D., an obstetrician/gynecologist, and Michael Duchowny, M.D., a pediatric neurologist. Respondent's Exhibits 1 through 5 were received into evidence.
The transcript of the February 4, 1998, hearing was filed on March 3, 1998, and the transcript of the February 27, 1998, hearing was filed on March 20, 1998. The parties requested and were accorded thirty days from March 20, 1998, to file proposed final orders. Consequently, the parties waived the requirement that a final order be rendered within thirty days after the transcript has been filed. Rule 60Q-2.031, Florida Administrative Code. The Respondent elected to file such a proposal, and it has been duly considered in the preparation of this final order.
FINDINGS OF FACT
Preliminary matters
Manuel Palmero and Mary Jane Palmero are the parents and natural guardians of Britney Palmero (Britney), a minor. Britney was born a live infant on January 11, 1993, at South
Miami Hospital, a hospital located in South Miami, Dade County, Florida, and her birth weight exceeded 2500 grams.
The physician providing obstetrical services during the birth of Britney was Julio Somoano, M.D., who was, at all times material hereto, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes.
Mrs. Palmero's antepartum course and Britney's birth
On January 11, 1993, Mrs. Palmero was admitted to South Miami Hospital for induction of labor. At the time, her estimated date of confinement was January 19, 1993, and her antepartum course was without apparent complication; however, due to Mrs. Palmero's expressed discomfort during the later stage of pregnancy, and the size of the baby (over eight pounds), it was resolved to deliver the baby prior to its due date.
Mrs. Palmero's initial admission on January 11, 1993, occurred at or about 7:50 a.m. Thereafter, at or about
8:00 a.m., external fetal monitoring commenced, and revealed a normal fetal heart rate pattern or, stated differently, reflected evidence of fetal well-being.
Mrs. Palmero received her first Prostin gel, as the first step in the induction of labor, at 9:45 a.m., and her
second at about 11:45 a.m. Following the second Prostin gel, mild irregular contractions were noted; however, her cervix did not progress (she did not go into labor), and at 2:00 p.m. Mrs. Palmero was sent home with instructions to call if she began to experience regular contractions, if the membranes ruptured, or if she observed any vaginal bleeding. During the period she was monitored, and until her discharge at 2:00 p.m., no vaginal bleeding was observed, and the fetal heart rate pattern continued to evidence fetal well-being.
Mrs. Palmero returned to labor and delivery at or about 3:21 p.m. complaining of increased "intensity of cramps" and some bloody discharge. A small amount of red vaginal blood, with mucus, was noted; however, vaginal examination revealed the cervix (at 1 centimeter, effacement at 50 percent, and the fetus at station -2) to be unchanged. External fetal monitoring again revealed a reassuring fetal heart rate and, at 3:40 p.m., there
being no evidence that she was yet in labor, the instructions previously given were reviewed and Mrs. Palmero was sent home.
At or about 8:00 p.m., January 11, 1993, Mrs. Palmero returned to labor and delivery complaining of moderately bright red bleeding. According to Mrs. Palmero, her membranes ruptured at 7:00 p.m. with pinkish fluid noted. Vaginal
examination revealed the cervix to be at 1 to 2 centimeters, effacement at 50 percent, and the fetus at station -2. A moderate amount of red fluid with occasional clots was observed by the nurse. Contractions were noted at a frequency of 1 1/2 to 3 minutes, with moderate intensity, and fetal heart rate was noted as stable, with good variability.
At 8:45 p.m. it was noted that Mrs. Palmero continued to leak a large to moderate amount of red fluid from the vagina, but no clots were noted. Fetal heart rate remained stable. Dr. Somoano was notified by phone of the patient's status, and he announced he was enroute to the hospital.
Dr. Somoano arrived at the hospital at or about 9:15 p.m. Vaginal examination revealed the cervix to be
3 centimeters, effacement complete, and the fetus at station -
Fetal heart rate remained stable. Given Mrs. Palmero's presentation on admission, Dr. Somoano entertained the likelihood of abruptio placenta, but, there being no evidence of fetal distress, elected to proceed with a normal delivery. An epidural anesthetic was ordered.
Following the epidural, Mrs. Palmero's contractions were less frequent. Given the stability of the fetal heart rate pattern, Dr. Somoano ordered Pitocin to augment labor.
Pitocin was started at 10:45 p.m., which brought Mrs. Palmero's contractions closer together; however, given that she began bleeding more and her cervix had only progressed to 5 centimeters, Dr. Somoano elected to proceed by cesarean section to avoid the risk of a complete abruptio. Consequently, at 11:15 p.m., Pitocin was discontinued and Mrs. Palmero was moved to the operating room. During this period, apart from a few mild variable decelerations consistent with cord compression, and one variable deceleration about 45 minutes before delivery, the fetal heart rate remained stable and continued to evidence fetal well-being.
The cesarean section was begun at 11:28 p.m., Britney was delivered at 11:29 p.m., and the procedure was complete at 11:45 p.m. During delivery, the cord was noted to be tight, around the baby's neck twice, and around the shoulder. Upon removal of the placenta, a marginal abruptio placenta, 15 to 20 percent, was observed.
Following delivery, Britney was handed off to the attending neonatologist, who assigned her Apgar scores of 7 at one minute and 9 at five minutes.
The Apgar scores assigned to Britney 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 0 through a maximum score of 2. As noted, at one minute Britney's Apgar score totalled 7, with heart rate and respiratory effort being graded at 2 each, and muscle tone, reflex irritability and color being graded at one each.2 At five minutes, her Apgar score totalled 9, with heart rate, respiratory effort, muscle tone, and reflex irritability being graded at 2 each, and color being graded at 1. Such scores are normal and, while they do not rule out the presence of an existent brain injury or anomaly, the presentation represented by those scores is not consistent with a neurologic insult (injury to the brain) having occurred during the birth process.
Britney's course and development subsequent to delivery
Following delivery, Britney was transported to the newborn nursery, where she was admitted at "0000" January 12, 1993. Apart from the admitting nurse noting that Britney was a little lethargic and hypotonic, Britney's presentation appeared grossly normal. Dr. Jose Luis, the pediatrician, was notified of Britney's admission to the nursery at 12:40 a.m., January 12, 1993, and his physical examination on that date, as well as his examinations of January 13 and January 14, 1993, described a normal new-born girl without evidence of abnormality.
During her stay in the nursery, Britney evidenced no problems, and her course was considered routine. She and her mother were discharged January 14, 1993.3
Britney's early infancy was characterized by good health, and no apparent problems were observed until approximately six to seven months of age. At that time, the parents observed that Britney's right hand was held in a closed fist position. The parents' concern was reported to Britney's pediatrician. He monitored Britney's progress, and in December 1993, referred her for a neurologic consult with Dr. Israel Alfonso at Miami Children's Hospital, Department of Neurology.
Britney was examined by Dr. Alfonso on or about January 6, 1994. At the time, Dr. Alfonso noted Britney's general examination as normal; however, her neurological examination revealed the following:
. . . neurological examination is characterized by a right hemiparesis that does not involve the face but it does involve the right arm, especially the right hand and also the right leg.
Her deep tendon reflexes are within normal range in all four extremities.
The right hand is somewhat smaller than the left, especially the thumb. The thumb is kept in a cortical position continuously. She did not use the right hand to grab any object while examined
though she occasionally opens that hand at will.
IMPRESSION: Right hemiparesis.
Dr. Alfonso recommended an MRI of the brain to identify the most likely cause for Britney's presentation.4
The MRI was performed on January 7, 1994, and provided the following findings and conclusions:
FINDINGS: There is focal signal abnormality seen in the left posterior frontal parietal region. This is reduced on the T1 weighted images and increased on the T2 weighted study. Also noted is enlargement of the left lateral ventricle. There is prominence of the sulcal folds in this region. Also, there is a discrepancy in the white matter volume with it being reduced on the left. There is a more immature myelin signal on the left particularly in the periventricular region. There is also noted thinning of the corpus callosum in the posterior body. The brain stem shows a reduction in size of the left cerebral peduncle. Evidence of mass effect, midline shift or hemorrhage is not seen.
CONCLUSION: Findings as described in keeping cystic encephalomalacia involving the posterior, frontal and anterior parietal region. Secondary diaschisis involving the left cerebral peduncle is noted as well as the posterior body of the corpus callosum. There is signal abnormality identified of the white matter in the left periventricular region and associated with the posterior frontal parietal region. While this may represent delayed maturation of myelin, leukomalacia should also be considered. In addition, there is a reduction in volume of the white matter of the left cerebral hemisphere identified when compared with that on the
right. These findings most likely represent a sequelae of a vascular insult.
The infarct (loss of brain tissue) in the left cerebral hemisphere, near the left middle cerebral artery, depicted by the MRI is consistent with a vascular insult (cerebral vascular accident or stroke). The vascular insult resulted in focal damage to a selected region of the left hemisphere, and was clearly the cause of the prominent right hemiparesis, evidenced by spasticity of the right arm and leg, with which Britney presents.5
The dispute regarding compensability
Given the proof, it cannot be subject to serious debate that Britney suffered an injury to her brain that resulted in neurologic impairment. What remains to resolve is the origin, nature and timing (genesis) of that injury or, more pertinent to these proceedings, whether the proof demonstrates, more likely than not, that the injury Britney suffered was "caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," as opposed to some other genesis.6 Section 766.302(2), Florida Statutes.
With regard to such issue, Petitioners contend that the brain injury was caused by oxygen deprivation (a hypoxic
ischemic injury), consequent to placental abruption, which occurred during the course of labor, delivery, or resuscitation. In contrast, Respondent contends the proof is not consistent with a hypoxic ischemic injury occurring during the course of childbirth but, rather, with a brain injury resulting from a vascular insult or infarct,7 commonly referred to as a stroke, suffered in the antenatal (prenatal) period. Respondent's view of the proof has merit.
The genesis of Britney's brain injury
Britney's presentation is consistent with a group of persisting motor disorders appearing in young children, commonly referred to as cerebral palsy, that 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. Such disorders result from brain damage caused by birth trauma, such as that which may result from oxygen deprivation or mechanical injury during labor or delivery, or may be associated with a intrauterine (antenatal) event or pathology, such as a vascular insult or stroke, genetic abnormality, or developmental abnormality.8
Here, the proof is compelling that Britney's brain injury resulted from a stroke suffered in the antenatal period, most likely after 30 weeks gestation and at least two
weeks prior to delivery, and that it was not associated with any event occurring during the course of labor, delivery, or the immediate post-delivery period.9
In so concluding, it is initially observed that the results of the neuro-imaging study (MRI) are inconsistent with brain injury resulting from oxygen deprivation. Rather, the neuro-imaging study, as well as Britney's neurologic examination, are consistent with focal damage occasioned by a left hemisphere stroke, as opposed to the bilateral or global damage one would typically associate with an injury occasioned by oxygen deprivation.
Moreover, Britney's course pre-delivery and post- delivery was inconsistent with hypoxic or ischemic damage occurring during the course of birth. First the stability of the fetal heart rate during labor and delivery affords objective proof that the marginal abruption Mrs. Palmero suffered did not adversely affect fetal oxygenation. Second, Britney's healthy presentation, as evidenced by her Apgar scores and uneventful hospital course, are inconsistent with the presentation and hospital course one would reasonably expect had the fetus suffered a brain injury, of the magnitude capable of producing the damage evidenced by Britney's MRI brain scan, during labor and delivery. Indeed, had such an event occurred, one would reasonably expect a severely
depressed infant on delivery, with an absence of respiratory effort, and whose hospital course would be reflective of neurologic insult, to include a likely onset of seizure activity. Here, Britney presented with normal Apgars, good respiratory effort, and her hospital course reflected an essentially healthy new-born.
In summary, the paucity of any evidence to suggest fetal compromise during labor and delivery, the conclusions reasonably drawn from the MRI scan, and Britney's presentation and hospital course present a picture that is wholly inconsistent with a birth-related injury. Moreover, the marginal nature of the placental abruption, given the evidence of fetal well-being during labor and delivery, renders it most unlikely that the abruption played any role in Britney's injury. Rather, giving due regard to the objective evidence, the conclusion is inescapable that the most likely cause of Britney's brain injury was a vascular insult or stroke, which occurred well prior to labor or delivery.10
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 766.301, et seq., Florida Statutes.
The Florida Birth-Related Neurological Injury Compensation Plan (the "Plan") was established by the Legislature "for the purpose of providing compensation, irrespective of fault, for birth-related neurological injury claims" relating to births occurring on or after January 1, 1989. Section 766.303(1), Florida Statutes.
The injured "infant, his personal representative, parents, dependents, and next of kin" may seek compensation under the Plan by filing a claim for compensation with the Division of Administrative Hearings 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.
If NICA determines that the injury alleged in a claim is a compensable birth-related neurological injury, it may award compensation to the claimant, provided that the award is approved by the administrative law judge to whom the claim has been assigned. Section 766.305(6), Florida Statutes. If, on the other hand, NICA disputes the claim, as
it has in the instant case, the dispute must be resolved by the assigned administrative law judge in accordance with the provisions of Chapter 120, Florida Statutes. Sections 766.304, 766.307, 766.309, and 766.31, Florida Statutes.
In discharging this responsibility, the administrative law judge must make the following determination based upon the available evidence:
Whether the injury claimed is a birth-related neurological injury. If the claimant has demonstrated, to the satisfaction of the administrative law judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.303(2).
Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post- delivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate post- delivery period in a hospital.
Section 766.309(1), Florida Statutes. An award may be sustained only if the administrative law judge concludes that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a
participating physician at birth." Section 766.31(1), Florida Statutes.
Pertinent to this case, "birth-related neurological injury" is defined by Section 766.302(2), Florida Statutes, to mean:
. . . injury to the brain or spinal cord of a live infant weighing at least 2,500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality.
As the claimants, the burden rests on Petitioners to demonstrate entitlement to compensation. Section 766.309(1)(a), Florida Statutes. See also Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349, 350 (Fla. 1st DCA 1977), ("[T]he burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.")
Here, it has been established that the attending physician who provided obstetrical services during the birth of Britney 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 proof failed to support the conclusion
that the injury she suffered was caused "by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period." Section 766.302(2), Florida Statutes. Rather, the proof demonstrated that, more likely than not, Britney's brain injury was caused by a vascular insult or stroke, which occurred during fetal development and well prior to the onset of labor. Accordingly, the subject claim is not compensable under the Plan. Sections 766.302(2), 766.309(1), and 766.31(1), Florida Statutes.
Where, as here, the administrative law judge determines that ". . . the injury alleged is not a birth- related neurological injury . . . he [is required to] enter an order [to such effect] and . . . cause a copy of such order to be sent immediately to the parties by registered or certified mail." Section 766.309(2), Florida Statutes. Such an order constitutes final agency action subject to appellate court review. Section 766.311(1), Florida Statutes.
CONCLUSION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
ORDERED, that the petition for compensation filed by Manuel Palmero and Mary Jane Palmero, as parents and natural
guardians of Britney Palmero, a minor, be and the same is hereby denied.
DONE AND ORDERED this 23rd day of April, 1998, in Tallahassee, Leon County, Florida.
___________________________________
WILLIAM J. KENDRICK
Administrative Law Judge Division of Administrative
Hearings
Hearings
The DeSoto Building 1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
Filed with the Clerk of the Division of Administrative
this 23rd day of April, 1998.
ENDNOTES
1/ The delay in serving the claim was occasioned by the failure of Petitioners to tender the filing fee when the claim was filed. The fee was tendered on February 15, 1995, and the claim was served the same day.
2/ Because of her decreased tone, Britney was administered Narcan at 3 to 5 minutes of life. Narcan was given to off-set a possible effect (transient neonatal depression) of Fentanyl, a narcotic contained in the epidural anesthesia received by the mother.
3/ The length of Britney's stay in the hospital was a consequence of the time needed for her mother to recover from the cesarean section, and not related to any problem in Britney's development.
4/ Dr. Alfonso also recommended that Britney be provided physical and occupational therapy. Such therapy was provided by Pediatric Therapy Group, Inc., from January 12, 1994, to April 13, 1994, and, thereafter, apparently, through the Dade
County School System. (Petitioners' Exhibit 1 (tab F), and Transcript, pages 120 and 121.)
5/ In so concluding, it has not been overlooked that Britney evidences brisk reflexes on both the right and left, and that her fine motor skills in the left hand may be below what one would expect of her age. Also not overlooked is the opinion of Petitioners' expert, Dr. Sara Dorison, that, based on such presentation, she is of the opinion that Britney's brain injury is global, as opposed to focal. However, for reasons hereafter observed, Dr. Dorison's opinions have been rejected as unreliable or inconsistent with the objective evidence.
Conversely, the opinions of Respondent's expert, Dr. Michael Duchowny, have been shown to be consistent with the objective evidence, and to rest on a logical foundation. Under the circumstances, the opinions of Dr. Dorison have been rejected, and those of Dr. Duchowny have been credited. Consequently, it is accepted, as Dr. Duchowny observed, that the presence of brisk responses on the left, as an isolated finding, is not necessarily representative of right brain damage. (Transcript, pages 175 and 176.)
6/ Also in dispute is the magnitude of Britney's impairment or, stated differently, whether the injury she received rendered her "permanently and substantially mentally and physically impaired." Section 766.303(2), Florida Statutes. Here, the proof clearly supports the conclusion that Britney's physical impairment is permanent and substantial; however, the proof is conflicting as to whether the injury substantially affected her mental faculties. Since resolution of the issue regarding the genesis of Britney's brain injury is dispositive of the claim, it is unnecessary to address the effect, if any, the injury had on her mental faculties.
7/ An "infarct" is "an area of coagulation necrosis in a tissue due to local ischemia resulting from obstruction of circulation to the area, most commonly by a thrombus or embolus." "Necrosis" is "the sum of the morphological changes indicative of cell death." An "embolus" is "a clot or other plug brought by the blood from another vessel and forced into a smaller one, thus obstructing the circulation." A "thrombus" is "an aggregation of blood factors, primarily platelets and fibrin with entrapment of cellular elements, frequently causing vascular obstruction at the point of its formation." Dorland's Illustrated Medical Dictionary, Twenty-Sixth Edition (1985).
8/ Transcript, pages 49 and 50. See also "palsy, cerebral," Dorland's Illustrated Medical Dictionary, Twenty-Sixth Edition
(1994).
9/ Dr. Duchowny dated Britney's brain injury as having occurred after 30 weeks gestation because of the presence of gliosis (scarring) on the MRI. According to Dr. Duchowny, prior to 30 weeks gestation a brain is too immature to scar. Dr. Duchowny also concluded that, given Britney's presentation and hospital course, the injury must have predated labor and delivery by at least two weeks. According to Dr. Duchowny, it would require at least two weeks for a fetus to recover from a stroke of the nature suffered by Britney and then present with the sense of well-being Britney exhibited. Dr. Duchowny's observations are credited.
10/ The contrary opinions of Petitioners' expert, Dr. Dorison, have been rejected as unsound, inconsistent with the credible and objective proof, and as failing to enjoy a logical foundation. In sum, Dr. Dorison's opinions are unworthy of belief. In so concluding, it is observed that throughout Dr.
Dorison's involvement in this matter and until formal hearing, she always expressed the opinion that Britney's presentation was consistent with a vascular insult to her left hemisphere (a focal injury). Moreover, until a matter of days before the hearing, Dr. Dorison had ascribed the cause of Britney's vascular insult to an embolus (blood clot) secondary to an abruptio placenta, and dated the timing of such event as occurring during the course of labor and delivery.
(Transcript, pages 78 and 79, and Petitioners' Exhibit 1G.) Apparently, Petitioners' counsel questioned Dr. Dorison's theory late in the case (Transcript, page 53), and, upon further research, the doctor abandoned her theory of a placental embolus as medically indefensible, and then chose to embrace the theory of oxygen deprivation, secondary to placental abruption, as causing brain injury to Britney.
However, considering the minimal abruption that occurred; the lack of any evidence of fetal distress or hypoxia during labor and delivery; Britney's vigorous presentation and uneventful hospital course; and the results of the MRI, Dr. Dorison's opinions enjoy no record or objective support. Conversely, Dr. Duchowny's opinions, as well as the opinions of two board-
certified obstetricians (Doctors Somoano and Kalstone), rest on a logical premise, are grossly consistent with the record, and have been accepted as credible and persuasive.
COPIES FURNISHED:
(By certified mail)
Andrew Needle, Esquire
Needle, Gallagher and Areces, P.A. 1401 Brickell Avenue, Suite 900
Miami, Florida 33131
W. Douglas Moody, Jr., Esquire Graham & Moody, P.A.
101 North Gadsden Street Tallahassee, Florida 32301
Lynn Dickinson, Executive Director Florida Birth-Related Neurological
Injury Compensation Association Post Office Box 14567 Tallahassee, Florida 32317-4567
Julio Somoano, M.D.
8500 Southwest 92nd Street Suite 201
Miami, Florida 33156
South Miami Hospital Legal Department
6200 Southwest 73rd Street Miami, Florida 33143
Ms. Charlene Willoughby
Agency for Health Care Administration Consumer Services Unit
Post Office Box 14000 Tallahassee, Florida 32308
Daniel Sumner, General Counsel Department of Insurance
The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 23, 1998 | DOAH Final Order | Proof demonstrated that infants' brain injury occurred before labor and delivery. Therefore, claim was not covered under the Plan. |
