STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ODALIS MERIDA and ANTONIO )

TRUJILLO, as parents and natural ) guardians of JONATHAN TRUJILLO, a ) minor, and ODALIS MERIDA and ) ANTONIO TRUJILLO, individually, )

)

Petitioners, )

)

vs. ) CASE NO. 95-1492N

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

)

Respondent. )

)

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 December 13, 1995, in Miami, Florida.

APPEARANCES

For Petitioner: Charles B. Patrick, Esquire

1648 South Bayshore Drive Miami, Florida 33133

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

300 East Park Avenue Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Jonathan Trujillo, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On March 30, 1995, Odalis Merida and Antonio Trujillo, individually and as parents and natural guardians of Jonathan Trujillo, a minor, 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 March 31, 1995. NICA reviewed the claim and on June 6, 1995, 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 (1993)" and requested that the Hearing Officer "enter an order setting a hearing in this cause on the issue of the compensability of this claim."

Pursuant to notice, a hearing was held on December 13, 1995, to address the issue of compensability. At hearing, petitioners called Odalis Merida as a witness, and petitioners' exhibits 1- 10, 11A, 11B, and 12 were received into evidence. Respondent called Charles Kalstone, M.D., as a witness, and its exhibit 1 (the deposition of Michael Duchowny, M.D., filed post-hearing) was received into evidence.

The transcript of the hearing was filed January 9, 1996, and the parties were accorded, at their request, 20 days from that date to file proposed final orders. Consequently, the parties waived the requirement that a final order be rendered within thirty days of the date the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The parties' proposed findings of fact, contained within their proposed final orders, are addressed in the appendix to this final order.

FINDINGS OF FACT

Fundamental findings

1. Jonathan Trujillo (Jonathan) is the natural son of Odalis Merida and Antonio Trujillo. He was born a live infant on December 31, 1993, at Jackson Memorial Hospital, a teaching hospital located in Miami, Dade County, Florida, and his birth weight was in excess of 2500 grams.

   
   

2. The physicians providing obstetrical services during the birth of Jonathan were Doctors Oliva and McGare, resident physicians in an approved training program, who were supervised by Gene Burkett, M.D., a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan (the "Plan"). Consequently, each physician who provided obstetrical services

   during the birth of Jonathan was a "participating physician" in the Plan. Sections 766.302(7) and 766.314(4)(c), Florida Statutes.

   
   

   The birth of Jonathan Trujillo

   
   

3. At or about 5:20 p.m., December 31, 1993, Odalis Merida (Ms. Merida) was admitted to Jackson Memorial Hospital in active labor. Notably, Ms. Merida's prenatal course had been complicated by the development of Class B gestational diabetes, requiring insulin during the course of her pregnancy, and the development of severe preeclampsia, characterized by hypertension. Consequently, Ms. Merida's pregnancy was rated high risk.

   
   

4. To address Ms. Merida's diabetes during labor and delivery, she was maintained on drip insulin, and to address her hypertension, she was administered magnesium sulfate.

   
   

5. Ms. Merida's condition and the substances administered to address her condition, although apparently necessary and appropriate, were not without risk or side effect to the fetus. Notably, magnesium sulfate is a muscle relaxant which can induce "floppiness" in a new born, as well as respiratory distress. 1/ The presence of maternal diabetes portends the risk of infantile hypoglycemia, which occurred in the instant case. A clinical symptom of hypoglycemia is "floppiness" in the new born, which may be exaggerated when, as here, it is found in conjunction with ploycythemia, discussed infra.

   
   

6. Upon admission, Jonathan was at term, with a gestational age of 41 weeks, and fetal heart monitoring, commenced at or about 5:25 p.m., revealed good fetal heart tone. A physical examination at 6:00 p.m. noted the cervix to be at 7 centimeters, effacement complete, and the fetus at station 0. Contractions were regular at 2 minutes, and when the membrane was ruptured clear amniotic fluid was observed.

   
   

7. Ms. Merida progressed through labor without incident until approximately 8:45 p.m., following the administration of an epidural anesthesia, when late decelerations of the fetal heart beat with bradycardia were noted, as a consequence of epidural hypertension. More specifically, Ms. Merida's blood pressure was observed to drop from a base line rate of 200/150 to 98/45, and a few late decelerations of the infant's heart rate were observed from a baseline rate of 120 to 130 beats per minute to 80 beats per minute. Ms. Merida was repositioned to her left side, the infant's heart rate promptly recovered, and no further unusual incidents were observed during the course of her labor or delivery.

8. Given the limited duration and isolated nature of the late decelerations and bradycardia, it was the opinion of the physicians who testified in this proceeding that such anomaly did not adversely affect the infant's oxygenation or, stated differently, did not result in a hypoxic/ischemic insult to the infant's brain. Such opinions are credited.

   
   

9. At 9:40 p.m., December 31, 1993, Ms. Merida, as she had with her first child, spontaneously delivered Jonathan vaginally, without apparent complication. Notably, Jonathan was vigorous on delivery, breathed spontaneously, did not require resuscitation, and his apgar scores were 9 at one minute, five minutes and ten minutes. In all, Jonathan's presentation was reflective of a healthy, vigorous infant. 2/

   
   

10. Jonathan was admitted to the newborn nursery at 10:00

    p.m. Physical assessment upon admission revealed a large infant, at 4040 grams, with a large head (above the 90th percentile), who was crying spontaneously, alert, pink in color, but with a "slight floppiness" in the extremities. Jonathan was noted to breath spontaneously, without flaring or grunting; heart rate was noted at 160 beats per minute, with regular rhythm; fontanel were soft and flat; and reflexes were present. In brief, Jonathan's presentation in the newborn nursery was that of a healthy, vigorous infant, with the only negative observation being a "slight floppiness" in his extremities. Such "floppiness" was, however, more likely than not, related to the magnesium sulfate administered to Ms. Merida during labor and delivery, the hypoglycemia Jonathan was subsequently diagnosed to have acquired, or a combination of the two, and does not detract from the conclusion that Jonathan had no apparent signs of distress at birth.

    
    

11. Later in the day, following testing, Jonathan was diagnosed with moderate to severe hypoglycemia, polycythemia, and moderate thrombocytopenia. Such conditions, singularly, or in combination, placed the infant at risk.

    
    

12. Hypoglycemia, low blood sugar, may place the infant at risk of seizures and, pertinent to this case, resultant brain hemorrhage. Here, the moderate to severe hypoglycemia that Jonathan suffered was apparently recurrent, although it did resolve over time, and was addressed each time it presented through the administration of glucose.

    
    

13. Polycythemia is a disorder whereby the number of red blood cells are abnormally high, making the blood thicker (hyperviscous) than normal. Apparently, brain hemorrhage is often related to decreased blood flow on the venus side of the

    brain, and where the blood is hyperviscous it could help or contribute to a brain hemorrhage. Here, with a hematocrit of 64, Jonathan's condition met the definition of polycythemia, which is a hematocrit over 60; however, such condition was not, or was not shown to be, significant in the instant case.

    
    

14. Thrombocytopenia is a disorder resulting in an abnormally low platelet count which could affect clotting and therefore predispose the infant to bleeding through, among other things, trauma. Here, Jonathan's thrombocytopenia, more likely than not isoimmune thrombocytopenia, was considered moderate, as opposed to severe, and serial testing reported his platelet count as follows for the date and time indicated:

    DATE	TIME	3/	PLATELET COUNT
    1/1/94	07:00		Platelet estimate 40,000-80,000
    1/2/94	03:47		Platelet estimate 80,000-100,000
    1/3/94	07:57		Platelet estimate 40,000-80,000
    1/3/94	15:08		Platelet estimate 40,000-80,000
    1/4/94	05:04		Platelet count 49,000
    1/5/94	06:46		Platelet estimate 40,000-80,000
    1/6/94	12:50		Platelet estimate 40,000-80,000
    1/8/94	21:12		Platelet count 182,000
    1/10/94	03:52		Platelet count 263,000
    1/12/94	06:00		Platelet count 357,000

    
    

    The normal platelet count for newborns, as with adults, is 150,000 to 400,000, and, as may be observed from the serial testing, Jonathan's thrombocytopenia resolved over time.

    
    

15. While at risk, Jonathan's neonatal course in the nursery was uneventful until 26 hours of life when he was noted to have suffered a generalized seizure characterized by cyanosis, severe bradycardia (heart beat in the range of 40 beats per minute), and respiratory arrest (apnea), requiring intubation.

    
    

16. At or about 1:00 a.m., January 1, 1994, Jonathan was transferred to the neonatal intensive care unit, where he was maintained on positive ventilation until approximately January 6, 1994. Examination, through EEG's and CT and MRI scans of the brain, revealed that Jonathan had suffered an intraventricular hemorrhage, Grade IV, characterized by a massive bleed, with dilation of the ventricles. 4/ Thereafter residual hypodensity of the white matter of the brain was observed, consistent with degeneration of the hemorrhage and, ultimately, hypodensity compatable with evolving encephalomalacia (swelling of the brain.) Subsequently, on February 2, 1994, developing hydrocephalus required the placement of an intraventricular shunt to relieve intracranial pressure.

    
    

17. Currently, in the opinions of Dr. Robert Roth and Dr. Michael Duchowny, whose opinions are credited, Jonathan is permanently and substantially mentally and physically impaired. Such impairment is evidenced by, inter alia, cortical blindness, hypotonia and, more likely than not, mental retardation. It is further the opinion of such physicians, which is again credited, that the cause of Jonathan's neurologic impairment is the injury to the brain he suffered as a consequence of the Grade IV intraventricular hemorrhage.

    
    

18. Given the foregoing, resolution of this claim resolves itself to an identification of the genesis of Jonathan's Grade IV intraventricular hemorrhage or, stated otherwise, whether the proof demonstrates, more likely than not, that the hemorrhage,

    which resulted in injury to Jonathan's brain and the ensuing neurological injuries, resulted from "oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or

    resuscitation in the immediate post-delivery period" in the hospital. Sections 766.302(2) and 766.309(1)(a), Florida Statutes.

    
    

    The cause of Jonathan's Grade IV intraventricular hemorrhage

    
    

19. A Grade IV intraventricular hemorrhage in a term infant, such as Jonathan, is a rare occurrence, and its cause frequently cannot be identified. Notwithstanding, Jonathan did suffer such a hemorrhage, and he was shown to suffer from two conditions, isoimmune thrombocytopenia and hypoglycemia, which could offer some explanation for the hemorrhage.

    
    

20. Here, petitioner contends that Jonathan, due to his large head, received an injury to his brain occasioned by the "mechanical" forces of labor and delivery, and that such injury resulted in a slow bleed which, because of his thrombocytopenia, progressed over the next 26 hours and ultimately manifested as a generalized seizure characterized by cyanosis, severe bradycardia and respiratory arrest. In support of such contention, petitioner offered the testimony of Robert S. Roth, M.D., a physician board certified in pediatrics and neonatal/perinatal medicine.

    
    

21. Pertinent to this case, Dr. Roth observed that infants born with thrombocytopenia are at increased risk of suffering an intraventricular brain hemorrhage if subjected to the trauma occasioned by the mechanical forces of labor and vaginal delivery. In his opinion, Jonathan's medical records reveal a classic case of neonatal brain hemorrhage resulting from the mechanical forces of labor and vaginal delivery that occurred because of Jonathan's large head and thrombocytopenia. Those conditions, affected by the forces of labor and delivery, combined to "start the process of hemorrhage in the brain," resulting in "tissue changes and cell death and vascular pressure changes" over time, and culminating when it progressed to the "centers that control breathing," manifested by apnea or seizure- like activity that led to apnea.

    
    

22. Notably, it was Dr. Roth's opinion that it was not Jonathan's large head alone or his thrombocytopenia alone, apparently because of its moderate nature, which occasioned the initial bleed and resulting hemorrhage but, rather, the two conditions acting in consort. There was, however, no injury to Jonathan's scalp or skull noted at delivery, nor any molding of his head consequent to the delivery. It is of further note, in evaluating Dr. Roth's opinion, that he also observed that, had Jonathan been delivered by cesarean section before the onset of labor, he would have had a "lower probability" of having a hemorrhage than had he undergone active labor and vaginal delivery. Such observation clearly implies that factors other

    than labor and delivery could have operated to induce Jonathan's hemorrhage. Finally, in considering Dr. Roth's opinion of progressive deterioration, it is worthy of note that, apart from the "slight floppiness" observed shortly after birth, Jonathan evidenced no symptoms of neurologic injury until 26 hours of life. As heretofore noted, the "slight floppiness" exhibited by Jonathan was reasonably attributed to the magnesium sulfate administered to Ms. Merida during labor and delivery, the hypoglycemia Jonathan was shown to have developed, or a combination of the two, as opposed to a symptom of neurologic injury. Consequently, there is no objective evidence or symptom, that one would otherwise expect to observe, to support Dr. Roth's opinion of progressive deterioration.

    
    

23. Contrasted with the opinions of Dr. Roth, regarding the genesis of Jonathan's hemorrhage, are the opinions offered on behalf of NICA through Michael S. Duchowny, M.D., a physician board certified in pediatric neurology. Dr. Duchowny, although acknowledging that thrombocytopenia offered an increased risk of intraventricular hemorrhage to an infant through the forces of labor and delivery, was of the opinion that Jonathan's hemorrhage at 26 hours of life was a spontaneous event, unrelated to labor and delivery, and that the cause of that hemorrhage could not be identified with any reasonable degree of medical certainty or, stated differently, that any attempt to attribute a cause for Jonathan's hemorrhage was, at best, speculative. 5/

    
    

24. In reaching his conclusion, Dr. Duchowny observed that there was no objective evidence or symptom of trauma or oxygen deprivation at birth, as one would expect had there been a neurologic insult during the course of labor and delivery, and that there was likewise no objective evidence or symptom of neurologic injury over the course of Jonathan's first 26 hours of life, as one would expect to observe were he suffering a progressive disorder, as opined by Dr. Roth. Dr. Duchowny was further of the opinion that, although moderately thrombocytopenic, Jonathan's platelet count was not sufficiently low, a level he described as 20,000 or less, to increase the likelihood that Jonathan would suffer a bleed.

    
    

25. Resolving the conflict between the opinions of Doctors Roth and Duchowny is not an easy or lightly undertaken effort. Each physician is eminently qualified and the genuineness of the opinions they expressed is apparent. The seriousness of the resolution is further intensified by the obvious needs of a severely impaired infant; however, while such needs are significant, it cannot be overlooked that where, as here, responsibility for the care of the infant is sought to be imposed on the Plan, the proof must be compelling that, more likely than not, the infant suffered a "birth-related neurological injury" as

    defined by law. In this case, the proof falls short of meeting such standard. 6/

    
    

26. As heretofore noted, the labor and delivery of Jonathan was essentially normal and there was no obstetrical incident or identifiable event during labor and delivery that would evidence that he had suffered a hypoxic insult, mechanical injury or traumatic event. Indeed, although Jonathan did have a large head (above the 90th percentile), there was no cephalopelvic disproportion noted, no arrest of labor, no protracted labor, and no use of forceps or vacuum extraction in delivery. Upon delivery, no apparent cranial injuries were observed, no molding of the head was noted, and Jonathan presented as a vigorous infant with normal Apgars. In summary, there was no identifiable incident during the course of labor or delivery, or thereafter during Jonathan's first 26 hours of life, evidencing oxygen deprivation, mechanical injury, or other insult, that would account for the hemorrhage he suffered.

    
    

27. In reaching the foregoing conclusion, it has not been overlooked that an infant suffering from thrombocytopenia is at increased risk of intraventricular hemorrhage through the forces of labor and delivery. Here, however, it was not suggested or shown that Jonathan's mild thrombocytopenia would, itself, foster a hemorrhage of the nature he suffered, rather petitioner's proof suggested that his large head and thrombocytopenic condition combined, when subjected to the trauma of labor and delivery, to precipitate a bleed that slowly progressed to a Grade IV intraventricular hemorrhage or precipitated a seizure that resulted in such a hemorrhage. Given the nature of the proffer, there being no apparent complication during labor and delivery, no objective sign of head trauma at birth, no symptoms of neurologic insult at birth, and no symptom of neurologic insult over the 26 hours prior to Jonathan's acute compromise, it must be concluded, as suggested by Dr. Duchowny, that any conclusion timing the genesis of Jonathan's hemorrhage to the events of labor and delivery is not supported by reasonable medical probability but is, at best, speculative. Consequently, it must be concluded, that petitioners have failed to demonstrate that Jonathan's hemorrhage was related to trauma, oxygen deprivation or mechanical injury occurring during the course of labor and delivery, as opposed to a spontaneous event, of unknown origin, occurring at Jonathan's twenty-sixth hour of life. 7/

    CONCLUSIONS OF LAW

    
    

28. 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 (1993).

29. 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.

    
    

30. 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.

    
    

31. 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.

    
    

32. In discharging this responsibility, the Hearing Officer must make the following determination based upon the available evidence:

    
    

    1. Whether the injury claimed is a birth- related neurological injury. If the claimant has demonstrated, to the satisfaction of the 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. 766.303(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. 8/ 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.

       
       

33. 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.

    
    

34. Here, the proof demonstrated that the attending physicians who provided obstetric services during the birth of Jonathan were "participating physician[s]" 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 Jonathan had suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. As noted in the findings of fact, the record demonstrated that Jonathan's neurologic impairments were the direct consequence of an injury to his brain occasioned by a Grade IV intraventricular hemorrhage; however, the proof failed to support the conclusion that the genesis of such hemorrhage was oxygen deprevation or mechanical injury, or that such condition was precipitated by any event occurring during the course of labor, delivery or resuscitation in the immediate post delivery period in the hospital. Accordingly, the subject claim is not compensable under the Plan. Sections 766.302(2), 766.309(1) and 766.31(1), Florida Statutes.

35. 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 Odalis Merida and Antonio Trujillo, individually and as parents and natural guardians of Jonathan Trujillo, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 27th day of February 1996 in Tallahassee, Leon County, Florida.

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 27th day of February 1996.

ENDNOTES

1/ See, Petitioners' Exhibit 6, neonatal nursing admission interview, December 31, 1993, 10:00 p.m.

2/ Apgar scores are a numerical expression of the condition of a newborn infant, and reflect the sum 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, Jonathan's apgar scores at one, five and ten minutes totaled 9, with heart rate, respiratory effort, muscle tone, and reflex irritability being graded at 2 each, and color being graded at 1.

3/ Times noted are based on the 24 hour clock.

4/ A Grade IV intraventricular hemorrhage is the most massive of the graded hemorrhages, and involves a large or acute bleed into the ventricular cavity of the brain, often with extension through the wall of the ventricle into the substance of the brain itself. The bleeding increases pressure in the ventricular system and ultimately the brain itself, and concurrently results in a loss of circulating blood, leading to autonomic disruption. The symptoms of such disruption are bradycardia, apnea and cyanosis.

5/ Among the medical texts used by petitioner in the cross- examination of Dr. Duchowny, and submitted to the Hearing Officer for consideration as discussed infra at endnote 6, was Neurology of the Newborn, Third Edition, by Joseph J. Volpe, M.D. Featured prominently in such examination was inquiry as to whether Dr.

Duchowny agreed with the following statement contained in that text:

Onset of the neurological syndrome varies with the etiology--those infants with trauma or asphyxia or both usually exhibit distinct abnormalities from the first day or two of life,

whereas those infants with no clear etiology usually present later, sometimes as late as the second to fourth weeks of life.

. . .

Dr. Duchowny agreed with such statement, and observed that what is sought to be conveyed by the author is that where it is clear from the infant's presentation that he suffered trauma or asphyxia in utero or upon delivery he will usually exhibit distinct abnormalities, as stated by the author, from the first day or two of life. Dr. Duchowny's observations are consistent with the passage referenced and the context within which it appears.

Petitioners did not reference this passage or the concept in their proposed final order, but it would appear from its presence on examination that petitioners suggest that if such passage is accurate then the converse (i.e., if infants exhibit abnormalities within the first day or two of life they must have suffered trauma or asphyxia at birth) is true. There is, however, no evidence of record that would support the validity of such contention or theory. To the contrary, the proof demonstrates that other conditions the infant suffered at birth, such as hypoglycemia, can precipitate seizures, leading to intraventricular hemorrhage, within the first or second day of life that are unrelated to trauma or asphyxia.

6/ In reaching the foregoing conclusion, the medical articles each party submitted have been reviewed and considered, at the parties' request, as corroboration or impeachment of the opinions rendered by the expert physicians. See, order of January 18, 1996, and Section 120.58(1)(a)1, Florida Statutes. However, they have not been considered substantive evidence. Green v.

Goldberg, 630 So.2d 606 (Fla. 4th DCA 1993).

7/ Pertinent to this case, Section 766.302(2), Florida Statutes, defines a "birth-related neurological injury" as an "injury to the brain . . . of a live infant . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period . . . which renders the infant permanently and substantially mentally and physically impaired." Section 766.309(1)(a), Florida Statutes, provides, however, that where "the claimant has demonstrated . . . that the infant has sustained a brain . . . 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." Accordingly, if petitioner can establish that the cause of Jonathan's neurologic impairment was oxygen deprivation or mechanical injury they are entitled to a presumption that the timing of such deprivation or injury was

during the "course of labor, delivery, or resuscitation in the immediate postdelivery period."

Here, the petitioner has failed to demonstrate, by the greater weight of the evidence, that the Grade IV intraventricular hemorrhage Jonathan sustained, which was the cause of his neurologic injuries, was caused by oxygen deprivation or mechanical injury. It therefore follows, rebuttable presumption or not, that petitioners have failed to demonstrate that Jonathan suffered a "birth-related neurological injury," as defined by law.

8/ Where, as here, NICA disputes the claim, the burden rests on the claimants 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.")

APPENDIX

Petitioners' proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 2.

3. Addressed in paragraphs 3 and 9.

4. Addressed in paragraph 7, otherwise unnecessary detail.

5. Addressed in paragraphs 9 and 10.

6. Accepted, but not shown to be significant. See paragraphs 6 and 8.

7. Addressed in paragraphs 10-14.

8. Addressed in paragraph 16.

9. First sentence addressed in paragraph 16. Second sentence accepted that Larry Page, M.D., dictated an operative report that stated "shortly after birth, the patient was diagnosed as having suffered an intraventricular hemorrhage attributed to thrombocytopenia." Such observation does not, however, purport to be Dr. Page's and is not otherwise contained in the medical records. Indeed, thrombocytopenia was but one of a number of complications the infant was noted to have suffered. Accordingly, such statement is of no persuasive value in this case.

10. Addressed in paragraph 17, otherwise unnecessary detail.

11 and 12. Addressed in paragraphs 21 and 23, otherwise subordinate or unnecessary detail.

1. Accepted as a generalized statement without reference to the specific circumstances of this case which are more particularly addressed in paragraphs 20-27. It is further

   observed that "consistent with" or "not inconsistent with" are observations that are not synonymous with "more likely than not" or "to a reasonable degree of medical certainty," and that the implication is contrary to the specifics of this case, addressed in paragraphs 20-27.

2. First, second and third sentence addressed in paragraphs 21 and 23. Fourth and fifth sentences rejected as contrary to the facts as found.

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

1-3. Addressed in paragraph 1.

1. Addressed in paragraph 2.

2. Addressed in paragraph 3.

6-10. Addressed in paragraphs 4-14.

11 and 12. Addressed in paragraphs 15 and 16, and endnote

4.

13 and 14. Accepted, but not dispositive.

15. Addressed in paragraph 17.

COPIES FURNISHED:

(By Certified Mail)

Charles B. Patrick, Esquire 1648 South Bayshore Drive Miami, Florida 33133

W. Douglas Moody, Jr., Esquire Bateman, Graham

300 East Park Avenue Tallahassee, Florida 32301

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 14567 Tallahassee, Florida 32317-4567

Gene Burkett, M.D. John Oliva, M.D. Dr. McGare University of Miami

School of Medicine (OBGYN) Post Office Box 016960, R116 Miami, Florida 33101

Jackson Memorial Hospital Legal Department

1611 Northwest 12th Avenue

Miami, Florida 33136

Ms. Tanya Williams

Agency for Health Care Administration Division of Health Quality Assurance Hospital Section

2727 Mahan Drive

Tallahassee, Florida 32308

Ms. Charlene Willoughby Department of Business and

Professional Regulation Consumer Services

1940 North Monroe Street Tallahassee, Florida 32399-0784

Dan Sumner, General Counsel Department of Insurance

The Capitol, Plaza Level 11 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.

Docket for Case No: 95-001492N

Orders for Case No: 95-001492N