STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOAN WALSH and ANTHONY WALSH as )

parents and natural guardians of ) IAN ANTHONY WALSH, a minor, )

)

Petitioners, )

)

vs. ) CASE NO. 95-5074N

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

)

Respondent. )

)

FINAL ORDER

On May 14, 1996, a hearing was held in the above-styled case at which time the parties stipulated to certain factual matters, discussed more fully in the preliminary statement which follows, and agreed to submit this case for resolution on a stipulated record.

APPEARANCES

For Petitioner: James J. Traitz, Esquire

Nicole L. Gilmore, Esquire Freshman, Freshman and Traitz, P.A. Two Datran Center, Suite 1701

9130 South Dadeland Boulevard Miami, Florida 33156

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

BATEMAN GRAHAM, P.A.

300 East Park Avenue Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

On October 17, 1995, Joan Walsh and Anthony Walsh, as parents and natural guardians of Ian Anthony Walsh (Ian), 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

October 18, 1995; and on March 18, 1996, a notice of hearing was issued setting a hearing for May 16, 1996, on the issue of whether Ian had suffered a "birth related neurological injury" within the meaning of Section 766.302(2), Florida Statutes. The need for such a hearing was obviated on May 14, 1996, when the parties agreed to submit the case for resolution on an agreed record.

The record agreed to by the parties consists of the parties' stipulation to findings of fact 1 and 2 which follow, as well as the medical records filed with the claim for compensation, which were received in evidence as joint exhibit 1; the deposition transcript and video of Robert Cullen, M.D. (filed May 24, 1996), which was received into evidence as petitioners' exhibit 1A and 1B, respectively; and the deposition of Michael Duchowny, M.D. (filed June 12, 1996), which was received into evidence as respondent's exhibit 1. See Order of May 15, 1996.

By order of May 15, 1996, the parties were accorded thirty days to file their proposed final orders; however, neither party elected to file such a proposal.

FINDINGS OF FACT

Fundamental findings

1. Joan Walsh and Anthony Walsh are the parents and natural guardians of Ian Anthony Walsh (Ian), a minor. Ian was born a live infant on February 16, 1995, at Holy Cross Hospital, a hospital duly licensed in the State of Florida and located in Fort Lauderdale, Florida. Ian's birth weight was in excess of 2,500 grams.

   
   

2. The physician providing obstetrical services during the birth of Ian was Moises Lichtanger, 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.

   
   

   Ian's birth

   
   

3. At or about 6:15 a.m., February 16, 1995, Joan Walsh (Mrs. Walsh) was admitted to Holy Cross Hospital for induction of labor. At the time, Ian's was post-term, with a gestational age of 40 to 41 weeks.

   
   

4. The course of Mrs. Walsh's labor, and Ian's delivery at 6:12 p.m. that day, are adequately summarized in Dr. Lichtanger's delivery notes, as follows:

   
   

   34 year old black female Gravida 1 Para 0 who is approximately 40 to 41 weeks pregnant

   and was admitted to the hospital for induction of labor. The patient is going post dates according to an early ultrasound and also has

   a history of genital herpes. She had been taking medication before the pregnancy and is being admitted to be induced for post-dates as well as while there are no genital lesions . . .

   
   

   On admission, on examination there were no lesions whatsoever in the genital area. Her pelvis was adequate clinically. Estimated fetal weight approximately 7 1/2 pounds. The fetal heart tones

   were stable on external monitoring. The cervix was

   1 to 2 cm dilated, 80 [percent] effaced, very soft, anterior with a vertex with intact membranes at -1

   to 0 station. The patient was started on intravenous Pitocin by pump. She started to have contractions and amniotomy did produce clear amniotic fluid. The patient went in regular labor. She did receive intravenous sedation of Stadol and then she asked

   for epidural which was placed with no complications. She was re-examined being approximately 4 cm com- pletely effaced, cervix at 0 to +1 station, pro- gressing well. At that time she started to have a cord compression type of decelerations during contractions. The vagina was dry without any drainage. An internal electrode was inserted and there was good recovery with fetal heart tones after each contraction and good beat to beat variability. Subsequently the patient recorded having compression fetal heart tone decelerations during contractions and exam did show rapid progress of labor at 8 cm.

   A few minutes later the patient continued progressing rapidly and cervical examination was completely dilated, completely effaced vertex. There was no drainage in the vagina. The patient started pushing. Her vital signs were within normal limits. On a subsequent examination vaginally the vertex was down in the vaginal area in the left occiputo-transverse position at +3 station. There was no molding. The patient was placed to push in different positions.

   I tried to rotate also manually the vertex but it remained in the left occiputo-transverse position at +3 station. At this time the patient started to

   have long significant fetal decelerations with little variability and no recovery. It was decided to deliver the fetus. The bladder had been drained producing clear urine. The anesthesiologist as

   well as the neonatologist were now present in the room. When I started re-examining the patient to the side method of delivery, the patient suddenly started having significant vaginal bleeding for the first time during the whole process of labor. I couldn't see in the monitor regularity of her uterine contractions graph. The nurse could not tell me or indicate to me if the patient had contractions. The patient stopped pushing and stated that she didn't fell pressure as before.

   Palpating the abdomen, the uterus seemed contracted continuously and the patient continued bleeding and the fetal heart tones were abnormally low. I realized that she had just developed an acute placental abruption separation. It was decided

   to deliver immediately with forceps which was already in the room to save baby's life since trying an abdominal delivery would mean moving the patient to the cesarean section room losing pressure (sic) minutes to intubate patient for anesthesia and possibly losing fetal life.

   Anesthesia levels were checked, were excellent. Pudendal block with .5 [percent] Marcaine was inserted as well as the perineum infiltrated.

   The baby's head position was checked again. I palpated his left ear, left occiputo-transverse position. The husband was placed on the back right side of the patient to help her push.

   The patient had been prepped and draped. During the whole procedure the patient and husband were kept current on what was happening by me and

   the nurses and both could not see any or part of the delivery. The Kielland forceps was used with padded cushions on both sides. The forcep was inserted using classical technique, first the anterior and then the posterior blade. It was checked perpendicular to the sagittal line and 1 to 1 1/2 fingerbreadths away from the occiput of the baby. Bleeding had continued vaginally moderately. With gentle fundal guidance since there were no contractions felt by the patient, the baby's head was easily rotated to occiputo-anterior position and then with one gentle pull, the head was now crowning

   in occiputo-anterior position. A midline episiotomy was performed with surgical scissors. The forcep was removed and using modified Ritgen maneuver for controlled delivery of the head, the baby's head

   was delivered by restitution. As soon as the head came out, secretions were aspirated from the oropharyngeal area. The cord was found extremely tight nuchal cord around the neck. It was immediately untangled. The rest of the body

   was delivered rapidly. At this point that the cord was extremely and abnormally short. I tried to pump blood towards the baby but I saw the cord pale with blood inside it. The cord was double clamped immediately and cut and the baby was handed to the neonatologist who was present.

   From there on the baby was managed by the neonatologist and neonatology team and the baby was transferred to Neonatal Intensive Care . . .

   
   

   FINAL DIAGNOSIS: Intrauterine pregnancy at term in labor, acute significant fetal distress

   with hypoxia, acute placental abruption separation, extremely tight nuchal cord, abnormal short cord, depressed hypoxic viable male infant.

   
   

5. Upon delivery, Ian was depressed, hypoxic and flacid, and his Apgar scores were noted as 1 at one minute, 3 at five minutes, and 6 at ten minutes. At first no spontaneous respirations were noted, and Ian required an ambu bag and was subsequently intubated. When stabilized, Ian, still ambu bagged, was transferred by transporter to the neonatal intensive care unit for further evaluation and management.

   
   

6. Testing by EEG was abnormal, with findings consistent with a predominantly utilateral disturbance in the cerebral function of the left

   hemisphere. MRI showed a 6 to 7 mm thick by 4 cm long left parietal epidural hematoma with mild compression of the left parietal lobe. Chest x-ray showed a right pneumothorax. A CT scan of the brain noted a 6 mm left parietal extra axillary epidural hematoma. Skull series showed a linear left parietal skull fracture, consistent with mechanical trauma occasioned by forceps delivery.

   
   

7. Upon admission to the neonatal intensive care unit, Ian was placed under close observation and, as heretofore noted, initially required intubation and was placed on a respirator. The right pneumothorax was noted, and a thoracotomy tube was placed to the right chest. A repeat CT scan evidenced improvement, and neurologically Ian remained stable with no further deterioration or seizure activity.

   
   

8. On February 19, 1995, Ian underwent removal of the chest tube, with no new pneumothorax observed. A repeat ultra sound of the head showed no evidence of hydrocephalus, although it continued to show evidence of the hematoma of the left parietal region.

   
   

9. By February 25, 1995, Ian was noted to be more stable, remaining more active and alert, and without seizure activity. His course continued to remain stable throughout the remainder of his hospital course, and on March 2, 1995, Ian was discharged to the care of his parents. At the time, Ian was noted to be stable, afebrile, active and alert.

   
   

10. Given the proof, it is apparent that Ian suffered perinatal asphyxia, secondary to placental abruption, as well as a fractured skull, with consequent extra and intracranial bleed, occasioned by the use of forceps, during the course of labor and delivery. Consequently, the proof having demonstrated that Ian suffered an injury to his brain caused by oxygen deprivation and mechanical injury during the course of labor and delivery, the only issue which remains for resolution is whether such injury rendered Ian permanently and substantially mentally and physically impaired.

    
    

    The severity of Ian's neurologic impairment

    
    

11. Addressing first the issue of physical impairment, the proof demonstrates that the insult Ian received to his brain at birth did impact his physical abilities. Such neurologic impairment is apparent upon examination of his motor system, which reveals hypertonia of all limbs (spastic quadriparesis), right greater than left, deep tendon reflexes that are abnormally increased in the upper and lower extremities, and tight heel cords and hips. Such deficits, while there may be some improvement over time, will persist to some degree throughout Ian's lifetime; however, while permanent, his physical impairments are appropriately characterized as mild to moderate and not of sufficient magnitude to be considered substantial.

    
    

12. As for Ian's mental functioning, the proof demonstrates that at Ian's current age it is difficult to evaluate his cognitive functioning with any degree of medical certainty. Consequently, the most that can be said of the proof is that it fails to demonstrate, more likely than not, that Ian suffered a permanent and substantial mental impairment as a consequence of the injury he received to his brain at birth.

    CONCLUSIONS OF LAW

    
    

13. 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.

    
    

14. 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.

    
    

15. 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.

    
    

16. 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.

    
    

17. 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. 1/ 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.

       
       

18. 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.

    
    

19. Here, the proof demonstrated that the attending physician who provided obstetrical services during the birth of Ian 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 Ian 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 Ian was not shown to be "permanently and substantially mentally and physically impaired" as a consequence of the injury he suffered at birth. Accordingly, the subject claim is not compensable under the Plan. Sections 766.302(2), 766.309(1) and 766.31(1), Florida Statutes.

    
    

20. 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 Joan Walsh and Anthony

Walsh, as parents and natural guardians of Ian Anthony Walsh, a minor, be and

the same is hereby denied with prejudice.

DONE AND ORDERED this 9th day of July, 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 9th day of July, 1996.

ENDNOTE

1/ 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.")

COPIES FURNISHED:

(By Certified Mail)

James J. Traitz, Esquire Nicole L. Gilmore, Esquire Freshman, Freshman & Traitz Two Datran Center, Suite 1701 9130 South Dadeland Boulevard Miami, Florida 33156

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

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

Moises Lichtanger, M.D. 1960 Northeast 47th Street

Fort Lauderdale, Florida 33308

Holy Cross Hospital Legal Department

4725 North Federal Highway

Fort Lauderdale, Florida 33308

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, PL-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: 95-005074N

Orders for Case No: 95-005074N