STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSALEE HAYMAN and BASIL HAYMAN, )

as parents and natural guardians ) of SHALYN L. HAYMAN, a minor, )

)

Petitioners, )

)

vs. ) CASE NO. 95-5499N

) 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 July 16, 1996, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Rosalee Hayman and

Basil Hayman, pro se

320 Third Way

West Palm Beach, Florida 33407

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 Shalyn L. Hayman, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On October 13, 1995, Rosalee Hayman and Basil Hayman, as the parents and natural guardians of Shalyn L. Hayman, 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 November 17, 1995. 1/ NICA reviewed the claim, and following an extension of time to respond to the claim, gave notice on May 14, 1996, 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." Such a hearing was held on July 16, 1996.

At hearing, Rosalee Hayman and Basil Hayman testified on behalf of petitioners, and petitioners' exhibits 1 through 9 were received into evidence. Respondent called Michael Duchowny, M.D., as a witness, and its exhibit 1 (the deposition of Charles Kalstone, M.D., filed August 8, 1996) was received into evidence. Additionally, the medical records that were filed with DOAH on November 16, 1995, were received into evidence as joint exhibit 1.

The transcript of the hearing was filed August 1, 1996, and the parties were accorded ten days from that date to file proposed final orders. The parties' proposals are addressed in the appendix of this final order. 2/

FINDINGS OF FACT

Fundamental findings

1. Shalyn L. Hayman (Shalyn) is the natural daughter of Rosalee Hayman and Basil Hayman. She was born a live infant on January 6, 1993, at St. Mary's Hospital, a hospital located in West Palm Beach, Palm Beach County, Florida, and her birth weight was in excess of 2,500 grams.

   
   

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

   
   

3. The parties have stipulated and the proof demonstrates, that Shalyn is permanently and substantially mentally and physically impaired. What is at issue is the cause and timing of the event or events giving rise to such impairment or, stated

   differently and pertinent to these proceedings, whether Shalyn's impairment resulted from an "injury to the brain or spinal cord .

   . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period in the hospital." Section 766.302(2), Florida Statutes.

   
   

   Mrs. Hayman's antepartum course and Shalyn's delivery

   
   

4. Mrs. Hayman's pregnancy was essentially uncomplicated, except for being post-term. In this regard, it is noted that Mrs. Hayman's due date was established as December 25, 1992, at forty weeks gestation, and that when delivered on January 6, 1993, Shalyn was almost two weeks overdue, a high risk situation.

   
   

5. At or about 5:30 a.m., January 6, 1993, Mrs. Hayman presented to St. Mary's Hospital. At the time, Mrs. Hayman was experiencing mild, irregular contractions, and vaginal examination revealed the cervix to be at 1 to 2 centimeters, effacement at 50 percent, and the fetus at station -1. The membrane was noted to be intact, and monitoring revealed a fetal heart tone in the 130's, with poor variability and no observed reactivity. Given the circumstances, Mrs. Hayman was admitted to the labor and delivery area at or about 6:00 a.m.

   
   

6. At or about 7:50 a.m., Mrs. Hayman's contractions were still noted as irregular; however, vaginal examination revealed her cervix was changing, and it was recorded at 2 centimeters, effacement at 80 percent, and the fetus at station -3. Fetal monitoring reflected a fetal heart tone in the 140's, but an abnormal pattern, with decreased variability, lack of acceleration, and persistent late decelerations. That heart rate and pattern persisted through delivery.

   
   

7. Mrs. Hayman's labor continued to progress slowly, and at 9:20 a.m. vaginal examination revealed the cervix to be 3 centimeters, with effacement at 80 percent, and at 10:44 a.m. the cervix was noted to be 4 to 5 centimeters. At 10:55 a.m., labor was augmented with Pitocin, and thereafter progressed fairly normally. At 1:55 p.m., January 6, 1993, Shalyn was delivered vaginally.

   
   

8. Upon delivery thick meconium stained fluid was noted, but none was present below the cords. Shalyn initially required intubation and bagging with 100 percent oxygen for a low heart rate and poor respiratory effort, but was extubated at approximately 10 to 15 minutes of age in the delivery room. Her Apgar scores were 4, 7 and 8 at one, five and ten minutes. 3/ Shalyn was noted to have the physical stigmata of Down's

   syndrome, which was later substantiated by chromosomal analysis, and was ultimately transferred to the neonatal intensive care unit (NICU) for further care and management.

   
   

9. Following admission to the NICU, Shalyn failed to maintain appropriate respirations or oxygenation, and she was re- intubated and placed on ventilator support. Her hospital course was consistent with severe persistent pulmonary hypertension of the newborn, and she required extensive ventilator support. Cardiac disease was ruled out by echocardiogram.

   
   

10. Shalyn's initial hematocrit was 57 with a platelet count of 43,000. The reason for this thrombocytopenia was unknown, although Down's syndrome or perinatal depression were considered as possibilities. On January 7, 1993, Shalyn developed symptomatic polycythemia and a partial exchange transfusion was done. The same day, Shalyn suffered cardiac arrest, which responded to epinephrine and Bicarb.

    
    

11. On January 8, 1993, Shalyn was noted to have developed seizure activity, which was treated with Phenobarbital, Dilantin and intermittent lorazepam before the seizures were under control. An electroencephalogram demonstrated bilateral spiked discharges.

    
    

12. In response to the seizure activity, a neonatal head ultrasound was taken on January 8, 1993, to rule out intraventricular hemorrhage. The ultrasound was entirely normal, with no evidence of hemorrhage into the ventricular system or the tissue immediately surrounding the ventricle.

    
    

13. Shalyn was slowly weaned from ventilatory support and by January 11, 1993, was on an oxygen hood, and by January 14, 1993, was on room air. Physical examination on January 12, 1993, revealed Shalyn to be alert and active under the oxygen hood, her anterior and posterior fontanelle open and flat, not bulging, and neurologically to demonstrate good activity, but decreased tone.

    
    

14. On January 15, 1993, Shalyn underwent a CT brain scan to rule out congenital malformation. That scan revealed the following:

    
    

    There is a large right sided intracerebral hematoma involving the occipital area with

    mild mass effect on the right lateral ventricle. There is a much smaller area of intracerebral hematoma anterior to the larger one in the high frontal parietal area and there is a tiny intracerebral hematoma in the high left

    frontal parietal region. There is also some

    hemorrhage in the body of the left lateral ventricle and the ventricular system shows mild dilatation but no midline shift. There is no extra-axial fluid collections.

    
    

    IMPRESSION: There are bilateral intracerebral hematomas but the primary and largest one is located in the right parietal occipital region and causing mild mass effect on the ventricular system. There is minimal hydrocephalus with no midline shift. There is some extension into the ventricular system with blood in the left lateral ventricle.

    
    

15. A follow-up head ultrasound was administered on January 23, 1993. In contrast to the head ultrasound conducted on January 8, 1993, the January 23rd ultrasound clearly demonstrated "a dilated ventricle system with bilateral intraventricular hemorrhage with large right occipital parenchymal bleed, essentially unchanged from the previous CT scan" of January 15, 1993.

    
    

16. On January 25, 1993, Shalyn underwent a second brain CT scan. The January 25th scan indicated the hemorrhage was now resolving and had decreased in size. In place of the resolving hemorrhage, a resultant encephalomalacia was diagnosed. Subsequent CT scans have confirmed bilateral damage in the form of porencephalic cystic areas in the right temporal parietal and occipital lobes. These areas are consistent with the resolution of an infarct and hemorrhage.

    
    

17. The focal damage to Shalyn's brain, evident from the CT scans, is consistent with an injury caused by an intraventricular hemorrhage, but is not consistent with the global changes to the structures of the brain associated with asphyxia.

    
    

18. Shalyn was discharged from St. Mary's on January 30, 1993, with evident neurologic impairment. Currently, Shalyn is microcephalic, cortically blind, and has increased tone and spasticity of all four limbs, with very limited motor development. In sum, neurological examination reveals a severe degree of both mental and motor impairment, that is permanent in nature.

    
    

    The cause and timing of Shalyn's injury

    
    

19. In addressing the cause and timing of Shalyn's injury, it is first observed that Shalyn has been diagnosed with Trisomy 21, also known as Down's Syndrome. Down's Syndrome is a genetic condition, which often results in mental and physical impairment.

    In Shalyn's case, however, her neurological impairments are significantly different and more severe than one would normally expect in a child suffering only from Down's Syndrome.

    Consequently, it must be concluded that Down's Syndrome is not the cause of Shalyn's current impairments.

    
    

20. Having rejected Down's Syndrome as the cause of Shalyn's injury, the only logical conclusion to be drawn from the proof is that the injury Shalyn suffered to her brain was occasioned by a large intracerebral hemorrhage, and not asphyxia. In so concluding, it is observed that the pattern of her brain damage is focal, as opposed to the global damage one would attribute to asphyxia. Moreover, the medical records do not evidence associated organ damage, which would normally be present if Shalyn had suffered acute hypoxia. Finally, while the delivery records clearly reflect an abnormal fetal heart rate from the onset of labor, no pattern developed that would reflect acute hypoxia or an asphyxial state during labor or delivery and, as heretofore noted, there was no objective evidence of brain damage consistent with asphyxia. Consequently, it is unlikely that Shalyn suffered a hypoxic episode during labor or delivery.

    
    

21. Having resolved that the cause of Shalyn's brain injury, and the resultant permanent and substantial mental and physical impairment, was the intracerebral hemorrhage she suffered, it becomes necessary to address the timing and origin of that hemorrhage. As for the timing, the proof demonstrates that Shalyn's ultrasound of January 8, 1993, demonstrated a normal ventricular system and no evidence of hemorrhage; however, the CT brain scan of January 15, 1993, did reveal the presence of such hemorrhage. Therefore, based on the medical evidence of record, it is reasonable to conclude that Shalyn experienced the disabling intracerebral hemorrhage sometime between January 8, 1993, and January 15, 1993, or, stated differently, after labor, delivery and resuscitation in the immediate post-delivery period.

    
    

22. As for the cause of the hemorrhage, the proof demonstrates that, shortly after birth, Shalyn developed polycythemia, and that polycythemia is associated with hemorrhages, including hemorrhagic stroke. 4/ Given the proof, the opinion of Michael Duchowny, M.D., a board certified pediatric neurologist associated with Miami Children's Hospital, that Shalyn's hemorrhage most likely was associated with her polycythemia and was not related to any event during the birth process, is credited.

    CONCLUSIONS OF LAW

    
    

23. 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.

    
    

24. 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.

    
    

25. 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.

    
    

26. 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.

    
    

27. 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. 5/ 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.

       
       

28. 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.

    
    

29. Here, the proof demonstrated that the attending physician who provided obstetric services during the birth of Shalyn 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 fails to demonstrate that Shalyn 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, more likely than not, that the cause of Shalyn's neurologic impairment was a intracerebral hemorrhage, unassociated with the events of birth. Accordingly, the subject claim is not compensable under the Plan. Sections 766.302(2), 766.309(1), and 766.31(1), Florida Statutes.

    
    

30. 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 Rosalee Hayman and Basil Hayman, as parents and natural guardians of Shalyn L. Hayman, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 22nd day of August, 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 SUNCOM 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1996.

ENDNOTES

1/ The delay in service of the petition was occasioned by the delay in filing the medical records with DOAH. Those records were filed November 16, 1995.

2/ On August 12, 1996, respondent filed a motion requesting an extension until August 14, 1996, to file its proposed final order. Respondent's proposal was filed August 14, 1996, prior to the completion of the final order, and was therefore duly considered. Consequently, respondent's motion is moot, and need not be addressed.

3/ The Apgar scores assigned to Shalyn 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, gag reflex, 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 Shalyn's Apgar score totaled 4, with heart rate, respiratory effort, muscle tone and gag reflex being graded at 1 each, and color being graded at

1. At five minutes, Shalyn's Apgar score totaled 7, with heart rate and color being graded at 2 each, and respiratory effort, muscle tone and gag reflex being graded at 1 each. At ten minutes, Shalyn's Apgar score totaled 8, with heart rate, gag reflex and color being graded at 2 each, and respiratory effort and muscle tone being graded at 1 each. With an Apgar score of 4 at one minute, Shalyn's vitality was clearly diminished, but by five minutes her Apgar score was within the lower normal range.

   
   

   4/ Polycythemia is a condition of the blood which results in a an excess of red blood cells. This excess tends to cause a "sludging" (or buildup of red blood cells) in the vascular system causing a commensurate increase in vascular blood pressure, and resultant hemorrhages.

   
   

   5/ 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), ("[T]he burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.")

   
   

   APPENDIX

   
   

   Petitioners filed a two page letter on July 23, 1996, in the nature of argument. That letter has been duly considered, but need not be further addressed.

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

   
   

2. Addressed in paragraph 4.

3. Addressed in paragraph 5.

3 and 4. Addressed in paragraph 6.

5. Addressed in paragraph 7.

6 through 8. Addressed in paragraphs 7 and 8.

9. Addressed in paragraph 18.

10 through 12. Addressed in paragraphs 9 through 11 and 20.

1. Addressed in paragraph 12.

2. Addressed in paragraph 14.

3. Addressed in paragraph 15.

16 and 17. Addressed in paragraph 16.

COPIES FURNISHED:

(By certified mail)

Rosalee and Basil Hayman

320 Third Way

West Palm Beach, Florida 33407

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

John Pauly, M.D.

1000 45th Street, Suite 12

West Palm Beach, Florida 33407

Continued next page. St. Mary's Hospital Legal Department

901 45th Street

West Palm Beach, Florida 33407

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: 95-005499N

Orders for Case No: 95-005499N