STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERRY GERSTEIN-FOLEY and MYLES )

FOLEY, as parents and natural ) guardians of KATELYN FOLEY, a ) minor, )

)

Petitioners, )

)

vs. ) Case No. 97-1396N

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

)

Respondent. )

)

FINAL ORDER

On August 26, 1997, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case by telephone conference.

APPEARANCES

For Petitioner: Scott M. Newmark, Esquire

Sheldon J. Schlesinger, P.A. 1212 Southeast 3rd Avenue

Fort Lauderdale, Florida 33316

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

Graham & Moody, P.A.

101 North Gadsden Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

At issue in this proceeding is whether Katelyn Foley, a minor, suffered an injury for which compensation should be

awarded under the Florida Birth-Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On March 19, 1997, Terry Gerstein-Foley and Myles Foley, as parents and natural guardians of Katelyn Foley (Katelyn), 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 March 20, 1997. NICA reviewed the claim, and on May 13, 1997, 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." Such a hearing was duly scheduled for August 27, 1997; however, with the parties' agreement, the hearing was held on August 26, 1997, by telephone conference.

At hearing, the parties stipulated to the matters set forth in paragraphs 1 and 2 of the findings of fact and the following exhibits were, without objection, received in evidence: the medical records filed with the Division of Administrative Hearings on March 19, 1997, which consisted of the records of

Children's Diagnostic Center (Joint Exhibit 1A), the records of Children's Medical Center (Joint Exhibit 1B), the records of Dr. Stuart Brown (Joint Exhibit 1C), the records of Memorial Hospital for Terry Gerstein (Joint Exhibit 1D), the fetal monitoring strips (Joint Exhibit 1E), the records of Memorial Hospital for Katelyn (Joint Exhibit 1F), the records of Dr. Michael Jofe (Joint Exhibit 1G), the records of Dr. Eric Freling (Joint Exhibit 1H), and the records of Pediatric Therapy Associates (Joint Exhibit 1I); the deposition of Paul D. Gatewood, M.D. (Petitioners' Exhibit 1); the deposition of Houchang Modanlou,

M.D. (Petitioners' Exhibit 2); and the deposition of Lance Wyble,

1. (Respondent's Exhibit 1).

   
   

   The parties initially agreed that the stipulated facts and exhibits heretofore noted would be the only evidence offered; however, following inquiry by the undersigned, the parties requested ten days to assure that all existing medical records, particularly those addressing Katelyn's neurologic condition, had been filed with the Division of Administrative Hearings. By order of August 28, 1997, the parties' request was granted and they were accorded ten days from the date of the order to file with the Division of Administrative Hearings "any supplemental medical records relating to the subject claim, and particularly any additional records which may exist that relate to Katelyn's neurologic condition." The order further provided that "[u]pon the filing of such records or, if no such records exist, the

   lapse of ten (10) days from the date of this order, the record shall be deemed closed."

   By motion filed September 8, 1997, Petitioners requested that the time for filing supplemental medical records be extended. That request was granted by order of September 10, 1997, which extended the deadline to October 3, 1997. The order further provided:

   3. Respondent, with its agreement, is accorded three (3) days from the date any supplemental reports are filed to note any objection to the receipt of such reports in evidence. Failing a well-founded objection, the reports will be received in evidence as Petitioners' next numbered exhibits.

   
   

   On September 29, 1997, Petitioners filed a copy of a report of neurology consultation dated March 26, 1997, and another report dated September 8, 1997, by Dr. Robert F. Cullen, Jr. The March 26, 1997, report was marked Petitioners' Exhibit 3 for identification and the report of September 8, 1997, was marked Petitioners' Exhibit 4 for identification.

   Respondent did not file any further medical records, but did respond to Petitioners' filing by letter of October 2, 1997, as follows:

   The undersigned hereby objects to the records filed by petitioners on September 29, 1997, subject to speaking with Mr. Scott Newmark. I have made numerous attempts to speak with Mr. Newmark, but have been unsuccessful. Accordingly, I may withdraw this objection subject to speaking with Mr.

   Newmark.

   By order of October 9, 1997, Respondent's response to the filing of Dr. Cullen's reports was noted, as well as the fact that as of that date Respondent had failed to offer any further response to the offer into evidence of the documents marked as Petitioners' Exhibits 3 and 4 for identification. Consequently, it was:

   ORDERED that on or before October 20, 1997, Respondent shall either withdraw its objection to the exhibits or state in writing its precise legal objection. Failure to state a precise legal objection will be considered a withdrawal of Respondent's objection.

   
   

   Respondent did not respond to the order of October 9, 1997; however, its proposed final order, filed October 21, 1997, reflects, at page two, that Dr. Cullen's reports were not objected to by Respondent. Therefore, consistent with the terms of the order, as well as Respondent's lack of objection, Petitioners' Exhibits 3 and 4 were received into evidence.

   The parties were initially accorded until September 17, 1997, to file proposed final orders; however, at the parties' request, that deadline was extended on a number of occasions, with the final deadline established as October 21, 1997. Both parties elected to file such proposals and they have been duly considered.

   
   

   FINDINGS OF FACT

   
   

   Preliminary matters

   
   

   1. Terry Gerstein-Foley (Mrs. Foley) and Myles Foley are the parents and natural guardians of Katelyn Foley (Katelyn), a minor. Katelyn was born a live infant on April 28, 1995, at Memorial Hospital, a hospital located in Hollywood, Florida, and her birth weight exceeded 2500 grams.

   2. The physician providing obstetrical services during the birth of Katelyn was Eric N. Freling, M.D., who was, at all times material hereto, a "participating physician" in the Florida

      Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes.

   3. Given the parties' agreement to the foregoing facts, what remains to resolve is whether the proof persuasively demonstrates that the anomalies with which Katelyn presents were occasioned by an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period" and, if so, whether such injury rendered her "permanently and substantially, mentally and physically impaired."

      Katelyn's birth

      
      

   4. At or about 5:15 p.m., April 27, 1995, Mrs. Foley presented to Memorial Hospital in labor. At the time, Mrs. Foley

      was post-term at 41 plus weeks, but her pregnancy was otherwise unremarkable.

   5. The obstetrical assessment on presentation reflects that contractions began at 12:30 p.m., April 27, 1995, and the membranes spontaneously ruptured at 3:30 p.m., with clear fluid noted. Vaginal examination revealed dilation at 2 to 3 centimeters, effacement at 50 percent, and the fetus at station

      -2. Fetal heart rate was recorded at 120 to 125 beats per minute.

   6. Mrs. Foley was admitted to the labor and delivery room at approximately 6:00 p.m., and an external fetal monitor was applied. Fetal heart rate was recorded as 120 to 130 beats per minute.

   7. Mrs. Foley labored through the evening, and at 10:45 p.m. vaginal examination revealed dilation at 4 centimeters, effacement at 70 percent, and the fetus at

      station -1. Fetal heart rate continued in the 120 to 130 or 130 to 140 beat per minute range, with accelerations.

   8. At 11:40 p.m., the monitor was disconnected and Mrs. Foley went to the bathroom. At 11:46 p.m., Mrs. Foley called the nurse, and heavy vaginal bleeding was observed. In response, Mrs. Foley was immediately put in bed on her right side and oxygen was administered. Internal fetal electrode was applied, and fetal heart rate was recorded at 116 to 126 beats per minute.

      Vaginal examination revealed dilation at 6 centimeters, effacement at 90 percent, and the fetus at station -1.

   9. Labor continued without any significant observations noted until 12:15 a.m., April 28, 1995, when variable decelerations were noted and decreased variability. Monitoring revealed the fetal heart rate at 118 to 128 beats per minute. Mrs. Foley was repositioned and administered oxygen.

   10. At 12:30 a.m., the fetal heart rate was noted at 120 to

       
       

       130 beats per minute, with occasional late decelerations and decreased variability; however, the fetal heart rate was noted as difficult to track, as the internal electrode was not working well. Mrs. Foley was repositioned to her side and administered oxygen.

   11. At or about 12:57 a.m., vaginal examination revealed dilation complete, effacement complete, and the fetus at station

       +2 to +3. Consequently, although audibly the fetal heart rate was reassuring, Dr. Freling elected to promptly effect delivery because of the continuing difficulty in recording the fetal heart and uncertainty about its pattern.

   12. At 1:10 a.m., April 28, 1995, a vaginal delivery, with vacuum assistance, was effected. Placenta was delivered at 1:22 a.m., with no abruption noted. Consequently, Dr. Freling concluded the vaginal bleeding was heavy secondary to fast cervical dilation.

   13. Cord pH at delivery was 7.15, and Katelyn presented with an Apgar score of 4 at one minute, with heart rate being graded at 2, respiratory effort and reflex being graded at 1 each, and tone and color being graded at 0 each. At five minutes, Katelyn's Apgar score totaled 7, with heart rate and reflex being graded at 2 each, and respiratory effort, tone, and color being graded at 1 each. By ten minutes grunting and retractions were apparent, and Katelyn was transported to the new baby intensive care unit for monitoring incident to respiratory distress.

   14. Katelyn developed hyperbilirubinemia and remained hospitalized until May 5, 1995, when she was discharged to her mother's care. The findings regarding Katelyn's condition on admission to the neonatal intensive care unit and her course of treatment are described in the discharge summary as follows:

       HISTORY AND PHYSICAL:

       . . . Infant had few abrasions on buttocks, blood noted on scalp from an electrode site,

       ? craniotabes1/cephalohematoma2, decreased perfusion, weak pulses, poor aeration with rales and tachypnea3, soft, thin cord, slightly decreased activity of right arm, bilateral hip clicks (Left dislocatable) noted on admission. The rest of the physical examination was essentially normal for gestational age.

       ADMITTING DIAGNOSES:

       1. Vacuum extraction

       2. Respiratory distress

       3. R/O acidosis

       4. Probable craniotabes

          
          

          HOSPITAL COURSE:

          Respiratory distress: Infant initially presented with decreased aeration, with rales, & tachypnea which quickly resolved without intervention. . . .

          
          

          Neuro: Infant initially presented with ? craniotabes & decreased activity of right arm. Also with asymmetric crying facies with decreased motion of left angle of mouth. Dr. Mollestan consulted on 4-28 with CT showing ? bending of skull bones, negative bleeding.

          No follow-up needed.

          
          

          * * *

          
          

          Ortho: Presented with bilateral hip clicks with the left hip dislocatable. Consult with Dr. Reich on 4-29 showed bilateral CDH treated with a pavlik harness. Infant to be followed-up 1 month after discharge. . . .

          
          

          * * *

          
          

          DISCHARGE:

          Discharge was on 5-5-95 with weight 2870 gms and head circumference 35 cm. Physical examination showed craniotabes, bilateral cephalohematomas, dry scalp probe site, holds neck to left side - improving, hips dislocatable - pavlik harness in place, icteric, otherwise was within normal limits. Feedings are Enfamil with Iron ad lib q 4h.

          Medications include Bacitracin to scalp probe site. Last Hct on 5-3 was 38.5%.

          Dr. Budowsky will be the Pediatrician following the infant after discharge.4 Other follow up appointments include

          outpatient PEIP, Ortho Dr. Reich on 5-8 also with ultrasound, Neuro Dr. Brown 1 month.

          DISCHARGE DIAGNOSES:

          1. 41 week newborn

          2. Transient tachypnea of the newborn

          3. Vacuum extraction

          4. Sepsis ruled out

          5. Congenital dysplasia5 of hips

          6. Hyperbilirubinemia

          7. Craniotabes

          
          

          Katelyn's subsequent development and medical care

          
          

   15. Consistent with the discharge summary, Katelyn was followed orthopedically by Dr. Reich for dysplasia of the hips, and progressed well with the harness. At seven weeks the harness was removed, and Dr. Reich observed that range of motion and ultrasound were normal. Katelyn was last seen by Dr. Reich on October 2, 1995, for a follow-up visit. At that time, Dr. Reich noted she had a normal exam of her hips, and she was essentially normal on x-ray.

   16. Also consistent with the discharge summary, Katelyn was examined by Dr. Stuart Brown, a pediatric neurologist, on June 9, 1995. That examination revealed:

       Physical examination revealed a lovely five-week old baby, who weighed 11 pounds. Her head circumference was 38 cm. I did not measure her length, which appeared appropriate for her weight. Facial features were normal. The fontanel was depressed and the sutures were normal. A small, 1 cm., linear, reddish area was noted in the right parietal region, without any evidence of edema, and with the underlying skull feeling normal to palpation. There was no evidence

       of hematoma. The neck was supple with a full range of movement. The child was noted to be in harness to alleviate a hip dislocation.

       The heart was normal to auscultation and the abdomen was soft without any organ enlargement. The spine was straight and the skin did not show any pigmentary abnormalities.

       The neurological assessment revealed full extraocular movements with equal and reactive pupils, and a normal right optic disc. The facial musculature was normal and the tongue was normal, and cry was lusty. Midline face and palate were normal. Muscle tone was normal in the extremities and the deep tendon reflexes were equal and active. Plantar responses were bilaterally flexor. Moro response was active and symmetrical, and tonic neck reflexes were fragmentary.

       Vestibular responses were normal. Suck was normal. Seizures and involuntary movements were not seen.

       IMPRESSION

       
       

       This child is neurologically normal, without showing any evidence, at this time, of any residual impairment from the birth trauma and linear skull fracture. She is not in need of any neurological follow-up, but I will be pleased to see her if the need arises.

       
       

   17. On August 30, 1995, on the referral of her pediatrician, Katelyn was seen by Dr. Michael Jofe, a board certified orthopedic surgeon, for a consultation. Dr. Jofe's observations and conclusions are set forth in his report of August 30, 1995, as follows:

       I saw your patient, Katelyn Foley, in my office on August 30, 1995. Katelyn is a 4- month old baby girl who you referred for evaluation of her neck. Katelyn was born with subluxed hips and was treated with a Pavlik harness. Through an early intervention program she has been receiving physical therapy and Mary Flanders, her physical therapist, noticed that her head wasn't right. She is sent today for evaluation. She was a difficult pregnancy and delivery and developed what sounds like a cephalhematoma. She was hospitalized in the Newborn Intensive Care Unit for eight days after birth. Otherwise, her family and past

       medical history is unremarkable.

       
       

       On exam she tends to hold her head with her left ear towards her left shoulder and her chin towards her right shoulder consistent with a left torticollis.6 I can correct her to neutral but not much beyond. The remaining surface exam of her spine is unremarkable. She has a full range of motion of her upper and lower extremities. She has a negative Ortolani, Barlow and Galeazzi's sign to her hips. The neurologic exam was normal including motor, sensation, and reflexes. There was no evidence of clonus and both toes are downgoing. Straight leg raising is negative bilaterally and the abdominal reflexes are normal. She has a thickening of the sternocleidomastoid of her neck but not severely so. I x-rayed Katelyn's neck today and the x-rays are basically unremarkable.

       Katelyn therefore has a history and physical exam consistent although not diagnostic of torticollis. In general, there is a pseudotumor caused by thickening of the sternocleidomastoid that occurs within the first few weeks to few months of life and then gradually resolves. However, the deformity remains. I don't feel a definite pseudotumor and therefore I am going to check an MRI to make sure there is no other underlying lesion.

       
       

       However, I suspect that this is torticollis and we will need to direct physical therapy towards that.

       
       

   18. Following further examination, Dr. Jofe concluded Katelyn's presentation was most consistent with mild torticollis, and instructed her parents on physical therapy and also recommended formal physical therapy.

   19. Dr. Jofe continued to monitor Katelyn's progress, as related to mild torticollis and, following Dr. Reich, as related

       to her hip development. Katelyn progressed well with therapy, and according to the last observations of Dr. Jofe in a report to Katelyn's pediatrician on May 22, 1996, her condition was as follows:

       . . . she is continuing to do well. Her neck is essentially straight. When she is tired her parents relate that she tends to tilt a little to the left but nothing severe. She has full range of motion of her head and neck and moves it completely normal in the office. Her hip exam is normal also . . . [and] [h]er hip x-rays show her hips to be developing well. . . .

   20. In addition to the foregoing consultations, Katelyn was also referred to Children's Diagnostic and Treatment Center of South Florida (Children's Diagnostic Center) for developmental evaluation. The first evaluation, July 26, 1995, revealed appropriate mental and psychomotor development for her age; however, extreme weakness of the neck with significant head lag was reported. Katelyn was also noted to have weak upper and lower extremities, and it was felt she would benefit from physical therapy.

   21. Katelyn's next developmental screening at Children's Diagnostic Center was October 30, 1995. That evaluation concluded:

       Katelyn's performance on the Bayley Scales of Infant Development II was within normal limits on the Mental Scale and mildly delayed on the Psychomotor Scale. At this time, it appears she has some difficulties in the area of gross motor functioning. According to mother, an orthopedic physician and a physical therapist are currently providing

       services to address these concerns.7 Mother was encouraged to have Katelyn practice picking up small items at home to enhance her fine motor skills.

       
       

   22. According to the proof of record, the last developmental screening at Children's Diagnostic Center occurred on April 1, 1996. The results of that screening were similar to the previous screening and revealed:

       Katelyn's performance on The Bayley Scales of Infant Development II was within normal limits on the Mental Scale and mildly delayed on the Motor Scale. She currently sees an orthopedist and receives physical therapy once a week. Katelyn's gross motor difficulties were shared with the clinic staff to address further.

   23. Finally, in May 1996, having diagnosed Katelyn with developmental delay, her pediatrician referred her to Dr. Robert Cullen, a pediatric neurologist, for consultation. That consultation apparently occurred in July 19968; however, if it was ever reduced to writing, its results are not of record. But, Katelyn's follow-up consultations with Dr. Cullen on March 26, 1997, and September 8, 1997, are of record. (Petitioner's Exhibits 3 and 4).

   24. Dr. Cullen's report for his neurologic consultation of March 26, 1997, contained the following pertinent observations:

       This 23-month-old young lady was last seen by me back in July. She does indeed have a picture of an atonic diplegia.9 She also had a hypoplasia10 or absence of the left depressor anguli oris muscle. Her general health since her last visit has been good. .

       . . She started to walk independently at 18- months. She now has a 12 word vocabulary.

       She tries to dress herself. Her motor skills are still behind and tone is behind . . .

       She presents now for a neurological evaluation.

       
       

       PHYSICAL EXAMINATION now showed her to be a fairly adequately nourished and developed 23- month-old young lady who was in no acute distress. . . . She still had loose heel cords and some loose hip abduction . . .

       
       

       NEUROLOGICALLY, she was alert. She used an occasional word. She cried loud and lustily to noxious stimuli, but could be quieted quite readily when held by her father.

       Cranial nerves II-XII did show the pupils to be equal and regular and they did react to light. The extraocular eye movements were full. The right disc was flat. I did not get a good look at the left disc. She had full visual fields. There was no facial weakness. She still did not depress the left corner of the mouth fully, but this had improved from in the past. She had adequate auditory responses, a good gag, good palatal and pharyngeal movements and the tongue did remain midline.

       
       

       MOTOR EXAMINATION showed adequate muscle bulk. Tone was still a bit decreased. Grasp and traction were fairly good. She was able to walk and run. I did not see any asymetry of her arm movement when running. There was still a minimal degree of genu recurvatum.11

       SENSORY EXAMINATION was intact to pin. . . .

       The plantars were indeed flexor.

       
       

       CEREBELLAR EXAMINATION showed no real dysfunction with finger-to-nose type movements.

       
       

       IN SUMMATION, Katelyn is a 23 month-old-young lady with a picture of an atonic diplegia and a development language delay. She does indeed have a hypoplasia or absence of the left depressor anguli oris muscle. I think she is improving in terms of her motor skills. Her language still remains behind.

       She has some minimal genu recurvatum. I do

       not think we need to be in a formal program of therapy at this time. I would like to see her here in December to see how she is

       doing. . . .

       
       

   25. Katelyn's next visit to Dr. Cullen was on September 8, 1997. The report of that consultation contained the following pertinent observations:

       This 28 1/2-month-old young lady was last seen by me back in March. She does indeed have a picture of an atonic diplegia. She also had a developmental language delay. She had a hypoplasia or absence of the left depressor anguli oris muscle. Her general health since her last visit has been

       good. . . . Her mother said she started three-word phrases at about 27-months. She does not really dress herself yet. She goes to a gym class, but is not in school. She is not toilet-trained. . . . Her muscles are a little bit stronger. Her mother feels that she is a little less agile than other children in the gym class. Her behavior is good. She is no longer in therapy. There is litigation and they are represented by Mr.

       Schlessinger's firm. She does present now for a neurological re-evaluation.

       PHYSICAL EXAMINATION now showed her to be a fairly adequately nourished 28 1/2-month-old young lady who was in no acute

       distress. . . . There were no heel cord contractures. She had somewhat loose ankles and loose knees and adequate hip abduction.

       
       

       NEUROLOGICALLY, she was alert and apprehensive initially. She pointed to a number of pictures in a small coloring book and could identify most of them. I could not really get her to count at this point. When she was upset, she was indeed quite stubborn. Cranial nerves II-XII did show the pupils to be equal and regular and they did react to light. The extraocular eye movements were full. The left disc was flat. I did not get a good look at the right disc. She had full visual fields. There was no facial weakness

       or asymmetry. She had adequate auditory responses, a good gag, good palatal and pharyngeal movements and the tongue did remain midline.

       
       

       MOTOR EXAMINATION showed adequate muscle bulk. Tone was still a bit decreased. When walking, her gait was still a little bit unsteady and she had some tremulousness of her upper extremities.

       
       

       SENSORY EXAMINATION was intact to pin. . . .

       The plantars were indeed flexor.

       
       

       CEREBELLAR EXAMINATION showed no real dysfunction with hand movements.

       
       

       It should be mentioned that we did still have a failure to fully depress the left side of the mouth.

       
       

       IN SUMMATION, Katelyn is a 28 1/2-month-old young lady. She has a picture of an atonic diplegia which is clearly improving. She also has hypoplasia or absence of the left depressor anguli oris muscle. She does have a developmental language delay. I have suggested to her mother now some things that she could do to improve language at home. I do think she should be in a Mommy and Me program at least 1/2 a day a week which would improve language and improve behavior. We will try and see her in a 6-month time period and see how she is doing.

       The cause and significance of Katelyn's condition

       
       

   26. At hearing, neither Petitioners nor Respondent elected to call or present testimony from any of Katelyn's health care providers, including the physician who provided obstetrical services at birth, Katelyn's pediatricians, Katelyn's pediatric neurologists, Katelyn's orthopedic surgeons, or any of the other myriad of health care providers associated with her care, diagnosis and treatment. The parties did, however, introduce

       into evidence medical records dealing with Katelyn's birth and subsequent development and, presumably, those records adequately address the circumstances surrounding her birth and development, as well as the findings and opinions of her health care providers. Those circumstances, findings, and opinions are addressed supra. Notably, among the observations and opinions of those who treated Katelyn, there is no suggestion or finding that she suffered a debilitating neurologic injury at birth, whether by oxygen deprivation or otherwise. To the contrary, when called upon to address Katelyn's neurologic condition, it was noted as normal. Moreover, Katelyn's more pronounced anomalies are congenital or developmental in origin. Finally, there is no suggestion or finding by Katelyn's treating physician's that she is "permanently and substantially mentally and physically impaired." Rather, where observations are made, her mental condition is noted as age appropriate, and her physical condition as mildly delayed and improving.

   27. Apart from the circumstances, observations, and opinions reflected in the medical records, the parties offered the testimony of three physicians to address whether Katelyn "sustained an injury to the brain caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," which rendered her "permanently and substantially mentally and physically impaired." Section 766.302(2), Florida Statutes. The

       physicians selected by Petitioners were Doctors Paul Gatewood and Houchang Modanlou, and the physician selected by Respondent was Dr. Lance Wyble. None of these physicians could be characterized as treating physicians, and none had examined Katelyn.12

   28. Dr. Gatewood is a board certified obstetrician, and Dr. Modanlou is a board certified neonatologist. Each of these physicians, based on their review of the medical records, opined, without elaboration or explanation, that Katelyn suffered an injury to the brain caused by oxygen deprivation and trauma during the course of labor, delivery, or resuscitation in the immediate post-delivery period, which rendered her permanently and substantially mentally and physically impaired.

   29. Dr. Wyble, like Dr. Modanlou, is a board certified neonatologist. It was Dr. Wyble's opinion, based on his review of the medical records, that Katelyn's presentation at birth was not consistent with a brain injury, whether caused by oxygen deprivation or mechanical injury, suffered during the course of labor, delivery, or resuscitation in the immediate post-delivery period, and therefore her current condition must be attributable to some other cause or etiology. In so concluding, Dr. Wyble, contrasted with Doctors Gatewood and Modanlou, offered an explanation, based on the medical evidence, as to why he had reached such a conclusion. That explanation was credible, and was not addressed or rebutted by Petitioners.

   30. The explanation offered by Dr. Wyble was that, based on Katelyn's clinical course, there was no evidence of organic brain damage within the 24-hour period preceding delivery and the 5 or

       6 day period thereafter. Such conclusion was predicated on numerous inconsistencies between Katelyn's presentation and the clinical findings one would expect had she suffered an injury to the brain, whether by oxygen deprivation or trauma.

   31. First, had Katelyn suffered such an injury during that period, one would reasonably expect evidence of damage to multiple organ systems, including the kidneys, heart, and lungs. Here, no such damage was evident.

   32. Additionally, evidence in the blood work mitigates against a finding of brain injury during this period. In this regard, it is observed that Katelyn's lymphocyte count at one hour of life was 10,442, but by the eleventh hour of life it was 7,667. Had an injury occurred during labor or delivery, the lymphocyte count should have remained above 10,000 beyond the eleventh hour of life.

   33. Additionally, the blood work related to renal function showed the serum sodium to be normal. Had an injury been suffered, the injury would have affected kidney function and the serum sodium would be low. Moreover, mitigating against injury to the kidney, the infant's urine output was excellent.

   34. Finally, Katelyn's clinical presentation following birth did not evidence any neurologic changes suggestive of

       injury to the nervous system. Specifically, had she suffered a neurologic injury at birth, or even shortly before birth, one would expect her neurologic status to be diminished, with poor responsiveness, for about 12 hours. Here, the infant was neurologically active and normal by one to two hours after birth. Moreover, had she suffered such a neurologic injury, beginning around 12 hours of birth and extending up to 24 hours, one would expect the infant to become hyperresponsive, with irritability, and she would most likely exhibit seizure activity. Here, Katelyn was neurologically normal during such periods.

   35. Given the proof, it cannot be concluded that, more likely than not, Katelyn's anomalies are associated with a brain injury caused by oxygen deprivation or mechanical injury occurring during labor, delivery, or resuscitation in the immediate post-delivery period, as opposed to some other etiology.13 Indeed, the more credible and persuasive proof is to the contrary.

   36. Similarly, the proof is not compelling that Katelyn is permanently and substantially mentally and physically impaired. In so concluding, the contrary opinions of Doctors Gatewood and Modanlou, have not been overlooked. However, the records on which they based their opinions do not reasonably support their conclusions. Consequently, the opinions of Doctors Gatewood and Modanlou are rejected as lacking in credibility and persuasiveness.

       CONCLUSIONS OF LAW

       
       

   37. 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.

   38. 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.

   39. 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.

   40. 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.

   41. In discharging this responsibility, the administrative law judge 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 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).

          
          

       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.

   42. 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.

   43. As the claimants, the burden rests on the 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.")

   44. Here, the proof demonstrated that the attending physician who provided obstetrical services during the delivery of Katelyn 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 demonstrate, more likely than not, that Katelyn's presentation was the consequence of an "injury to

       the brain . . . 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," as opposed to some other etiology. Moreover, the proof failed to support the conclusion that Katelyn was "permanently and substantially mentally and physically impaired." Consequently, Katelyn's condition was not shown to be a "birth-related neurological injury," as defined by law, and the subject claim is not compensable under the Plan. Sections 766.302(2) and 766.309(1), Florida Statutes.

   45. 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 Terry Gerstein-Foley and Myles Foley, as parents and natural guardians of Katelyn Foley, a minor, be and the same is hereby denied.

DONE AND ORDERED this 21st day of November, 1997, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1997.

ENDNOTES

1/ "Craniotabes": "a reduction in the mineralization of the skull, with abnormal softness of the bone." Dorland's Illustrated Medical Dictionary, Twenty-sixth Edition.

2/ "Cephalohematoma": "a subperiosteal hemorrhage limited to the surface of one cranial bone, a usually benign condition seen frequently in the newborn as a result of bone trauma." Dorland's Illustrated Medical Dictionary, Twenty-sixth Edition.

3/ "Tachypnea": "excessive rapidity of respiration." Dorland's Illustrated Medical Dictionary, Twenty-sixth Edition.

4/ Dr. Budowsky is associated with Children's Medical Center,

P.A. Joint Exhibit 1B.

5/ "Dysplasia": an "abnormality of development." Dorland's Illustrated Medical Dictionary, Twenty-sixth Edition.

6/ "Torticollis": "wryneck; a contracted state of the cervical muscles, producing twisting of the neck and an unnatural position of the head." Dorland's Illustrated Medical Dictionary, Twenty- sixth Edition.

7/ Katelyn was referred to the Pediatric Therapy Associates in June 1995 for evaluation. Initially, no physical therapy was recommended; however, in August 1995 physical therapy was

recommended and approved for one day per week, at 30 to 45 minutes per session. Katelyn apparently continued with physical therapy, at some level, until November 1996. (Petitioners' Exhibit 3.)

The reason it was discontinued is not of record. However, the progress report of March 17, 1996, reflected:

Baby is sitting [and] using both hands well. Just beginning to pull up to stand and cruise. Katelyn belly crawls asymmetrically [with] [weight] to [right] side, but all other movements are symmetrical. With some assist at belly, she will crawl on all 4's.

Ambulates with 2 hands held, briefly. Minimal [left] head tilt.

Gross motor level was noted at 7 to 8 months, with current chronological age at 11 months. The last progress report of record, July 11, 1996, reflects:

Katelyn is flat footed with shoes in ambulation, but [center of gravity] is back too far. She resists [weight] shift forward on stance facilitating [increased] activity on her part. Cruises along wall well, but not happy.

8/ See Petitioners' Exhibit 3, paragraph 1, and Joint Exhibit 1B (referral request for Dr. Cullen).

9/ "Atonic": "lacking normal tone or strength;" "diplegia": "paralysis affecting like parts on both sides of the body;" and "atonic diplegia": "diplegia characterized by hypotonia instead of spasticity." Dorland's Illustrated Medical Dictionary, Twenty- sixth Edition.

10/ "Hypoplasia": "incomplete development or underdevelopment of an organ or tissue." Dorland's Illustrated Medical Dictionary, Twenty-sixth Edition.

11/ "Genu recurvatum": "hyperextension of the knee; called also back knee." Dorland's Illustrated Medical Dictionary, Twenty- sixth Edition.

12/ Consistent with Section 766.308(2), Florida Statutes, the recommendation of the medical advisory panel has been considered. That recommendation does not alter the conclusions reached.

13/ Developmental delay may also be associated with injury or abnormal brain development predating birth by weeks or months.

COPIES FURNISHED:

(By certified mail)

Scott M. Newmark, Esquire Sheldon J. Schlesinger, P.A. 1212 Southeast Third Avenue Fort Lauderdale, Florida 33312

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

Eric N. Freling, M.D.

3850 Hollywood Boulevard, Suite 301

Hollywood, Florida 33021

Memorial Hospital Legal Department 3501 Johnson Street

Hollywood, Florida 33021

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.

Docket for Case No: 97-001396

Orders for Case No: 97-001396