STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LISA ANWAR and SAEED ANWAR, as )

parents and natural guardians of ) MICHAEL CHASE ANWAR, a minor, )

)

Petitioners, )

)

vs. ) Case No. 98-0746N

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

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on

May 11, 1998, by video teleconference.

APPEARANCES

For Petitioners: Lisa Anwar and Saeed Anwar, pro se

8708 Bristol Park Drive Orlando, Florida 32836

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

Graham & Moody, P.A.

101 North Gadsden Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

On February 11, 1998, Lisa Anwar and Saeed Anwar, as parents and natural guardians of Michael Chase Anwar, a minor, filed a petition (claim) with the Division of Administrative Hearings (hereinafter referred to as "DOAH") for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (hereinafter referred to as the "Plan").

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on February 12, 1998. NICA reviewed the claim, and on March 27, 1998, 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 May 11, 1998.

At hearing, the parties stipulated to the factual matters set forth in paragraphs 1 and 2 of the findings of fact, and the medical records that were filed with the petition on February 11, 1998, were received into evidence as Joint Exhibit 1.

Petitioners, Lisa Anwar and Saeed Anwar, testified on their own behalf, but offered no additional evidence. Respondent called no witnesses; however, Respondent's Exhibit 1 (the deposition of Michael Duchowny, M.D.) was received into evidence.

The transcript of the hearing was not ordered. Therefore,

at the conclusion of the hearing, it was announced on the record that the parties were accorded ten days from the date of hearing to file proposed final orders. Respondent elected to file such a proposal and it has been duly considered.

FINDINGS OF FACT

Preliminary matters

1. Lisa Anwar and Saeed Anwar are the parents and natural guardians of Michael Chase Anwar (Michael), a minor. Michael was born a live infant on September 11, 1995, at Florida Hospital, a hospital located in Orlando, Florida, and his birth weight was in excess of 2500 grams.

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

   Mrs. Anwar's antepartum course and Michael's birth

   
   

3. At or about 12:48 a.m., September 11,1995, Mrs. Anwar was admitted, in labor, to Florida Hospital. At the time, her estimated date of confinement was noted as September 22, 1995, and her antepartum course was without apparent complication; however, the fetus was noted to be large for gestational age. Onset of labor was noted as 11:15 p.m., September 10, 1995, with spontaneous rupture of the membranes, and clear amniotic fluid noted.

4. Mrs. Anwar's obstetrical course from admission through Michael's delivery at 1:55 p.m., September 11, 1995, is detailed in Dr. Lense's delivery notes, as follows:

The patient . . . presented with spontaneous rupture of membranes since 2315 hours on September 10, 1995. She was in active labor on admission. She progressed through labor to 8 cm dilatation at which time she had a prolonged fetal heart rate deceleration lasting approximately four minutes to fetal heart tones of 70s associated with a tetanic uterine contraction lasting approximately four minutes. This was relieved with terbutaline 0.125 mg subcutaneously and 0.125 mg intravenously.

Fetal heart rate returned to normal with good variability and accelerations. She was having mild to moderate variable decelerations. She allowed labor to progress. She progressed rapidly to the anterior lip of the cervix to complete and +1 station. Because the fetal heart rate tracing was reassuring she was allowed to progress spontaneously to reach complete dilatation. However, the variable decelerations progressively worsened. She had temperature elevation of 100.5

[to 101.4]. She was begun on ampicillin 2 grams intravenously for presumed chorioamnionitis [an inflammation of female membranes]. She began pushing second stage labor. The variable decelerations worsened, and the decision was made to shorten second state of labor with vacuum assist. A vacuum was applied after the bladder was empty, complete, complete +3 station. The fetal head was delivered to complete, complete and

+4 with the vacuum. However, it was difficult to maintain an adequate suction on the vacuum secondary to the thickness of the fetal hair. However, the patient was able to deliver the infant spontaneously without difficulty. Double nuchal cord was reduced. The rest of the infant was delivered without difficulty . . . The cord was doubly clamped and cut. The infant was noted to have poor respiratory effort and tone at the time of

delivery. The neonatal resuscitation team and the neonatal intensive care unit neonatologists were called to the delivery. .

. .

1. At delivery Michael was intubated due to apnea (failure of the newborn infant to initiate pulmonary ventilation), and required positive pressure ventilation. Apgar scores of 2 at one minute, 3 at five minutes, and 5 at ten minutes were noted.

   Chord pH obtained on delivery was noted as 7.01, representing severe acidosis.

2. The Apgar scores assigned to Michael 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, at one minute Michael's Apgar score totalled 1, with heart rate being graded at 2, and respiratory effort, muscle tone, reflex irritability, and color being graded at zero. At five minutes his Apgar score totalled 3, with heart rate being graded at 2, color being graded at 1, and respiratory effort, muscle tone, and reflex irritability being graded at zero. At ten minutes his Apgar score totalled 5, with heart rate being graded at 2, respiratory effort, reflex irritability and color being graded at 1 each, and muscle tone being graded at zero. Such scores are abnormal, and consistent with perinatal depression.

   Michael's course and development subsequent to delivery

   
   

3. Following resuscitation, Michael was transferred to the neonatal intensive care unit in guarded condition. After admission, positive pressure ventilation was continued, and he was placed on ventilatory support. A blood culture, complete blood count, urine wellcogen and RPR were obtained, and Michael was started on ampicillin and gentamicin to address the risk of

   sepsis or infection. Possible seizure activity was noted during the first day of life, with tonic-clonic movements of all four extremities, and he was loaded with phenobarbital. An electroencephalogram was obtained and read as an abnormal neonatal recording characterized by diffuse depression of background cerebral activity; however, no electrographic seizures or lateralized epileptiform discharges were observed, and motion and electrical artifact were noted to be present.

4. Michael was extubated the morning of September 12, 1995, following which he was noted to be "breathing spontaneously, receiving oxygen via nasal cannula." However, overnight he was noted as "quite irritable, jittery, with back arching," and required occasional sedation with Fentanyl. A head ultrasound completed on September 12, 1995, revealed the following:

   THERE IS A SMALL BLEED IN CHOROID PLEXUS NOTED BILATERALLY. IT COULD BE WORSE ON THE RIGHT THAN ON THE LEFT.

   
   

   THE VENTRICLES ARE NORMAL IN SIZE. THERE IS NO INTRAVENTRICULAR BLEED. NO OTHER ABNORMALITY.

   
   

   IMPRESSION: SMALL CHOROID PLEXUS BLEED NOTED BILATERALLY, WITH THE LEFT BEING MORE EXTENSIVE THAN THE RIGHT.

   
   

   Stated differently, the ultrasound revealed a bilateral grade one intraventricular hemorrhage (IVH).

5. Between the afternoon of September 11, 1995, and the afternoon of September 12, 1995, Michael's hematocrit was noted to drop from 46 percent to 29 percent. Hemoglobin likewise

   dropped from 15.6 to 10.0. Consequently, due to his anemic condition, Michael was transfused on September 12, 1995.

6. On September 12, 1995, Michael was examined by a consulting physician, most likely to address his neurologic condition. That examination, by Prashant M. Desai, M.D., reported the following observations, impressions, and recommendations:

   PHYSICAL EXAMINATION

   
   

   GENERAL: Weight is approximately 3.5 kg. Head circumference was 36.75 cm. Anterior fontanel is soft. The infant is lying supine in an open warmer, receiving oxygen via nasal cannula. He looks healthy, well-developed and well-hydrated. No clear dysmorphic features are noted. No apparent significant congenital skin lesions. He is sleeping comfortably. When disturbed, he becomes jittery and extremely irritable. He is difficult to console. He arches his neck and back. He keeps his hands fisted, flexes the elbows, and displays hand tremoring.

   BACK & SPINE: Appear normal.

   
   

   EXTREMITIES: There is mild stiffness of the extremities. Reflexes are brisk. He will not allow flexion of his neck, and instead, he resists it by neck arching and back arching.

   
   

   He will transiently open his eyes. Face is symmetric. Tongue is midline. Gag reflex is present.

   
   

   IMPRESSION:

   
   

   1. FULL-TERM ONE-DAY-OLD NEWBORN INFANT WITH PERINATAL DEPRESSION AND HYPOXIC-ISCHEMIC ENCEPHALOPATHY.

   2. RECENT DROP IN HEMOGLOBIN AND HEMATOCRIT MAY INDICATE INTRACRANIAL HEMORRHAGE. SUBARACHNOID HEMORRHAGE IS POSSIBLE, AND

      WOULD BE COMPATIBLE WITH CLINICALLY NOTED NECK AND BACK ARCHING, JITTERINESS AND EXTREME IRRITABILITY.

   3. HE HAS BEEN LOADED WITH PHENOBARBITAL AND PLACED ON MAINTENANCE PHENOBARBITAL SECONDARY TO SOME SEIZURE-LIKE ACTIVITY YESTERDAY.

   4. ELECTROENCEPHALOGRAM SHOWS DIFFUSE DEPRESSION OF BACKGROUND CEREBRAL ACTIVITY. THIS WOULD BE COMPATIBLE WITH HISTORY OF PERINATAL DEPRESSION.

      RECOMMENDATIONS:

      
      

      1. Head computerized axial tomography scan when feasible.

      2. Continue Phenobarbital at 4-5 mg/kg/day in two divided doses.

      3. He may require p.r.n. sedation with Fentanyl, given his irritability.

      4. Obtain a repeat electroencephalogram prior to hospital discharge.

      5. Duration of anticonvulsant treatment will depend on his hospital course.

      6. If his seizures recur and, in particular, if his extreme irritability persists, a metabolic work-up might be indicated.

7. A CT (computerized tomography) brain scan of September 13, 1995, was read as "probably within normal limits." The scan was read and reported as follows:

   FINDINGS: THE DURAL VENOUS SINUSES AND THE VEIN OF GALEN ARE RELATIVELY DENSE COMPARED TO BRAIN. THIS IS PROBABLY RELATED TO THIS CHILD'S AGE AND THE COMPARATIVE LOW ATTENUATION OF THE UNMYELINATED BRAIN. THIS APPEARANCE CAN ALSO BE SEEN WITH ELEVATED HEMATOCRIT. WHILE THIS CAN ALSO BE SEEN WITH DURAL SINUS THROMBOSIS, THIS WOULD IMPLY THAT THE ENTIRE DURAL SINUS SYSTEM AS WELL AS THE VEIN OF GALEN WERE THROMBOSED. THAT IS UNLIKELY IN THIS SITUATION ESPECIALLY SINCE NO ASSOCIATED PARENCHYMAL CHANGES ARE NOTED. NO FOCAL PARENCHYMAL ATTENUATION ABNORMALITY IS NOTED.

   IMPRESSION: THE EXAM IS PROBABLY WITHIN

   NORMAL LIMITS. THE POSSIBILITY OF AN ELEVATED HEMATOCRIT IS RAISED.

   
   

8. On September 14, 1995, Michael was noted to have an increased temperature. To further address the risk of sepsis or infection he was accorded a regimen of Vanco and Claforan for three days. Blood culture, urine, and CSF (cerebrospinal fluid)

   studies were reported as negative.

9. Phenobarbital was discontinued September 16, 1995, and ampicillin and gentamicin were discontinued September 18, 1995. All intervening culture studies were reported as negative.

10. A repeat electroencephalogram of September 20, 1995, was read as a "mildly abnormal neonatal recording due to some mild diffuse suppression of background cerebral activity." However, consistent with improvement in Michael's status, the recording was noted to be "considerably improved from [the] previous electroencephalogram performed on day 1" of life.

11. On September 25, 1995, Michael had a second CT brain scan.1 That scan, unlike the first scan, was apparently read as abnormal, reflecting a presentation consistent with hypoxic- ischemic encephalopathy2 or, stated differently, brain injury occasioned by oxygen deprivation. (Discharge Summary for Michael Anwar, at page 2).

12. Michael was discharged at 4:45 p.m., September 25, 1995, to the care of his parents.3 At the time, he was noted to exhibit "diffusely poor tone" ("infant limp, floppy tone"), and "little spontaneous movement" or, stated differently, "little spontaneous arousal." However, positive suck, positive blink, and positive gag were present, and Michael was free of seizure activity. Discharge diagnosis was, as follows:

    DISCHARGE DIAGNOSIS:

    
    

    1. 35 weeks appropriate for gestational age male

    2. Perinatal depression

    3. Sepsis, ruled out

    4. Seizures, ruled out

    5. Hypoxic-Ischemic Encephalopathy

    6. Bilateral Grade 1 Intraventricular hemorrhage

    7. Anemia

       
       

13. On February 27, 1998, following the filing of the claim for compensation, Michael was examined by Michael Duchowny, M.D., a board certified pediatric neurologist. Dr. Duchowny's examination revealed the following:

    PHYSICAL EXAMINATION reveals a small 2 1/2 year old, appropriately proportioned boy. The weight is 25 pounds. The skin is warm and moist without neurocutaneous stigmata.

    There are no gross dysmorphisms. No digital, skeletal or palmar abnormalities are noted.

    The head circumference measures 48.6 centimeters which approximates the 3rd percentile for age. There are no cranial or facial anomalies or asymmetries, and the fontanels are closed. The neck is supple without masses, thyromegaly or adenopathy and the cardiovascular, respiratory and abdominal examinations are normal.

    
    

    NEUROLOGIC EXAMINATION reveals an alert boy who is socially interactive and has only a few words. There is an abundant amount of babbling sounds which suggest the emergence of speech patterns. Michael is in fact able to identify all of his body parts and knows both primary and secondary colors.

    
    

    He is quite alert and his socialization skills are well developed. He maintains good central gaze fixation with conjugate following movements and the ocular fundi are normal. There are full and conjugate extraocular movements with blink to threat from both directions. There are no significant facial asymmetries. The tongue movements are poorly coordinated and drooling is a prominent feature. Motor examination reveals a static generalized hypotonia with a dynamic increase in tone and bilateral upper extremity posturing. Michael is grossly ataxic [uncoordinated], both for axial and appendicular musculature [both truncal

    stability as well as all four limbs (arms and legs)] and his gait shows marked instability and a tendency to fall in all directions.

    Romberg sign could not be tested. He is unable to perform alternating movement sequences and he had poor dexterity for individual finger movements. The DTR's are present and 2 to 3+ bilaterally and plantar responses are downgoing. Sensory examination is intact to withdrawal of extremities to touch and pin, and a neurovascular examination discloses no cervical, cranial or ocular bruits. There are no temperature or pulse asymmetries.

    
    

    IN SUMMARY: Michael's neurologic examination reveals findings consistent with ataxic cerebral palsy. I believe that his cognitive and social skills are actually quite good but [are] restricted as a result of his motor deficit. I suspect that Michael will continue to improve in the future and that he will walk independently within the next 12 to

    18 months.

    
    

    The dispute regarding compensability

    
    

14. Given the proof, it cannot be subject to serious debate that Michael suffered an injury or anomaly in brain development that has resulted in neurologic impairment. What remains to resolve is the cause and timing (genesis) of the event which led to Michael's anomalous brain development or, more pertinent to these proceedings, whether the proof demonstrates, more likely than not, that the anomaly Michael suffers was "caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," as opposed to some other genesis. Section 766.302(2), Florida Statutes. Also at issue is whether, if such an injury occurred, Michael was rendered "permanently and substantially

    mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, the nature and significance of Michael's impairment is dispositive of the claim, and it is unnecessary to resolve the dispute regarding the cause and timing of the event which led to Michael's anomalous brain development.4

15. Regarding the nature and significance of Michael's impairment, the proof demonstrates that the physical impairment he suffers may best be described as moderate, as opposed to severe, and that his physical impairment is not static, but improving. As for Michael's mental status, it has been observed to be at or near age level, and, consequently, there is no evidence of any mental impairment.5

    CONCLUSIONS OF LAW

    
    

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. As the claimants, the burden rests on Petitioners to demonstrate entitlement to compensation. Section 766.309(1)(a), Florida Statutes. See also Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349, 350 (Fla. 1st DCA 1977), ("[T]he burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.")

23. Here, it has been established that the attending physician who provided obstetrical services during the birth of Michael was a "participating physician" as that term is defined by Section 766.302(7), Florida Statutes, and as that term is used in Sections 766.301 through 766.316, Florida Statutes. However, the proof failed to support the conclusion that the brain anomaly Michael suffered rendered him "permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Rather, the proof demonstrated, more likely than not, that Michael's physical impairment may best be described as moderate and improving, and that Michael's mental status, described as at or near age level, evidences no impairment. Accordingly, the subject claim has not been shown to be compensable under the Plan. Sections 766.302(2), 766.309(1), and 766.31(1), Florida Statutes. See also Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearings, 686 So. 2d 1349 (Fla. 1997) (In order to obtain coverage under the Plan, the infant must suffer both

    substantial mental and substantial physical impairments, and it is insufficient that the infant suffer only substantial impairment, mental or physical.)

24. 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

Lisa Anwar and Saeed Anwar, as parents and natural guardians of Michael Chase Anwar, a minor, be and the same is hereby denied.

DONE AND ORDERED this 4th day of June, 1998, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1998.

ENDNOTES

1/ The CT scan is not of record, but its results are referenced at page 2 of Michael's Discharge Summary from Florida Hospital. Another CT scan was apparently taken at 3 months of age, and was "abnormal." (Dr. Duchowny's report of neurological evaluation, Respondent's Exhibit 1). That report is also not of record.

2/ "Encephalopathy" is a generic term used to describe "any degenerative disease ('any deviation from the normal structure') of the brain." Such change in brain structure may result from a number of factors, including injury occasioned by "hypoxia" and "ischemia." "Hypoxia" is considered a "reduction of oxygen supply to tissue below physiological levels despite adequate perfusion of the tissue by blood." Possible causes include a "reduction of the oxygen-carrying capacity of the blood as a result of a decrease in the total hemoglobin" (anemic hypoxia), and "insufficient oxygen reaching the blood" (hypoxic hypoxia).

"Ischemia" is a deficiency of blood in a part, due to functional constriction or actual obstruction of the coronary arteries." Dorland's Illustrated Medical Dictionary, Twenty-sixth Edition (1985). The presence of either (hypoxia or ischemia) may result in the delivery of insufficient oxygen to a part of the brain, with resultant injury (encephalopathy).

3/ Mrs. Anwar had been discharged at 7:05 p.m., September 13, 1995.

4/ Michael's presentation is consistent with a group of persisting motor disorders appearing in young children, commonly referred to as cerebral palsy, that are characterized by delayed or abnormal motor development, such as spastic paraplegia, hemiplegia, or tetraplegia, which may be accompanied by mental retardation, seizures or ataxia. Such disorders result from brain damage caused by birth trauma, such as that which may result from oxygen deprivation or mechanical injury during labor or delivery, or may be associated with a intrauterine (antenatal) event or pathology, such as a vascular insult or stroke, genetic abnormality, or developmental abnormality. (Transcript, pages 6 through 8, 12 and 13.) See also "palsy, cerebral," Dorland's Illustrated Medical Dictionary, Twenty-Eighth Edition (1994).

To address the cause and timing of the event which led to Michael's anomalous brain development, Respondent offered the deposition testimony of Michael Duchowny, M.D., a board certified pediatric neurologist. (Respondent's Exhibit 1). Apart from the medical records (Joint Exhibit 1), and the conclusions one could reasonably draw from the records, no other competent proof was offered by either party to address the issue.

It was Dr. Duchowny's opinion that Michael's presentation was consistent with ataxic cerebral palsy, a disorder that he opined was developmental in origin and not associated with brain injury caused by lack of oxygen or trauma occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Moreover, Dr. Duchowny was of the opinion that brain injury caused by oxygen deprivation or trauma during the birth process could be discounted because Michael did not appear "severely impaired" immediately after birth; the CT scan following birth "was normal and this would unlikely be the case in a newborn that has suffered a severe impairment"; and, if such trauma had occurred, "it would be extremely difficult to understand how this could selectively impair the motor system while sparing his cognitive and social functioning." (Respondent's Exhibit 1, page 11.)

In resolving whether to credit Dr. Duchowny's opinions, it is observed that Dr. Duchowny did not explain, or was not asked to

explain, how his opinions could be reconciled with the characteristic indicators of neurologic injury (brain damage) caused by oxygen deprivation occurring during the course of birth that were present in this case. Those characteristics or markers included fetal stress, as evidenced by progressively worsening variable decelerations and fetal bradycardia during labor and delivery; severe acidosis on delivery (pH 7.01); severe perinatal depression on delivery, as evidenced by Apgar scores of 3 at five minutes and 5 at ten minutes; evidence of seizure activity within day one of life; evidence of bilateral brain injury within day one of life; and, the impression of Michael's treating physicians that his presentation was consistent with hypoxic-ischemic encephalopathy.

Here, given that the nature and significance of Michael's impairment is dispositive of the claim, it is unnecessary to resolve whether the conclusions regarding the cause and timing of the event which led to Michael's anomalous brain development expressed by Dr. Duchowny or those that may be drawn from the medical records can be reconciled or, if not reconcilable, whether Dr. Duchowny's conclusions or those that may be drawn from the medical records should prevail. See Florida Birth- Related Neurological Injury Compensation Association v. Carreras, 633 So. 2d 1103 (Fla. 1st DCA 1994) (Expert opinion is not binding on the trier of fact.); Gordon v. Smith, 615 So. 2d 843 (Fla. 4th DCA 1993) (Finder of fact may judge persuasiveness and credibility of experts testimony and apply his own knowledge and experience when weighing opinion evidence.); and Tolley v.

Department of Health and Rehabilitative Services, 667 So. 2d 480

(Fla. 5th DCA 1996) (Trier of fact may accept or reject all or any part of expert's testimony.)

5/ Apart from Dr. Duchowny's opinion regarding Michael's mental status, there was no evidence offered to address that issue.

Consequently, were Dr. Duchowny's opinion ignored, the result reached (denial of Petitioners' claim) would be the same because the record is devoid of any proof that would demonstrate, more likely than not, that Michael was "permanently and substantially mentally . . . impaired," as required for coverage under the Plan. Sections 766.302(2) and 766.309(1)(a), Florida Statutes.

COPIES FURNISHED:

Lisa Anwar and Saeed Anwar, pro se 8708 Bristol Park Drive

Orlando, Florida 32836

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

Jorge Jesus Lense, M.D.

500 East Rollins Avenue, Suite 201 Orlando, Florida 32803

Florida Hospital Legal Department

601 East Rollins Avenue Orlando, Florida 32803

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: 98-000746N

Orders for Case No: 98-000746N