vs. ) Case No. 99-4759N
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by Administrative Law Judge William J. Kendrick, held a final hearing in the above-styled case on April 12 and September 14, 2000, by video teleconference, with sites in Jacksonville and Tallahassee, Florida.
For Respondent: W. Douglas Moody, Esquire
Graham, Moody & Sox, P.A.
At issue in the proceeding is whether Roger Demetrick, a minor, suffered an injury for which compensation should be
Compensation Plan.
On November 15, 1999, Amy Demetrick, as the mother and natural guardian of Roger Demetrick ("Roger"), 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 16, 2000. NICA reviewed the claim, and on February 14, 2000, 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 such issue]." Such a hearing was held on April 12 and September 14, 2000.
At hearing, the parties stipulated to the factual matters set forth in paragraphs 1 and 2 of the Findings of Fact. Joint Exhibit 1 (the medical records filed with DOAH on November 15, 1999), Petitioner's Exhibit 1 (the records filed with DOAH on July 13, 2000, relating to Roger's neurologic status), and Respondent's Exhibit 1 (the deposition of Dr. Michael S.
Duchowny, taken April 10, 2000), Exhibit 2 (the deposition of Dr. Charles Kalstone, taken April 11, 2000), Exhibit 3 (the deposition of Dr. Michael S. Duchowny, taken June 6, 2000), and Exhibit 4 (the deposition of Dr. Charles Kalstone, taken June 8, 2000) were received into evidence. Petitioner (Amy Demetrick) testified on her own behalf and called Christine Hambelton as a
witness. No other witnesses were called, and no further exhibits were offered.
The transcript of the hearing was filed October 16, 2000, and the parties were accorded 10 days from that date to file proposed final orders. Neither party elected to file such a proposal.
Amy Demetrick is the mother and natural guardian of Roger Demetrick, a minor. Roger was born a live infant on January 19, 1997, at St. Vincent's Medical Center, a hospital located in Jacksonville, Florida, and his birth weight was in excess of 2,500 grams.
The physician providing obstetrical services during the birth of Roger was Timothy Michael Phelan, M.D., who was at all times material hereto a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(2), Florida Statutes.
Roger's birth and subsequent development
Mrs. Demetrick presented at St. Vincent's Medical Center the morning of January 19, 1997, in active labor. Apart from being pre-term, with the fetus at 36 weeks gestational age,
Mrs. Demetrick's prenatal course was uncomplicated, and on admission fetal heart rate was noted within normal limits.
Mrs. Demetrick's labor progressed steadily, and external fetal monitoring reflected a normal fetal heart rate throughout the course of labor. At about 10:44 a.m., spontaneous rupture of the membranes occurred, with clear amniotic fluid noted, and at 12:42 p.m., Roger was delivered by vaginal vertex presentation without difficulty, with clear amniotic fluid again noted.
At delivery, Roger was noted to be somewhat poorly perfused, and was accorded blow-by oxygen for several minutes. Otherwise, no abnormalities were noted. Apgar scores were 8 at one minute and 9 at five minutes.
The Apgar scores assigned to Roger 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, Roger's Apgar score totaled 8, with heart rate, respiratory effort, muscle tone, and reflex irritability being graded at 2 each, and
color being graded at 0. At five minutes, Roger's Apgar score totaled 9, with heart rate, respiratory effort, muscle tone, and reflex irritability again being graded at 2 each, and color being graded at 1. Such scores may reasonably be described as normal.
Following delivery, Roger was transferred to the special care nursery. His course post-delivery is summarized by his attending physician, Arthur J. Vaughn, M.D., as follows:
. . . The infant was brought to the special care nursery at St. Vincent's Medical Center and had intermittent tachypnea, pale appearance and arterial blood gases were obtained from the right radial artery. The arterial blood gases on room air revealed pH 7.29, PCO2 42, PO2 72 and a -7.2 base
deficit. The infant was kept in the special care nursery and developed progressive tachypnea and retractions and repeat arterial blood gases revealed pH 7.21, PCO2 56, PO2
141 and a -7.4 base deficit. The infant was placed on hypo C-PAP and a right posterior tibial peripheral arterial line was placed by Dr. Carzoli. The infant improved on the C- PAP and the course and baby's chest x-rays were consistent with retained fetal lung fluid. The infant was able to be weaned off hypo C-PAP and off oxygen in approximately twenty-four hours. The infant then had a course consistent with a premature growing infant. The infant had intravenous antibiotics started at the time of the respiratory distress and work up was essentially negative and these antibiotics were discontinued at seventy-two hours. The infant developed some mild jaundice with a peak bilirubin level of 14.5. This jaundice resolved without treatment. The infant otherwise has been normal. He did have some problems with poor suck, swallow coordination and did require some initial nasogastric supplementation but the infant over the past
several days has been taking p.o. and breast feeds well, not requiring any nasogastric feeds. The infant has continued to gain weight and keep down a normal temperature and is thus ready for discharge. The infant did have mild anemia evidenced on his hematocrit yesterday. The hematocrit was 34. The infant is to be started on Fer-In-Sol.
Roger was discharged to his mother's care on January 28, 1997. Physical examination on discharge revealed:
. . . a well developed, well nourished active mildly pale white male in no acute distress. HEENT - negative. Lungs - clear to percussion and auscultation in no distress.
Heart - regular rate and rhythm without murmurs. Normal pulses. Abdomen - benign. No masses, organomegaly or tenderness. The abdomen is soft and nondistended.
Genitourinary - normal male, recent circumcision with no active bleeding. Hips are normal without hip clicks. Neurologic - intact.
Discharge diagnosis was as follows:
Prematurity at thirty-three [sic] weeks.
Respiratory distress - retained fetal lung fluid.
Jaundice related to prematurity.
Anemia - related to prematurity.
Observation - sepsis.
Diet - breast on demand, supplement as needed with formula.
Roger was first seen by Henry Abram, M.D., his current neurologist, on June 25, 1998, at 1 1/2 years of age. Dr. Abram described the results of his examination and Roger's development following his discharge from St. Vincent's Medical Center as follows:
This youngster has a complex medical history. He was born to a 27-year-old mother and was the 5 lb, 14 oz product of a 36 week gestation. The pregnancy was complicated by a viral illness at 28 weeks of gestation concurrent with weight loss, severe vomiting and diarrhea. At that time, there were some significant stresses with her marriage.
Delivery was at St. Vincent's Hospital here in Jacksonville. Delivery was vaginal.
Apgar scores were reported to be 8 and 9.
The child had a 9-day stay in the nursery and for two days he was apparently mechanically ventilated. There were no reported neurological concerns.
Developmental issues arose at approximately 6-7 months, when he was not developing normally. The mother initially admits to being in denial with these concerns, attributing the delay to his minimal
prematurity. At approximately a year of age, he was referred to a developmentalist at Mercer University in Macon, when he was felt to be severely delayed.
The issue of seizures came to attention in April of this year when he had an approximate 30-second generalized episode of stiffening and eye rolling. This resulted in a child neurology consultation with Dr. Janas, who was doing an outreach clinic from Atlanta in Macon. Her history is excellent and is present for my review today. She obtained a history of probably infantile spasms since early infancy. The mother is uncertain of when the movements began, but believes it was approximately 6-9 months of age. These spasms consisted of clusters seen throughout the day. The child would drop his head and shoulders forward, and his arms would come in to his chest. She initially attributed these to abdominal cramping, and it was only when the child had a prolonged seizure that these past episodes became highlighted. An EEG performed in April was felt to be hypsarrhythmic. Dr. Janas' notes clearly
document significant global delay. She noted diffuse hypotonia on examination. The child's work-up at that time included an MRI scan of the brain. By report, this is felt to reveal prior ischemic injury to the right cerebral hemisphere. The child's metabolic evaluation reported a "normal" CBC, SMA-25, thyroid function tests and carnitine studies. Further studies reported to be performed included serum amino acids, urine for organic acids, urine for metabolic screen, serum lactate and chromosomes. The results of these studies are not available to me today.
The child was begun on Phenobarbital in late April because of the spasms. However, within a week a diffuse "measles-like" rash developed. This medication was discontinued and the child was begun on Klonopin, and currently is on a dose of 1/2 tablet (0.5 mg tablets) given b.i.d. Initially this medication appeared to improve his seizures, however, for the past several weeks the spasms persisted daily.
The child had an EEG performed at Nemours on 6/23/98. This was felt to be abnormal because of diffuse disorganization and slowing, as well as independent right and left hemisphere epileptiform discharges.
* * *
PHYSICAL EXAMINATION: Weight 12 kg. Head
circumference 47 cm (30th percentile). The child was alert in appearance, but obviously markedly delayed. He was nonverbal and had few purposeful movements. Prominent fisting of the left arm was noted with increased tone noted in that extremity. Overall, his muscle tone appeared diminished, particularly in the lower extremities, however, DTR's were 2+ and symmetrical with a predominantly flexor plantar response. Withdrawal to light tactile stimulation was brisk and symmetrical. Cranial nerves II-XII appeared intact. Eye movements were full and
conjugate. Pupils were equal and reactive to light. Brief glimpses of the fundi were unremarkable. The tongue was midline.
GENERAL EXAM: HEENT: There were no cranial bruits. There were no dysmorphic features. CHEST: Clear. HEART: Regular rhythm without murmurs. ABDOMEN: Soft without organomegaly. SKIN: Without significant markings or rashes.
In summary, this is a complex history in this 18-month-old youngster in whom there are many concerns. First, I agree that the child is severely and globally delayed, and there is a left spastic hemiparesis evident on exam.
This is consistent with the MRI findings. It appears that the child did have a perinatal1 infarct, the etiology of which is, at this time, unclear.
The child continues to have, by maternal description, infantile spasms. This has likely been a problem for at least the past year, and currently is unresponsive to Klonopin.
I had a lengthy discussion with the mother discussing my concerns and recommendations. We discussed predominantly various anticonvulsant choices for the child's spasms. At this time, these are predominantly the three medication options: ACTH, Valproic acid, and Topiramate . . . .
After a lengthy discussion . . . with the above options, the following recommendations were discussed and agreed upon: . . .
[b]egin a trial of Topiramate [,]
[r]eturn in one month's time for follow-up
. . . [,] [and] continue with current OT, PT and ST.
. . . It is my hope that Topiramate will abate the current infantile spasms, and be an effective long-term anticonvulsant for this youngster. I anticipate that he will
continue to have severe delay and seizures and the need for special therapies will be a life-long concern.
Roger's seizure disorder (epilepsy) has proven intractable, and he is currently described by Dr. Abram as a child with severe static encephalopathy and profound developmental delay. In Dr. Abram's opinion, Roger is permanently and substantially mentally and physically impaired secondary to a brain injury. As for the etiology of that injury, Dr. Abram has offered no opinion of record.
Coverage under the Plan
Pertinent to this case, coverage is afforded under the Plan when the claimant demonstrates, more likely than not, that the infant suffered 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 a hospital, which renders the infant permanently and substantially mentally and physically impaired."2 Sections 766.302(2) and 766.309(1)(a), Florida Statutes.
Here, NICA does not dispute that, as observed by Dr. Abram, Roger is permanently and substantially mentally and physically impaired secondary to a brain injury. What is at
issue is whether the injury Roger suffered was "caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery
period." As to that issue, it must be resolved, as contended by NICA, that the record fails to demonstrate with the requisite degree of certainty that Roger's injury is related to oxygen deprivation or any other event that occurred during labor, delivery, or resuscitation in the immediate post-delivery period. The cause and timing of Roger's brain injury
To address the cause and timing of Roger's injury, the parties offered selected records relating to Mrs. Demetrick's antepartum and intrapartum course, as well as for Roger's birth and subsequent development. The parties also offered the opinions of two physicians by deposition (Dr. Michael S. Duchowny, a physician board-certified in neurology with special competence in child neurology, and Dr. Charles Kalstone, a physician board-certified in obstetrics), as well as the observation of Mrs. Demetrick and Christine Hambelton.
The medical records and other proof have been carefully considered. So considered, it must be resolved that the proof fails to demonstrate, more likely than not, that Roger's injury was associated with oxygen deprivation or other traumatic event occurring during the course of labor, delivery, or resuscitation in the immediate post-delivery period. In so concluding, it has not been overlooked that Dr. Abram was of the opinion that Roger's injury was the apparent result of a "perinatal infarct" or, as stated elsewhere in the records, the result of a
"perinatal vascular accident ('strokes')." However, as heretofore noted, the perinatal period, which is not otherwise defined of record, is commonly understood to pertain to "the period shortly before and after birth; variously defined as beginning with completion of the twentieth to twenty-eighth week of gestation and ending 7 to 28 days after birth."3 Notably, Dr. Abram did not further refine the period during which he was of the opinion Roger's injury occurred (i.e., as having occurred
during labor, delivery, or resuscitation in the immediate post- delivery period) or offer any explanation as to the cause of his injury.
Contrasted with the paucity of proof offered by Petitioner to establish the cause and timing of Roger's injury, NICA offered the opinions of Doctors Duchowny and Kalstone who were of the view that there was no clinical evidence of any hypoxic or traumatic event having occurred during the course of Roger's birth consistent with brain injury and, consequently, that the injury he suffered was, most likely, acquired prior to the onset of labor. In so concluding, these physicians observed that Mrs. Demetrick's labor and delivery were uncomplicated; fetal monitoring (up to 2 minutes of delivery) was normal and showed no evidence of fetal distress; that on delivery Roger's Apgars were normal and he required no special assistance other than blow by oxygen; that his blood gases within an hour of
delivery were normal; and there were no post-delivery complications to suggest Roger had suffered any injury to his brain during the course of labor, delivery or resuscitation in the immediate post-delivery period. Such opinions are grossly consistent with the record, are founded on a logical premise, and are accepted as credible and persuasive.
CONCLUSIONS OF LAW
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.
The Florida Birth-Related Neurological Injury Compensation 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.
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. Sections 766.302(3), 766.303(2), 766.305(1), and 766.313, Florida Statutes. The Florida Birth-Related Neurological Injury Compensation Association, 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.
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.
In discharging this responsibility, the administrative law judge must make the following determination based upon the available evidence:
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).
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.
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.
As the claimant, the burden rested on Petitioner 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").
Here, the proof demonstrated that the physician who provided obstetrical services at birth was a "participating physician," as that term is defined by Section 766.302(7), Florida Statutes, and that Roger suffered an injury to his brain which rendered him permanently and substantially mentally and physically impaired. However, the proof failed to demonstrate, more likely than not, that the injury Roger suffered was caused by "oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period." Section 766.302(2), Florida Statutes.
Consequently, the proof failed to demonstrate that the claim is compensable under the Plan. Sections 766.302(2), 766.309(1), and 766.31(1), Florida Statutes.
23. 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.
Amy Demetrick, as parent and natural guardian of Roger Demetrick, a minor, be and the same is hereby denied with prejudice.
WILLIAM J. KENDRICK
1/ "Perinatal" is commonly defined as "pertaining to or occurring in the period shortly before and after birth; variously defined as beginning with completion of the twentieth to twenty-eighth week of gestation and ending 7 to 28 days after birth." Dorland's Illustrated Medical Dictionary, 28th Edition (1994).
2/ Coverage is also afforded by the Plan when the infant suffered an "injury to the . . . 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 a hospital, which renders the infant permanently and substantially mentally and physically impaired."
Here, there was no spinal cord injury. Consequently, this alternative need not be further addressed.
Injury Compensation Association Post Office Box 14567 Tallahassee, Florida 32317-4567
W. Douglas Moody, Esquire Graham, Moody & Sox, P.A.
Timothy Michael Phelan, M.d. 4570 Ortega Island Drive, North Jacksonville, Florida 32210
St. Vincent's Hospital Legal Department
Ms. Charlene Willoughby
Daniel Y. Sumner, General Counsel Department of Insurance
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.
