STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRISHA KIELB nee TRISHA PECK and )

DAVID KIELB, as parents and natural ) guardians of TAYLOR MICHELLE KIELB, ) a minor, )

)

Petitioners, )

)

vs. ) Case No. 00-3128N

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

)

Respondent, )

)

and )

) SOUTH BROWARD HOSPITAL DISTRICT, ) d/b/a MEMORIAL HOSPITAL WEST and ) NIGEL SPIER, M.D., )

)

Intervenors. )

)

FINAL ORDER

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 May 24, 2001, by video teleconference, with sites in Tallahassee and Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Linda A. Alley, Esquire

Sheldon J. Schlesinger, P.A. 1212 Southeast Third Avenue Fort Lauderdale, Florida 33316

For Respondent: W. Douglas Moody, Esquire

McFarlain & Cassedy, P.A.

215 South Monroe Street Post Office Box 2174 Tallahassee, Florida 32301

For Intervenor South Broward Hospital District, d/b/a Memorial Hospital West:

William V. Carcioppolo, Esquire Conrad & Scherer

Post Office Box 14723

Fort Lauderdale, Florida 33302 For Intervenor Nigel Spier, M.D.:

Lucie M. McAllister, Esquire O'Connor & Meyers, P.A.

2801 Ponce de Leon Boulevard, Ninth Floor Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

On August 1, 2000, Petitioners, Trisha Kielb nee Trisha Peck and David Kielb, as parents and natural guardians of

Taylor Michelle Kielb (Taylor), a minor, filed a petition (claim) with the Division of Administrative Hearings (DOAH) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).1

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on August 2, 2000. NICA reviewed the claim and on February 6, 2001, 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 May 24, 2001.

At hearing, the parties stipulated to the factual matters set forth in paragraphs 1 and 2 of the Findings of Fact.

Petitioners' Exhibit 1 (the medical records filed with DOAH on August 1, 2000) and Respondent's Exhibit 1 (the deposition of Jaime L. Baquero, M.D., filed with DOAH on July 10, 2001) were received into evidence. No witnesses were called, and no further exhibits were offered.

The transcript of the hearing was filed July 10, 2001, and the parties were accorded 10 days from that date to file proposed final orders. No party elected to file such a proposal.

FINDINGS OF FACT

Fundamental findings

1. Petitioners, Trisha Kielb nee Trisha Peck and David Kielb, are the parents and natural guardians of Taylor Michelle Kielb, a minor. Taylor was born a live infant on June 7, 1997,

   at Memorial Hospital West, a hospital located in Broward County, Florida, and her birth weight was in excess of 2,500 grams.

2. The physician providing obstetrical services during the birth of Taylor was Nigel Spier, 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.

   Coverage under the Plan

   
   

3. Pertinent to this case, coverage is afforded under the Plan when the claimants demonstrate, more likely than not, that the infant suffered an "injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Section 766.302(2), Florida Statutes. Here, the proof demonstrates, more likely than not, that Taylor's neurologic impairment was not associated with any intrapartum injury, hypoxic or traumatic in nature, but is related to an autonomic nervous system dysfunction (also called dysautonomia and Riley- Day syndrome) of otherwise unclear etiology. Consequently, it is unnecessary to otherwise address the cause or timing of her anomaly, or whether Taylor has been rendered permanently and substantially mentally and physically impaired.

   The cause of Taylor's neurologic dysfunction

   
   

4. In reaching the conclusion that Taylor suffers a dysautonomia unassociated with any intrapartum injury, the medical records relating to Mrs. Kielb's antepartum and intrapartum course, as well as for Taylor's birth and subsequent development have been carefully considered (Petitioners'

   Exhibit 1). Also considered was the testimony of Jaime L. Baquero, M.D., a pediatric neurologist who was called upon to examine Taylor and render his opinion regarding the etiology of Taylor's neurologic impairment. (Respondent's Exhibit 1).

5. Pertinent to this case, Dr. Baquero examined Taylor on December 1, 2000, and reported the results of that consultation as follows:

   I had the opportunity to examine Taylor, after reviewing the medical history regarding neurologic difficulties she has been experiencing since the neonatal period.

   These included provoked, as well as unprovoked episodes of breath-holding which have been difficult to manage, as well as diffuse hypotonia, manifested by poor muscle tone, developmental delay, gastroesophageal reflux and noisy breathing (early stridor) without a clear etiology. She was evaluated by neurology early on, after presenting with episodes of breath holding since the first day of life. An extensive work-up was undertaken at the time, including brain CT (normal), routine EEG was once normal and once with "right posterior temporal sharps." Video-eeg telemetry monitoring studies done later were normal. EKG and cardiac echocardiography, polysomnography and a comprehensive neurometabolic panel. Ph-probe

   demonstrated reflux and EKG's and Holter monitoring showed bradycardia, sinus arrest and ideoventricular rhythm. MRI at age 3 weeks was interpreted as "No intrinsic brain abnormality. Extra-axial collections vs. subdurals over the right parietal vertex and behind both cerebellar hemispheres." Of interest, is the fact that, while Taylor appears to have relative insensitivity to pain, she seems to have periods of marked sensitivity to stimulation of the skin. In addition, she has had episodes of abdominal distention and transient episodes of skin discoloration. In 1997, Taylor was seen by Dr. Axelrod who is a specialist in Disorders of the autonomic nervous system.

   
   

   PAST MEDICAL HISTORY: Taylor was born to 25 year old via C-section with breech presentation due to fetal intolerance to labor and non-reassuring fetal heart monitoring, with membranes ruptured 3 1/2 hours prior to delivery. The baby required respiratory support for less than two days, following 100% oxygen with bag and mask.

   Thin, non-particulate meconium stained amniotic fluid was noted. Apgar scores were 4, 6 and 9 [sic] at one, five and ten minutes respectively.

   
   

   Birth weight was 3.1 kg. Initial blood gas revealed a Ph of 7.21, PC02 51, PO2 of 41 (cord) and a base deficit of -7. Narcan and sodium bicarbonate were given. Antibiotic were given until all cultures, including CSF, were negative. CSF PCR for Herpes Virus was negative, as was the neonatal screening for inborn errors of metabolism. Poor feeding and sucking were noted. Episodes of desaturation with both cyanotic and pallid breath-holding spells were seen frequently, and over time remained refractory to medical treatment. Developmental history reveals that at present she walked 26 mos. and alternates feet when going up and down stairs with assistance. She can't ride a tricycle, she can stack more than five blocks,

   scribbles but cannot copy a circle. She assists in dressing and undressing. She has difficulty with textured foods and eats mainly baby food. She is not toilet trained. Yet. She uses pronouns, waves bye-bye and follows commands. She knows primary colors and has good eye contact.

   
   

   * * *

   
   

   PHYSICAL EXAMINATION: She is alert, in no acute distress with stable vital signs.

   There were no dysmorphic features or neurocutaneous signs. There is no organomegaly or audible murmurs. There is upper airway congestion. Head circumference measures 50 cm. Cranial nerves are intact. Motor examination reveals generalized hypotonia with symmetric loss of muscle mass.

   No fasciculations. There is exaggerated lordosis as posture is assessed. We could not elicit deep tendon reflexes. No fixed spinal deformity is seen. There are no involuntary movements or nystagmus. There is no clonus, persistence of early developmental reflexes and plantar responses were absent.

   
   

   IMPRESSION: Based on a careful review of history and clinical examination and given the lack of cerebral edema on a brain CT obtained within 72 hours, absence of significant acidemia on cord blood gas, five minute apgar above 5, along with signs of autonomic dysfunction, arreflexia, apnea, intermittent cardiac dysrhythmia, relative insensitivity to pain despite apparent episodes of marked tactile hypersensitivity, the presence of poor coordination, hypotonia and breech presentation (present in 23% of babies with dysautonomia vs. 3% normal prevalence); We conclude that Taylor's clinical syndrome is not associated with intrapartum injury but rather associated to autonomic nervous system dysfunction of unclear etiology.

   Dr. Baquero's opinion is grossly consistent with the proof and is

   
   

   credited.

   
   

   CONCLUSIONS OF LAW

   
   

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

    
    

12. As the claimants, the burden rested 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").

13. Here, the proof failed to demonstrate that Taylor's neurologic impairment was associated with any intrapartum injury, hypoxic or traumatic (mechanical) in nature. 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.

14. 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 Trisha Kielb nee Trisha Peck and David Kielb, as parents and natural guardians of Taylor Michelle Kielb, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 30th day of July, 2001, 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2001.

ENDNOTE

1/ As filed, the petition erroneously identified the Petitioners as Trisha Peck and David Peck [sic], as the parents of Taylor Michelle Kielb, a minor. Michelle's father is actually named David Kielb, and his being named as David Peck in the petition was a scrivener's error. After the petition was filed,

Trisha Peck and David Kielb were married. The style of the case has been amended to correct the scrivener's error and to reflect Petitioners' current marital status.

COPIES FURNISHED:

(By certified mail)

Linda A. Alley, Esquire Sheldon J. Schlesinger, P.A. 1212 Southeast Third Avenue Fort Lauderdale, Florida 33316

W. Douglas Moody, Esquire McFarlain & Cassedy, P.A.

215 South Monroe Street Post Office Box 2174 Tallahassee, Florida 32301

Lynn Larson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association 1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32312

William V. Carcioppolo, Esquire Conrad & Scherer

Post Office Box 14723

Fort Lauderdale, Florida 33302

Lucie M. McAllister, Esquire O'Connor & Meyers, P.A.

2801 Ponce de Leon Boulevard Ninth Floor

Coral Gables, Florida 33134

Nigel Spier, M.D.

3850 Hollywood Boulevard

Hollywood, Florida 33021

South Broward Hospital District d/b/a Memorial Hospital West 703 North Flamingo Road Pembroke Pines, Florida 33028

Ms. Charlene Willoughby

Agency for Health Care Administration Consumer Services Unit

Post Office Box 14000 Tallahassee, Florida 32308

Mark Casteel, 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: 00-003128N

Orders for Case No: 00-003128N