STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JENNIE MICHELLE OSBURN, as parent )

and natural guardian of JOSHUA ) RYAN OSBURN, a deceased minor, )

)

Petitioner, )

)

vs. ) Case No. 01-0279N

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

)

Respondent, )

)

and )

) DEAN E. ALTENHOFEN, M.D.; CHARLES )

A. HORAN, III, M.D.; and HORAN AND ) TURNER, M.D., P.A., )

)

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 October 4, 2001, in Pensacola, Florida.

APPEARANCES

For Petitioner: Samuel W. Bearman, Esquire

1015 North 12th Avenue Pensacola, Florida 32501

For Respondent: Christopher R. Johnson, Esquire

Whibbs, Whibbs & Johnson, P.A.

105 East Gregory Square Pensacola, Florida 32501

For Intervenor Dean E. Altenhofen, M.D.:

Thomas Gonzalez, Esquire Beggs & Lane

3 West Garden Street Pensacola, Florida 32576-2950

For Intervenors Charles A. Horan, III, M.D., and Horan and Turner, M.D., P.A.:

Danny L. Kepner, Esquire

Shell, Fleming, Davis & Menge, P.A.

226 South Palafox Street, Ninth Floor Pensacola, Florida 32501

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

On January 19, 2001, Jennie Michelle Caddell, formerly Jennie Michelle Osburn, as mother and natural guardian of Joshua Ryan Osburn (Joshua), a deceased minor, filed a petition (claim) with the Division of Administrative Hearings (DOAH) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on January 25, 2001, and on April 11, 2001, Dean E. Altenhofen, M.D., Charles A. Horan, III, M.D., and Horan and Turner, M.D.,

P.A., were granted leave to intervene. Thereafter, on May 29, 2001, NICA 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 October 4, 2001.

At hearing, the parties stipulated to the factual matters set forth in paragraphs 1, 2, and 12 of the Findings of Fact. Petitioner's Exhibit 1 (the medical records filed with DOAH on January 24, 2001), Petitioner's Exhibit 2 (the deposition of Michael C. Goodman, M.D.), Petitioner's Exhibit 3 (fetal monitor strips), and Petitioner's Exhibit 4 (Sacred Heart Hospital emergency room medical records), as well as Respondent's Exhibit

1 (the deposition of Charles Kalstone, M.D.), were received into evidence. Intervenor Dean E. Altenhofen, M.D., called James E. Maher, M.D., as a witness. No other witnesses were called, and no further exhibits were offered.

The transcript of the hearing was filed October 18, 2001, and the parties were accorded 10 days from that date to file proposed final orders. The parties elected to file such proposals, and they have been duly considered.

FINDINGS OF FACT

Fundamental findings

1. Petitioner, Jennie Michelle Caddell, formerly Jennie Michelle Osburn, is the mother and natural guardian of

   Joshua Ryan Osburn, a deceased minor, and personal representative of her deceased son's estate. Joshua was born October 25, 1997, at Sacred Heart Hospital, a hospital located in Pensacola, Florida, and his birth weight exceeded 2,500 grams.

2. The physicians providing obstetrical services during the birth of Joshua included Drs. Dean E. Altenhofen and Charles A. Horan, III, who were at all times material hereto "participating physician[s]" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.

   Mrs. Caddell's antepartum course and Joshua's birth

   
   

3. Mrs. Caddell's antepartum course was without apparent complication until approximately 7:05 p.m., October 24, 1997, when, with the fetus at 33 and 5/7 weeks' gestation (estimated date of delivery December 7, 1997), she was involved in an automobile accident in Pensacola, Florida. Emergency medical services (EMS) responded to the scene and, on arrival, noted an approximate 3 to 4 inch circumference area of redness to the right lower quadrant of the abdomen, palpably tender and with

   slight rigidness as compared to the left; low back pain without deformity; and right wrist pain without swelling or deformity.

4. Following evaluation at the scene, EMS transported

   
   

   Mrs. Caddell to Sacred Heart Hospital, where she was admitted to the Emergency Department at or about 7:45 p.m. On admission, Mrs. Caddell complained of abdominal pain, cramping, and thoracic back pain and chest pain. No bleeding was apparent. Fetal heart tone was noted at 140, and Mrs. Caddell reported feeling fetal movement.

5. Mrs. Caddell was examined by the Emergency Department physician at 7:55 p.m.. The results of his physical examination were reported as follows:

   PHYSICAL EXAMINATION: Well developed, well nourished white female, pregnant, mobilized on back board. HEAD: Is atraumatic. Pupils equal, round and reactive to light. TMs are clear. Nose is without discharge. NECK: Immobilized. Collar removed while maintaining immobilization. There is no significant tenderness to palpation and the cervical spine and collar is discontinued.

   CHEST: There is diffuse tenderness of the anterior chest, more so on the left. There is abrasion and early bruising noted over the neck and the anterior chest consistent with a seat belt injury. LUNGS: Are clear with good breath sounds. CARDIOVASCULAR: Regular rate and rhythm without murmur, rub or gallop. ABDOMEN: Pregnant, soft. The fundus is quite tender. Appears to be contracting. There is no rebound or guarding. Diminished bowel sounds. There is tenderness to palpation in the mid thoracic spine. EXTREMITIES: No cyanosis, clubbing or edema . . . .

   
   

6. Given Mrs. Caddell's history, the Emergency Department physician ordered partial thoracic spine and chest x-rays to rule out spinal or other neurologic injury. These studies were read as not revealing any significant abnormalities and it was decided to transfer Mrs. Caddell to Labor and Delivery for fetal monitoring. According to the Emergency Department records, a fetal heart tone of 160 was recorded at 9:30 p.m., and

   Mrs. Caddell was transferred to Labor and Delivery at 9:45 p.m.

   
   

7. At or about 10:09 p.m., Mrs. Caddell was placed on a monitor which revealed some fetal tachycardia in the 160s, with occasional late decelerations, and regular uterine contractions every 1 1/2 to 2 minutes, lasting approximately 45 seconds in duration. Mrs. Caddell was hydrated and, at approximately 10:30 p.m., she received terbutaline to stop the contractions

   and, at approximately 10:40 p.m., nubain to relieve her complaint of pain associated with her seat belt injury.

8. Following receipt of terbutaline, Mrs. Caddell's contractions were noted to abate, but not cease, and then some decreased reactivity was observed. Further occasional decelerations were noted at 11:00 p.m. Vaginal examination at approximately 11:09 p.m., revealed the cervix to be thick, long, and closed.

9. At approximately 11:30 p.m., an ultrasound revealed an accumulation of retroplacental blood consistent with placental abruption, and Mrs. Caddell was taken to the operating room for an emergency cesarean section. At the time of surgery,

   Mrs. Caddell was found to have approximately 30 percent abruption of the placenta.

10. Joshua was delivered at midnight, severely depressed, and died October 30, 1997. Cause of death was severe hypoxic ischemic encephalopathy, caused by perinatal asphyxia, secondary to placental abruption.

    Coverage under the Plan

    
    

11. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . 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." Sections 766.302(2) and 766.309(1)(a), Florida Statutes.

12. Here, there is no dispute that Joshua suffered an injury to the brain caused by oxygen deprivation which rendered him permanently and substantially mentally and physically impaired. What is at issue is whether the injury Joshua received

    occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital.

13. To address the issue, the parties offered selected medical records relating to Mrs. Caddell's antepartum and intrapartum course, as well as those associated with Joshua's birth and subsequent development. Additionally, Petitioner offered the deposition testimony of Michael C. Goodman, M.D., a physician board-certified in obstetrics and gynecology; Respondent offered the deposition testimony of Charles Kalstone, M.D., a physician board-certified in obstetrics and gynecology; and Intervenor Altenhofen offered the testimony of James E. Maher, M.D., a physician board-certified in obstetrics and gynecology, as well as the subspecialty of maternal fetal medicine.

14. Regarding such issue, it was Dr. Maher's opinion that the abruption was initiated by the automobile accident and progressed over time, leading to a progressive decrease in placental perfusion. He was also of the opinion that the abruption precipitated the onset of labor, where contractions intermittently exacerbated the ongoing process of oxygen deprivation to the baby. Consequently, Dr. Maher concluded that Joshua's brain injury occurred during the course of labor and delivery. Dr. Goodman shared opinions strikingly similar to those of Dr. Maher. In contrast, Dr. Kalstone was of the opinion

    that the abruption occurred, as well as Joshua's injury, at the instant of, and in the immediate moments following the impact of the automobile accident, and that Mrs. Caddell was not then or thereafter in labor.

15. The medical records and the testimony of the physicians offered by the parties have been carefully considered. So considered, it must be concluded that the opinions rendered by Drs. Maher and Goodman are most persuasive and consistent with the medical records. Consequently, it is resolved that, more likely than not, the injury Joshua received occurred during the course of premature labor, precipitated by placental abruption.1

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. 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. 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 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.")

23. Here, it has been established that the physician who provided obstetrical services at birth was a "participating physician," as that term is defined by the Plan, and that Joshua suffered a "birth-related neurological injury," as that term is defined by the Plan. Consequently, Joshua qualifies for coverage under the Plan. Section 766.309, Florida Statutes.

24. Where, as here, the administrative law judge determines that "the infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth," the administrative law judge is required to make a determination as to "how much compensation, if any, is to be awarded pursuant to s. 766.31." Section 766.309(1)(c), Florida Statutes. In this case, the issues of compensability and the amount of compensation to be awarded were bifurcated. Accordingly, absent agreement by the parties, a

further hearing will be necessary to resolve any existing disputes regarding "actual expenses," the amount and manner of payment of "an award to the parents or natural guardians," and the "reasonable expenses incurred in connection with the filing of the claim." Section 766.31(1), Florida Statutes.

Nevertheless, and notwithstanding that matters related to the amount of compensation may need to be addressed, the determination that the claim qualifies for compensation under the Plan 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 Jennie Michelle Caddell, formerly Jennie Michelle Osburn, as parent and natural guardian of Joshua Ryan Osburn, be and the same is hereby approved.

IT IS FURTHER ORDERED that:

1. NICA shall make immediate payment for all expenses previously incurred.

2. Jennie Michelle Caddell, formerly Jennie Michelle Osburn, as parent and natural guardian of Joshua Ryan Osburn, a deceased minor, is entitled to an award of up to $100,000. The parties are accorded 45 days from the date of this order to

   resolve, subject to approval by the administrative law judge, the amount and manner in which the award should be paid. If not resolved within such period, the parties will so advise the administrative law judge, and a hearing will be scheduled to resolve such issue.

3. Petitioner is entitled to an award of reasonable expenses incurred in connection with the filing of the claim, including reasonable attorney's fees. The parties are accorded

45 days from the date of this order to resolve, subject to approval by the administrative law judge, the amount of such award. If not resolved within such period, the parties will so advise the administrative law judge, and a hearing will be scheduled to resolve such issue.

IT IS FURTHER ORDERED that pursuant to Section 766.312, Florida Statutes, jurisdiction is reserved to resolve any disputes, should they arise, regarding the parties' compliance with the terms of this Final Order.

DONE AND ORDERED this 20th day of November, 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 20th day of November, 2001.

ENDNOTE

1/ In so concluding, the vaginal examination at 11:09 p.m., which revealed the cervix to be thick, long and closed, has not been overlooked. However, given that only 4 hours had elapsed since the automobile accident, and the likelihood that the abruption progressed over time, such finding (which fails to reflect cervical change) is not dispositive of whether labor had begun.

COPIES FURNISHED:

(By certified mail)

Lynn Larson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association 1435 Piedmont Drive, East, Suite 101 Post Office Box 14567

Tallahassee, Florida 32312

Samuel W. Bearman, Esquire 1015 North 12th Avenue Pensacola, Florida 32501

Christopher R. Johnson, Esquire Whibbs, Whibbs & Johnson, P.A.

105 East Gregory Square Pensacola, Florida 32501

Thomas Gonzalez, Esquire

J. Nixon Daniel, III, Esquire Beggs & Lane

3 West Garden Street Pensacola, Florida 32576-2950

Danny L. Kepner, Esquire

Shell, Fleming, Davis & Menge, P.A.

226 South Palafox Street, Ninth Floor Pensacola, Florida 32501

Sacred Heart Hospital 5151 North 9th Avenue Pensacola, Florida 32504

Daniel Holland, M.D. Sacred Heart Hospital 5151 North 9th Avenue Pensacola, Florida 32504

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: 01-000279N

Orders for Case No: 01-000279N