STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRACIE WILSON and JAMES RAY )

WILSON, as parents and natural ) guardians of MORGAN WILSON, a ) minor, )

)

Petitioners, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

Case No. 01-3752N

)

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 January 14, 2003, in

Jacksonville, Florida.

APPEARANCES

For Petitioners: Tracie Wilson, pro se

James Ray Wilson, pro se 11938 Nicobar Court

Jacksonville, Florida 32223

For Respondent: David W. Black, Esquire

Frank, Weinberg & Black, P.L. 7805 Southwest Sixth Court Plantation, Florida 33324

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Morgan Wilson, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On September 20, 2001, Tracie Wilson and James Ray Wilson, on behalf of and as parents and natural guardians of

Morgan Wilson (Morgan), 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).

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on September 21, 2001. NICA reviewed the claim, and on December 20, 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 the issue of . . . compensability." Following a period in which the case was in abeyance, such a hearing was ultimately held on

January 14, 2003.

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

Tracie Wilson and James Ray Wilson testified on their own behalf,

and Petitioners' Exhibit 1 (the medical records filed with DOAH on September 20, 2001), Exhibit 2 (Letter of Dr. David Hammond, dated December 11, 2002), and Exhibit 3 (Radiology Report for a Brain MRI done on December 6, 2002), were received into evidence.1 Respondent called no witnesses; however, Respondent's Exhibit 1 (the deposition of Donald Willis, M.D., filed with DOAH on January 2, 2003), and Exhibit 2 (the deposition of

Michael Duchowny, M.D., filed with DOAH on January 2, 2003) were received into evidence.

The transcript of the hearing was filed on February 10, 2003, and the parties were accorded 10 days from that date to file proposed final orders. Respondent elected to file such a proposal, and it has been duly-considered.

FINDINGS OF FACT

Preliminary findings

1. Petitioners, Tracie Wilson and James Ray Wilson, are the natural parents and guardians of Morgan Wilson. Morgan was born a live infant on December 12, 2000, at Baptist Medical Center, a hospital located in Jacksonville, Florida, and her birth weight exceeded 2,500 grams.

2. The physician providing obstetrical services at Morgan's birth was Martin Garcia, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related

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

   Morgan's birth

   
   

3. At or about 7:29 a.m., December 12, 2000, Mrs. Wilson (with an estimated date of delivery of December 23, 2000, and the fetus at 38 3/7 weeks gestation) presented to Baptist Medical Center, in labor. At the time, Mrs. Wilson's membranes were noted as intact, and mild to moderate uterine contractions were noted at a frequency of 2-4 minutes. Fetal monitoring revealed a reassuring fetal heart rate, with a baseline of 150-160 beats per minute, and the presence of fetal movement.

4. At 9:45 a.m., Mrs. Wilson's membranes were artificially ruptured, with meconium stained amniotic fluid noted. At the time, vaginal examination revealed the cervix at 4 centimeters, effacement complete, and the fetus at 0 station.

5. Mrs. Wilson's labor progressed, and at 7:29 p.m., Morgan was delivered, with vacuum assistance. According to the Admission Summary, Morgan was suctioned on the perineum, and, before she could be moved to the warmer, the "[c]ord clamp loosened with small amount of blood loss prior to reclamping." The Admission Summary further reveals that Morgan was "floppy and required bag mask ventilation x3 minutes, then blowby oxygen for

   3 minutes." Apgar scores were noted as 1 and 8, at one and five minutes,2 and umbilical cord pH was reported as normal (7.28).

6. Morgan was transferred to the neonatal intensive care unit (NICU) for "eval[uation] after blood loss." There, her blood count (with a hematocrit of 46 percent) was reported as normal or, stated otherwise, without evidence of a clinically significant blood loss due to the loosening of the clamp.

7. Following two hours of observation, Morgan was transferred to the normal newborn nursery; however, at 4:20 p.m., December 13, 2000, she was readmitted to the neonatal intensive care unit. The reason for admission was stated in the Admission Summary, as follows:

   . . . Indications for transfer included 38 week WF with renal vein thrombosis and left middle cerebral artery stroke. Neonatology consulted midafternoon today secondary to hematuria. On exam, Dr. Cuevas noted asymmetry of pupils, with right more dilated and less responsive then left. Also noted to have torticollis, preferring to keep head turned to left. Also noted to have palpable mass in left abdomen. Renal ultrasound revealed renal vein thrombosis. HUS showed some echogenecity so Head CT done revealing left middle cerebral artery stroke. Hct this am 41. Baby then admitted to NICU for further care. Neurology and hematology consulted as well as nephrology.

   
   

   Impressions on admission included: possible coaguloathy; left middle cerebral artery stroke; renal vein thrombosis; and torticollis.

8. Morgan remained at Baptist Medical Center until December 29, 2000, when she was discharged to her parents' care.

   Morgan's Discharge Summary noted the following active diagnoses: possible coagulopathy; anemia; left middle cerebral artery stroke; renal vein thrombosis; and torticollis.

   Coverage under the Plan

   
   

9. 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 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." Sections 766.302(2) and 766.309(1)(a), Florida Statutes.

10. Here, indisputably, the record demonstrates that Morgan suffered an injury to the brain (following a stroke in the territory of the left middle cerebral artery, likely due to arterial occlusion or superior saggital sinus thrombosis). What is disputed, is whether the proof demonstrates, more likely than not, that such injury occurred "in the course of labor, delivery, or resuscitation," and whether any such injury rendered Morgan "permanently and substantially mentally and physically impaired."

    The timing of, and the neurologic consequences that followed, Morgan's brain injury

    
    

11. To address whether Morgan's brain injury occurred "in the course of labor, delivery, or resuscitation," and whether

    such injury rendered Morgan "permanently and substantially mentally and physically impaired," Petitioners offered medical records relating to Mrs. Wilson's antepartum course, as well as those associated with Morgan's birth and subsequent development. Additionally, Mrs. Wilson testified on her own behalf, and Respondent offered the deposition testimony of Dr. Donald Willis, a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine, and Dr. Michael Duchowny, a physician board-certified in pediatrics, neurology with special competence in child neurology, electroencephalography, and neurophysiology.3

12. As for the timing of Morgan's injury, it was Dr.

    
    

    Willis' opinion that the medical records did not reveal any obstetrical event that would account for Morgan's injury. In so concluding, Dr. Willis noted that fetal monitoring (which began on admission and continued until 7:28 p.m., one minute prior to delivery) did not reveal evidence of fetal compromise or a clinically significant event that would account for Morgan's injury, that Morgan's 5-minute Apgar score was normal, her umbilical cord pH was normal, and her hematocrit on initial admission to the neonatal intensive care unit was normal.

    Consequently, Dr. Willis concluded that Morgan's injury did not occur during labor, delivery, or resuscitation.

13. Also speaking to the timing of Morgan's injury was Dr. Duchowny who, based on his review of the medical records,

    shared Dr. Willis' opinion that there was no evident problem during labor and delivery, and further opined that Morgan's injury likely occurred prior to labor. In concluding that Morgan's injury likely predated the onset of labor, Dr. Duchowny noted that Morgan's CT scan on the day after birth clearly revealed a stroke in the territory of the left middle cerebral artery, and that it would take at least 72 hours for a stroke to be revealed so clearly on a CT scan.

14. Apart from the timing of Morgan's brain injury, Dr. Duchowny also expressed his opinions, based on his examination of November 6, 2001, regarding the neurologic consequences that followed Morgan's injury. Dr. Duchowny reported the results of Morgan's neurology evaluation, as follows:

    PHYSICAL EXAMINATION reveals an alert, well developed and well nourished 10 1/2 month old white female. The skin is warm and moist.

    There are no cutaneous stigmata or dysmorphic features. The hair is light blonde, fine and of normal texture. Morgan weighs 18-pounds, 10-ounces. Her head circumference measures

    45.6 cm, which is at the 60th percentile for age matched controls. There are no dysraphic features. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal.

    
    

    NEUROLOGIC EXAMINATION reveals an alert infant who is socially oriented. She has good central gaze fixation, conjugate following and normal ocular fundi. The pupils are 3 mm and react briskly to direct

    and consensually presented light. There is blink to threat from both directions. There are no facial asymmetries. The tongue and palate move well, and there is no drooling. Motor examination reveals an obvious asymmetry of posturing and movement. The left side is positioned normally and tends to grasp for objects. The right upper and lower extremity have diminished movement in comparison to the left and there is a tendency for the left hand to cross the midline for all manual tasks. She will not grasp for an offered cube with her right hand. In contrast, the left hand will grasp for a cube and display the beginnings of individual finger movements. The thumb on the right hand is fisted. The muscle, bulk and tone appears symmetric. Deep tendon reflexes are 2+ at the biceps and knees.

    Both plantare responses are mildly extensor. On pull-to-sit there is an asymmetry of the upper extremity, with relatively greater pull on the left side. The neck tone is good.

    There are no adventitious movements. Sensory examination is intact to withdrawal of all extremities to touch. The neurovascular examination via the anterior fontanelle is unremarkable.

    
    

    In SUMMARY, Morgan's neurologic examination reveals a mild to moderate motor asymmetry of the right side affecting primarily upper extremity, but with some lower extremity involvement as well.

    
    

    In contrast, Morgan's cognitive status appeared well preserved for age and she is certainly developing on schedule with regard to her linguistic milestones. I suspect that Morgan's motor function will continue to improve, as she is working actively in therapy.

    In sum, it was Dr. Duchowny's opinion that Morgan evidenced neither a permanent and substantial physical impairment nor a permanent and substantial mental impairment.

15. In contrast to the proof offered by Respondent, Petitioners offered the lay testimony of Mrs. Wilson, which was legally insufficient to support a finding regarding the timing of Morgan's brain injury, and which failed to support a conclusion that Morgan was permanently and substantially mentally and physically impaired. See, e.g., Vero Beach Care Center v. Ricks,

    476 So. 2d 262, 264 (Fla. 1st DCA 1985)("[L]ay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observable.") Consequently, since the opinions of Dr. Willis and Dr. Duchowny are logical, and consistent with the medical records, it must be resolved that, more likely than not, Morgan's brain injury did not occur "in the course of labor, delivery, or resuscitation," and that Morgan's injury did not render her "permanently and substantially mentally and physically impaired." Thomas v.

    Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation.")

    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 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, 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, however, 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 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.")

23. Here, given that the proof demonstrated, more likely than not, that Morgan's brain injury predated the onset of labor,

    and that Morgan's brain injury did not render her permanently and substantially mentally and physically impaired, it must be resolved that the record developed in this case failed to demonstrate that Morgan suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. 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)(The Plan is written in the conjunctive and can only be interpreted to require both substantial physical and mental impairment); Humana of Florida, Inc. v. McKaughan, 658 So. 2d 852, 859 (Fla. 5th DCA 1995)("[B]ecause the Plan . . . is a statutory substitute for common law rights and liabilities, it should be strictly construed to include only those subjects clearly embraced within its terms."), approved, Florida Birth-Related Neurological Injury Compensation Association v. McKaughan, 668 So. 2d 974, 979 (Fla. 1996).

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 Tracie Wilson and James Ray Wilson, as parents and natural guardians of Morgan Wilson, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 21st day of February, 2003, 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 21st day of February, 2003.

ENDNOTES

1/ With regard to Petitioners' Exhibit 2, Respondent's objection to those portions of the exhibit that speak to Dr. Perszyk's opinions (contained in paragraph 3 of the letter) are sustained. Otherwise the exhibit was received in evidence over Respondent's objection. (See counsel for Respondent's letter of January 23, 2003, filed January 27, 2003). Petitioners' Exhibit 3 was

received into evidence without objection. (See counsel for Respondent's letter of January 21, 2003, filed January 23, 2003).

2/ The Apgar scores assigned to Morgan are a numerical expression of the conditions of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex response, 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, Morgan's Apgar score totaled 1, with heart rate being graded at 1, and respiratory effort, muscle tone, reflex response, and color being graded at 0. At five minutes, Morgan's Apgar score totaled 8, with heart rate, respiratory effort, and reflex response being graded at 2 each, and muscle tone and color being graded at 1 each.

3/ Mr. Wilson also testified at hearing; however, he did not speak to matters related to the cause or timing of Morgan's brain injury, or the significance of Morgan's neurologic impairment.

COPIES FURNISHED:

(By certified mail)

James Ray Wilson Tracie Wilson 11938 Nicobar Court

Jacksonville, Florida 32223

David W. Black, Esquire Frank, Weinberg & Black, P.L. 7805 Southwest Sixth Court Plantation, Florida 33324

Kenney Shipley, Executive Director Florida Birth-Related Neurological

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

Tallahassee, Florida 32317-4567

Martin Garcia, M.D.

836 Prudential Drive, Suite 1103

Jacksonville, Florida 32207

Baptist Medical Center 800 Prudential Drive

Jacksonville, Florida 32207

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 the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, 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: 01-003752N

Orders for Case No: 01-003752N