CHARIL RODRIGUEZ, on behalf of ) and as parent and natural ) guardian of CHANDLER JACHIMIAK, ) a minor, )
vs. )
Respondent. )
Case No. 04-0899N
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 7, 2005, by video teleconference, with sites in Tallahassee and Miami, Florida.
For Respondent: David W. Black, Esquire
Frank, Weinberg & Black, P.L. 7805 Southwest 6th Court Plantation, Florida 33324
At issue is whether Chandler Jachimiak, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
On March 17, 2004, Charil Rodriguez, on behalf of and as parent and natural guardian of Chandler Jachimiak, 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 March 18, 2004, and on July 9, 2004, following a number of extensions of time within which to do so, NICA filed its response to the petition for benefits and gave notice that it was of the view that the infant did not suffer a "birth-related neurological injury," as defined by Section 766.302(2), Florida Statutes, and requested that a hearing be set to resolve whether the claim was compensable. Such a hearing was initially scheduled for October 20, 2004, but due to technical difficulties with the video equipment was rescheduled for January 7, 2005.
At hearing, Charil Rodriguez testified on her own behalf, and Respondent's Exhibits 1-4 were received into evidence.1 No
other witnesses were called, and no further exhibits were offered.
The transcript of the hearing was filed on January 28, 2005, and the parties were accorded 10 days from that date to file proposed orders. Respondent elected to file such a proposal, and it has been duly considered.
Charil Rodriguez is the natural mother and guardian of Chandler Jachimiak (Chandler), a minor. Chandler was born a live infant on May 26, 1999, at Baptist Hospital of Miami (Baptist Hospital), a hospital located in Miami, Florida, and his birth weight exceeded 2,500 grams.
The physician providing obstetrical services at Chandler's birth was Pablo Delgado, 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.
Coverage under the Plan
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
postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired."
§ 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat.
In this case, Petitioner is of the view that Chandler suffered a "birth-related neurological injury," as defined by the Plan. In contrast, NICA is of the view that Chandler did not suffer a "birth-related neurological injury" since the proof failed to support the conclusion that, more likely than not, Chandler's brain injury was "caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital." § 766.302(2), Fla. Stat.
Chandler's birth and postnatal course at Baptist Hospital
The medical records related to Chandler's birth reveal that at or about 10:25 a.m., May 25, 1999, Ms. Rodriguez, with an estimated delivery date of May 22, 1999, and the fetus at 40+ weeks gestation, was admitted to Baptist Hospital, for induction of labor. At the time, Ms. Rodriguez's temperature was 98.5°F, her membranes were intact, and vaginal examination revealed the cervix at 1 centimeter dilation, effacement at 50 percent, and the fetus at station -3.
Following admission, Petocin induction was started, but was discontinued at 9:30 p.m., to allow Ms. Rodriguez to rest overnight. Then, at 8:20 a.m., May 26, 1999, Ms. Rodriguez's membranes were artificially ruptured, with thick meconium noted, and at 8:30 a.m., Petocin induction resumed.
Ms. Rodriguez's labor progressed slowly, with complete dilation noted at 8:40 p.m., and Chandler was delivered at 10:10 p.m. Of note, but for a slight increase in heart rate (tachycardia), continuous fetal monitoring was reassuring. Also of note, Ms. Rodriguez's temperature was 101.2°F, at 7:15 p.m., for which she received penicillin, and at delivery her temperature was 99.4°F.
At delivery, Chandler was depressed, without respiratory effort and a heart rate in the 60-beat-per-minute range, and he was immediately suctioned, with no evidence of meconium below the cords; mask-bagged for a few seconds, without evidence of respiratory effort; and orally intubated without difficulty, and hand bagged with good response at about one minute. Notably, Chandler's arterial blood gases were within the normal range, and his Apgar scores were recorded as 4, 6, and 9, at one, five, and ten minutes, respectively.2
At 10:28 p.m., following stabilization, Chandler was transported to the special care nursery (SCN) for further observation and management. There, on admission, Chandler's
temperature was 100.4°F, and physical examination noted mild respiratory distress, but was otherwise unrevealing. Admitting impressions were newborn depression, suspected meconium aspiration, suspected sepsis,3 and suspected pneumothorax (right). Plan included sepsis workup, antibiotics pending culture results, oxyhood 100 percent for nitrogen washout and chest x-ray.
Chandler remained hospitalized until June 26, 1999, when he was discharged to his mother's care. In the interim, Chandler received respiratory support for 2-3 days; antibiotics for suspected sepsis; support due to poor feeding and failure to thrive; and Phenobartital for 10 days, following the onset of seizure activity. Notably, a head ultrasound at 8:33 p.m.,
May 27, 1999, about two hours after the onset of seizure activity, revealed the following:
Bilateral lateral ventricles are small in size, but are felt to be within the normal range. There is no evidence of subependymal or intraventricular hemorrhage. The ventricles are normal in configuration. No periventricular leukomalacia is seen. There is no mass effect of midline shift. There is limited evaluation of the midline structures on this examination. The posterior fossa is intact.
IMPRESSION:
No evidence of intracranial hemorrhage.
A follow-up CT of the brain on May 31, 1999, revealed:
CT brain reveals diffuse lucency throughout the hemisphere bilaterally. The basoganglia and cerebellum are somewhat spared. The possibility that this [is] secondary to diffuse ischemic process is difficult to exclude. No evidence of hemorrhage is identified. There is soft tissue swelling over the left parietal and occipital scalp.
IMPRESSION:
Diffuse lucency throughout the white matter in the hemispheres, bilaterally, suggestive of a edema. This may be secondary to diffuse ischemia. Cerebellar hemispheres and basoganglia are somewhat spared.
No evidence of hemorrhage is identified. Follow-up is suggested.
And, a brain MRI on June 6, 1999, was read as follows:
Magnetic resonance imaging of the brain is compared with prior CT scan dated 05/31/99
Again noted is the presence of extensive abnormalities throughout the white matter in the supratentorial compartment. Now noted is prominent cortical sulci consistent with probable moderate volume loss which was not seen on the previous study. The sulci may have been effaced on the prior examination secondary to brain swelling. There is scalp soft tissue swelling in the right posterofrontal parietal convexity. There is no evidence of mass or hemorrhage.
IMPRESSION:
Extensive abnormalities throughout the supratentorium and white matter consistent with increased brain water without evidence of associated mass effect. Prominent cortical sulci are noted which may be
secondary to loss of volume. There is no evidence of hemorrhage.
Serial electroencephalograms (EEGs) on May 27, May 29, June 3, and June 8, 1999, were abnormal and consistent with a mild diffuse encephalopathy and a lowered seizure threshold.
Chandler's subsequent development
The medical records related to Chandler's subsequent development reflect that on August 6, 1999, Chandler presented at Miami Children's Hospital for a follow-up neurology examination. At the time, a CT scan of the brain revealed "extensive bilateral cerebral encephalomalacia with associated brain atrophy," and "bilateral chronic subdural hematomas, more pronounced on the left." Chandler was admitted for further evaluation, and a brain MRI of August 12, 1999, revealed:
There are bilateral chronic subdural hematomas with the left much larger than the right. The left subdural collection extends into the interhemispheric fissure. The findings could be consistent with nonaccidental trauma, and clinical correlation is needed in this regard.
There is bilateral cerebral atrophy and multifocal cystic encephalomalacia. There is mass effect upon the left cerebral hemisphere, related to the subdural collection but there is no midline shift. There is generalized ventriculomegaly that appears predominantly related to central atrophy.
Chandler was discharged by Miami Children's Hospital on August 30, 1999. Chandler's hospital course was briefly described in his discharge summary, as follows:
HOSPITAL COURSE: An ENT consult was placed. A bone survey was shown to be normal.
Because of the persistent inspiratory and expiratory stridor, bronchoscopy was done by Pulmonary which showed a laryngomalacia.
Tracheostomy tube was placed and the patient was transferred to Pediatric Intensive Care Unit for observation. Post operation day #6, the patient was transferred back from Pediatric Intensive Care Unit to 3 South. A chest xray done on 8/25 showed no significant change in the lung fields as compared to previous xray The
patient was also followed by Neurology. The magnetic resonance scan done on 8/12 showed a mass effect of the left cerebral hemisphere with mucocystic encephalomalacia or chronic subarachnoid hemorrhage.
Neurology's plan was to repeat CT prior to discharge home . . . . CT scan was done on 8/29/99 which was read as brain atrophy encephalomalacia with decrease in subdural hematoma. As compared to previous film, there was no brain edema . . . .
On April 21, 2004, following the filing of the claim in this case, Chandler was examined by Michael Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital. Dr. Duchowny reported the results of his neurology evaluation, as follows:
I evaluated Chandler Jachimiak on April 21, 2004. The evaluation was conducted in my office at Miami Children's Hospital with history provided by Chandler's mother.[4]
History according to Ms. Jachimiak. The mother began by explaining that Chandler "was in the birth canal too long" when he was born and "had a lack oxygen in his blood." He was delivered at term at Baptist Hospital and remained in the newborn nursery for approximately one month due to poor feeding and failure to thrive. He was discharged in stable condition, but was admitted to Miami Children's Hospital three weeks later when a CT scan of the brain revealed a fluid collection over the convexities. The purpose of admission was to rule out possible child abuse, but Chandler ultimately remained hospitalized for approximately six weeks because of chronic feeding and breathing difficulties. He eventually had a tracheostomy, gastrostomy and Nissan fundoplication performed. The tracheostomy and g-tube were both removed last summer. Apparently, a diagnosis of Pierre-Robin Syndrome was entertained, but was never formally diagnosed.
Chandler's growth and development have subsequently been quite slow. He has been followed by Dr. Oscar Papazian and was initially diagnosed with cerebral palsy and spasticity. He received Botox injections to the lower extremities until two years ago.
His mother now feels that "he doesn't need it."
Chandler is still not speaking. He has no verbal communication. He receives physical, speech and occupational therapy at the Neva King Cooper School.
Chandler's social skills and behavior is another area of difficulty. He does not play well with other children and tends to be a loner. He likes playing with his toys. He is easily frustrated and will bite himself or other children. He tends to be "in his own little world" and his mother has noted poor eye contact. He frequently claps
his hands repetitively and enjoys listening to music.
Chandler's health is otherwise good. He has never had seizures and is on no intercurrent medications. He is scheduled for strabismus surgery in early May. His vision is otherwise intact. His hearing has been screened and is normal. Chandler sleeps through the night and his appetite has been stable, although he continues to be slow to gain weight.
* * *
FAMILY HISTORY: Chandler's father is absent from the family. His mother is 33 and is healthy. Multiple maternal brothers have learning disabilities and a maternal grandmother suffers from migraines. An 8- year-old sister is healthy. There are no family members with degenerative illnesses, mental retardation, epilepsy or cerebral palsy.
PHYSICAL EXAMINATION reveals a small, but appropriately proportioned 4-year-old boy. The skin is warm and moist without cutaneous stigmata. The hair is brown and of normal texture. His weight is 32 pounds and his height is 40 inches. Head circumference measures 44.1 cm, which is well below the second 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. The cardiovascular, respiratory and abdominal examinations are unremarkable. The healed tracheostomy and gastrostomy sights are noted. Peripheral pulses are 2+ and symmetric.
NEUROLOGIC EXAMINATION was difficult to complete because of oppositional and defiant behavior. Chandler was restrained by his mother and intermittently sucked on his left thumb. Frequent tongue protrusions were
noted and he drooled intermittently. He did not speak in words at any time during the examination. He could not name body parts or colors. He could not follow simple commands. He frequently waved his hands and clapped them. The two upper incisors are absent due to trauma. Cranial nerve examination reveals bilateral blink to threat. A funduscopic examination could not be performed. The pupils are 3 mm and react briskly to direct and consensually presented light. The extraocular movements demonstrate alternating exotropia. There are no facial asymmetries. The tongue movements are poorly coordinated. The uvula is midline. Motor examination reveals a generalized static hypotonia with a dynamic increase in tone. There is full range of motion in all joints. There are no adventitious movements and no focal weakness or atrophy. The deep tendon reflexes are slightly brisk and 2+ to 3+ bilaterally, but plantar responses are downgoing. Sensory examination is intact to withdrawal of all extremities to stimulation. Coordination could not be performed. The neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries.
In SUMMARY, Chandler's neurologic examination does not reveal focal or lateralizing features, but does demonstrate significant delays in multiple domains consistent with a pervasive developmental disorder. He is clearly behind with regard to his receptive and expressive language development, but also has short attention span, high activity level, immature social skills with poor eye contact and a behavior disorder. He is also microcephalic and has short stature. I believe that Chandler is at significant risk for fitting within the low functioning autistic spectrum. I have not yet received medical records regarding
Chandler's background and will issue a final report once the records have been received and reviewed.
The cause and timing of Chandler's brain injury
Dr. Duchowny ultimately reviewed Chandler's medical records and, as revealed by his deposition (Respondent's Exhibit 4), was of the opinion, based on that review and his neurologic evaluation, that the most likely cause of Chandler's brain injury was an infection, and that such injury occurred prior the onset of labor, as opposed to having been caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation.
Notably, the opinions of Dr. Duchowny are consistent with the record and otherwise uncontroverted. Consequently, it must be resolved that Chandler's brain injury was not caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period, as required for coverage under the Plan. . See Wausau Insurance Company v. Tillman, 765 So. 2d 123 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obliged to present expert medical evidence establishing that causal connection."); Ackley v.
General Parcel Service, 646 So. 2d 242 (Fla. 1st DCA
1995)(determining cause of psychiatric illness is essentially a medical question, requiring expert medical evidence); 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
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. § 766.301, et seq., Fla. Stat.
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. § 766.303(1), Fla. Stat.
The injured "infant, her or 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. §§ 766.302(3), 766.303(2), 766.305(1), and 766.313, Fla. Stat. 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." § 766.305(3), Fla. Stat.
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. § 766.305(6), Fla. Stat. 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. §§ 766.304, 766.309, and 766.31, Fla. Stat.
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.
§ 766.309(1), Fla. Stat. 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." § 766.31(1), Fla. Stat.
Pertinent to this case, "birth-related neurological injury" is defined by Section 766.302(2), 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 postdelivery 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 proponent of the issue, the burden rested on Petitioner to demonstrate that Chandler suffered a "birth- related neurological injury." § 766.309(1)(a), Fla. Stat. See also Balino v. Department of Health and Rehabilitative Services,
348 So. 2d 349, 350 (Fla. 1st DCA 1997)("[T]he burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.").
Here, the proof failed to support the conclusion that, more likely than not, Chandler suffered an "injury to the brain
. . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation
. . . which render[ed] . . . [him] permanently and substantially mentally and physically impaired." Consequently, the record developed in this case failed to demonstrate that Chandler suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), and the claim is not compensable.
§§ 766.302(2), 766.309(1), and 766.31(1), Fla. Stat. See also
Humana of Florida, Inc. v. McKaughan, 652 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 constructed 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).
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."
§ 766.309(2), Fla. Stat. Such an order constitutes final agency action subject to appellate court review. § 766.311(1), Fla.
Stat.
ORDERED that the claim for compensation filed by Charil Rodriguez, as parent and natural guardian of Chandler Jachimiak, a minor, is dismissed with prejudice.
DONE AND ORDERED this 9th day of February, 2005, in Tallahassee, Leon County, Florida.
WILLIAM J. KENDRICK
Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2005.
1/ Copies of Respondent's Exhibit 1 (medical records, from Baptist Hospital of Miami, for Charil Rodriguez and Chandler Jachimiak, as received from the Petitioner in connection with the filing of the claim); Exhibit 2 (medical records as received by the Association from Baptist Hospital of Miami for
Charil Rodriguez and Chandler Jachimiak); and Exhibit 3 (medical records as received by the Association from Miami Children's Hospital for Chandler Jachimiak) were provided to Petitioner post-hearing. Although accorded the opportunity to do so,
Ms. Rodriguez raised no objection to their receipt into evidence. Consequently, Respondent's Exhibits 1-3, together with Respondent's Exhibit 4 (the deposition of Michael Duchowny, M.D.), were received into evidence.
2/ The Apgar scores assigned to Chandler are a numerical expression of the condition of a newborn, 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, Chandler's Apgar score totaled 4, with heart rate, muscle tone, reflex irritability, and color being graded at 1 each, and respiratory effort being graded at 0. At five minutes, Chandler's Apgar score totaled 6, with heart rate being graded at 2, and respiratory effort, muscle tone, reflex irritability, and color being graded at 1 each. At ten minutes, Chandler's Apgar score totaled 9, with heart rate, respiratory effort, muscle tone, and reflex irritability being graded at 2 each, and color being graded at 1.
3/ Notably, placental pathology was consistent with chorioamnionitis (an "inflammation of the chorion and amnion"), a finding which, like Ms. Rodriguez's elevated temperature, is consistent with the presence of an infectious process.
Dorland's Illustrated Medical Dictionary, Twenty-Eighth Edition (1994).
4/ Apart from the history provided by Chandler's mother, the record offers little insight into Chandler's development following his discharge from Miami Children's Hospital on August 30, 1999.
David W. Black, Esquire Frank, Weinberg & Black, P.L. 7805 Southwest 6 Court
Injury Compensation Association 1435 Piedmont Drive, East, Suite 101 Post Office Box 14567
Pablo E. Delgado, M.D.
Charlene Willoughby, Director Consumer Services Unit - Enforcement Department of Health
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.
