STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

MARIE J. DESIR, on behalf of and as parent and natural guardian of FRISLINE JEANISE VICTOR, a minor,

Petitioner,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

)

)

)

)

)

)

)

) Case No. 04-1181N

)

)

)

)

)

)

)

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 November 8, 2004, by video teleconference, with sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Marie J. Desir, pro se

200 Northwest 77th Street, Apartment 2 Miami, Florida 33150

For Respondent: David W. Black, Esquire

Frank, Weinberg & Black, P.L. 7805 Southwest 6th Court Plantation, Florida 33324

STATEMENT OF THE ISSUES

At issue is whether Frisline Jeanise Victor, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On April 8, 2004, Marie J. Desir, on behalf of and as parent and natural guardian of Frisline Jeanise Victor (Frisline), 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 April 9, 2004, and on June 22, 2004, NICA 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 scheduled to address the issue of compensability. Such a hearing was duly-scheduled for November 8, 2004.

At hearing, Petitioner offered no testimony or exhibits; however, Marie J. Desir did make a brief statement. Respondent called no witnesses, but offered Respondent's Exhibits 1-5, which were received into evidence.1

The transcript of the hearing was filed on November 29, 2004, 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. Marie J. Desir is the natural mother and guardian of Frisline Jeanise Victor, a minor. Frisline was born a live infant on September 7, 1999, at Jackson Memorial Hospital, a hospital located in Miami, Florida, and her birth weight was 3,625 grams (8 pounds, 0 ounces).

2. The physician providing obstetrical services at Frisline's birth was Jerry Gilles, 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

   
   

3. 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 or spinal cord . . . 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.

4. In this case, it is undisputed that Frisline is permanently and substantially mentally and physically impaired. What remains to resolve is whether her impairments resulted from an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation."

   Frisline's birth and immediate postnatal course

   
   

5. At or about 12:50 p.m., September 7, 1999, Ms. Desir, with an estimated delivery date of September 19, 1999, and the fetus at 38+ weeks gestation, presented to Jackson Memorial Hospital, in early labor. At the time, Ms. Desir's membranes were noted as intact, and vaginal examination revealed the cervix at 4 centimeters dilation, effacement at 50 percent, and the fetus out of the pelvis. Uterine contractions were noted as moderate, at a frequency of 5-6 minutes, and external fetal monitoring revealed a reassuring fetal heart rate, with a baseline in the 140-beat per minute range. Maternal history during pregnancy was significant for two hospitalizations secondary to uncontrolled diabetes.

6. Ms. Desir was admitted, and examination revealed the baby to be approximately 4,082 grams (9 pounds). Consequently, given the suspected macrosomia (great bodily mass) of the baby,

   and a history of a previous infant weighing 5,300 grams

   
   

   (11 pounds, 11 ounces), with severe shoulder dystocia, and a borderline pelvis, it was resolved to proceed with an elective cesarean section.

7. Ms. Desir underwent a low segment transverse cesarean section, without complication, and Frisline was delivered at 8:30 p.m. At delivery, Frisline cried immediately; showed good heart rate, respiratory effort, muscle tone, reflex irritability, and color; and did not require oxygen or resuscitation. Apgar scores were normal, and noted as 9, 9, and

   9 at one, five, and ten minutes, respectively.2

8. Frisline was transferred to the neonatal intermediate unit for monitoring secondary to a history of maternal diabetes mellitus (DM) and insulin dependence. Admission physical was grossly normal, she remained clinically stable (with blood glucose within normal limits), and, but for a "very soft" heart murmur noted on September 8, 1999, her transition was unremarkable.

9. Frisline was scheduled for discharge on September 10, 1999; however, due to maternal complications, she was transferred to the newborn nursery and held pending her mother's improvement. Maternal complications noted in Ms. Desir's Discharge Summary were as follows:

   . . . INITIALLY PATIENT WAS AFEBRILE WITH VITAL SIGNS STABLE. SUBSEQUENTLY THE PATIENT STARTED DEVELOPING TEMPERATURE SPIKES TO 102.6. EXAMINATION REVEALED POSITIVE UTERINE TENDERNESS WITH FOUL- SMELLING LOCHIA. THE PATIENT WAS DIAGNOSED

   WITH ENDOMYOMETRITIS ["inflammation of the muscular substance, or myometrium, of the uterus"3] AND STARTED ON GENTAMYCIN AND CLINDAMYCIN. THE PATIENT CONTINUED TO SPIKE AT 48 HOURS OF ANTIBIOTICS AND WAS STARTED ON AMPICILLIN. DURING THIS TIME, THE PATIENT DEVELOPED SOME NAUSEA AND VOMITING PROBABLY SUSPECTED SECONDARY TO POSTOPERATIVE ILEUS. NASOGASTRIC TUBE WAS NOT PLACED AS CLINICALLY PATIENT APPEARED TO BE IMPROVING WITH ADDITION OF THIRD ANTIBIOTIC. ON POSTOPERATIVE DAY SIX, THE PATIENT WITH RESOLVED ENDOMETRITIS, AFEBRILE FOR GREATER THAN 30 HOURS, TOLERATING A REGULAR DIET . . . .

   
   

   Therefore, on September 13, 1999, postoperative day six,

   
   

   Ms. Desir was discharged; however, given intervening complications, Frisline was not discharged until September 15, 1999.

10. Notably, following her transfer to the newborn nursery on September 10, 1999, Frisline's course was unremarkable until at or about 1:30 p.m., September 12, 1999, when she appeared "jittery" and evidenced "intermittent grunting," and at

    2:00 p.m., she was transferred to the neonatal intermediate care unit for observation and further management. At the time of transfer, labs were ordered, including complete blood count (CBC) and blood culture (BC), to rule out sepsis.

11. Following admission to the neonatal intermediate unit, Frisline's examination was unremarkable, with no grunting noted, and her condition stable. Labs, including CBC and BC were unremarkable, as were follow-up labs on September 13, 1999, and Frisline was discharged on September 15, 1999. Discharge physical examination was grossly normal, but for a faint heart murmur.

    The cause and timing of Frisline's neurologic examination

    
    

12. Petitioner offered no proof to address the cause and timing of Frisline's neurologic impairments. In contrast, NICA offered the medical records related to Frisline's birth and immediate postnatal course (Respondent's Exhibits 1 and 2), discussed supra; the deposition and report of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine (Respondent's Exhibits 3 and 5). Dr. Willis reviewed the medical records related to Frisline's birth and immediate postnatal course, and was of the opinion that the records failed to reveal any evidence of trauma or oxygen deprivation during labor, delivery, or the immediate postdelivery period, to support a conclusion that Frisline suffered "birth-related neurological injury." NICA also offered a report by Michael Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital (Respondent's Exhibit

    4) who, following examination of Frisline, was of the opinion

    that her neurologic examination revealed a severe degree of mental and motor impairment.4

13. Notably, the medical records do not reveal an etiology for Frisline's neurologic impairment; Petitioner offered no competent medical evidence to support a conclusion that, more like than not, Frisline suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period that resulted in her neurologic impairment; and the expert opinion of Dr. Willis is consistent with the medical records and otherwise uncontroverted. Consequently, it must be resolved that the proof fails to demonstrate that Frisline suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period that resulted in her neurologic impairment. (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

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. § 766.301, et seq., Fla. Stat.

15. 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.

16. 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.

17. 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.

18. 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.

       
       

       § 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.

19. 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.

    
    

20. As the proponent of the issue, the burden rested on Petitioner to demonstrate that Frisline 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.").

21. Here, the proof failed to support the conclusion that, more likely than not, Frisline 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

    . . . which render[ed] . . . [her] permanently and substantially mentally and physically impaired." Consequently, the record developed in this case failed to demonstrate that Frisline 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).

22. 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.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED the claim for compensation filed by Marie J. Desir, on behalf of and as parent and natural guardian of Frisline Jeanise Victor, a minor, is dismissed with prejudice.

DONE AND ORDERED this 13th day of December, 2004, in Tallahassee, Leon County, Florida.

S

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 13th day of December, 2004.

ENDNOTES

1/ Copies of Respondent's Exhibits 1 and 2 (medical records from Jackson Memorial Hospital for Marie Desir and medical records from Jackson Memorial Hospital for Frisline Jeanise Victor, respectively) were provided to Petitioner post-hearing and, although she was accorded the opportunity to do so, she raised no objection to their receipt into evidence.

Consequently, Respondent's Exhibits 1 and 2 were received into evidence.

2/ The Apgar scores assigned to Frisline 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, Frisline's Apgar score at one, five, and ten minutes was nine, with heart rate, respiratory effort, muscle tone, and reflex irritability being graded at 2 each, and color being graded at 1.

3/ See "myometritis," Dorland's Illustrated Medical Dictionary, Twenty-eighth Edition (1994).

4/ Respondent's Exhibit 4 is hearsay, and not otherwise admissible over objection in a civil action. Consequently, it was received into evidence subject to the limitations imposed by Section 120.57(1)(c), Florida Statutes (2003)("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.") Notably, NICA does not dispute that Frisline is permanently and substantially mentally and physically impaired (Respondent's Proposed Final Order, Findings of Fact, paragraph 9), and the significance of Frisline's impairments is not a dispositive finding in this case.

COPIES FURNISHED:

(By certified mail)

Marie J. Desir

200 Northwest 77th Street, Apartment 2 Miami, Florida 33150

Marie J. Desir c/o David Zieper

4770 Biscayne Boulevard, Suite 1430

Miami, Florida 33137

David W. Black, Esquire Frank, Weinberg & Black, P.L. 7805 Southwest 6th 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 32308-4567

Jerry M. Giles, M.D. Jackson Memorial Hospital 1611 Northwest 12th Avenue Miami, Florida 33136

Jackson Memorial Hospital 1611 Northwest 12th Avenue Miami, Florida 33136

Charlene Willoughby, Director Consumer Services Unit - Enforcement Department of Health

4052 Bald Cypress Way, Bin C-75 Tallahassee, Florida 32399-3275

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: 04-001181N

Orders for Case No: 04-001181N