STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
KATELYN KUTZER, A MINOR BY AND | ) | |||
THROUGH HER PARENTS AND NATURAL | ) | |||
GUARDIANS, DANIEL M. KUTZER AND | ) | |||
MICHELLE D. KUTZER; AND DANIEL | ) | |||
M. KUTZER AND MICHELLE D. | ) | |||
KUTZER, INDIVIDUALLY, | ) | |||
) | ||||
Petitioners, | ) | |||
) | ||||
vs. | ) | Case | No. | 07-1875N |
) | ||||
FLORIDA BIRTH-RELATED | ) | |||
NEUROLOGICAL INJURY | ) | |||
COMPENSATION ASSOCIATION, | ) ) | |||
Respondent, | ) ) | |||
and | ) ) | |||
ST. VINCENT'S MEDICAL CENTER, | ) | |||
INC., ANNETTE LAUBSCHER, M.D., | ) | |||
and KAREN D. TAMMELA, M.D., | ) | |||
f/k/a KAREN D. BONAR, M.D., | ) ) | |||
Intervenors. | ) | |||
| ) |
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings, by Administrative Law Judge William J. Kendrick, held a hearing in the above-styled case on August 26, 2008, in Tallahassee, Florida.
APPEARANCES
For Petitioners: Stephen J. Pajcic, III, Esquire
William S. Burns, Jr., Esquire Pajcic & Pajcic
1900 Independent Square
Jacksonville, Florida 32202
For Respondent: M. Mark Bajalia, Esquire
Gina A. Atienza, Esquire Brennan, Manna & Diamond 800 West Monroe Street
Jacksonville, Florida 32202
For Intervenor St. Vincent's Medical Center, Inc.:
Brian D. Stokes, Esquire Unger, Stokes, Acree, Gilbert,
Tressler & Tacktill, P.L. Amherst Building
3203 Lawton Road, Suite 200
Orlando, Florida 32803
For Intervenors Annette Laubscher, M.D., and Karen D. Tammela, M.D., f/k/a Karen D. Bonar, M.D.:
Rogelio J. Fontela, Esquire
Dennis, Jackson, Martin & Fontela, P.A. 1591 Summit Lake Drive, Suite 200
Tallahassee, Florida 32317 STATEMENT OF THE ISSUE
At issue is whether Katelyn Kutzer, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
PRELIMINARY STATEMENT
On April 27, 2007, Daniel M. Kutzer and Michelle D. Kutzer, individually, and as parents and natural guardians of
Katelyn Kutzer (Katelyn), a minor, filed a petition (claim) with the Division of Administrative Hearings (DOAH) for compensation under the Plan.
DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the petition on April 30, 2007, and on July 30, 2007, following a number of extensions of time within which to do so, NICA responded to the petition and gave notice that it was of the view that Katelyn 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 resolve the issue. In the interim,
St. Vincent's Medical Center, Inc. (St. Vincent's Medical Center), Annette Laubscher, M.D., and Karen D. Tammela, M.D., f/k/a Karen D. Bonar, M.D., were accorded leave to intervene.
At hearing, the parties' Pre-Hearing Stipulation, filed August 15, 2008, was accepted, and the parties' agreed exhibits (Joint Exhibits) 1-41 (as identified in the parties' Notice of Filing Amended Stipulated Record, filed August 21, 2008) were received into evidence. Additionally, Petitioners' Exhibit 1 and Respondent's Exhibit 1 were marked for identification (to assure clarity of the record), as documents referred to in their
respective arguments at hearing, but were not moved or received into evidence. Present and introduced at hearing were Mr. and Mrs. Kutzer, and their daughter Katelyn, and Mr. Kutzer made an unsworn statement. However, no witnesses were called, and no further exhibits were offered.
The transcript of the hearing was filed September 25, 2008, and the parties were accorded 10 days from that date to file proposed orders. Petitioners and Respondent elected to file such proposals and they have been duly-considered.
FINDINGS OF FACT
Stipulated facts related to compensability
Daniel M. Kutzer and Michelle D. Kutzer, are the natural parents of Katelyn Kutzer, a minor. Katelyn was born a live infant on November 15, 2002, at St. Vincent's Medical Center, a licensed hospital located in Jacksonville, Florida, and her birth weight exceeded 2,500 grams.
Obstetrical services were delivered at Katelyn's birth by Annette Laubscher, M.D., and Karen D. Tammela, M.D., then known as Karen D. Bonar, M.D., who, at all times material hereto, were "participating physician[s]" in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.
Katelyn's birth and immediate newborn course
At or about 5:00 a.m., November 15, 2002, Mrs. Kutzer, with an estimated delivery date of December 4, 2002, and with fraternal twins (described as Twin A and Twin B in the medical records) at 37 2/7 weeks' gestation, presented to St. Vincent's Medical Center in active labor. There, the membranes were noted as intact; vaginal examination revealed the cervix at 5-6 centimeters dilation, effacement at 90 percent, and the fetus at
-1 station; and external monitoring was reassuring for fetal well-being, with a fetal heart rate (FHR) baseline for Twin A (Kassandra) in the 120-130 beat per minute (bpm) range, and a FHR baseline for Twin B (Katelyn) in the 130 bpm range.
Mrs. Kutzer was admitted to the maternity suites at or about 5:41 a.m., she progressed to complete dilation by
10:41 a.m., and at or about 11:00 a.m., the external fetal monitor was disconnected and she was moved to an operating room (OR) for delivery. Notably, during the course of Mrs. Kutzer's admission, and until it was disconnected at 11:00 a.m., fetal monitoring was reassuring for fetal well-being.
At 11:05 a.m., Mrs. Kutzer was noted in the OR, with Dr. Bonar at bedside. At the time, FHR baseline for Twin A was documented as 125-135 bpm, and for Twin B it was documented in the 140s. (Exhibit 3, Labor Flow Record Twins, p. 14). Thereafter, fetal monitor strips are available for Twin A, but
not Twin B, for the 10-minute period preceding Twin A's delivery (at 11:15 a.m.), which reveal a reassuring FHR in the 140-150 bpm range. (Exhibit 3, fetal monitor strips, panel numbers 28735-28737; Exhibit 27, pp. 24-27). However, the medical records document a reassuring FHR baseline for Twin B at
11:16 a.m. (one minute after Twin A's delivery) as 115-125 bpm, and at 11:20 a.m., as in the 130s. (Exhibit 3, Labor Flow Record Twins, p. 16).
Twin A (Kassandra) was born by spontaneous vaginal delivery at 11:15 a.m. The cord was clamped and cut, and cord blood was collected; however, cord gases were not ordered. Fetal heart tones (FHTs) at delivery were 115-150 bpm; and resuscitation following delivery included bulb suction, mechanical suction, and blow-by oxygen. Apgar scores were
normal (8 and 9, at one and five minutes, respectively),1 initial newborn assessment revealed no abnormalities; and Kassandra was transported to the newborn nursery. (Exhibit 3, Maternity Suites Delivery Record Twins, pp. 1 and 2; Exhibit 26, pp. 16
and 17).
Following Kassandra's delivery, the medical records document a reassuring FHR for Twin B (Katelyn) at 11:16 a.m. (one minute after Kassandra's delivery), as 115-125 bpm, and at 11:20 a.m., as in the 130s. (Exhibit 3, Labor Flow Record Twins, p. 16). Thereafter, but before 11:23 a.m., when a stat
cesarean section was called for delivery, the amniotic membranes were ruptured to assist in delivery, at which time the umbilical cord prolapsed.2 Dr. Bonar described the events in her Operative/Procedure Report, as follows:
. . . Twin B was noted to remain cephalic by ultrasound. Artificial rupture of membranes was performed with fundal pressure. Cord prolapse was noted with face presentation and mentum anterior position. Subsequent to artificial rupture of membranes, physician was unable to auscultate fetal heart tones using the external monitor or to visualize them using the ultrasound; therefore, stat cesarean section [was called for delivery at 11:23 a.m., surgery started at 11:30 a.m., and Katelyn was delivered at 11:33 a.m.].
(Exhibit 3, Operative/Procedure Report, p. 1, and Labor Flow Record Twins, pp. 17 and 19; Exhibit 27, p. 9). The cord was clamped and cut, and cord blood was collected; however, cord gases were not ordered. FHTs at delivery were 60-155 bpm, and following delivery the baby was bulb-suctioned, but no further resuscitative efforts were required. Apgar scores were noted as normal (7 and 9, at one and five minutes, respectively)3 which, like the Apgar score of her sibling (Kassandra), was consistent with an infant with good reserves, who has tolerated labor and delivery well; initial newborn assessment noted no abnormalities; and Katelyn was transported to the newborn nursery. (Exhibit 3, Maternity Suites Delivery Record Twins, pp. 2-4; Exhibit 26, pp. 16 and 17).
Dr. Schwartz, described in the medical records as the neonatal attending ("Ped/Neo MD"), attended Katelyn's delivery, and assigned her Apgar scores. (Exhibit 3, Maternity Suites Delivery Record Twins, pp. 3 and 5). Dr. Schwartz's progress notes, documented at 11:45 a.m., described his involvement and observations, as follows:
Asked by Dr. Bonar to attend this stat C/S for the 2nd of twins b/c of face presentation & fetal HR bradycardia . . . Twin "A" delivered w/o problems.
At delivery infant cried after sxn [suctioning]. Taken to warmer & dried, stim[ulated], bulb/deep sxn. Pinked up quickly w/o BB02 [without blow by oxygen]. Apgars 7, 9. To NBN [newborn nursery] pink & vigorous.
(Exhibit 4, Progress Record).
Following admission to the newborn nursery, Raoul Sanchez, M.D., a pediatrician associated with The
Carithers Pediatric Group,4 examined Katelyn. Dr. Sanchez's examination noted no abnormalities except an occasional right hip click, which bore followup to see if it was associated with a hip dislocation. Routine care was ordered. (Exhibit 4, Newborn Physical Examination; Exhibit 26, pp. 21-25).
Further newborn evaluations were performed by Doctors Thomas Connolly, Wendy Sapolsky, and Julie Baker, also pediatricians associated with The Carithers Pediatric Group, on November 16, 17, and 18, 2002, respectively. Dr. Connolly's
progress note documents a normal newborn examination, with positive breast feeding, with formula supplement; positive urine output; lungs clear to auscultation bilaterally; cardiovascular, regular rate and rhythm; and no hip clicks. Plan was supportive care, and anticipated discharge when mom was ready to go.
Dr. Sapolsky's progress note also documents a normal newborn examination, but with mild jaundice; nursing well; and routine care. Finally, Dr. Baker's progress note documents a normal newborn examination; feeding well; lungs clear; heart, regular rate and rhythm; and plan to discharge Katelyn home with her mom. Nurses' progress notes for November 15, 2002, through Katelyn's discharge with her mom and Kassandra on November 18, 2002, at day 4 of life, reveal a normal newborn course, without evidence of distress.5 (Exhibit 4, Progress Record, Newborn Admission and Transitional Care Record, and Nurses Progress Notes; Exhibit 26, pp. 25-27).
Katelyn's subsequent development
As Katelyn matured, her parents began to notice that she was substantially behind her sister (Kassandra) in reaching developmental milestones, including rolling over, sitting up, crawling, walking, and language. Reportedly, Katelyn did not crawl until after her first birthday, and first walked independently at 19 months of age. Weakness of the right lower extremity was suspected during the first year of life, and
confirmed when she began to stand. Katelyn has received physical, occupational, speech, and Applied Behavioral Analyses (ABA) therapy, and has been fitted with an AFO for her right lower extremity.
Given Katelyn's developmental delay, Katelyn was referred to Michael Pollack, M.D., by her pediatrician (Dr. Connolly). Dr. Pollack is a pediatric neurologist
associated with Shands Children's Hospital at the University of Florida, and he evaluated Katelyn on September 6, 2006. Dr.
Pollack described his evaluation, impression, and plan, as follows:
SUBJECTIVE: Katelyne is an almost 4-year- old fraternal twin referred because of developmental delay. History is obtained from the patient's parents.
Conception was via in vitro fertilization. The patient was twin B and was delivered by emergency cesarean section at term. Her co- twin was delivered vaginally. Katelyne remained in hospital for five days. Mother indicates that there were difficulties with temperature control, but the patient did not require intubation. There was no intracranial hemorrhage. Weakness of the right lower extremity was suspected during the first year of life. The patient did not crawl until after her first birthday and she first walked independently at 19 months of age. She currently wears an AFO over the right lower extremity and also uses a smaller foot orthosis on the left. She receives physical, occupational and speech therapy.
Her language development has been delayed. She currently produces phrases of one to three words. Pronoun confusion has been noted. The patient rarely uses pronouns spontaneously. Echolalia[6], both immediate and delayed, are also reported. Eye contact has been minimal, but there has been recent improvement. Parents use a variety of techniques for behavioral management. These include time out and various positive reinforcement techniques. For example, they use M&Ms for short term rewards and have a variety of toys which the patient uses only at dinner in order to encourage her to participate in meals. She has longstanding difficulties settling at night and usually awakens at least once during the night.
She has frequent temper outbursts and it is difficult for parents to take the patient to public places such as malls or restaurants. By coincidence, I stayed at the same hotel as the family on the night prior to the visit and was personally able to verify the patient's behavioral difficulties in the hotel breakfast room.
* * *
FAMILY HISTORY: Speech delay is present in the patient's twin sister, who is otherwise in good health.[7] The patient's 20-year-old half brother and 18-year-old half sister are in good health.
PHYSICAL EXAMINATION: . . . The patient is a well-nourished, normally proportioned [almost 4]-year-old girl. There are no dysmorphic facial features. Examination of the eyes, nose and oropharynx is unremarkable. Neck is supple. Chest is clear. No significant cardiac murmurs are present. There is no hepatosplenomegaly [enlargement of the liver and spleen].[8] Spine is straight. The patient wears a right AFO and a small left foot orthosis as noted above. Neurological examination: The
patient is active and distractible and shows little behavioral inhibition. At times she lies on the floor. However, her behavior is easily redirected during the office visit and she is generally cooperative. She does establish eye contact with the examiner, although it is often fleeting. She follows a variety of commands including commands which employ a variety of prepositions. She does demonstrate first and second person pronoun confusion. She identifies a variety of body parts, but does not identify a number of body parts which she would be expected to have mastered at 3 years 10 months of age. Her verbal productions are generally limited to two or three words.
Her responses are often tangential []or unrelated to the examiner's questions and reflect limited language comprehension.
Echolalia is not noted during the office visit. Pupils are equal and reactive to light. Ocular fundi are not adequately visualized. There is no disturbance of ocular motility. No facial weakness or significant asymmetry are present. Tongue protrudes in the midline. Her gait is characterized by circumduction of the right foot. She manipulates objects with either hand. Tendon reflexes are normally and symmetrically active. The right plantar response is extensor and the left is variable.
IMPRESSION: Katelyne appears to have a nonprogressive encephalopathy. Her condition is probably of prenatal origin. There is an increased incidence of cerebrovascular disease in twin gestation. She has a monoparesis[9] of the right lower extremity. Her language development has been delayed and there are also difficulties with socialization and behavior. She does have a number of features which fall within the autistic spectrum.
PLAN: An MRI of the head will be obtained under sedation/anesthesia at the discretion
of the anesthesiologist. The patient was also referred to the clinic of Dr. Krestin Ridonovich for further evaluation of her language and socialization difficulties. A trial of low does Ritalin, which will be used on an occasional basis, will be carried out. Daily psychostimulant medication does not appear warranted at this time. The patient should receive special educational services through the public school system and it is likely that physical, occupational and a speech/language therapy will be available to her through the public school system, once placement has been completed.
She will return to this clinic in two to three months.
(Exhibit 18).
Katelyn's MRI of the brain was done September 28, 2006, and was reported as negative (without evidence of brain injury). Findings were noted, as follows:
There is, in general, normal brain density, normal gray and white matter differentiation, and normal brain formation. Ventricular size, and cisternal/sulcal patterns are appropriate for chronological age. There is no evidence of mass lesion, hydrocephalus, intra or extra axial fluid collection. There is opacification of the maxillary sinuses probably. Correlation should be made clinically for sinusitis.
The diffusion imaging including both DWI and ADC mapping demonstrates no evidence of water restriction to suggest an acute ischemic event.
(Exhibit 19).
Katelyn saw Dr. Pollack on November 29, 2006, for follow-up. Dr. Pollack reported the results of that visit, as follows:
Katelyne is a 4-year-old fraternal twin who was initially seen here 09/2006 because of developmental delay. Her history is reviewed in the previous report. . . .
Mother indicates that my impression that the patient had autistic features was supported by recent psychological testing.
Interestingly, the patient's MR scan of the head was normal. This suggests that the lesion responsible for the patient's right lower extremity monoparesis is small. In addition, a normal scan makes it unlikely that an ischemic event is responsible for the patient's atypical language and social development . . . .
A prescription for low-dose Ritalin therapy to be used on an occasional basis was provided when the patient was seen here two months ago, but the medication has not yet been used.
* * *
Results of the MR scan were reviewed during today's visit. In view of the normal scan, it appears unlikely that the patient's autistic spectrum disorder has an ischemic etiology even though she is a twin and there is an increased incidence of cerebral ischemia in twin gestations. Studies for Rett syndrome will be initiated. The patient will also be referred to Genetics Clinic . . . . She will return to clinic in six months.
(Exhibit 18).
Katelyn was last seen by Dr. Pollack on April 11, 2007. The results of that visit were reported, as follows:
Katelyne is a 4-year-old fraternal twin with an autistic spectrum disorder. Her history is viewed in the note of 11/29/2006 . . . .
Psychological testing has supported my initial impression that autistic features were present in this patient.
* * *
The patient has been seen in Genetics Clinic. Mother indicates that Genetics' studies for Rett syndrome were negative and additional studies have been ordered.
A trial of low-dose Ritalin was carried out a few months ago. Mother felt that 2.5 mg produced little apparent change while 5 mg was poorly tolerated when it was used in class.
The patient does have frequent angry outbursts. Some of these are triggered by her inability to delay gratification. She is less likely to have spells when she is the center of attention. Mother also believes that some episodes are precipitated by anxiety.
On examination today, Katelyne is noted to be well nourished and normally proportioned
. . . . The patient is emotionally labile[10] during a portion of the office visit. She has a minor temper tantrum in which she lies down on the floor and thrashes when she does not immediately receive her request from mother. However, when the examiner's attention is directed to Katelyne, she is pleasant and cooperative and readily establishes eye contact. Her responses to questions are tangential and at times unrelated. Many of her responses are telegraphic. She is not able to engage in a free-flowing conversation. She correctly identifies colors, and she enumerates fingers. She follows multi-step commands.
Cranial nerve examination is, again, normal. Functional testing suggests normal strength. Tendon reflexes are symmetrically 2+, and plantar responses are flexor.
In summary, Katelyne appears to have a developmental language disorder which she shares with her fraternal twin who is less severely affected. Katelyne's socialization is also atypical, and she does appear to fall in the autistic spectrum. She has behavioral difficulties as described above. Mother is adept at managing the patient's behavior at home but explosive episodes do occur in the classroom. The patient is currently in a school program for the physically impaired, but it is likely that she will be transferred into an autistic program in the near future. Improvement in the patient's classroom behavior would facilitate optimal school placement.
PLAN: I urged the mother to carry out a trial of Ritalin at a lower dose, 2.5 mg, in the classroom two or three days. It is noted that the previous trial of Ritalin, in the classroom, was with the 5 mg dose. If Ritalin is ineffective, a trial of low-dose BuSpar, 5 mg, will be carried out . . . .
(Exhibit 18).
Following the filing of the claim in the instant case on April 27, 2007, Katelyn was, at NICA'S request, evaluated by Paul Carney, M.D. Dr. Carney, like Dr. Pollack, is a pediatric neurologist associated with Shands Children's Hospital at the University of Florida, and he evaluated Katelyn, on June 28, 2007. Dr. Carney's description of Katelyn's medical history was similar to that of Dr. Pollack, and no useful purpose would be
served to duplicate it here. The results of Dr. Carney's evaluation were described as follows:
Today records were reviewed including all orthopedics records completed at Nemours, birth records from St. Vincent's Medical Center, previous therapist records and primary care records.
On exam today, Katelyne weighed 20.4 kg, height is 108.0 cm, . . . head circumference
56.8 cm. Neurologically, Katelyne was awake and alert. She had increased activity and was hyperactive throughout the room and did require frequent redirection. She did have a lot of repetitive or echolalia speech but she would eventually engage the examiner and had to be redirected multiple times. Her pupils were equal, round and reactive to light with accommodation. Extraocular movements were intact. Her face was symmetric[,] tongue was midline and palate rose symmetrically. On motor exam, upper extremity strength was 5/5 throughout with good tone and bulk. Lower extremity exam revealed weakness of the right lower extremity 4/5. He gait was abnormal. She had a circumducted gait on the right. With her AFO off her ankle with [sic] pronate and upon running she actually could not run and would require assistance. She had increased tone of her right lower extremity and was hyper-reflexic right greater than left bilateral lower extremity. Cognitively, she was noted to have developmental delay for a child of her age, required frequent redirection of behavior
Assessment specifically [as] it . . . relates to NICA. Answering the three questions required, we feel that she does suffer from a permanent and substantial mental impairment. She does have the disability that is quite obvious and likely to be lifelong and unlikely to resolve. She does have global developmental delay. The
etiology of her disabilities is not clear as she does not have overt evidence of perinatal hypoxia ischemia or mechanical injury at the time of delivery. We would like to request the following studies specifically, cord gas results and blood glucose results done from the cord gas at the time of delivery that were not available for our review. Once this information is provided, we can complete our recommendations or would certainly be available via phone call to discuss her case further. Nonetheless, she will have global developmental delay, likely will not resolve and will require therapies for speech, language, physical and occupational therapies with a goal of trying to reach her maximum potential. If you have any questions or concerns, please give my office a call.
(Exhibit 18). As heretofore noted, cord gases were not ordered. Consequently, the results were not available for Dr. Carney to review and, insofar as the record reveals, he expressed no further opinions and made no further recommendations. Of further note, neither Dr. Pollack nor Dr. Carney was called to testify, or offer further explanation for their conclusions.
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 . . . 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."11 § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat.
Here, it is undisputed that Katelyn is permanently and substantially mentally impaired. What must be resolved is whether the record supports the conclusion that, more likely than not, Katelyn is also permanently and substantially physically impaired and, if so, whether her impairments resulted from a brain injury caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital, as required for coverage under the Plan. As to these issues, Petitioners were of the view that Katelyn was also permanently and substantially physically impaired, and that her impairments were the result of a brain injury caused by oxygen deprivation she suffered at St. Vincent's Medical Center, likely secondary to a prolapsed cord, that occurred following rupture of the membranes between
11:20 a.m. (when a reassuring FHR was noted) and 11:23 a.m. (when the stat cesarean section was called), and 11:30 a.m., (when Katelyn was delivered). (Petitioners' Proposed Final Order, p. 7). In contrast, NICA was of the view that Katelyn was not permanently and substantially physically impaired, and that what impairments she may suffer are most likely developmentally based, as opposed to birth-related. The
hospital adopted Petitioners' argument, and the physicians took no position on the issues. (Transcript, pp. 67 and 68).
The likely etiology of Katelyn's neurologic impairments, and the significance of her physical impairment
To address the etiology of Katelyn's neurologic impairments, the parties offered the testimony of three expert witnesses to support their respective positions. Offered by Petitioners was the testimony of Richard Boehme, M.D., and offered by Respondent was the testimony of Donald Willis, M.D., and Michael Duchowny, M.D. Doctors Boehme and Duchowny also spoke to the significance of Katelyn's physical impairment.
Dr. Willis is a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine. Based on his review of the medical records, Dr. Willis was of the opinion the records failed to support a conclusion that Katelyn suffered a brain injury caused by oxygen deprivation during labor, delivery, or immediately thereafter. Dr. Willis expressed the basis for his opinion, as follows:
[DIRECT EXAMINATION]
Q From that review, were you able to form an opinion as to whether or not Katelyn Kutzer suffered a birth-related neurological --
A Yes, it is my medical opinion from the review that this child did not suffer brain damage due to oxygen deprivation or mechanical injury during labor, delivery, or the immediate post-delivery period.
* * *
Q Can you please explain for us the foundation for your opinion in that regard, with respect to the records you reviewed?
A Yes. . . . During labor, the fetal heart rate monitor strip really did not show any fetal distress. The first baby was born by vaginal birth and had normal Apgars of eight and nine. The B baby was born next and had a prolapse of the umbilical cord.
Q Dr. Willis, let me interrupt you there for a just a second. When you refer to the B baby, are you referring to the petitioner in this case, Katelyn Kutzer?
A Yes.
Q Okay.
A So when Katelyn was delivered, they did a rupture of the amniotic membranes to assist in her delivery. At that time, the umbilical cord prolapsed. They did an ultrasound and they tried to auscultate the fetal heart tones and could not detect heart tones with either of those methods and therefore they did an emergency cesarean section delivery. Amniotic fluid was clear when the membranes were ruptured. Birth weight was 2975 grams. The baby was not depressed at birth. Apgar scores were seven and nine. The baby required no resuscitation after birth. It went to the newborn nursery and the statement by the pediatric or neonatal staff said the baby went to the newborn nursery pink and vigorous. The baby had a normal newborn course and was discharged home with the mother on the third day of life.
Now, if a baby suffers oxygen deprivation or mechanical injury to the brain significant enough to cause brain damage,
those babies are usually depressed at birth and they usually have some type of multisystem failure after birth, which would include things such as respiratory distress, feeding difficulties, seizures within the first 72 hours of birth, abnormal neurologic findings on physical exam, those types of things. And for this child, I did not see anything that would suggest oxygen deprivation that had caused any brain injury.
* * *
Q Okay. You mentioned and the medical records indicate that there was a prolapsed cord during Katelyn's delivery.
A Correct.
* * *
Q In your opinion, does the fact that there was a prolapse cord mean that Katelyn suffered oxygen deprivation that would have been significant enough to cause brain injury?
A No. I think in this case, although the umbilical cord did prolapse, I do not think that it caused any oxygen deprivation to the child.
Q. Would Katelyn's Apgar scores indicate how she tolerated or responded to the prolapse score [sic]?
A. Yes. To some degree, yes. And the Apgar scores were good.
Q And they were -- I think you indicated? A Seven and nine, I believe.
Q And those are normal?
A Those are normal. Low Apgar score's considered to be a score less than seven.
* * *
Q Okay. You mentioned earlier on describing or summarizing the -- of labor and delivery here, that at some point the physician or staff personnel was not able to obtain a fetal heart rate. What is the significance of that in the context of this case in your opinion?
A I don't think it has any real significance, because the failure to either hear, auscultate, or to see fetal heart with ultrasound prior to birth can't be a true finding because, you know, if a baby had no heartbeat inside the uterus, then certainly they could not be born five or ten minutes later, however long it took to deliver the baby, and have heartbeat and normal Apgar scores without resuscitation.
Q So it is your opinion that that -- notation that they were unable to -- fetal heartbeat or get a visual on a heartbeat is inconsistent with the actual clinical newborn -- that is described here?
A That's right. And it's probably just a technical problem. It's probably not that there was not a heartbeat, it's probably simply that they just didn't see it or couldn't hear it because of the position of the baby or some technical problem, not because it wasn't there.
* * * [CROSS-EXAMINATION]
Q So going back to my original question, I guess, as far as Katelyn, B baby is concerned, the last monitor strip that we're sure we have ends at about 11:00 a.m.?
A Correct.
Q Which means that for approximately 33 minutes, we have no record [monitor strip] how Katelyn was doing, at least as it was represented on a fetal heart monitor?
A Correct.
Q Okay. So back to my question where I said that your sentence[12] where it says, fetal heart rate tracing during labor did not suggest fetal distress, I am suggesting was a more accurate statement that the fetal heart rate tracing during up to 11:00 a.m., did not suggest fetal distress; is that a fair statement?
A I don't think it's a distinguishing feature that's necessary, because if a baby were to sustain oxygen deprivation severe enough to cause brain oxygen during the 30 minutes prior to birth, that baby would be born depressed and would have some abnormalities, would require resuscitation. So although I don't see the fetal heart rate monitor strip during that time, the outcome, the baby's condition at time of birth is not consistent with a hypoxic event during that period.
* * *
Q Okay. Now, tell me a little bit about a prolapsed cord. What is the effect of a prolapsed cord that is not immediately recognized --
A Well, when the umbilical prolapses, goes through the cervix and into the vagina, then it may cause no disruption in blood flow at all or it may result in varying degrees of disruption in the blood flow from the placenta to the baby. And of course the placenta is where the baby gets its oxygen exchanged.
Q Is it fair to say that the prolapsed cord is an emergency situation that needs to be addressed immediately?
A Yes.
Q And the reason for that is because if the cord is compressed for too long, you will have oxygen deprivation and distress to the baby and/or --
A Yes, umbilical cord prolapse can cause oxygen deprivation if the umbilical cord is compressed. And two, I mean, once the umbilical cord prolapses, it's unlikely that you're going to have a vaginal birth at that point.
Q Okay. And that's the reason why a cesarean section was called for in this case?
A Correct.
* * *
Q Do you believe you have seen babies that have had fetal rates down in the 60 range for any period of time have not had some subsequent injury?
* * *
A Yes, yes. And in fact, I mean in this baby, if you look, I mean, there was this range of heart rate that was irregular and there were some low heartbeats probably prior to birth, but if you look at the one- minute Apgar score, which is just towards the bottom of that page, the baby had got two points for Apgar with one minute. So without resuscitation, the baby had a heart rate above 100 beats a minute at one minute of life, and that would just not be compatible with a baby that got oxygen deprivation a short period of time before, enough to result in brain injury.
(Exhibit 27, pages 8-14, 26, 27, 30 and 31).
Dr. Duchowny is a pediatric neurologist associated with Miami Children's Hospital, where he is a senior staff attending physician in neurology, as well as the director of the neurology training programs and the epilepsy programs, and holds an appointment as a clinical professor in neurology and pediatrics at the University of Miami Miller School of Medicine. Based on his review of the medical records, Dr. Duchowny was of the opinion that Katelyn's neurologic impairments were likely developmentally based, as opposed to birth-related, and that she was not permanently and substantially physically impaired.
Dr. Duchowny expressed the basis for his opinions, as follows:
Q . . . So you are saying, so I am understanding you completely clearly here, that in your opinion, she does not meet the NICA criteria for a severe and permanent injury in a NICA case condition?
A Well, I should say I do not believe that she has a substantial physical impairment. The records indicate that she does have a substantial mental impairment, but I do not believe that Katelyn's mental impairment was acquired in the course of labor and delivery.
* * *
Q Okay. You do recognize, I guess, that Katelyn, and as you mentioned, she is developmentally delayed. You state[13] that from your review of the records, or at least the records documented that she was developmentally delayed, that she had
limited social interaction, poor eye contact and preservative behaviors. She has [mild] hypertonia in the right lower limb.
* * *
Q Are you saying, Doctor, that none of that, in your opinion, constitutes a serious and permanent injury?
A As I indicated previously, I don't believe there is any injury to the brain. I believe these are developmentally-based problems and are related to brain maturation, but are not a consequence of brain damage.
Q Okay. Are you saying that problems that develop, and let's just say hypothetically during the first trimester, that result in a developmentally delayed child are not considered definitionally as brain injuries?
A Yes.
* * *
Q Okay. How do you define that then, if it's not a brain injury or brain damage, what is it that causes a person, again, hypothetically, like this, to be profoundly disabled if something happens to them during the first trimester?
A This is a developmentally-based brain disorder and the cause of most of these disorders is unknown.
Q Okay. Are you saying that the brain in these people is normal?
A No, I'm not. I'm saying that there is no brain injury.
Q Okay. Even though that damage might be caused by some insult that occurred during the first trimester, for example, that is,
again by definition, not considered to be a brain injury or brain damage?
A No. Let's be clear. If there is an injury that occurred in the first trimester that resulted in structural brain damage, I would agree that individual has brain damage or a brain injury, but if there is no evidence of structural brain damage, I would disagree that the patient has brain damage or brain injury. I would regard the neurological problems as being developmentally based.
Q Define that for me then, if you will. what is the definition of a developmentally- based injury?
A It is a prenatal intrauterine acquired abnormality of brain maturation resulting in neurological problems.
* * *
Q Okay. You mention in your letter[14] that she would ultimately fit within the autism spectrum. Explain what you mean by that.
A Autism is a developmental disability that arises from unknown intrauterine acquired factors and is primarily a disorder of social development, although there are a number of co-morbid features, and children with autism fall within a spectrum of severity between those that are severely impaired and those that function relatively well except for the social disability.
Q Do patients that fall within the autism spectrum have orthopedic components to their problems?
A It's not the part of autism, no.
Q Being more specific again, you mention hypertonia in the right lower limb. Is that
something specifically that falls within the autism spectrum?
A No.
Q What about the developmental delay itself, is that something that falls within autism?
A Yes, very often.
* * *
Q So you are reaching a conclusion here that whatever we call the injuries, developmental delays, problems that Katelyn is experiencing, you are also of the opinion that none of those were caused during any event during birth?
A That's correct. I do not believe that Katelyn's neurological disability is a result of factors that arose in the course of labor or delivery.
Q And what is the basis of that opinion, specifically that it was not caused during the birthing process?
A It's based on several factors: Firstly, a review of the records indicates that there were no features during labor and delivery, per se, which would be contributing. Number two, that the immediate postnatal course was inconsistent with either hypoxic ischemic brain damage or mechanical injury. Number three, that Katelyn's present neurological circumstances are inconsistent with perinatally acquired damage. And, fourthly, that the MRI scan of the brain confirms that there is no structural brain damage.
* * *
Q Okay. Now, you said, in the beginning you said there were no features about this birth that are contributing, contributing
features to either a hypoxic or mechanical injury, I think that was your point number one?
A Yes.
Q Are you saying then that the documented fetal distress is not a feature that could be contributing to an injury in this case?
A Yes.
* * *
Q Okay. Another factor in this case was a prolapsed cord. You are aware of that, I assume?
A Yes.
Q Okay, and a prolapsed cord can compromise blood supply to the body and brain of the child?
A Hypothetically, yes.
Q Are you saying that it is definitive in this case that the prolapsed cord did not do that?
A Well, my prior statement was that I didn't see any evidence, and that includes the prolapsed cord, that Katelyn's neurological disability was acquired as a result of hypoxia, ischemia or mechanical injury in the course of labor and delivery.
Q There was a time of at least 15 minutes and maybe longer than that when there was an inability to obtain or to record a heart rate from this child. Are you aware of that?
A Yes.
Q So there is no way to judge during that period of time where the child's heart rate was?
A That's correct.
Q And it is documented that once the ability to record or to monitor the heart rate of the child was restored, once that was restored, that heart rate was measured at the low end at about 60 beats. Are you aware of that?
A Yes.
Q Okay, and do you recognize that in a newborn child that a heart rate of 60 beats is well below normal and well into the range that would be considered dangerous?
A Yes.
Q But are you continuing to say that even knowing that, there is no likelihood in this case that that heart rate could have resulted in damage to this child?
A Yes.
Q And why is that?
A There is no evidence of any brain damage in this child and none of the information in the records or the factors that I have enumerated suggest that it occurred.
Q Okay. Now, you mentioned the immediate postnatal period was inconsistent. Are you referring there to the Apgar scores?
A I'm referring to the fact that the Apgar scores were good, there was no need for intubation or mechanical intubation, the doctor saw no need to draw arterial blood gases and there is no evidence of multi- organ involvement caused by hypoxia or ischemia. In other words, there are no
problems with the heart, the lungs, the liver or the kidneys.
(Exhibit 28, pp. 9, 11-14, 16-21).
Dr. Boehme is a neurologist practicing in Jacksonville Beach, Florida. Primarily, Dr. Boehme treats adults, although he occasionally treats pediatric patients. However, the ages of his pediatric patients, their numbers, or the nature of the care he provides is not of record.15 Based on his review of the medical records, Dr. Boehme was of the opinion that Katelyn was permanently and substantially mentally and physically impaired, "due to perinatal hypoxia at the time of delivery." (Exhibit 29, p. 18 and 19). Dr. Boehme expressed the basis for his opinions, as follows:
Q What in your opinion was the event that occurred during delivery that caused that perinatal hypoxia?
A It was the -- the time where she went into respiratory distress until the time that she was delivered via C-section.
Q And it is your opinion based upon your review of the Shands medical records and the Nemours Children's records that Katelyn was in respiratory distress at some point in time prior to the time she was delivered?
A That's why they did the cesarean section.
Q What specifically occurred during the labor and delivery that in your opinion resulted in that respiratory distress?
A Like what happened?
Q Well, do you understand from your review of the medical records --
* * *
A I think that she suffered an hypoxic event that led her to have -- the decision being made for a cesarean section. I'm not here to comment on standard-of-care issues by the physicians or the nursing staff.
I think that the -- there was a prolapsed cord there for about 15 minutes. And the fact that even though a blood sample was obtained, that it was never evaluated -- at least to my knowledge, there's no record of it -- and prolapsed cords can certainly lead to hypoxic events.
And we don't have any rhythm strips for the baby for approximately 30 minutes. So we have no way of knowing for sure what happened. But, obviously, the -- the decision was made to deliver via C-section, so -- emergently.
So even though the Apgars are 7 and 9 -- and I've seen that before. You can have brain damage from hypoxic events with Apgars of 7 and 9.
Q Okay.
A So that's the basis of my opinion.
Q Is it your opinion that the prolapsed cord that you talked about a moment ago resulted in the oxygen deprivation that was significant enough to cause a hypoxic ischemic injury to Katelyn's brain?
A More likely than not.
Q Okay. Is it your testimony that every time there's a prolapsed cord during delivery it results in oxygen deprivation
significant enough to cause a hypoxic ischemic brain injury?
A No.
Q So you recognize and appreciate that a prolapsed cord in itself does not mean that there was going to be or is going to be oxygen deprivation significant enough to cause a brain injury?
A There's no 100 percent certainty of prolapsed cord leading to hypoxic injuries, that is correct.
Q A prolapsed cord may reduce blood flow to the baby but not necessarily cause a brain injury?
A That is correct. It may not be enough.
Q But in your opinion, in this case, you believe that the prolapsed cord caused an oxygen deprivation that was significant enough to cause an injury to Katelyn's brain?
A That is correct.
Q An hypoxic ischemic injury? A Yes, by definition.
Q Do you agree that the best evidence of whether there was oxygen deprivation at the time of delivery that was significant enough to cause brain injury is the baby's clinical course during the immediate post-natal period?
A No. It's the blood gases from the umbilical blood would be the best evidence.
Q Or in a case -- in a case such as this case where we don't have cord blood gas results --
A Oh, then --
Q -- would you agree that the clinical course of the baby in the immediate post- delivery period would be that the best evidence as to whether or not that baby suffered an insult to the brain from oxygen deprivation that was significant enough to actually cause a brain injury?
A That would be the best evidence initially, that is correct.
(Exhibit 29, pp. 19-22). Notably, Dr. Boehme did not identify any sign, symptom, test result, or event during Katelyn's immediate newborn course that would support his opinion that Katelyn suffered a brain injury caused by oxygen deprivation, secondary to a prolapsed umbilical cord, during the course of labor and delivery. It is also notable that Dr. Boehme is not board-certified in any specialty, was not shown to have any special training or experience in pediatrics or pediatric neurology, and although he occasionally treats pediatric patients, was not shown to care for newborns.
The medical records, as well as the testimony of the physicians and other witnesses, have been thoroughly reviewed. Having done so, it must be resolved that the record in this case compels the conclusion that, more likely than not, Katelyn is not substantially physically impaired, and that the cause of her neurologic impairments is most likely a developmental-based brain disorder, as opposed to a birth-related brain injury. In
so concluding, Dr. Duchowny was shown to be the more qualified to address the significance of Katelyn's physical impairment, not Dr. Boehme, and Doctors Duchowny and Willis the more qualified to address the issue of etiology. Moreover, their testimony was candid, logical, and consistent with the record, whereas Dr. Boehme's was not. Indeed, Dr. Boehme's opinion appears grounded on little more than speculation, and not science.
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 within five years of the infant's birth. §§ 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(7), 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 for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 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 the Petitioners to demonstrate that Katelyn suffered a "birth- related neurological injury." See § 766.309(1)(a); 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.").
Here, the proof failed to demonstrate that Katelyn's impairments were, more likely than not, caused by 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," or that Katelyn was permanently and substantially physically impaired. Indeed, the more compelling proof established that the cause of Katelyn's neurologic impairments was most likely a developmentally-based brain disorder, as opposed to a birth-related brain injury, and that Katelyn was not permanently and substantially physically impaired. Consequently, given the provisions of Section 766.302(2), Florida Statutes, Katelyn does not qualify for coverage under the Plan. See also Humana of Florida, Inc. v. McKaughan, 652 So. 2d 852, 859 (Fla. 2d 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); 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 mental and substantial physical impairment.).
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 that the claim for compensation filed by Daniel M. Kutzer and Michelle D. Kutzer, individually, and as parents and natural guardians of Katelyn Kutzer, a minor, is dismissed with prejudice.
DONE AND ORDERED this 18th day of November, 2008, 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
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2008.
ENDNOTES
1/ An Apgar score is a numerical expression of the condition of a newborn infant, and reflects the sum points gained on assessment of heart rate, muscle tone, respiratory effort, reflex irritability, and color, with each category being assigned a score ranging from the lowest score of 0 to a maximum score of 2. (Dorland's Illustrated Medical Dictionary, 28th Edition, 1994; Exhibit 3, Maternity Suites Delivery Record Twins, p. 1). Here, at one minute, Kassandra's Apgar score totaled 8 with heart rate, muscle tone, respiratory effort, and reflex irritability being graded at 2 each, and color being graded at 0. At five minutes, Kassandra's Apgar score totaled 9, with heart rate, muscle tone, respiratory effort, and reflex irritability being graded at 2, and color being graded at 1.
2/ When the umbilical cord prolapses, it goes through the cervix and into the vagina. Under such circumstances, it is unlikely a vaginal birth will occur. Rather, as in this case, a cesarean section will be called. (Exhibit 27, pp. 30 and 31).
3/ At one minute, Katelyn's Apgar score totaled 7, with heart rate, respiratory effort, and reflex irritability being graded at 2 each, muscle tone being graded at 1, and color being graded at 0. At five minutes, Katelyn's Apgar score totaled 9, with
heart rate, muscle tone, respiratory effort, and reflex irritability being graded at 2 each, and color being graded at 1.
4/ Physicians associated with The Carithers Pediatric Group provided Katelyn's pediatric care for approximately four years, with her last visit on August 23, 2006. Thereafter, she was seen by David Weiss, M.D. (Exhibit 26, pp. 7 and 8).
5/ Some difficulty was initially encountered in keeping Katelyn's body temperature elevated. However, that issue resolved within 24 hours, and no complications were shown to have resulted. In the interim, Katelyn was kept bundled, and away from air conditioning vents and drafts.
6/ "Echolalia" is the "stereotyped repetition of another person's words or phrases." Dorland's Illustrated Medical Dictionary, 28th Edition, 1994.
7/ Kassandra received speech therapy and her language delay resolved. Currently, she presents with no developmental delays.
8/ Dorland's Illustrated Medical Dictionary, 28th Edition, 1994.
9/ See "monoparesis," a "paresis of a single limb," and "paresis," a "slight or incomplete paralysis." Dorland's Illustrated Medical Dictionary, 28th Edition, 1994.
10/ "Labile," "gliding; moving from point to point over the surface, unstable." Dorland's Illustrated Medical Dictionary, 28th Edition, 1994.
11/ In its entirety, Section 766.302(2), Florida Statutes, provides:
(2) Birth-related neurological injury means injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 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.
Here, there is no suggestion, or proof to support a conclusion that, Katelyn suffered an injury to the brain caused by mechanical injury or that Katelyn suffered an injury to the spinal cord. Consequently, those alternatives need not be addressed.
12/ Counsel is referring to a sentence in Dr. Willis' letter (report) dated May 14, 2007, and attached to his deposition (Exhibit 27) as Exhibit B.
13/ Counsel is referring to Dr. Duchowny's letter (report) dated April 12, 2008, and attached to his deposition (Exhibit
28) as Petitioners' Exhibit 1.
14/ Counsel is again referring to Dr. Duchowny's letter (report) dated April 12, 2008, and attached to his deposition (Exhibit 28) as Petitioners' Exhibit 1.
15/ Dr. Boehme testified that pediatrics accounted for "[t]wo percent maybe" of his practice. When asked "in the course of a year, how many pediatric patients might you see?," he responded "I really don't know; not very many." (Exhibit 29, pp. 5 and 6).
COPIES FURNISHED:
(Via certified mail)
Stephen J. Pajcic, III, Esquire William S. Burns, Jr., Esquire Pajcic & Pajcic
1900 Independent Square
Jacksonville, Florida 32202
(Certified Mail No. 7007 2680 0000 9309 0595)
Kenney Shipley, Executive Director Florida Birth Related Neurological
Injury Compensation Association 2360 Christopher Place, Suite 1
Tallahassee, Florida 32308
(Certified Mail No. 7007 2680 0000 9309 0960)
Brian D. Stokes, Esquire Unger, Stokes, Acree, Gilbert,
Tressler & Tacktill, P.L.
Amherst Building 3203 Lawton Road, Suite 200 Orlando, Florida 32803 (Certified Mail No. 7007 2680 0000 | 9309 | 0977) |
M. Mark Bajalia, Esquire Gina A. Atienza, Esquire Brennan, Manna & Diamond 800 West Monroe Street Jacksonville, Florida 32202 (Certified Mail No. 7007 2680 0000 | 9309 | 0984) |
Rogelio J. Fontela, Esquire Dennis, Jackson, Martin & Fontela, 1591 Summit Lake Drive, Suite 200 Tallahassee, Florida 32317 (Certified Mail No. 7007 2680 0000 | P.A. 9309 | 0991) |
Charlene Willoughby, Director Consumer Services Unit - Enforcement Department of Health
4052 Bald Cypress Way, Bin C-75 Tallahassee, Florida 32399-3275
(Certified Mail No. 7007 2680 0000 9309 0359)
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.
Issue Date | Document | Summary |
---|---|---|
Nov. 18, 2008 | DOAH Final Order | The cause of the infant`s impairments was most likely a developmentally-based brain disorder, as opposed to a birth-related brain injury. The claim is denied. |