Upon due notice, this cause came on for final hearing before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings, on July 27, 2010, by video teleconference with sites in Lauderdale Lakes and Tallahassee.
For Petitioners: David T. Aronberg, Esquire
Leonard P. Haberman, Esquire
Law Offices of Aronberg & Aronberg 2160 West Atlantic Avenue, Second Floor Delray Beach, Florida 33445
For Respondent: Martin P. McDonnell, Esquire
Marsha E. Rule, Esquire Rutledge, Ecenia & Purnell, P.A. Post Office Box 551
Whether the injury claimed is a birth-related neurological injury and qualifies for coverage under the Florida Birth- Related Neurological Injury Compensation Plan.
On July 9, 2009, a Petition (Claim) was filed with the Division of Administrative Hearings (DOAH) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (Plan) by Nealy Munoz and John Munoz, on behalf of and as parents and natural guardians of Giovanni Munoz, a minor.
DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on July 13, 2009.1
After requesting and receiving two extensions of time within which to do so, NICA filed, on November 30, 2009, its Response to the Petition for Benefits, giving notice that NICA considered the claim to be non-compensable, because
Giovanni Munoz (Giovanni) 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 whether the claim was compensable. Thereafter, a hearing was
scheduled for July 27, 2010, to address the issue of compensability. Pursuant to Section 766.309(4), Florida Statutes, any issues regarding expenses/benefits were reserved for a subsequent hearing, if appropriate.
Prior to hearing and at hearing, additional stipulations further narrowed the disputed facts with regard to compensability.
The parties filed their Prehearing Stipulation on July 12, 2010, and a telephonic prehearing conference was held on
July 20, 2010.
4, and 5, and Petitioners' Exhibits 1, 2, and 3 were admitted in evidence.2 Petitioners presented the oral testimony of
Nealy Munoz (mother).
A Transcript was filed on September 7, 2010. Each party timely filed a proposed final order, each of which has been considered in preparation of this Final Order.
The parties' Pre-Hearing Stipulation stipulated as fact
that:
Nealy and John Munoz are the parents of minor Giovanni Munoz.
Giovanni Munoz was born on March 18, 2006, at Memorial Regional Hospital, Hollywood, Florida. His was a live birth,
and he weighed in excess of 2500 grams at birth.
The physician providing obstetrical services during labor and delivery of Giovanni was Violetta Lyra, M.D. Dr. Lyra was a participating physician in the NICA program in 2006.[3]
Nealy and John Munoz, as parents and natural guardians of Giovanni Munoz have filed a Petition with the State of Florida, Division of Administrative Hearings, seeking a determination that injuries sustained by Giovanni Munoz constitute a birth-related neurological injury.
The record evidence supports the foregoing stipulated facts, and the record also supports findings that Giovanni was a single gestation and that Memorial Regional Hospital is a "hospital" as defined in Section 766.302(6), Florida Statutes.
The Plan affords coverage 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 § 766.31, Fla. Stat.
At hearing, the parties stipulated orally, and the proof is otherwise compelling, that Giovanni suffered an injury
to the brain caused by oxygen deprivation, which injury resulted in a permanent and substantial mental and physical impairment.
Accordingly, the issue for resolution herein was narrowed to whether or not Giovanni's permanent and substantial mental and physical impairment caused by oxygen deprivation occurred "in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital[.]"
Expert medical testimony was rendered herein via the depositions of Dr. Michael Duchowny, Dr. Donald C. Willis, and Dr. Tatyana Dubrovsky. Dr. Duchowny is board-certified in pediatric neurology, a sub-specialty of medicine involved with the diagnosis and treatment of disorders of the nervous system in children, with special competence in clinical neurophysiology. Dr. Willis is board-certified in obstetrics, gynecology, and maternal-fetal medicine. Dr. Dubrovsky is board-certified in pediatric neurology. Dr. Dubrovsky has been Giovanni's treating neurologist since he was seven months' old, when Giovanni's parents noted that he was not meeting his milestones. Notably, the parties did not present testimony from a neonatologist.
Wherever the medical experts' testimony is relied-upon or referred-to herein, it is only those portions of their testimony which have been rendered within reasonable medical probability or certainty, and the undersigned has not relied
upon any responses by deponents to unrelated or incomplete hypothetical questions or where the deponents have been asked to speculate upon events not recorded or facts not in evidence.
Giovanni is the product of a 38-week gestation.
His mother, Nealy Munoz, denied that any major problems occurred with the pregnancy during the first 36 weeks.
On March 3, 2006, in the thirty-sixth week of an uneventful pregnancy, Mrs. Munoz presented to Memorial Regional Hospital as an outpatient for a biophysical profile (BPP). She had been referred there by her treating obstetrician, Dr. Lyra, due to "decreased fetal movement."
A BPP is used to determine the well-being of a fetus and uses numerical points for certain criteria. There are a total of eight points attainable on a BPP. Either two points or zero are given for each of four categories: fetal breathing, body movement, fetal tone, and sufficiency of amniotic fluid.
Although Mrs. Munoz' testimony gave no particular reason for the March 3, 2006, BPP, it is apparent from the medical records that her physician ordered the March 3, 2006, BPP due to lack of, or decrease in, fetal movement. Mrs. Munoz also provided that same reason to Dr. Duchowny as part of his independent medical examination of Giovanni.
For the first BPP on March 3, 2006, Giovanni scored six out of eight points, with no points for fetal breathing.
Fetal breathing movements (FBM) are a reflection of adequate oxygenation to the baby's brain. However, they are intermittent, and fetal breathing movements sometimes are not observed within the 30-minute window for a BPP, so repeating such a test on sequential days was appropriate.
On March 4, 2006, the BPP was repeated, and Giovanni again scored 6 of 8, with no points for fetal breathing. However, a non-stress test (NST) also was done the same day, and the NST showed that Giovanni was "reactive," which information was somewhat reassuring.
On March 5, 2006, the BPP was repeated a third time, and Giovanni scored eight out of eight. On the second NST, which was also done that date, Giovanni was again found to be "reactive." All three physicians who testified believed something had happened to Giovanni in utero at or about March 3- 5, 2006. Drs. Duchowny and Willis also opined that the oxygen deprivation that impaired Giovanni's brain probably occurred outside the statutory time frame for compensability but within the 24 hours before his mother presented to the hospital two weeks later on March 17, 2006. (See Finding of Fact 38.)
No assessment of fetal brain injury was undertaken March 3-5, 2006. Classically, assessments of brain injury are not performed until after birth.
On March 15, 2006, another BPP and another NST were performed, and Giovanni scored 8/8 on the BPP and had a "reactive" NST. Apparently, there was no absence of fetal breathing or oxygen deprivation at that point in time, but again, there also was no assessment of possible brain injury to Giovanni that may already have occurred.
Mrs. Munoz experienced no further pregnancy problems until two days later, on the morning of March 17, 2006. That morning, she arose and dressed for work, noting that there was no fetal movement and that Giovanni felt "hard." At hearing, she described this sensation as, "When they [a fetus/baby] are moving there is a softer feeling in the belly, and it just felt as if it was hard, like it was a ball, very stiff." Mrs. Munoz made similar statements to Dr. Duchowny, as part of his examination of Giovanni.
Because Giovanni did not move from the time Mrs. Munoz awakened the morning of March 17, 2006, until 2:00 p.m., that afternoon, she phoned her obstetrician. Dr. Lyra told her to go home, rest, eat, and drink something sugary "to get things going." Mrs. Munoz did as she was told.
Mrs. Munoz utilized a fetal Doppler heart monitor two or three times on the morning of March 17, 2006, before calling her physician, and also used it in the afternoon, after talking to her physician. This type of fetal heart monitor measures the
fetus/baby's heart beat, but there is no evidence that it measures oxygen to the baby's brain.
There was still no fetal movement by late evening on March 17, 2006, so about 10:00 p.m., Mrs. Munoz again phoned her obstetrician, who told her to go to the hospital, which she did.
The hospital records show that on March 18, 2006, Mrs.
Munoz was admitted to Memorial Regional Hospital on an emergency basis for a labor check, decreased fetal movement (fetal distress), and probable caesarean section.
Mrs. Munoz did not testify to the time she awakened on the morning of March 17, 2006, except that it was "morning." Therefore, even if she had awakened as late as 11:59 a.m., that day, which is very unlikely, and allowing for delays in admission between the time she testified she arrived at the hospital on March 17, 2006, and the March 18, 2006, date on her admission documents, by the time she checked into the hospital, there had been no fetal movement for a minimum of 10 hours and probably for a much longer period of time.
At no time did medical personnel check the degree of dilation of Mrs. Munoz' cervix, or chart that she was in labor. Dr. Duchowny testified that he had never heard of an absence of fetal movement being indicative of the onset of labor.
At 2:28 a.m., March 18, 2006, fetal heart rate (FHR) decelerations were recorded. Decelerations show that the fetus was in distress.
Mrs. Munoz testified that in the hospital, she had some weak contractions, lasting a half minute, about nine minutes apart, but the BPP and hospital records reflect the following activity: At 2:55 a.m. March 18, 2006, a contraction of mild intensity lasting 40-50 seconds was recorded. At
3:00 a.m., accelerations were absent, and there were intermittent late decelerations recorded. At 3:15 a.m., Giovanni scored only two out of eight points, with zero points for fetal breathing, zero points for body movement, zero points for fetal tone, and two points for sufficiency of amniotic fluid. There also was an abnormally high resistance to umbilical cord artery flow in the placenta and a NST showed that Giovanni was non-reactive. At 3:30 a.m., left and right reflexes were absent, contraction intensity was irregular, and accelerations and decelerations were absent. Contractions of 20-40 seconds with irregular intensity were recorded with absent accelerations and variable decelerations. This recorded activity is not sufficient to meet the definition of "labor."4
Dr. Lyra was contacted by phone, and she ordered an immediate cesarean section. Giovanni Munoz was delivered by emergency cesarean section at approximately 4:04 a.m., on
March 18, 2006. The membranes were ruptured at the time of delivery. There was no placental detachment.
Drs. Duchowny and Willis were of the opinion that Mrs. Munoz never went into labor, and Dr. Dubrovsky deferred on this issue.
Upon delivery, Giovanni's skin was peeling and he was not breathing on his own. However, he only required suction of his nose and mouth with a bulb syringe, mask bag ventilation for
60 seconds, and vigorous stimulation. As Giovanni responded to mask oxygen and vigorous stimulation, his color and heart rate improved and his Apgar scores reflected that improvement.5
Giovanni was not intubated or placed on a ventilator due to lack of oxygen. According to Dr. Willis, if a baby does not have chemical pneumonia or chemical pneumonitis, then not intubating would not have any effect on oxygen consumption or oxygenation. Giovanni did not evidence either of these problems, which most often arise from meconium6 aspiration syndrome (MAS).
Giovanni's Apgar scores were taken at one minute, five minutes and ten minutes, and recorded as four, six and eight, respectively.
An Apgar score of seven or below is considered "low," but according to Dr. Duchowny, an Apgar score at one minute is more a reflection of the trauma of delivery itself, rather than
an indicator of an infant's well-being at the moment of delivery or whether there is an ongoing hypoxic event. Dr. Willis stated that Giovanni's one-minute Apgar score signaled how much resuscitation was needed.
According to Dr. Duchowny, Giovanni's rising Apgar scores in so short a period "reflected a reasonable, moderately good physiologic adjustment to the extra-uterine environment," and were not Apgar scores associated with a severe hypoxic ischemic insult acquired during labor and delivery. If Giovanni had been asphyxiated during labor and delivery, Dr. Duchowny would have expected his Apgar scores to be considerably lower than they were. Dr. Willis also testified that Giovanni's rapid response to bulb syringe suctioning and one minute of mask bag resuscitation was better than normally seen if a baby has suffered an acute hypoxic event.
At birth, there was meconium in the amniotic sac, and Giovanni's fingernails were meconium-stained.
Meconium in the amniotic fluid does not signal a hypoxic event. If meconium gets into a baby's posterior pharynx just below the vocal cords, then intubation and suctioning can be used to remove it, but if meconium gets into the lungs, intubation or suctioning will not solve the problem, and the baby can suffer meconium aspiration syndrome (MAS), leading to chemical pneumonia or chemical pneumonitis, and finally, brain
injury by loss of oxygen. Although Giovanni had sufficient respiratory distress to require 60 seconds of mask bag oxygenation, there is no persuasive evidence that he suffered chemical pneumonia, chemical pneumonitis, or MAS.
Dr. Dubrovsky testified that she could not state one way or another, or with full clarity, when the brain injury to Giovanni occurred.7
A baby's fingernails will not be stained with meconium just because there is meconium in the amniotic fluid shortly before delivery. Therefore, Giovanni's stained fingernails demonstrated that a hypoxic event had occurred remote in time from his delivery. Dr. Willis testified that when a newborn's fingernails become meconium stained, it usually means that the meconium was present for at least four to six hours prior to birth, and that herein, the hypoxic event must have occurred at some point prior to Giovanni's March 18, 2006, delivery. In his opinion, Giovanni's situation "would be consistent with having a hypoxic insult at some time remote from delivery." Moreover, Dr. Duchowny found Giovanni's nucleated red blood cells also to be indicative of a hypoxic event more than 24 hours, and probably much longer, prior to any labor. He further testified that none of Giovanni's widespread systems were compromised as would be expected of a hypoxic event during labor or delivery.
There was no systemic compromise, renal failure, cardiovascular failure or liver enzyme abnormalities noted in Giovanni's medical records.
However, Giovanni's umbilical cord gas had an abnormal pH of 6.97 and a BE of "minus 13" [-13]. He had prenatal depression, mild hypoglycemia (low blood sugar), thrombocytopenia (decreased platelets) and jaundice.
Giovanni was immediately removed to the Neonatal Intensive Care Unit (NICU) for five days until he and Mrs. Munoz were simultaneously released to go home.
Mrs. Munoz's hospital records from this point on reflect that she was recovering from the cesarean section and that Giovanni had problems breast feeding.
None of the expert medical physicians who testified addressed what Giovanni's being in NICU might mean in relation to oxygen deprivation, if any. However, according to the records, Giovanni's oxygen problems were resolved on March 18, 2006 (presumably by the suction and mask bag ventilation), and according to Dr. Duchowny, Giovanni's postnatal course was not complicated in the same way as that of a baby with oxygen deprivation during the statutory period (labor, delivery, or resuscitation in the immediate postdelivery period in a hospital) would be.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this cause. §§ 766.301-316, Fla. Stat.
The Plan was established by the Legislature "for the purpose of providing compensation, irrespective of fault, for birth-related neurological injury claims" relating to births occurring on or after January 1, 1989. § 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 DOAH within five years of the child’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(s), 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 on 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. 766.302(2)
.
Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery 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 postdelivery period in a hospital.
§ 766.309(1), Fla. Stat. An award may be sustained only if the Administrative Law Judge concludes 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.
"Birth-related neurological injury" is defined by Section 766.302(2), Florida Statutes, to mean:
. . . injury to the brain or spinal cord of a live infant weighing at least 2,500 grams
. . . at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate 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.
Normally, as the claimants, Petitioners bear the burden of proof to demonstrate entitlement to compensation under the Plan. See § 766.309(1)(a), Fla. Stat.; see also Balino v. Dep't of Health and Rehabilitative Servs., 348 So. 2d 349, 350 (Fla. 1st DCA 1977)("[T]he burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal.").
However, herein, Petitioners have asserted the statutory presumption at Section 766.302 (1)(a), Florida Statutes which reads, in pertinent part, as follows:
If the claimant has demonstrated, to the satisfaction of the administrative law judge, that the infant has sustained a brain
. . . injury caused by oxygen deprivation .
. . 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. 766.302(2).
The parties have stipulated to the three elements required to establish the presumption: the infant has sustained a brain injury; the injury was caused by oxygen deprivation; and the infant was thereby rendered permanently and substantially mentally and physically impaired.
Petitioners were entitled to the statutory presumption, and it was up to Respondent NICA to refute that presumption.
However, it is also determined that Respondent has met its burden. See Gulle v. Boggs, 174 So. 2d 26, 29 (Fla. 1965), citing with approval Tyrrell v. Prudential Ins. Co., 109 Vt. 6,
192 A. 184, 115 A.L.R. 392, wherein it was stated:
Presumptions disappear when facts appear; and facts are deemed to appear when evidence is introduced from which they may be found.
Petitioners put forth two theories they claim arise from the language of Sections 766.302(2) and 766.309(1)(a).
Petitioners asserted that even if the initial insult to Giovanni's brain occurred on March 3-5, on March 15, or early on March 17, 2006, when he became "hard like a ball," or occurred on all three dates, no one can determine at what point the oxygen deprivation became sufficient to render Giovanni
permanently and substantially mentally and physically impaired. However, Petitioners only presented a scenario in which a brain injury occurring before the statutory period (the statutory period being during the course of labor, delivery or resuscitation in the immediate postdelivery period in a hospital) could not be diagnosed until after birth. Such a scenario does not equate with proof that the brain injury, in fact, occurred during the course of labor, delivery, or resuscitation in the immediate postdelivery period. Whether there were cumulative intermittent or repetitive low-level hypoxic events that could not be diagnosed until after birth or there was one hypoxic event that could not be diagnosed until after birth is immaterial if the hypoxic event(s), as here, clearly occurred outside the statutory time period of "in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital."
Petitioners also put forth a theory that the use of bulb suction and 60 seconds' mask bag ventilation instead of intubation during resuscitation in the immediate postdelivery period was the cause of Giovanni's brain injury. In response, Respondent presented affirmative expert evidence that, more than likely, the injury to Giovanni's brain did not occur on
March 18, 2006, "in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a
hospital," but rather, that it occurred at some time prior to Mrs. Munoz appearing at the hospital on the night of March 17,
2006.
When, as here, the medical condition is not readily
observable, issues of causation are essentially medical questions, requiring expert medical evidence. See, e.g., Vero
Beach Care Ctr v. Ricks, 467 So. 2d 262, 264 (Fla. 1st DCA 1985) ("[L]ay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observable."; Ackley v. Gen. Parcel Serv., 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The determination of the cause of a non- observable medical condition such as a psychiatric illness, is essentially a medical question."); Wausau Ins. Co. v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obligated to present expert medical evidence establishing that causal connection.").
Respondent affirmatively presented the opinions of Doctors Willis and Duchowny, experts respectively in maternal- fetal medicine/obstetrics and gynecology, and in pediatric neurology, who were able to testify within reasonable medical certainty as to what happened to Giovanni. Both these medical experts testified that Giovanni's injury most likely preceded
labor and delivery and was therefore not "birth-related" as contemplated by the statute to be applied. Dr. Dubrovsky's testimony was never directly contrary to Drs. Willis and Duchowny's and where she did differ from the other two physicians, Dr. Dubrovsky's opinions were speculative or indecisive or she deferred to other medical specialties.
Consequently, although no physician could be sure precisely when Giovanni's brain suffered hypoxic insult and/or precisely when that insult resulted in permanent and substantial mental and physical impairment, it must be concluded from the medical evidence and testimony that the cause of Giovanni's impairment was most likely a brain injury that took place before labor, delivery or resuscitation in the immediate postdelivery period, as opposed to a "birth-related neurological injury".
See 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.").
"According to the plain meaning of the words written, the oxygen deprivation or mechanical injury must take place during labor and delivery, or immediately afterward [to be compensable]." Nagy v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 813 So. 2d 155, 160 (Fla. 4th DCA 2002).
Here, even with the statutory presumption, the proof failed to demonstrate that Giovanni suffered a birth-related neurological injury. Consequently, given the provisions of
§ 766.302(2), Florida Statutes, Giovanni does not qualify for coverage under the Plan. Humana of Fla., 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 liability, it should be strictly construed to include only those subjects clearly embraced within its terms."), approved, Fla. Birth-
Related Neurological Injury Comp. Ass'n 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 . . . she . . . [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.
Because the injury herein has been determined to be noncompensable, it will not be necessary to schedule a hearing regarding benefits.
John Munoz, on behalf of and as parents and natural guardians of Giovanni Munoz, a minor, is dismissed with prejudice.
DONE AND ORDERED this 8th day of October, 2010, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2010.
1/ On July 13, 2009, Violetta Lyra, M.D. was served, and on January 7, 2010, Memorial Regional Hospital was served. Neither moved to intervene herein.
2/ Joint Exhibit 1 is the composite medical records of Nealy Munoz and Giovanni Munoz arising from the maternity of Nealy Munoz and the birth of Giovanni Munoz, consisting of 585 Bates' stamped pages. Joint Exhibit 2 is the medical record and opinion to NICA of Michael Duchowny, M.D., dated November 11, 2009. Joint Exhibit 3 is a medical report and letter to NICA from Donald C. Willis, M.D. relating to Giovanni Munoz, dated
August 25, 2009. Joint Exhibit 4 is the transcript of
Dr. Duchowny's June 17, 2010 deposition. Joint Exhibit 5 is the transcript of Dr. Willis' May 20, 2010 deposition. Petitioners' Exhibit 1 is a transcript of Dr. Tatyana Dubrovsky's July 23, 2010 deposition. Petitioners' Exhibit 2 is nine timeline pages from March 3-5, 2006. Petitioners' Exhibit 3 is two pages of obstetric ultrasound reports and BPP. Respondent was allowed 10 days post-hearing in which to object to Petitioners' Exhibits 2 and 3, and timely filed a letter of "no objection". Therefore, no post-hearing order on objections to exhibits was entered.
3/ Nonetheless, by agreement of the parties, each party presented evidence on, and each party has addressed in their respective Proposed Final Orders, the issue of whether or not Mrs. Munoz ever commenced labor. (TR-38-39, 67-68, 75, and both proposed final orders.)
4/ "Labor" is commonly understood to mean the onset of regular contractions that result in cervical changes. See "labor," Dorland's Illustrated Medical Dictionary, 28th Edition, 1994. ("The first [stage of labor] (the stage of cervical dilation) begins with the onset of regular uterine contractions and ends when the os is completely dilated.")
5/ Apgar scores are a numerical expression of the condition of a newborn infant, and reflect the sum of 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 zero through a maximum score of two. See Dorland's Illustrated Medical Dictionary, 28th Edition, 1994.
6/ "Meconium" is a dark green mucilaginous material in the intestine of the full-term fetus, being a mixture of the secretions of the liver, intestinal glands, and some amniotic fluid. See Dorland's Illustrated Medical Dictionary, 28th Edition, 1994.
7/ Dr. Dubrovsky conjectured that there could be repetitive individual insults or a single insult of accumulating intensity to the brain before, and possibly continuing through, labor, delivery, and resuscitation in the immediate postdelivery period in a hospital. However, here, Mrs. Munoz never went into labor, and this portion of Dr. Dubrovsky's testimony was not presented as being within reasonable medical probability or certainty.
(Certified Mail No. 7010 0290 0001 2350 0873)
Martin P. McDonnell, Esquire Marsha E. Rule, Esquire Rutledge, Ecenia & Purnell, P.A. Post Office Box 551 Tallahassee, Florida 32302
(Certified Mail No. 7010 0290 0001 2350 0880)
David T. Aronberg, Esquire Leonard P. Haberman, Esquire
Law Offices of Aronberg & Aronberg 2160 West Atlantic Avenue, Second Floor Delray Beach, Florida 33445
(Certified Mail No. 7010 0290 0001 2350 0927)
(Certified Mail No. 7010 0290 0001 2350 0934)
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.
