Findings Of Fact The Respondent, Steven M. Van Ore, M.D. is a medical doctor holding license number ME0018621. The Respondent graduated from the University of Miami Medical School in 1970 and received his license to practice medicine in Florida in 1971. He served his internship and residency in internal medicine at Orange Memorial Hospital in Orlando, Florida, and became a diplomate of the American Board of Family Practice in 1977, certified in that area through 1990. The Respondent is currently engaged in the private practice of family medicine in Maitland Florida. Since 1976 he has held various academic posts, received a number of professional awards and has actively served in various medical societies and on various medical committees. The Petitioner is an agency of the State of Florida charged with regulating the licensure of physicians and enforcing the medical practice standards embodied in Chapter 458, Florida Statutes, the "medical practice act." In four separate counts, the Petitioner accuses Respondent of failing to prescribe certain Schedule II controlled substances to four different patients for medically justifiable purposes and charges him with prescribing them inappropriately or in excessive quantities. The substances involved are Mepergan Fortis, Demerol, Dilaudid, Percodan, Percocet, Tylox, Dolophine and Methadone. There is no question that the four patients involved in these counts suffered chronic, moderate to severe pain, for which they were treated by the Respondent. The Physician's Desk Reference, accepted by the parties as an authoritative indicator of appropriate drug usage including types and amounts for given diseases or conditions, places no limit on the amount of prescription of Schedule II controlled substances in question for patients suffering from chronic moderate o severe pain. Drs. William Story and Brouillett, accepted as expert witnesses, testifying on behalf of the Respondent in the above- mentioned areas of medical practice, based their expert testimony upon a complete review of the treatment records and charts of the four patients involved herein and in addition, Dr. Story had some firsthand knowledge of the patients' medical histories, conditions, problems and progress. Dr. Story also reviewed the hospital charts at the hospitals where each patient was sent from time to time when his review of Dr. Van Ore's own records revealed those hospitalizations. Dr. Handwerker, testifying as an expert witness for the Petitioner, did not review the hospital charts of these patients, nor familiarize himself with the necessity for their hospitalizations as that relates to the chronic severe nature of their pain and other ailments and the attendant appropriateness of the drugs prescribed for these patients by the Respondent. It was thus established that patient Josephine Inbornone was followed and treated by Dr. Van Ore from February 16, 1979 to December 9, 1980. During that time he saw her 20 times in the hospital and 20 times in his office. He also sought and obtained consultation with specialists Dr. Biggerstaff and Dr. Lett who saw her on a number of occasions, for a total of 28 office visits between the three of them. The patient suffers from a severe, chronic, low-back pain and chronic sciatica. During Respondent's "work-up" of the patient, she was tried on a variety of medications including Sinnequan and Tylenol 3, which she could not take because of allergies. She was allergic also to Percodan, Codeine, Darvon and Talwin. Her pain and discomfort could not be controlled with non-steroidal anti-inflammatory drugs. A trans-neuro stimulator was used, to no avail. Her severe back pain resulted in six different hospitalizations while she was under the care of Dr. Van Ore. The first hospitalization was in February, 1979 and she was later admitted on June 25, 1979 with acute diverticulitis. There was some evidence at this time that she also suffered from "anxiety neurosis." On June 3, 1980 she suffered a severe lumbrosacral strain from a fall on a wet floor in a store, which required hospitalization. She was again hospitalized on September 12, 1980 complaining of persistent abdominal pain and was hospitalized later that year with chronic, severe back pain. The patient was seen by Dr. Urbach on her sixth hospital admission for a psychiatric evaluation. By that time it was obvious to the Respondent that the patient had developed a drug problem because of her severe, chronic and disabling back pain which required chronic administration of narcotic drugs. Her condition was aggravated by the fact that she was markedly overweight (which strained her back) and because of her drug allergies which prevented her taking milder drugs. As part of her evaluation in the course of her various hospitalizations, she had a CT scan of the spine, extensive x- rays, barium enemas, upper GI x-rays and other tests designed to evaluate the nature and cause of her chronic, severe back pain as well as her recurrent abdominal pain. No major pathologic condition was found and she was felt to have an anxiety neurosis by the Respondent and Dr. Urbach. As early as February 23, 1979, upon her admission to Winter Park Hospital, the Respondent noted that she had a chronic problem with severe low back pain that seemed resistant to every drug for control of pain, including Vistiril, Percodan, Codeine, Darvon, Phenobarbital and Indocin. The Respondent further noted her allergic reaction to many of those drugs and, as early as that date, also noted that they were going to attempt to eliminate some of the medication she was taking because of concern about possible drug addiction. The Respondent's and other physician's inability to control her pain is evident by her multiple hospitalizations because of the debilitating nature of her pain which could not be alleviated without Schedule II narcotic type drugs. In short, the patient was clearly a difficult patient who had a psychiatric overlay which was noted by both Drs. Van Ore and Urbach. She suffered from severe low back pain as well as abdominal pain. Numerous attempts were made to discern the cause of these multiple admissions which were felt to be severe and functional in origin. Unquestionably her low back pain was aggravated by her multiple falls which she had had in the past, as well as by her chronic obesity. It is noteworthy that the Respondent involved consultants who documented the patient's severe back pain requiring the drug usage and that the Respondent noted early in his experience with the patient, that the drug usage should be tapered off as much as possible. It is also noteworthy that minor narcotic drugs such as Codeine, as well as non-steroidal, anti-inflammatory drugs, were tried first and were either unsuccessful or caused an allergic reaction. The multiple admissions to the hospital show a concerted effort to fully evaluate the patient's needs, a thorough attempt to find the cause for her severe pain and a means to alleviate it permanently. Nothing of a curative nature could be found so that she was left with a residual pain which ultimately led to a marked physical impairment. Narcotic Schedule II drugs were determined after numerous tests and evaluations and hospitalizations, to be the only means by which her pain could be alleviated. This was done with the open recognition, reflected in the Respondent's notes, that the chronic use of narcotic drugs could lead to both dependency as well as to drug tolerance, which would result in the need for heavier doses of the same drugs. With this in mind, the Respondent made an attempt to wean the patient away from Schedule II drugs as much as possible, and the patient ultimately went to another clinic specializing in the control of chronic, severe pain. Dr. Story opined after thoroughly reviewing the Respondent's charts and notes for this patient, as well as his hospital records related to her, that there was no evidence of malpractice or misuse of drugs. The need for narcotic drugs in this case was well documented, as were the attempts by the Respondent to try to wean her from narcotic drugs to the extent possible when balanced with the doctor's felt obligation to try to alleviate her pain with whatever means proved successful. In fact the Respondent attempted to use less potent drugs to the extent possible and only resorted to Schedule II narcotic drugs when the lesser drug proved either ineffectual or allergic. The Respondent's concern and attempts to get at the root cause of her pain is demonstrated by his reference of her to a number of other physicians, orthopedic surgeons, a psychiatrist as well as family far physicians, all of whom ultimately agreed that the pain seemed to be legitimate in nature and a source of great discomfort to the patient. Although Dr. Story, the Respondent and the other physicians who saw the patient were concerned about the narcotic drug dependency, Dr. Story opined that there was no evidence of misuse of drugs in this case in his professional opinion. The patient will always be a difficult patient for whomever takes care of her because of her chronic low back pain and the chronic anxiety overlay which often accompanies chronic, severe pain. He found the Respondent provided competent care for the patient with concomitant genuine concern for her narcotics requirement and her long term need for narcotic drugs. Robert Marsh began seeing Dr. Van Ore in 1981 for severe back pain caused by his having fallen from a scaffold on a construction site. At the behest of the Respondent, the patient was seen by several orthopedic and neurological specialists and was eventually diagnosed to have defects of the lower lumbar spine after a myelogram was performed. His back pain at this time was severe and he required narcotic drugs (Schedule II) for the relief of that pain. The patient was first seen on May 20, 1981 and was given Tylox and Robaxin. He was then referred to Dr. Martin Brown for evaluation. His back continued to be severely painful, ultimately requiring prescription of Dilaudid over the period of the next few months. At the same time he was treated conservatively, which is the usual course of practice in treatment for low back pain. He continued to suffer severe back pain, radiating into his extremities, however, requiring Dilaudid and Mepergan Fortis for relief. During the course of this conservative treatment and prescribing of narcotic medications, the Respondent expressed concern in his notes on August 27, 1981, that the patient might be developing a drug abuse potential. The plan thus was to commit him for hospitalization at that point. Concern was again expressed by the Respondent on October 7, 1981, that the chronic low back pain was requiring narcotic usage and that the patient would need weaning from the drug and perhaps a trial usage of Methadone. On October 20, 1981, the Respondent's notes reflect that he felt that the patient was addicted to Dilaudid, which is a common problem when narcotic drugs must be used for several months at a time for pain. Fortunately, the patient in early 1982, had surgery, a laminectomy, which almost totally relieved his back pain. The Respondent then successfully weaned him away from narcotic drugs. The patient's back pain had been severe and at times excruciating. CT scans and back x-rays, as well as myleogram studies, revealed a rupture of a disc in the lumbar area. These tests were performed by specialists to whom the Respondent had referred the patient. The pain had been present for approximately one and a half years by the time the patient first saw Dr. Van Ore. A complete evaluation was done by Van Ore as well as by the orthopedic specialist, Dr. Billotta, and a radiologist, to whom Van Ore referred the patient. It is noteworthy that a complete evaluation was done and consultation was obtained early in the patient's course of treatment with the Respondent, from practitioners in the above specialities. There is a significant danger, recognized in Respondent's own notes, of narcotic addiction through long term use of narcotic drugs to relieve pain, but these medications were the only thing that provided relief for the patient until ultimate evaluations and examinations revealed the necessity for surgery which finally got at the cause of his pain and alleviated it. The Respondent then followed up with the patient and successfully weaned him from his dependence on narcotics. Dr. Story opined that the patient was given the usual and appropriate care and treatment by the Respondent, who diagnosed his injury, tried conservative medical treatment at first, and employed the use of narcotic drugs appropriately since that was the only thing which proved to alleviate the excruciating pain the patient was suffering. Dr. Story opined that the Respondent's practice with regard to this patient was well within the limits of acceptable practice as recognized by similar physicians in the community, under similar conditions and circumstances. Mrs. Eleanor Rooker was also seen by Dr. Story as a patient for cardiac problems of a rather severe nature. She is a 55-year old female with a long history of chest pain and back pain. She had a colostomy due to ruptured diverticulun and has had recurrent admissions to the hospital for chest pain. Ultimately she was diagnosed as having arteriosclerotic heart disease, with multiple coronary lesions. Chronic angina is a major problem for her. The patient was also admitted on February 7, 1983, for severe low back pain with nerve root irritation as well as severe sciatica. A myleogram at that time indicated that there nay be a disc problem in her back. A thermogram of the back and lower extremities showed some signs of degenerative nerve conduction because of nerve root compression. The patient was obviously suffering from severe back pain and was treated by the Respondent with conservative bed rest, muscle relaxers and analgesic agents. Over the years the Respondent saw her, Eleanor Rooker had multiple admissions to hospitals for painful heart conditions involving angina, secondary to arteriosclerotic disease and in November 1980, for congestive heart failure. She has a chronic heart condition which ultimately required bypass surgery because of her severe coronary artery disease. Also, at least as early as her hospital admission of February 6, 1981, the patient developed severe tension headaches which caused severe, recurrent pain. The patient required large doses of medication to control her painful headaches and Dr. Mueller, a psychiatrist called in to see her concerning her headaches, found that the patient was dependent upon Darvocet which she was taking as a means to control the severe, chronic, headache pain. Thus, between the years 1980 and March, 1984, the patient was in the hospital numerous times and was referred by the Respondent to numerous specialists to try to get at the cause of her back pain as well as her chronic headache pain, wholly aside from the hospitalizations and treatment for her heart problems. During this time the Respondent and other specialists, such as Drs. Tatum and Brown, a psychiatrist and a neurologist, respectively, (who saw the patient concerning her severe headaches) agrcee that she had chronic, severe pain and a problem of narcotic dependence involving Fiorinal, Tylenol 3 and Darvocet. At least as early as October 3, 1981, when she was admitted to the hospital, Dr. Van Ore felt she was suffering from drug dependency and he made an effort to get her weaned away from narcotic drugs at that time. The patient obviously has very real, legitimate illnesses and conditions which cause her chronic, severe pain. All of these have combined to give the patient a great deal of distress and discomfort and has created a frequent need for narcotic drugs since milder drugs have not controlled her discomfort. Her legitimate medical illnesses are coupled with a psychiatric anxiety overlay because of the chronic, long-standing nature of her pain. Her illnesses are severe in nature, are very disabling and require large dosages of multiple narcotic medications. In time the patient did become dependent on Darvocet and required fairly large doses because chronic narcotic drug usage results in the development of a drug tolerance in many patients, requiring larger doses, progressively, to maintain analgesic effectiveness. In short, the patient suffered from a number of legitimate medical illnesses and a large number of sub-specialty consultants were asked to evaluate her multiple areas of pain, including Dr. Nosaro and Dr. Story himself for cardiac evaluation, Dr. Uricchio and Dr. Murray for musculoskeletal and lumbar pain evaluation, Drs. Modd, Brown and Dunaway for evaluation of severe headaches and lumbar pain; psychiatric consultation by Dr. Quinones and Dr. Paskiwitz. It was thus established that Dr. Van Ore made strenuous efforts to determine the cause of the patient's different medical problems, found no easy solutions for them and when confronted with the chronic pain the patient suffered, felt he had no choice but to prescribe narcotic drugs in increasingly large amounts as her tolerance increased. The doctor made concomitant efforts to wean her away from her narcotic drugs whenever possible. In Dr. Story's expert opinion, the Respondent applied diligent efforts to diagnose his patient's problems as well as to alleviate her suffering. Dr. Story feels that the Darvocet dependency that eventually evolved from her illnesses was an expected and likely complication because of the long-term use of narcotic pain relief, which is the only kind of relief that could be afforded the patient. In summary, Dr. Story established that good medical care was employed by the Respondent and the referred consultants who evaluated and treated this lady and there was no evidence of any misuse of narcotic drugs on the part of the Respondent or any of the consulting physicians, but rather the medical care afforded her met all professional standards. The remaining patient to whom the charges in the Administrative Complaint relate is Arthur Van Vlack. Mr. Van Vlack has suffered extremely painful migraine headaches over a period of many years. Dr. Van Ore has followed him as a patient for approximately ten years. The Respondent had the patient completely evaluated for neurological condition with regard to his migraine headaches, including admitting him to the hospital. The patient had seen many physicians for this problem. His headaches have not responded to usual medical treatment for migraine headache and he required, over the years, progressively larger doses of narcotic drugs. He has used at various times, Demerol, Percodan and Percocet, since lesser strength drugs have not controlled his severe pain. Additionally, the patient has had problems involving a duodenal ulcer, vagotomy and pyloroplasty in August of 1980. He suffers pain in the low back caused by spina bifida occulta in the area of the 5th lumbar vertebra. The only control for the patient's severe pain, which is chronic and recurrent, has been narcotic drugs. When the severe headaches strike, the patient loses his ability to earn a living and to conduct a normal life, and sometimes has to be bedridden for several days in extreme pain. Dr. Van Ore did a thorough evaluation of the patient, including CT scans and cervical myelograms, as well as lumbar myelograms in an attempt to find out if there were any correctable causes for the patient's pain. Neurological consultations were obtained, including a neurology consultation with Dr. Peritz Scheinberg, of the Department of Neurology at the University of Miami School of Medicine. The patient's charts uniformity indicate that for every office visit that the headaches are still persisting and that only Demerol and Percodan seem to benefit the pain. At times Talwin was tried, but to no avail. After a complete evaluation of the patient's headaches with every conceivable neurological test as well as consultation with Dr. Scheinberg at the University of Miami, no correctable cause for the man's pain was found. None of the consultants to whom the patient was referred by the Respondent, either neurologic or psychiatric, found that the headaches were other than legitimate, severe, refractory migraine headaches. Both the Respondent and the consultants to whom the patient was referred understood that the patient had a narcotic addiction problem as a result of years of narcotic usage since those were the only medications that would control his severe, disabling headaches. This kind of addiction, as well as the tolerance to lighter doses of medication normally occurs when narcotics are used over such an extended period of time. It is fully expected and largely unavoidable when treating severe, chronic disabling pain for which there is no ascertainable medical solution. Dr. Van Ore understood early in his following of this patient that the addiction was a distinct danger and sought a number of times to wean the patient off medications and to compromise and negotiate and try to persuade him to switch his medications from time to time in an attempt to wean him from narcotic drugs. By May of 1981 the Respondent was attempting to wean him from narcotic drugs by putting him on a schedule of progessively tapering doses. However, whenever the medications were decreased the headaches again became disabling to the patient. It was at approximately this time that the consultation with Dr. Scheinberg was obtained. It being a pharmacologic fact that as patients take narcotic drugs for relief of legitimate illnesses, for which there is no cure, with addiction and drug tolerance becoming a common problem, it is appropriate and correct practice for a family physician at this point, when confronted with such patients, to obtain expert, sub-specialty consultation with a variety of physicians. The Respondent did this in this case and in the others. A number of neurologists evaluated the patient and concluded as the Respondent had, that he suffered from severe, intractable migraine. Finally, the Respondent attempted to use psychiatric care in order to help wean the patient off the drugs, to little avail. Ultimately the Respondent admitted him for detoxification at Winter Park Hospital. Dr. Story opined, after thoroughly reviewing the patient's history and charts, that he saw nothing amiss about the quality of medical care and professional practice rendered the patient by the Respondent. He found the requirement for narcotic drugs to be understandable under the patient's circumstances, which admittedly aroused concern by the Respondent and the other physicians who followed him, for the patient's possible drug addiction due to long-term narcotic use. Dr. Story shared the concern by all involved physicians regarding the large amounts of medication that were required to control his pain, and points out that this is due to a drug tolerance developed by the patient. As a counter to this the Respondent made repeated attempts to wean him off narcotic drugs and toward the end of his relationship with the patient, he was approaching the point of weaning him off narcotic medication entirely. Dr. Story, in short, does not feel that medical practice standards employed by similar physicians under similar conditions and circumstances, involving a difficult patient with chronic severe pain, have been departed from. In summary, Dr. Story found, as did Dr. Brouillet, who largely corroborated the findings of Dr. Story, that the drugs employed with all four patients did not involve any drug misuse. Rather, the care and treatment provided these patients reflected a high level of skill and the Respondent tried in all ways known to him to evaluate the root cause of the patient's pain problems, including referral to appropriate specialists for all relevant evaluative techniques. Both Respondent's experts found no departure from appropriate and correct rendering of quality medical care to these patients. They were all very complex, difficult patients with chronic illnesses characterized by severe, chronic pain with, in some cases, psychological overlays, which is often the case with severe, recurrent pain. Thus, Drs. Story and Brouillet opined that the use of these drugs referenced in the Administrative Complaint, to relieve pain in these patients was legitimate as to appropriateness and amounts. Drs. Story and Brouillet, based their testimony and opinions upon a complete review of the treatment records of all four patients, and Dr. Story additionally reviewed the hospital charts at the hospitals of each patient. Dr. Handwerker, testifying for the Petitioner, did not have the benefit of the hospital records in arriving at his opinion. Although Dr. Handwerker opined that it is inappropriate to relieve the patient's chronic severe pain with recurrent use of Schedule II controlled substances, Dr. Story established that it is also a physician's duty and obligation to try to relieve a patient's pain, including the use of Schedule II controlled substances if they are used appropriately and wisely and within appropriate professional practice standards. A medically justifiable purpose for treating a patient consists of affording treatment in a manner designed to relieve disease or distress or pain by whatever tests, diagnoses, evaluations or treatments can be performed in an acceptable manner within the confines of the professional medical practice standards of the community. Acceptable treatment is predicated on scientifically attempting to identify the pathology involved causing the distress, the anatomy and physiology affected and use of all evaluation and diagnostic tools in an effort to arrive at an opinion about what is wrong with the patient and what treatment is appropriate. It is medically justifiable for treatment to be performed solely for the purpose of relieving chronic moderate to severe pain in a patient, especially if all attempts are being made to alleviate the cause of that pain. The best person to make an informed interpretation concerning what is a medically justifiable treatment for a given patient is the treating physician himself at the time the treatment is applied. All three expert witnesses agreed that reasonable physicians can differ in the way they treat patients with similar conditions, and the Petitioner's expert, Dr. Handwerker, conceded that there is no single, established method of treatment for the conditions suffered by the patients named in the Administrative Complaint. Chronic pain patients are sometimes the most difficult to care for since pain is not a directly measurable disability. Some patients require a greater amount of pain medication to relieve a similar degree of pain than do other patients. In any event, the Schedule II controlled substances prescribed by Respondent are approved by the Federal Food and Drug Administration and the medical community for treatment of chronic, moderate to severe pain and are indicated as treatment for such in the Physician's Desk Reference relied upon as authoritative by all three experts in this case. It is appropriate and ethical to relieve a patient's pain with these drugs, even though the patient may have developed a tolerance or addiction to those substances. There is a concomitant obligation imposed by appropriate standards of medical practice to attempt to avoid or alleviate any addiction or tolerance that develops through efforts to wean the patients gradually off the narcotic substances, which Respondent consistently attempted in the case of each patient. Having reviewed all the treatment records and prescriptions used, Drs. Story and Brouillet also demonstrated that they were prescribed in the course of professional practice to the patients in question. Thee Respondent prescribed the drugs in a good faith effort to relieve pain while he was trying to determine and correct the underlying cause of each patient's distress. Dr. Van Ore's motivation in prescribing and treating as he did for these patients, was nothing other than an honest attempt to relieve their pain after his and others' efforts to alleviate the causes of pain had failed. Neither is there any evidence that Dr. Van Ore made any deceptive, untrue or fraudulent representations to his patients in the course of their treatment. He was open and honest with the patients and told them what he knew and believed concerning their chronic medical problems and the means he was using to try to alleviate them, including discussing with them the problem of drug addiction and attempting to convince them to reduce their use of Schedule II controlled substances. Dr. Van Ore had no ulterior purpose or motive in the treatment of these four patients, other than an honest attempt to alleviate their distress. Dr. Handwerker, testifying for the Petitioner, generally took the view that the Respondent's treatment of the four patients in question with controlled substances was for medically unjustifiable purposes and in inappropriate or excessive quantities. It is important to note that several prescriptions listed in the Amended Administrative Complaint attributable to Respondent were actually written by other physicians such as Dr. James Biggerstaff, Dr. James E. Lett, Dr. Charles Moller and Dr. Gwen Murray. Several were written for other patients who were not mentioned in the Amended Administrative Complaint and apparently several prescriptions had been altered by persons unknown. The testimony of Dr. Story raises questions concerning Dr. Handwerker's depth of understanding of these patients' medical histories when under the Respondent's care. For example, Dr. Handwerker apparently was unaware that the patients had been hospitalized and seen by various consultants, was also unaware of the various tests that each of the patients had been subjected to in the Respondent's and other specialists' efforts to learn the causes of their pain. In general, Dr. Handwerker was more concerned with the drug addiction or potential drug addiction of these patients, than with the fact that these patients suffered chronic pain which could not be relieved by any other means than Schedule II drugs. Dr. Handwerker's testimony being more tinged with his concern for drug addiction as a paramount consideration, not taking into adequate account the physician's concomitant obligation to alleviate suffering, nor taking into account Respondent's and other's exhaustive efforts to learn the causes of their suffering, renders the testimony and opinions of Drs. Story and Brouillet more credible and acceptable in their description of appropriate medical care and treatment under similar conditions and circumstances. The testimony of Dr. Handwerker, where it conflicts with these opinions, is rejected as less credible than those of Respondent's two experts. Count One raises the issues concerning the practice of physician's assistants Gary Chase and Denise Grant. Gary Chase began working for the Respondent as a licensed physician's assistant in September, 1980, and was certified as the Respondent's physician's assistant in October, 1980. He worked for the Respondent until June, 1983. The Respondent was his supervising physician. While Gary Chase worked as a physician's assistant for the Respondent, the Respondent was either physically present in the office or was within 20 minutes travel time from the office and was always available by electronic communication. The Respondent and Gary Chase would daily review all records of patients in which Gary Chase assisted in treatment and would always review any treatment Gary Chase had rendered no later than the next day. The Respondent furnished pre-signed blank prescription forms to Gary Chase. If a patient being seen by Chase needed a medication, Gary Chase would write out that medication, the amount needed, and record it in the patient's chart and use the pre-signed prescription form. The Respondent and Gary Chase would then review the patient's charts and prescription together when Chase next saw the Respondent on either the same day or no later than the next day. If a problem occurred with the prescription Chase had made or a treatment he recommended the patient, he or the Respondent would have called the patient that same day and changed the prescription. Chase does not recall such a problem ever occurring. With regard to the issue of Denise Grant's practice raised in Count One, there was no evidence to establish Denise Grant was a physician's assistant practicing under the direct supervision and control of the Respondent. There was no evidence that the Respondent had ever furnished prescription blanks to Denise Grant. Denise Grant was not called as a witness in this case. The Respondent has never been the subject of an investigation by the Department of Professional Regulation nor of disciplinary action, either formal or informal. The Respondent is an active member of the Asbury United Methodist Church in Maitland, Florida, and offers community service medical education programs on preventive medicine through the church. The Respondent has a reputation as a person of honest character and a reputation as a good and competent physician.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a final order be entered by the Board of Medical Examiners finding the Respondent, Steven Van Ore, guilty of a violation of Section 458.331(1)(aa), Florida Statutes, and that the penalty of a written reprimand be imposed. DONE and RECOMMENDED this 9th day of January, 1985 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 10th day of January, 1985. COPIES FURNISHED: William M. Furlow, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ralph V. Hadley, III, Esquire Post Office Box 1340 Winter Garden, Florida 32787 Paul Watson Lambert, Esquire SLEPIN, SLEPIN, LAMBERT and WAAS 1114 East Park Avenue Tallahassee, Florida 32301 Dorothy Faircloth, Executive Dir. Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue At issue in this proceeding is whether Charles Caleb Padgett, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Initial observations As observed in the preliminary statement, neither petitioner nor anyone on her behalf appeared at hearing, and no proof was offered to support her claim. Ordinarily, such failing would be dispositive of the case; however, notwithstanding petitioner's failure of proof, respondent elected to offer into evidence the medical records filed with DOAH on February 8, 1995, which relate to Sandra Padgett's prenatal care, the birth of Charles Caleb Padgett (Caleb) and Caleb's subsequent development, as well as the opinions of Charles Kalstone, M.D., a board certified obstetrician, and Michael Duchowny, M.D., a board certified pediatric neurologist, to affirmatively resolve the issue as to whether Caleb had suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. Ms. Padgett's antepartum course and Caleb's birth The records relating to Ms. Padgett's antepartum course fail to demonstrate any complication other than polyhydramnios (an abnormal collection of amniotic fluid). Such complication did, however, place her pregnancy at risk, and she was routinely the subject of non-stress testing to assess the well being of the fetus, and periodic ultrasounds. On November 10, 1992, with an estimated date of confinement of November 19, 1992, Ms. Padgett underwent a routine non-stress test and ultrasound. The non-stress test was reactive, a positive sign of fetal well-being; however, the ultrasound suggested that the infant was macrosomic, with an estimated fetal weight of over nine pounds. 1/ Based on the ultrasound results, and considering that Ms. Padgett had previously undergone a cesarean section at term, her physician decided against a trial of labor and recommended that she be admitted for a repeat cesarean delivery. At or about 10:55 a.m., November 11, 1992, Ms. Padgett was admitted to Lawnwood Regional Medical Center, Fort Pierce, Florida, for the repeat cesarean section heretofore noted. At the time, Ms. Padgett was not in labor, and was not thereafter noted to have entered labor. At 3:50 p.m., November 11, 1992, Caleb was delivered by cesarean section. Upon delivery, copious clear fluid was aspirated from his oropharynx and stomach, and resuscitation was noted to consist of tactile stimulation, suctioning, and oxygen blow-by. Apgars were noted as 7 and 8, at 1 and 5 minutes respectively. Notwithstanding resuscitation, Caleb was noted to become dusky (pale) each time oxygen was withdrawn, and developed grunting and retractions. Consequently, Caleb was transferred to the nursery where he was initially placed on a 50 percent oxyhood. Subsequent assessment revealed transient tachypnea of the newborn (TTN), and chest x-ray revealed bilateral haziness of the lungs. Therefore, Caleb was intubated and, over the course of the next 10 hours, weaned well and was extubated to room air without further respiratory complications. Neurologically, Caleb was noted to have decreased tone since birth, with some arching, and small fontanelle. The arching resolved within the first 48 hours, but the hypotomia persisted. A CT study of the brain at 48 hours of age was noted to be within normal limits. In this regard, it is observed that there was no demonstrated evidence of intracranial hemorrhage, significant mass effect or shift to the midline structures. The ventricular system appeared patent and normal for age, and there was no evidence of extra axial fluid collections. There were, however, diffuse low attenuation changes throughout the white matter which was thought to represent immature white matter, normal for age, but other etiologies could not be entirely excluded. Caleb's hospital course was otherwise uneventful, and he was discharged to his mother's care on November 15, 1992. Caleb's development Subsequent to discharge, Caleb was followed medically, and ultimately diagnosed with a very mild right hemiparesis and developmental disorder, probably mild cerebral palsy. In an effort to identify the cause of Caleb's disorder, a number of radiological studies were performed. A CT of the brain taken on July 13, 1993, revealed: . . . encephalomalacia immediately lateral to the left caudate nucleus, manifested by linear low attenuation in the white matter and compensatory dilation of the frontal horn of the left lateral ventricle. This indicates an old unilateral vascular insult, which may well have occurred in utero. The remainder of the brain including the right hemisphere is within normal limits. There is no hydrocephalus, intracranial hemorrhage nor intracranial calcification. An MRI of the brain on November 29, 1993, revealed the following: The cerebellum and brain stem appeared normal in configuration. There is altered contour in the left basal ganglia and internal, external capsular region suggestive of an old infarct with signal changes in this region compensatory. There are areas of gliosis as well as porencephalic changes in the frontal horn and body of the lateral ventricle on the left compensatory to the infarct. There is some thickening of the ethmoid and maxillary sinus regions notable. IMPRESSION: Abnormal MRI of the brain as noted by the changes suggestive of old left basal ganglia, internal capsule and external capsular region infarct with compensatory ventricular changes of the frontal horn and body of the lateral ventricle of porencephalic nature with gliottic changes throughout this region. . . . Electroencephalograms of January 5, 1994, and May 3, 1994, were essentially normal, with no evidence of seizure activity. Although the medical records indicate that Caleb suffered some oxygen deprivation at birth, the proof fails to support the conclusion that such event caused the injury to his brain which resulted in his neurological impairment. Rather, the proof, as demonstrated by Caleb's presentation at birth, hospital course, and radiological studies, indicates that Caleb's neurological impairments, more likely than not, derive from an intra-uterine stroke which significantly predated his mother's admission to the hospital or his birth. In so concluding, it is first observed that the radiological studies do not demonstrate evidence of a brain injury at or about the time of birth but, rather, prenatally. Second, the focal nature of Caleb's brain injury, with resultant right-sided hemiparesis, is not generally associated with hypoxic insult. Rather, hypoxic insult generally evidences as a global injury to the brain, as opposed to the focal injury Caleb suffered. Finally, Caleb presented with dysmorphic features, an abnormality suggesting Caleb did not develop appropriately in utero. Such developmental abnormality is a risk factor, and can lead to developmental problems with motor function, language function and cerebral palsy. Turning now to the significance of Caleb's neurologic impairments, it must be concluded that the proof fails to demonstrate that Caleb is permanently and substantially, mentally and physically impaired. Rather, the proof demonstrates that Caleb's physical impairment can best be described as mild, as opposed to substantial, and there is no evidence that he suffered any loss of cognitive function.
The Issue At issue in this proceeding is whether Thalya Greene, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Daniel Greene and Lizbeth Greene, are the parents and natural guardians of Thalya Greene (Thalya), a minor. Thalya was born a live infant on August 27, 1998, at Baptist Medical Center, a hospital located in Jacksonville, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during Thalya's birth was R. William Quinlan, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Thalya's birth At or about 4:35 a.m., August 27, 1998, Mrs. Greene (with an estimated date of confinement of September 19, 1998, and the fetus at 36+ weeks) presented to Baptist Medical Center in early labor. Vaginal examination revealed the membranes to be intact, and the cervix at 3 centimeters dilatation, effacement at 50 percent, and the fetus at station -2. External fetal monitoring applied at 4:37 a.m., reflected a reassuring fetal heart tone, and Mrs. Greene was admitted to labor and delivery at or about 4:40 a.m. Mrs. Greene's labor progressed steadily, and external fetal monitoring reflected a reassuring fetal heart tone throughout the course of labor and delivery. At or about 7:30 a.m., dilatation was noted as complete; at 7:49 a.m., the membranes were artificially ruptured, with clear fluid noted; and at 7:55 a.m. Thalya was delivered spontaneously (cephalic presentation) without incident. On delivery, Thalya was noted as "pale blue" in color, and was bulb suctioned and accorded free flow oxygen; however, she breathed spontaneously, and did not require resuscitation. Initial newborn assessment noted no apparent abnormalities. Apgar scores were recorded as 7 at one minute and 8 at five minutes. The Apgar scores assigned to Thalya are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute, Thalya's Apgar score totaled 7, with heart rate, muscle tone, and reflect irritability being graded at 2 each; respiratory effort being graded at 1; and color being graded at 0. At five minutes, Thalya's Apgar score totaled 8, with heart rate, respiratory effort, muscle tone, and reflex irritability being graded at 2 each, and color again being graded at 0. Thalya was admitted to the newborn nursery at or about 8:50 a.m. Assessment on admission was grossly normal. Thalya's status post-delivery was uneventful until 11:30 a.m. (approximately 3 1/2 hours after delivery) when she experienced a choking episode (secondary to spitting up) and turned dusky over the face and chest. In response, Thalya was placed under a radiant warmer, suctioned, and given blow by oxygen (for approximately 3 minutes) until she pinked up. Thereafter, Thalya's course was again uneventful until 1:00 a.m., August 28, 1998, when she again appeared dusky, and was accorded blow by oxygen. At the time, it was noted that the CBC drawn during the first dusky spell was within normal limits and that the blood culture that had been obtained was preliminarily negative. Thereafter, Thalya's course was again without apparent complication until approximately 10:23 p.m., when she "became dusky not associated with feed," and was again suctioned and accorded blow by oxygen. At that time, Thalya was noted as "pink and intermittently tachypneic with rare grunting." Following neurologic consult, Thalya was transferred to the neonatal intensive care unit (NICU) for further observation and management. Thalya was received in the NICU at 10:34 p.m. At the time, she was observed as "warm and pink with grunting noted." EKG leads were applied and revealed a heart rate of 180, respiratory rate of 50, blood pressure of 76/49, and a rectal temperature of 100.3. Examination revealed nystagmus (an involuntary rapid movement of the eyeball) and some jerky movements of her extremities. CBC showed a white blood count of 5,000, and blood culture was ordered. Working diagnosis was "suspected septis" and Thalya was started on ampicillin and gentamicin. At 12:35 a.m., August 29, 1998, Thalya evidenced symptoms of seizure activity, and was loaded with phenobarbital. Spinal tap of August 29, 1998, as well as the results of the blood culture drawn of August 28, 1998, was positive for Group B Streptococcus. An infectious disease consult was obtained and Thalya was managed on antibiotics for three weeks, and maintained on phenobarbital for her seizure activity. CT and MRI of the head on August 29, 1998, were normal; however, a head ultrasound of September 3, 1998, showed minimal intra-axial fluid. Chromosomal studies were normal. Thalya was discharged to her parents' care on September 15, 1998, on phenobarbital and ampicillin. Final diagnosis on discharge included bacterial infection due to Streptococcus, Group B; streptococcal meningitis; and seizures. Thalya's subsequent development Following her discharge from Baptist Medical Center, Thalya was initially followed by Carlos H. Gama, M.D., a pediatric neurologist. Dr. Gama's first neurological examination occurred on November 3, 1998, when Thalya was 2 months of age, and was reported as follows: I had the opportunity of seeing Thalya for a neurological evaluation. The following are my diagnosis and recommendations. Diagnosis: Status post neonatal Group B Streptococcal meningitis. Seizures. Hypotnia. Recommendations: Obtain EEG. Obtain trough Phenobarbital level. Obtain records. Return to this office in one month for reevaluation and further recommendations. Comments: * * * . . . Since discharged from NICU mother reports that Thalya had done well. She is feeding well and thriving. No seizures have been noted. She continues on Phenobarbital, taking 4mls po bid. A blood level was obtained prior to this visit but this result is not available. Mother reports that Thalya has normal awake and sleep cycles. She seems to be moving all extremities spontaneously and symmetrically. There has not been any apneic spells or unusual behaviors suggestive of seizure like activity . . . . The examination today reveals a head circumference is 40.5cm (in the 90th percentile). Her weight is in the 90th percentile and height is in the 50th percentile. The baby is alert. She is able to turn her eyes to light, but does not track the examiner in a 90 degree range. The pupils were equal and reactive. Red reflex was present bilaterally. Facial grimace was symmetric. Suck was appropriate. Strength seems to be grossly unremarkable. Deep tendon reflexes were +2 in the upper extremities, +3 in the lower extremities at the knees and +2 at the ankles. No clonus was seen. Babinski's were present bilaterally. There was evidence of hypotonia of her axial musculature, being approximately moderate in severity. There was also decrease in head control. The patient's moro reflex reveals appropriate abduction of her upper extremities symmetrically. Traction response was decreased. Tone and neck reflex was absent. Palmar and Plantar reflexes were present. Muscle tone was low. The sensory examination to touch seemed to be unremarkable. Spine examination was noncontributory. The patient has no obvious dysmorphic features, organomegalies or skin abnormalities. Anterior fontanel was open and normal tense with no musculatures. Therefore, it is my opinion that Thalya has a history of neonatal Group B Streptococcal meningitis and sepsis associated with seizures. She is now seizure free. Her examination is remarkable for hypotonia, which most likely is on central basis. Therefore, the above recommendations were made. She will be reassessed in one month in this office. The EEG (Electroencephalogram) recommended by Dr. Gama was obtained on November 9, 1998, and read as abnormal. Specifically, the EEG report noted: This EEG is abnormal because of mild background disorganization which was seen bilaterally but more prominently over the right hemisphere, especially in the frontal region. This finding suggest[s] a diffused cerebral dysfunction such as seen in mild encephalopathy. In addition, a structural lesion in the right hemisphere cannot be excluded. Thalya was next seen by Dr. Gama on December 7, 1998. The results of that examination were reported as follows: Diagnosis: Seizure disorder. Stable on Phenobarbital. S/P [status post] Bacterial Group B Streptococcal Meningitis. Hypotonia. Developmental delay. Abnormal EEG. * * * Comments: . . . Thalya continues to be active. She is feeding well and gaining weight properly. She is making more cooing sounds and attempting to roll over, but she has not been successful in this area. Her examination demonstrates that her head circumference is 42cm. She is alert. She follows the examiner. Her pupils are equal and reactive. Face is unremarkable. She does seem to stick her tongue out intermittently. The motor examination demonstrates that she has decrease traction and head control for her age. She also has a tendency to keep her hands fisted, but this is only intermittently. She does not reach for objects yet. She is unable to hold weight in her lower extremities. Muscle tone seems to be slightly decreased in the axial musculature in particular. Therefore, it is my recommendation that we proceed with an MRI of the brain to rule out structural abnormalities of the right hemisphere.1 In addition, we have discussed the treatment with Phenobarbital. This should be continued for at least six months before making any further recommendations . . . She will be reassessed in this office in 1-2 months. Dr. Gama's next neurological examination of Thalya occurred on January 12, 1999, and was reported as follows: Diagnosis: Seizure disorder. Stable on Phenobarbital. S/P bacterial group B streptococcal meningitis. Hypotonia. Improving. Borderline developmental delay. Abnormal EEG * * * Comments: Thalya is doing extremely well. She is getting physical therapy twice a week and making progress. She is more attentive. She follows the examiner in a 180 degree range. She has good social skills. Anterior fontanel is soft. Head circumference is 44cm which is slightly above the 90th percentile, but she has been growing parallel to this with no problems. Cranial nerve examination is unremarkable. Motor examination demonstrates that she is unable to put weight in lower extremities, otherwise, she moves all extremities spontaneously. Deep tendon reflexes were unremarkable. No obvious pathological reflexes were elicited during today's visit. Muscle tone was normal to low. Denver Developmental Screen test reveals that she seems to be appropriate for her age in most of the areas. However, she is unable to roll over but she is showing some attempts to do this. The rest of the examination was noncontributory. Thalya was last seen by Dr. Gama on April 29, 1999, and he reported the results of that follow-up neurological examination as follows: Diagnosis: Seizure disorder. Stable on Phenobarbital. S/P Bacterial Group B Streptococcal Meningitis. Hypotonia. Improved. Comments: Thalya continues to do extremely well, with no recurrent seizures. She is tolerating the medication properly . . . . The patient continues to make progress in her development. The examination today demonstrates that her head circumference is 46.7cm. She is maintaining this in the 90th percentile. She has no obvious focal or lateralizing deficits. Her muscle tone has improved considerably and she is gaining milestones appropriately. She was felt to be at her age level in most of the areas tested . . . . Thalya's subsequent neurologic development was followed by Joseph A. Cimino, M.D., a board-certified pediatric neurologist. Dr. Cimino reported the results of his first neurological examination by October 15, 1999, as follows: DIAGNOSES: 1) GBS meningitis/sepsis. Neonatal seizures. Static encephalopathy with motor and language delay. * * * DEVELOPMENTAL HISTORY: The history is obtained from the parents. The child rolled from front to back at 7 months, back to front at 8 months, sat at 7 to 8 months, crawled at 11 months. She was getting in to sitting at 10 to 11 months, pulled to stand at 12 months, began to cruise at 13 months, is not yet walking independently, says mama but not specifically, does not say dada nor does she wave hi or bye. She began physical therapy at 3 months of age and this was initially twice a week and 1 month ago was decreased to once a week. She is not in speech therapy, although the family states the EIP evaluation at 10 months showed she had a receptive language at 4 months. The concern is that audiological evaluation have shown some missed frequency hearing deficit. * * * PHYSICAL EXAMINATION: The head circumference is 48 1/4 cms which is between the 75th and 98th percentile for chronologic age of 14 months. GENERAL EXAM: On inspection this is a well- nourished, healthy youngster who is alert and attentive. The abdomen was soft and nontender without organomegaly. The cardiovascular exam revealed regular rate and rhythm and no murmurs were appreciated. No cranial bruits are noted. The extremities were normal. The lungs were clear to auscultation. The skin exam was without café au lait spots or hypopigmented macules. The spine was without hair tufts or dimpling. In observing this child crawl and again reaching for objects I did not see any focality, nothing to suggest an old infarction which may be a complication of neonatal bacterial meningitis. In addition a CT scan was reported as negative. NEUROLOGICAL EXAM: The child is very social and attentive with good reciprocal play with a puppet. She smiled quite easily. Although with hands-on evaluation she did become irritable and cried. Assessment of tone was quite difficult. She tracked very nicely with full extraocular movements no ophthalmoparesis or nystagmus. The pupils were equal and reactive to light and facial movements were symmetric. I was not able to get an adequate look at the fundi. Corneal reflexes were intact. With regards to the motor exam, she reached quite nicely for objects without preference. She in fact did crawl well, transitioned into a sitting position but did W sit, usually associated with low muscle tone. With hands-on exam it was very difficult as she was crying and had a lot of active resistance to know exactly the status of her tone. She pulls to stand with a mature pattern with hip flexion. She sat quite nicely with her back straight, able manipulate objects. She did not slip through my grip on vertical suspension. Her deep tendon reflexes were 2/4 and symmetric in both the upper and lower extremities. The sensory exam was grossly intact to pain. IMPRESSION: GBS meningitis/sepsis . . . early onset. Neonatal seizure without recurrence, successfully tapered off of Phenobarbital. Prematurity 36 weeks gestation. Language delay. I think at 13 months adjusted age she should be saying mama and dada specifically, have more jargoning, waving hi and bye, and say several other words in addition to mama and dada which are used specifically. There is clearly risk of hearing deficit given meningitis and the use of Gentamicin and this child needs to be followed closely. History of motor delay. Clearly rolling at 6 months adjusted age is delayed. Sitting at 6 to 7 months adjusted age is normal, the family gave a chronologic age of 7 to 8 months but at 36 weeks gestation it is fair to make a 1 month adjustment which I am assuming they would do at EIP. She began to cruise at 13 months chronologic age which is 1 year. Her adjusted age is now 13 months and clearly walking independently can be normal up to 18 months at the outside limits. She appears to be making nice improvement in this area . . . . Thalya was next seen by Dr. Cimino on May 1, 2000, and most recently on November 10, 2000. Dr. Cimino reported the results of his most recent follow-up examination as follows: DIAGNOSES: 1) GBS meningitis. Neonatal seizures. Prematurity 36 weeks gestation Language delay. CLINICAL HISTORY: This is a 2 year old female seen in follow up on 5/1/2000. At that time she was having episodes of spacing out. We obtained an EEG that was normal for the awake and sleep state. Because of the GBS meningitis and developmental delay we obtained an MRI also done in September that was normal. She underwent a speech evaluation on 6/23/2000 that showed auditory comprehension at 9-12 months, verbal expression at 6-9 months. Impression was overall global delay and she has been in speech therapy twice a week at Brook's Rehab. Her chronologic age at the time of the evaluation was 22 months. At this time she began to walk at 15 months. She says mama and specifically, dada non- specifically. She will repeat words but does not have a lot of spontaneous words. She does wave hi and bye. PHYSICAL EXAMINATION: The head circumference is 50 1/4 cms which is between the 75th and 98th percentile. This continues to grow at the same rate. She is crying and extremely uncooperative. She is very frightened by many of her past appointments. She did track, had full extraocular movements without nystagmus or ophthalmoparesis. Her facial movements do appear sysmetric. Tone is low even with her resisting. She ran to her mother, I did not see any abnormalities. Her gait certainly was not wide based. She seemed to get off the floor well. Her sensory exam was grossly intact to pain. The deep tendon reflexes were difficult due to her withdrawal. IMPRESSION: Status-post Group B strep neonatal meningitis with neonatal seizure without recurrence. Language delay. Most likely reflecting sequela of the meningitis. There is a good percentage of these children who do have severe deficits. However, the EEG and MRI did not show any abnormalities. There is no slowing of the background activity and no decrease or delay in myelination reported on the MRI. PLAN: . . . Continue speech therapy . . . Reassess in 6 months. The cause of Thalya's neurologic dysfunction Regarding the cause of Thalya's neurological dysfunction, the proof is compelling that during labor and delivery Mrs. Greene was vaginally infected with Group B Streptococcal (GBS), that during delivery the infection was transmitted to Thalya, and that over the next 24 to 48 hours the infection process rapidly progressed causing meningitis and the resultant brain injury. Consequently, it may be said that Thalya's neurologic dysfunction is associated with a brain injury caused by meningitis (an inflammation of the membranes that envelop the brain and spinal cord), secondary to a GBS infection acquired during the birthing process (most likely subsequent to rupture of the membranes and during the course of delivery). The dispute regarding compensability As a touchstone to resolving the dispute regarding compensability, it is worthy of note that the Plan establishes a no-fault administrative system that provides compensation for an infant who suffers a narrowly defined "birth-related neurological injury." Under the Plan, a "birth-related neurological injury" is defined as: [I]njury to the brain or spinal cord of a live infant weighing at least 2,500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. Section 766.302(2), Florida Statutes. Here, there is no serious dispute that Thalya is neurologically impaired or that such impairment is attributable to a brain injury caused by the infection process discussed infra. Rather, what is at issue is whether the cause of Thalya's brain injury and the nature of her impairment fit the narrowly defined term "birth-related neurological injury." In this regard, it is Intervenor's view that Thalya's brain injury (occasioned by an infectious process) may reasonably be described as having been "caused by mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," and that such injury rendered her "permanently and substantially mentally and physically impaired." Conversely, Petitioners and Respondent are of the view that that the cause of Thalya's brain injury was not a "mechanical injury," and that she was not rendered "permanently and substantially mentally and physically impaired." Of the two, Petitioners' and Respondent's view is by far the more compelling. The nature and timing of Thalya's injury To address the nature and timing of Thalya's injury, the parties offered the opinions of three physicians: Charles Kalstone, M.D., a physician board-certified in obstetrics and gynecology; Joseph Cimino, M.D., a physician board-certified in pediatric neurology; and James Perry, M.D., a Fellow of the American Academy of Neurology. (Joint Exhibits 2-4). Notably, these physicians shared strikingly similar views, and were of the opinion that Thalya's brain injury was caused by infection induced meningitis, a process distinguishable from an injury caused by oxygen deprivation or mechanical injury. Stated otherwise, the physicians were of the opinion that Thalya's injury could not reasonably be described as having been caused by oxygen deprivation or mechanical injury.2 Given the plain and ordinary meaning of the words used in the term "mechanical injury" (as physical harm or damage caused by machinery, tools, or physical forces), their conclusion was most reasonable.3 Consequently, it is resolved that Thalya's brain injury was not caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Thalya's current mental and physical presentation At hearing, the only authoritative proof offered with regard to Thalya's current mental and physical presentation was the testimony of Dr. Cimino, Thalya's pediatric neurologist. It was Dr. Cimino's opinion that while Thalya may evidence substantial cognitive impairment, she does not evidence substantial physical impairment. Such opinions are grossly consistent with the record and are credited.
The Issue At issue in this proceeding is whether Hawke Carter, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact As observed in the preliminary statement, neither Petitioner nor anyone on her behalf appeared at hearing, and no proof was offered to support her claim. Contrasted with the dearth of proof offered by Petitioner, Respondent offered the opinions of Michael S. Duchowny, M.D., a physician board-certified in pediatric neurology, and Charles Kalstone, M.D., a physician board- certified in obstetrics and gynecology. It was Dr. Duchowny's opinion, based on his neurological evaluation of Hawke on July 26, 2000 (at 2 1/2 years of age) and his review of the medical records regarding Hawke's birth, as well as the opinion of Dr. Kalstone, based on his review of the medical records, that Hawke's current neurological condition (which reveals evidence of severe motor and cognitive deficits) did not result from oxygen deprivation, mechanical trauma or any other event occurring during the course of labor, delivery, or resuscitation in the immediate post-delivery period. Rather, it was their opinion that Hawke's disabilities are developmentally based and associated with a congenital syndrome, genetic in origin. Given Hawke's immediate perinatal history, which evidences an uncomplicated labor, delivery, and immediate post-partum period, as well as evidence of congenital heart disease, a diagnose of DiGeorge syndrome (confirmed by positive FISH analysis) and dysmorphic (malformed) features, the opinions of Doctors Duchowny and Kalstone are rationally based and supported by the record. Consequently, their opinions are credited, and it must be resolved that Hawkes' disability is associated with genetic or congenital abnormality, and is not related to any event which may have occurred during the course of his birth.
The Issue The issue in this case is whether Reshnaya E. Francois suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Plan.
Findings Of Fact Reshnaya E. Francois was born on January 31, 2016, at Broward Health, in Coral Springs, Florida. Reshnaya weighed in excess of 2,500 grams at birth. The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records of Broward Health submitted with the Petition. At all times material, both Broward Health and Dr. Wajid were active members under NICA pursuant to sections 766.302(6) and (7). Reshnaya was delivered by Dr. Wajid, who was a NICA- participating physician, on January 31, 2016. Petitioners contend that Reshnaya suffered a birth- related neurological injury and seek compensation under the Plan. Respondent contends that Reshnaya has not suffered a birth- related neurological injury as defined by section 766.302(2). In order for a claim to be compensable under the Plan, certain statutory requisites must be met. Section 766.309 provides: The Administrative Law Judge shall make the following determinations based upon all 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 § 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. How much compensation, if any, is awardable pursuant to § 766.31. If the Administrative Law Judge determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at birth, she or he shall enter an order . . . . The term “birth-related neurological injury” is defined in Section 766.302(2), Florida Statutes, as: . . . 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. (Emphasis added). In the instant case, NICA has retained Donald Willis, M.D. (Dr. Willis), as its medical expert specializing in maternal-fetal medicine and pediatric neurology. Upon examination of the pertinent medical records, Dr. Willis opined: The newborn was not depressed. Apgar scores were 8/8. Decreased movement of the right arm was noted. The baby was taken to the Mother Baby Unit and admission exam described the baby as alert and active. The baby had an Erb’s palsy or Brachial Plexus injury of the right arm. Clinical appearance of the baby suggested Down syndrome. Chromosome analysis was done for clinical features suggestive of Down syndrome and this genetic abnormality was confirmed. Chromosome analysis was consistent with 47, XX+21 (Down syndrome). Dr. Willis’s medical Report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: In summary: Delivery was complicated by a mild shoulder dystocia and resulting Erb’s palsy. There was no evidence of injury to the spinal cord. The newborn was not depressed. Apgar scores were 8/9. Chromosome analysis was consistent with Down syndrome. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period. The baby has a genetic or chromosome abnormality, Down syndrome. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis. The opinion of Dr. Willis that Reshnaya did not suffer an obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery, or the immediate post-delivery period is credited. In the instant case, NICA has retained Michael S. Duchowny, M.D. (Dr. Duchowny), as its medical expert in pediatric neurology. Upon examination of the child and the pertinent medical records, Dr. Duchowny opined: In summary, Reshnaya’s examination today reveals findings consistent with Down syndrome including multiple dysmorphic features, hypotonia, and hyporeflexia. She has minimal weakness at the right shoulder girdle and her delayed motor milestones are likely related to her underlying genetic disorder. There are no focal or lateralizing features suggesting a structural brain injury. Dr. Duchowny’s medical report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: Neither the findings on today’s evaluation nor the medical record review indicate that Reshnaya has either a substantial mental or motor impairment acquired in the course of labor or delivery. I believe that her present neurological disability is more likely related to Downs syndrome. For this reason, I am not recommending that Reshnaya be considered for compensation within the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Duchowny. The opinion of Dr. Duchowny that Reshnaya did not suffer a substantial mental or motor impairment acquired in the course of labor or delivery is credited.
Findings Of Fact Madison Carlene Benner was born on May 2, 2008, at Mease Countryside Hospital in Safety Harbor, Florida. On November 21, 2008, a complaint for medical malpractice was filed by Diana Lynn Benner, individually, and as parent and natural guardian of Madison Benner, a minor. The complaint alleged that Tampa Bay Women’s Healthcare Alliance, LLP, d/b/a Tampa Bay Women’s Care (Defendant), acting by and through an agent or employee, delivered Madison. The complaint further alleged that Defendant’s agent or employee applied excessive lateral traction “to the fetal head during the dystocia causing and/or substantially contributing to the brachial plexus injury and/or aggravating a pre-existing condition.” Subsequent to the filing of the medical malpractice action a Guardian Ad Litem was appointed. Shortly thereafter, a settlement agreement was entered into between Diana Benner, individually, and as parent and natural guardian of Madison Benner, a minor, and Anjana D. Patel, M.D.; Tampa Bay Women’s Healthcare Alliance, LLP, d/b/a Tampa Bay Women’s Care; Tampa Bay Women’s Healthcare Alliance, LLP, d/b/a Women’s Care Florida; and First Professionals Insurance Company, Inc. The Settlement Agreement and Release states as recitals the following: Recitals Diana Benner was a patient of Defendants. Madison Benner, the minor, was injured by Defendants during her delivery on May 2, 2008 in Pinellas County, Florida. Claimants allege that the minor’s physical and personal injuries arose out of certain alleged negligent acts or omissions by Defendants and have made a claim seeking monetary damages on account of those injuries. The Release extends to all damages which could have been alleged in the Notice of Intent to Initiate Litigation against the Defendants. The Release does not extend to any other person or entity not identified herein. FPIC is the Defendants’ liability insurer and, as such, would be obligated to pay any claim made or judgment obtained against Defendants which is covered by its policy with Defendants. The parties desire to enter into this Settlement Agreement in order to provide for certain payments in full settlement and discharge of all claims which have, or might be made, by reason of the incident described in Recital A above, upon the terms and conditions set forth below. In exchange for the complete release and forever discharge given to the Defendants and insurer, Diana Benner, individually, and as parent and natural guardian of Madison, received $250,000, $80,000 of which was annuitized. The settlement further states: Release and Discharge In consideration of the payments set forth in Section 2 Claimants hereby completely release, and forever discharge, Defendants and Insurer from any and all past, present or future claims, demands, obligations, actions, causes of action, wrongful death claims, rights, damages, costs, losses of services, expenses and compensation of any nature whatsoever, whether based on a tort, contract, or other theory of recovery, which the Claimants may have, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow out of, the incident described in Recital A above, including, without limitation, any and all known or unknown claims for bodily or personal injuries to Claimants or any future wrongful death claim to Claimants’ representatives or heirs, which have resulted or may result from the alleged acts or omissions of the Defendants. On February 12, 2009, Ms. Benner filed a Motion to Approve Settlement. A two-page letter from the Guardian Ad Litem in support of the settlement was also filed. On March 6, 2009, a hearing was held before Circuit Judge Amy Williams, who approved the settlement. Any claims of Madison’s father were extinguished by the settlement. The Guardian Ad Litem was relieved of further responsibilities. The medical malpractice action was voluntarily dismissed on March 16, 2009. At the time of Madison’s birth, Dr. Patel, who was one of the parties settling with Ms. Benner, was a “participating physician” as that term is defined by section 766.302(7). There is no dispute that Dr. Patel delivered Madison, was named in the Petition as the physician providing obstetric services, and was present at the birth of Madison.
The Issue The issues to be determined are: 1) whether Petitioners’ claim for compensation is time-barred pursuant to section 766.313, Florida Statutes (2011); and 2) whether Isai Lopez Martinez, a minor child, has suffered a birth-related neurological injury as defined in section 766.302(2), compensable by the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Isai was born on September 8, 2011, at Manatee Memorial in Bradenton, Florida. His birth certificate, attached to the Petition, states that his birth weight was 6 pounds, 10 ounces. The medical records available for review included the mother’s medical records for labor and delivery, and out-patient office visits and physical therapy records for Isai. Newborn hospital records for the child were not provided. Birth was by Cesarean section at 40 weeks, because the infant was in breech presentation. Fetal heart tracings were not available for review. Apgar scores were 7 and 9, and the placenta pathology was negative for infection. Isai had out-patient evaluations for severe hypotonia (low muscle tone) and developmental delay. MRI results were normal, and although a genetic evaluation was performed, no results were available for review. Dr. Willis is an obstetrician, specializing in meternal-fetal medicine. At NICA’s request, he reviewed the medical records made available to NICA, and opined that based on the available medical records, there was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery, or the immediate postdelivery period. Dr. Willis’s opinion is credited. Although given multiple opportunities to do so, Petitioners have not filed anything to rebut Dr. Willis’s opinion. The Petition was filed on October 15, 2018, more than five years from Isai’s birth.
Other Judicial Opinions Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).
Findings Of Fact Melina Antunes was born on August 27, 2015, at Florida Hospital, located in Orlando, Florida. Melina weighed in excess of 2,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Melina. In a medical report dated December 12, 2016, Dr. Willis summarized his findings and opined in pertinent part as follows: In summary, induction of labor was complicated by a spontaneous uterine rupture. The baby and placenta were expelled into the maternal abdomen. The baby was depressed at birth with low Apgar scores and a cord blood gas consistent with acidosis (pH 6.65). MRI was consistent with HIE. There was an apparent obstetrical event (uterine rupture) that resulted in loss of oxygen to the baby’s brain during labor, delivery, and continuing into the immediate post delivery period. The oxygen deprivation resulted in brain injury. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Melina and to review her medical records. Dr. Sigurdardottir examined Melina on February 15, 2017. In a medical report dated February 15, 2017, Dr. Sigurdardottir summarized her examination of Melina and opined in pertinent part as follows: Summary: Here we have a 17-month-old born after a sudden uterine rupture during active labor. The patient had neurologic depression at birth, significant acidosis with a pH of 6.6 and required active cooling as well as supportive medication for seizures in the neonatal period. She did have well documented injury on MRI but has made a remarkable recovery. Neurologic exam today, has mild abnormalities, but no standardized developmental testing is available for our review. Result as to question 1: Melina is not found to have substantial physical or mental impairment at this time. Results as to question 2: In review of available documents, Melina does have the clinical picture of an acute birth related hypoxic injury with both the clinical features of hypoxic encephalopathy and electrographic and MRI evidence to suggest hypoxic injury. Result as to question 3: The prognosis for full motor and mental recovery currently is excellent and her life expectancy is full. In light of her normal cognitive abilities and near normal neurologic exam, I do not feel that Melina should be included in the NICA program. If needed, I will be happy to answer additional questions or review further documentation of her developmental status. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery and the post-delivery period which resulted in brain injury. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Melina does not have a substantial physical or mental impairment. Dr. Sigurdardottir’s opinion is credited.
Findings Of Fact Suleidis was born on May 27, 2017, at Winnie Palmer located in Orlando, Florida. Upon receiving a copy of the Petition, NICA retained Donald Willis, M.D., a board-certified obstetrician/gynecologist specializing in maternal-fetal medicine, as well as Michael S. Duchowny, M.D., a pediatric neurologist, to review Suleidis’s medical condition. NICA sought to determine whether Suleidis suffered a “birth-related neurological injury” as defined in section 766.302(2). Specifically, NICA requested its medical experts opine whether Suleidis experienced an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury which occurred in the course of labor, delivery, or resuscitation in the immediate postdelivery period; and, if so, whether this injury rendered Suleidis permanently and substantially mentally and physically impaired. Dr. Willis reviewed Suleidis’s medical records and described her birth as follows: In summary, a reported monochorionic, diamniotic (identical twin) had a demise of one fetus at 31 weeks, followed by vaginal delivery of the surviving twin 4 weeks later. The baby was not depressed at birth. Umbilical cord blood pH was 7.3. Newborn hospital course was uncomplicated. Although the birth weight was just under 2,500, this was a twin pregnancy. Dr. Willis also noted that the baby was vigorous at birth, and no resuscitation was required. Dr. Willis then opined, within a reasonable degree of medical probability, that: There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery or the immediate post- delivery period. Dr. Duchowny also reviewed Suleidis’s medical records, as well as personally examined Suleidis on August 27, 2019. Dr. Duchowny observed that: Suleidis’s neurological evaluation is consistent with substantial mental and motor impairment. She has spastic quadriplegic (double hemiparetic) cerebral palsy, oromotor incoordination, alternating esotropia, microcephaly, absence of receptive and expressive communication, and multiple pathologic reflexes. Her developmental level approximates that of a 2-3-month-old infant. Review of the medical records reveals that Suleidis was born vaginally at Winnie Palmer Hospital at 36 weeks’ gestation via spontaneous vaginal delivery. Apart from fetal demise of Twin B at [31] weeks’ gestation, the pregnancy was further complicated by maternal sickle cell trait and chorioamnionitis (maternal temp = 100.8 F.) Rupture of the membranes 8 hours before delivery yielded thick meconium-stained fluid. Suleidis weighed 2480 grams (5 pounds 7 oz.) and had Apgar scores of 8 and 9 at 1 and 5 minutes. An arterial cord gas was 7.30. Her neonatal course was unremarkable with normal voiding, stooling and breast- feeding. Following his independent medical examination, Dr. Duchowny diagnosed Suleidis with cerebral palsy. He further opined, within a reasonable degree of medical probability, that Suleidis’s “neurological impairments are permanent and substantial.” However, he concluded that her injuries “were acquired in utero and did not result from intrapartum oxygen deprivation or mechanical injury.” Therefore, he did not recommend that Suleidis be included in the NICA Plan. A review of the records filed in this matter reveals no contrary evidence to dispute the findings and opinions of Dr. Willis and Dr. Duchowny. Their opinions are credible and persuasive. Based on the conclusions of Dr. Willis and Dr. Duchowny, NICA determined that Petitioner’s claim is not compensable. NICA subsequently filed the Motion for Summary Final Order asserting that Suleidis has not suffered a “birth-related neurological injury” as defined by section 766.302(2). Petitioner has not filed a response to NICA’s motion.
