Other Judicial Opinions 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. ist DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
Findings Of Fact As a certified parent educator for childbirth education for Home Birth, Inc., in Boston, Massachusetts, Petitioner taught couples preparation for childbirth at home. As a result of her interest in that subject matter, Petitioner served as an apprentice midwife under the supervision of two obstetricians/gynecologists in Boston for approximately three years. During that time, she delivered/attended approximately fifty home births and approximately twenty hospital births with Dr. Leo Sorger. In 1978, Petitioner moved to Florida. She contacted Dolores Wennlund, the person in charge of the lay midwife program for Respondent, regarding licensure as a lay midwife in Florida based upon her experience. Wennlund wrote back that she would not consider any experience outside the State of Florida. Petitioner commenced preparing herself for licensure as a lay midwife in Florida. She obtained an application form from Wennlund. She made arrangements with Dr. Max Marcus to attend home births under his supervision. On several occasions, she contacted or met with those persons at the Broward County Health Department with whom she was or would be in contact while seeking licensure and subsequently as a lay midwife. Cora Braynon is the County Nursing Director for the Broward County Health Department. She supervises lay midwives in Broward County as part of her duties. She reviewed with Petitioner the equipment requirements set forth in Respondent's Lay Midwife Manual which would apply to Petitioner if she became licensed. She explained that Petitioner would be able to obtain silver nitrate from her once Petitioner was licensed, and she further explained that midwives are prohibited from attending certain types of patients. She explained that Petitioner need not worry about silver nitrate or about the restriction of attendance in normal cases only since Petitioner was only an applicant for licensure and, as such, was only attending births under the supervision of a physician who would have silver nitrate and who could attend any patient, even those of high risk. Linda Johns has been employed registering births for the Broward County Health Department for approximately eight years. A person registering a birth in Broward County completes a photocopy of a birth certificate, and Johns types that information onto the original birth certificate. She then throws away the photocopy which contains the information provided by the registrant. It is Johns' responsibility to instruct a registrant on the proper completion of a birth certificate and to obtain all correct information necessary. The Petitioner reviewed with Johns the procedures for correctly completing a birth certificate according to the Broward County Health Department. Item No. 27 on Florida's Certificate of Live Birth requests information regarding the prophylactic drug used in the baby's eyes and seeks both the name of the drug used and the time the drug was given after birth. Petitioner specifically asked Johns the proper information to be placed on the certificate when the parents of the child refused to allow such a drug to be administered. Johns advised Petitioner that the words "no" or none were acceptable and thereafter accepted for filing from Petitioner birth certificates wherein Petitioner answered Item No. 27 as instructed by Johns. George P. Trodella is a medical doctor and an Assistant County Health Director for the Broward County Health Department. He characterizes himself as one of the most vocal opponents of lay midwifery locally, statewide, and nationally. He believes that the lay midwifery statute should be abolished. His attempts to obtain the repeal of the lay midwifery statute during 1979 and 1980 were extensive. Using the official stationery of Respondent, Department of Health and Rehabilitative Services, and his official title as Assistant County Health Director for the Broward County Health Department, he contacted elected officials and medical organizations enlisting their aid in his attempt to stop the licensing of lay midwives. He spoke before the Florida Legislature and was interviewed in his office at the Broward County Health Department by The Miami Herald. He told the reporter interviewing him that he would give up his position with the Broward County Health Department before he would ever approve an application for licensure as a lay midwife. Dr. Trodella is not alone in his efforts to stop lay midwifery. On October 2, 1979, Dr. James T. Howell, Staff Director, Health Program Office, and State Health Officer of the Respondent, Department of Health and Rehabilitative Services (the same office to which Petitioner would submit her application for licensure), wrote Dr. Trodella advising him that the Health Program Office had submitted a bill repealing the lay midwifery statute to the Secretary to be included in the Department of Health and Rehabilitative Services legislative package. On October 8, 1979, Petitioner submitted to Dr. Trodella her application for licensure as a lay midwife, since Respondent's application form contains a section requiring the signature of the county medical officer. All other sections of her application form were complete, and Petitioner included with the form a list of fifteen patients delivered by her in Florida, letters of recommendation from two registered practicing physicians, a written statement from Dr. Max Marcus that she attended each of the fifteen cases, a statement of her physical and mental fitness by the physician who conducted a physical examination of Petitioner, and a packet of documents for each of the fifteen patients giving basic family and medical history, experience with previous pregnancies, notes on labor and delivery, birth report and postpartum visit information, and the findings of the physical examination conducted on the newborn at birth. On October 22, 1979, Dr. Trodella wrote to Petitioner as follows: Your application for licensure for lay midwifery has been delayed due to the following reasons: More information needed regarding attending physician's comments. Verification of birth records. Information regarding possible complications which may have arisen out of the home birth. If you have any questions regarding this matter, please do not hesitate to contact me. This letter does not request any information from the Petitioner. On November 14, 1979, Dr. Trodella wrote to Dr. Marcus as follows: I am reviewing the application of Mrs. Sara Pinkman for licensure as a lay midwife. I find it difficult to equate your approval of the candidate with relationship to her capability in obstetrics, since your specialty is obviously the practice of infant, children and adolescent medicine. In examining the cases submitted by Mrs. Pinkman, I find that you have personally signed off in each instance that you personally attended and supervised the home births. This is in conflict with the birth certificates filed at the Broward County Health Department, since your name does not appear on several of the cases signifying [sic] the fact that you were in attendance at the births. For the reasons stated above, a more thorough investigation of the applicant will be carried out. This letter does not request additional information from Dr. Marcus, and Petitioner was not sent a copy of this letter. Dr. Jose A. Torres administered Petitioner's physical examination required for licensure and was the other physician recommending that her application be approved. On November 14, 1979, Dr. Trodella wrote to Dr. Torres as follows: I have reviewed your letter of recommendation regarding the above-named applicant who is seeking licensure for lay midwifery. According to HRS Manuel (sic) 150-6, licensure procedures, letters of recommendation for an applicant should reflect the level of skill and competence exercised by the applicant. The applicant must prove reasonable skill and competence in maternity and infant care in regards to the practice of midwifery and this includes: Management of labor and delivery. Recognition and reporting of complications. Responsibilities and limitations of midwifery practices. Acceptance of patients. Essential elements of antepartum and postpartum care. It is apparent from your letter that your evaluation of Mrs. Sara Pinkman was concluded after talking with your colleagues. This is not acceptable and any positive recommendation should be from a direct result of your observations of the applicant, as outlined and stated above. This letter fails to request Dr. Torres to provide any additional information, and a copy of this letter was not sent to Petitioner. After Petitioner's application for licensure had been submitted to the Broward County Health Department, Linda Johns contacted the State Board of Health in Jacksonville to inquire as to the proper manner of responding to Item No. 27 when parents refused to allow a prophylactic drug to be used in the baby's eyes. Johns was advised that state law required that "refused" be answered in response to Item No. 27 and that either the back of the certificate be signed by the parents with an explanation why the treatment was refused or else a letter from the parents be submitted and attached to the application. Broward County did not follow that requirement until after Petitioner submitted her application for licensure, and Petitioner was never advised of this requirement. Rather, Petitioner followed the procedures required of her by the Broward County Health Department, and Johns approved and filed every birth certificate submitted to her by the Petitioner. Birth certificates are confidential except under exceptional circumstances. Copies of them are not part of the application for lay midwife licensure. Of the fifteen births attended by Petitioner herein for licensure in the State of Florida, Petitioner did file birth certificates for most of them. However, patients Napier, Snyder, Markert, and Pearl filed their own certificates with Snyder filing hers in Dade County. Pursuant to instructions from Trodella, his secretary Diane Peterson telephoned Pearl and Snyder and told them she was verifying birth certificate information from the Broward County Health Department. She specifically did not mention Petitioner's name and specifically did not tell those persons that her phone call was, in reality, related to Petitioner's application for licensure. The record is devoid of any explanation as to how the Broward County Health Department obtained a copy of a birth certificate filed in Dade County or as to why telephone calls were made regarding information on birth certificates which were not prepared or filed by Petitioner. Petitioner is able to properly and legibly complete birth certificates. Petitioner attended and performed each of the fifteen births relied upon by her in her application for licensure. Additionally, Dr. Max Marcus was present at each of the fifteen cases, and the deliveries were performed under his supervision. Dr. Torres did not supervise her in any of the deliveries forming a part of her application. Silver nitrate is a prescription drug. It can be obtained from the county health department for use in a baby's eyes by a licensed midwife but not by a lay person who hopes to become a licensed midwife. On December 18, 1979, Trodella forwarded Petitioner's application to Dolores M. Wennlund, the employee of Respondent in charge of the lay midwife program, with the following transmittal letter: RE: Lay Midwife Licensure Applicant, Mrs. Sara Pinkman A meeting was held on the above date with the applicant, her lawyer, Ms. Terry DeMeo, Mr. Alan Ludwig, Attorney for the Broward County Health Department, Ms. Diane Peterson, my secretary and myself, Dr. Trodella, for the sole purpose of reviewing the application of the above-mentioned person for licensure as a lay midwife. The application was turned down at this level for the following reasons: Delivery kit did not contain silver nitrate as stipulated in HRS Manuel [sic] 150-6. The birth certificates revealed that many patient's [sic) babies did not receive silver nitrate or any other prophylactic substitute within the period of twelve (12) hours. In some cases, the patient refused, but no documentation accompanied the certificates. The list of fifteen (15) deliveries submitted for approval stated a physician was present at the deliveries and this was found to be in conflict with some of the birth certificate reports and information obtained from some of the patients. As a result of the foregoing, I do not believe Mrs. Sara Pinkman has demonstrated her ability to complete the necessary information for birth certificates and the proper installation of drugs to the babies [sic] eyes. These discrepancies were discussed with the applicant. By letter dated January 25, 1980, Wennlund denied Petitioner's application for licensure as follows: Your application for licensure to practice midwifery under Chapter 485 of the Florida Statutes was received in this office December 21, 1979. Your application was incomplete in that the written recommendation of the county health officer had not been included. The assistant county health officer informs me that the reasons for withholding recommendation were discussed with you in the presence of your attorney on December 18, 1979. I therefore regret to inform you that your application is denied. Specifically, your application is denied because it is not accompanied by the county health officer's recommendation which is required by Rule 10D-36.22(1)(d) Florida Administrative Code (a copy of which has previously been furnished you) and those reasons explained by Dr. George Trodella to you on December 18, 1979.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered approving the application of Petitioner Sara Pinkman for licensure as a lay midwife, subject to the satisfactory completion of the Department's standard examination. RECOMMENDED this 31st day of August, 1981, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1981. COPIES FURNISHED: Terry L. DeMeo, Esquire 3081 Salzedo Street, 2nd Floor Coral Gables, Florida 33134 Harold L. Braynon, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301 Mr. Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue is whether respondent's medical license should be disciplined for the reasons set forth in the amended administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Thomas B. B. Benton, was a licensed medical doctor having been issued license number ME 0053353 by petitioner, Department of Professional Regulation, Board of Medicine (Board). Benton is a 1985 graduate of the University of Florida College of Medicine and has been licensed in this state since 1988. He is also licensed in the State of Texas. He has been a board certified pediatrician since 1989. When the events herein occurred, respondent was practicing as a pediatrician in Gainesville, Florida with privileges at Alachua General Hospital, Inc. (AGH) and North Florida Regional Hospital and an affiliation with Shands Teaching Hospital (Shands) as clinical faculty. Finally, respondent has never been subjected to disciplinary action by the Board or any other medical authority. On September 15, 1989, M. P., then an eighteen year old female, delivered a newborn infant by Caesarian Section (c-section) at AGH. Immediately after delivery, the infant was transferred to respondent's care and placed in the AGH nursery with approximately seventeen other infants. Around 1:15 a.m. on September 16, the infant was found face down in the crib not breathing. After efforts to resuscitate the infant were unsuccessful, it was pronounced dead. An autopsy was performed but the cause of death was not determined. An AGH peer review of the incident concluded that respondent did not act inappropriately. However, because a death had occurred, a "serious incident report" was filed with the Department of Health and Rehabilitative Services which then contacted the Board. This resulted in the Board conducting an investigation and, after determining by a 2-1 vote that probable cause existed, filing an administrative complaint against respondent on February 6, 1991, charging him with having failed to maintain adequate medical records and with failing to adhere to the appropriate standards of care and skill while treating the infant. That prompted respondent to request a hearing to contest the charges in the complaint. The Mother and Her Medical Background The unmarried mother of the deceased infant became pregnant in late 1988 or early 1989. On April 5, 1989, she visited the offices of Dr. Andrew M. Muskus, II, a Gainesville obstetrician and gynecologist. During that visit, M. P. was examined by a nurse and a history was taken. On April 26, Dr. Muskus saw the patient for the first time. She was then approximately seventeen weeks pregnant. Doctor Muskus found her past medical history to be "significant" because M. P. was single, smoked cigarettes, had previous surgery on her femur, had a history of bronchitis and pneumonia, had chronic mild anemia, and had once used alcohol and "street" drugs. However, there is no indication that the mother used drugs or alcohol during her pregnancy. A standard prenatal profile revealed nothing significant except that M. P. had lordosis, or a curvature of the spine. Through the use of an ultrasound imaging taken on May 16, Dr. Muskus determined a due date of October 5, 1989. The ultrasound also indicated the possibility of an early hydrocephalus, that is, enlarged ventricles in the infant's brain, and a low spinous defect. Because of this, Dr. Muskus made an appointment for the patient to have a second tertiary level ultrasound performed at Shands. After those results became available, Dr. Muskus intended to offer the patient the opportunity to terminate the pregnancy if such testing resulted in a poor prognosis for the baby. On May 17, 1989, the ultrasound was performed at Shands and the following findings were made: There is clearly dilatation of the posterior horns with CSF medial to the depending choroid plexus. The cerebellum and other intracranial structures appear normal. The third ventricle does not appear enlarged. The spine appears normal. Amniocentesis was performed under ultrasound guidance and the impression was ventricularmegaly of the posterior horns of the lateral ventricles. The patient was referred to genetic counseling. Although a total of seven ultrasounds were eventually performed, four by Shands and three by Dr. Muskus, no definitive diagnosis was ever made. However, Shands concluded there was a nonexpanding hydrocephalus and "felt" there was a "possibility" of a form of holoprosencephaly and agenesis (absence) of the corpus callosum, a central structure in the midbrain. The absence of this structure meant the baby would have a congenital brain malformation, although such a neurological deficit is not necessarily critical or disabling and may be compatible with continued life. Even so, neither Dr. Muskus nor Shands had an opinion on the infant's prognosis and Dr. Muskus acknowleged that there was some "hedging" by both he and Shands on this issue. After the initial evaluations were concluded, Dr. Muskus spoke to M. P. and indicated there was a problem with the baby. He asked her to make a decision on whether she wanted to continue to term or abort the pregnancy. However, by the time all of the evaluations were concluded, it was too late to terminate the pregnancy and the patient had no choice in the matter. Doctor Muskus accordingly formulated a treatment plan with the assistance of the Shands doctors. The Shands physicians and Dr. Muskus agreed the baby was growing properly, and except for a possible problem with the brain, they forsaw no other difficulties. In addition, they agreed the baby could be delivered vaginally. Although Shands offered to deliver and care for the baby, M. P. had become "disenchanted" with the Shands staff and strongly desired to have the delivery at AGH at the earliest opportunity. Acceding to her wishes, Dr. Muskus agreed to perform a c-section at 39 weeks, or on September 28, 1989, and to have the baby transported to Shands in the event it became necessary. He also made arrangements to turn the care of the baby over to respondent at the time of the delivery. This was because respondent was a pediatrician designated by M. P.'s health insurance carrier (Av-Med). Prior to the delivery, Dr. Muskus spoke to Dr. Benton in the hospital hallway one day to make sure he felt comfortable assuming care of the baby. Respondent replied that he had no problem in doing so. Also, Dr. Muskus sent a letter to respondent on August 18, 1989, a copy of which has been received in evidence as respondent's exhibit 2. The letter read in relevant part as follows: Miss P. is an 18 year old white female who at approximately 20 weeks in the pregnancy was noted to have an abnormal ultrasound which suggested possible early mild hydrocephalus. Subsequently she was referred to Shands Teaching Hospital where a second opinion was requested. An amniocentesis was done at that time and a normal 46XY chromosome analysis was reported along with a normal alpha fetoprotein screen. Dilatation of the posterior horns of the lateral ventricles was noted at that time as well. Subsequently she was followed at intervals by Shands with ultrasounds. Except for the defect noted in the head, the fetus seemed normal otherwise. Most recently, the diagnosis of possible agenesis of corpus callosum was noted. Additionally, although the posterior horns were dilated, the head was not enlarged and the fetus seemed to be growing appropriately. No other ultrasound determined defects were noted. Presently the patient is at 34 weeks in her pregnancy and is due on October 5th. She is quite dissatisfied with her management at Shands, feeling that she has been given contradictory information. She strongly wishes to be delivered at Alachua General by c-section to be done probably in late September. Tom, I wanted to give you some advance information about the patient who really is quite pleasant and also quite nervous about this pregnancy. If any additional information is necessary which you feel I can provide you, please feel free to call upon me. We will make arrangements with your office to coordinate the timing of the c-section. After receiving the letter, and in view of the reference therein to the absence of a corpus callosum, respondent reviewed a pediatrics textbook to familiarize himself with that particular neurological condition. In this way, he became aware of the condition and its ramifications prior to the c-section. It should also be noted here that both of petitioner's expert pediatricians reviewed pediatrics textbooks to familiarize themselves with the same neurological term prior to giving standard of care testimony at hearing. Doctor Muskus considered M. P. to have a "high-risk" pregnancy because of the mother's social problems (she continued to smoke and had once used alcohol and street drugs) and the obvious anatomic problems with the baby. Events Immediately Prior to Delivery Because of lower back ache, nausea, low-grade fever, uterus instability and cramping, which had persisted for several days, M. P. was admitted to AGH on September 14, 1989. However, the patient presented no indication that she was in labor. This was approximately two weeks before her scheduled c-section. On admission, M. P.'s temperature was 101.2 degrees. Standard blood studies and cultures were ordered for the patient but the blood studies revealed nothing (except a mildly elevated blood count) to assist Dr. Muskus in determining "what was going on with the patient". Because Dr. Muskus suspected (but could not confirm) that she may have had pyonephritis, a urininary tract infection, particularly since she had been exposed to a nephew with viral symptoms, he ordered that antibiotics (Rocephin IV) be administered intravenously. As a result, in six hours her temperature reading was brought down to 100.2 degrees. In addition, even though M. P. was not in labor, Dr. Muskus prescribed Terbutaline subcutaneously for uterus irritability. After conferring with two associates, Dr. Muskus decided to delay formulating a treatment plan until he saw the results of the cultures which were due back two days later. However, he later came to the conclusion that even though there was no fetal distress, the patient "looked in obvious distress", and he should move the c-section up from September 28 to the next day, or Friday, September 15. Doctor Muskus accordingly contacted Dr. Benton on the morning of September 15 to advise him that M. P. was in the hospital and of the rescheduled delivery. By this time, the mother's fever had subsided for some twenty-four hours. The Delivery Because respondent only learned of the patient's admission to the hospital and the new delivery date a few hours before the operation, he had only one brief opportunity to speak with M. P. as she lay on the c-section table just prior to being rolled into the operating suite. The nature of that conversation is not of record. 1/ The c-section was a typically planned one - a primary low, transverse-type section. The fetus was monitored until the section was actually started and the infant (a male) delivered in the usual fashion around 12:47 p.m. weighing five pounds, twelve ounces. This was approximately thirty hours after M. P. had been admitted to AGH. Because a very light meconium stain was noted at the time of delivery, the baby's nose, mouth and stomach were suctioned while the head was through the incision. This is a normal procedure when meconium is present. There was no meconium detected below the vocal cords. After the placenta was removed, Dr. Muskus observed a substantial amount of clotting behind the placenta which was caused by a placenta abruption. This means there was a premature separation of the placenta from the uterine wall. The doctor believed there to be a thirty to forty percent abruption and this was later confirmed by the pathology department. However, the mother's actual blood loss related to the c-section was quite low, being about 300 CCs, and there was no need to transfuse her. Further, there was no loss of blood by the fetus. After the baby was delivered, Dr. Muskus clamped the cord and handed the baby to Dr. Benton. According to Dr. Muskus, the baby appeared "like a healthy baby" and he felt that M. P. was "fortunate to get such a healthy- looking child". Indeed, Dr. Muskus noted at hearing that he could not see any difference between M. P.'s baby and any other healthy newborn baby in the maternity wing. He added that there was never any indication of fetal distress in the baby. Events Immediately After Delivery As noted above, when the baby was delivered, meconium staining was observed. Also, the infant required some resusitative techniques. Respondent, who was present in the delivery room, administered oxygen with a bag and mask and suctioned the airways "deeply" with an Ambu intratracheal incubation suction. This produced immediate responsiveness on the part of the baby. Once respondent considered the baby to be stable, he carried the newborn to the head of the operating table and showed it to the mother. The baby was then transferred from the operating suite to the newborn nursery. Just after the delivery occurred, and while still in the operating suite, the baby was examined to determine its Apgar score. An Apgar score is a quantitative scoring system to summarize an infant's condition at birth for the purpose of showing whether intervention by the doctor is appropriate. Five criteria are used with each criterion given a score of zero, one or two. The scores are then totaled with zero meaning a lifeless baby and ten meaning perfectly normal. A score of three and below indicates the baby is in a life- threatening condition while a score of four to seven demonstrates the need for immediate intervention. Anything above seven indicates the baby is normal. In this case, at one minute after birth the infant had an initial score of four due to a "depressed" condition which meant that prompt intervention (resuscitation) was required. After resuscitation was given, the infant's Apgar score was raised to eight within five minutes, which is a normal score. The baby was given a physical examination by respondent within thirty minutes after birth. The examination revealed that the baby was not significantly outside the normal ranges in any examined area. Indeed, all vital signs were stable. More specifically, respondent's examination found no problem with the infant's skin color and tone, head, neck, eyes, ears, nose, throat and heart. Although the baby's respiratory rate was slightly higher than normal, this was not unusual because the mother had previously been given Terbutaline, which tends to increase the heart rate of both mother and fetus. The Nursery AGH had a nursery that was divided into two sections. The front section was for so-called "well-babies" and was designed to hold between fifteen and twenty babies during the transition period immediately after birth. Behind the front section was a smaller intermediate care section with special equipment (respiratory, apnea and cardiac monitors) to handle from six to eight babies who required more attention. Generally, but not always, a newborn is placed on a monitor only with specific orders from the attending pediatrician. It should also be noted that the evidence supports a finding that the use of monitors is not always a reliable method for detecting a problem with an infant. Indeed, one of petitioner's experts acknowledged that an experienced nurse can be better than a monitor. The well-baby section was always staffed by three nurses at any time. Each nurse was responsible for no more than six babies. According to the Guideline for Perinatal Care, this ratio (6:1) is the accepted or normal nurse- to-baby ratio in hospitals. Conversely, the intermediate care section had one nurse for every two babies. As a general rule, a nurse would rotate from baby to baby during her duty shift to verify that the baby was not in trouble. Among other things, the nurse would check the baby's vital signs, color and responses to external stimuli. Although some nurseries have a practice of checking on the "normal" babies every four hours, the AGH nursery staff examined the babies more frequently. AGH is an experienced hospital in terms of delivering and caring for babies. In 1989 alone, there were some 2,000 babies delivered at the hospital. The nurses who were on duty in the nursery on the evening of September 15, 1989, included one with more than twenty years of experience and others who had several years experience in newborn nurseries. There is no evidence to suggest or support a finding that the nurses on duty that evening were not competent and qualifed personnel. Treatment While in the Nursery When the baby was transferred to the nursery, respondent gave a routine standing order that the baby be monitored like all other newborns and that he be immediately notified by the nursery if any unusual event occurred with respect to the infant. He did not order that the infant be placed on a monitor or in the intermediate care portion of the nursery. Finally, he did not advise the nursery staff of the baby's neurological deficit although this information could be easily found in the baby's medical chart. Around 4:00 p.m. that same afternoon, Dr. Muskus briefly visited the nursery to see the baby. He observed that the baby's breathing was unlabored, it had a good pink color, it was moving all extremities well, and it "looked quite comfortable in the crib". At that time, Dr. Muskus told the head nurse that she might want to ask Dr. Benton about the possibility of placing the baby on a monitor given his medical history. Doctor Benton visited the nursery around 4:45 p.m. on September 15 to check on the infant's condition. After he examined the infant and found no problems, the head nurse mentioned to him the suggestion by Dr. Muskus regarding the use of a monitor. Respondent declined to order a monitor on the ground his research on the subject of an absent corpus callosum reflected no mention of associated respiratory or cardiac problems. Since he had no reason to suspect apnea or cardiac arrest, he concluded there was no reason to use a monitor. During the transition period, that is, the first four hours after the baby was born, it was monitored once each hour by the nursing staff. During that time, it was necessary for a nurse to warm the baby with warm water gloves due to a low body temperature. However, this was not unusual for a newborn who has cooled off in the delivery room and has very little fat. During the next seven hours prior to its death, the infant was fed four times and his vital signs were checked on three occasions. Except for a rash, which is common to all newborn babies, and a minor elevation of pulse and respiration, there were no signs of any problems. The baby's vital signs were last checked just before midnight on September 15 and were found to be stable. The baby was found not breathing at 1:10 a.m. the following morning. The cause of its death has never been determined. /2 Failure to Order Further Tests The amended administrative complaint alleges that respondent deviated from the standard of care while treating the infant in a number of respects. One such alleged deviation is his failure to order laboratory studies or x-rays to ascertain if the newborn had sepsis (infection) or anemia. As framed in the complaint, this charge is predicated principally on the factual allegations that "the mother had a fever at delivery" and she suffered a "placental abruption" and thus further tests were warranted. Initially, it is noted that the mother did not have a fever at delivery. While it is true that M. P. had a temperature of 101.2 degrees on admission to the hospital, antibiotics had dissipated the fever within six hours. Moreover, Dr. Muskus's initial suspected diagnosis of pyonephritis had proven to be incorrect, 3/ and the results of cultures, both preliminary and final, confirmed that the mother did not have an infection. Both of petitioner's experts suggest that given the maternal fever and the uncertainty as to its cause, respondent should have ordered such supplementary tests as a complete blood count (CBC), cultures, urine screen (for strep antigen), and chest x-ray to ascertain whether the baby had an infection. However, the more credible and persuasive evidence supports a finding that respondent had no reason to suspect the baby had an infection and therefore such tests were not necessary given the circumstances present here. Respondent reached this conclusion because the mother no longer had a fever and initial tests suggested rather strongly that the mother did not have an infection. Indeed, respondent's judgment was borne out by the mother's culture results which reflected that the mother did not have an infection. In addition, at the time of delivery respondent had the benefit of information from Dr. Muskus that initial reports (after 30 hours) of M. P.'s urine cultures were negative. It should also be noted here that no evidence was submitted by petitioner, including the pathologist's post-mortem report, to establish that the infant had an infection. Finally, because the infant's vital signs were stable, and there was no sign of distress, it was appropriate to merely closely monitor the infant without the benefit of further work-up. Petitioner's experts have also asserted that respondent erred by failing to perform additional tests to determine if the infant was anemic. Anemia is of course blood loss and this occurs most frequently in a newborn in conjunction with a complete separation of the placenta from the uterine wall. Under those circumstances, both parties agree that a CBC with a hemoglobin hemacrit is appropriate. However, a free flow of blood into the uterus or vagina does not occur unless the placenta is lifted completely off of the uterine. In this case, there was only a partial abruption or separation of the placenta from the uterine wall and therefore the possibility of anemia was slight at best. Although anemia cannot be determined solely by physical appearance, the color of a baby is nonetheless a good indicator. Here, a physical examination of the child immediately after delivery revealed that the infant had a good pink color and no abnormal signs, and there were no clinical features of anemia in the baby. Further, petitioner offered no evidence to establish that the infant was anemic. Accordingly, it is found that respondent did not deviate from the appropriate standard of care by failing to order additional tests on the infant to confirm or deny the existence of anemia. Failure to Use Monitor or Intermediate Care Section in Nursery The amended complaint also alleges that respondent deviated from the standard of care by failing "to adequately monitor or (place) said Patient #1 either with cardiac/apnea monitor or placing said Patient in an intermediate care nursery". As noted earlier, respondent chose not to place the infant on a monitor or in the intermediate care nursery. Petitioner's experts have criticized this decision on the ground the baby's history and danger signals justified closer observation than that given in the well-baby portion of the nursery. Respondent did not place the child on a monitor because this action was not indicated. Indeed, there was no suggestion of any increased respiratory risk for the infant, respondent knew that the infant would be checked more frequently than every four hours by an experienced and competent nursing staff, the infant's vital signs were stable, and there was no correlation between the infant's neurological deficit and the conditions for which monitors are used (apnea and cardiac arrest). Therefore, it is found that respondent did not deviate from the standard of care by failing to place the child on a monitor or in the intermediate care nursery. Instructions for the On-Call Physician Paragraph 22 of the amended complaint alleges that respondent "left the hospital (on the evening of September 15) without informing the on-call physician of Patient #1's presence in the nursery, nor informing this physician of Patient #1's multiple medical problems" and that this omission constituted a deviation from the standard of care. It is a common practice in the medical profession for a physician to share on-call coverage with other doctors. This means that when the primary physician is absent, another doctor will cover his patients. Under accepted practice in the medical community, if a newborn is in the well-baby nursery, and its vital signs are stable, there is no requirement that the primary physician give detailed information regarding the infant to the on-call doctor. Further, if an on-call doctor is not expected to have to deal with a problem, no special communication is necessary. In this regard, the judgment of the physician is especially important. Conversely, if special tests have been ordered for the infant, or other unusual circumstances are anticipated, a doctor would generally be expected to telephone or otherwise communicate in some way to the on-call doctor the nature of those circumstances. When the events herein occurred, respondent shared "on-call coverage" with Dr. Sally J. Martin, then a Gainesville pediatrician, and two of her associates. As it turned out, respondent left Gainesville for the week-end after he last saw the infant late on the afternoon of September 15, and Dr. Martin was on-call for his patients. Respondent left no instructions or other information with Dr. Martin concerning this infant. Doctor Martin received a telephone call from the nursery early on the morning of September 16. Upon arriving at the hospital, Dr. Martin found the baby being given resuscitation. However, these efforts were unsuccessful and the baby was pronounced dead at 1:30 a.m. According to Dr. Martin, she was unaware of any "brain problem" with the infant until she reviewed the medical charts that night at the hospital. She found no specific orders in the notes except that respondent planned to monitor the infant closely. Prior to being called, Dr. Martin had no indication from the nursery that the baby was in difficulty or experiencing any problem. However, this was to be expected since the infant's vital signs were stable when it was last checked just before midnight. Respondent did not apprise Dr. Martin of the baby's condition because, in his judgment, he did not believe there was an issue she would have to deal with while she was on-call. Further, the baby presented stable vital signs, appeared healthy, was not in distress, and was being monitored on a frequent basis by an experienced nursery staff. Therefore, respondent's failure to specifically apprise Dr. Martin of the baby's condition was not a deviation from the standard of care. Medical Records The amended complaint also charges respondent with having inadequate medical records in that they indicated "(n)o definitive treatment plan for Patient #1. Specifically, Respondent's only references to the treatment of Patient #1 were to 'monitor closely' and obtain neurological follow-up after discharge". The complaint goes on to allege that respondent failed to keep adequate medical records "justifying the course of treatment" and his actions were inconsistent with the records. Respondent's written records concerning the treatment of the baby include an entry made on September 15, 1989. The entry is found on page 96 of petitioner's exhibit 3. To the extent the undersigned was able to decipher respondent's handwriting, those notes are set forth below: 9/15/89 1:15p Asked to attend c/sect for this 37 1/2 wk old (illegible) Ultrasound dx of hydrocephalus (static) and absent corpus callosum. Mother presented with severe pain R/O (illegible) at 36 hrs (illegible) Meconium stain at delivery (illegible) but none below cords - 40% abruption; Initially no resp effort but responded to bag & mask vent and vigorous stimulation. Apgar 4, 8. Plan to monitor closely, will need neurological follow up after D/C. (Emphasis added) The underscored language constituted respondent's treatment plan. In this regard, petitioner's experts and the complaint allege that (a) Dr. Benton failed to keep adequate medical records justifying the course of treatment and (b) although respondent indicated he was going to monitor the baby closely, he took a different course of action and did nothing other than routine newborn care. According to respondent, the treatment plan meant that after discharge the infant would need closer than normal monitoring and follow-up care, including a referral to a neurologist and perhaps other specialists. The referral to a specialist would be made several months later. There is no evidence to support a finding that respondent made an inaccurate or false statement in his records. Further, there is insufficient evidence to support a finding that respondent failed to document his course of treatment. According to Drs. Hutto and Pashayan, whose testimony has been accepted on this issue, the appropriate course of treatment for this infant, as indicated in the notes, would be to closely monitor the infant in a regular nursery and to follow up as to the congenital defects between six and nine months after birth. Moreover, a regular nursery would be appropriate because the AGH nursery provided more frequent monitoring of the newborns than in other hospital nurseries. In addition, the accepted meaning within the medical community of the words "monitor closely" is that the physician is going to initially closely monitor the baby in the regular nursery to determine if any changes occur, and after discharge, to continue to monitor the child in an out- patient setting for growth, neurological development, and the like. If and when other conditions develop, at that point a different protocol would be required. Thus, it is found that respondent's medical records were adequate in terms of justifying his course of treatment, a neutral third party could glean from the records what transpired during the course of treatment, and respondent's actions did not deviate from the treatment plan.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the amended administrative complaint filed against respondent be dismissed, with prejudice. DONE and ENTERED this 7th day of November, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1991.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been licensed as a physician in the State of Florida, having been issued license number ME 0017602. He graduated from St. Louis University School of Medicine in 1966. He taught obstetrics and gynecology at the Portsmouth Naval Hospital in 1970-1972. He was board-certified in obstetrics and gynecology in 1972 and retired from the active practice of medicine in 1996. Licensed in Missouri, Virginia, and Florida, Respondent has never been disciplined by Petitioner or any other licensing authority. During his active practice of obstetrics and gynecology, Respondent specialized in high-risk obstetrics, i.e., the treatment of patients whose lives and pregnancies are at risk during the course of their pregnancy. He treated patients with diabetes, with heart disease, with blood disease, and with abnormal pregnancies such as ectopic pregnancies. He is well respected in the medical community, including by others who practice high-risk obstetrics. He enjoys a reputation for being a caring, concerned, intelligent, and capable physician. On November 30, 1993, R. C. was a 35-year-old patient who had been seen previously by Respondent's associate but not by Respondent. She had a long history of infertility and had been treated with fertility drugs. She had had one ruptured ectopic pregnancy that resulted in the removal of her right ovary. She had three failed attempts at in vitro fertilization. She reported to Respondent that she felt pregnant. She had taken three home pregnancy tests, which were positive. Her HMO primary care physician, following laboratory confirmation of her pregnancy, had referred her to Respondent. She advised Respondent that her last menstrual period was October 16, 1993. Respondent conducted a physical examination and agreed that she was pregnant. Her breasts were tender, and her uterus may have been a little soft but it was not enlarged. The presence of a normal-sized uterus at six weeks gestation, while not unusual, is one possible indication that a woman might have an abnormal pregnancy or be in the process of having a miscarriage. It raised the suspicion that the nature of her pregnancy, intra-uterine versus abnormal, must be considered by Respondent. However, enlargement of the uterus during pregnancy is different for each patient. Significantly, R. C. did not have any bleeding. She had no abdominal pain, and no adnexal masses were palpated. Essentially, she was asymptomatic for an abnormal pregnancy. Because of her history, Respondent considered R. C. to be at a higher risk for an abnormal or ectopic pregnancy than that expected for a normal female from the general population. It is generally understood that the risk of a repeat ectopic pregnancy is between 10 and 15 percent. Respondent was aware that even with an ectopic pregnancy, the uterus undergoes many of the changes associated with an early normal intra-uterine pregnancy, including an increase in uterine size and softening of the cervix. These changes occur as a result of the hormones circulating through the body during the early stages of pregnancy. Concerned since R. C. was at risk although asymptomatic, Respondent decided that the prudent course would be to evaluate R. C.'s pregnancy to rule out an ectopic or other abnormal pregnancy. Consequently, he took steps different from those that would be taken during a normal routine pregnancy. Respondent obtained an immediate quantitative human chorionic gonadotropin (hCG) value that day. The quantitative hCG is a diagnostic test available to physicians to evaluate the progress of a pregnancy when there is concern as to its nature. It is not a test that is ordered when there is no concern as to the nature of the pregnancy. The test measures the secretions of the placenta. It confirmed R. C.'s pregnant state and was an indicator of the presence of a placenta somewhere in her body. The hCG value was reported as 7,371. By itself, the hCG value told Respondent little about R. C.'s pregnancy. It did, however, provide some comfort that R. C. might have an intra-uterine pregnancy, particularly given her lack of symptoms for an ectopic pregnancy. It is generally understood that less than 25 percent of ectopic pregnancies have hCG values greater than 6,000. With an hCG value greater than 7,000, R. C. was in the group more likely to have an intra-uterine pregnancy. Her lack of symptoms also indicated that she had an intra-uterine pregnancy. It is generally understood that bleeding is present in over 85 percent of cases where there is an ectopic pregnancy. Pain is present in over 90 percent of the cases where there is an ectopic pregnancy, and over half of such women have palpable adnexal masses or lumps. R. C. was not experiencing any of what are known as the classic triad of symptoms for an ectopic pregnancy. Respondent obtained the hCG to be used as a baseline. The quantitative hCG is best used serially, and a single value has no real meaning in evaluating the nature of a pregnancy. By repeating the test at certain intervals, a physician can observe where the pregnancy might be going from a hormonal point of view. The initial value is a starting point from which other tests can be used to determine if the pregnancy is likely normal or abnormal. In an early normal intra-uterine pregnancy, the hCG values generally double approximately every 48 hours. Then, the rise begins to plateau, and the doubling time lengthens. To determine the course of a pregnancy, repeat tests of the hCG at set intervals can be an aid in the diagnosis of ectopic pregnancies. The possibility of an ectopic or other pathologic pregnancy exists when the hCG value fails to rise in accordance with the expectations of a normal intra-uterine pregnancy or does not rise at all. Although R. C. was asymptomatic, given her history, Respondent determined that he should obtain a repeat hCG and an ultrasound examination to confirm the presence of an intra- uterine pregnancy. He scheduled the repeat hCG and the ultrasound to be performed 7 to 10 days from that visit, or December 9, 1993. Respondent's plan of treatment was reasonable under the circumstances. If R. C. had had any of the classic symptoms consistent with an ectopic pregnancy, the standard of care would have required an immediate ultrasound. However, R. C. did not have any symptoms. It is a matter of physician judgment as to when an ultrasound examination and repeat hCG should be obtained for an asymptomatic patient. When there is no urgent need for the tests, the standard of care does not define the time frame in which the tests should be performed. Respondent wanted to wait another 7 to 10 days to allow for better visualization of the fetus on the ultrasound and to avoid a misinterpretation of the result of the repeat hCG test. By waiting, Respondent would likely obtain more useful information from the ultrasound than if the ultrasound were performed that day or during the next few days. He wanted to combine the findings of the ultrasound with the results of the repeat hCG test. Reasonably-prudent, similarly-trained physicians support Respondent's conclusions. The possibility of a misinterpretation of the hCG results is lessened by the passage of a reasonable period of time between tests. Before she left the office on November 30, 1993, R. C. was asked to contact Respondent in two days to obtain the results of her initial hCG test and to follow-up on her condition. On December 2, 1993, R. C. contacted Respondent. During their telephone conversation, R. C. expressed concern that her pregnancy might be in the fallopian tube rather than the uterus. Respondent wanted to calm her fears. He inquired as to how she was doing, and she reported that she was doing fine, no bleeding or pain. Generally, an ultrasound is not performed until at least the fifteenth or sixteenth week. After speaking with R. C. on December 2, 1993, Respondent continued with his plan to obtain an ultrasound evaluation of R. C. in her 7th or 8th week of gestation. Her history indicated that Respondent should confirm the nature of her pregnancy, and Respondent took those steps necessary to monitor and confirm R. C.'s condition. At approximately 6:00 p.m. on December 6, 1993, R. C. contacted Respondent's office and spoke with his midwife. R. C. complained that she was having some cramping that began after she had eaten a very heavy meal. This is not an unusual complaint during a pregnancy. R. C. reported that the cramping was resolving, but she just wanted to touch base with someone. The midwife advised her to go to the emergency room if the cramping worsened during that evening or if she was concerned. The midwife also advised R. C. that if she felt better by morning but not completely better, she should come in to the office. If she felt fine, she should keep her scheduled appointment for the ultrasound. The advice given to R. C. by the midwife was appropriate and consistent with the standard of care. R. C. began to experience severe lower abdominal pain on the morning of December 7, 1993, and was taken to the emergency room of Bethesda Memorial Hospital. She did not have any vaginal bleeding. Respondent was present in the hospital when R. C. arrived at the emergency room, and he came immediately upon being called. An ultrasound was performed and confirmed that the uterus was empty except for a pseudo-gestational sac. A viable ectopic pregnancy was seen in the left adnexal area with an estimated gestational age of 6 weeks. Respondent assessed R. C. as having a leaking tubal pregnancy, and he had her taken to surgery immediately following the ultrasound. Respondent removed her left tube and ovary and provided blood transfusions due to free blood found in the abdomen. R. C. experienced a fever following the surgery, but she recovered and was discharged from the hospital. Respondent's plan and action in evaluating R. C. on her November 30, 1993, visit to his office were in accordance with the standard of care, and were reasonable and appropriate. The patient's telephone report of doing well on December 2, 1993, strengthened Respondent's judgment that there was no immediate need to obtain an ultrasound and repeat hCG and that he could wait until those tests were likely to be reliable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 23rd day of February, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2000. COPIES FURNISHED: Tanya Williams, Executive Director Board of Medicine Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Britt Thomas, Esquire M. Rosena Hitson, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Grover C. Freeman, Esquire Jon M. Pellett, Esquire Freeman, Hunter & Malloy 201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602
Findings Of Fact Braylon Roberts was born on February 3, 2009, at St. Joseph’s Women’s Hospital located in Tampa, Florida. Braylon’s birth weight exceeded 2,500 grams. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Braylon. On July 1, July 9, and August 18, 2014, Dr. Willis performed a medical records review and wrote medical reports. In an affidavit dated December 29, 2014, he summarized his records review and opined as follows: In summary, labor was induced at term with an uncomplicated spontaneous vaginal delivery. The newborn was not depressed and required no resuscitation after birth. Hospital course was uneventful until DOL 2 when seizure activity was noted. MRI was consistent with cerebral stroke. The baby suffered a cerebral stroke at some time on DOL 2. Medical history of a normal spontaneous vaginal birth with no newborn depression and a normal initial newborn hospital course, suggests the stroke was not due to oxygen deprivation or mechanical trauma during labor, delivery or in the immediate post-delivery period. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post-delivery period. The additional records do not change any of the opinions expressed in the letter of 07/01/2014. The FHR monitor tracing does not suggest fetal distress during labor. This would be in agreement with the previous opinion that the newborn stroke did not result from oxygen deprivation during labor. NICA retained Raymond J. Fernandez, M.D. (Dr. Fernandez), a pediatric neurologist, to examine Braylon and to review his medical records. Dr. Fernandez examined Braylon on October 6, 2014. In a medical report regarding his independent medical examination of Braylon, Dr. Fernandez opined as follows: Braylon has a subtle (very mild) right hemiparesis that is not causing substantial motor impairment at this time and it is not predicted not [sic] to cause substantial motor impairment in the future. Speech is mildly to moderately delayed, but improving and he is improving with regard to basic learning skills in his regular kindergarten classroom setting. The ultimate outcome with regard to more complicated learning is indeterminate at this time, but he should continue to improve with appropriate input from teachers and family members. Braylon’s neurological injury was due to an ischemic stroke in the distribution of a branch of the left middle cerebral artery. His neurological injury was not caused by oxygen deprivation or mechanical injury due to an obstetrical event during labor, delivery, or in the immediate post delivery of [sic] resuscitation. Dr. Fernandez confirmed his opinion in an affidavit dated January 7, 2015.1/ 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 no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor, delivery, or the immediate post- delivery period. Dr. Willis’ opinion is credited. There are no contrary expert opinions filed that are contrary to Dr. Fernandez’s opinion that although Braylon has a subtle (very mild) right hemiparesis, it is not causing, and is not predicted to cause, substantial motor impairment. Further, Dr. Fernandez also opined that Braylon’s neurological injury was not caused by oxygen deprivation or mechanical injury due to an obstetrical event during labor, delivery, or in the immediate post-delivery or resuscitation. Dr. Fernandez’s opinion is credited.
Findings Of Fact Based upon the Stipulation of the parties, the following facts are found: Joel Davis Laton and Christine Anne Laton are the parents and legal guardians of Rose, and are the “Claimants” as that term is defined in section 766.302(3). On or about August 17, 2019, Rose incurred a “birth-related neurological injury” as that term is defined in section 766.302(2), which was the sole and proximate cause of Rose’s medical condition. David Miller, M.D., rendered obstetrical services in the delivery of Rose and, at all material times, was a “participating physician” as defined in section 766.302(7). SVMCR is a hospital located in Jacksonville, Florida, and is the “hospital” as that term is defined in section 766.302(6), where Rose was born. At birth, Rose weighed 4,650 grams. Rose died on August 17, 2019. Petitioners filed a Petition pursuant to section 766.305, seeking compensation from NICA, and that Petition is incorporated herein by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (the Plan).
Findings Of Fact Sebastian Maya was born on October 11, 2006, at Plantation General Hospital in Plantation, Florida. He was a single gestation. Based on the NICU discharge summary, Sebastian weighed 1,740 grams at birth. There is no dispute that Sebastian did not weigh at least 2,500 grams at birth. The Petition Under Protest was filed on August 11, 2014, which is more than five years after Sebastian’s birth.
