The Issue The issues presented concern the question of whether Petitioner, as a surviving spouse of Frederick A. McCall, is entitled to receive a pension, premised upon the fact that Officer McCall died in the line of duty, while employed with the Jacksonville Sheriff's Office.
Findings Of Fact On February 7, 1982, Frederick A. McCall, a uniformed patrol officer with the Jacksonville Sheriff's Office, Jacksonville, Duval County, Florida, died during the course of a routine arrest of a suspect for disorderly conduct and intoxication. Officer McCall is survived by his widow, Delores McCall, Petitioner in this action, who seeks the grant of a survivor's pension, in keeping with Subsection 121.091(7)(c)1., 2/ Florida Statutes, based upon the belief that her husband died in line of duty within the meaning of Subsection 121.021(14), 3/ Florida Statutes. The pension has been denied Petitioner by proposed action on the part of Respondent and that decision is contested by Petitioner in this Subsection 120.57(1), Florida Statutes, hearing. The date of hearing de novo was October 22, 1982, and the Recommended Order is being entered as a part of the hearing process. Officer McCall had been employed by the Jacksonville Sheriff's Office for more than ten (10) years. Some of the duty assignments which Officer McCall had performed prior to assignment to the uniformed patrol division included "pawn shop" detail. In that position he surveyed pawn shops to determine if those businesses were receiving illegal or stolen property. He was transferred from that assignment to a burglary detail conducting investigations in burglary cases. Testimony of his supervisors indicated that he performed in a satisfactory manner in those assignments. The only evidence of any problem concerns a counseling session and written reprimand related to over-utilization of a departmental automobile. This disciplinary action report may be found as Respondent's Exhibit No. 1, admitted into evidence, dating from August 20, 1981. In November, 1981, McCall was transferred to the uniformed patrol division. The basis for this transfer was not established in the course of the hearing. Nonetheless, the evidence is sufficient to demonstrate that the Jacksonville Sheriff's Office was satisfied that McCall could perform the duties of a uniformed patrol officer. In that position, McCall was assigned to several duty watches throughout the 24-hour duty cycle. These shifts were eight hours in length and McCall's duty watch would rotate on a monthly basis such that he would serve on each of the eight-hour duty shifts within the 24-hour duty cycle. Among the duty functions of a uniformed patrol officer within the Jacksonville Sheriff's Office are those functions of investigating disturbances "on the street," at business locations and residences. Testimony by various officers within the hearing established that the investigation of residential disturbance causes more apprehension on the part of an officer than those matters "on the street" or in business establishments. This is due to the familiarity of the suspect with his surroundings and the fact that the suspect might be more prone to act in a proprietary way in his home to impress family members or friends, at the expense of an arresting officer's safety. Officer McCall, in his duty shift of February 7, 1982, was dispatched to investigate a disturbance at 1139 North Laura Street, Jacksonville, Florida. This occurred at around 12:50 P.M. on that date. He was in the company of Officer Samuel Aldridge, in keeping with the custom of the Sheriff's Office to dispatch two (2) officers when dealing with residential disturbances. The officers had been informed that the nature of the complaint concerned a disturbance being caused by an intoxicated suspect. McCall was the primary responding officer. When the officers arrived, they went inside the residence and found the suspect Samuel Riley, standing on a stairway. Riley was reported as drinking and had broken out a window in the residence and turned over a can of paint. McCall asked Riley if he was the individual who had broken the window and the suspect informed McCall that he had broken out the window while he was "aggravated." McCall instructed Riley to stand against the wall. Riley complied and a "shake-down" check was made of his person to determine if he was carrying a weapon. Riley was not armed and McCall then took him by the belt in the back of Riley's trousers and began to escort Riley to the door of the residence. This procedure of supporting the suspected intoxicated person is pursuant to a policy of the Jacksonville Sheriff's Office. The suspect informed McCall that he did not need to be held by the pants and McCall responded that he would "help the suspect along." During the course of these matters, Riley was advised by McCall that he was under arrest for disorderly intoxication. Before they exited the door, Riley indicated that his shoe was coming off. When they reached the sidewalk outside the residence, Riley again complained about his shoe coming off and turned toward Officer McCall. This movement on the part of the suspect was not aggressive. Aldridge reached to get Riley by the arm and before this could be accomplished, McCall and the suspect toppled to the ground. McCall fell as a result of heart failure, not actions by Riley. Riley got up from the ground and was handcuffed. A rescue unit was called at 12:59 P.M. and left for a local hospital at 1:25 P.M., arriving at 1:31 P.M. At 2:00 P.M. Officer McCall was pronounced dead as a result of a heart attack. Samuel Riley was twenty-four (24) years old at the time of the arrest. He was six (6) feet tall and 185 pounds, and known by the officers to have problems with intoxication. In the course of the incident, Riley had been verbally belligerent but had not been physically aggressive toward the officers and he was not charged with any form of resistance in the arrest process. McCall had gone on duty at 7:00 A.M. on the date of his death and the number of incident responses that he had made in his capacity as police officer prior to the incident with Riley was not established, other than one call occasioned by a burglary alarm which proved to be false. McCall had commented to Officer Aldridge prior to the Riley incident that McCall felt sleepy and that he had a sensation of indigestion. Nether Officer McCall nor the Department had any suspicion of a heart condition on the part of McCall, notwithstanding the fact that he was five (5) feet, nine (9) inches tall and 221 pounds at forty-five (45) years of age. It was only after an autopsy was performed that it was discovered that McCall suffered from a pre-existing heart condition. Testimony of Dr. Bonifacio T. Floro and his autopsy report which is found as Respondent's Exhibit No. 3, establish that the cause of death was heart disease. There was an 80 percent occlusion by atherosclerosis of the left anterior descending and the left circumflex coronary arteries. The right coronary artery had 95 percent occlusion by atherosclerosis at the ostium and the remaining portion of the artery had a 75 percent occlusion. McCall's heart was a Class IV, the most dramatic condition possible in describing the seriousness of the occlusion. Four centimeters away from the ostium of the right coronary artery, a dark reddish gray occlusive thrombus was found. When the heart was transversely sectioned, a transmural white discoloration in the lateral wall of the left ventricle surrounding a 0.5 centimeter subendocardial area of marked hyperemia was found. This latter item indicated that he had suffered a previous myocardial infarction approximately six (6) weeks before. McCall also suffered from arteriosclerosis and his heart was enlarged. McCall's heart was such that stress, when added to the pre-existing condition would affect the oxygen requirement and promote the heart failure. While it is impossible to tell how long Officer McCall would have lived in view of the pre-existing heart condition, and recognizing that he may have died while asleep or by some other sedentary activity, the arrest circumstances involving the suspect was the incident that brought on the fatal heart attack.
Findings Of Fact Kayley was born January 26, 2009, at Winnie Palmer Hospital in Orlando, Florida. She weighed 2,928 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records of Kayley. In an affidavit dated July 9, 2012, Dr. Willis opined as follows: Based upon my education and experience, it is my professional opinion, within a reasonable degree of medical probability that Kayley Jazzmine Jimenez-Sanchez did not suffer a "Birth-related Neurological Injury" as defined by Florida Statutes Section 766.302(2) as there was no oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate post delivery period which resulted in injury to Kayley's brain or spinal cord. Attached to Dr. Willis' affidavit was a report detailing his findings based on the medical records of Kayley as follows: Fetal heart rate (FHR) monitoring on admission shows a normal baseline heart rate of 145 bpm. The pattern is reactive. The FHR monitor strip does not show any fetal distress prior to delivery. Cesarean section delivery was done without difficulty. Birth weight was 2,928 grams (6 lbs 7 oz's). Apgar scores were 4/8. Umbilical cord blood gas was normal with a pH of 7.28 and base excess of -1.9. The baby was taken to the nursery. Difficulty with feeding occurred with emesis after attempting to feed. X-Ray showed a dilated loop of bowel. Gastorgrafin enema was done for evaluation and identified Small Left Colon syndrome. Neurology evaluation at 2 days of age was done for jitteriness. Exam shows abnormal muscle tone. EEG on DOL 2 was normal. Head ultrasound also had normal findings. Skull X-Ray showed asymmetry of the skull bones. MRI on DOL 3 identified dilation of the left lateral ventricle. There were no findings suggestive of hypoxic ischemic encephalopathy. Genetic evaluation was done for the above findings and was negative. Chromosome analysis was normal. Genomic hybridization array was negative. In summary, there was no fetal distress during labor. Delivery was by Cesarean section due to breech presentation. The newborn was not depressed. Umbilical cord blood gas was normal with a pH of 7.28. The baby was identified to have congenital malformations, including Small Left Colon syndrome and dilation of the left ventricle in the brain. MRI did not suggest hypoxic ischemic brain injury. 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. 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 Kayley did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or immediate post- delivery period is credited.
The Issue The ultimate issue to be resolved in this proceeding is whether the Petitioner is eligible to receive in-line-of-duty death benefits in accordance with Section 121.091(7)(c), Florida Statutes. Petitioner contends that her husband was a member of the Florida Retirement System and that his death arose out of the performance of duties required by his employment. Petitioner specifically contends that her husband suffered a fatal myocardial infarction, or heart attack, as a result of physically and emotionally stressful duties that he was required to perform at work. The Respondent contends that there is no causal connection between any stressful work conditions that existed and the death of Petitioner's husband.
Findings Of Fact The Petitioner is the widow of Nicholas Orlando. The deceased Nicholas Orlando was employed at the time of his death by the Broward County Board of County Commissioners as a maintenance supervisor at the County's sanitary landfill. The deceased was an excellent employee. He was charged with responsibilities for maintaining heavy equipment that was required to process trash at the landfill. He served as a "working supervisor." Generally, his job would require that he explain tasks that needed to be accomplished to mechanics and laborers who worked under him. If the job demanded it, the deceased would perform labor along with the men that he supervised. He was a member of the Florida Retirement System. During the week preceding March 6, 1980, the deceased was confronted with a heavy and difficult workload. There were ongoing maintenance problems with a tire shredding machine, and the chain and track on a large bulldozer needed to be changed. The maintenance personnel had not previously been called upon to change the chains on this large bulldozer, and they did not have the proper tools. Removing the old chain turned out to be a very physically demanding task. The Respondent, together with his workers, had to use a heavy sledgehammer to remove pins from the chain and welding equipment to remove bolts. The decedent worked along with his crew in removing the chain. The decedent suffered symptoms of a cold in the days prior to March 6, 1980. He had a cough. He stayed home from work on March 5, 1980, because of these symptoms. He returned to work on March 6 and put in a full workday. The evidence is inconclusive as to what specific duties the decedent performed on March 6. It is not clear from the evidence whether the difficulties with the bulldozer chain occurred on that day or a week earlier. It does appear that the decedent worked hard on March 6. When he arrived home, his wife observed him as being dirtier than he had ever been and extremely tired. The decedent arrived home from work at approximately 4:45 p.m. on March 6, 1980. In addition to being dirty and tired, he was feeling ill. He was not interested in eating. He became more ill; and late that night, he was taken to the emergency room at Plantation General Hospital in Plantation, Florida. He was admitted to the hospital shortly before midnight. Doctors at the hospital diagnosed the decedent as having suffered an acute myocardial infarction. It was determined that he was suffering from a coronary arteriosclerotic heart disease. His condition continued to deteriorate while he was in the hospital, and he died on March 9, 1980. Death resulted from the myocardial infarction. Many factors can bring on coronary artery diseases. The conditions can be inherited and can result from smoking, diabetes, and hypertension. The decedent was a smoker, and he suffered from diabetes. Myocardial infarction can be brought about as a result of heavy physical activity or emotional strain. If a person is suffering from a heart disease, any activities which markedly increase the heart rate can result in infarction. While it is possible that the decedent's myocardial infarction was brought about by strenuous physical activity at his job, the evidence is insufficient to support a finding of fact to that effect. The fact that the decedent was a smoker and a diabetic could have brought on the infarction if the decedent had been sedentary. While the evidence does support a finding that the decedent was working hard in the days prior to his death, a conclusion that the hard work resulted in his death can rest only on speculation. The evidence does not establish it.
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 one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See, Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So.2a 299 (Fla. 1st DCA 1992). The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.
The Issue The issue in this case is whether Petitioner, whose husband, a county police officer, died of heart failure at work, is entitled to receive “in line of duty” death benefits under the Florida Retirement System, which Respondent administers.
Findings Of Fact The Dispute, in a Nutshell On the morning of March 10, 2000, while on duty, Officer Randall Kugler (“Officer Kugler”) of the Miami-Dade Police Department suffered a fatal heart arrhythmia and died at the wheel of his police cruiser. He was 37 years old. Officer Kugler’s wife, Petitioner Marilyn Kugler (“Mrs. Kugler”), and their two minor children survive him. Officer Kugler was a member of the Florida Retirement System (“FRS”), which is administered by Respondent Department of Management Services, Division of Retirement (“Division”). Mrs. Kugler maintains that she is the surviving spouse of a member “killed in the line of duty” and thus is entitled to receive generous “in line of duty” death benefits under the FRS. The Division disagrees with her position and, thus, has denied Mrs. Kugler’s application for such benefits. Their dispute spawned the instant administrative litigation. The Events Preceding Officer Kugler’s Death Officer Kugler was an expert in inspecting heavy equipment (cranes, trucks, bulldozers, etc.) to determine if such property might have been stolen or otherwise involved in criminal activity. As a specialist in this area, Officer Kugler was assigned to an auto theft task force that conducted investigations in cooperation with other local law enforcement agencies as well as the FBI and the U.S. Customs Service. At about 9:00 a.m. on March 10, 2000, Officer Kugler arrived at the King Ocean Yard in Port Everglades, Florida, where he had been sent to assist U.S. Customs Service inspectors with the examination of two heavy machines destined for export. The pieces——a crane and a bulldozer——were very large; each weighed many tons. A crucial object of such inspections is to locate the public identification number, or PIN, of the subject piece of equipment. The PIN is a starting point in determining whether the machine is stolen. Finding the PIN on heavy equipment can be difficult because, among other reasons, the area to be searched is large; the numbers are frequently hidden in hard-to- access places (to thwart those who might want to remove them); and the numbers are often covered by paint, rust, dirt, and grease. As he went about his work that morning, Officer Kugler climbed aboard and poked around the equipment. His on-the-job activities——e.g. bending, crawling, climbing, walking——clearly involved some physical exertion. In addition, to expose concealed PINs, Officer Kugler was required to scrape or brush away paint and other obstructions, and this, too, entailed physical exertion. To facilitate the removal of layers of paint, rust, grease, and the like, Officer Kugler customarily used solvents marketed for cleaning carburetors and removing gaskets. These products contained a chemical known as Xylene. The Miami-Dade Police Department issued its officers, including Officer Kugler, two different brands of such cleaning agents, which were packaged in aerosol spray cans. Officer Kugler used one or both of these employer-issued sprays on March 10, 2000, and thus was exposed to Xylene.1 Officer Kugler’s inspection of the crane and bulldozer took about one hour. After finishing his work at King Ocean Yard, Officer Kugler left Port Everglades to return to Miami. Sadly, less than an hour later, he was found in Opa Locka, Florida, slumped over the steering wheel of his vehicle with the engine running and the doors locked, having died, still on duty, en route to his next assignment at Kauff’s Towing. Causes of Death The record contains the depositions of three physicians who opined as to the causes of Officer Kugler’s death. Two of these doctors are pathologists who were, at all times material to this case, medical examiners in the Miami-Dade Medical Examiner Department; as such, they participated in Officer Kugler’s autopsy. The third is a cardiologist named James Margolis. Mrs. Kugler retained Dr. Margolis as an expert witness for purposes of this litigation. The testimony of these experts is generally consistent——that is, their opinions do not conflict on any material matters. All are in agreement (and the undersigned finds) that the immediate cause of Officer Kugler’s death was a sudden and unexpected fatal heart rhythm disturbance (or arrhythmia). There is also no genuine dispute (and the undersigned finds) that Officer Kugler’s left descending coronary artery was partially blocked at the time of his death. (His other vessels, however, were normal.) This type of blockage (or occlusion) is associated with a common form of heart disease known as arteriosclerosis. Officer Kugler’s diseased artery was about 50 to 70 percent obstructed. Such blockage tends to become symptomatic at around 70 percent. As it happened, Officer Kugler had not experienced any symptoms, been diagnosed as having, or been treated for any heart disease. The pathologists were largely noncommittal when asked to identify the trigger(s) that precipitated Officer Kugler’s fatal heart rhythm disturbance. Dr. Margolis, on the other hand, who had reviewed the depositions of the two medical examiners as well as those of the several law enforcement personnel who were with Officer Kugler at the King Ocean Yard before he died, did form an opinion as to the substantial cause of the fatal arrhythmia, which he expressed as follows: It’s my opinion within a reasonable degree of medical probability that Mr. Kugler did, indeed, suffer a fatal arrhythmia and the fatal arrhythmia was caused either directly or indirectly by the heavy exertion in the presence of Xylene fumes, and that these in combination with what would have been otherwise a benign form of heart disease caused the fatal arrhythmia. The undersigned accepts the uncontroverted opinion of Dr. Margolis as to causation and determines, as a matter of fact, that Officer Kugler’s death resulted from a combination of work-related activities and exposures operating in conjunction with an undiagnosed and undetected preexisting condition (arteriosclerosis), which factors together precipitated the fatal heart arrhythmia. On the Credibility of Dr. Margolis The Division disputes the validity of Dr. Margolis’s opinion on causation, arguing that it is unfounded. Normally, the undersigned, as the trier of fact, does not explain why he has credited certain evidence. Dr. Margolis’s testimony, however, could be considered the linchpin of Petitioner’s case. Moreover, because Dr. Margolis did not testify in person at the final hearing, the undersigned was unable to witness his demeanor and other indicia of credibility that personal observation permits. Therefore, the undersigned will explicate several factors that he regarded as important in deciding to accept Dr. Margolis’s testimony. To begin, as mentioned, Dr. Margolis’s opinion on causation was not refuted. The pathologists’ opinions——which, to be sure, stopped short of linking Officer Kugler’s death to the performance of job-required duties——were outcome neutral (and consistent with Dr. Margolis’s testimony) because neither medical examiner excluded work-related factors from among the contributing causes of Officer Kugler’s death. And the Division, it should be stressed, presented no expert medical testimony to contravene Dr. Margolis on the subject of causation. While the undersigned, as the fact-finder, could reject unrebutted expert testimony, he would need to offer a reasonable explanation for doing so.2 He can think of none. Instead of offering evidence, the Division elected merely to contend that Dr. Margolis’s opinion is unsupported, urging that the depositions of the witnesses who saw Officer Kugler at work on March 10, 2000, do not support the factual assumptions which underlie the expert’s testimony, namely, that Officer Kugler engaged in “heavy exertion in the presence of Xylene fumes.” The Division’s arguments are not persuasive for several reasons. First, the Division failed to cross-examine Dr. Margolis on these points. If Dr. Margolis had been asked, for example, what he meant by “heavy exertion” or otherwise been challenged to defend that description, perhaps he would have offered a brilliant explanation——or perhaps he would have stumbled and undermined his opinion. Absent such inquiry, however, the undersigned considers it basically irrelevant whether Officer Kugler’s exertion is characterized as “heavy” or not. The bottom line is, the expert concluded that Officer Kugler’s exertion was sufficiently “heavy” to help trigger the fatal arrhythmia, and the Division has not shown, through proof, that Dr. Margolis was incorrect in this regard. Second, the record shows that Dr. Margolis reviewed all the pertinent evidence in rendering his opinion on causation.3 Indeed, Dr. Margolis examined the depositions that are in evidence in this case——the very depositions that the Division contends fail to support his opinion. The Division argues that the expert misinterpreted these data sources. The Division’s argument, however, is not evidence; Dr. Margolis’s opinion, in contrast, is. Without countervailing proof, the undersigned finds no reasonable grounds for second-guessing the cardiologist on medical matters within his area of expertise. Finally, to the extent the Division contends that Dr. Margolis is mistaken because Officer Kugler was not shown to have been exposed to Xylene, its position is untenable in light of the undersigned’s finding that Officer Kugler was, in fact, exposed to the chemical in the hours before his death.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order awarding Mrs. Kugler the “in line of duty” death benefits to which she is entitled under the Florida Retirement System. It is further ORDERED that Petitioner’s Request to Reserve Jurisdiction is denied because Mrs. Kugler has not articulated a statutory basis for awarding attorneys’ fees and costs in this case. DONE AND ENTERED this 21st day of January, 2003, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 21st day of January, 2003.
Findings Of Fact Aiden Curtis Gordon Morris was born on September 15, 2011, at Sacred Heart Hospital in Pensacola, Florida. He weighed 3,300 grams at birth. NICA requested that Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine to review the medical records of Ms. Greenough and Aiden. The purpose of his review was to determine whether an injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital due to oxygen deprivation or mechanical injury. Dr. Willis reviewed the records and made the following findings, which he set forth in an affidavit attached to the Motion for Summary Final Order. According to the medical records, the mother Natalie Greenough was a 16 year old G1. She presented to the hospital at 38 weeks gestational age in labor. Her cervix was dilated 5 to 6 cms on admission. Amniotic membranes were ruptured with clear fluid. The fetal heart rate (FHR) monitor on admission shows a reactive heart rate pattern with a normal baseline rate of 120 to 130 bpm. Some variable FHR decelerations and episodes of reduced FHR variability are noted during labor. An abnormal FHR pattern with reduced heart rate variability and variable decelerations continued for about 90 minutes prior to delivery. Severe variable decelerations with a drop in FHR to <60 bpm occurred about 40 minutes before delivery. Cesarean delivery was done for the non- reassuring FHR pattern. Birth weight was 3,300 grams. The newborn was depressed with Apgar scores of 1/4/6. Umbilical cord blood gas was abnormal with a reported pH of 6.99. Initial resuscitation included bag and mask ventilation with a good improvement in heart rate. Despite the improvement in heart rate, poor perfusion and respiratory depression continued. Intubation for mechanical ventilation was required. Admission physical exam in the NICU describes the baby as lethargic with poor perfusion of the extremities and on the ventilator for respiratory depression. Body cooling was initiated due to hypoxic ischemic encephalopathy (HIE). The newborn hospital course was complicated. Multisystem failure occurred. Poor perfusion required intravenous fluid boluses. Respiratory depression was present at birth and required intubation and mechanical ventilation. Disseminated intravascular coagulation manifest with hematuria and required fresh frozen plasma. Platelet count dropped to 91,000. Seizure activity was noted on DOL 2. EEG was consistent with mild HIE. MRI on DOL 7 was reported as normal. In summary, labor was complicated by fetal distress, requiring Cesarean delivery. The newborn was depressed. Umbilical cord blood gas showed significant acidosis with a pH or 6.99. The baby was lethargic, had poor perfusion and respiratory depression at birth. Hospital course was complicated by multisystem organ failure. Although the MRI on DOL 7 was reported as normal, EEG was consistent with HIE. Dr. Willis opined that there was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery, and continuing into the immediate post delivery period, which resulted in brain injury. He could not opine on the severity of the injury. NICA requested Raymond J. Fernandez, M.D. (Dr. Fernandez), a pediatric neurologist, to review the medical records for Aiden and to conduct an independent medical examination of Aiden. Dr. Fernandez examined Aiden on August 8, 2012. He made the following findings, which he set forth in an affidavit attached to the Motion for Summary Final Order, based on the medical records and a history from Ms. Greenough. Aiden's mother, Ms. Natalie Greenough, was admitted to the hospital on September 15, 2011, in active labor. The expected date of delivery was September 24, 2011. She received adequate prenatal care and the pregnancy was uncomplicated. Mrs. Greenough was 16 years old during the pregnancy. Her blood pressure on admission was 110/50 and pulse rate was 80. There was arrest of descent during labor and a nonreassuring fetal heartrate with bradycardia detected, requiring delivery by Cesarean section. The Apgar scores were 1, 4, and 6 and the umbilical artery cord blood pH was 6.9. Aiden required intubation in the delivery room. In the initial newborn examination he was described as having decreased movement and tone, poor perfusion and apnea. Upon admission to the Neonatal Intensive Care Unit, birth weight was 3,300 grams, length 52 centimeters, head circumference 36 centimeters, temperature 101, heart rate 154 and blood pressure was 55/22. He was lethargic and movement was reduced. He aroused during the examination. The Moro reflex was present. Sucking reflex was present, but diminished. Gag reflex was present as were plantar and palmar grasping reflexes. He was intubated and receiving assisted ventilation. He met clinical and neurological criteria for whole body cooling, which was initiated promptly (criteria for whole body cooling included periodic hypotohnia, decreased activity and lethargy). There was reduced urine output and hematuria due to urethral trauma during insertion of a Foley catheter. Seizures were a concern on September 16th, treated with Phenobarbital. There was seizure recurrence on September 18th and Phenobarbital was continued. On September 21, 2011, muscle tone and activity were decreased, but improving. Body rewarming began on September 21, 2011. Cranial ultrasound on September 15th was normal and MRI of the brain on September 21, 2011 was normal also. Specifically, there were no areas of restricted diffusion. An EEG on September 20, 2011, was abnormal due to a somewhat poorly organized background, consistent with a mild encephalopathy, but no seizures. In the discharge summary dated September 25, 2011, it was stated that muscle tone and activity were normal. MRI of the brain at four months of age was reportedly normal. * * * Following discharge, he was healthy. He displayed some periodic eye rolling movements for which he was examined by his Neurologist who performed a brain scan and an EEG that he stated were normal. These episodes have nor recurred and he has not required antiepileptic drug treatment since he was in the nursery. Initially, it was felt that Aiden had mild cerebral palsy because of tightness in his arms, but this has resolved. His neurologist in the Pensacola area thought that his development and his physical examination were normal at the time of the last visit and he did not feel that a return appointment was necessary. Aiden was evaluated by the Early Steps Development Program and he has been enrolled in physical therapy. He has been able to shift himself to the sitting position for several weeks. He crawls or creeps and about a month ago began pulling himself to the standing position. He is able to stand for a few seconds independently, but does not yet take independent steps. He cruises along furniture. Aiden was described as being alert, attentive, and inquisitive. He babbles, imitates sound, says "ma-ma" and "da-da" meaningfully and says and waves "bye-bye" meaningfully. He plays pat-a- cake. He uses both hands well. Picks up small objects with thumb and index finger, feeds himself and claps his hands in play. After performing a physical examination on Aiden on August 8, 2012, Dr. Fernandez made the following findings: PHYSICAL EXAMINATION: Head circumference 47 centimeters (50th percentile). Weight last week was 20 pounds 13 ounces. No dysmorphic features. No skin abnormalities of neurological significance. Funduscopic examination was limited, but grossly normal. Heart, lung and abdomen were normal. No orthopedic abnormalities. Skull was symmetric. There were no abnormalities over the spine. Aiden was alert. Attentive and inquisitive. He played appropriately with toys and spinning and rotating parts that he manipulated well. He consistently turned when his name was called. He babbled and said and waved "bye-bye" when leaving the room. Vision and hearing were grossly normal. Eyes were well aligned and eye movement was full, horizontally and vertically, without significant nystagmus. There was no drooling. Muscle tone was normal, proximally and distally. He shifted himself to sitting and crawling positions and pulled to stand. He cruised along furniture and took steps with hands held. He had good sitting balance and shifted position quickly and in well coordinated fashion. He moved about either in the crawling or sitting position by pushing with his arms or either leg. He did not yet crawl in reciprocal fashion. Muscle tone was normal and he moved all limbs well. There were no focal or lateralized motor abnormalities. No tremor or involuntary movement. He had well-coordinated pincer grasp, bilaterally, and transferred smoothly from hand to hand. He held one block in each hand and banged them together. He stretched his arms and leaned forward for toys that were otherwise out of reach. He looked for objects that were hidden from view. Deep tendon reflexes were 2+. There were no pathological reflexes elicted. Based on his review of the medical records, discussions with Ms. Greenough, and a physical examination of Aiden, Dr. Fernandez opined that there was no evidence of brain injury due to oxygen deprivation during labor and delivery resulting in substantial and permanent mental or motor impairment. He felt that Aiden should continue to improve in all areas and did not anticipate that in the future that there would be evidence of substantial mental and motor impairment due to oxygen deprivation during labor and delivery. 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. Fernandez. The opinion of Dr. Fernandez that Aiden is not substantially and permanently mentally and physically impaired is credited.
Findings Of Fact On October 27, 1993, AHCA's predecessor agency, the Department of Business and Professional Regulation (DBPR) went before a probable cause panel of the Board of Medicine and requested a probable cause finding essentially that the Petitioner practiced psychiatric medicine below the applicable standard of care when he transferred a psychiatric patient at the Pinellas County Jail from one location to another within the jail. The panel found probable cause, and DBPR filed its Administrative Complaint, DBPR Case No. 92-17009, later DOAH Case No. 94-5120. In pertinent part, the Administrative Complaint alleged: that the patient had been upgraded from suicide precaution to suicide observation on the day before Dr. Kayan saw him on June 29, 1990; that Dr. Kayan transferred the patient to Delta Unit 1, 2 or 3 (from B-Wing) on July 4, 1990; that the Delta units are an extension of the medical wing for inmates who do not need acute psychiatric care and do not pose a suicidal threat; that there was no documentation that Dr. Kayan consulted with either the jail psychologist or the other jail psychiatrist before the transfer; that Dr. Kayan did not see the patient during the three days following the transfer; that the patient attempted suicide on July 7, 1990; and that Dr. Kayan practiced psychiatric medicine below the applicable standard of care "by transferring Patient No. 1 from a suicide observation unit . . . to a unit in the jail where Patient No. 1 was not given the needed observation or security." Eventually, a Final Order was entered finding that AHCA did not prove the charges. DBPR's request for a probable cause finding was based on an expert opinion from Charles Rosenberg, M.D., which was in turn based on an DBPR's Investigative Report. Dr. Rosenberg is an internist, not a psychiatrist, and he has not practiced medicine since 1986. However, he has expertise in the practice of medicine in prison settings, and it was reasonable for the DBPR to rely on his opinion for purposes of determining whether there was probable cause. The Investigative Report covered interviews with several witnesses and the pertinent medical records. Level of Patient Observation Dr. Rosenberg's opinion report (Exhibit 2b) stated that Dr. Kayan on July 4, 1990, created a medical record that the patient would be transferred to the Delta 1, 2 or 3, and that "W. C. was then transferred to a less secure housing environment on that date. . ." (pg. 1). In addition, Dr. Rosenberg stated that "the decision by Dr. Kayan to transfer him to a housing area where he would be less frequently observed, was made without any input from any of the mental health professionals" and that the transfer was "to a housing area with considerably less surveillance and where he apparently would no longer be seen on a frequent basis, if at all, by mental health staff." (pg. 2). Dr. Rosenberg also stated his opinion that the "patient was not stable enough to be taken off of suicide observation, as the subsequent course of events so tragically verifies." (pg. 3) Dr. Rosenberg then repeated, on page 4, that the patient was "transferred to a less secure housing environment " A careful and thoughtful reading of the medical records from the Pinellas County Jail (Exhibit 10.2c) would have suggested that the level of observation of the patient had actually been changed on June 29, and not July 4, 1990. On page 30 of said exhibit, Dr. Kayan used the Greek letter delta for the word "change" to indicate that, on June 29, 1990, he changed the patient's status from "SO to PO", meaning an upgrade from suicide observation status to psychiatric observation status. On this same page is Dr. Kayan's order of July 4, 1990, which merely transferred the patient to another unit, the Delta Unit, without changing the level of inmate observation. Dr. Rosenberg missed the significance of Dr. Kayan's notation on June 29, 1990. As a result, he assumed that the change in status with attendant changes in protocol occurred on July 4, 1990. Neither the DBPR staff nor any member of the probable cause panel noticed Dr. Rosenberg's error. Dr. Rosenberg's error is more understandable in light of other parts of the Investigative Report. On page 8, the Investigative Report related the substance of an interview with Dr. VanDalen, who is identified as a jail social worker with a Ph.D. in education psychology: It was Dr. Van DALEN's [sic] job at that time to assess and evaluate the inmates on B-wing in conjunction with the psychiatrist (Dr. KAYAN) regarding the inmates' suicidal tendencies and to determine whether or not they were stable. . . . On the day of W. C.'s assessment, W. C. Appeared to be stable enough to be considered for movement (to Delta). Delta is an extension of the medical wing for inmates who do not need the acute psychiatric care. They have been stabilized and therefore placed in Delta wing which is a psychiatric observation wing. Although he provided input into whether or not W. C. should be transferred, Dr. KAYAN made the final decision. W. C., however, was stabilized at that time. . . . If they at any time felt uncomfortable with transferring him, they would not have done so. When they made the decision to transfer him, they had his (W. C.'s) input, the information in his medical chart, including his previous records along with the information from jail officers and nurses. It would not have been unreasonable for Dr. Rosenberg and the panel to assume, based on this part of the report, that care was taken in assessing the patient before transfer from B-wing to Delta because the patient's status and level of observation and security was being changed at that time. Even if there were no change in status between B-Wing and the Delta units, it also was not clear from the Investigative Report that there also was no difference in level of observation and security between B-Wing and the Delta units. As already indicated, parts of the report of the interview with Dr. VanDalen suggested that patients received greater attention on B-Wing. Meanwhile, page 6 of the Investigative Report related the substance of an interview with Frances M. Bell, Director of Nurses: Currently and during the time in question, B-Wing was a medical unit which included acute psychiatric patients as well as medical patients who needed further evaluations. Individuals are initially evaluated in B-wing by the psychiatrist and medical doctor. They are closely monitored every fifteen (15) minutes or if they are an acutely suicidal person they are monitored one on one, twenty-four (24) hours/day. In the unit, they are stripped for their own protection. B-wing is just an intake area for individuals to be evaluated or until an acute condition is under control, i.e. suicide threat. They then leave the unit to go to Delta Unit which is an direct [sic] 1/ observation unit having one officer in a pod of sixteen patients or inmates. These individuals are checked every fifteen minutes. The records indicate that W. C. was in pod 2, a psychiatric observation pod where he was checked every fifteen (15) minutes. The nurse also makes her rounds at 9 A.M., 1 P.M., 5 and 9 P.M. It is not difficult to understand why there might have been confusion as to whether there was a difference in level of security and observation on the two wings, even assuming the patient's status was the same. Alleged Lack of Input from Others Dr. Rosenberg also asserted that the decision to transfer the patient to the Delta Unit on July 4, 1990, was made without input from any other mental health professional. On page 2, Dr. Rosenberg's report stated: "The decision by Dr. Kayan to transfer him to a housing area where he would be less frequently observed [was made without input from any of the other mental health professionals] who had participated in his initial management." [Emphasis added.] On page 3, paragraph 5, Dr. Rosenberg's report stated: "[No consultations were involved] in this case. More to the point, however, was the [lack of any communication between any members of the mental health staff] regarding this patient which each of them had seen and evaluated. Thus, the decision to transfer him out of suicide observation was [made by Dr. Kayan, without their input]." [Emphasis supplied.] Given Dr. Rosenberg's belief that the change from suicide observation to a lesser status occurred on July 4, 1990, the investigative report would not support the conclusion that Dr. Kayan made the decision on his own, without input. Clearly, according to the report of the interview with Dr. VanDalen contained in the Investigative Report, Dr. VanDalen participated in the decision. See Finding 7, above. On the other hand, it is possible that Dr. Rosenberg did not consider Dr. VanDalen to be one of the "other mental health professionals." The report stated that, although VanDalen had a Ph.D. in Education Psychology, his job title was Forensic Social Worker. Dr. Rosenberg's concerns centered on the absence of any indication that Dr. Kayan consulted with Dr. Dennis, a psychiatrist who saw the patient on July 3, 1990, and noted no improvement in his mental condition. Besides, ironically, if Dr. Rosenberg had correctly understood that the decision to transfer the patient out of suicide observation was made on June 29, not July 4, 1990, his belief that the decision was made without the input of others would have been supported by the investigative report and the medical records. Which Health Care Practitioner was Responsible? Dr. Rosenberg, in his report, attributed the responsibility for this patient, for the time period between July 4, the date of transfer to Delta, through July 7, the date of the suicide attempt, to Dr. Kayan. On page 7 of the Investigative Report, Frances Bell, the director of nurses, was quoted: [D]uring the time in question, Georgia BRANDSTADTER- PALMER was the psychiatrist [sic] and Donald Van Dalen [sic] was the social worker both of whom were employed by the jail. Dr. Donald DENNIS, a psychiatrist who was also working at the jail on the weekends at the time, is no longer working as such and his whereabouts are unknown. Dr. Dennis was interviewed by the Investigator, and the report of his interview appears on page 9 of the Investigative Report. Dr. Dennis stated that he "vaguely recalls W. C. whom he did not see on the day he attempted suicide although it had occurred on the weekend while he was on duty." However, given Dr. Rosenberg's mistaken belief that the patient's status was upgraded from suicide observation to psychiatric observation status on July 4, 1990, and the confusion in the Investigative Report as to the differences between the two, it would not be unreasonable for Dr. Rosenberg to be of the opinion that it was incumbent upon Dr. Kayan to take steps to communicate directly with Dr. Dennis or one of the psychologists to be sure that one of them saw the patient after the transfer to Delta. In addition, the failure of the psychiatrists and psychologists to see the patient at all from July 4 to July 7 could have been viewed as support for Dr. Rosenberg's belief that the patient's status was changed on July 4, 1990. Amended Administrative Complaint After the initiation of the original Administrative Complaint on November 4, 1993, discovery was undertaken by the parties. In addition, AHCA obtained an additional expert opinion from Gerald H. Ratner, M. D. (Exhibits 2c and d and 4a). Based upon this additional information, AHCA recommended to the Probable Cause Panel that an Amended Administrative Complaint be filed against Dr. Kayan adding allegations that Dr. Kayan failed to adequately monitor and/or further evaluate the patient after prescribing the drug Ascendin and that Dr. Kayan failed to keep adequate medical records. The matter was submitted to a new Probable Cause Panel on March 8, 1995, and the second Probable Cause Panel found probable cause to file the Amended Administrative Complaint.
The Issue At issue in this proceeding is whether Derrick L. King, Jr., 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 Derrick L. King and Heather Hollis are the parents and natural guardians of Derrick L. King, Jr. (Derrick), a minor. Derrick was born a live infant on March 18, 1997, at Indian River Memorial Hospital, a hospital located in Vero Beach, Florida, and his birth weight was in excess of 2500 grams. A "participating physician," as defined by Section 766.302(7), Florida Statutes, delivered obstetrical services during the course of Derrick's birth. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimant demonstrates, more likely than not, that the infant suffered an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, Derrick's neurologic condition is dispositive of the claim and it is unnecessary to address the timing or cause of his condition. Derrick's neurologic status On June 17, 1999, following the filing of the claim for compensation, Derrick was re-evaluated by Michael Duchowny, M.D., a board-certified pediatric neurologist. The results of Dr. Duchowny's examination were reported as follows: PHYSICAL EXAMINATION reveals Derrick to be alert and cooperative. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. NEUROLOGIC EXAMINATION reveals a socially oriented child who does not express himself in words. He gestures for his needs, but is clearly tuned into the social situation. His vision and hearing status seem to be intact. He drools frequently. There is a clear left hand preference, although the right hand will grasp for objects. His eye contact is good. There are full extraocular movements and normal ocular fundi. The deep tendon reflexes are 2 to 3+ bilaterally with flexor plantar responses. Derrick clearly prefers to grasp with the left hand, although there is no obvious weakness on the right. His gait is somewhat asymmetric with diminished right arm swing. In SUMMARY, Derrick's examination shows evidence of developmental language problems and functional diminished use on the right side. However, his muscle strength is clearly good and he has full range of motion without contractures or spasticity. In Dr. Duchowny's opinion, which is credited, Derrick's neurologic impairment may best be described as mild to moderate, as opposed to substantial. Consequently, Derrick is not substantially mentally and physically impaired.
