The Issue The issues are whether the Agency for Health Care Administration (AHCA) is entitled to repayment of $1,152,237.19 in Medicaid reimbursements that it made to Respondent pursuant to section 409.913(11), Florida Statutes; the amount of sanctions, if any, that should be imposed pursuant to sections 409.913(15) through (17); and the amount of any investigative, legal, and expert witness costs that AHCA is entitled to recoup pursuant to section 409.913(23).
Findings Of Fact Background AHCA is designated as the state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act. This program is designated as the Medicaid Program. See § 409.902(1), Fla. Stat. Respondent is a dentist licensed to practice dentistry in the State of Florida. His specialty is oral surgery. This case involves a Medicaid audit of Respondent, which relates to dates of service from January 1, 2011, through June 30, 2013 (the audit period). During the audit period, Respondent was enrolled as a Medicaid provider and had a valid Medicaid provider agreement with AHCA. He provided services in a seven-county area in Central Florida, with the vast majority of patients being referred from general practice dentists. As an enrolled Medicaid provider, Respondent was subject to federal and state statutes, regulations, rules, policy guidelines, and Medicaid handbooks incorporated by reference into rule, which were in effect during the audit period. Pursuant to section 409.913, AHCA's Bureau of Medicaid Program Integrity conducted an audit of Respondent's paid Medicaid claims for medical goods and services to Medicaid recipients. The audit was performed after a dental peer in another case identified errors in coding and billing for medically unnecessary bone grafting. AHCA then ran a report of all providers billing those codes and determined that Respondent was one of the five highest utilizers of the bone grafting codes in the State of Florida. In fact, his use of the codes was significantly higher than the Department of Oral and Maxillofacial Surgery at the University of Miami. After a review of Respondent's records was completed, on April 24, 2015, AHCA issued a FAR, alleging that Respondent was overpaid $1,152,237.19 for certain services that in whole or part are not covered by Medicaid. In addition, the FAR informed Respondent that AHCA was seeking to impose a fine of $176,000.00 as a sanction for violation of rule 59G-9.070(7)(e) and to recover its costs pursuant to section 409.913(23). Due to a calculation error, the sanction amount was later reduced to $88,000.00. The claims which make up the overpayment of $1,152,237.19 were filed and paid to Respondent prior to the institution of this action. The auditor who conducted the investigation and prepared the FAR is no longer employed by AHCA and did not testify. However, his supervisor, Robi Olmstead, who oversees all comprehensive audits such as this, testified at hearing and confirmed that except for an error in calculating the penalty, the investigator followed all required procedures. The audit was properly conducted. In the section of the FAR entitled "Findings," AHCA sets forth the bases for the overpayment determinations. AHCA concluded that "medical necessity for some claims submitted was not supported by the documentation" and payments made to Respondent for these services are considered an overpayment. Pet'r Ex. 4, p. 87. It also concluded that "some services rendered were erroneously coded on the submitted claim," and that after the "appropriate dental code was applied[,] [t]hese dental services are not reimburseable by Medicaid." Id., p. 88. Respondent then requested an administrative hearing to contest the overpayment determination, imposition of sanctions, and recovery of costs. The Sample Program Used by AHCA AHCA has established a process in Medicaid audit cases to review a statistically valid sample of the claims submitted to the Medicaid program. The claims sample program is a random sample program developed for this type of audit. The evidence supports a finding that the program is statistically valid. Using its data support system, AHCA assessed the complete universe of Medicaid claims paid to Respondent and selected the period from January 1, 2011, through June 30, 2013, as the audit period. The program then selected a random sample of the universe of claims, consisting of 35 recipients for whom 332 claims were filed during the audit period. All recipients were under 26 years of age. The sample program was reviewed, tested, and validated by Dr. Huffer, a professor of statistics at Florida State University. His analysis demonstrated that the random sample is appropriate, and the calculation and amount of the overpayment are correct. After Respondent produced documents to substantiate those claims, they were forwarded to the peer for review. The peer is a Florida licensed physician who is of the same specialty or subspecialty and licensed under the same chapter as Respondent. In this case, the peer reviewer was Dr. James A. Davis, Jr., a board-certified oral surgeon in Tallahassee who is licensed under the same chapter and is the same specialty (oral surgeon) as Respondent. Dr. Davis has certificates of residency in both anesthesiology and oral maxillofacial surgery from the University of Miami School of Medicine. His practice includes complicated surgery, trauma surgery, corrective jaw surgery, facial surgery, pathology, and reconstruction of the face. He also has extensive experience with the routine surgeries at issue in this case, including the extraction of third molars (wisdom teeth), bone grafts, and excision of cysts. All of his patients are private pay; however, he has occasionally provided free services to Medicaid-eligible patients. After the records of the 35 recipients were reviewed by Dr. Davis, AHCA determined that an overpayment of $53,469.99 was made. The program then applied that overpayment to all claims in the universe, resulting in a total overpayment of $1,152,257.19. Medical Necessity and Other Relevant Requirements To be eligible for coverage by Medicaid, a service must be "medically necessary," which is defined in section 409.13(1)(d) as follows: "Medical necessity" or "medically necessary" means any goods or services necessary to palliate the effects of a terminal condition, or to prevent, diagnose, correct, cure, alleviate, or preclude deterioration of a condition that threatens life, causes pain or suffering, or results in illness or infirmity, which goods or services are provided in accordance with generally accepted standards of medical practice. AHCA is the final arbiter of medical necessity for purposes of determining Medicaid reimbursement. Id. The statute requires that determinations of medical necessity be made by a licensed physician employed by or under contract with AHCA, also known as a peer reviewer, based on information available at the time the goods and services are provided. Id. Respondent contends that Dr. Davis is not a qualified peer reviewer within the meaning of the law because he is not a "licensed physician," i.e., a medical doctor. However, Dr. Davis has the same license and specialty as Respondent, he is board-certified, and he has additional certifications from a medical school. Dr. Davis is a qualified peer reviewer for Respondent's oral surgery practice. Respondent's expert on medical necessity and coding, Dr. Lehrer, is an associate professor at Nova Southeastern University Dental School. He is not an oral surgeon but has been teaching in the oral surgery department of the school since 2015. He does not teach how to perform a bone graft, and he has performed fewer than 25 bone grafts in his 30-year career, none since 2010. His primary teaching responsibilities relate to prosthetics (crowns and bridges) and restorative dentistry (fillings and cavities), procedures not at issue in this proceeding. Rule 59G-1.010(59) refers to CPT codes, which are Current Procedural Terminology codes developed by the American Medical Association. The codes identify specific services rendered by providers for purposes of determining whether the service is covered by Medicaid. The American Dental Association has also published dental procedure codes that describe various services. See Pet'r Ex. 12. However, the dental codes have not been expressly adopted by AHCA, and there is no requirement that they be used when billing Medicaid. In fact, the Medicaid program will not pay for claims submitted using these codes. To ensure that services rendered by the provider are correctly billed to and paid by Medicaid, the provider must identify the services by referring to the specific CPT codes corresponding to the specific procedure or service rendered. If services rendered are incorrectly coded on a provider's billing submittals, they may be determined ineligible for payment by Medicaid. Were the Services Medically Necessary? After extracting the wisdom teeth of 32 recipients, Respondent billed Medicaid for performing bone grafts on the sockets of each recipient. A bone graft entails the placement of bony material (real or synthetic) on the site of the wound (socket) to facilitate bone regeneration. During the audit period, an oral surgeon was generally reimbursed less than $100.00 for the simple extraction of a wisdom tooth, but was reimbursed as much as $1,150.00 if bone grafts were performed. For 14 recipients, Respondent also billed Medicaid for removal of benign tumors or cysts after the teeth were extracted. The FAR alleges that these procedures were not medically necessary. Given the magnitude of the alleged overcharges, it is not surprising that the testimony on this issue is sharply in dispute. In reviewing the claims, Dr. Davis did not use the definition of medical necessity set forth in sections 409.913(1) and 409.9131(2). See Finding of Fact 15. Instead, he relied upon the definition of medical necessity published by the American Association of Oral and Maxillofacial Surgeons (AAOMS). It reads in pertinent part as follows: . . . the need for an item or service or services for the diagnosis, prevention and/or treatment and follow up care of the diseases, injuries and congenital developmental defects that affect the hard and soft tissues of the oral and maxillofacial complex. Dr. Davis testified that he is familiar with the statutory definition of medical necessity and characterized it as being "very similar" to the definition he used, with only "slight variations." He testified that his definition is consistent with the medical standards used by oral surgeons over the last 30 years. Respondent contends the statutory definition is broader and includes services that "correct, cure, alleviate, or preclude deterioration of a condition that . . . causes pain or suffering, or results in illness or infirmity," and these are not encompassed within Dr. Davis' definition. While the two definitions are not identical, services for the "diagnosis, prevention and/or treatment and follow up care" of a recipient would logically include those that correct, cure, alleviate, or preclude deterioration of a condition for which the recipient is being treated. The use of the AAOMS definition, rather than the statutory definition, did not affect Dr. Davis' analysis of the claims in any significant way. Bone Grafts Bone grafting is performed after the extraction of a wisdom tooth when it is necessary to preserve the bone volume, architecture (structure), or integrity at the extraction site. At issue here are two types of procedures: (1) bone grafts of the nasal, maxillary, or malar areas, and (2) bone grafts of the mandible. Through its peer, AHCA contends that the procedures were not medically necessary, and the procedure Respondent performed consisted only of placing collagen, a "foundation" material, in the socket, which does not constitute a bone graft "in the strictest sense." Dr. Davis found no fault regarding the removal of teeth. However, he opined that it is "very unusual and unnecessary to graft a third molar socket on a routine basis," as Respondent did for every patient whose teeth were extracted. He stated that most sockets will regenerate on their own, especially in patients less than 26 years of age, who have more regenerative capacity. Here, every recipient in the sample was less than 26 years old. He added that post-operative issues "rarely" occur when molars are extracted, but if they do, the surgeon can easily perform a graft at a later time. Dr. Davis explained that if the surgeon is concerned about the healing status of the recipient, follow-up care can be given to the patient to ensure the long-term healing process. Except for one or two cases where a patient had immediate post-operative problems, Dr. Davis found no instance in Respondent's records where long-term follow-up care was provided. Based on almost 40 years of experience in performing bone grafts, Dr. Davis opined that an immediate graft at the time of extraction normally occurs only on functional teeth, not molars, or when a patient has a high likelihood of a periodontal defect in the area where he just operated. Patients with minor periodontal problems before the surgery frequently improve just by taking out the molars. In sum, Dr. Davis found no evidence in the patient records to support the bone grafts. Dr. Davis admitted, however, that in a few cases, it can sometimes take as long as three or four years for an extraction site to improve to a normal state, and that it is much more difficult to provide follow-up care to Medicaid patients because of their transient nature. Even so, these considerations do not justify a bone graft on a routine basis. Besides recapping each patient's records, in which he reaffirmed his treatment of the patients, Respondent explained that "if appropriate," he routinely performs bone grafts at the time of extraction for several reasons. First, in "many" cases, patients experience cold sensitivity after an extraction due to "short term exposure of the tooth roots," and a bone graft will prevent patients from "having the three or four months of cold sensitivity." Second, a bone graft assists "the patient [in] return[ing] to a healthy state or achiev[ing] a healthy state sooner," especially if there are periodontal issues. Finally, Respondent testified that "some of the [current] research" dispels the notion that younger patients "return to normal" within a year or two. He pointed out that research also demonstrates that younger patients are prone to developing periodontal issues and that grafting of molar sites is now routine. Given these considerations, he concluded that oral surgeons "have a duty" to perform a bone graft after the extraction. According to Dr. Lehrer, bone grafting is appropriate after the extraction of a wisdom tooth in order to maintain the level of the bone, reduce sensitivity, and eliminate pocket depths. He opined that based on his review of the records, all bone grafts were appropriate and medically necessary. However, the testimony of Dr. Davis has been credited as being the most persuasive on this issue. The preponderance of the evidence supports a finding that it is not medically necessary to perform a bone graft to alleviate a patient's cold sensitivity for a few months, to speed up a recovery process for a young patient that normally takes only a short period of time, or to address periodontal problems that may or may not occur in the future. Stated differently, under the circumstances presented here, a bone graft after every molar extraction is not medically necessary to prevent, cure, or alleviate a condition "that threatens life, causes pain or suffering, or results in injury or illness" of the patient. On the second issue concerning the graft, Dr. Davis opined that Respondent did not perform a bone graft because he simply placed collagen, a foundation material, in the socket, which he characterized as "a mere dressing" on the wound. In Dr. Davis' practice, and based upon his experience as an oral surgeon, he does not use foundation materials or consider them to be a graft material. He agrees, however, that synthetic materials that are mineralized or ceramic can also be used as an artificial bone substitute to facilitate the healing of bone. Respondent testified that while he used foundation collagen material as the base material in all of his grafts, in some patients he was able to harvest leftover bony material, which was added to the foundation material. Dr. Lehrer also opined that using a collagen-based grafting material enhances bone growth and is an appropriate material for bone grafts. While the use of collagen as a base material presents a close question, the undersigned is persuaded that there is less than a preponderance of the evidence to support a finding that Respondent's use of collagen, when intermixed with harvested boney material, was inappropriate. The use of collagen only as a base material was not appropriate. Excision of Cysts or Lesions The FAR also contends there was insufficient documentation to show that cysts were present in any of the 14 recipients, or to demonstrate that their removal was medically necessary. A cyst is an epithelial sac usually containing fluid that is normally covered or wrapped in a connective tissue layer. If a cyst exists, it is present when a molar extraction occurs. While most appear radiographically, some do not show up on typical X-rays, such as Panorex film, but clearly appear on a CT scan. In this case, Respondent performed Panorex radiographs on each recipient. Evidence of cysts appeared on none of his X-rays. Based on his experience, the lack of radiographic evidence, and the fact that the tissue removed was not submitted for biopsy, Dr. Davis saw no evidence that cysts were present in the recipients. He characterized the number of cysts removed by Respondent as "incredulous," and pointed out that they numbered more than he had observed in his practice over the past 30-plus years. Although Respondent's records included a note in the operating report describing the removal of a cystic structure, Dr. Davis stated that a normal follicular sac (the connective tissue surrounding the tooth) appears to be a cystic structure, but this does not mean that a cyst is present. If a follicle is thick, red, infused with blood, contains puss, or is otherwise unusual, the follicle raises a red flag that Dr. Davis automatically has biopsied. Otherwise, further surgical steps are not taken. If a biopsy is indicated in the case of an indigent patient, or a private pay patient does not wish to incur a biopsy charge, Dr. Davis will have the patient return in three months for follow-up. Respondent testified that when he extracts a wisdom tooth, the follicle is removed and then examined. He lays it on a gauze pad for examination. Based on his experience, he determines if there is any likelihood of malignant tissue. In every case, he concluded that because the cystic tissue or inflamed lesion was already removed, the problem was cured, and there was no need to send it to a pathologist and incur additional expense. He also pointed out that Medicaid discourages oral surgeons from biopsy, presumably because of the cost. While financial concerns for the patients are real, they do not justify removal of a follicle based on the belief that it may be a cyst. There is a preponderance of the evidence to support a finding that, for the 14 recipients in question, the excision of benign tissue was not medically necessary. Coding of Services The FAR alleges that: some services rendered were erroneously coded on the submitted claim. The appropriate dental code was applied. These dental services are not reimbursable by Medicaid. Payments made to you for these services are considered an overpayment. Pet'r Ex. 4, p. 88. Respondent submitted claims for bone grafts under CPT codes 21210 and 21215, which relate to "[g]raft, bone; nasal, maxillary or malar areas (includes obtaining graft," and "[m]andible (includes obtaining graft)," respectively. Pet'r Ex. 14, p. 263. He also submitted claims for removal of cysts under CPT codes 21030 and 21040, which are "[e]xcision of benign tumor or cyst of maxilla or zygoma by enucleation and curettage," and "[e]xcision of benign tumor or cyst of mandible, by enucleation and/or curettage," respectively. Id. at p. 264. Dr. Davis considered the coding issue to be "the least of [his] concerns" in this case. He admitted that "I am not an expert on codes," he is only "vaguely familiar with the coding," and in his practice someone else in the office normally coded his services. He also acknowledged the codes used by Respondent were correct "in the broadest sense," but opined that the dental codes "would be more appropriate" and "the better codes" because they describe "exactly what is being done," and "they are dental procedures that he is performing." As to the removal of cysts, Dr. Davis opined that dental codes D7450 and D7451 would be more appropriate, as they relate to the excision of a benign lesion of the upper and lower jaw. As to bone grafts, he opined that dental code D7953 would be more appropriate, as it applies specifically to socket reconstruction of a dental extraction. Dr. Davis agreed, however, that oral surgeons are permitted to bill Medicaid using CPT codes, and there is no directive, guidance, or mandate that instructs oral surgeons to use the dental codes rather than the CPT codes. In this case, Dr. Davis used dental codes because the nurses at ACHA provided him with those codes to use during his review. While Dr. Davis correctly noted that dental codes more accurately describe the services being performed by oral surgeons, Medicaid guidelines and AHCA regulations, as now written, do not bar Respondent from using the CPT codes. Mr. Dicksen, Respondent's expert in billing and coding, established that the billing for the procedures in question was adequate to support the billing and the use of the billing codes was appropriate. He also verified that the Medicaid program in Florida does not pay for claims submitted using the dental codes. Petitioner did not establish by a preponderance of the evidence that the claims submitted by Respondent were erroneously coded. Administrative Sanctions Administrative sanctions (fines) shall be imposed for failure to comply with the provisions of Medicaid law. For the first offense, rule 59G-9.070(7)(e) authorizes AHCA to impose a penalty in the amount of $1,000.00 per violation. AHCA seeks to impose a fine of $88,000.00 for 88 separate violations identified in the FAR. While repayment for inappropriate claims should be made, the undersigned is persuaded that the factual grounds for imposing a sanction for each claim are not present. Investigative, Legal, and Expert Witness Costs Section 409.913(23) provides that AHCA is entitled to recover all investigative, legal, and expert witness costs if the agency ultimately prevails. At this time, the total costs are unknown. The Prior Audit In 2005, AHCA performed an overpayment review of Respondent for services provided from January 1, 2002, through December 31, 2004. The audit was triggered due to a high volume of bone grafts and excision of cysts performed by Respondent during that audit period. He also used the same billing codes as were used in this audit period. The peer ultimately determined that all payments were appropriate, and it was recommended that the matter be closed. This was confirmed in a letter to Respondent dated October 7, 2005, in which AHCA stated as follows: In his report, the Medicaid dental consultant stated, "I found the records to be complete, very well presented, with detail. All radiographs were excellent quality and all treatments were very explicit and identified on the radiographs." No overpayment was determined in the peer review. Resp. Ex. 8. However, AHCA did not use a qualified peer reviewer in that case, as it contracted with a pediatric dentist in Jacksonville to review the records, rather than someone of the same specialty, i.e., an oral surgeon. This was because most of the recipients were pediatric patients and AHCA's practice at that time was to use general practitioners as peers, no matter what the specialty. AHCA took the position at hearing that due to this mistake, the results of that audit are not binding on the current audit. Respondent contends, however, that he relied on the results of the 2005 audit in continuing his practice of routinely performing bone grafts on every molar extraction, performing excision of cysts without a biopsy on a routine basis, and using the same billing codes for those procedures. He testified that had AHCA informed him that he was performing medically unnecessary procedures, or using the incorrect billing codes, he would have made changes as requested. Based upon his reliance on those representations to his detriment, Respondent contends that AHCA is now estopped from attempting to recoup the Medicaid payments. AHCA did not address this issue at hearing or in its PRO.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Respondent was overpaid, and is liable for reimbursement to AHCA, for claims submitted for bone grafts and excision of cysts during the audit period; finding that an administrative fine should not be imposed; and remanding the matter to DOAH for an evidentiary hearing on the recovery of AHCA's costs, if necessary. DONE AND ENTERED this 30th day of March, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2016.
Findings Of Fact On April 24, 1992, Respondent issued a Request for Proposals for the provision of housekeeping services at South Florida State Hospital. The responses to the RFP were due June 5, 1992. A bidder's conference was scheduled for May 15, 1992. On page 21 of the RFP, the bidders are advised, in pertinent part, as follows: ... each proposal must contain a line item budget with detailed narrative justification for each expenditure category. A separate budget must be completed for each contract period ... The statement contained on page 21 of the RFP was repeated on page 31 of the RFP. Pages 70-72 of the RFP contained the RFP Rating Sheet to be used by Respondent's evaluation committee. Bidders are clearly notified that these criteria are considered to be "fatal items" and are advised: The following criteria must be met for the proposal to be considered for evaluation, failure to receive a "Yes" response for any [item] will result in automatic rejection of the proposal. (Emphasis in the original.) Listed as "fatal item" numbered 8 on page 71 of the RFP is the following: Does the proposal contain completed charts (page 11 through 14) and line item budgets for each contract period? Petitioner timely submitted a bid in response to the RFP. Petitioner had bid on prior contracts that Respondent had procured through the competitive bid process and was, at the time of the issuance of the RFP, the contract provider of the housekeeping services at South Florida State Hospital. Petitioner contends that its response to another item should be construed as an appropriate response to the requirements pertaining to line item budgets. This contention is without factual basis and is rejected. The bid submitted by Petitioner in response to the RFP did not contain a line item budget. Respondent's evaluation committee disqualified Petitioner's bid because it did not contain a line item budget as required by the RFP. On May 15, 1992, Respondent held a bidder's conference at which bidders were given the opportunity to ask questions about the bid requirements and specifications prior to the submission of bids. Petitioner was represented at the bidder's conference by Ritter Von Massenbach, who took notes at the meeting and who paid close attention to the discussion pertaining to fatal items. The minutes of the bidder's conference reflect that the bidders were told that a bid that failed to comply with a fatal item requirement would be disqualified. There were questions and answers as to how the bidders could meet the bid requirements pertaining to line item budgets and a specific discussion, with examples, as to what information Respondent expected to be contained in a line item budget. Mr. Massenbach was not instructed to ask about the line item budget requirement, nor did he do so. Mr. Massenbach reported to Andy Kontos, Petitioner's senior vice president, by telephone following the bidder's conference, but there was no discussion as to the line item budget requirement. Thereafter, Mr. Kontos prepared the bid that was submitted by Petitioner. An addendum to the bid along with the minutes of the Bidder's Conference was mailed to all bidders, including to Petitioner at the business address it had given Respondent, by certified mail, return receipt requested. This certified mailing was unclaimed by Petitioner and subsequently returned to Respondent on July 14, 1992, as being "unclaimed." The mailing envelope reflects that the package was postmarked on May 29, 1992, and that attempts at delivery were made on June 1, 1992, June 8, 1992, and June 16, 1992. Bids in response to the RFP were due June 5, 1992. The addendum did not pertain to or change in any material manner the fatal item requirement for a line item budget. Petitioner's contention that specific information as to what Respondent intended by the term "line item budget" was unclear and should have been included in an addendum is unsupported by the evidence and is, consequently, rejected. There was no evidence that Respondent was using the subject fatal item requirement to discriminate against or in favor of any proposer. Petitioner failed to establish that its failure to comply with the subject fatal item requirement was attributable to Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses the bid protest filed by Petitioner. DONE AND ORDERED this 8th day of October, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 8th day of October, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-4312BID The only post-hearing submittal filed by Petitioner is in the form of a letter addressed to the Hearing Officer. That letter contains argument, but not proposed findings of fact. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1, 2, 3, 5, 6, 7, and 8 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in part by the Recommended Order. The proposed findings of fact in paragraph 4 pertaining to the reasons Mr. Massenbach paid attention to the fatal items discussion are rejected as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted on behalf of the Intervenor. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 19, 21, 22, 23, 27, 28, 29, 30, 32, 33, and 34 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 10, 18, 25, 26, 31, 35, 36, 37, 38, 40, and 42 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 20 are rejected as being unsubstantiated by the evidence. There was no evidence as to what was "made clear" to each bidder. The proposed findings of fact in paragraph 24 are rejected as being unnecessary to the conclusions reached since there is no contention on the part of Petitioner that it was prevented from making inquiry. The proposed findings of fact in paragraphs 39 and 41 are rejected as being argument. COPIES FURNISHED: Rey J. Nieto, President Andy Kontos, Vice President Allstate Specialty Services, Inc. 371 West 21st Street Hialeah, Florida 33010 Colleen A. Donahue, Esquire Department of Health and Rehabilitative Services District 10 Legal Office Room 513 201 West Broward Boulevard Fort Lauderdale, Florida 33301-1885 Stephen G. Murty, Esquire Jay R. Tome, Esquire Murty and Tome, P.A. 777 Brickell Avenue Miami, Florida 33131 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue At issue in this proceeding is whether Oscar Roberto Nunez Cano, 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 Ana Isabel Cano and Roberto Nunez are the parents and natural guardians of Oscar Roberto Nunez Cano (Oscar), a minor. Oscar was born a live infant on February 20, 1997, at Jackson Memorial Hospital, a hospital located in Miami, Dade County, Florida, and his birth weight was in excess of 2500 grams. The physicians providing obstetrical services during the birth of Oscar were, at all times material hereto, participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimants demonstrate, 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." Oscar's presentation On June 23, 1999, following the filing of the claim for compensation, Oscar was examined by Michael Duchowny, M.D., a pediatric neurologist. Dr. Duchowny's evaluation revealed the following: HISTORY ACCORDING TO MRS. CANO-NUNEZ . . . Mrs. Cano-Nunez began by explaining that Oscar's major problem is that he has 'no movement in his left arm'. This has been a problem since birth when he presented with a weakness of the left upper extremity. Oscar was the product of a term gestation born at Jackson memorial Hospital with a birth weight of 10-pounds. The mother indicated that he was 'to [sic] big when delivering' and the delivery 'caused his left arm tendons to be damaged'. Oscar ultimately remained in the Newborn Intensive Care Unit for a total of 21 days. Mrs. Cano-Nunez feels that Oscar was left with essentially a functionless left arm. He was seen by several physicians, but ultimately was referred to Dr. John Grossman who did neural graphing in August of 1998. The surgery resulted in 'some recovery of function, but he still is limited'. The left hand serves principally as a helper with his right hand performing the majority of motoric tasks. Oscar otherwise enjoys good health. He is on no intercurrent medications and there has been no exposure to toxic or infectious agents. His milestones have been delayed in that he did not walk until 1 1/2, but he spoke in words at a year. He is not yet toilet trained. His immunization schedule is up to date and he has no known allergies. * * * PHYSICAL EXAMINATION reveals Oscar to be an alert, socially integrated and cooperative 2 1/2 year old boy. The weight is 36-pounds. His head circumference measures 51.4 cm and the fontanelles are closed. There are no digital, skeletal or palmar abnormalities and no significant dysmorphic features. The spine is straight without dysraphism. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. There is a healed scar over the left supraclavicular area and further scaring of the left posterior leg where a serial nerve was taken for graphing. Both scars demonstrate keloid formation. NEUROLOGICAL EXAMINATION reveals Oscar to maintain fluent speech. His cranial nerve examination reveals full visual fields to confrontation testing and normal ocular fundi. The pupils are 3 mm and react briskly to direct and consensually presented light. There is blink to threat from both directions. The tongue and palate move well. There are no significant facial asymmetries with the exception of the left palpebral fissure which appeals slightly widened. There is no heterochromia irides and no obvious ptosis or anhydrosis on the left. Motor examination reveals symmetric strength, bulk and tone of three extremities with the left continuing to demonstrate prominent weakness. There is 1-2/5 weakness of the musculature of the proximal shoulder girdles with 3-4/5 strength more distally. Left scapular winging is noted and there is a loss of muscle bulk over the deltoid region, as well as the musculature of the mesial scapular border. Oscar is unable to elevate his shoulder above 20 degrees below neutrality. He has 'Porter's Tip' sign of the hand. Grasping is performed primarily with the right hand and he often crosses the midline. He can not grasp independently with the left. In contrast, the right upper extremity and lower extremities have normal strength, bulk and tone and the deep tendon reflexes are 2+. The deep tendon reflexes in the left upper extremity are trace/absent throughout. Station and gait are age appropriate with the expected diminished arm swing on the left. Sensory examination is deferred. In SUMMARY, Oscar's neurologic examination reveals evidence of a significant left upper extremity monoparesis. In contrast, the remainder of his neurologic examination is normal and his speech is progressing satisfactorily. I believe his cognitive status is normal. The future prognosis of left upper extremity function is guarded, as he has not responded well to surgery. The injury Oscar suffered to his left upper extremity (a brachial plexus injury) during the course of delivery is not, anatomically, a brain or spinal cord injury, and does not affect his mental abilities. Moreover, apart from the brachial plexus injury, Oscar was not shown to suffer any other injury during the course of his birth. Consequently, the proof fails to demonstrate that Oscar suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during the course of labor or delivery that rendered him permanently and substantially mentally and physically impaired.
The Issue Whether Daniel S. Merklinger, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Lorna Merklinger and Scott Merklinger are the natural parents and guardians of Daniel S. Merklinger, a minor. Daniel was born a live infant on November 17, 2001, at Florida Hospital Waterman, a hospital located in Eustis, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Daniel's birth was Jose Ramon Gonzalez, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Daniel's birth and postnatal course At or about 6:50 a.m., November 16, 2001, Mrs. Merklinger, with an estimated delivery date of November 23, 2001, and the fetus at 39 weeks gestation, presented to Florida Hospital Waterman, for induction of labor. At the time, Mrs. Merklinger's membranes were noted as intact, and vaginal examination revealed the cervix at fingertip dilation, effacement at 60 percent, and the fetus at -1 station. Uterine contractions were noted as mild, irregular and with a duration of 60 seconds, and external fetal monitoring revealed a reassuring fetal heart rate, with a baseline at 130 to 140 beats per minute. Pitocin induction was started at or about 7:00 a.m., and continued until 3:51 p.m., when it was discontinued following a vaginal examination that revealed no progress in cervical dilation.3 Given the lack of progress, Cytotec was inserted vaginally at 4:34 p.m., and again at 1:10 a.m., November 17, 2001. From 8:18 a.m., when Pitocin induction was restarted, until 7:00 p.m., when Dr. Gonzalez ordered Mrs. Merklinger prepared for delivery, Mrs. Merklinger's labor progress was slow, but, until 6:20 p.m., when prolonged decelerations in the 90 to 102 beat per minute range were noted, fetal monitoring continued to reveal a reassuring fetal heart rate. Starting at 7:25 p.m., vacuum delivery was attempted on three occasions, unsuccessfully, and between 7:30 p.m., and 7:32 p.m., forceps were applied three times. Then, after delivery of Daniel's head, a right shoulder dystocia was noted, and relieved with suprapubic pressure and McRoberts maneuver, and Daniel was delivered at 7:42 p.m. At delivery, Daniel was depressed (limp, with poor respiratory effort), and required resuscitation measures, including oxygen and bag/mask for four to five minutes. Apgar scores were recorded as 3, 6, and 8, at one, five, and ten minutes, respectively.4 Following delivery, Daniel was transported to the nursery, where he remained until approximately 6:10 p.m., November 18, 2001, when he was transferred via ambulance to the neonatal intensive care unit at Arnold Palmer Hospital for Children & Women. Reason for transfer was noted as fractured skull and subdural hematoma. Daniel's history and diagnoses at Florida Hospital Waterman were summarized by his attending physician (Dr. Thomas Carlson) in Daniel's discharge summary, as follows: HISTORY OF PRESENT ILLNESS: Baby boy Merklinger is a product of a pregnancy complicated by a maternal age of 41, maternal chronic hypertension and asthma. Labor was induced with Pitocin. Toward the termination of delivery, the child became distressed and delivery was urgent . . . . Mother suffered a third degree laceration in the rapid delivery, and the child's head was quite bruised . . . . I was called at the time of delivery and was in Orlando. I transferred the call to the doctor on call, Dr. Burgos. When she was reached, the baby had already been born and was breathing, so she elected not to go in at that time. The baby was born at 1958 [sic] hours. My examination was complete and note written at 2130 hours. The child was, according to the nurse, bagged for approximately 5 minutes postpartum, but then did well. When I saw the baby under the warmer, I immediately noticed severe bruising and abrasions of the forehead, on through the occiput with large quantity of subcutaneous blood under the scalp. The right cornea was noted to be cloudy. The chest was clear. Heart regular without murmur. The child was breathing well with good oxygen saturation, good capillary refill on room air. There was also noted an apparent fracture of the right clavicle, and the left arm had some decreased movement probably from pulling of the nerve plexus at birth. Impression at that time was traumatic birth doing well . . . . The following morning, it was noted that the hemoglobin and hematocrit were dropping . . . . It was noted that the head circumference was growing . . . . Intravenous antibiotics and fluids were begun. I ordered a CT of the head, chest x-ray and came in to see the child. IV antibiotics were begun. The chest x-ray showed mildly displaced right clavicular fracture. The heart and lungs appeared normal. No pneumothorax identified. CT of the brain without contrast revealed a frontal subdural hematoma, 11 mm in thickness with mild mass effect and midline shift. Scalp hematoma noted on physical exam was also present. [Mildly] depressed left frontal skull fracture, minimally displaced left posterior fossa fracture at the lambdoid suture inferiorly. A right anterolateral scalp hematoma with slight suture separation at coronal suture, and a minimally depressed fracture extending back towards the right lambdoid. No intraventricular hemorrhage. With this finding, it was elected to immediately transfer the child to Arnold Palmer Hospital because a neuro surgeon was needed. The child was then transferred out. DIAGNOSES Traumatic birth. Multiple skull injuries with depressed fractures and subdural hematomas. Traumatized right cornea. Mild Erb's palsy on the left. Fractured right clavicle. At approximately 7:11 p.m., November 18, 2001, Daniel was admitted to Arnold Palmer Hospital. Upon admission, Daniel was examined by Dr. Michael McMahan, who noted that: . . . On arrival of the team, tonic colonic motions of the lower extremity noted, could not be suppressed. Phenobarbital . . . given . . . . Ampicillin and Claforan begun after blood culture obtained The infant has been feeding well, but with question of seizures infant was made n.p.o. and placed on IV fluids PHYSICAL EXAM: . . . Irritable. Molding. Severe bruising of the scalp. Very large caput as well as cephalohematomas. Question of subgaleal bleed. Fontanelle is full. Eyes are open. Cloudy right cornea . . . . Chest: Right clavicle with palpable fracture/crepitus . . . . Neuro: Normal tone and motor strength, moves all extremities . . . . Bruises on chest. IMPRESSION: Term AGA male Intracranial bleed. Possible seizures. Rule out sepsis On November 18 and 19, 2001,5 with a diagnosis of "depressed left temporal skull fracture with underlying epidural hematoma," Daniel underwent a "[l]eft temporal craniotomy for elevation of skull fracture and evacuation of epidural hematoma," and "[p]lacement of left frontal external ventricular drain with Codman monitor." The surgeon was Eric Trumble, M.D., a pediatric neurosurgeon, who noted that Daniel "tolerated the procedure well, was sent to NICU postoperatively." On November 27, 2001, at 10 days of age, Daniel was discharged home on Phenobarbital, with instructions to follow up with his pediatrician within one week, Dr. Trumble in 2-3 weeks, and the development center. Discharge examination noted: . . . active, alert, no distress. Head and neck: Large cephalohematoma. Incision healing. Chest clear. No murmur. Abdomen soft. Normal motor strength. Slightly decreased tone left arm. Discharge summary noted the following problems addressed during Daniel's hospitalization: Depressed skull fracture: Neurosurgery consult obtained. Infant was taken to OR on November 18 for left temporal craniotomy and evacuation of EDH. CT scan of the head on November 19 showed extensive scalp swelling, multiple nondepressed skull fractures, small amount of intracranial hemorrhage, question status of intracranial pressure with low density changes inferiorly raising possibility of increased intracranial pressure. Infant continued on phenobarbital. Skull incision clean and healing. Large cephalohematomas remain present. MRI was done on November 27. This showed scalp hematoma which crosses the midline over the vertex, evidence for parenchymal hemorrhage adjacent to the atria/occipital horn, right lateral ventricle mixed signal intensity consistent with evolving hemorrhage. Additionally, posterior extra-axial hemorrhage is appreciated, likely subdural hemorrhage. Small amount of hemorrhage also seen along the interhemispheric fissure towards the vertex. Small areas of parenchymal signal abnormality seen in the left periventricular parenchyma likely related to ventricular shunt placement. An increased signal intensity is seen on both ADC and T2 weighted sequences within the white matter of the right parieto-occipital region likely reflecting edema. No midline shift. Midline structures intact. No ventriculomegaly. Infant has slightly decreased tone in the left arm compared to the right. No seizure activity noted. He is discharged home on phenobarbital 6 mg p.o.q. 12 hours for follow up with Dr. Trumble in 2-3 weeks . . . . Possible sepsis: Treated with ampicillin and Claforan times seven days. Blood culture negative. * * * 5. Ophthalmology: Eye exam on November 20 with diffuse hemorrhage OU. Follow up on November 27 improved, but still significant hemorrhage present. Guarded visual prognosis OD. For recheck in three weeks with Dr. Gold. Final diagnoses were: Term AGA (appropriate for gestational age) male. Depressed skull fracture, status post evacuation of hematoma. Possible seizures. Possible sepsis. Left corneal opacification. Anemia. Daniel's subsequent development Following discharge from Arnold Palmer Hospital, Daniel was referred to Pediatric Neuroscience, P.A., where he was initially followed by Dr. Trumble, who had performed his surgery. Dr. Trumble first examined Daniel on December 20, 2001, and in a letter to Daniel's pediatrician (Thomas Carlson, M.D.) reported his impressions, as follows: I have just had the opportunity to see Daniel with his mother in the neurosurgery clinic today. As you know, he is a 1-month- old child whose last neurosurgery intervention was a craniotomy for evacuation of epidural hematoma on 11/19/01. He has been doing very well since that time without headaches, nausea or vomiting and meeting developmental milestones. On examination, Daniel is bright, alert, and interactive. He weighs 9 pounds 8 ounces and has a head circumference of 37.25 cm. His incision is well healed. He remains neurologically intact. Eom's are intact. Disc margins are sharp bilaterally. His anterior fontanelle is soft and flat. He does have a bony ridge palpable about the posterior aspect of the left craniotomy and a scalp ridge in the right occipital region. I am pleased with the improvement Daniel has had thus far. I would like to see him back in the neurosurgery clinic in 3/02 with a repeat head CT for routine follow-up. He may discontinue all neuro-active medications from my stand-point, including anti- convulsants. Dr. Trumble next examined Daniel on March 14, 2002, at which time he noted that Daniel had a "progressive right occipital flatness with the right ear anterior to the left and subtle right frontal bossing," and prescribed an occipital molding band. Otherwise, there was no change in Dr. Trumble's impression of Daniel's progress, and he noted the "repeat head CT done at Arnold Palmer Hospital on 3/5/02 . . . was intracranially normal. The fractures healing well." Following March 14, 2002, Daniel was seen by Dr. Trumble on June 10, 2002; July 22, 2002; and September 26, 2002, during which time Daniel's occipital flatness improved and Dr. Trumble remained pleased with Daniel's progress. Dr. Trumble's impressions for this time period may be gleaned from the text of his letter to Daniel's pediatrician of September 26, 2002, as follows: I have just had the opportunity to see Daniel with his mother in the neurosurgery clinic today. As you know, he is a 10- month-old child whose last neurosurgical intervention was a craniotomy for evacuation of epidural hematoma on 11/19/01. He has been doing very well since that time without headaches, nausea or vomiting and meeting developmental milestones. His right occipital flatness has improved since he obtained his occipital molding band, initially in 3/02 with a replacement in late 5/02. He comes in for routine follow-up today. Mother notes that he was recently developmentally graded advanced.[6] On examination, Daniel is bright, alert, and interactive. He weighs 16 pounds, 12 ounces and has a head circumference of 44.3 cm. His left temporal incision is well healed. He remains neurologically intact. Eom's are intact. Disc margins are sharp bilaterally. His anterior fontanelle is soft and flat. He has mild right occipital flatness, with his right ear anterior to his left and mild, compensatory right frontal bossing. These findings are very subtle and much improved since he was placed in the occipital molding band. As part of his ongoing work-up, Daniel had a repeat head CT that was intracranially normal. His bone flap is integrating well. I am pleased with the improvement Daniel has had thus far. I do not feel that neurosurgical intervention is warranted at this time. We will be happy to see them back at any time but don't feel that they need[] routine neurosurgical follow-up. Following Dr. Trumble's September 26, 2002, evaluation, Daniel has been followed by Ronald Davis, M.D., a pediatric neurologist. Dr. Davis first evaluated Daniel on June 27, 2003, and reported the results of his evaluation to Daniel's pediatrician, as follows: I had the opportunity to evaluate Daniel. As you well know, he is a 19-month-old who was born with a delivery complicated by multiple skull fractures and subdurals as a result of forceps delivery. He subsequently had some transient seizure activity and was on Phenobarb, but was able to wean off. He underwent a number of surgical repairs, but developmentally has done well. Over the course of the last number of weeks he had events where he vomits out of the blue, turns pale, cold and clammy. He has some eye deviation and becomes unresponsive and still. It lasts for a number of minutes and he can be sleepy afterwards. He has had somewhere between 7-8 of these events. They are very discrete events without any clear tonic or clonic activity. They have been occurring on a cycle range about every 4-8 days. As a result of this he has had an EEG. It actually demonstrated the presence of right frontotemporal sharp wave discharges. Interestingly, in the past mother had wondered whether or not he had also had some headache like activities where he would seem to grab his head and wince in pain. Though he has had a number of CT scans he has not had an MRI. He has not been started on any medications. PAST MEDICAL HISTORY: Otherwise notable for the subdurals and the fractures. He has some right facial injury and a right orbital injury. * * * ON EXAM: General: He is a well-developed, healthy- appearing male with some slight facial asymmetry, right over left HEENT, patient is normocephalic. Pupils are reactive . . . . . NEUROLOGICAL EXAM: Mental Status: He was awake, alert, oriented. He was attentive and interactive. His speech was fluent. He had no anomia. He could follow directions appropriately. He had good right-left orientation. Cranial nerves II-XII: Intact. Full EOM's. Fundi were sharp bilaterally. Tongue was midline. Motor Exam: Normal tone and bulk with 5/5 strength. He did not have a drift. Sensory Exam: Intact to light touch, vibration and cold. Reflexes: 2+. Toes: Down. Coordination and Gait: No primary ataxia, dysmetria or tremor. He had appropriate gait for age. IMPRESSION: Daniel is a 19-month-old with seizure-like episodes, likely partial in nature with an abnormal EEG with trauma as the most likely inciting event. PLAN: At this point I am going to arrange for an MRI to rule out any structural abnormality. I have given them Diastat 5 mg to use for any prolonged events and they are going to think over the use of long-term antiepileptic medication. The side effects and risks of going on medicine as well as not going on antiepileptic medication on a routine basis were reviewed. Following an MRI, Daniel had a follow-up visit with Dr. Davis on August 26, 2003. Dr. Davis reported the results of that evaluation, as follows: I had the opportunity to follow-up with Daniel. As you well know, he is our nearly 2-year-old who suffered traumatic fractures as a result of delivery by forceps, as well as the presence of subdurals. Since his last visit he has had an MRI and EEG. His EEG had, of course, demonstrated the presence of frontotemporal sharp wave discharges on the right. This did correlate with MRI abnormality. The MRI actually demonstrated thickening cortex in that region, as well as focal cystic encephalomalacia there, as well as in the right gyrus rectus and the basal ganglia. Additionally, there was periventricular leukomalacia noted bilaterally. He continues to do well developmentally. There are some mild delays, but he continues to advance without any evidence of regression or plateauing. * * * NEUROLOGICAL EXAM: Mental Status: He was awake, alert, attentive and interactive. His speech is mildly disarticulate, but fluent. He is able to engage appropriately. Cranial nerves II-XII: Intact with some estropia of the right. Motor Exam: Demonstrates symmetric movement. Reflexes: 1+ Coordination and Gait: No primary ataxia. IMPRESSION: Daniel is a nearly 2-year-old with traumatic injury was described with resultant mild developmental delay, periventricular leukomalacia and an abnormal EEG. PLAN: At this point we will just continue to have the Diastat 5 mg to use for any breakthrough seizures. We will continue to hold off on any routine antiepileptic medication as he has not had any breakthrough seizures. Dr. Davis continues to follow Daniel's progress. On his most recent evaluation of July 19, 2004, Dr. Davis noted: I had the opportunity to follow-up with Daniel. As you well know, he is our young man with history of traumatic fractures from delivery by forceps and subdural hematoma. He has abnormal EEG and periventricular leukomalacia on MRI. He continues to do relatively well. He has not had any significant seizure activity, though mother does relate a time when he appeared to be having some type of partial spell in the face of being overheated. Interestingly, the grandfather also reports that he sees Daniel put his head down at times as if he has some transient and/or paroxysmal head pain which can last for a number of seconds. However, he did have a repeat EEG back in June which continued to demonstrate the presence of left frontocentral spike and wave discharges, as well as independent right frontocentral spike and wave discharges. Cognitively he continues to advance. There appears to be no regression. ON EXAMINATION: General: He is well developed and healthy appearing. . . . HEENT. patient is normocephalic. Pupils are reactive . . . . NEUROLOGIC EXAM: Mental Status: He was awake, alert, attentive, interactive and engaging. His speech was mildly disarticulate, but fluent. Cranial nerves II-XII: Intact. Full EOM's, though mild esotropia is noted of the right. He has some mild asymmetry of his facies. Motor Exam: Normal tone and symmetric movement. Reflexes: 1+. Coordination and Gait: No primary movement disorder. IMPRESSION: Daniel is a young man with traumatic brain injury in the face of periventricular leukomalacia with mild developmental issues and abnormal EEG. PLAN: At this point I am concerned a little bit about these events that are both described by the grandfather, as well as the single event noted by the mother. Should these recur and/or persist I am going to arrange for a more prolonged ambulatory study. In the meantime we will continue to have the Diastat available and monitor him closely. On February 9, 2004, following the filing of the claim in this case, Daniel was, at Respondent's request, examined by Michael Duchowny, M.D., a pediatric neurologist. Dr. Duchowny reported the results of his neurology examination, as follows: PHYSICAL EXAMINATION reveals an alert, cooperative, well-developed and well- nourished 2-year-old boy. Daniel weighs 24 pounds and is 34 inches tall. The skin is warm and moist. There is one café-au-lait spot on the right thigh. There are no other neurocutaneous stigmata and no somatic dysmorphic features. The head circumference measures 48.5 cm, which is at the 50th percentile for age match controls. A bony ridge is palpated over the right skull vault and there is also a small area of depression. There are no facial asymmetries. There is some reddening beneath the eyes compatible with an allergic diathesis. The neck is supple without masses or thyromegaly. Bilateral anterior and posterior cervical adenopathy is palpated as well as small post auricular lymph nodes. The lungs' fields are clear and the heart sounds reveal a grade 2/6 innocent ejection systolic murmur. There is no palpable abdominal organomegaly. The abdomen is soft and non-tender. Peripheral pulses are 2+ and symmetric. NEUROLOGICAL EXAMINATION reveals an alert, well developed, cooperative and sociable 2- year-old. Daniel interacts very well and shows a very high level of curiosity. He was not overly defensive and cooperated fully for the evaluation. Daniel has an appropriate attentional span for his age and spoke in long phrases. He articulated his needs well. He also anticipated maneuvers and assisted in getting himself dresse[d] and undressed. Cranial nerve examination reveals full visual fields to direct confrontation testing. I can see no evidence of corneal scarring. The pupils are 2 to 3 mm and react briskly to direct and consensually presented light. A brief funduscopic examination was unremarkable. The extraocular movements are full and conjugate. There are no facial asymmetries. The tongue and palate move well. The uvula is midline. Motor examination reveals symmetric strength, bulk and tone. There are no adventitious movements and no focal weakness or atrophy. The deep tendon reflexes are 2+ and symmetric and there are no pathologic reflexes. Both plantar responses are downgoing. Daniel's stance is narrowly based and he walks with good stability and symmetric arm swing. He turns crisply. He is able to get up from a sitting position without difficulty. Sensory examination is intact to the withdrawal of all extremities to stimulation. Neurovascular examination reveals no cervical, cranial or ocular bruits. There are no temperature or pulse asymmetries. Daniel is able to grasp with either hand and transfers readily. In SUMMARY, Daniel's neurological examination reveals no significant findings. He does have some cranial dysmorphism secondary to his previous skull fractures and surgery. However, Daniel does not show evidence of a substantial mental or motor impairment . . . . Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as in "injury to the brain . . . caused by oxygen deprivation or mechanical injury, occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. In this case, Petitioners and NICA are of the view that Daniel suffered an injury to the brain caused by the forceps delivery, but that he was not rendered permanently and substantially mentally and physically impaired. In contrast, Intervenors are of the view that Daniel's brain injury did result in permanent and substantial mental and physical impairment. The significance of Daniel's impairment To address the significance of any impairment Daniel may have suffered, the parties offered the records related to Daniel's birth and subsequent development, pertinent portions of which have been addressed supra (Respondent's Exhibits A-G); a color photograph of Daniel taken within the first 24 hours of birth (Intervenors' Exhibit 1); the deposition of Michael Duchowny, M.D., an expert in pediatric neurology (Respondent's Exhibit H); the deposition of Ronald Davis, M.D., an expert in pediatric neurology (Respondent's Exhibit K); the deposition of Petitioner Lorna Merklinger (Respondent's Exhibit I); the deposition of Petitioner Scott Merklinger (Respondent's Exhibit J); the deposition of Loren Mann, Daniel's maternal grandmother (Intervenors' Exhibit 3); the deposition of Ruth Merklinger, Daniel's paternal grandmother (Intervenors' Exhibit 4); and the deposition of George Merklinger, Daniel's paternal grandfather (Intervenors' Exhibit 2). Dr. Duchowny, as revealed in his deposition, was of the opinion, based on his review of the medical records and his neurologic evaluation of Daniel on February 9, 2004, that Daniel was neither mentally nor physically impaired, much less substantially mentally and physically impaired, as required for coverage under the Plan. Dr Duchowny described his evaluation and conclusions, as follows: Q. Doctor, when you examined Daniel Merklinger, what physical and neurological exams did you conduct on him specifically? What did you have him do or what did you observe? A. Well, his weight and height were recorded. I looked at his skin. I looked at his head. I felt his head, measured his head circumference. Observed his face, his mouth, his throat. I looked at and palpated his neck. I listened to his chest. I listened and felt his abdomen, looking for his internal organs, and palpated his extremities and his peripheral pulses. On the neurological examination, I observed his behavior and his communication patterns, both expressive and receptive. I looked at his attention span, his social abilities, his ability to engage me in both the examination and in conversation. I looked at his ability to participate in the expected activities of daily living within a limited sense; for example, how he dressed or undressed himself. I certainly observed his behavior, both with respect to me and with respect to his family. I performed a cranial nerve examination, which included an examination of the eyes, of the facial movements, and an observation of his hearing abilities. I also looked at the way his mouth moved, how he swallowed, how his tongue moved, whether or not there was any drooling. I further looked at his motor abilities, including the movements of his extremities, his arm and legs. I evaluated his muscle tone. I looked to see if there was any atrophy, any abnormal movement, any lack of movement, any stiffness in any of his limbs. I made sure that his gait was stable, that it was symmetric, that his coordination was appropriate for his age, that his hand use was appropriate, and that he had bimanual dexterity, that he transferred between hands, that he had good, fine motor coordination and pincer grasp. I looked at his ability to show evidence of good muscle strength; for example, getting up from a sitting position, his ability to walk and turn and show coordinated movements. I examined him for sensation, just looking at the way he moved his arms and legs in response to my touch and pressure, and also examined the patterns of the blood flow to his head by checking his neck and head for temperature, for the pulses, making sure there were no abnormalities or asymmetries. I also listened to his neck and head to make sure that there were no abnormal sounds emanating from the vessels supplying blood to his head. Q. Was his behavior age appropriate? A. I thought so, yes. Q. Was his communication ability age appropriate? A. Yes. Q. Was his motor ability and coordination age appropriate? A. Yes. Q. Did you see anything during your examination that led you to believe that he was physically impaired? A. No. Q. Did you see anything in your examination that led you to believe he was mentally impaired? A. No. Q. Do you have an opinion regarding whether or not he is substantially and permanently physically impaired? A. Yes. I do not belie[ve] he is substantially impaired, mentally or physically. (Respondent's Exhibit H, pages 34-37). Dr. Davis, as revealed in his deposition, was of the opinion that Daniel suffered some developmental delays, but articulated no findings from which one could reasonably conclude that Daniel was either substantially mentally or physically impaired. Regarding Daniel's developmental delays, Dr. Davis described them as follows: Q. Okay. And have you noticed . . . [any developmental issues] in your treatment of Daniel? A. He has some disarticulation of his speech. In other words, his speech is difficult to understand. There is some slight inconsistencies in his motor skills, so you would see that. But then, also, when you go through some of the -- just the typical other developmental learning issues, he has some difficulty with that as well. * * * Q. . . . [W]hen I was asking you about developmental delays, could you be more specific about what it is that you base that upon as a clinical symptom? A. In particular for Daniel or -- Q. Yes, yes. Specifically for Daniel. A. He has some difficulty with his speech, which is the motor component of the way he moves his mouth, if you will, that sort of formation of words. There is some movement abnormalities noted in his face, some asymmetry there. And then his gait is a little -- this is more from recollection than from others, because I don't remember documenting it. But his -- he's a little bit wide based in his stance, so there are more subtle degrees there of his motor difficulties. But the more prominent is his disarticulation of speech, that formation, the mechanical formation of words. * * * Q. All right. Earlier, I believe you described his -- the motor dysfunction he's currently displaying as mild; is that correct? A. I think that's in my note, yes. * * * Q. You . . . mentioned that the -- that Daniel has some developmental delays. What were you referring to? Was it just the speech and the -- A. And the motor, yes. Q. Okay. And could you -- I think you've already gone over this a couple times, but for the motor dysfunction, other than the asymmetry in his face and speech disarticulation, was it anything other than the widened gait? A. Not that I have documented here, no. (Respondent's Exhibit K, pages 24, 29, 64, 65, and 69). Notably, Dr. Davis did not opine that, or disclose any findings that would support a conclusion that, more likely than not, Daniel was mentally impaired, that Daniel was substantially physically impaired, or that Daniel's brain injury would, at any time in the future, result in substantial mental or physical impairment. As for the deposition testimony of Daniel's parents and grandparents, with regard to his current mental and physical presentation, they were all of the opinion, to the extent they were called upon to express one, that Daniel's mental and physical development were age appropriate. Their concerns for Daniel, to the extent they expressed them, were speculative in nature, and premised on their uncertainty as to whether Daniel's brain injury would, either through the manifestation of persistent seizure activity or developmental deficiencies, adversely affect him in the future. Such concerns are certainly natural, but insufficient to support a conclusion that, more likely than not, Daniel's brain injury has rendered him, or will render him, permanently and substantially mentally and physically impaired.
The Issue Was Petitioner properly graded and given appropriate credit for his answers on the July, 1990 Florida Podiatric Medicine Licensure Examination (Florida Podiatry Examination).
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to the issues herein, Petitioner, Paul L. Sheehy, Jr., candidate No. 20017, was a candidate for licensure by examination as a Podiatrist, and the Board of Podiatry, (Board), was and is the state agency in Florida responsible for the licensing of Podiatrists and the regulation of the Practice of podiatric medicine in this state. Petitioner sat for the July, 1990 Florida Podiatry Examination on July 27, 1991. Petitioner obtained a score of 70.0 percent, representing 210 correct answers. A passing grade requires a score of 72 percent, representing 216 correct answers. Shortly before the beginning of the hearing, Respondent agreed to give Petitioner credit for questions 16 and 180 of Clinical I of the examination thereby raising his total score to 70.666 percent. At the beginning of the hearing, Petitioner withdrew his challenge to questions 22, 37, 87, 89, 104, 149, 176 and 178 of Clinical I of the examination and questions 3, 16, 22, 50, 67 and 53 of Clinical II of the examination. During the hearing Petitioner withdrew his challenge to question 27 of Clinical I and question 12 of Clinical II of the examination, leaving only his challenge to questions 103, 114, 138, 144 of Clinical I of the examination. The parties stipulated that the Petitioner was qualified and met all the requirements to sit for the July, 1990 Florida Podiatry Examination, and that Petitioner timely received a copy of the July 1990, Podiatric Medicine Licensure Examination Candidate Information Booklet (booklet). There is a lack of competent substantial evidence in the record to establish that the Florida Podiatry Examination given on July 27, 1990 was misleading in that it tested subjects or disciplines not covered or contained in the booklet, or that it was prejudicial as applied to Petitioner. The first question at issue is question 103 of Clinical I which stated: CASE HISTORY 44 In the exhibit book are photographs for this examination. Identify the photograph in the respective exhibit. 103. Which of the following answer choices is the best description of exhibit #11? Ganglion Cyst Verruca Melanoma Kaposi's Sarcoma Petitioner answered, C, Melanoma and the Respondent's answer was, B, Verruca. Petitioner admitted that his answer was incorrect. However, Petitioner contends that the question comes within the area of histology, an area not specifically mentioned in the booklet to be covered by the examination. Therefore, he was mislead by the booklet into not studying the area of histology. While the booklet does not specifically mention histology as an area of study to be covered in the examination, there were several other areas of study listed in the booklet which conceivably would have covered this question. Therefore, there has been no showing that the Respondent's failure to specifically list histology as an area of study mislead or prejudiced the Petitioner. The second question at issue is question 114 which stated: CASE HISTORY 45 An elderly obese male presents with an acutely inflamed first metatarsophalangeal joint. The pain began late last night and he awoke in severe pain. His past medical history reveals two previous such occurrences which resolved and went un- treated. He reports a history of chronic renal disease and mild hypertension. He presently takes no medication and has no known allergies. He denies use of alcohol and tobacco. Physical exam reveals an acutely inflamed, edematous 1st MPJ. A 3mm ulceration is present dorsally with white, chalky material exiting the wound. Laboratory studies reveal a CBC within normal limits and an elevated uric acid of 9.0mg/100ml. 114. Which of the following would you expect to find on microscopy of the synovial fluid? trapezoidal-shaped violet crystals absence of leukocytes needle-like birefringent crystals reflective hexagonal crystals and many leukocytes Petitioner answered D, reflective hexagonal crystals and many leukocytes. The Respondent's answer was C, needle-like birefringent crystals. Petitioner contends that none of the answers offered were entirely correct but that answer D was the most correct, while answer C was incorrect. Case History 45 would describe gout and pseudogout, but the key is the description of the fluid removed from the joint which is a white, chalky material found only with gout. Additionally, gout produces needle-like crystals (urate) that are negatively birefringent when view under crossed polarizing filters attached to a microscope. Leukocytes would be present in this case history but it would not produce reflective hexagonal crystals or trapezoidal-shaped violet crystals. Answers A and B are entirely incorrect, and although the presence of leukocytes is correct, it is not relevant because leukocytes are a normally found in any infection. Therefore, answer C is the correct answer, notwithstanding the absence of the word negative proceeding the word birefringent. The third question at issue is question 138 which stated: CASE HISTORY 49 A 27 year old athletic individual presents with a severely painful and swollen right ankle following a basketball injury the day before. There is severe ecchymosis and blister formation about the ankle. X-rays reveal (1) a displaced oblique spiral fracture of the lateral malleolus which runs anterior-inferior to posterior-superior at the level of the syndesmosis (2) transverse fracture of medical malleolus. There is gross dislocation and mal position of the talus. 138. If the initial treatment above were to fail, then treatment should consist of: immediate open reduction. wait 4-6 days, then perform open reduction and internal fixation. open reduction contraindicated at any time with this type of fracture. fusion of ankle joint. Petitioner answered A, immediate open reduction and the Respondent's answer was B, wait 4-6 days, then perform open reduction and internal fixation. The correct initial treatment for the patient would have been attempted close reduction as indicated by the correct answer to question 137 which Petitioner answered correctly. An attempted close reduction is an attempt to correctly align the fractured bone by manipulation as opposed to surgically opening the area and aligning the bone visually by touch which is the open reduction and internal fixation procedure. After an attempted alignment of the bone, an x-ray will determine if there is proper alignment. If there is proper alignment, then the area is immobilized with a cast or some other device until the fracture heals. If the x-ray shows that proper alignment of the bone has not been obtained (the initial treatment has failed) then open reduction and internal fixation would be proper provided the swelling, ecchymosis and blistering are not present. Otherwise, as in this case, the proper method would be to wait a period of time, 4-6 days, for the swelling, ecchymosis and blistering to go away. Petitioner's contention that the swelling had gone down since there had been immobilization of the area with a cast, posterior splint or unna boot and a waiting period is without merit since those devices would not have been used before determining by x-rays that the initial treatment (closed reduction) had failed. The fourth and last question at issue in question 144 which stated: CASE HISTORY 50 A patient presents with a painful left ankle. The pain occurs following ambulation and is relieved by rest. There is minimal periartic- ular atrophy and the joint is slightly warm. X-rays reveal non-uniform joint narrowing, subchondral sclerosis and marginal osteophytes. 144. It can be expected that the patient will favorably respond to treatment but may experience flareups. significant cartilage damage will occur. total joint replacement will be required. total remission can be expected following treatment. Petitioner answered B, significant cartilage damage will occur and Respondent's answer was A, that the patient will favorably respond to treatment but may experience flareups. There were a series of questions preceding this question concerning the patient in Case History 50. The first question asked for a diagnosis which the Petitioner correctly answered as osteoarthritis. The second question concerned advising the patient on treatment which the Petitioner answered correctly by giving instructions on protecting the joint and taking simple analgesics. The third question concerned activity levels such as jogging and climbing steps which Petitioner answered correctly by advising to avoid squatting. However, in selecting B as the answer to question 144 the Petitioner did not consider the suggested treatment and advise given in the previous answers. His reasoning was that he could not assume that the patient would follow his suggested treatment or advise on prevention and activity. Additionally, the Petitioner felt that other factors such as the patient's age, weight, general health, level of activity and occupation that were missing from the case history were necessary to make a proper evaluation of whether the patient would respond favorably to treatment. Respondent admitted that either answer A or B would be correct but he picked B because he knew the disease was progressive and in time would get worse causing significant cartilage damage. Osteoarthritis is a degenerative joint disease that is not uniformly progressive that responds to treatment but cannot be cured. There will be recurring episodes of pain (flareups) triggered by factors such as the weather or a person's activity. Based on the factors in the above case history, there is sufficient evidence to show that the patient will favorably respond to treatment but may experience flareups. It was reasonable and logical for the Respondent to assume that the Petitioner in answering question 14 would consider his preceding answers and assume that the patient would follow the suggested treatment and advice. There is a lack of competent substantial evidence in the record to establish that significant cartilage damage would occur based on the facts given in Case History 50. There is a lack of competent substantial evidence in the record to establish that the grades which the Petitioner received on the July, 1990 Florida Podiatry Examination were incorrect, unfair, or invalid, or that the examination, and subsequent review session, were administered in an arbitrary or capricious manner.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grade he received on the July 1990, Florida Podiatry Examination. RECOMMENDED this 18th day of September, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2118 The following contributes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Adopted in substance in Findings of Fact 1 and 4. Adopted in substance in Finding of Fact 4. Rejected as not supported by competent substantial evidence in the record. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in substance in Findings of Fact 1 and 2. Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 3. 4.-6. Adopted in substance in Findings of Fact 6, 7, and 8, respectively. 7. Adopted in substance in Findings of Fact 9 and 10. COPIES FURNISHED: Hewitt E. Smith, Esquire P.O. Box 76081 Tampa, FL 33675 Vytas J. Urba, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford, Executive Director Board of Podiatry 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
