The Issue The issue in this case is whether Eric Ryan Birnie has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the Petition for Compensation.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: 1. Eric Ryan Birnie (Eric) is the natural son of Fred and Judith Birnie. He was born a live infant on March 12, 1989, at Halifax Hospital in Daytona Beach, Florida. His birth weight was in excess of 2500 grams. 2. The parties have stipulated that the physician(s) providing obstetrical services during the birth of Eric were, at all times material hereto, participating physician(s) in the Florida Birth-Related Neurological Injury Compensation Plan (hereinafter referred to as the "NICA Plan), as defined by Section 766.302(7), Florida Statutes. 3. Eric is the fifth child of Judith and Fred Birnie. The four older children are normal and healthy and they were all vaginally delivered without any significant problems. 4. At the time Eric was born, Judith Birnie was 35 years old. There is no evidence of any problems or complications during her pregnancy prior to the day Eric was born. 5. On the day Eric was born, Judith Birnie went to the hospital at approximately 7:00 in the morning. She was put on electronic fetal monitoring to monitor the heart rate of the fetus in conjunction with the contractions of the mother. 6. During the first 24 hours that Judith Birnie was in the hospital, the fetal heart monitor reflected a relatively constant fetal heart rate of approximately 150 beats per minute. Beginning at approximately 9:55 a.m., the fetal heart monitor began to register variable, recurrent decelerations to approximately 60 to 70 beats per minute for periods of 25-40 seconds. 7. At approximately 12:40 p.m., there was an abrupt change in the fetal heart monitor without a return to the baseline indicating a strong likelihood of fetal stress. Around this same time, Judith Birnie began to experience severe pain in the fundus of the uterus. The delivery room nurse called the attending physician who conducted a vaginal examination and determined that it was necessary to try and deliver the baby immediately. The physician twice attempted vacuum extraction of the fetus without success. At approximately 1:10 p.m., the doctor ordered a cesarean section ("C-section). The mother was induced for anesthesia about 1:15 p.m. and the baby was delivered by C- Section at 1:29 p.m. 8. During the operation, the attending physician noticed a collection of blood in the uterus and determined that there had been an abruption of the placenta, in other words, a separation of the placenta from the uterine wall. Even a partial abruption of the placenta can lead to fetal hypoxia. In this case, it appears that the abruption occurred at least 39 minutes before the baby was delivered. 9. The abruption of the placenta was subsequently confirmed by a pathology report which contained the following diagnosis: Placenta and umbilical cord with edema and hemorrhage between the amnion and corium infibrin deposition on the maternal surface of the cotyledons as may be seen with premature separation. 10. The Operative Report prepared by Dr. deGarcia, confirms severe fetal bradycardia and multiple variable decelerations as well as an abruption of the placenta. Similarly, the Discharge Summary for Judith Birnie prepared by Dr. Trelsar noted ". , fetal distress, severe... abruptio placentae. ..." ll. At the time of delivery, the baby was floppy and not breathing. Eric's head size at birth was normal which tends to belie the presence of any gross abnormality. 12. Delivery room resuscitation included intubation, with suctioning of meconium, and "bagging" with 100 percent oxygen. It appears that there was some meconium aspiration which is an indication of fetal asphyxiation. 13. Eric's Apgar score at one minute was two and at five minutes it was four. These scores are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of the heart rate, muscle tone, respiratory effort, color, and reflex irritability, with each category being assigned a score ranging from the lowest score of zero through a maximum score of two. As noted, at one minute, Eric's Apgar score totaled two, with heart rate and color being graded at one. Muscle tone, respiratory effort, and reflex irritability were graded at zero. At five minutes, Eric's Apgar score totaled four, with heart rate and color being graded at two each; respiratory effort, muscle tone and reflex irritability being graded at zero each. Such scores are consistent with Eric having suffered a severe hypoxic insult (deprivation of oxygen) at birth. 14. Eric's initial cord blood, i.e., the blood that was taken off the umbilical cord itself showing the condition of his blood at the time of birth, was recorded at a PH of 7.13. Anything under 7.2 is considered an asphyxiated condition. The baby was given sodium bicarbonate which is reflective of a determination that he was acidotic, a condition that could have been caused by hypoxia. 15. The progress notes made after the delivery indicate “cord around neck X2." The notes also indicate "perinatal asphyxia . . . hypoxic ischemia encephalopathy." Hypoxic encephalopathy is the loss of Oxygen to the brain. 16. Shortly after his birth, Eric was admitted to the neonatal intensive care unit at Halifax Hospital, where he was extubated. While in this unit, Eric was observed to display signs of seizure activity, and an electroencephalogram (EEG) was ordered. The first EEG was taken on March 13, 1989, and was read as normal. 17. A second EEG was taken on March 21, 1989. That EEG was read as follows: This is an abnormal tracing because of the presence of sharp spike and occasionally slow wave activity seen emanating out of the left hemisphere, particularly left temporal region. Occasionally there is some mild slowing. Seems to be a little greater in the right hemisphere but I think that is probably artifactual in nature. IMPRESSION: abnormal tracing. This is consistent with an underlying cerebral irritability involving the left hemisphere, particularly with the left temporal central region. It is also consistent with the diagnosis of seizures. 18. While in the hospital, Eric was placed on phenobarbital and dilantin to control the seizures. He was weaned from dilantin shortly thereafter. He continued on phenobarbital for approximately a 1% years until approximately July of 1990 when he was taken off the drug because he had not demonstrated any further seizures. There is no indication that Eric has had any subsequent seizures. The lack of and/or control of his seizures does not, however, suggest that any damage to Eric's brain has been remedied. Once brain cells are destroyed, they are not replaced. 19. During the first couple days of life, Eric was noted to have oliguria, i.e., decreased or diminished urine output. In addition to scant urine output, Eric's urine tested positive for blood and protein. These conditions could have been caused by tubular necrosis of the kidneys secondary to loss of oxygen to the organs during the late stages of labor. The existence of these kidney problems close to birth tends to confirm that Eric suffered an hypoxic injury that occurred at or close to birth. The oliguria cleared up within a few days, which is consistent with an hypoxic injury. 20. Eric was discharged from Halifax Hospital to the care of his parents on March 24, 1989. 21. The discharge summary prepared by the attending physician in the neonatal intensive care unit listed the principal diagnosis as follows: 1. Depressed newborn. 2. Post hypoxic encephalopathy with seizures. 3. Oliguria. 4. Hypokalecemia 5. Meconium aspiration 22. The following clinical problems were noted: 1... . hypoxic encephalopathy with seizures. This infant manifested early signs of hypoxic encephalopathy with seizures requiring initially phenobarbital and later dilantin intravenously for complete control. Electroencephalograms were performed. The one done of 3/13/89 was reported as normal. However the one performed on 3/21/89, showed that the tracing was abnormal consistent with an underlined cerebral irritability. The CAT scan performed on 3/13/89 was also regarded as probably normal by the Radiologists, as was the MRI performed on 3/24/89 . infant also developed an extensive soft tissue swelling in the scalp on the second day presumably because of a subgaleal hematoma or a cephal hematoma. The 23. Prior to discharge, there was an "Early Intervention Assessment" included in the progress notes which noted the fetal bradycardia and multiple decelerations, the abruption of the placenta, and the cord wrapped around the infant's neck. In view of these complications, the Early Intervention Assessment noted that Eric was "at high risk for developmental delay." It was recommended that Eric be referred to Easter Seals upon discharge and that the parents be provided with Support to help them cope with the problems they were likely to encounter because of Eric's condition. 24. After Eric was discharged from the hospital, he was evaluated by Dr. James Nealis, a pediatric neurologist. Dr. Nealis first evaluated Eric on March 29, 1989. Under his direction, a number of tests and evaluations were conducted. A Genetics tests did not reveal any abnormalities. Similarly, a 10 urine metabolic screen and thyroid function study did not reveal any problems. 25. An EEG report dated April 17, 1989 stated as follows: {nJormal tracing for age. There is some non- specific sharp activity seen that is of questionable significance, and there is asymmetry noted a voltage, which may be artifactual in nature. Clinical correlation is indicated. No definite evidence of paroxysmal epileptiform activity is seen. 26. Dr. Nealis continued to prescribe phenobarbital for Eric through July of 1990. Dr. Nealis' records indicate that an CAT scan, an EEG and a MRI performed in September/October of 1989 did not reveal any abnormalities. In addition, his records indicate that an MRI performed on January 12, 1990, was "negative." An EEG taken on June 14, 1990, was also read as normal. 27. An examination of Eric on January 11, 1990, indicated that he was experiencing some developmental delay. He had poor control of his head and he could not sit alone. 28. Eric began a special program at Easter Seals at approximately 11 months of age. At the time, Eric's gross motor skills were evaluated at 4 months and his fine motor skills were thought to be 4% months. At 16 months of age, Eric's motor development was still at 4 months. He could not sit alone and could not crawl. 29. A July 19, 1990 MRI report included the following: . {Tjhere are areas of abnormal T2 hyperintensity identified in the thalami and posterior putamen bilaterally. In retrospect, these were noted on the prior examination although they appear slightly more prominent on the present study li The significance is uncertain. These could represent focal areas of gliosis, hamartomatous change, focal areas of dysmyelination, or focal areas of prior ischemic change .. . Focal areas of abnormal patchy T2 hyperintensity in the thalamin putamen bilaterally which remains stable compared to the prior examination. These most likely represent focal areas of gliosis hamartomatous. The possibility of an abnormality in myelination or a prior ischemic injury can not entirely be excluded 30. On August 1, 1990, Eric was evaluated at the Nemours Children's Clinic in Jacksonville, Florida. Dr. William R. Turk performed the evaluation. He noted that Eric's gross motor development was severely limited and concluded that Eric had a static but evolving encephalopathy. 31. Dr. Turk also noted in his August 1, 1990 evaluation that: "{Eric's] history is not suggestive of a typical chronic metabolic encephalopathy. An issue has been raised in regard to Eric's serial MRI scan which questionably show a progression of changes in the basal ganglia. I have only been able to briefly review these studies, and have forwarded them to,Dr. Wismer for a comprehensive reading. However, my initial impression is that these scans demonstrate findings consistent with the prior hypoxic ischemic insult. 32. Dr. Turk summarized his findings in a letter to Eric's pediatrician dated September 25, 1990. That letter indicates that Dr. Turk reviewed Eric's "sequential neuroadiologic studies” and concludes that Eric has "a static encepholopathy manifest[ed] by a dystonic quadriplegia" as the result of "an evolving but remote hypoxic ischemic insult.” 33. Dr. Turk referred Eric to the Genetics Clinic fora second genetics evaluation. That study found "no clinically 12 significant cytogenetic abnormalities." The genetics report noted that Judith Birnie had a chorionic villus sampling procedure performed during her pregnancy with Eric at 17 weeks and that study was reported as a normal male karyotype. 34. Dr. Charlotte Ziskin Lafer performed the genetics study and also examined Eric. She advised the family that Eric's delayed development was most likely due to an hypoxic event. 35. In his 35 month evaluation conducted by Easter Seals, it was noted that Eric was functioning at an age equivalent of 8 months in gross motor skills. Eric was approximately age equivalent in receptive language skills, but he was functioning at only 24 months in expressive language skills. Eric was also demonstrating significant delay in oral motor skills. He had limited tongue mobility and was unable to lateralize, raise or lower his tongue. He was only able to produce a small number of vowel and consonant sounds. 36. On February 10, 1993, the Volusia County School Board administered a number of tests to Eric in order to evaluate him for placement in their exceptional student program. At the time of the evaluation, Eric was not able to stand, his manual dexterity was limited and special effort and attention was necessary to understand his verbal communications. Because of Eric's profound physical handicaps, the tests were specially selected and administered. The test results indicated that Eric was average or even above in his cognitive skills and preacademic skills. As a result, the School Board anticipates that Eric will ultimately be educated in a mainstream classroom with 13 nonhandicapped students of his own age group. He will, however, need special accommodations within the classroom to address his physical handicaps and limitations. 37. The evidence established that it is very difficult to accurately assess the intellectual ability of a young child, especially a severely handicapped child such as Eric. While it is impossible to determine whether Eric's intellectual test results would have been higher if he had not suffered an hypoxic insult at birth, it is likely that the limitations on his exploratory capabilities caused by his physical handicaps have impaired his intellectual development to some degree. 38. At the time of the hearing in this case, Eric was 4% years old. He was unable to stand up, walk or crawl. His only method of independent mobility was to roll over. The use of his hands and arms was very limited. He also had great difficulty talking and/or communicating and he must take long pauses to formulate a response to any inquiry. 39. Eric's brain dysfunction is permanent. Because Eric's speech is greatly impacted by his condition, it is virtually certain that he will always be severely limited in his verbal expression and other communication skills. While continued therapy may help him to communicate better and to become somewhat more mobile, he will almost certainly never be able to walk, feed, groom or toilet himself. 40. The evidence established that Eric's problems are the result of damage to the basal ganglia deep inside his brain. Although it can not be determined conclusively, it is more likely 14 than not that the "white matter" surrounding the basal ganglia have also been damaged to some degree which may impact his perceptual and processing abilities. 41. The opinions of the eminently qualified physicians who testified in the case as to the cause of Eric's brain dysfunction are diametrically opposed. Petitioners' expert claims that Eric suffered a severe hypoxic insult at birth and that, as a consequence of the resultant oxygen deprivation, Eric suffered an injury to his brain which has dramatically impacted his development. Petitioners’ expert contends that the isolated nature of the brain injury was a function of the duration of the hypoxic event and Eric's individual sensitivities. 42. Respondent's expert suggests that the seriousness of Eric's current neurological deficit is not a product of an hypoxic insult suffered at birth, but, rather, was occasioned by some unspecified prenatal problem. He believes that an hypoxic injury to the brain would have necessarily resulted in more global damage to the brain. 43. After considering all of the evidence , it is concluded that the more compelling proof in this case is that Eric sustained an injury to the brain caused by oxygen deprivation in the course of labor, delivery or resuscitation in the immediate post-delivery period. The injuries and disabilities which have been manifested by Eric since his birth are consistent with and have repeatedly been attributed to brain damage from loss of oxygen during labor and delivery. The proximity of Eric's seizure activity to birth and the abnormal EEGs are also is consistent with a brain injury as a consequence of an hypoxic insult at birth. Given the absence of any other identifiable factor, it is concluded that Eric's condition is attributable to birth asphyxia. This conclusion is accordant with the opinion of the neonatologist who treated Eric in the neonatal intensive care unit. He believes that Eric suffered fetal distress due to the partial abruption of the placenta during labor and delivery. He also believes that Eric suffered hypoxic encephalopathy as the result of the umbilical cord being wrapped around his neck. 44. Eric is indisputably permanently and substantially physically impaired. Respondent contends, however, that Eric and his parents are not entitled to compensation under the NICA Plan because he is not substantially mentally impaired. This issue is addressed in more detail in the Conclusions of Law below. As noted above, Eric's condition is the result of damage to his brain. As a direct result of his injury, Eric will not be able to communicate, attend school or otherwise learn and develop intellectually without substantial accommodation. His social and vocational development have unquestionably been significantly impaired.
Conclusions For Petitioners: Larry Sands, Esquire 760 White Street Daytona Beach, Florida 32115-2010 For Respondent: W. Douglas Moody, Jr., Esquire Taylor, Brion, Buker & Greene 225 South Adams Street, Suite 250 Tallahassee, Florida 32301
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.2d 299 (Fla. lst DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 29
The Issue Whether Isaac Castro and David Castro, deceased minors, qualify for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Milagros Magaly Castro and William Marcelo Castro are the natural parents of Isaac Castro and David Castro, deceased minors, and the Personal Representatives of their deceased sons' estates. Isaac and David were the product of a multiple (twin) gestation, and were born live infants on November 25, 2004, at Palmetto General Hospital, a hospital located in Hialeah, Florida, each with a birth weight exceeding 2,000 grams. David died December 7, 2004, and Isaac died January 12, 2005. The physician providing obstetrical services at Isaac's and David's birth was Monica Daniel, 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. Isaac's and David's birth At or about 1:50 p.m., October 11, 2004, Mrs. Castro, aged 40, with an estimated delivery date of December 30, 2004, and the twins at 28+ weeks' gestation, presented to Palmetto General Hospital on referral from her perinatologist for inpatient management, with concerns of elevated blood pressure (suspected pregnancy induced hypertension), and increased creatinine levels. At the time, Mrs. Castro's pregnancy was considered high risk, with advanced maternal age and twin gestation, and was further complicated by insulin dependent gestational diabetes and hypothyroidism. Nevertheless, numerous assessments during the term of her pregnancy were reassuring for fetal well-being, as was her initial assessment at Palmetto General Hospital. Mrs. Castro was admitted to the hospital at 3:00 p.m., that day, and her pregnancy was managed without apparent adverse incident until November 24, 2004, when, with the twins at 34 6/7 weeks' gestation, Mrs. Castro demonstrated severe preeclampsia, with increasing creatinine levels (worsening renal status). Notably, however, fetal monitoring between 1:01 p.m., and approximately 4:07 p.m., that afternoon,5 provided reassuring evidence of continued fetal well-being.6 Given her condition, Dr. Daniel ordered Mrs. Castro admitted to labor and delivery, where she was received at 9:10 p.m., for cesarean section delivery. Notably, Dr. Daniel's admission orders included a requirement for external fetal monitoring. However, that order was not followed, and no fetal monitor strips exist that would aid in assessing fetal status subsequent to 4:07 p.m., November 24, 2004. The progress notes do, however, include a few entries that bear on the issue. At 9:10 p.m., on admission to labor and delivery, the nurse noted that Mrs. Castro reported normal fetal movement, and denied pain, vaginal discharge, or blurred vision. Thereafter, at 10:30 p.m., the nurse noted that Mrs. Castro showed abnormal lung sounds, with crackles bilaterally to the bases, and dyspnea (difficult or labored breathing). Mrs. Castro was provided supplemental oxygen by nasal cannula (NC). At 1:00 a.m., November 25, 2004, while being prepared for surgery, the nurse noted that Mrs. Castro was slightly dyspneic and still receiving supplemental oxygen, NC at 2 liters. Assessment revealed reassuring fetal heart tones, with "FHT's via US on right upper quadrant in the 130's [and] FHT's via US on lower left upper quadrant in the 120's." Otherwise, the records provide no information regarding fetal status until the twins were delivered.7 At 1:35 a.m., Mrs. Castro was noted in the operating room, with an oxygen saturation level of 92 percent. She was given oxygen by mask, and by 1:45 a.m., her saturation levels were at 100 percent. No fetal heart tones were obtained "due to maternal instability," and, at 1:56 a.m., the incision was made (delivery began), and at 2:01 a.m., Isaac (identified as Twin A in the medical records) and at 2:02 a.m., David (identified as Twin B in the medical records) were delivered, severely depressed. Isaac's Apgar scores were noted as 1, 2, 2, 2, 2, 2, and 5, at one, five, ten, fifteen, twenty, twenty-five, and twenty-eight minutes, respectively.8 David's Apgar scores were noted as 3, 5, and 6, at one, five, and ten minutes, respectively.9 Isaac's delivery and hospital course are documented in his Death Summary, as follows: BIRTH DATE: 11/25/2004 [TIME 02:01 hours] WEIGHT: 2.275kg GEST AGE: 35 weeks GROWTH: AGA Amniotic fluid was meconium stained. Presentation was vertex. The patient was born in the delivery room by emergent cesarean section under spinal anesthesia for maternal hypertension and increasing creatinine. The patient was born first of twins. Apgar scores were 1 at 1 minute, 2 at 5 minutes and 2 at 10 minutes. At delivery, the patient was cyanotic, floppy, apneic and bradycardic. Treatment at delivery included oxygen, stimulation, oral suctioning, bag and mask ventilation, endotrachcal tube ventilation, epinephrine and cardiac compression. At birth baby was cyanotic, absent breathing effort, bradycardic (in the 20's-30's). Baby noticed to have particulate meconium. Oropharynx was suctioned by wall upon head delivery. Bag mask ventilation was started with no improvement in respiratory effort. Baby was intubated and epinephrine was given x 3 by EET but still no improvement in heart rate (in the 20's-30's). UAC line was placed while baby continued being bagged, and epinephrine was given IV x 2. Also 6 Meq of sodium bicarbonate was given x 2 plus one bolus of 4.5 Meq. Saline solution bolus of 20cc was given x1 . . . . On minute number 28-29 of life an adequate heart beat was finally noticed with improvement in color. Tone and activity still poor and no response to pain stimuli. ABG form UAC showed a pH=6.7 PCO2=47 PO2-380 BE=-31 HC03=5.6 . . . . ADMISSION DATE: 11/25/04 The patient was admitted immediately following delivery. Indications for admission included metabolic acidosis, possible sepsis, respiratory distress, prematurity and perinatal depression. Upon admission to NICU mechanical ventilation was started. Chest XR compatible with HMD vs. pneumonia. No air leak. Infasurf was given x 1 with good response, and several HCO3 corrections were needed. ADMISSION PHYSICAL EXAM . . . OVERALL STATUS: Critical - initial NICU day. BED: Radiant warmer. TEMP: Stable. HR: Stable. RR: Unstable. BP: Stable . . . . CONDITION: Acrocyanotic and depressed, intubated, hypertonic extremities. HEENT: Soft fontanelles, sluggish pupil reaction to light, ETT in place. RESPIRATORY: Minimally depressed air exchange and decreased breath sounds bilaterally (improved after surfactant administration). CARDIAC: Normal sinus rhythm . . . . NEUROLOGIC: Depressed mental status. Severely decreased muscle tone initially and hypertonicity noticed after NICU admission. Seizures noticed (lip smacking and tonic- clonic seizures on all 4 extremities > on the R hand) . . . . * * * RESOLVED DIAGNOSES DIAGNOSIS #1: RESPIRATORY DISTRESS ONSET: 11/25/2004 RESOLVED: 1/12/2005 * * * COMMENTS: Developed respiratory distress at birth. Chest Xrays compatible with HMD vs pneumonia. Initially severe respiratory acidosis. Improved with Infasurf x 1. On vent since birth, self-extubated during nursing touch-time on 12/5, was extubated for 19 hrs on nasal cannula but was reintubated on 12/6 for PC02 70 felt to be secondary to mucous plug. He has no gag reflex and has poor control of respiratory secretions reason why he has been kept on mechanical ventilation. He is still ventilator dependent, was on ETT CPAP+5 and after an extubation attempt on 1/2 he failed oxyhood and was reintubated on 1/3/05. now extubated to nasal cannula. * * * DIAGNOSIS #3: POSSIBLE SEPSIS ONSET: 11/25/2004 RESOLVED: 12/6/2004 * * * COMMENTS: Completed a 10 day course of antibiotics for suspect sepsis due to unknown GBS, respiratory distress, and severe metabolic and respiratory acidosis. There is no clinical evidence of sepsis at this time. * * * DIAGNOSIS #10: SEVERE HYPOXIC-ISCHEMIC BRAIN INJURY ONSET: 11/25/2004 RESOLVED: 1/12/2005 PROCEDURES: cranial ultrasound on 11/25/2004 (unofficially no bleed); MRI scan on 12/3/2004 (findings suggesting ischemic encephalopathy, normal size ventricles, no mass effects or midline shift) COMMENTS: Adequate heart rate not obtained till 28-29 minutes of life. He presented with seizures and an abnormal neurologic exam and abnormal EEG findings. The pediatric neurologist impression was of a severe hypoxic ischemic encephalopathy with multifocal seizures. No clinical neurologic deterioration has been noted recently. The MRI was compatible with ischemic encephalopathy. Ped neurologist has been following the baby with us. No neurological improvement has been noted recently. . . . Baby remains unresponsive, fixed pupils, minimal spontaneous breathing, does not have any spontaneous movement. No new changes noted recently. The baby has been unstable and recommended MRI of the brain was able to be done due to the critical condition of the infant. DIAGNOSIS #11: SEIZURES ONSET: 11/25/2004 RESOLVED: 1/12/2005 * * * COMMENTS: The pediatric neurologist impression is of a severe hypoxic ischemic encephalopathy with multifocal seizures. Baby was initially noted to be lip-smacking shortly after admission to NICU then started with tonic-clonic movement of all four extremities > on the R hand. Initially treated with phenobarbital and Versed. Phenobarb discontinued 11/26. No clinical seizure activity on PE but on 11/29 EEG showed diffuse electrical sz. Phenobarb and Cerebryx started. EEG on 12/1 was unchanged but occasional correlation with subtle finger movement. 12/2 with decerebrate posturing of UE to deep painful stimuli. EEG from 12/3 showed seizure activity but some improvement was reported. Phenobarbital given x1 then held 2nd level elevated Cerebryx continued till 12/9 discontinued per pedi-neuro. Depacon added on 12/6 as recommended by pediatric neurologist no change before discontinued 12/10. Phenobarb was resumed on 12/8. level 42.3 on 12/11. The dose has been adjusted as per neurologist. No recent new neurological changes or improvement noted. He continues on phenobarb w/occasional clinical seizure noted . . . . * * * DIAGNOSIS #13: SEVERE METABOLIC ACIDOSIS ONSET: 11/25/2004 RESOLVED: 12/2/2004 COMMENTS: Severe metabolic acidosis at birth pH 6.7 HCO3=5.6. Baby received HCO3 bolus x 3 in the OR and several corrections upon admission to NICU. * * * DEATH INFORMATION DISPOSITION: The patient died on 1/12/2005 at 00:52 hours. The cause of death was Cardio-respiratory arrest. Baby Boy "A" Castro is an 48 d/o w/Hypoxic- ischemic-encephalopathy, seizures, s/p 28-29 min full resuscitation, initially w/o a heart rate; who has been in a vegetative neurological state, w/intractable seizures since birth 11/25/04. Baby never tolerated any feeds and remained in TPN, was extubated to n/c w/(+) spontaneous breathing but NO gag and unable to clear secretions since baby never had any spontaneous voluntary movement. Tonight while parents visited baby was having desaturations and bradycardia that required IPPB, to improve heart rate and O2 sats. Parents requested to stop the IPPB, and requested to hold baby w/O2 N/C. Baby expired almost immediately of cardiorespiratory arrest at 12:52 a.m. . . . . David's delivery and hospital course are documented in his Death Summary, as follows: BIRTH DATE: 11/25/2004 TIME: 02:02 hours WEIGHT: 2.150kg GEST AGE: 35 weeks GROWTH: AGA RUPTURE OF MEMBRANES: At delivery. AMNIOTIC FLUID: Clear. PRESENTATION: Vertex. DELIVERY: Born in the delivery room by emergent cesarean section under spinal anesthesia for maternal hypertension with increasing creatinine. BIRTH ORDER: Second of twins. APGARS: 3 at 1 minute, 5 at 5 minutes and 6 at 10 minutes. CONDITION AT DELIVERY: Cyanotic and floppy. TREATMENT AT DELIVERY: Stimulation, oxygen, oral suctioning, bag and mask ventilation and endotrachael tube ventilation. At birth baby was cyanotic, no respiratory effort, floppy, bradycardic in the 50's. Mouth was suctioned with bulb, and bag mask ventilation was started for about 5 minutes before improvement in color and activity were seen. Baby was intubated aprox on min of life 4-5 by pediatrician Dr. Torres. No medication was needed during intervention, and baby responded well to intubation, oxygen and ambu bag ventilation. Baby noticed to be floppy despite color and heart rate improvement. Transferred stable to NICU. Initial ABG's showed severe metabolic acidosis pH=6.9 HCO3=7.4 BE=-25. ADMISSION DATE: 11/25/2004 ADMISSION TYPE: Immediately following delivery. ADMISSION INDICATIONS: Metabolic acidosis, respiratory distress, possible sepsis, prematurity and perinatal depression. Upon admission to NICU mechanical ventilation was stated. Chest XR showed reticulogranular pattern and air bronchograms compatible with HMD vs. pneumonia. No air leak. Infasurf was given x 1 with good response. Na bicarbonate corrections were needed x 3. ADMISSION PHYSICAL EXAM OVERALL STATUS: Critical - initial NICU day. BED: Radiant warmer. TEMP: Stable. HR: Stable. RR: Unstable: BP: Stable. URINE OUTPUT: Stable. CONDITION: on PRVC, breathing above the ventilator (tachypneic), pink color, mild acrocyanosis. HEENT: Pupils reactive to light, soft fontanelles, no bulging. RESPIRATORY: Minimally decreased air exchange, initially decreased breath sounds, improved after Infasurf and mechanical ventilator sounds heard equally bilaterally. CARDIAC: Normal sinus rhythm . . . . NEUROLOGIC: Depressed mental status and decreased muscle tone. * * * RESOLVED DIAGNOSES DIAGNOSIS #1: SEVERE RESPIRATORY DISTRESS ONSET: 11/25/2004 RESOLVED: 12/7/2004 * * * COMMENTS: Respiratory distress at birth. Chest XR compatible with HMD vs pneumonia. Received Infasurf x 1 with adequate response. In room air but requiring vent support due to no spontaneous respirations breathing with the vent. Poor respiratory effort more likely due to hypoxic ischemic encephalopathy but no deterioration in respiratory status. He remains critically ill and on high ventilatory support, unstable and deteriorating due to DIC and sepsis. During the course of the day the baby continued to deteriorate clinically and presented episodes of bradycardia and decreased SAO2 requiring higher ventilatory support and multiple doses of epinephrine. Later in the afternoon he became bradycardic and did not respond to resuscitative measures and was declared dead at 3:25 PM. . . . DIAGNOSIS #2: METABOLIC ACIDOSIS ONSET: 11/25/2004 RESOLVED: 11/29/2004 MEDICATIONS: Sodium bicarbonate on 11/25/2004. COMMENTS: Upon admission required Na bicarbonate corrections x3. Initial ABG's showed a pH=6.9 HCO3=7.4 BE=-25, currently stable. * * * DIAGNOSIS #6: POSSIBLE SEPSIS ONSET: 11/25/2004 RESOLVED: 12/5/2004 * * * COMMENTS: Completing a 10 day course of antibiotics for suspect sepsis secondary to maternal GBS unknown, respiratory distress at birth, severe metabolic acidosis. The blood culture was negative and there is no clinical evidence of sepsis at this time. * * * DIAGNOSIS #10: HYPOXIC-ISCHEMIC BRAIN INJURY ONSET: 11/25/2004 RESOLVED: 12/7/2004 PROCEDURES: cranial ultrasound from 11/25/2004 till 12/7/2004(normal) COMMENTS: Perinatal depression, required bag mask ventilation, intubation and oxygen in order to improve. Apgar scores were 3/5/6. The baby had presented seizures and systemic failure and the assessment of the pediatric neurologist was of severe hypoxic and ischemic encephalopathy. Neurologically he has not changed recently and continues with an abnormal neurological exam and no improvement in neuro condition. DIAGNOSIS #11: SEIZURES ONSET: 11/25/2004 RESOLVED: 12/7/2004 * * * COMMENTS: Shortly after admission to NICU he started with generalized tonic-clonic seizures. Persistent Sz activity on phenobarb and Cerebryx correlates with independent clonic movements of UE, extensor posturing of UE R>L and gaze deviation per neurologist Dr. Bustamante. Last EEG from 12/3 showed worsening EEG with seizure activity and burst suppression. The pediatric neurologist impression was of a severe hypoxic ischemic encephalopathy with multifocal seizures. Phenobarbital on hold since 12/1 for level 61.8 down to 29.5 will not resume per neuro and phosphenytoin level 18.8 on maintenance dose 2.5 mg/kg q 12. An MRI was not done due to the critical and unstable condition of the infant. * * * DEATH INFORMATION DISCHARGE TYPE: Died. DATE OF DEATH: 12/7/2004. TIME OF DEATH: 15:25 hours. CAUSE OF DEATH: Respiratory failure, sepsis and multisystemic failure . . . . 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 an "injury to the brain . . . caused by oxygen deprivation . . . 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. Here, it is undisputed that Isaac and David suffered an injury to the brain caused by oxygen deprivation, which rendered them permanently and substantially mentally and physically impaired. What is disputed is whether the injury occurred "in the course of labor, delivery, or resuscitation in the immediate postdelivery period," as required for coverage under the Plan. § 766.302(2), Fla. Stat.; Nagy v. Florida Birth-Related Neurological Injury Compensation Association, 813 So. 2d 155 (Fla. 4th DCA 2002). As to that issue, Petitioners are of the view that the brain injury occurred before delivery, and since it is undisputed that Mrs. Castro was never in labor the injury is not covered by the Plan. In contrast, NICA and the hospital are of the view that the injury either occurred during, or continued through, delivery and resuscitation, and is therefore compensable. As an aid to resolving such issue, Section 766.309(1)(a), Florida Statutes, provides that when, as here, the proof demonstrates "that the infant has sustained a brain . . . injury caused by oxygen deprivation . . . and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption . . . [arises] that the injury is a birth-related neurological injury, as defined [by the Plan]." Here, since Mrs. Castro was never in labor, the presumption is that Isaac's and David's brain injury occurred in the course of delivery or resuscitation in the immediate postdelivery period. See Orlando Regional Healthcare Systems, Inc. v. Alexander, 909 So. 2d 582 (Fla. 5th DCA 2005). Consequently, to be resolved is whether there was credible evidence produced to support a contrary conclusion and, if so, whether, absent the presumption, the record demonstrates, more likely than not, that Isaac's and David's brain injury occurred during delivery or resuscitation in the immediate postdelivery period.10 The timing of the twins' brain injury To address the timing of the twins' brain injury, the parties offered the medical records relating to Mrs. Castro's antepartal course, as well as those associated with the twins' birth and subsequent development. (Petitioners' Exhibit A, tabs 8-11, and Exhibit B). Additionally, the parties offered the deposition testimony of Dr. Daniel, a physician board-certified in obstetrics and gynecology; Adré du Plessis, M.D., a physician board-certified in pediatrics, and neurology with special competence in child neurology; Steven Chavoustie, M.D., a physician board-certified in obstetrics and gynecology; Michael Katz, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine; and Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine. (Petitioners' Exhibit A, tabs 3-7) The testimony of Doctors Daniel, du Plessis, and Chavoustie was supportive of Petitioners' view, and the testimony of Doctors Katz and Willis was supportive of the views of NICA and the hospital. The medical records and the testimony of the parties' experts have been carefully considered. So considered, it must be resolved that there was credible evidence (through the testimony of Doctors Daniel, du Plessis, and Chavoustie) to rebut the presumption established by Section 766.309(1)(a), Florida Statutes, and that, absent the presumption, the record failed to demonstrate, more likely than not, that any injury the twins may have suffered during delivery or immediate postdelivery resuscitation contributed significantly to the profound neurologic impairment they suffered. Indeed, the more compelling proof supports a contrary conclusion. In so concluding, it is notable that the twins' brain injury started sometime after 4:07 p.m., November 24, 2004, when fetal reserves were lost, and the twins ability to compensate for a lack of oxygen failed, and that, given the severe depression the twins demonstrated at birth (cyanotic, apneic, floppy, and profoundly bradycardic), consistent with injury to the brain stem, the more robust level of a newborn brain; the need for intensive delivery room resuscitation (with intubation and, in the case of Isaac, advanced CPR), likewise consistent with injury to the brain stem; and the profound acidotic state in which they presented, it is likely, more so than not, that the twins suffered profound brain damage well prior to delivery (which was quick and without complication), that accounts for the severe neurological impairment (mental and physical) they demonstrated at birth. Consequently, since Mrs. Castro was not in labor when the profound brain injury most likely occurred, the twins were not shown to have suffered a "birth-related neurological injury," as defined by the Plan.
Findings Of Fact At all pertinent times, respondent Manuel P. Villaflor, M.D., held a Florida license as a physician, No. ME 0020072. Since the 1970's, he has engaged in the general practice of medicine in Daytona Beach. A former president of the Volusia County Medical Society testified that Dr. Villaflor was "a very capable general practitioner" (T. 465) and that he at one time had charge of the special clinics for indigent patients at Halifax Hospital. UNTIMELY DEATH K. D., a white male, was pronounced dead at 3:59 P.M. on October 19, 1985, a few days shy of his 34th birthday. The autopsy disclosed superficial abrasions, acute blunt trauma to K. D.'s face, scalp and right hand, and acute, diffuse subdural hemorrhage. A paper bag full of prescription medicine containers accompanied the body to the autopsy. Apparently because the labels indicated that Dr. Villaflor had written pain killing prescriptions for K. D., the medical examiner's office notified DPR. Some four months later, analysis of samples of K. D.'s blood and urine revealed that codeine, oxycodone, amitriptyline, also known as Elavil, nortriptyline, also known as Pamelor, and chlordiazepoxide, also known as Librium, had been present in the corpse in quantities "beyond the reference range for therapeutic use." Botting deposition, p. 6. The pathologist amended his initial conclusion that head injuries resulting from "multi-focal blunt trauma," id., p. 7, had caused K. D.'s death, by adding "multiple drug intoxication," id., as another cause of death. As far as the record shows, Dr. Villaflor never prescribed Elavil, Pamelor, Librium or their chemical equivalents for K. D. An osteopath whom K. D. saw toward the end of his life prescribed at least two of these medications, as well as medicine containing oxycodone. CONTROLLED SUBSTANCES UNCONTROLLED On November 15, 1985, Diane Rabideau, an investigator for DPR, called on Dr. Villaflor at his office. He was polite and cooperative. Ms. Rabideau had some difficulty understanding him; he is not a native English speaker, and he had recently suffered a stroke. But she understood well enough Dr. Villaflor's assertions that he did not believe K. D. to have been addicted to any drugs, and that he had not over-prescribed any medicine. Ms. Rabideau inspected the controlled substances kept in Dr. Villaflor's office. She found Tenuate Dospan, Restoril, Darvocet, Valium, Tylenol No. 4, Fiorinal No. 3, Xanax, Vicodin, Tylenol with codeine elixir, Dalmane, Anexsia, Centrax, "Tussend Ex. 1/2 oz.," Limbitrol, Equagesic, Phrenilin with codeine, Novahistine, Naldecon, Ativan, Nucofed, and "P.V. Tussin." When she saw them, they were not under lock and key. No inventory records reflected what was on hand and what had been dispensed. The parties stipulated that Dr. Villaflor "failed to maintain records of the[se] schedule controlled substances ... as required by Section 893.07, Florida Statutes"; and that he "failed to keep the[se] drugs ... under lock and key as required by 21 C.F.R. Section 1301.72." When Ms. Rabideau pointed out these omissions, Dr. Villaflor and his wife, who works with him in the office, said they would comply in the future. Mrs. Villaflor said she had not known of these requirements. A subsequent inspection by a DPR investigation found Dr. Villaflor in full compliance with reporting requirements governing controlled substances. K. D.'s PAIN On July 8, 1981, Dr. Villaflor saw K. D., apparently for the first time, at the Halifax Hospital Medical Center emergency room, and admitted him to the hospital. K. D. had sustained an electrical shock when he struck a high voltage power line with an aluminum ladder, as he was hurrying for shelter from a sudden rain. He lost consciousness "surrounded by a bluish flame." Petitioner's Exhibit No. 12. The electricity burned his feet and made his lower legs tender, as well. Discharged from the hospital, he visited Dr. Villaflor's office on July 15, 1981. In these proceedings, DPR does not question Dr. Villaflor's prescription of Percocet, a combination of Tylenol and oxycodone, for pain on that visit. As a teenager, K. D. had broken his collar bone in falls from motorcycles on two separate occasions. One accident involved a ride over a waterfall. When he was 21 years old, he "was smashed between a construction vehicle and a bulldozer," Petitioner's Exhibit No. 12, suffering "a severe crushing injury to his chest." Some ten years later he "still ha[d] very mobile ribs secondary to this injury," and persistent pain in his back and legs. In November of 1981, Dr. Kolin, a psychiatrist in Orlando, admitted K. D. to Orlando Regional Medical Center. A myelogram "revealed a mild L5 radicular lesion on the left, consistent with chronic myofascial pain and left L5 radiculitis." Petitioner's Exhibit No. 11. During this hospital stay, K. D.'s "narcotic medications were tapered and discontinued." Id. Dr. Villaflor sent copies of his records to Dr. Kolin, to whom Dr. Gillespie in Nashua, New Hampshire, had referred K. D. Apparently Dr. Villaflor never asked and Dr. Kolin never volunteered to forward Dr. Kolin's records to Dr. Villaflor. Gary G. Parsons, a vocation rehabilitation counselor, met K. D. on February 8, 1982. After K. D. made a perfect score on an aptitude test, a state agency subsidized his vocational training at the American Computer Institute. When K. D.'s training there concluded on January 4, 1983, Mr. Parsons tried to assist him in obtaining employment, but eventually concluded that K. D. could not hold a job because "his pain, and his limitation was greater than" (T. 283) Mr. Parsons had originally realized. K. D.'s pain or his physical condition "was primary in his conversation almost every time" (T. 283- 4) he and Mr. Parsons spoke. Even after the vocational rehabilitation file was closed on June 26, 1984, he came by Mr. Parsons' office twice. Both times K. D. seemed depressed to Mr. Parsons, who had recommended he go for counseling to the Human Resources Center, a community mental health center. Mr. Parsons saw K. D. for the last time on March 22, 1985. At least as early as August of 1984, K. D. mentioned suicide to Mr. Parsons as a possibility. In March of 1985, K. D. began weekly counselling sessions with Dr. Rafael Parlade, a clinical psychologist at the Human Resources Center. In these sessions "the two issues ... were his suicidal ideation combination with the depression, and the departure of his live-in girlfriend." (T. 273) He "still had a lot of pain." (T. 274) Dr. Parlade hoped K. D. would "increase his activities," (T. 276) so that with ... activity in his life more, he would focus away from his pain. Because for a period of time that was all he was living with. (T. 276) Dr. Parlade viewed decreasing the amount of pain medication as a secondary goal (T. 275), a result he hoped would flow from K. D.'s being less preoccupied with the pain he experienced continually. PAIN REMEDIES On January 31, 1983, K. D. visited Dr. Villaflor's office. Dr. Villaflor's notes for that day mentioned K. D.'s "Electrocution High Voltage in 7/81" and reflect a prescription for 50 tablets of Talwin. K. D.'s blood pressure, 120 over 70, is noted, and reference is made to a TENS unit, or transcutaneous nerve stimulator. Somebody at the Orlando pain clinic K. D. had visited had recommended one of these electrical devices to K. D., but it had proved ineffective against his pain. At one time or other, K. D. resorted to acupuncture and resumed wearing a corset of the kind originally prescribed for the back pain he experienced in the wake of the cascading motorcycle accident. Dr. Villaflor's office notes of April 15, 1983, record "Back Pain," a second prescription for 50 tablets of Talwin and another prescription for Xanax. On Nay 11, 1983, Dr. Villaflor's records again note K. D.'s "Back Pain" and indicate prescriptions for Xanax and Percocet. Nothing suggests Dr. Villaflor knew that Talwin had been dispensed to K. D. five days earlier, when K. D. appeared at his office on May 26, 1983. Essentially illegible, Dr. Villaflor's office notes for May 26, 1983, reflect prescriptions for Percocet and Xanax tablets, with which K. D. obtained 30 quarter milligram Xanax tablets on June 6, 1983, and 35 Percocet tablets on June 8, 1983. Xanax, a tranquilizer, is taken three or four times daily. Since Percocet in the quantity prescribed may be taken every four to six hours, it was "very much within reason" (T. 239) for Dr. Villaflor to prescribe more on June 9, 1983. When this prescription was filled on June 22, 1983, K. D. received 45 tablets. On July 7, 1983, Dr. Villaflor saw K. D. at his office for the first time in almost a month, and prescribed 35 more tablets of Percocet, also known as oxycodone with acetaminophen. The same day K. D. had the prescription filled, obtaining 35 tablets. Some three weeks later, on July 29, 1983, Dr. Villaflor again prescribed and K. D. again obtained 35 Percocet tablets. On the same day two other prescriptions Dr. Villaflor wrote for K. D. were filled, one for Atarax, an antihistamine sometimes prescribed in lieu of a tranquilizer, and one for Tylenol with codeine. This 35-tablet Tylenol prescription was refilled on September 7, 1983. With more and less potent pain medications, K. D. could take one or the other, as appropriate, depending upon the intensity of the pain. Since no other prescription for pain killing medication was written or filled until October 4, 1983, these prescriptions were, according to one of the Department's witnesses, "[w]ithin reason." (T. 243) On the October 4 visit, Dr. Villaflor noted "Back Pain from Electrocution" and recorded K. D.'s blood pressure as 138 over 70 or 80, before prescribing 45 Percocet tablets. That day, K. D. obtained the Percocet. He returned to Dr. Villaflor's office on October 13, 1983, complaining not only of back pain, but also of nausea and vomiting. Dr. Villaflor prescribed an additional 30 Percocet tablets. On October 15, 1983, K. D. acquired 50 tablets of the antihistamine Dr. Villaflor had been prescribing for him, "hydroxizine pam." On November 3, 1983, he obtained 60 Percocet tablets and 50 Tylenol No. 3 tablets. On November 12, 1983, the antihistamine prescription was refilled as was, on November 16, the Tylenol No. 3 prescription. Perhaps Dr. Villaflor wrote the antihistamine prescription two days before it was first filled. The off ice notes are difficult to decipher. He wrote the Percocet and Tylenol prescriptions when he saw K. D. on November 3, 1983, at which time he recorded his blood pressure (132 over 70) and noted "back injury." On December 2, 1983, Dr. Villaflor's office notes reflect a visit and prescriptions for Tylenol No. 3, Percocet and the antihistamine. With respect to prescriptions filled on and after November 3, 1983, but before December 2, 1983, DPR's witness testified that the amount of medication was "a little high, but it's still, you know, again, acceptable for a person in pain." (T. 246) On December 2, 1983, K. D. obtained 60 Percocet tablets and 50 Tylenol No. 3 tablets, the latter by virtue of a prescription that was refilled on December 14, 1983. On January 3, 1984, K. D. returned to Dr. Villaflor's office where he obtained prescriptions for Percocet and Tylenol No. 3. In March, Dr. Villaflor began prescribing a tranquilizer, Dalmane, instead of the antihistamine, but the new year progressed much as the old year had, in terms of Dr. Villaflor's prescriptions and documentation, and, apparently, of K. D.'s pain, as well, until early August. PHARMACIST CONCERNED On August 3, 1984, Dr. Villaflor prescribed for K. D., 200 "Sk- Oxycodone w/Apap" tablets, 200 Tylenol No. 4 tablets and 180 Dalmane capsules. K. D. had asked for them to take along to New England, where he travelled for an extended visit with his parents and others. This represented more than a two months' supply, and the prescriptions inspired a pharmacist, Paul Douglas, to telephone Dr. Villaflor's office before filling them. Mr. Douglas had called once before in the spring of the year, when he noticed that a total of 100 Tylenol (acetaminophen with codeine) No. 3 tablets and 60 tablets of Percocet (or the generic equivalent) had been dispensed to K. D. for use over a 24-day (April 2 to April 26, 1984) period. The pharmacist was concerned on that occasion because K. D. would have needed only 144, not 160, tablets during that period, if he had been taking no more than one every four hours. After his last telephone call to Dr. Villaflor's office, the pharmacist talked to K. D., telling him he would "not fill these medications again ... until the prescribed number of days." (T. 222). At no time, however, as far as the evidence showed, did the pharmacist actually decline to fill any prescription when presented. Back in Daytona Beach, K. D. presented himself at Dr. Villaflor's office on November 5, 1984, and received prescriptions for 45 tablets of Percocet, 55 tablets of Tylenol No. 3 and a quantity of Dalmane. All three prescriptions were filled the same day, and the prescription for Tylenol No. 3 was refilled on November 19, 1984. On December 5, 1984, K. D. appeared a second time after his return from up north, and Dr. Villaflor again prescribed all three drugs, this time specifying 50 tablets of Percocet and 50 tablets of Tylenol No. 3. K. D. caused these prescriptions to be filled the day he got them. The office motes for both these visits mention only electrical shock by way of explanation for the prescriptions. DOCTOR FALLS ILL On December 19, 1984, Dr. Villaflor had a massive cerebrovascular accident. He experienced "a dense hemorrhagic infarction ... sort of between the parietal and frontal temporal regions" (T. 64) of the brain. "Most people with intracranial bleeding, like Dr. Villaflor had, die." (T. 47) At least one of the physicians who attended Dr. Villaflor did not think he would survive the hospital stay. Paralyzed on his right side and unable to communicate, Dr. Villaflor did survive, and began speech and physical therapy. While Dr. Villaflor was indisposed on account of the stroke, Dr. Wagid F. Guirgis filled in for him. At no time did Dr. Guirgis and Dr. Villaflor discuss K. D. or his treatment. The day Dr. Guirgis began, K. D. came in complaining of severe pain in his lower back and legs. Dr. Guirgis prescribed Dalmane, 50 Percocet tablets and 50 Tylenol No. 3 tablets, the latter prescription being twice refillable. He suggested to K. D. that he see an orthopedist or a neurologist, and, on January 21, 1985, refused K. D.'s request to prescribe more Percocet. Later the same day K. D. went to Dr. M. H. Ledbetter's office. This osteopath prescribed 30 Percocet tablets to be taken twice daily, as well as Elavil and Tranxene. On February 4, 1985, Dr. Ledbetter prescribed the same medicines. On February 28, 1985, Dr. Ledbetter prescribed Elavil, Librium and 50 tablets of Percocet. On March 22, 1985, he prescribed the same things. On April 19, 1985, K. D. again visited Dr. Ledbetter. The same day he purchased Librium and 60 Percocet tablets at Walgreen's. Dr. Ledbetter prescribed Librium, Elavil and 60 tablets of Percocet, to be taken twice daily, when he saw K. D. on May 16, 1985. DR. VILLAFLOR RETURNS By now, Dr. Villaflor has very likely recovered from his stroke about as much as he ever will. He exercises regularly at the YMCA and has been attending medical education seminars in Orlando. (T. 76 ) Formerly right- handed, he still has a significant expressive speech disorder, walks with a cane, and has to do without the use of his right hand. His left side, however, was never affected. Dr. Klanke, the cardiologist and internist who treated Dr. Villaflor in the emergency room and for the three weeks he stayed in the hospital after his stroke, still sees him twice a year, principally as part of an effort to keep his blood pressure down. Although Dr. Klanke did not foresee his being able to, at the time of his discharge from the hospital, Dr. Villaflor returned to medical practice in May of 1985. K. D. appeared at Dr. Villaflor's office on May 21, 1985, five days after he had last seen Dr. Ledbetter. Dr. Villaflor prescribed 60 Percocet and 50 Tylenol No, 3 tablets for K. D., along with Dalmane and a vitamin (B12) injection. K. D. weighed 142 pounds that day and his blood pressure was also noted. The office notes report "same complaints." On June 18, 1985, Dr. Villaflor prescribed 60 Percocet tablets, the same number he prescribed on K. D.'s next visit, on July 17, 1985 , when K. D. limped "on left foot." In July, Dr. Villaflor also prescribed Dalmane and 50 Tylenol No. 3 tablets. On both visits K. D.'s weight (142 then 138) and blood pressure (122 then 120 over 80) were noted. On August 19, 1985, K. D.'s weight had fallen to 132 pounds but his blood pressure remained 120 over 80. Sixty Percocet tablets - one every four hours - were prescribed, as were 50 Tylenol No. 3 tablets. The diagnosis indicated in Dr. Villaflor's office notes was "electrocution." On September 16, 1985, Dr. Villaflor again prescribed Dalmane, Tylenol and 60 Percocet tablets. On October 17, 1985, K. D. limped to his last visit to Dr. Villaflor's office. His face bruised, K. D. complained that both feet were swollen, and reported that he had lost his balance and fallen down four stairs and over a concrete wall. For the last time, Dr. Villaflor prescribed Tylenol No. 3 and Percocet for K. D., 30 and 60 tablets respectively. Unbeknownst to Dr. Villaflor, K. D. had continued to visit Dr. Ledbetter, himself apparently unaware of Dr. Villaflor's renewed involvement with K. D. On June 7, July 5, July 26, August 27, September 16 and October 10, 1985, Dr. Ledbetter prescribed Librium, Elavil and Percocet. Dr. Ledbetter's office notes also reflect K. D.'s fall. REQUIRED PRACTICE Although each is "a moderate type of analgesic," (T. 324), both codeine and oxycodone are "narcotic derivatives ... [and] addictive in nature." Id. Dalmane "can be" (T. 221) "potentially addictive." Id. Because of his depression, K. D. "was not a good candidate" to entrust with several hundred pills at once. A physician who suspects addiction should limit prescriptions to "around ten to fifteen" (T. 326) tablets and "start checking with other pharmacies to make sure if a patient is getting drugs from any other source ... " Id. He should perform "very close and repeated physical exams" (T. 327) and be alert for "overdose side effects," id., such as dizziness, slurred speech, or staggering. The evidence here fell short of a clear and convincing showing that Dr. Villaflor was remiss in failing to suspect addiction, however. Dr. Ledbetter, who had similar, albeit similarly incomplete, information apparently did not suspect. The evidence did not prove the existence of side effects from the drugs Dr. Villaflor prescribed. Although, on his last visit to Dr. Villaflor's office, K. D. reported dizziness, the cause is unknown. On the other hand, his office records do not suggest that Dr. Villaflor took any steps to determine the cause of K. D.'s dizziness or of his swollen feet. Dr. Villaflor's treatment of K. D. fell below acceptable levels, if he failed to refer K. D. for periodic reevaluations of the underlying orthopedic or neurological problem, which his records suggest he did not do. His treatment was also inadequate for failure periodically to "get the medicine .. out of the system ... for a limited time" (T. 337) in an effort to learn what side effects, if any, the drugs he prescribed caused, either singly or in combination. This is so, even though the effort might have been frustrated, if K. D. had acquired the same medicines from other sources. Keeping complete medical records is important not only as a mnemonic aid for the treating physician, but also to make the patient's history available to other physicians who may succeed or assist the recordkeeper. A physician who has examined charts Dr. Villaflor kept before his stroke as well as charts he has kept since testified "that his charts, since the stroke, were in better order than they had been before he had his stroke." (T. 469). Since his stroke, his wife has assisted with the charts. Since Dr. Villaflor resumed office hours, he works no more than three hours a day. He has given up the hospital practice entirely. If he feels he is unable to treat a patient adequately he refers the patient to a specialist or, sometimes, to another family practitioner. On two or three occasions he has referred patients to Dr. Klanke, and in each case the referral has been appropriate. With respect to one of these patients, Dr. Klanke testified, "[H]e called up and told me the man had congestive heart failure and that's exactly what the man had." (T. 55). ONEHANDEDNESS Ordinarily, doctors use both hands in performing certain tasks often necessary in routine examinations. Use of a conventional sphygmomanometer requires one hand for the cuff and another for the stethoscope. "Percussion" involves placing one hand on the patient and tapping it with the other, listening carefully while, and, to some extent, feeling with the hand being tapped. Doctors usually use both hands for breast examinations. Performing pelvic examinations with only one hand "would be very difficult," (T. 82) as would be "adequate detail muscle strength testings," id., which, however, general practitioners do not do, as a rule. In case of a knee sprain, an examination to determine the range of motion is better performed with two hands. But a one-handed physician could examine the knee "and feel yes, the person is tender over the ligaments, or the joint is swollen. And in that situation he may turn around and say, `I would suggest that you see an orthopedic surgeon for treatment." (T. 86). Although the lack of the use of one hand would disqualify a physician from performing vascular surgery, for example, a general practitioner with good judgment and competent assistance can manage well enough in an office setting, with the use of only one hand. A one-handed physician can accomplish percussion with the help of an assistant who taps his hand. An assistant can support the patient's breast while a one-handed examiner palpates. Sphygmomanometers that can be operated with one hand are available. INTELLECTUAL REQUIREMENTS A physician must be able to learn if he and his patients are to have the benefit of advances in general medical knowledge, and the full benefits of the physician's own experience. Although would-be physicians are not required to attain a particular score on an I.Q. test, acquiring a medical education and passing licensing examinations require some intellectual ability. A physician "probably" (T.49) needs to be able to perform simple arithmetic. In some instances, appropriate dosages depend on the patient's weight and must be calculated; multiplication is required. Memory is essential in terms of the ability to retain medical knowledge. Although desirable, memory of a patient's history is less important, assuming adequate records are kept. Deductive reasoning is necessary in moving from a perception of symptoms to diagnosis and treatment. Pertinent questions must be formulated and communicated. Patients' answers must be understood. If patients cannot supply the answers, laboratory tests may be appropriate. It is the physician's job to make this judgment. PSYCHOLOGICAL EVALUATIONS Born in Manila on March 2, 1928, Dr. Villaflor began speaking English at an early age. The Wechsler Adult Intelligence Scale-Revised, I.Q. test, administered after his stroke, put his full scale I.Q. at 82. The examiner concluded that "his general fund of information is severely impaired," partly on the basis of these questions and answers: When asked where the sun rose, Dr. Villaflor, after a long pause, stated, "in the West." When asked how many weeks in a year, Dr. Villaflor stated, "56." When asked how many days in a year, Dr. Villaflor stated, "369." When asked how many senators in the United States Senate, he responded, "200." Petitioner's Exhibit No. 8. There was some indication that Dr. Villaflor had suffered a loss of medical knowledge, too. Asked to name the lobes of the brain, he named the frontal, parietal and occipital lobes, but omitted the temporal lobe. When a psychiatrist asked him to identify the symbols for microgram and milligram, "he was not forthcoming, he did not do this for me at that time." (T. 452). On the other hand, Dr. Villaflor answered appropriately in response to informal questioning by Dr. Derbenwick, Dr. Villaflor's treating neurologist, "with regard to common dosages of medications that would be used in, for example, treating infections." (T. 68) Another neurologist, Jacob Green, reported: Specific studies show that he could tell me it was the 26th of February, 1987, and he said "Gasville" several times instead of Jacksonville for location. He took 7 from 100, and got 93. Asked to take 5 from that and got 87 initially, then corrected it to 88. When asked which dose of Codeine would be appropriate, 1/2 gr., 1 gr. or 3 gr., he told me that the 1/2 gr. was the only appropriate dose. I asked him about Dilantin and he said he would give three a day at 100 mg. I asked about the dose of Digoxin and he says .1 and later corrected it to .25 (both these doses are correct). I gave him several hypothetical instances, such as a 50 year old male coming in with nausea and vomiting for a day and having some arm pain and some chest pain. He immediately picked up that this could be a heart attack and stated the patient should be hospitalized for further observation, which is certainly correct. DPR retained Dr. Green to evaluate Dr. Villaflor's mental status in the wake of the stroke. When Dr. Graham, the clinical psychologist, saw Dr. Villaflor, he had difficulty in naming objects; he slurred and mispronounced words. His ability to communicate verbally was and presumably is significantly impaired. (He did not testify at hearing.) Dr. Villaflor could not pronounce rhinorocerous [sic] or Massachusetts [sic] - Episcopal correctly. Houwever [sic], he could pronounce difficult medically related words ... Petitioner's Exhibit No. 8, p. 15. He could not recite the days of the week in chronological order, although he could recite them in reverse chronological order. When the clinical psychologist showed him a quarter and asked him what it was, Dr. Villaflor said, "nickel, coin, 25. He never could say "'quarter'" Petitioner's Exhibit No. 8, p. 14. Dr. Villaflor told Dr. Graham that his mathematical ability was the same after his stroke as before, and this may be so. The psychologist reported, however: He was unable to subtract 85 from 27 [sic] giving the answer 48. He was unable to multiple [sic] 3 times 17 correctly giving the answer of 44. Petitioner's Exhibit No. 8, p. 10. Dr. Miller testified that, when he asked Dr. Villaflor to multiply two times 48, Dr. Villaflor answered 56. On the other hand, Dr. Derbenwick, the neurologist, reported that Dr. Villaflor "was a little bit slow on complex calculations, [but] performed simple calculations without too much trouble." (T. 68) Altogether the evidence showed that Dr. Villaflor is not good at arithmetic, but did clearly establish to what extent his stroke was responsible. It was clear that the stroke, or some other impairment of the central nervous system, has affected Dr. Villaflor's intellectual functioning in many particulars, however. "All areas of the central nervous system are dysfunctioning." (T. 134) He was unable to repeat five digits in the order they were spoken. He was unable to repeat three digits backwards. His "short term auditory memory" is such "that his ability to remember factual information reported to him is severely impaired." Petitioner's Exhibit No. 8, p. 9. His visual memory is also impaired. (T. 145). Any score above 50 on th[e Category Booklet T]est is indicative [of] central nervous system impairment." Id p. 10. Dr. Villaflor scored 114 on this test, designed to measure "current learning skills, abstract concept formation, and mental efficiency." Id. Except for three scales - "Reading Polysyllabic Words," "Concept Recognition," and "Reading Simple Material" - Dr. Villaflor's scores on the Luria-Nebraska tests indicated central nervous system impairment. "Any interference between memory tests results in his inability to recall material on the first test." Id p. 16. "He is unable to recall more than two or three discrete units of information on a consistent basis." Id., p. 19. Dr. Villaflor visited Ernest Carl Miller, a psychiatrist, twice at DPR's behest. While he viewed Dr. Villaflor as "obviously an intelligent man" (T. 451), he reported problems with arithmetic; and noted Dr. Villaflor's "tendency to be somewhat concrete; that is verbally." Id. Dr. Miller concluded that Dr. Villaflor "would be better not engaged in the active practice of medicine." (T. 455). As Dr. Miller sees it [A]part from any discrepancy in knowledge, medical knowledge, which he may have as a product of his massive stroke, there may be stresses imposed on him by practice, which is adversely affecting his blood pressure and his physiology. (T. 455). Dr. Miller also reported that Dr. Villaflor did not, in the case of hypothetical cases they discussed, suggest a liver enzyme study to confirm a diagnosis of cirrhosis of the liver; and, in another instance, said that chest pain might indicate mitral valve prolapse. SURVIVING PATIENTS CONTENT Dr. Villaflor's stroke does not seem to have diminished his popularity with his patients. Some of them, like Vivian Patterson, do not believe the stroke has affected his mental ability. Georgetta T. Rogers, a nurse who suffers from high blood pressure and gout is impressed with Dr. Villaflor's thoroughness. She finds him easier to understand since the stroke than he was before. Frank Runfola, who views Dr. Villaflor as "a throwback to the old time doctor" (T. 428), testified that the physical examinations Dr. Villaflor has performed on him have been no less thorough since the stroke than they were before. Marilyn McCann, a patient for some ten years, has noticed no difference in the way Dr. Villaflor practices medicine since the stroke, except as far as his using his right arm. She testified that he still looks up whatever medications he's going to give me, he looks up whatever he has to do, and checks it out thoroughly to make sure what examination I have to have in the office. If I have any complaints, he does check them very thoroughly, he makes sure. (T. 433) John Peterson, Dr. Villaflor's patient for 15 years, has not "seen too much difference in [Dr. Villaflor's] alertness" (T. 445) since the stroke. On at least one occasion since Dr. Villaflor's stroke, David Smith took his father-in-law to the doctor's office. While Dr. Villaflor was checking the patient's blood pressure, he looked up at Mr. Peterson and said "Is your throat sore?"; and I said, "No sir." He said, "Let me see"; so I opened up my mouth and he looked in there and he said, "Your throat[']s, all red," he said, "It's infected"; he said, "and that's what's causing your eye infection." I had an eye infection ... He prescribed some medicine for me, and two days later the eye infection was cleared up and my throat wasn't red. (T. 485-6) On another occasion, after the stroke, Mr. Smith complained to Dr. Villaflor of dizziness. Dr. Villaflor diagnosed an ear infection and prescribed medicine. The dizziness abated. Like her husband, Sharon Smith believes Dr. Villaflor seems unchanged intellectually by the stroke. Liliosa Bohenzky, who suffers from hypertension and rheumatoid arthritis, believes the examinations Dr. Villaflor performs twice or four times a year on her back, neck, arms and shoulders, have been as thorough since the doctor's stroke as they were before. Rene Stenius, who has been a patient of Dr. Villaflor's for 12 years, "was very pleased when he did come back to work, even in a somewhat diminished capacity." One day in January of last year, Ms. Stenius stopped by Dr. Villaflor's office, although she had no appointment and had not indicated beforehand that she was coming. She had not seen Dr. Villaflor for three or four months. Nobody was in the waiting room until she arrived. When she was taken into an examining room, her chart accompanied her. Before he examined the chart, Dr. Villaflor inquired, "`Are you still taking a half a pill every six days?'" (T. 517) This was a reference to medicine for her hypothyroid condition that he had in fact prescribed some months back for her to take at the rate of a half pill every six days. It was on this same visit that Dr. Villaflor prescribed Tranxene for Ms. Stenius. Since the stroke he dictates prescriptions to his wife, then signs with his left hand. "Most physicians have the nurses fill out the prescriptions, if you really want to know the truth." (T. 51) When she wrote 375, he said, "`No, no, point'" and he was hitting the ... decimal point, and he was saying, `point, decimal,' `telling her where the decimal should be." (T. 519) Once the decimal point had been supplied, he signed Ms. Stenius' prescription for 3.75 milligram doses of Tranxene. Mrs. Villaflor, trained as a nurse but not licensed in Florida, began assisting her husband when he resumed practicing after his stroke. He asks the patient what his complaint is and she writes down the complaint. In measuring patients' blood pressure, she attends to "the cuff and he would read it," (T. 507) and tell her the reading, which she would write down. After he checked a patient's lungs, he might say, "`[C]lear, very good,'" id., which Mrs. Villaflor would write down. Mrs. Villaflor assists in examinations. For example, Ms. Stenius reported that she "helped with the insertion of the tool for the pap test, but Dr. Villaflor actually took the culture for the examination." (T. 515). When Dr. Villaflor examined patients' breasts, the patients themselves generally assisted. Under his direction, Mrs. Villaflor draws medicines from vials, swabs skin with alcohol and sometimes holds the skin while Dr. Villaflor administers intramuscular, intradermal and subcutaneous injections. A SAMPLE OF TWO DPR's own experts, Dr. Miller, the psychiatrist, and Dr. Green, a neurologist, agreed with a number of Dr. Villaflor's witnesses that the most appropriate means for determining whether Dr. Villaflor could practice reasonably skillful medicine reasonably safely would be to monitor his practice -- Dr. Green suggested monitoring for a week -- and to have physicians review the ... actual office records to check the appropriateness and quality of care. Dr. Green's letter to Mr. Coats dated February 14, 1986. Despite their consultant's advice, over a year before the final hearing took place, to do so, DPR never monitored Dr. Villaflor's practice nor caused any review of his charts to be undertaken. A family practitioner and an internist, both of whom practice in Daytona Beach, did monitor Dr. Villaflor briefly one afternoon, at Dr. Villaflor's lawyer's request. They observed him interview and examine two patients. He "would ask the patients questions which appeared to be adequate, as far as their complaints were concerned." (T. 470) If a patient could not understand him, his wife "interpreted." Dr. Villaflor examined each patient's "head, the heart, the lungs, their abdomen, their extremities." (T. 473). In the opinion of one of the doctors who monitored Dr. Villaflor's examination and treatment of these two patients, Dr. Villaflor's medical judgment "was quite adequate for the complaints they had and for the findings of his physical examination." (T. 470) At least one of the doctors examined an unspecified number of Dr. Villaflor's charts that afternoon and found them to be "quite adequate." The other monitor did not testify. SKILL AND SAFETY Dr. Villaflor has indicated and the evidence showed that he referred patients he felt he could not treat adequately himself. But there is a question how well he succeeds in identifying such patients. To some extent people can be counted on to recognize a medical emergency on their own and to seek out an emergency room, of which there are a number in the Daytona Beach area. A cardiologist testified he sees only about two seriously ill patients a year in his office. (T. 59) Nor are all medical problems difficult to diagnose. "Anybody in medicine can be right ninety-five percent of the time." (T. 55) But symptoms as familiar as fever and headache can be manifestations of the most serious disorders. A physician in private practice cannot prevent seriously ill people from presenting themselves in his office. Jacob Green, the neurologist DPR retained, testified that Dr. Villaflor is unable to practice medicine with reasonable skill and safety. Green deposition, p. 11. He was the only witness who so testified. When DPR sought to adduce the clinical psychologist's opinion as to Dr. Villaflor's ability to practice medicine safely and skillfully, objection was sustained on grounds that, Dr. Graham not being a medical practitioner, his opinion was not competent. Dr. Green posed a hypothetical case to Dr. Villaflor, when he saw him on February 26, 1987: [A] 60 year old male ... with a history of a fever of 101 degrees, achiness all over and a headache for two days. Dr. Villaflor said such a patient's blood pressure should be checked, and that he would prescribe "Tylenol for migraine." But fever does not necessarily accompany migraine headaches, and might, in conjunction with a persistent headache, be a symptom of encephalitis or meningitis. Green Deposition, p. 8. The record does not show how, frequently encephalitis or meningitis occurs either in the general population or among feverish 60-year old men with two-day- old headaches. Dr. Klanke, the cardiologist to whom Dr. Villaflor has referred two or three patients since resuming his practice, testified he had not noticed "any change [as a result of the stroke] in [Dr. Villaflor's] medical perception, or judgement, [sic] in dealing with the patients" he referred to Dr. Klanke. Dr. Derbenwick, like Dr. Miller, offered no opinion on how skillfully or safely (to others) Dr. Villaflor is able to practice medicine. Dr. Carratt, the only witness who had examined Dr. Villaflor's charts and watched him practice, albeit briefly, since he had suffered his stroke, testified that Dr. Villaflor could practice "reasonable medicine" as "long as he realizes his limitations." (T. 471.)
The Issue The issue in this case is whether the allegations set forth in the Administrative Complaint filed by the Department of Health (Petitioner) against Ekemi A. Tinson, C.N.A. (Respondent), are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged by statute with regulating the practice of nursing in Florida. At all times material to this case, the Respondent was licensed as a certified nursing assistant in the State of Florida, holding license number 262882. At all times material to this case, the Respondent was employed as a C.N.A. to provide personal care and assistance to M.U., an elderly female suffering from dementia and Parkinson’s disease. The Respondent initially provided her services to M.U. through a company identified as “Hopewell Home Healthcare.” Towards the end of 2013, the Respondent began to provide her services to M.U. by private agreement with J.U., M.U.’s husband. During the time of the Respondent’s employment by J.U., J.U. exhibited signs of short-term memory loss. The Respondent was aware of the continuing decline in J.U.’s memory, and on occasion, accompanied J.U. to physician appointments when his memory was included in the topics discussed. By the time of the hearing, J.U. had suffered a stroke resulting in memory loss and an inability to communicate (“dysphasia”). M.U. required in excess of 20 hours of care per day. When the Respondent began to work for the couple privately, the Respondent recruited other caretakers to assist in providing the required care, but the Respondent remained the primary caregiver, working for approximately 60 hours per week. In addition to the services the Respondent initially provided to M.U., as time passed, she also helped J.U. in other ways, performing cooking and light household tasks, answering phone calls, scheduling and keeping appointments, and assisting in shopping errands and paying bills. The Respondent was paid by the hour for the services she provided to M.U. and J.U. In December 2013, the Respondent purchased a car through a loan that was co-signed by J.U. The loan amount was in excess of $24,000. As a co-signer, J.U. was responsible for payment of the loan in the event that the Respondent failed to make the required installment payments. The Petitioner has implied that the Respondent influenced and manipulated J.U.’s participation in the transaction because J.U. exhibited a decline in short-term memory abilities. The evidence is insufficient to establish that J.U. was not competent and capable of making financial decisions at the time of the loan execution. While employed by J.U., the Respondent was authorized to use a credit card issued to J.U. to make various purchases of food, medications and household items for the couple. The Respondent also used J.U.’s credit card, without authorization, to make various personal purchases and to pay her own car insurance and cable TV bills. Beginning in February 2014, S.U., the son of M.U and J.U., assumed powers of attorney for his parents. In February 2015, S.U. became aware that the monthly amount of charges routinely made to J.U.’s credit card account had increased. He reviewed the credit card account statements, and observed charges unrelated to the services being provided by the Respondent to J.U. and M.U. After speaking with his father about the statements, S.U. met with the Respondent on February 28, 2015, to discuss the charges. During the discussion, the Respondent admitted she had used J.U.’s credit card to pay her personal expenses, but claimed that J.U. had given her permission to use the cards. She thereafter provided a check in the amount of $1,060 to repay a portion of the expenses she had charged to J.U.’s card. There is no evidence that the Respondent was authorized by J.U., or by anyone else, to use J.U.’s credit card to make personal purchases or to pay her own household bills. The Respondent’s employment by J.U. and M.U. was terminated on February 28, 2015. The Respondent charged approximately $19,000 of personal expenses to J.U.’s credit card. The Respondent eventually defaulted on the car loan. The lender has been attempting to collect the net amount due on the loan of $10,493.83 from J.U.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order finding the Respondent guilty of the statutory violations set forth herein and revoking the Respondent’s license to practice as a certified nursing assistant. DONE AND ENTERED this 4th day of May, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 4th day of May, 2016. COPIES FURNISHED: Shoshana Jean Silver, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Ekemi A. Tinson, C.N.A. 6620 Livingston Avenue North St. Petersburg, Florida 33702 Amy C. Thorn, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Louise Wilhite-St Laurent, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 (eServed) Ms. Jody Bryant Newman, EdD, EdS, Board Chair Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252
The Issue The issue in this case is whether Jordan S. Garland suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Amber Evans and Fleming Garland are the natural parents of Jordan Garland. Jordan was born on September 22, 2009, at Baptist Medical Center, which is a licensed hospital located in Jacksonville, Florida. Jordan weighed in excess of 2,500 grams at birth. Amber Evans was an obstetrical patient of Dr. Martin Garcia, who at all times material to this proceeding, was a participating physician in the NICA program.1/ On September 21, 2009, Amber Evans contacted Dr. Garcia’s office because she was going into labor. She was told to come into the office where Dr. Garcia checked her and instructed her to go to the hospital to be admitted. She was admitted to Baptist Medical Center at approximately 3:30 p.m., and was sent to labor and delivery. Ms. Evans recalls that between approximately 7:00 and 8:00 p.m., the heart rate monitor alarm periodically sounded, until the nurses repositioned her. Ms. Evans estimates that the monitor alarm went off approximately every 45 minutes, at which time the nurses would reposition her and the alarm would stop. Based upon conversations which took place in the labor and delivery room, Ms. Evans believed that the alarm went off when the baby’s heart rate went down. Jordan was born by vaginal delivery at 2:24 a.m. According to Ms. Evans, Dr. Garcia arrived in the delivery room when Jordan’s head “was basically already out.” When Jordan was delivered, she recalls that he was blue in color, was not breathing, and that Dr. Garcia instructed the nurses to perform resuscitation on Jordan. After he was resuscitated, she heard him cry and was able to hold him before he was taken to the nursery. Fleming Garland, Jordan’s father, was present in the delivery room and also recalls the heart monitors going off and Ms. Evans being repositioned. He recalled Dr. Garcia turning Jordan from a face-down position to a face-up position as he was delivering Jordan. Mr. Garland cut the umbilical cord, and Jordan was taken to the warming table where he was resuscitated. Mr. Garland recalls that Jordan was covered in birth film, was a little blue, and that his eyes were closed. He saw three or four people huddled around the warming table while Jordan was being resuscitated. After hearing Jordan cry, he recalled that the delivery room staff brought Jordan to them. Ms. Evans held Jordan first, followed by Mr. Garland. At that time, Mr. Garland described Jordan as being really pink, a little yellowish, with his eyes closed. Mr. Garland then accompanied the nurses who took Jordan to the nursery, where he assisted in giving Jordan his first bath. Mr. Garland returned to the delivery room and after a period of time, the nurses brought Jordan back into the delivery room to his parents, where Ms. Evans attempted to nurse Jordan. Jordan was unable to latch, so he was fed formula. Jordan stayed with his parents in the labor and delivery room for the rest of that night. Mr. Garland recalls that Jordan was periodically taken back to the nursery where he was monitored for jaundice. Otherwise, Jordan stayed in the room with his mother and/or his father. Attempts at breastfeeding remained unsuccessful. Carrie Anderson is a neonatal physician assistant. She was employed at Baptist Medical Center at the time Jordan was born, and was known at that time as Carrie Smith. She was called to the labor and delivery unit where Jordan was born. She arrived in the labor and delivery room seven minutes after Jordan was born. When she arrived, she was provided information about what had happened up to that point. According to her report, the baby had been in distress with no respirations, with a heart rate less than 100. Bag mask valve had been used “times 90 seconds intermittently” meaning that bag and mask ventilation was used intermittently for a total of 90 seconds. The report reflects that Jordan became pink and stayed pink with spontaneous respirations and a heart rate greater than 100. At the time Ms. Smith arrived, resuscitative efforts were no longer ongoing. Jordan had “mild acrocyanosis moving times four,” meaning that he had a bluish color of the palms and soles of his feet and that the extremities were moving. Ms. Smith explained that was indicative of continuation of transition from fetal blood flow to infant blood flow. Jordan’s one-minute and five-minute Apgar scores, which were 3 and 7, had been determined before Ms. Smith arrived. Ms. Smith determined the 10-minute Apgar score to be 10. She cleared Jordan to be sent to the nursery unit. When asked about her involvement when she arrived in the room, Ms. Smith reviewed her progress notes and testified as follows: According to my note I walked in -- when it says RN reports, then it’s indicative of me saying what’s going on. And the RN tells me that the baby came out with no respirations. She bagged the baby for 90 seconds intermittently. And then the baby was pink and stayed pink, spontaneous respirations, heart rate above 100. I approached the baby, and the baby is in the radiant warmer, and, according to my note, pink and not crying, but you can -- I could clearly see the baby was breathing on his own and there was some slight retractions which is your -- just your subcostal retractions of having a little bit difficulty breathing. And then no nasal flaring, which is also a sign of no respiratory distress. The nasal flaring indicates respiratory distress. * * * Q. The baby was still having difficulty breathing still when you arrived? A. According to my note he was having slight retractions. And then according to my physical exam, his bilateral breath sounds were equal and had mild rales throughout, but -- that were clearing with crying, which is showing improvement in the baby. Q. Okay. By ten minutes of life would those have resolved? A. According to my Apgar of 10 out of 10, yes. Jordan’s blood cord pH was 7.21. Jordan was discharged from the hospital on September 24, 2009, on his third day of life. Ms. Evans first began to have concerns about Jordan’s development when he was three-to-six months old. Jordan was “wobbly” when trying to sit up and needed support under his head and neck as he had trouble holding his head up. Jordan’s parents expressed their concerns to Dr. Silberman, who was Jordan’s pediatrician at that time. Dr. Silberman referred them to Early Steps which came to their home once or twice a week and provided physical therapy and occupational therapy to Jordan. Ms. Evans noticed improvements in Jordan from the physical therapy including his ability to balance his neck correctly, his ability to start to crawl and an improvement in eating. The physical therapist provided physical therapy to Jordan until he was three years old. When Jordan was about five months old, Dr. Silberman referred Jordan’s parents to Dr. Sheth, a pediatric neurologist at Nemours. Dr. Sheth performed a neurological exam on Jordan on March 1, 2010. It is not entirely clear from the record whether Dr. Silberman or Dr. Sheth ordered an MRI, but one took place. Following the neurological exam and reviewing the MRI report, Dr. Sheth wrote a letter to Dr. Silberman which reads in pertinent part: IMPRESSION: Jordan is a 5-month-old male presenting with a history of head [lag] as well as an MRI scan that is suggestive of a possible structural abnormality in the form of nodular heterotopia. On exam, patient does appear to have a mild delay in terms of his head control with a head lag. Jordan has reached other developmental milestones including cooing, bringing his hands together and moving his arms and legs equally and symmetrically. In other words there are no other features on exam that would point to gross motor delay. The MRI of the brain performed in [sic] 02/25/2010 shows benign extracerebral cerebral fluid collection that does correspond with his head circumference at the 95th percentile. In addition there was a suspected nodule heterotopia reported on the MRI scan; however, this will need to be reviewed with Radiology to further confirm these findings. The benign extracerebral fluid collection is anticipated to resolve over time. RECOMMENDATIONS: We will review the MRI of the brain at the next Neuroradiology conference to further shed light on the possible structural abnormality in the form of nodular bilateral frontal horn nodular heterotopia. The parents were recommended to call the office 1 week after the conference for the results. If no abnormality is confirmed, the patient will not need to followup in Neurology Clinic; however, if the findings are confirmed then we will contact the patient. The patient’s parents were recommended to call the office with any new additional developmental or other concerns for that matter. Dr. Sheth conducted a reevaluation of Jordan about six months following the previous visit. He wrote another letter to Dr. Silberman which reads in pertinent part: ASSESSMENT: Jordan Garland has developmental delay associated with thinning of the corpus callosum, although the corpus callosum is intact, as well as 2 nodular heterotopias that were seen, 1 in each ventricle in the frontal horns. No other heterotopias were seen anywhere else. He has no ash leaf spots to suggest tuberous sclerosis; however, this is clearly in consideration. I discussed the findings of this and told the mother that these did not need surgery by themselves. They sometimes are associated with seizures which she will watch for. PLAN: Genetics consultation. I have not scheduled a further followup appointment for her; however, should seizures develop, mother knows to return to see us. Dr. Sheth again examined Jordan in 2014. In a letter dated May 27, 2014, to Dr. Robert Colyer, Jordan’s current pediatrician, Dr. Sheth stated in pertinent part as follows: I saw your 4-year-old patient, Jordan Garland, in the Pediatric Neurology Clinic in consultation for evaluation of speech issues that he is not talking. HISTORY OF PRESENT ILLNESS: Jordan is a 4-year-old boy who I first saw when he was an infant for evaluation delays. Since that time, the most prominent problem he has is speech related issues, particularly related to and associated with difficulty swallowing. He drools a lot as well. He has poor coordination in his mouth and tongue. Reviewing his MRI scans I see modular heterotopias plus hypoplastic corpus callosum and wider opened sylvian fissures than normal. Clearly, one wonders if while the sylvian fissures are not as wide open as you would expect with open opercular syndrome, if there are features of this. His findings are consistent with delays that are related to cerebral malformation and the delays manifest both in expressive language and in swallowing. Because of this, I recommend the following specific plan: Genetic consultation. Mom had blood drawn when he was 1-year-old, but the sample was apparently lost and she was very frustrated and did not see Genetics at that time. Clearly this is important now. He is the only child for this family. They are considering a 2nd child and it would heavily depend on the ratios of likelihood to have another child similarly affected. I have recommended speech and language evaluation. This is to identify issues that could be consistent with the open opercular syndrome as well as suggest management strategies for this. He does not have any nutritional problems as a result of these problems. In his deposition taken on May 23, 2016, Dr. Sheth was asked about his May 27, 2014, letter to Dr. Colyer. Dr. Sheth testified in relevant part as follows: Q. All right. Now again, referring to this letter to Dr. Colyer in 2014, you indicated in here that, “His findings are consistent with delays that are related to cerebral malformation and that the delays manifest both in expressive language and in swallowing.” Did I read that correctly? A. Yes. Q. Okay. And can you please explain what that means: A. Well, the -- so the findings of diffuse low white matter volume and the heterotopias, to an extent, would all be indicating, you know, that they manifest in many ways, but expressive language and swallowing were one of the ways in which I thought it might be manifesting in this situation. * * * Q. And so what you are saying there is that the pattern of brain malformation and, in particular, correct me if I’m wrong, the nodular heterotopias are consistent with the pattern or impairment that you see in this child? A. That is correct. Jordan is now seven years old. According to his mother, he still suffers from developmental delay. He only says a few words. He has shown improvement in physical abilities in that he is able to walk and run. He can jump in that he can now successfully get both feet off of the ground. He wore orthotics on his feet until a few months ago. He is still a little unbalanced although his walking and running have noticeably improved over the past year. Jordan enjoys playing outside. He loves to throw a ball and enjoys playing basketball using a child’s basketball set. He loves playing with remote-control cars. He still has training wheels on his bicycle and still uses his feet to push the bike along. Jordan enjoys using an iPad, playing with Legos, and taking selfies. Jordan is in kindergarten in a special education program. He is improving with writing skills and starting to pick up math. He can identify letters, colors, and shapes. He is able to follow instructions. Jordan receives physical, occupational, and speech therapy at school. He also sees a speech pathologist once a week at Nemours. At the time of her deposition in March 2016, Ms. Evans was waiting for a referral for Jordan to receive some additional physical therapy at Nemours. Jordan still has significant problems with his speech, although he has shown improvement with vowel sounds. According to his mother, Jordan has never had a seizure. NICA retained Dr. Donald Willis, an obstetrician specializing in maternal fetal medicine, who reviewed the medical records related to Jordan’s birth and subsequent development to determine whether Jordan sustained an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery, or resuscitation in the immediate post-delivery period. In two separate reports dated November 7, 2014, and February 2, 2016, Dr. Willis stated in pertinent part: (November 7, 2014 Report) Delivery was by vaginal birth. There is no record of forceps or vacuum extractor use. Amniotic fluid was clear. Birth weight was 3,414 grams. The newborn was depressed initially at birth. Apgar scores were 3/7/10. Cord blood gas had a normal pH of 7.21 with a base excess of only -3. Bag and mask ventilation was required at birth and continued for [90 seconds].[2] The baby was noted to be responsive and clinically stable after the initial bag mask resuscitation. Evaluation in the nursery indicated the initial respiratory distress at birth had resolved. The baby had problems with hypoglycemia and failed the newborn hearing test. The baby was approved for discharge home on 09/24/2009, which would be DOL 3. Subsequent problems after hospital discharge include recurrent otitis media, abnormal peripheral auditory function and developmental delay. MRI of the brain at 9 months of age showed marked thinning of the corpus callosum, diffuse white matter volume loss with enlarged lateral ventricles and bilateral nodular heterotopia in the frontal horns of the brain. Genetic evaluation showed normal chromosomes and normal microarray studies. Evaluation at 16 months by Genetics stated the clinical and imaging findings “imply early fetal developmental insult.” In summary: Although there was initial depression at birth, the cord blood pH was normal. The respiratory depression at birth resolved with resuscitation efforts. The newborn hospital course was not complicated by multisystem failures or seizures, which are commonly seen with birth hypoxia. The baby was discharged home on DOL 3, which again would not be expected with a significant hypoxic brain injury at birth. MRI finding of nodular heterotopia is consistent with early fetal brain development abnormalities and not hypoxic injury. Nodular Heterotopia is a condition in which nerve cells do not migrate properly during the early development of the fetal brain. This abnormality generally occurs from the time of early brain development to about 24- weeks gestational age. This is a congenital brain developmental abnormality and not a hypoxic birth related 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. (February 2, 2016, Report) I have reviewed the additional medical record concerning the above case, which include Labor and Delivery hospital records for the mother, fetal heart rate monitor tracing during labor, prenatal records, school records, out-patient office visits and billing records. The fetal heart rate (FHR) monitor tracing during labor was reviewed. Baseline FHR was 140 bpm with normal variability on admission, which would be consistent with no fetal distress at time of hospital admission. Contractions were every 2 to 4 minutes, consistent with labor. Occasional variable FHR decelerations occurred during labor, but FHR variability remained normal. This would suggest some umbilical cord compression, but no fetal distress. The remainder of the additional medical records confirmed findings already discussed in the letter dated 11/07/2014. In summary: FHR monitor tracings are consistent with no apparent fetal distress during labor. The additional records would agree with the previous statement that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical injury to the baby’s brain during labor, delivery or the immediate post delivery period. Dr. Willis was deposed on May 26, 2016, in which he reaffirmed the opinions expressed in the above referenced reports. He noted that while Jordan required some bag ventilation, he responded to resuscitation and recovered well, as evidenced by the five-minute Apgar score of seven, which is considered normal. He explained that the one-minute Apgar score is not a good predictor of the ultimate outcome. The five and 10-minute scores are generally more predictive of the ultimate outcome of the child with respect to any oxygen deprivation experienced during labor and delivery. He further explained that 10 is the highest Apgar score, so the fact that Jordan had an Apgar score of 10 is indicative that the baby was very stable at that time. Dr. Willis’ opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post-delivery period is credited. NICA also retained Dr. Raymond Fernandez, a pediatric neurologist, to evaluate Jordan. Dr. Fernandez reviewed Jordan’s medical records and performed an independent medical examination on Jordan on June 17, 2015. In a medical report dated June 23, 2015, Dr. Fernandez stated the following: IMPRESSION: Delay in all areas of development, probably due to a developmental brain abnormality characterized as nodular heterotopias seen on brain MRI. Jordan has substantial mental impairment that will probably be permanent. While in general he is not well-coordinated, his motor impairment is not considered to be substantial, but rather of less severity. There is no evidence in the medical record to suggest oxygen deprivation or mechanical trauma of brain or spinal cord during labor, delivery, or the immediate post-delivery period of resuscitation, is the cause of Jordan’s neurodevelopmental and brain MRI abnormalities. Dr. Fernandez reaffirmed his opinions contained in his June 2015 written report when he was deposed on May 11, 2016. That is, that Jordan has substantial mental impairment that will most likely be permanent. However, while Jordan is not well- coordinated, he is of the opinion that his motor impairment is not considered to be substantial, but rather is less severe. He also believes that Jordan’s motor development can improve. Dr. Fernandez also is of the opinion that the cause of Jordan’s impairments relates to his early brain malformation characterized as nodular heterotopias, not to any oxygen deprivation or mechanical trauma during labor, delivery or the immediate post-delivery period of resuscitation. This is consistent with the testimony of Jordan’s treating pediatric neurologist, Dr. Sheth, and supports the opinion of Dr. Willis. Dr. Fernandez’s opinion that Jordan is permanently and substantially mentally impaired is credited. Dr. Fernandez’s opinion that Jordan’s physical impairment is less than substantial is credited. The greater weight of the evidence establishes through the expert opinion of Dr. Willis that that there was no apparent obstetrical event that resulted in loss of oxygen to Jordan’s brain during labor, delivery and continuing into the post- delivery period that resulted in brain injury. The greater weight of the evidence establishes through the expert opinion of Dr. Fernandez that while Jordan has motor impairments, his motor impairment is less severe than substantial and that his motor development can improve. While Petitioners have presented factual evidence regarding Jordan’s birth and his mental and physical impairments, they have not established through expert opinion that there was an obstetrical event that resulted in oxygen deprivation or mechanical trauma to the baby’s brain during labor, delivery, or the immediate post-delivery period, or that Jordan has a permanent and substantial motor impairment as contemplated by section 766.302. Thus, Jordan is not entitled to benefits under the Plan.
Findings Of Fact Eleanor Breen Zayas was born on May 8, 2015, at University of South Florida Health, South Tampa Center, in Tampa, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Eleanor. In an affidavit dated October 28, 2016, Dr. Willis described his findings in pertinent part as follows: In summary, delivery was complicated by a prolonged FHR deceleration about 8 hours prior to delivery, maternal chrioamnionitis and fetal tachycardia. Cesarean section was done with thick Meconium present. The baby was not depressed at birth. Cord blood gas pH was normal (pH 7.36). However, oxygen desaturation occurred at 5 hours after birth with seizure activity following shortly after. MRI within 24-hours of birth showed acute cerebral infarction. The baby suffered a cerebral infarction. The exact timing of the infarction is difficult to determine. However, it is possible the infarction occurred during the severe and prolonged FHR deceleration 8 hours prior to birth. It appears the baby recovered from this hypoxic event during the remaining 8 hours of labor. Therefore, the cord blood gas was not abnormal at birth and the baby was not depressed at birth. Infection (Choriomnionitis) could be a contributing factor. The other opinion would be the infarct occurred after delivery, primarily related to infection. There was an apparent obstetrical event that may have resulted in loss of oxygen to the baby’s brain during labor. Oxygen deprivation resulted in brain injury. I am unable to comment about the severity of the injury. Dr. Willis’ opinion that there was an apparent obstetrical event that may have resulted in loss of oxygen to the baby’s brain during labor is credited. Respondent retained Laufey Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to evaluate Eleanor. Dr. Sigurdardottir reviewed Eleanor’s medical records, and performed an independent medical examination on her on August 10, 2016. In a neurology evaluation based upon this examination and a medical records review, Dr. Sigurdardottir made the following findings and summarized her evaluation as follows: Summary: Here we have a 14-month-old girl with a sinus vein thrombosis at birth, focal seizures and possible subsequent infarction. This is likely a birth related injury. Her recovery has been remarkable and neurologic exam today is suggestive of mild expressive language delay, but no focal motor abnormalities are found. Results as to Question 1: The patient is found to have no substantial physical or mental impairment at this time. Results as to Question 2: Eleanor’s injury is a neurologic injury to the brain occurred [sic] due to oxygen deprivation and is felt to be birth related. Results as to Question 3: Eleanor’s prognosis for full recovery is extremely good and mild expressive delays are not likely to have any lasting ill effect. In light of the above-mentioned details, although clear evidence is that Eleanor’s infarct and thrombosis was due to a difficult prolonged birth with chrioamnionitis and recurrent decelerations, she has made such good recovery that at this time I do not recommend Eleanor being included into the Neurologic Injury Compensation Association (NICA) Program and would be happy to answer additional questions. In order for a birth-related injury to be compensable under the NICA Plan, the injury must meet the definition of a birth-related neurological injury and the injury must have caused both permanent and substantial mental and physical impairment. Dr. Sigurdardottir’s opinion that Eleanor does not have a substantial physical or mental impairment is credited. 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. Sigurdardottir that Eleanor does not have a substantial physical or mental impairment.
