The Issue At issue in this proceeding is whether Karina Zepeda suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Background Karina Zepeda (Karina) is the natural daughter of Luis Zepeda and Dora Zepeda. She was born a live infant on March 26, 1991, at Jackson Memorial Hospital, a hospital located in Miami, Dade County, Florida, and her birth weight was in excess of 2500 grams. The physicians providing obstetrical services during the birth of Karina were Pablo Delgado, M.D., and Gene Burkett, M.D., who were, at all times material hereto, participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. The birth of Karina At or about 8:25 p.m., March 25, 1991, Dora Zepeda was admitted to Jackson Memorial Hospital (Jackson Memorial) in active labor. Thereafter, at 11:50 p.m., she suffered an artificial rupture of the membranes and was found to have thick meconium. Subsequently, decelerations were noted and the decision was made to perform a cesarean section as a consequence of fetal distress. The cesarean section was performed, and Karina was delivered at 2:24 p.m., March 26, 1991. The operative report reflects that the following occurred during the course of the procedure: . . . The uterine cavity was then entered and found the amniotic fluid to be full of thick meconium that was aspirated. The incision was extended bilaterally on the myometruim and we proceeded to deliver the fetal head after flexion. Suction was per- formed with the DeLee catheter and at this time, we proceeded to deliver the body of the fetus. As we did this, we found a crypt surrounding the abdomen and the lower back of the fetus. This was occupied by cord, apparently cord tying up on the lower section of the lower section of the back and deep into the body of the fetus. The cord was removed and the fetus was delivered. The cord was then clamped and cut and the body was given to the pediatrician. When delivered, Karina was lethargic, floppy and without spontaneous respiratory effort or heart rate. She was resuscitated with chest compressions, intubated, and placed on a ventilator with 100 per cent oxygen. At birth, her Apgar scores were 1 at one minute, 3 at two minutes, and 4 at five minutes. Following delivery, Karina was transferred to the neonatal intensive care unit where, within twenty-four hours of birth, she was observed to have developed seizures. Karina remained in the intensive care unit for approximately nineteen days, and was discharged from Jackson Memorial on April 19, 1991, to the care of her parents. Following discharge, Karina was apparently followed at Jackson Memorial for, inter alia, hypoxic encephalopathy associated with microcephaly, spastic quadriparesis, mental retardation, language disorder and seizures. Here, the parties have stipulated, and the proof demonstrates, that Karina suffered an injury to the brain at birth caused by oxygen deprivation during the course of labor, delivery or resuscitation in the immediate post-delivery period which resulted in mental and physical impairment. What is in dispute is the degree of impairment suffered by Karina or, stated otherwise, whether her impairments are permanent and substantial, so as to be considered a "birth-related neurological injury" as defined by the Plan. The degree of Karina's impairment On February 1, 1993, upon referral by Children's Medical Services, Karina came under the care of Danilo A. Duenas, M.D., a pediatric neurologist and the associate director of the Department of Neurology, Miami Children's Hospital. As of the date of hearing, Dr. Duenas remained Karina's treating neurologist. At Dr. Duenas' initial examination of February 1, 1993, Karina, then twenty-three months of age, presented with the history heretofore noted and upon examination, Dr. Duenas diagnosed Karina as suffering from microcephaly; mental retardation, moderate to severe; spastic quadriparesis, pseudobulbar palsy; language disorder receptive and expressive; extraocular imbalance/strabismus; seizure disorder; and behavior and attention deficit disorder. Dr. Duenas' finding that Karina suffered from microcephaly reflects that her head had not grown in accordance with a standardized norm and reflects below average brain growth which in Karina's case, more likely than not, resulted from brain injury occasioned by the hypoxic insult she received at birth. Microcephaly is not itself, however, a physical or mental injury, but does portend the possibility that the injury to the brain, which affected its growth, may have been severe enough to affect mental or physical functioning. As for Dr. Duenas' observation of a seizure disorder (epilepsy), such disorder is also, more likely than not, a consequence of organic brain dysfunction occasioned by the hypoxic insult she received at birth. Epilepsy is, however, a physiologic condition, as opposed to a mental or physical condition, although it can, when seizures are severe, have profound mental or physical implications. To date, Karina has not been shown to have suffered any significant mental or physical effects from her seizure disorder. 3/ The remaining deficiencies observed by Dr. Duenas, mental retardation, spastic quadriparesis (weakness of all four extremities), pseudobulbar palsy (impaired function of the tongue and palate), language disorder receptive and expressive, extraocular imbalance/strabismus (deviation of the eye due to lack of muscular coordination) and behavior and attention deficit disorder, represent mental or physical deficiencies occasioned by the hypoxic injury to Karina's brain during birth. Following his examination, Dr. Duenas observed that his findings were consistent with "severe brain dysfunction, probably secondary to hypoxic encephalopathy at birth," but deferred any prognosis inasmuch as each child has a different potential for subsequent development after a neurological insult and, depending on the level of impairment, it is difficult to prognosticate upon the future level of impairment. Given the circumstances, Dr. Duenas recommended an electroencephalogram (EEG) to assess Karina's susceptibility to seizures, and a CT scan to confirm his clinical diagnosis of brain dysfunction and to ascertain how much brain damage could be detected. Dr. Duenas further recommended that Karina continue at Easter Seal Society School, and continue her physical, occupational and speech therapy. Consistent with Dr. Duenas' recommendation, an EEG and CT scan were performed on April 15, 1993. The EEG was abnormal, reflecting electrical abnormalities in the brain, and confirmed that Karina had, and was susceptible to, seizures. The CT scan was also consistent with Dr. Duenas' diagnoses of brain injury in that it found: There is biparieto-occipital changes of cystic encephalomalacia. Atropic changes of the central and cordical type are noted in these regions as well as along the bifrontal regions. There is a suggestion of periventricular leukomulacia. The finding of biparieto-occipital changes of cystic encephalomalacia reflects "that the white matter around the lateral ventricles [has formed] like cysts, like small sacks of empty spaces." The atropic changes in the central and cortical area reflect that brain tissue has been destroyed not only in the deep structures (central) but also the outside of the brain (cortical or cortex). The damage to Karina's brain involves both hemispheres, and is defuse. While Karina clearly suffered a severe injury to the brain by virtue of the hypoxic insult she received at birth, that finding does not compel the conclusion that such injury rendered her permanently and substantially mentally and physically impaired. Indeed, as observed by Dr. Duenas, the relationship between the results of a CT scan and the ability of a child to perform mentally and physically vary from child to child, with some adapting to the injury better than others. Indeed, examination and observation of the child is essential for a physician to reliably associate impairments with an injury depicted on a CT scan. Dr. Duenas neurologically re-evaluated Karina on April 23, 1993. At that time most of her problems persisted; however, he did note improvement in her receptive/expressive disorder because of improved vocabulary, that she was now able to walk, and that while still considered mentally retarded, the degree was rated as moderate. Dr. Duenas recommended Karina continue Easter Seals School, as well as her physical, occupational and speech therapy. Dr. Duenas continued to re-evaluate Karina on a regular basis and noted continuing progress such that by his last evaluation of August 22, 1994, he observed: . . . the mouth including tongue movements, soft palate, posterior pharynx are unremarkable. Examination of the neck was normal. Motor system shows good strength in all extremities. Deep tendon reflexes were equal and symmetric bilaterally. No pathological reflexes . . . Sensory system, pain, touch, proprioception, vibration and position senses within normal limits. Cerebellar function grossly normal finger-to-nose testing and past point. Gait seems to be unremarkable. She is a little spastic in the lower extremities but she keeps fairly good balance. . . . As for Karina's mental status, Dr. Duenas would rate her mildly to moderately mentally retarded. Based on this visit, Dr. Duenas concluded that Karina continues to make progress in her motor development, and that her vocabulary and resultant language continue to improve. Karina's strabismus had also improved to the point that rather than turn her head to one side to view an object through a single eye, she had begun to view objects in a direct and normal manner. In sum, Dr. Duenas, based on his numerous evaluations of Karina, is of the opinion that, although she will continue to suffer some impairment in her mental and physical development, that she is not currently substantially mentally or physically impaired. Moreover, Dr. Duenas foresees that Karina will continue to improve, but was unable to predict the extent of improvement. Apart from Dr. Duenas, Karina was also examined by Michael Duchowny, M.D. Dr. Duchowny, who is Board-certified in pediatrics and neurology with special competence in child neurology and the Director of the Neuroscience Department at Miami Children's Hospital, examined Karina, at the request of NICA, on March 24, 1994. Based on his examination, Dr. Duchowny was of the opinion that Karina understood the examination, the people and her surroundings, exhibited an essentially normal attention span, and behaved appropriately. He did note, however, that Karina was delayed in terms of her expressive language, but felt such impairment was primarily restricted to an inability to express herself and communicate in words, which condition should improve over time. Under the circumstances, Dr. Duchowny was of the opinion that Karina was not substantially intellectually impaired. As for Karina's physical condition, Dr. Duchowny was of the opinion that Karina was not substantially physically impaired. Although he observed some abnormality in muscle tone and coordination, Karina was fully ambulatory, could turn crisply and run easily, moved while she played and moved her hands quite well. In sum, from a physical standpoint, Karina could "virtually do all the things she wanted to do." Under the circumstances, Dr. Duchowny considered Karina's motor impairment as being "mild or at most mildly moderate, but certainly in no way substantial." As to the permanence of her current status, he felt Karina would probably improve further, but how much further he could not predict. In concluding that Karina was not substantially mentally impaired, Dr. Duchowny observed that in the spectrum of children seen with metal impairment, a substantial impairment is generally accepted to refer to patients who fall within the retarded range of functioning, with patients that exhibit an intelligence quotient (IQ) of less than fifty being considered trainable and those that exhibit an IQ under 70 being considered educable. Within that universe, the children that are considered substantially mentally impaired are the retarded, but trainable, and generally exhibit an IQ of less than 50. Here, no IQ tests have been administered to Karina and, due to her age, could not have been administered to produce any reliable results. Accordingly, by necessity, Dr. Duchowny's assessment, like Dr. Duenas' assessment, was based on observation and experience which led him to the conclusion that Karina did not exhibit those characteristics that one would associate with a child that functioned in the substantially mentally retarded range. In concluding that Karina was not substantially physically impaired, Dr. Duchowny observed that children who are substantially physically impaired have a major physical impairment. Examples given were children who were unable to move in a fluid fashion or perform certain functions such as walking or running, and those children who were wheelchair- bound, bedfast, walked with substantial gait disabilities, or lacked the use of arms or hands. In Karina's case, although she has coordination difficulties and some problems with tone, her impairment in Dr. Duchowny's opinion is "quite mild" and she is not "in the same universe as children who have a substantial impairment." In contrast to the expert opinions rendered by Dr. Duenas and Dr. Duchowny, intervenor, University of Miami, offered the opinion of Stuart Brown, M.D., who is also a pediatric neurologist. It was Dr. Brown's opinion that Karina has a permanent and substantial physical and mental impairment; however, unlike Doctors Duenas and Duchowny, Dr. Brown had never examined Karina. Rather, Dr. Brown based his testimony upon a review of the medical records, including the records from Jackson Memorial Hospital on Karina and Dora Zepeda, the records from Baptist Hospital, the records from Miami Children's Hospital, CT scans on Karina, Dr. Duenas' records and deposition, and Dr. Duchowny's report and deposition. Based on his review of the records, it was Dr. Brown's opinion that Karina's brain damage was bilateral and defuse, invading both hemispheres of the brain and was of such magnitude as to result in the liquefaction of certain areas in the parietal/occipital regions of the brain, that have been replaced with large fluid-filled cystic structures. The parietal/occipital regions are responsible for memory, visual motor functions, discrimination and languages; and the bifrontal area is responsible for intellect, judgment, attention span and executive motor functions. Dr. Brown further observed that Karina had a marked lack of normal myelination (myelin being the insulating material within the brain which enhances the transmission of information), which would portend marked impairment and delay in achievement of milestones and skills that would normally enable the child to be socially, intellectually and educationally competitive. Moreover, the structural damage to Karina's brain is permanent. Dr. Brown further observed that Karina's epilepsy will in all likelihood interfere with her performance in that, were she to experience seizures, it would interfere with her school performance, and the likelihood of seizures would preclude her from some occupational opportunities. Moreover, given the serious nature of her condition, there is a small potential that a seizure could kill Karina. Given the circumstances, Dr. Brown is of the opinion that Karina will not outgrow her seizures, and considers her seizure disorder a permanent and substantial mental and physical impairment. Dr. Brown was also of the opinion that Karina was mentally impaired. In this regard, Dr. Brown observed that, although Karina may experience some improvement in her mental functioning, given the fact that she has microcephaly, and given the striking diffuseness and bilaterality of her brain damage, the fact that she is not using sentences at age three and a half, and the attention deficit disorder and seizure disorder which will interfere with her educational process, that Karina's intelligence quotient will fall within the lowest two percentile of the general population. Indeed, Dr. Brown opined that Karina was unlikely to reach language, academic or mental skills of a ten-year-old at anytime in her life and that, in his opinion, she is trainable but not educable. In concluding that Karina was permanently and substantially mentally and physically impaired, Dr. Brown defined permanent and substantial mental and physical impairment as: An acquired injury to the brain which has produced structural damage and has produced a real and true structural injury to [the] brain [which] leads to an enduring, indefinite, lasting injury to the brain which prevents the child from achieving milestones and from being competitive with her peer group in motor, language, intellectual, and social and . . . behavioral aspects. . . . In combination, Karina's findings of microcephaly, epilepsy, retardation, motor delays and language deficits and attention deficit disorder therefore constitute, in Dr. Brown's opinion, a permanent and substantial mental and physical impairment. Resolving the conflict In resolving the conflict between the opinions rendered by Doctors Duenas and Duchowny, compared to the opinions rendered by Dr. Brown, careful consideration has been accorded the medical records in this case, the gravamen and tenor of the physicians' testimony, and the opportunity each physician had to observe and quantify the matters to which they spoke. In this regard, it is noted that Dr. Brown did not examine the child and that, under the circumstances of this case, he could not, based upon the CT scans alone, reasonably opine whether a motor abnormality he might suspect would be present would be mild, moderate or severe. Of further note is Dr. Brown's acknowledgment that there is no impairment in the strength of Karina's upper extremities, and that she can feed herself, use both hands, grasp, manipulate and walk. It is further noted that Dr. Brown agrees that Karina will improve, although the extent is not now known, and that her walking ability will continue to improve. Finally, it is noted that there is a consensus among the physicians that, within their profession, mental and physical impairments are routinely classified as mild, moderate or severe (substantial), although there may be disagreement among physicians at times as to the degree of impairment assigned. Given the circumstances, the opinions of Doctors Duenas and Duchowny are accepted. Accordingly, it must be concluded that the proof fails to support the conclusion that Karina was rendered "permanently and substantially mentally and physically impaired" as a consequence of the hypoxic insult she received at birth.
The Issue The issue in this case is whether Everett Luis Northup sustained a birth-related neurological injury.
Findings Of Fact Katrina Northup (formerly Katrina McGuff) and Richard Northup are the natural parents of Everett Luis Northup. At all times material to this proceeding, Katrina Northup was an obstetrical patient of Wayne Blocker, M.D., and Dr. Blocker was a "participating physician" as defined in section 766.302(7), Florida Statutes. Dr. Blocker provided obstetrical services in the course of labor and delivery at the birth of Everett. Ms. Northup did not experience any significant problems during her prenatal course. On August 21, 2009, she presented to Brandon Regional Hospital, which is a licensed Florida hospital. She was 34.1 weeks pregnant. Beginning at 8:58 a.m., Ms. Northup was started on Pitocin. By 2:23 p.m., the baby's station was -1. At 3:50 p.m., Ms. Northup's membranes ruptured. At 4:41 p.m., the baby was experiencing increasing fetal tachycardia, and the mother's efforts at pushing were nonproductive. A decision was made to use vacuum extraction to facilitate the delivery. Dr. Blocker applied a KIWI vacuum extractor to the baby's head, but a seal could not be achieved. A soft cup vacuum extractor was used to deliver the baby's head to the perineum so that Ms. Northup could push the baby out. Four pulls, two of which were pop offs, were used. Ms. Northup was able to push the baby out after the use of the vacuum extractor. The baby experienced shoulder dystocia during delivery. This means that there was a delay in descent because the baby's shoulder was impinged on the mother's pubic bone. The shoulder dystocia was corrected using a MacRoberts maneuver, which is flexing the mother's hips to give more room in the pelvis. The shoulder dystocia did not require additional force from the vacuum extractor. Everett was born live on August 21, 2009, at 4:45 p.m. He weighed 3,875 grams at birth. Everett was large for his gestational age. The hospital's admission summary for Everett described his condition at time of delivery as follows: Infant was delivered pale, floppy, and with a poor respiratory effort. Infant was suctioned PO and nasally and stimulated . The initial HR was <100 but exceeded 100 by 1 minute of age. Respirations became more regular and color became ruddy with a rapid HR. Tone remained poor and there was bruising of the left arm and ballotable fluid in the scalp. After delivery, Everett's mouth, nose and pharynx were suctioned and he was given blow-by oxygen for two minutes. Everett's Apgar score at one minute of age was recorded as seven and, at five minutes of age, was eight. Apgar scores are designed to define a baby's responsiveness and cover five different categories: heart rate, respiration, color, reflex activity or reflex responsiveness, and muscle tone. Each of the categories can be scored a zero, a one, or a two. At one minute of life, Everett's heart rate was greater than 100 beats per minute; he had a good cry; there was some flexion of the extremities; he had a grimace; and his body was pink and extremities were blue. At five minutes of life, Everett's heart rate was greater than 100 beats per minute; he had a good cry; he had active motion; he had a cry or active withdrawal; and he was blue/pale. Everett's initial blood gases were recorded as a pH of 7.20, which is considered a mild to moderate metabolic acidosis. Everett was admitted to the Neonatal Intensive Care Unit (NICU). His admission summary describes the findings of the admission physical examination as follows: CONDITION: Pink, quiet and responsive. HEENT: Anterior fontanelle soft, open, and flat, red reflexes present bilaterally, subgaleal bleed with ballotable fluid, nares patent and palate intact. CARDIAC: Normal sinus rhythm with tachypnea, weak pulses and poor perfusion, CRT -5 seconds, precordium quiet and no murmur. Abdomen: Soft and nondistended abdomen, good bowel sounds, 3-vessel cord and liver edge palpable at the costal margin. GU: Normal male features for gestational age, testes descended bilaterally and patent anus. NEUROLOGIC: Quiet and responsive with fair muscle tone and reflexes for age. SPINE: Neck supple without masses, spine straight and intact, no sacral dimple noted and no clavicular fracture palpated bilaterally. EXTREMITIES: Symmetrical movements and no hip clicks. SKIN: Bruising over left arm. Everett's heart rate was recorded on August 21, 2009, as 208 at 5:00 p.m., 166 at 5:30 p.m., 172 at 6:00 p.m., and 168 at 8:30 p.m. Blood pressures taken at the same time intervals were 55/20, 48/20, 45/28, and 70/47. The initial glucose level for Everett was 29. This hypoglycemia was corrected with a DIOW bolus of 3 ml/kg. Everett had a respiratory distress syndrome, which was attributed to his premature lungs. This syndrome was corrected with intubation and the use of surfactant. He was intubated for approximately nine hours and then placed on room air. On August 27, 2009, Everett was discharged from the NICU. When Everett was 11 months old, his parents expressed concerns to his pediatrician that Everett was not meeting his developmental milestones. The pediatrician referred Everett to a pediatric neurology specialist, who prescribed an MRI. The MRI showed a "symmetric increased T2 signal within the periventricular white matter with associated atrophy of the corpus callosum, likely related to leukomalacia secondary to prematurity." On February 1, 2012, pediatric neurologist, Francis Filloux, M.D., notes her diagnostic impressions: Cerebral palsy with a spastic diplegia pattern or possible spastic triplegia, with the best function in the left upper extremity. Periventricular leukomalacia, by report from the prior MRI scan. Associated neurodevelopmental impairments. History of very mild prematurity. Everett is permanently and substantially mentally and physically impaired. Everett did not suffer an injury to the brain during resuscitation in the immediate post delivery period in a hospital. Petitioners retained Jeffrey Koren, M.D., and Stephen Glass, M.D., as expert witnesses. Respondent retained Donald Willis, M.D., and Michael Duchowny, M.D., as its expert witnesses. Dr. Glass is board-certified in neurology with a special competence in child neurology, and he is board-certified in pediatrics. He has been practicing as a pediatric neurologist for 32 years. Dr. Glass is currently an associate professor of neurology and pediatrics at the University of Washington. Dr. Glass opined that Everett sustained an injury to the brain caused by mechanical injury, due to the multiple vacuum extractions which occurred in the course of labor which rendered Everett permanently and substantially physically and mentally impaired. He believes that the injury to the brain caused by the use of the vacuum extraction device used during the delivery process caused a reduction of blood flow to the periventricular areas of the brain which caused periventricular leukomalacia (PVL), which led to cerebral palsy. Dr. Koren is board-certified in gynecology and has been practicing obstetrics and gynecology for over 30 years. He opined that the use of the vacuum extraction caused a traumatic injury to the scalp of Everett causing a subgaleal bleed and a diminished blood flow to the periventricular areas of the brain, which caused the PVL. Dr. Willis is fellowship trained in maternal fetal medicine and board-certified in obstetrics and gynecology and maternal fetal medicine. He began in private practice in 1980 and has taught at several universities. Since 2000, he has been doing consultations in maternal fetal medicine. Dr. Willis is of the opinion that Everett did not suffer a brain injury which was mechanical or due to oxygen deprivation during labor and delivery. Based on his readings of Everett's fetal heart-rate monitor, there was no evidence of fetal distress. Everett's Apgar scores were normal with a score of seven at one minute and eight at five minutes. The umbilical cord pH was not consistent with acidosis or hypoxia that would be significant enough to cause significant brain injury. The subgaleal hematoma caused by the use of the vacuum extractor was not clinically significant. Everett did not require a transfusion, and he was not anemic. By the second day of Everett's life, he had a hematocrit of 53, which is normal for a newborn. Dr. Duchowny is a pediatric neurologist who directs the neurology training program at Miami Children's Hospital. He is a professor of neurology and pediatrics at the University of Miami School of Medicine and is a full professor at the Florida International University School of Medicine. His clinical practice is based out of Miami Children's Hospital. Dr. Duchowny is board-certified in pediatrics, neurology with special qualification in child neurology, and clinical neurophysiology. He performed an independent medical examination of Everett on December 12, 2011. Dr. Duchowny opined that Everett did not suffer a brain or spinal cord injury caused by oxygen deprivation or mechanical injury during the course of labor, delivery or resuscitation in the immediate post delivery period. He explained the basis for his opinion as follows: [A]lthough Everett's neurological problems were substantial in both, the mental and motor domains, a review of his medical records did not support the belief that these abnormalities were, in fact, acquired during the labor or delivery. Everett was a pre-term infant. He was large for gestational age, but he was born at 34 weeks gestation, but if you look through the neonatal course, it's clear that his was relatively benign. For example, Everett's Apgar scores seven and eight at one and five minutes of life. These scores were quite good. His cord blood gases also were mildly abnormal, but really very little evidence of any significant problem. His cord pH was 7.18. He had a base excess of minus 10.3, and these are mild findings, and consistent with his overall neonatal course, during which he actually did very well. For example, there was no evidence of overall systemic involvement, apart from some transient hypoglycemia that was adequately treated, and he did not have multi-organ system failure, liver involvement, cardiovascular collapse. He certainly wasn't comatosed. He was transiently intubated but did not require a prolonged course of ventilator support. Sepsis was suspected, and he was treated with antibiotics, but ultimately his cultures were negative, and he went home without any significant problems or complications in the newborn period. Given the fact that his MRI scan of the brain ultimately revealed damage in the form of periventricular leukomalacia, and thinning of the corpus callosum, it would appear that his deficits could not have been acquired in the course of labor, delivery or the immediate post-partum period. Rather, I believe that Everett's brain injury was acquired prior to birth, likely as a consequence of his prematurity. Had it been acquired during labor and delivery, I would have expected a much more severe postnatal course, given the MRI findings and his neurological examination. The opinions of Dr. Willis and Dr. Duchowny are credited. Everett did experience a subgaleal hematoma during the birthing process. In order for a subgaleal hematoma to cause brain damage, it would have to be a substantial loss of circulating blood volume which would lead to hypovolemic shock. Everett did not have hypovolemic shock nor did Everett experience any seizures. If the subgaleal hematoma had been clinically significant, Everett would have been given a blood transfusion. He was not given a blood transfusion and he was not anemic. The subgaleal fluid collection was small and easily reabsorbed. Both Dr. Glass and Dr. Koren opined that the Apgar scores were incorrect and should have been substantially lower. However, their opinions are based on the descriptions of Everett at the time of delivery, which were pale, floppy, and with poor respiratory effort. At delivery, Everett's heart rate was less than 100 beats per minute. After he was suctioned and stimulated, Everett's heart rate was greater than 100 beats per minute and his color was ruddy. Everett had a difficult birth, which was reflected in the descriptions of him at delivery. However, within a minute of delivery he had bounced back and had a normal Apgar score. The greater weight of the evidence establishes that Everett did not suffer an injury to the brain during labor and delivery due to oxygen deprivation or mechanical injury. More likely than not the PVL and thinning of the corpus collosum are findings associated with Everett's prematurity and not a result either directly or indirectly of the vacuum extraction delivery and the resultant subgaleal hematoma.
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
Findings Of Fact Neha was born on May 15, 2012, at Broward General Medical Center, located in Fort Lauderdale, Florida. Neha weighed six pounds nine ounces at birth. NICA retained Michael S. Duchowny, M.D., as its medical expert in pediatric neurology. Dr. Duchowny examined Neha on March 20, 2013, and reviewed her medical records. In an affidavit dated April 24, 2013, Dr. Duchowny opined as follows: Neha’s neurological examination is significant only for a mild degree of hypontia coupled with very slight motor development delay. In other regards, she seems to be developing quite well and I suspect that her language development will progress on schedule. There are no focal or lateralizing findings to suggest structural brain damage. A review of medical records reveals that Neha was born by stat cesarean section at Broward General Hospital due to fetal bradycardia. She was delivered with a full body nuchal cord and a true knot that was removed at birth. There was evidence of severe metabolic acidosis-arterial blood gases drawn 11 minutes after birth revealed a pH of 6.66, PC02 of 162, P02 of 11, and base excess of -32. These values were improved on a repeat series drawn at 12:27 PM. Thick meconium was suctioned below the vocal cords and Neha was diagnosed with meconium aspiration syndrome. Seizures occurred several after birth and were treated with phenobarbital and phenytoin. As previously stated by the family, Neha was immediately enrolled in a general hypothermia protocol. Of significance, a brain ultrasound exam obtained on May 15 at 6:46 PM, was normal and an MRI scan of the brain obtained on May 23 (DOL #8) was also within normal limits. Neha’s examination today does not reveal either a substantial mental or motor impairment, findings are consistent with the lack of significant MRI findings. I believe that the hypothermia protocol in all likelihood was neuro-protective and more likely than not, contributed to Neha’s positive outcome. Given Neha’s favorable outcome, I believe that she should not be considered for inclusion within the NICA program. As such, it is my opinion that Neha Kannikal is not permanently and substantially mentally impaired nor is she permanently and substantially physically impaired due to oxygen deprivation or mechanical injury occurring during the course of labor, delivery or the immediate post-delivery period in the hospital during the birth of Neha Kannikal. A review of the file does not show any opinion contrary to Dr. Duchowny's opinion that Neha does not have a substantial and permanent mental and physical impairment due to lack of oxygen or mechanical trauma is credited.
The Issue Whether Jasmine Mack has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.
Findings Of Fact 1. Jasmine Mack (Jasmine) is the daughter of Joel Mack and Lynette Anderson Mack. She was born a live infant, on July 27, 1990, at University Medical Center, Jacksonville, Florida, and her birth weight was in excess of 2500 grams. 2. The physician delivering obstetrical services during the birth of Jasmine was Patrick Conner, M.D., who was, at all times material hereto, a participating physician in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. 3. Jasmine Mack was delivered vaginally, with a forceps assist. The delivery was without complications and Jasmine presented with Apgar scores of 8 at one minute and 9 at five minutes. No evidence of fetal distress or of an hypoxic ischemic event occurring during labor or delivery is apparent from the labor and delivery records. 4. After birth, Jasmine was transported to the hospital nursery where she remained until she was discharged in the custody of her mother one day after her birth. 5. For at least a six month period after birth, Jasmine Mack experienced no medical problems; however, at approximately 3 six months of age, Jasmine’s mother observed Jasmine’s fingers "trembling" on various occasions and noted that Jasmine appeared to be experiencing some night-time trauma. Jasmine was seen at various hospital emergency rooms and was discharged on each occasion as an otherwise healthy infant without any discernible medical problems. 6. At approximately eighteen months of age, Jasmine was referred to the Nemours Children’s Clinic for evaluation. On March 12, 1992, Jasmine was administered an electroencephalogram (EEG) which was interpreted by William R. Turk, M.D. The EEG was administered for the purpose of determining whether Jasmine was undergoing "night terrors" versus "nocturnal seizures." The EEG demonstrated recurrent left central-midtemporal spike discharges which suggested Rolandic discharges. 7. On March 19, 1992, Jasmine was evaluated at the Nemours Children’s Clinic by William E. Zinser, M.D., for the purpose of distinguishing between "night terrors" and possible seizures. Upon examination, Dr. Zinser observed that Jasmine’s "mental status is normal and appropriate for her age. She interacted well with the examiner, was playful and smiling... General exam is unremarkable." Dr. Zinser concluded that the "daytime episodes" described by Lynette Mack were probably "partial complex seizures" and the night-time episodes were probably “night terrors." Tegretol was prescribed to control the seizures. 8. Jasmine was next seen at the Nemours Children’s Clinic by Dr. Zinser for a follow-up visit on April 21, 1992. Since her last visit, Jasmine was reported to have had one seizure where she bit her lip and was staggering, as well as crying out as in fear. At the time she was receiving a dosage of only 50 mg. of Tegretol. Upon examination, Dr. Zinser noted that Jasmine, "is alert and active. She interacts well with the examiner and with other family members in the room. . . Motor tone and strength are normal in upper and lower extremities as well as the trunk. Gait testing is normal and appropriate for her age." Dr. Zinser concluded that Jasmine suffered “partial complex seizures with a recent break through seizure [which] could have been due to the fact that her Tegretol dosage is somewhat low." Jasmine’s Tegretol dosage was therefore increased to control her seizures. 9. During the April 21, 1992 visit, Dr. Zinser also discussed with Jasmine’s parents an MRI which had been done after the last visit and in which there appeared several areas of bright signal in the periventricular white matter of Jasmine’s brain. Dr. Zinser concluded that, "The significance of this is not clear, but it appears to be related to some perinatal ischemia." 10. Dr. Zinser next saw Jasmine on June 16, 1992, at the Nemours Children's Clinic. In his June 16, 1992 report, Dr. Zinser noted that: An M.R.I. from a prior visit shows two areas of bright signal in the periventricular white matter of unclear significance. She is coming today for follow-up with her father and mother. The mother expresses some concern over the MRI findings and is requesting some additional explanation. She was informed that these type of lesions may occur occasionally from periventricular ischemia such as what occurs in pre-mature infants. However, we are not sure this is the only reason in Jasmine’s case. She has not presented any further seizures and has tolerated her medication quite well... The night-time waking episodes appear to be related first of all to the fact that she sleeps in her parents bedroom in bed, secondly because she always gets some attention when she wakes up. ll. In the June 16, 1992 examination, Dr. Zinser further observed that Jasmine: Has general normal developmental screening for her age. She is using sentences of 2 and 3 words and she appears to have an extensive vocabulary. Her speech is at least 75% intelligible . . . Motor tone and strength are normal in the upper and lower extremities. Gait testing is normal and appropriate for her age... Her general examination is unremarkable. There are no significant changes from her previous visits. 12. Jasmine was next seen by Dr. Zinser on August 3, 1992, at the Nemours Children’s Clinic. At that time, Dr. Zinser observed that: She has not presented any seizures since her last visit from a month and a half ago. She has done well at home and her development continues to progress in a normal fashion + Motor tone and strength are normal in the upper and lower extremities. There is no ataxia and there is no dysmetria ..., Sensory exam is grossly normal. General examination is unremarkable. 13. Jasmine next visited the “Neurology Clinic" at the Nemours Children’s Clinic on October 14, 1992. On this occasion, she was seen by Daniel L. Bluestone, M.D. Dr. Bluestone noted that Dr. William Zinser had been previously following Jasmine’s “complex partial epilepsy of the left temporal origin," and that, "the mother informs me that the last seizure reportedly occurred four months ago, and that the patient has been seizure-free since that time. She is experiencing no side effects of the Tegretol, and continues to achieve all developmental milestones at appropriate times." 14. Upon examination, Dr. Bluestone observed that Jasmine’s "[mjotor examination revels (sic) normal muscle bulk, tone, and power. The patient's gait is age appropriate, but she will dystonically posture her left arm ina flex position when she walks or runs. She will spontaneously use both hands, though a clear right-hand preference is present... . Testing of primary sensory modalities reveals normal responses throughout.” 15. Dr. Bluestone concluded, following his examination, that "Presumably, she suffered some antenatal or perinatal hypoxic ischemic event, giving rise both to the motor and MRI findings, and the subsequent partial epilepsy. Her motor findings are minimal at this time, and require no intervention. Her seizures are currently well-controlled on Tegretol monotherapy . . . Should the patient continue to do well, then the next follow-up appointment will be made in six months time." 16. The final neurological examination given to Jasmine at the Nemours Children’s Clinic occurred on May 3, 1993. On this occasion she was again examined by Dr. Bluestone who noted that "The patient has remained seizure free since her last clinic visit. At the present time, she is experiencing no side effects with Tegretol therapy. She continues to achieve all developmental milestones at appropriate times." Dr. Bluestone did, however, note a “subtle left upper motor neuron facial weakness" but concluded that the "motor examination reveals normal muscle bulk, tone, and power, although she will dystonically posture the left arm in a flexed position when she runs." Dr. Bluestone concluded his examination by noting that: . again, given the absence of a clear neonatal syndrome of hypoxic ischemic encephalopathy, I must conclude that this patient suffered an antinatal (sic) hypoxic ischemic event, giving rise to both her left hemiparesis and her subsequent partial epilepsy. Her seizures are currently well controlled on Tegretol monotherapy ... ." 17. On July 20, 1993, Jasmine was evaluated by Michael s. Duchowny, M.D., at the request of NICA. opr. Duchowny is Board- certified in pediatrics and pediatric neurology and is a staff neurologist in the Department of Neurology at Miami Children’s Hospital. 18. Contrary to the reports as to a complete cessation of seizure activity as set forth in the neurological evaluations done at Nemours Children’s Clinic, Lynette Mack related to Dr. Duchowny that Jasmine was experiencing a seizure approximately once a week. Furthermore, Mrs. Mack related to Dr. Duchowny that Jasmine "Falls often and her body gyrates when she walks." Given the dichotomy between such revelations and the observations recorded at the Nemours Children’s Clinic that the seizures were under long-term control with Tegretol, Mrs. Mack’s statements to Dr. Duchowny are of dubious credibility. 19. Dr. Duchowny performed a complete neurological examination of Jasmine and concluded that Jasmine was "an alert, well-developed and well proportioned, cooperative, three-year old black female." Dr. Duchowny further noted that Jasmine had an appropriate attention span for age and interacted well during the neurological evaluation. Dr. Duchowny noted that Jasmine could identify pictures of animals as well as body parts and that her speech was fluent and well articulated. Furthermore, Dr. Duchowny noted that Jasmine’s motor examination was normal with the exception of a mild asymmetry of posture with the right arm being subtly postured and straightened compared to the left, but that she could walk and run quite well for her age. Dr. Duchowny concluded: In SUMMARY, Jasmine’s neurologic examination reveals only a mild posture asymmetry of the upper extremity but no other significant lateralizing findings. I did not find her attention span or cognitive status to be diminished for age and she seems to be developing quite well. In my opinion, Jasmine’s seizure disorder is not a birth- related neurologic injury nor was it acquired in the course of labor delivery or resuscitation in the immediate post-delivery period. I believe that her seizure disorder is substantial. She is likely in fact to be experiencing nocturnal seizures as well. However, she is not suffering from a physical impairment. Her care has been quite appropriate and I would agree with her physician’s decision to continue treatment with carbamazepine although the issue of nocturnal seizures versus night terrors needs to be sorted out. 20. Based on the proof of record, it must be concluded that petitioners have failed to demonstrate that Jasmine suffered any substantial mental or physical impairment, or that she sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury that was related to any event that occurred during labor, delivery or resuscitation in the immediate post- delivery period. Rather, the record compels the conclusion that Jasmine's disorder was related to some antenatal (prenatal) event of unknown origin.
Conclusions For Petitioner: J. Richard Moore, Jr., Esquire 500 North Ocean Street Jacksonville, Florida 32202 For Respondent: W. Douglas Moody, Jr., Esquire Taylor, Brion, Buker & Green Suite 250 225 South Adams Street Tallahassee, Florida 32302
The Issue The issue is whether respondent's license as a medical doctor should be disciplined for the reasons cited in the administrative complaints.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Respondent, David M. Scheininger, is a licensed medical doctor having been issued license number ME 025317 by petitioner, Department of Business and Professional Regulation (DBPR), Board of Medicine (Board). He now resides at 7076 Lenczyk Drive, Jacksonville, Florida. When the events herein occurred, respondent was in the practice of family medicine with offices at various locations in Jacksonville, Florida. Respondent has been licensed by the state since 1975. The record reflects that besides these proceedings, respondent has been disciplined by the Board on two prior occasions. On June 23, 1983, his license was suspended until such time as he could demonstrate that he could practice medicine with reasonable skill and safety. The license was later reinstated in 1984. On December 16, 1986, he received a reprimand and agreed not to dispense samples of legend drugs from his office. Respondent is the subject of four administrative complaints filed against him between October 1991 and September 1993. The complaints allege generally that while treating a female patient between 1985 and 1990, respondent improperly prescribed legend drugs, failed to adhere to the appropriate standard of care, and failed to keep adequate medical records (Case No. 94-0900), he failed to adhere to the appropriate standard of care while treating a female patient in 1989 (Case No. 94-0901), he failed to post a notice in his office, or otherwise advise patients of the fact that he did not carry medical malpractice insurance (Case No. 94 because of a mental incapacity (Case No. 94-0904). Although respondent did not appear at final hearing, he has disputed all allegations. Each case will be discussed separately below. Case No. 94-0900 Beginning on May 22, 1985, respondent began to treat B. M., a forty- three year old female, on a regular basis for routine illnesses, lower lumbar back pain, chronic headache pain and nervous anxiety. During the next four years, the patient had approximately 150 contacts with respondent. A drug profile taken from a local pharmacy indicated that from November 30, 1988, through February 6, 1990, respondent prescribed the following legend drugs to B. M.: Darvocet-N-100 862 units Tranxene 795 units Paragoric 300 MD's Talwin NX 290 units Ionamine 255 units Placidyl 195 units Tavinix 209 units In response to an investigator's inquiry as to why so many drugs were prescribed, respondent gave no explanation but simply asked that his records be returned. Although respondent was given the opportunity to file an "amendment" to his records, he declined to do so. A medical expert established that ninety percent of the prescriptions were written without related entries in the medical records explaining why such drugs were prescribed. In addition, the office calls did not match the prescriptions. During one five month period alone, more than 500 units of Tranxene were prescribed. Moreover, in almost every case, the patient had refilled the prescription far sooner than should have been done with ordinary prescribing, and most of the drugs were prescribed in combination with other drugs. Based upon these considerations, it is found that respondent failed to prescribe drugs in the course of his professional practice. In B. M.'s medical records, respondent simply recorded the chief complaint of the patient and nothing more. No reason was given for approximately 140 office visits. There was no indication that a complete initial work given. No diagnostic studies were made nor were there any objective findings in the records supporting the care given to the patient. Therefore, it is found that respondent failed to keep medical records justifying the course of treatment of the patient. Expert testimony further established that while treating the patient, respondent failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. This finding is based on the fact that the records were incomplete, there was very poor prescribing practice, no clinical evidence was shown to justify the large numbers of drugs prescribed, and there was no documentation to show that adequate care was given the patient. Case No. 94-0901 In Case No. 94-0901, respondent's care of a female patient is brought into issue. The patient had been treated by respondent since October 1975, mainly for recurring respiratory infections. During an office visit on September 18, 1989, she presented breathing difficulties and was coughing and spitting up blood and phlegm. Respondent failed to order a chest x arrange for a pulmonary consultation. Instead, he ordered immune serum globulin, which is not efficacious in treating respiratory infections. On October 15, 1989, the patient entered a local hospital after experiencing chest pains. She was initially diagnosed as having a collapsed lung but a bronchoscopy and biopsy revealed cancer in her left lung. The lung was removed on October 24, 1989. By failing to order an x smoking, or to refer her to a pulmonary specialist, and by simply treating her with immune serum globulin, respondent's care and treatment of the patient fell below the recognized standard of care. Case No. 94-0903 This complaint alleges that during the years 1990 and 1991, respondent failed to post a notice in his office that he did not carry medical malpractice insurance or otherwise advise his patients of this fact. During office visits by a DBPR investigator in July and August 1992, no signs were present and respondent acknowledged that no notice was being given to his patients. Even so, there is no direct evidence through observation or admission that during the years 1990 and 1991 such notices were not posted, or that the patients had not been advised of this lack of insurance. Therefore, it is found that there is less than clear and convincing evidence to sustain this charge. Case No. 94-0904 The final complaint alleges that respondent is no longer capable of practicing medicine with reasonable skill and safety by reason of dementia and memory loss resulting from his primary disease of hydrocephalus (fluid on the brain). The DBPR learned of this condition through a report received from one of respondent's relatives. The evidence shows that on May 12, 1993, respondent visited a local internist and complained of weakness, poor memory, inability to control urine and immobility. At that time, respondent was confined to a wheelchair. Respondent was referred to a neurologist who diagnosed respondent as having normal pressure hydrocephalus. On May 24, 1993, respondent underwent an atrial- peritoneal shunt operation to drain the excess spinal fluid. He now suffers from dementia and memory loss caused by the disease. Expert testimony established that respondent is now confused and has cognitive mental deficits showing the persistence of dementia. As a consequence, his ability to use good judgment has been compromised, and he no longer has the ability to safely practice medicine.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Medicine enter a final order finding respondent guilty of all charges in Case Nos. 94-0900, 94-0901, and 94-0904, imposing a $10,000 administrative fine, and suspending his license until such time as he appears before the Board and demonstrates that such fine has been paid and that two Board approved psychiatrists have examined him and state that he is able to practice medicine with skill and safety. Case No. 94-0903 should be dismissed. DONE AND ENTERED this 8th day of July, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1994. Petitioner: APPENDIX TO RECOMMENDED ORDER CASE NOS. 94-900, 94-901, 94-903, 94-904 The proposed findings submitted by petitioner have been adopted in substance except for those findings pertaining to Case No. 94-0903. Those findings have been rejected on the ground they are not supported by the evidence. COPIES FURNISHED: Alex D. Barker, Esquire 7960 Arlington Expressway Suite 230 Jacksonville, FL 32211-7466 Dr. David M. Scheininger 7076 Lenczyk Drive Jacksonville, FL 32211 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0770 Francesca Plendl, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
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
