Findings Of Fact Lucas Mueller was born on September 21, 2014, at Lakewood Ranch Medical Center in Lakewood Ranch, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Lucas. In a report dated October 24, 2016, Dr. Willis described his findings in pertinent part as follows: The fetal heart rate (FHR) monitor tracing during labor was reviewed and did not suggest fetal distress. Delivery was by vacuum assisted vaginal birth. Vacuum assistance was done for maternal exhaustion. Birth weight was 7 lbs 7 oz’s. The baby was not depressed at birth. Apgar scores were 7/9. The newborn hospital course was benign. “Well visits” with Pediatrics after birth at one to four months of age indicated no problems. The baby was evaluated at 5 months of age for “head dropping.” Developmental delays were noted by 7 months of age. Seizure activity was identified by EEG at 11 months of age. MRI of the cervical spine was negative. MRI of the brain at about one year of age was essentially negative. Genetic evaluation with microarray did not identify any genetic disorders. In summary, the child was not depressed at birth and apparently no problems were noted until about 5 months of age. MRI of the brain was essentially negative. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. Dr. Willis reaffirmed his opinion in an affidavit dated October 31, 2016. A review of the file reveals that no contrary evidence was presented to dispute Dr. Willis’ finding that there was no apparent obstetric event that resulted in oxygen deprivation or mechanical trauma during labor, delivery, or the immediate post- delivery period. Dr. Willis’ opinion is credited.
Findings Of Fact Jamyrah DeBose was born on March 27, 2014, at Putnam Community Medical Center in Palatka, Florida. She was a single gestation. NICA attached to its motion a certification of medical records signed by the Director of Medical Records from Putnam Community Medical Center, and a one-page medical record for Jamyrah. The medical record shows that Jamyrah was a single gestation and her birth weight was less than 2,500 grams. A review of the file reveals that no contrary evidence was presented to dispute the medical record from Putnam Community Medical Center showing that Jamyrah’s birth weight was less than 2,500 grams. It its Opposition to Respondent’s Motion for Summary Final Order, Intervenor acknowledged that Jamyrah weighed 2,240 grams at birth. Intervenor attached to its response in opposition to NICA’s Motion an affidavit of Frederick E. Harlass, M.D., who opined that the statutory requirement of a baby’s birth weight of 2,500 grams is unreasonable and arbitrary, especially in light of Petitioner’s small stature and pre-pregnancy weight of 125 pounds.
Findings Of Fact Jesus Christopher Michael Camacho was born on November 29, 2011, at Shands Lake Shore Regional Medical Center located in Lake City, Florida. Jesus weighed in excess of 2,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Jesus. In a medical report dated April 8, 2015, Dr. Willis described his findings as follows: In summary, this baby had a birth related brain injury as documented by MRI findings of extensive brain hemorrhage by DOL 2. The oxygen deprivation and brain injury was a result of poor perfusion due to blood loss in a subgaleal hematoma that occurred at delivery. The FHR tracing during labor was not available for review, but attempt at vacuum delivery and Cesarean section were done for non-reassuring FHR pattern. It does not appear that brain injury occurred during labor or delivery, but the difficult delivery may have contributed to the eventual outcome. The oxygen deprivation and brain injury occurred during resuscitation in the immediate post-delivery period. The baby never stabilized immediately after delivery and required continuous resuscitation, including oxygen, intravenous fluid boluses and blood transfusions during the first day of life. The immediate post-delivery period would extend during this period of time, prior to stabilization. There was an apparent subgaleal hematoma that began at delivery and resulted in blood loss, poor perfusion, oxygen deprivation and brain injury that occurred during the immediate post-delivery period. I am not able to comment about the severity of the brain injury. NICA retained Raymond J. Fernandez, M.D. (Dr. Fernandez), a pediatric neurologist, to examine Jesus and to review his medical records. Dr. Fernandez examined Jesus on April 8, 2015. In a medical report dated April 14, 2015, Dr. Fernandez opined as follows: IMPRESSION: There is clear evidence for substantial mental and motor impairment that will be permanent due to mechanical and hypoxic- ischemic brain injury sustained during labor and delivery. Jesus’ brain injury is due, in large part, to his mechanically traumatic delivery that resulted in extensive brain hemorrhage. There was a lesser degree of brain injury due to oxygen deprivation as evidenced by a metabolic acidosis at birth and brain MRI abnormalities indicative of hypoxic-ischemic injury. Jesus has a spastic right hemiplegia causing substantial motor impairment. In addition, he has expressive speech, receptive language, executive function, and learning impairments that are substantial. A review of the file in this case reveals that there have been no opinions filed that are contrary to the opinion of Dr. Willis that there was an apparent subgaleal hematoma that began at delivery and resulted in blood loss, poor perfusion, oxygen deprivation and brain injury that occurred during the immediate post-delivery period. Dr. Willis' opinion is credited. There are no opinions filed that are contrary to Dr. Fernandez’s opinion that there is clear evidence that Jesus sustained substantial mental and motor impairment that will be permanent due to mechanical and hypoxic-ischemic brain injury sustained during labor and delivery. Dr. Fernandez’s opinion is credited.
The Issue Petitioner claims that Respondent owes approximately $6,000.00 for the purchase of grass sod. Respondent argues that the funds claimed by Petitioner are for repairs on equipment, not sod, and that its only indebtedness to Petitioner is $6.00, mistakenly omitted from a payment. The issue is whether Petitioner's claim is proper and cognizable under section 604.31, F.S., related to complaints of breach of agreement by a licensed dealer in agricultural products.
Findings Of Fact Hillside Sod Farms, Inc. (Hillside) produces grass sod for sale to landscaping firms and similar customers. Its business address is 1620 East State Road 46, Geneva, Florida. Bill Hatfield Enterprises, Inc. d/b/a Bill's Landscaping (Hatfield) is a licensed dealer in agricultural products, bonded by Ohio Casualty Insurance Company, as surety. Hatfield's business address is 1116 State Road 434, Winter Springs, Florida. Sometime around April 1989, Hatfield began purchasing sod from Hillside. Hatfield uses a lot of sod in his landscaping business. The arrangement between the parties was that Hillside would charge an extra 1/2 cent a square foot on his price for the sod for the use of heavy equipment (forklifts). Hillside owns twenty-seven such machines and loaned three out to Hatfield. The equipment stayed at Hatfield's job sites and was operated by Hatfield's crew. When the equipment broke down, Hatfield notified Hillside, who had it repaired. At least some of the repair bills were sent to Hatfield, who paid them. Sometime around the end of September 1989, Avery Wisdom complained to Bill Hatfield about what he thought was an excessive amount of repairs on his equipment. He felt Hatfield's workers were rough on the machines. He suggested several alternatives, including pulling the machines off the jobs and letting Hatfield provide his own machines. He also suggested that he could purchase new equipment and let Hatfield pay all its expenses over a period of time, ultimately buying the equipment, in a lease-purchase type of arrangement. Another suggestion was that he would get the equipment overhauled and let Hatfield pay all the repair bills. Suggestions one and two were apparently rejected, and it is not clear that suggestion three was formally accepted. Nothing was put in writing. Hatfield claims now that he offered to pay an additional 1/2 cent per square foot of sod for the use of the equipment. Avery Wisdom claims that he did raise the price of his sod, but that it was an across-the-board price increase for all of his customers due to increased costs of production, and not related to rental. The October 9, 1989 invoice #13290 from Hillside to Bill's Nursery reflects an increase of $2.00 per pallet of Bahia sod and $2.50 per pallet of Floratam sod, or 1/2 cent per square foot increase. Debra Ludewig, the bookkeeper and general office manager for Hatfield, asked Hatfield why the price" went up, and he told her it was for the equipment. Hillside continued to bill Hatfield for repairs on the equipment after October 1989. These repair costs are reflected on invoices to Bill's Landscaping and are backed up by separate special "repair order" forms itemizing each repair bill. The "special repair order" forms were also furnished to Bill's Landscaping. The repairs are listed on the invoices with a date, reference to the "special repair order" (SRO number), and a total cost which is calculated into the purchaser's running total at the bottom of the invoice. Payments were made on a continuing basis by Hatfield in varying amounts, and rarely in an exact amount to correspond to the total on an invoice. That is, Bill's Nursery maintained a running balance of its account with Hillside, sometimes totalling as much as $20,000.00. Each time she made a payment to Hillside, Debra Ludewig wrote the invoice number on the check. Sometimes more than one check would reflect a single invoice number. After October 1989, Debra Ludewig started deducting the repair bill portion of the invoices when she computed her payments to Hillside. She did this on her own initiative, without direction from Hatfield, because she understood that the 1/2 cent price increase was to cover the repairs. She did not question why the repair bills were being sent and were still being included on the invoices; she just deducted them without any notice to Hillside. In the meantime, the invoices kept coming from Hillside, showing the running balance on Hatfield's account. The top of the invoices reflected the prior outstanding balance, then payments since the last invoice, then additional charges for sod, then repair orders (if any), and then the total amount outstanding. It is clear from the invoices maintained by Hillside and provided to Hatfield, that Hillside was applying Hatfield's checks to the total outstanding balance, which balance included any repair bills, as well as sod delivered. On the other hand, the invoice numbers referenced on Hatfield's checks to Hillside substantiate that Ms. Ludewig was unilaterally deducting sums from certain invoices, which sums corresponded to the amounts being charged for repairs. It is not clear that Hillside was aware of the bookkeeping discrepancy, as nothing was said about deducting the repair bills until the parties' relationship came to an end in June 1990. Hatfield found a new sod producer, claiming that a customer complained about the quality of Hillside's sod. The total amount of repairs charged by Hillside to Hatfield between October 1, 1989, and June 1990, was $7150.25, compared to approximately $300,000.00 for sod,. The final invoice from Hillside to Bill's Landscaping reflected a total balance due of $13,872.59. This invoice #14070 is dated June 18, 1990. On June 21, 1990 and June 29, 1990, payments were made by Hatfield in the amounts of $3,000.70 and $4,641.00 respectively. This left a balance due of $6,230.89. Avery Wisdom concedes that this total should be adjusted: an invoice #13256 (9/22/89) charged $4.50 sales tax in error, and invoice #13406 (11/13/89) included a math error in the amount of $206.70. The proper adjusted total is $6,019.69. The last invoice to include repairs to equipment is dated April 16, 1990. After that date, according to invoices dated from April 23, 1990 to June 18, 1990, Hatfield purchased $39,943.98 in sod from Hillside. The most recent $6,019.69, therefore, is not attributable to repairs.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Department enter its final order finding Respondent indebted to Petitioner in the amount of $6,019.69 and requiring payment within fifteen (15) days after the order becomes final as provided in Section 604.21(7), F.S. DONE and ORDERED this 9th day of April, 1991, in Tallahassee, Florida. MARY CLARK 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 9th day of April, 1991. COPIES FURNISHED: Avery P. Wisdom, President Hillside Sod Farms, Inc. 1620 E. State Road 46 Geneva, FL 32732 Bill Hatfield, President Bill Hatfield Enterprises, Inc. d/b/a Bills Landscaping 1116 State Road 434 Winter Springs, FL 32708 Ohio Casualty Insurance Company 136 North Third Street Hamilton, OH 45025 Clinton H. Coulter, Jr., Senior Counsel Dept. of Agriculture & Consumer Services 515 Mayo Building Tallahassee, FL 32399-0800 The Honorable Bob Crawford Commissioner of Agriculture Dept. of Agriculture & Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Dept. of Agriculture & Consumer Services 515 Mayo Building Tallahassee, FL 32399-0800
Findings Of Fact Jackson J. Salling was born on February 28, 2008, at Brandon Regional Hospital in Brandon, Florida. Jackson weighed 4,070 grams at birth. NICA retained Michael S. Duchowny, M.D., as its medical expert in pediatric neurology. Dr. Duchowny examined Jackson and reviewed his medical records. In an affidavit dated July 22, 2013, Dr. Duchowny opined as follows: Based upon the history provided to me and my physical and neurological examination of the child, and as further described in my evaluation report, I concluded that the child has a substantial mental impairment but does not evidence a substantial motor impairment. Further the medical records do not provide support for neurological injury of the brain or spinal cord acquired due to oxygen deprivation or mechanical injury. Rather, Jackson’s present neurological problems are prenatal in origin and unrelated to intrapartum or immediate post-delivery events. * * * It is my medical opinion that Jackson Salling has not suffered a birth-related neurological injury as defined by the provisions of Chapter 766, Florida Statutes, and the he therefore is not eligible for compensation under the Florida Birth-Related Neurological Injury Compensation Plan. NICA retained Donald Willis, M.D., as an expert in maternal-fetal medicine to review the medical records of Jackson and his mother. In an affidavit dated July 19, 2013, Dr. Willis opined: Jackson Salling was born by vaginal delivery after elective induction of labor at 39 weeks gestation. Delivery was complicated by a shoulder dystocia lasting three minutes which resulted in a fractured humerus bone. Umbilical cord gas was within normal limits, and did not suggest hypoxia at birth. The newborn was cyanotic, floppy, and without spontaneous respirations at birth. His one- minute Apgar score was 3. Bag and mask ventilation was given and the child quickly improved, with an Apgar score of 9 at five minutes and 9 at 10 minutes. Significant oxygen deprivation during labor and birth would be unlikely with normal Apgar scores of five and ten minutes. The fractured humerus required orthopedic management. No MRI or CT scan of the head was done. Based on my review of medical records, it is my opinion that there was no obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery, or the immediate post- delivery period. A review of the file does not show any opinions contrary to the opinions of Dr. Duchowny and Dr. Willis that Jackson did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate post-delivery period and that Jackson does not have substantial and permanent mental and physical impairments due to lack of oxygen or mechanical trauma are credited.
