00-004538N George Wilkinson And Kimberly Wilkinson, As Parents And Legal Guardians For Ashley C. Wilkinson, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, January 23, 2002.

Summary: Mother found to have been in labor when placenta abrupted, resulting in injury to the infant`s brain from oxygen deprivation. Accordingly, claim found to be compensable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE WILKINSON and KIMBERLY )

WILKINSON, as parents and )

natural guardians for ASHLEY C. )

WILKINSON, a minor, )

)

Petitioners, )

)

vs. ) Case No. 00 - 4538N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

THOMAS J. ARMBRUSTER, M.D. and )

SPRING HILL REGIONAL HOSPITAL, )

INC., )

)

Intervenors. )

)

FINAL ORDER

Pursuant to notice, the Di vision of Administrative Hearings,

by Administrative Law Judge William J. Kendrick, held a final

hearing in the above - styled case on September 13, 2001, and

November 15, 2001, by video teleconference, with sites in

Tallahassee and Tampa, Florida.

APPEARANC ES

For Petitioners: Matthew S. Mudano, Esquire

4144 North Armenia Avenue, Suite 300

Tampa, Florida 33607

For Respondent: Kenneth J. Plante, Esquire

Tana Duden Storey, Esqui re

Brewton, Plante & Plante, P.A.

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

and

B. Forest Hamilton, Esquire

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 102

Post Office Box 14567

Tallahassee, Florida 32 312

For Intervenor Thomas J. Armbruster, M.D.:

Ronald H. Josepher, Esquire

Josepher & Batteese, P.A.

First Union Center, Suite 1190

100 South Ashley Drive

Tampa, Florida 36602

For Intervenor Spring Hill Regional Hospital, Inc.:

Merrilee A. Jobes, Esquire

George, Hartz, Lundeen, Flagg, Fulmer,

Johnstone, King & Stevens

524 South Andrews Avenue

Justice Building, East, Third Floor

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

At issue in the proceeding is whether Ashley Wilkinson, a

mi nor, suffered an injury for which compensation should be

awarded under the Florida Birth - Related Neurological Injury

Compensation Plan.

PRELIMINARY STATEMENT

On November 2, 2000, George Wilkinson and

Kimberly Wilkinson, as parents and natural guardians of

Ashley Wilkinson (Ashley), a minor, filed a petition (claim) with

the Division of Administrative Hearings (DOAH) for compensation

under the Florida Birth - Related Neurological Injury Compensation

Plan (Plan).

DOAH served the Florida Birth - Related Neurologi cal Injury

Compensation Association (NICA) with a copy of the claim on

November 6, 2000, and on November 30, 2000, NICA gave notice that

it had "determined that such claim is not a 'birth - related

neurological injury' within the meaning of Section 766.302(2 ),

Florida Statutes," and requested that "an order [be entered]

setting a hearing in this case [on such issue]." Following

intervention by Thomas J. Armbruster, M.D., and Spring Hill

Regional Hospital, Inc., such a hearing was held on September 13,

2001, and November 15, 2001.

At hearing, Petitioners George Wilkinson and

Kimberly Wilkinson testified on their own behalf, and offered

additional testimony from Maryann Vause and Mary Pavan, M.D. (by

video deposition). Petitioners' Exhibit 1 (the medical recor ds

filed with DOAH on November 2, 2000), Exhibit 2 (the deposition

of Radhakishna Rao, M.D.), Exhibit 3A (the deposition of

Mary Pavan, M.D.), Exhibit 3B (the video deposition of

Mary Pavan, M.D.), Exhibit 4 (Physical Therapy Evaluation at All

Children's H ospital, May 8, 2001), Exhibit 5 (Occupational

Therapy Evaluation by Patricia Koltusz, dated July 13, 2001),

Exhibit 6 (Speech Language Evaluation by Joan E. Miesner, dated

May 10, 2001), and Exhibit 7 (an affidavit of Radhakrishna, M.D.,

dated June 25, 20 01) were received into evidence. Respondent

called no witnesses; however, Respondent's Exhibit 1 (the

deposition of Charles Kalstone, M.D.), Exhibit 2 (Neurological

Evaluation Report by Michael Duchowny, M.D., dated May 24, 2001),

and Exhibit 3 (correspon dence prepared by Michael Duchowny, M.D.,

dated July 18, 2001, with the exception of the last sentence of

the second paragraph of the letter) were received into evidence.

Intervenor Thomas J. Armbruster, M.D., testified on his own

behalf, and also offered the testimony of Robert Yelverton, M.D.

Intervenor Armbruster's Exhibit 1 (a report of Robert Yelverton,

M.D., dated July 5, 2001, and the curriculum vitae of

Robert Yelverton, M.D.) and Exhibit 2 (Spring Hill Regional

Hospital medical records for Kimber ly Wilkinson's admission of

July 10, 1996) were received into evidence. 1 Intervenor Spring

Hill Regional Hospital, Inc., called no witnesses and offered no

exhibits.

The transcript of the September 13, 2001, hearing was filed

September 28, 2001, and the t ranscript of the November 15, 2001,

hearing was filed December 12, 2001. Consequently, the parties

were initially accorded 10 days from December 12, 2001, to file

proposed final orders; however, at the request of Intervenor

Armbruster, the time was subseq uently extended so that his

proposal final order, filed January 7, 2001, could be considered.

The parties' proposals have been duly considered.

FINDINGS OF FACT

Fundamental findings

1. Petitioners, George Wilkinson and Kimberly Wilkinson,

are the par ents and natural guardians of Ashley C. Wilkinson, a

minor. Ashley was born a live infant on July 13, 1996, at Spring

Hill Regional Hospital, a hospital located in Spring Hill,

Florida, and her birth weight exceeded 2,500 grams.

2. The physician providin g obstetrical services at Ashley's

birth was Thomas J. Armbruster, M.D., who, at all times material

hereto, was a "participating physician" in the Florida Birth -

Related Neurological Injury Compensation Plan, as defined by

Section 766.302(7), Florida Statut es.

Mrs. Wilkinson's antepartum course and Ashley's birth

3. Mrs. Wilkinson's antepartum course was without

significant complication until July 10, 1996, when, at 6:40 p.m.,

with the fetus at 38 and 4/7 weeks gestation (estimated date of

delivery July 20, 1996), she presented at Spring Hill Regional

Hospital complaining of "bleeding [and] low pressure," and was

admitted to rule out labor.

4. At the time, external fetal monitoring revealed a

reassuring fetal heart rate in the 130 - beat per minute range, and

no contractions. Vaginal examination revealed the cervix at

1 centimeter, effacement at 20 percent, and the fetus at station

- 3, with the membranes intact.

5. Dr. Armbruster was paged, and at 7:15 p.m., visited

briefly with Mrs. Wilkinson. At that time , Dr. Armbruster

instructed staff to watch for contractions for another 30 minutes

and if none were observed, Mrs. Wilkinson could be discharged.

Thereafter, at 8:45 p.m., there being no evidence of contractions

or other change in status, Mrs. Wilkinson w as discharged, with

mother and fetus noted to be stable.

6. Insofar as the record reveals, Mrs. Wilkinson's

antepartum course continued without apparent complication until

approximately 12:01 a.m., July 13, 1996, when, while at home in

bed, her membrane s ruptured and, either contemporaneously or

shortly thereafter, she evidenced seizure activity (possibly

eclampic) and severe vaginal bleeding. 2 Mrs. Wilkinson's husband

immediately called 911.

7. Pasco County Fire Rescue responded to the emergency

call. On arrival, fire rescue personnel witnessed Mrs. Wilkinson

thrashing about in bed, and observed a large amount of blood on

the bed and in her vaginal area. The Pasco County Fire Rescue

personnel further noted that:

. . . [Patient] combative, swinging ar ms

[and] attempting to bite . . . ABD firm,

soft. Restraints bilat[eral] wrists to

protect [patient]. O 2 by NRB held near face.

[Patient] remained combative, unable to

attempt IV. S[pring] H[ill] Reg[ional] ER

called to advise of possible emergent C

Se ction during response . . . .

8. Mrs. Wilkinson was transported by Pasco County Fire

Rescue to the Spring Hill Regional Hospital emergency room (ER)

where she arrived shortly after 1:00 a.m., July 13, 1996. 3 Upon

arrival, Mrs. Wilkinson was described as combative (scratching,

kicking and screaming), with no eye contact. At the time, heavy

bright red vaginal bleeding was noted, and Mrs. Wilkinson's

cervix was described as 1 to 2 centimeters dilated. Fetal

monitoring (from approximately 1:10 a.m. to 1:20 a.m.) revealed a

fetal heart rate of 120 to 130 beats per minute, with no

accelerations, and no evidence of uterine contractions; however,

because monitoring was sporatic and brief, the monitor strips

provide no compelling evidence as to the well - being of the fetus

or whether Mrs. Wilkinson was or was not in labor.

9. At approximately 1:20 a.m., ER personnel advised

Dr. Ambruster by phone, at home, of Mrs. Wilkinson's status.

Dr. Armbruster ordered that preparations be made for a stat

cesarean section.

1 0. At 1:45 a.m., Mrs. Wilkinson was taken to the operating

room, and at 2:11 a.m., Ashley was delivered by cesarean section.

Pertinent to this case, Dr. Armbruster's operative report noted

that:

. . . there appeared to be an approximately

30% abruptio p lacenta at the time of delivery

and also that the amniotic fluid was port

wine stained and that would be consistent

with the abruptio placenta. Whether the

cause be a straight abruptio or the eclampic

seizure was unknown. Otherwise the uterus,

tubes and ovaries were noted to be normal.

11. On delivery, Ashley was handed off to Dr. Mari Doherty,

the pediatrician in attendance. Dr. Doherty's progress notes

include the following observations:

. . . [On delivery, the baby] was bathed in

blood. [S]uctioned blood from mouth [and]

nares. Baby delivered [and] placed under

radient warmer [and] because of no

respirations [and] limp, the baby was given

PPV [with] 100 [percent] BVM for about 4 - 5

min[utes] intermittently . . . Baby's

breathing was labored [and] g runting; more

suctioning and chest PT improved the baby.

Suctioning done in between breaths . . .

Baby transported from the OR to the Nursery

[with] O 2 by mask . . . .

Apgars scores were recorded as 4, 7, and 8, at one, five, and ten

minutes respectivel y.

12. The Apgar scores assigned to Ashley are a numerical

expression of the condition of a newborn infant, and reflect the

sum points gained on assessment of heart rate, respiratory

effort, muscle tone, reflex/irritability, and color, with each

category being assigned a score ranging from the lowest score of

0 through a maximum score of 2. As noted, at one minute,

Ashley's Apgar score totaled 4, with heart rate being graded at

2, muscle tone and reflex/irritability being graded at 1 each,

and respiratory effort and color being graded at 0 each. At five

minutes, Ashley's Apgar score totaled 7, with heart rate and

reflex/irritability being graded at 2 each, and respiratory

effort, muscle tone, and color (with her body pink, but

extremities blue) being grad ed at 1 each. 4

13. At 2:30 a.m., Ashley was transported from the operating

room to the nursery. On admission, Ashley was placed on an

EKG/Apnea monitor; ABG, blood culture, and blood sugar testing

was ordered; and IV was started. At 2:45 a.m., when her oxygen

saturation levels were noted to fall, Ashley was deep suctioned

and given increased oxygen.

14. Between 2:45 a.m., and 7:55 a.m., Ashley's oxygen

saturation levels continued to drop periodically, and she was

noted to be cyanotic on occasion. At 5: 30 a.m., Ashley was again

suctioned, producing approximately 5cc of bloody mucus, and

during the early morning hours was noted to be very jittery and

irritable, with occasional arching of the back and stiff

extremities, and was medicated with Phenobarbital . Given her

condition, Ashley was transferred, at or about 7:55 a.m., to All

Children's Hospital where she was reportedly in a coma for two

weeks. 5 Currently, Ashley presents with static encephalopathy

(status post hypoxic ischemic encephalopathy), chara cterized by

spastic quadriplegia, global developmental delay, and seizure

disorder, as well as gastroesophageal reflux.

Coverage under the Plan

15. Pertinent to this case, coverage is afforded by the

Plan for infants who suffer a "birth - related neurologi cal

injury," defined as an "injury to the brain . . . caused by

oxygen deprivation . . . occurring in the course of labor,

delivery, or resuscitation in the immediate post - delivery period

in a hospital, which renders the infant permanently and

substantiall y mentally and physically impaired." Sections

766.302(2) and 766.309(1)(a), Florida Statutes.

16. Here, there is no serious dispute that Ashley suffered

an injury to the brain, caused by oxygen deprivation, secondary

to placental abruption. There is lik ewise no serious dispute

that the injury Ashley suffered rendered her permanently and

substantially mentally and physically impaired. 6 What is at

issue, is whether the asphyxia which precipitated her injury

occurred "in the course of labor, delivery, or r esuscitation in

the immediate post - delivery period in a hospital," as required to

qualify for coverage under the Plan.

17. To address the issue, the parties offered selected

medical records relating to Mrs. Wilkinson's antepartum course,

as well as those associated with Ashley's birth and subsequent

development. Additionally, Petitioners offered the deposition

testimony of Radhakrishna Rao, M.D., a pediatric neurologist

(board - eligible in pediatrics and pediatric neurology).

Petitioners also offered the testimony of Mrs. Wilkinson which,

if credited, would demonstrate that commencing at or about noon,

July 12, 1996, she began to experience regular uterine

contractions approximately 10 minutes apart, and that the

contractions continued throughout the day p rogressing to

approximately 8 minutes apart by 3:30 p.m., and approximately 6

minutes apart by 7:30 p.m. Respondent offered the deposition

testimony of Charles Kalstone, M.D., a physician board - certified

in obstetrics and gynecology, and Intervenor Armbru ster offered

his own testimony, as well as the testimony of Robert Yelverton,

M.D., a physician board - certified in obstetrics and gynecology.

18. The medical records and the testimony of the physicians

and other witnesses offered by the parties have bee n carefully

considered. So considered, it must be concluded, by application

of the presumption established by Section 766.309(1)(a), Florida

Statutes, or otherwise, that the brain injury suffered by Ashley

was caused by oxygen deprivation occurring in the course of

labor, delivery, or resuscitation in the immediate post - delivery

period in the hospital. 7

19. In reaching such conclusion, it has been helpful to

initially identify those matters on which the medical experts

share a commonality of opinion. Suc h matters include an opinion

that Ashley's brain injury was caused by oxygen deprivation,

secondary to placental abruption; that such deprivation started

at some time following abruption and continued until she was

resuscitated, following delivery; and tha t, given the record in

this case, one cannot resolve where on that time line (whether at

the onset of the abruption or at some other definitive point

through resuscitation) hypoxia of a sufficient magnitude occurred

to account for the severe brain injury A shley suffered. The

experts are also in agreement that the hospital records relating

to Ashley's birth provide little or no help in resolving the

issue of whether Mrs. Wilkinson was in labor at the time of

placental abruption or thereafter. In this regar d, it is noted

that there is no serious disagreement that the fetal monitoring

which occurred following Mrs. Wilkinson's arrival at the

emergency room (from approximately 1:10 a.m. to 1:20 a.m.) was

inadequate to provide any compelling evidence as to wheth er

Mrs. Wilkinson was or was not in labor. Moreover, it is worthy

of note that the experts agree that, given the emergent nature of

Mrs. Wilkinson's presentation, it was not pertinent to her

clinical management to resolve whether she was in labor but,

rat her, to delivery Ashley as soon as possible. Consequently,

the absence of evidence in the hospital records regarding labor

is not meaningful. 8

20. Having explored the areas on which the experts are in

agreement, it is timely to consider, without referenc e to

Mrs. Wilkinson's testimony regarding the onset of labor, the

opinions of the experts offered on behalf of Intervenor

Armbruster regarding the onset of labor, contrasted with the

opinions of the expert offered by Respondent. 9 As will be noted,

there i s little in the testimony of these physicians to credibly

resolve, without reference to Mrs. Wilkinson's testimony, when,

if ever Mrs. Wilkinson entered labor.

21. Dr. Yelverton, an expert called by Intervenor

Armbruster, expressed his opinion on the ques tion of labor, as

follows:

Q. Did you find any evidence in the record,

Dr. Yelverton, that the patient was in labor

with respect to any of the health care

providers that had been treating her at the

hospital?

* * *

A. There's one comment on the sum mary of the

labor and delivery which states that the

patient was in labor and the labor began 0001

hours on July 13th, 1996. This was a summary

of the labor and delivery record that was

recorded by a registered nurse whose name is

illegible to me.[ 10 ]

* * *

Q. In addition to the nurse's note that

you've pointed out to Judge Kendrick about

labor, did you find any other evidence in the

record that the mother was in labor,

including the fact that she had an abruptio

placenta?

A. Well, I think given a more likely than

not scenario in this case, when events of

this nature occur at home, or even in the

hospital, and they result in a spontaneous

rupture of membranes with a great deal of

blood present at the time, either there were

some contractions that d isrupted the placenta

or a spontaneous rupture in the membrane

which resulted in the contraction of the

uterus itself which resulted in the

abruption.

Either way, more likely than not, there was

some uterine activity that resulted in either

spontaneous ru pture of the membranes or the

abruption itself.

Q. Do you have an opinion within reasonable

medical probability or more likely than not,

based upon your background, training and

experience and your review of the materials

about whether or not Ms. Wilkins on was, in

fact, in labor?

A. I think more likely than not, she was in

labor. I failed to mention also that she was

two centimeters dilated when she arrived at

the hospital with ruptured membrane, vaginal

bleeding. It would be very unusual to find

that particular scenario with a patient not

having uterine contractions.

[Transcript of September 13, 2001, hearing, at pages 48, 49, 52

and 53.]

22. Dr. Yelverton's opinion that, without consideration of

Mrs. Wilkinson's testimony, Mrs. Wilkinson was in labor at the

time of abruption is not persuasive. First, it is noted that at

admission to the ER, Mrs. Wilkinson was not noted to be 2

centimeters dilated but, rather 1 to 2 centimeters dilated.

Given that she was 1 centimeter dilated on July 10, 1996, a nd not

in labor; the subjective nature of the examination; the

circumstances under which it was done; and the fact that the

examination of July 13, 1996, noting a range of 1 to 2

centimeters was apparently made by a different person than the

one who made t he observation on July 10, 1996; the difference in

dilations is not compelling evidence of labor. Second,

Dr. Yelverton's suggestion that "some uterine activity" must have

"resulted in either spontaneous rupture of the membranes or the

abruption itself," is hardly persuasive evidence of labor (the

onset of regular uterine contractions), and ignores, inter alia ,

the equally plausible alternative that the abruption was

spontaneous or that it was precipitated by the seizure

Mrs. Wilkinson suffered.

23. Dr. A rmbruster, who testified on behalf of himself,

expressed his opinion on the question of labor, as follows:

Q. . . . [W]as there any evidence in the

records that you're aware of that . . .

indicate[d] that . . . the mother . . . was

in labor, or have you h ad a chance to re -

review the records recently?

A. Yes. One, she did complain of abdominal

pain, which, of course, is associated with

labor, and, two, her cervix had dilated. She

was two centimeters from one centimeter when

she came in two days prior, a nd she had

effaced. Her cervix had thinned out from 20

percent to 80 percent, therefore, some sort

of labor had to be going on during the two

intervening days.

Q. Would you explain that in a little bit

more detail by the progression of cervical

dilatati on and progression of effacement in

the face of contractions indicating to you

that labor was ongoing?

A. All right. We have many definitions of

what labor is or we discuss what labor is,

but most doctors agree true labor is the

changing of a cervix in dilatation and the

effacing or thinning out of a cervix. So

most doctors or most

obstetrician/gynecologists will agree upon

the fact that if there is a change in the

cervix, whether it be effacement or

dilatation, that is the definition of labor.

In this case, Ms. Wilkinson showed both a

change in dilatation and effacement.

Q. Do you have an opinion within a

reasonable medical probability, based upon

your background, training and experience,

your involvement with this patient and your

review of the reco rds about whether or not

Ms. Wilkinson was in true labor from the time

that the abruptio placenta occurred up

through the delivery of the child?

A. In my opinion, she was in labor from the

time of the abruptio to the time I did the C

section, both with t he pain she showed and

also the change in the cervix and with

effacement and dilatation, that is correct.

* * *

Q. But based upon the records alone, do you

believe that she was in labor?

A. Without a doubt, I believe she was in

labor at the time o f the abruption of the

placenta.

Q. And regardless of the records, just based

on your own experience with patients with

abruptio placentas and the consequent

bleeding causing uterine irritability and

contraction, do you believe she was in labor

based on that experience?

A. I believe that she was in labor for two

reasons, and I've stated them prior: One,

she did complain of abdominal pain, and; two,

that there was a change in the cervix with

both -- in change of dilatation and

effacement . . . .

[Tra nscript of September 13, 2001, hearing, pages 89 - 92.]

24. Dr. Armbruster's opinion that, without consideration of

Mrs. Wilkinson's testimony, Mrs. Wilkinson was in labor at the

time of abruption is also not persuasive. First, Mrs. Wilkinson

was not, as Dr. Armbruster states, 2 centimeters dilated when she

presented to the ER on July 13, 1996, and, for reasons heretofore

noted, the change in dilation noted is not persuasive proof of

labor. Second, Dr. Armbruster's testimony that on presentation

to the ER on July 13, 1996, "[h]er cervix had thinned out from 20

percent [noted on July 10, 1996] to 80 percent" finds no record

support, and his testimony that he has a clear recollection of

her effacement on July 13, 1996, without benefit of any

contemporaneous notation of such observation, is improbable and

unworthy of belief. 11

25. Dr. Kalstone, who testified on behalf of NICA,

expressed his opinion on the question of labor, as follows:

Q. . . . Doctor, based upon your training

and experience and review of th is file, were

you able to reach any conclusions whether or

not the records demonstrated to you that

Ashley Wilkinson sustained . . . oxygen

deprivation during the course of her delivery

or immediate resuscitation?

A. Yes. My opinion was that she was not in

labor, essentially, and therefore, she didn't

suffer from oxygen deprivation during labor,

and certainly during labor or resuscitation

in the immediate post - delivery period.

Q. Doctor, please explain the basis for that

opinion.

A. The patient was a t approximately 39 weeks

pregnant and her husband woke up to find her

having a major seizure, it sounds like, in

bed, and simultaneously her membranes

ruptured spontaneously.

She had severe hemorrhage from the vagina,

which later turned out to be proven t o be

from a placental abruption.

There is no mention that the patient was in

labor or that she was having contractions, by

anyone that took care of her or was with her.

She was transported in a timely way to Spring

Hill Regional Hospital where the nurse who

admitted her noticed that she was actively

bleeding and that she was agitated and

combative.

She was prepared for an emergency cesarean

section.

* * *

Now, in the doctor's written and dictated

notes, including the summary, there doesn't

seem to be any mention or consideration that

she was in labor, and there was nothing in

the nurses' notes that would lead me to

believe that she was in labor, either.

The doctor said that the cervix was one to

two centimeters dilated when checked in the

emergency room.

She had one previous vaginal delivery and one

to two centimeters doesn't mean necessarily

that the patient was in labor.

There is no mention as to whether the cervix

was effaced.

* * *

So, in reviewing all this information, there

was no re ason to suggest that the patient was

in labor.

* * *

Q. Doctor, did you have an occasion to

review the fetal monitor strips?

A. Yes. On the fetal monitoring strips --

they start monitoring shortly before 1:10

a.m., and ended shortly before 1:20.

On the fetal monitor strips the fetal heart

wasn't recorded continuously.

The rate was around 120 to 130. There were

no accelerations, but the fetus was monitored

for a short period of time. So, I can't

really tell if that tracing is normal or

abnorm al.

In regards to the uterine - activity part of

the tracing, that was monitored for part of

that time and I didn't see any evidence of

uterine contractions that were recorded on

these fetal monitor strips for the time that

the patient was on the monitor.

Q. Doctor, do you believe that the abruption

of the placenta occurred before

Mrs. Wilkinson commenced labor?

A. Yes. I don't think she really commenced

labor.

The placenta definitely abrupted at home. It

was a sudden event, catastrophic event that

o ccurred while she was in bed, maybe

concomitant with when the membranes ruptured,

that they both happened about the same time.

Placentas do abrupt during labor, but they

can also abrupt without labor, and it is my

opinion that this patient went to bed fin e,

essentially, and then had two major things

happen to her.

One, she had a seizure; and two, her placenta

abrupted. Simultaneously, the membranes

ruptured . . .

* * *

Q. Based upon your review of the records,

more likely than not did the baby's mother

actually go into labor at all before she was

born?

* * *

As I said before, there is really no evidence

that I can see from nursing notes, the

doctor's dictation or the patient history

that was obtained, through the husband

mostly, I think, to suggest that labor was

the culprit or that she was in labor . . . .

[Respondent's Exhibit 1, pages 7 - 12]

26. Dr. Kalstone's opinion that, based on the available

antepartum records, Mrs. Wilkinson was not in labor when she

presented at Spring Hill Regi onal Hospital is credible; however,

given that the records are limited in scope, given the emergent

nature of Mrs. Wilkinson's presentation, and given the absence of

any reason to document labor, any opinion based on those records

is inadequate to rebut th e presumption of labor established by

Section 766.309(1)(a), Florida Statutes.

27. Finally, addressing Mrs. Wilkinson's testimony

regarding the onset of labor at or about noon, July 12, 1996, it

must be resolved, contrary to Respondent's contention, that there

is no compelling reason to reject her testimony as less than

credible. Consequently, it may be said that the record supports

the conclusion that, by application of the presumption

established by Section 766.309(1)(a), Florida Statutes, or

otherwise, that the brain injury Ashley suffered was caused by

oxygen deprivation occurring in the course of labor, delivery, or

resuscitation in the immediate post - delivery period in the

hospital.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of, this

proceeding. Section 766.301, et seq. , Florida Statutes.

29. The Florida Birth - Related Neurological Injury

Compensation Plan (the "Plan") was established by the Legislature

"for the purpos e of providing compensation, irrespective of

fault, for birth - related neurological injury claims" relating to

births occurring on or after January 1, 1989. Section

766.303(1), Florida Statutes.

30. The injured "infant, his personal representative,

parent s, dependents, and next of kin," may seek compensation

under the Plan by filing a claim for compensation with the

Division of Administrative Hearings. Sections 766.302(3),

766.303(2), 766.305(1), and 766.313, Florida Statutes. The

Florida Birth - Related N eurological Injury Compensation

Association (NICA), which administers the Plan, has "45 days from

the date of service of a complete claim . . . in which to file a

response to the petition and to submit relevant written

information relating to the issue of whether the injury is a

birth - related neurological injury." Section 766.305(3), Florida

Statutes.

31. If NICA determines that the injury alleged in a claim

is a compensable birth - related neurological injury, it may award

compensation to the claimant, pro vided that the award is approved

by the administrative law judge to whom the claim has been

assigned. Section 766.305(6), Florida Statutes. If, on the

other hand, NICA disputes the claim, as it has in the instant

case, the dispute must be resolved by the assigned administrative

law judge in accordance with the provisions of Chapter 120,

Florida Statutes. Sections 766.304, 766.307, 766.309, and

766.31, Florida Statutes.

32. In discharging this responsibility, the administrative

law judge must make the fo llowing determination based upon the

available evidence:

(a) Whether the injury claimed is a birth -

related neurological injury. If the claimant

has demonstrated, to the satisfaction of the

administrative law judge, that the infant has

sustained a brain or spinal cord injury

caused by oxygen deprivation or mechanical

injury and that the infant was thereby

rendered permanently and substantially

mentally and physically impaired, a

rebuttable presumption shall arise that the

injury is a birth - related neurol ogical injury

as defined in s. 766.303(2).

(b) Whether obstetrical services were

delivered by a participating physician in the

course of labor, delivery, or resuscitation

in the immediate post - delivery period in a

hospital; or by a certified nurse midw ife in

a teaching hospital supervised by a

participating physician in the course of

labor, delivery, or resuscitation in the

immediate post - delivery period in a hospital.

Section 766.309(1), Florida Statutes. An award may be sustained

only if the admin istrative law judge concludes that the "infant

has sustained a birth - related neurological injury and that

obstetrical services were delivered by a participating physician

at birth." Section 766.31(1), Florida Statutes.

33. Pertinent to this case, "birth - related neurological

injury" is defined by Section 766.302(2), Florida Statutes, to

mean:

. . . injury to the brain or spinal cord of a

live infant weighing at least 2,500 grams at

birth caused by oxygen deprivation or

mechanical injury occurring in the co urse of

labor, delivery, or resuscitation in the

immediate post - delivery period in a hospital,

which renders the infant permanently and

substantially mentally and physically

impaired. This definition shall apply to

live births only and shall not include

d isability or death caused by genetic or

congenital abnormality.

34. As the claimants, the burden rested on Petitioners to

demonstrate entitlement to compensation. Section 766.309(1)(a),

Florida Statutes. See also Balino v. Department of Health and

Reha bilitative Services , 348 So. 2d 349, 350 (Fla. 1st DCA 1977),

("[T]he burden of proof, apart from statute, is on the party

asserting the affirmative issue before an administrative

tribunal.")

35. Here, it has been established that the physician who

provi ded obstetrical services at birth was a "participating

physician," as that term is defined by the Plan, and that Ashley

suffered a "birth - related neurological injury," as that term is

defined by the Plan. Consequently, Ashley qualifies for coverage

under the Plan. Section 766.309, Florida Statutes. 12

36. Where, as here, the administrative law judge determines

that "the infant has sustained a birth - related neurological

injury and that obstetrical services were delivered by a

participating physician at bir th," the administrative law judge

is required to make a determination as to "how much compensation,

if any, is to be awarded pursuant to s. 766.31." Section

766.309(1)(c), Florida Statutes. In this case, the issues of

compensability and the amount of com pensation to be awarded were

bifurcated. Accordingly, absent agreement by the parties, a

further hearing will be necessary to resolve any existing

disputes regarding "actual expenses," the amount and manner of

payment of "an award to the parents or natura l guardians," and

the "reasonable expenses incurred in connection with the filing

of the claim." Section 766.31(1), Florida Statutes.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the petition for compens ation filed by

George Wilkinson and Kimberly Wilkinson, as parents and natural

guardians of Ashley Wilkinson, a minor, be and the same is hereby

approved.

IT IS FURTHER ORDERED that:

1. NICA shall make immediate payment for all expenses

previously incurr ed and all future expenses as incurred.

2. George Wilkinson and Kimberly Wilkinson, as parents and

natural guardians of Ashley Wilkinson, a minor, are entitled to

an award of up to $100,000. The parties are accorded 45 days

from the date of this order to resolve, subject to approval by

the administrative law judge, the amount and manner in which the

award should be paid. If not resolved within such period, the

parties will so advise the administrative law judge, and a

hearing will be scheduled to resolve such issue.

3. Petitioners are entitled to an award of reasonable

expenses incurred in connection with the filing of the claim,

including reasonable attorney's fees. The parties are accorded

45 days from the date of this order to resolve, subject to

ap proval by the administrative law judge, the amount of such

award. If not resolved within such period, the parties will so

advise the administrative law judge, and a hearing will be

scheduled to resolve such issue.

IT IS FURTHER ORDERED that pursuant to Se ction 766.312,

Florida Statutes, jurisdiction is reserved to resolve any

disputes, should they arise, regarding the parties' compliance

with the terms of this Final Order.

DONE AND ORDERED this 23rd day of January, 2002, in

Tallahassee, Leon County, Flori da.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing ( 850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of January, 2002.

EN DNOTES

1/ Intervenor Armbruster's Exhibit 2 was received into evidence

by Order of October 25, 2001.

2/ The record is conflicting as to the timing of these events.

According to Mr. and Mrs. Wilkinson's testimony, the events

occurred between 11:00 p.m. , and 11:30 p.m., July 12, 1996;

however, the Delivery Record at Spring Hill Regional Hospital

dates rupture of membranes at 12:01 a.m., July 13, 1996. The

Pasco County Fire Rescue report does not reflect either the time

that the emergency call was receiv ed or the time that the

emergency unit arrived at Petitioners' home. Here, given the

rapid response of the Pasco County Fire unit, the emergent nature

of the situation, the brevity of time the unit spent at

Petitioners' house, and the proximity of Petitio ners' house to

the hospital, it is more likely that the events occurred at

12:01 a.m., July 13, 1996, as noted in the hospital records.

3/ The Delivery Record reflects a time of admission of

1:20 a.m.; however, that was the time at which Mrs. Wilkinson w as

formally admitted to the obstetrics unit and does not represent

the time she initially presented at the hospital.

4/ The record does not disclose the grading of Ashley's ten

minute Apgar score.

5/ On discharge from Spring Hill Regional Hospital, di agnoses

included infant of diabetic mother, respiratory distress

syndrome, respiratory depression, hypoglycemia, medabolic

acidosis, and neonatal abstinence syndrome.

6/ The medical records and expert testimony presented in this

case demonstrate that Ash ley suffered an injury to the brain,

caused by oxygen deprivation, secondary to placental abruption,

which rendered her permanently and substantially mentally and

physically impaired. Respondent concedes it presented no

evidence that would suggest otherwi se. (Respondent's proposed

final order, paragraphs 3 and 4).

7/ Where, as here, the proof demonstrates that the infant

suffered an injury to the brain caused by oxygen deprivation that

rendered the infant permanently and substantially mentally and

physi cally impaired, the claimants are entitled to the benefit of

a rebuttable presumption that the injury is a "birth - related

neurological injury." Section 766.309(1)(a), Florida Statutes.

Essentially, the presumption is that the injury was caused by

oxygen deprivation "occurring in the course of labor, delivery,

or resuscitation in the immediately post - delivery period in a

hospital."

8/ The only direct reference to labor in the hospital records is

contained on the Delivery Record. There, in a chronology

apparently written by an attending nurse at delivery, labor is

noted to have begun at 12:01 a.m., July 13, 1996,

contemporaneously with rupture of the membranes. Under the

circumstances of this case, and there being no explanation

regarding the assumption s or information on which it was based,

such entry is of little value in resolving the issue of when, if

ever, Mrs. Wilkinson was in labor.

9/ Petitioners also offered testimony through the deposition of

Radhakrishna Rao, M.D., Ashley's treating pediatri c neurologist,

which included opinions with regard to the cause and severity of

Ashley's brain injury, as well as whether Mrs. Wilkinson was in

labor at the time of such injury. Dr. Rao's opinions regarding

the cause and severity of Ashley's injury were p ersuasive and

credible; however, his opinions regarding whether Mrs. Wilkinson

was or was not in labor were less than compelling.

10/ Id. , endnote 8.

11/ At the hearing of September 13, 2001, Dr. Armbruster

testified that the records indicated that Mrs. Wilkinson's cervix

had thinned out from 20 percent (on July 10, 1996) to 80 percent

(on July 13, 1996). However, when challenged to identify any

record support for his statement he was unable to do so, and

thereafter testified (on November 15, 2001) that he had an

independent recollection of such facts. As heretofore noted,

Dr. Armbruster's testimony is inherently improbable (given his

active practice and the passage of time) and unworthy of belief.

12/ In its proposed final order, NICA suggests th at even were

Mrs. Wilkinson in labor, that Ashley's brain injury was caused by

oxygen deprivation suffered prior to admission to Spring Hill

Regional Hospital and therefore was not a "birth - related

neurological injury," as defined by the Plan. Pertinent t o that

argument, NICA points to the definition of "birth - related

neurological injury" contained in Section 766.302(2), Florida

Statutes, which defines a "birth - related neurological injury" as

an "injury to the brain . . . caused by oxygen deprivation . . .

occurring in the course of labor, delivery, or resuscitation in

the immediate post - delivery period in a hospital." Here, NICA

suggests that such provision should be read to mean that if the

injury or its precipitating cause occur during labor, labor must

occur in a hospital if the injury is to be covered by the Plan.

NICA's interpretation of the statute is rejected. Telophase

Society of Florida, Inc. v. State Board of Funeral Directors and

Embalmers , 334 So. 2d 563 (Fla. 1976)(Word "or" when used in a

s tatute is generally to be construed in the disjunctive), Rich

Electronics, Inc. v. Southern Bell Tel. & Tel. Co. , 523 So. 2d

670 (Fla. 3d DCA 1988)(Rule of statutory construction is that

relative or qualifying phrase is to be construed as referring to

its nearest antecedent), Kirksey v. State , 433 So. 2d 1236 (Fla.

1st DCA 1983)(Under "doctrine of last antecedent," relative and

qualifying words, phrases and clauses are to be applied to words

or phrases immediately preceding, and are not to be construed as

e xtending to or including others more remote), and Brown v.

Brown , 432 So. 2d 704 (Fla. 3d DCA 1983)(Relative or qualifying

phrase is to be construed as referring to its nearest

antecedent).

COPIES FURNISHED:

(By certified mail)

Matthew S. Mudano, Esqu ire

4144 North Armenia Avenue, Suite 300

Tampa, Florida 33607

Lynn Larson, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32312

B. Forest Hamilton, Esquire

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 102

Post Office Box 14567

Tallahassee, Florida 32312

Kenneth J. Plante, Esquire

Tana Duden Storey, Esquire

Brewton, Plante & P lante, P.A.

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

Ronald H. Josepher, Esquire

Josepher & Batteese, P.A.

First Union Center, Suite 1190

100 South Ashley Drive

Tampa, Florida 36602

Merrilee A. Jobes, Esquire

George, Hartz, Lundeen, Flagg, Fulmer,

Johnstone, King & Stevens

524 South Andrews Avenue

Justice Building, East, Third Floor

Fort Lauderdale, Florida 33301

Thomas J. Armbruster, M.D.

1250 Mariner Boulevard

Spring Hill, Florida 34609

Spring Hill Regional Hospital

10461 Qua lity Drive

Spring Hill, Florida 34609

Ms. Charlene Willoughby

Agency for Health Care Administration

Consumer Services Unit

Post Office Box 14000

Tallahassee, Florida 32308

Mark Casteel, General Counsel

Department of Insurance

The Capitol, Lower Level 2 6

Tallahassee, Florida 32399 - 0300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this F inal O rder 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 appro priate 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. 1st DCA 1992). The Notice of

Appeal must be filed within 30 days of renditi on of the order to

be reviewed.