00-005133N Blane Earl Pearson And Janet Pearson, On Behalf Of And As Parents And Natural Guardians Of Blane Earl Pearson, Jr., A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, March 21, 2002.

Summary: Proof failed to demonstrate that infant`s brain injury was caused by oxygen deprivation or mechanical injury occurring in the course of labor or delivery. Therefore, claim was not compensable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BLANE EARL PEARSON and JANET )

PEARSON, as parents and natural )

guardians of BLANE EARL )

PEARSON, JR., a minor, )

)

Petitioners, )

)

vs. )

) Case No. 00 - 5133N

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings,

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

hearing in the above - styled case on December 6, 2001, in

Gainesville, Florida.

APPEARANCES

For Petitioners: Samuel Hankin, Esquire

305 Northeast First Street

Gainesville, Florida 32601

For Respondent: B. F orest Hamilton, Esquire

Post Office Box 38454

Tallahassee, Florida 32315 - 8454

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Blane Earl Pearson,

Jr., a minor, suffered an injury for which comp ensation should be

awarded under the Florida Birth - Related Neurological Injury

Compensation Plan.

PRELIMINARY STATEMENT

On December 22, 2000, Blane Earl Pearson and Janet Pearson,

as parents and natural guardians of Blane Earl Pearson, Jr.

(Blane), a mino r, 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 Neurological Injury

Compensation Associatio n (NICA) with a copy of the claim on

December 28, 2000. NICA reviewed the claim and on March 15,

2001, 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 Statu tes," and requested that "an

order [be entered] setting a hearing in this cause on the issue

of compensability." Such a hearing was held on December 6, 2001.

At hearing, the parties stipulated to the factual matters

set forth in paragraphs 1, 2 and 4 of t he Findings of Fact.

Petitioners presented the testimony of Janet Pearson and

Janet Luna, and Petitioners' Exhibit 1 (the medical records filed

with DOAH on December 22, 2000), and Petitioners' Exhibit 2

(fetal heart monitor strips filed with DOAH Septemb er 10, 2001),

Petitioners' Exhibit 3 (the deposition of Lynn Larson),

Petitioners' Exhibit 4 (remuneration records for Doctors

Michael Duchowny and Charles Kalstone, filed with DOAH

December 6, 2001) and Petitioners' Exhibit 5 (the deposition of

Laura Law, filed with DOAH January 23, 2002) 1 , were received into

evidence. Respondent's Exhibit 1 (the deposition of

Michael Duchowny, M.D.) and Respondent's Exhibit 2 (the

deposition of Charles Kalstone, M.D.) 2 were received into

evidence. No other witnesses wer e called, and no further

exhibits were offered.

The transcript of the hearing was filed January 2, 2002, and

the parties were accorded until February 15, 2002, to file

proposed final orders. Consequently, the requirement that a

final order be rendered wit hin 30 days after the transcript has

been filed was waived. Rule 28 - 106.216(2), Florida

Administrative Code. The parties elected to file such proposals,

and they have been duly considered.

FINDINGS OF FACT

Fundamental findings

1. Petitioners, Blane Earl Pearson and Janet Pearson, are

the parents and natural guardians of Blane Earl Pearson, Jr., a

minor. Blane was born a live infant on October 5, 1998, at

Shands at AHG (Alachua General Hospital), a hospital located in

Gainesville, Florida, and his bi rth weight exceeded 2,500 grams.

2. The physician providing obstetrical services at Blane's

birth was Bradley Williams, M.D., who, at all times material

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

Related Neurological Injury Compensation Plan, as defined by

Section 766.302(7), Florida Statutes.

Coverage under the Plan

3. Pertinent to this case, coverage is afforded under the

Plan for infants who suffer a "birth - related neurological

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

oxygen deprivation or mechanical injury occurring in the course

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

delivery period in a hospital, which renders the infant

permanently and substantially mentally and physically impaired."

Section s 766.302(2) and 766.301(1)(a), Florida Statutes.

4. Here, the parties have stipulated, and the proof

otherwise demonstrates, that Blane is permanently and

substantially mentally and physically impaired. What remains to

resolve is whether Blane's impairm ent is related to an injury to

the brain caused by oxygen deprivation or mechanical injury

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

the hospital.

Blane's birth

5. At or about 6:30 a.m., October 5, 1998, Mrs. Pearson

(with an estima ted date of delivery of October 10, 1998, and the

fetus at 39 weeks gestation) presented to Alachua General

Hospital for induction of labor. At the time, Mrs. Pearson's

membranes were noted as intact, and no contractions or vaginal

bleeding were observed . External fetal monitoring, which began

at 6:41 a.m., revealed a reassuring fetal heart rate.

6. Pitocin drip was started at 7:59 a.m., and by 9:19 a.m.,

Mrs. Pearson was experiencing irregular contractions. In the

interim, external fetal monitoring revealed a reassuring fetal

heart rate (in the 130 beat per minute range), with good

reactivity and variability. 3

7. Mrs. Pearson's labor progressed steadily, and at or

about 11:50 a.m., vaginal examination revealed the cervix at 3

centimeters dilation, e ffacement at 80 percent, and the fetus at

station - 1. At that time, the membranes were artificially

ruptured, with clear fluid noted, and Dr. Williams authorized an

epidural anesthesia. 4

8. Mrs. Pearson's labor continued to progress steadily, and

at 1:04 p.m., with the cervix at 10 centimeters dilation,

effacement at 100 percent, and the fetus at station ,

Dr. Williams was called and advised that Mrs. Pearson was

"complete and wanting to push." Dr. Williams announced he was

"on his way," arrived in the labor and delivery room at

1:18 p.m., and at 1:20 p.m., Blane was delivered spontaneously,

without incident.

9. On delivery, Blane was bulb - suctioned, accorded blowby

oxygen, dried, and moved to a radiant warmer. Initial newborn

assessment noted no appa rent abnormalities. Apgar scores were

recorded as 8 at one minute and 9 at five minutes.

10. The Apgar scores assigned to Blane are a numeric

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, Blane's

Apgar score totaled 8, with heart rate, respirator y effort,

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

color being graded at 0. At five minutes, Blane's Apgar score

totaled 9, with heart rate, respiratory effort, muscle tone, and

reflex irritability again being graded at 2 each, and color now

being graded at 1. Such score is considered good, and

inconsistent with recent hypoxic insult or trauma.

11. Following the initial newborn assessment, Blane was

examined by Karen Dees, an advanced registered nurse practitioner

(ARNP). On ex amination, Ms. Dees noted Blane as "active," and

her physical examination as "unremarkable" or stated otherwise,

within normal limits (WNL). Ms. Dees completed her examination

at or about 1:45 p.m., and executed the standard orders for

Blane's admission t o the newborn nursery.

12. Blane transitioned for a brief period with his mother

in the labor and delivery room and was then transferred to the

newborn nursery, where he apparently did well until 5:20 p.m.,

when he was noted with tachypnea (at a respirato ry rate of 68),

slight nasal flaring, and respirations that appeared irregular.

Questionable circumoral cyanosis was noted, with quick return to

pink.

13. Blane was transported to the neonatal intensive care

unit (NICU) for evaluation by NICU staff. A t the time, he again

evidenced circumoral cyanosis, as well as an apneic episode, and

was provided blowby oxygen and stimulation, with quick return to

pink.

14. Blane was admitted to NICU (for further management and

observation), and placed on monitors an d under an oxyhood. Labs

were ordered (BC, ABG, and CBC with differential), and

antibiotics (ampicillen and gentamicin) were prescribed for

suspected sepsis.

15. During the late afternoon and early evening, Blane was

noted with several more apneic episod es, followed by tachypnea.

And, at 8:00 p.m., Blane was noted to exhibit extensioned

extremities, hypotonia, weak grasp, and deep to shallow irregular

non - labored respirations.

16. At 9:00 p.m., Blane experienced a long apneic spell

requiring stimulati on. No obvious seizure activity was noted,

but his eyes deviated to the left. The impression was apnea of

unknown etiology, respiratory distress of unknown etiology, and

possibly intraventricular hemorrhage (IVH), seizures, and

hypocalcemia. The Plan wa s to continue antibiotics and to

perform a cranial ultrasound (to rule out a bleed).

17. The cranial ultrasound was done at 11:00 p.m., and read

as follows:

HISTORY: Apneic spells and possible seizure

activity. Evaluation for intracranial

hemorrhage i n a full term, newborn infant.

FINDINGS: The intracranial, supratentorial

structures are well delineated and exhibit no

apparent hemorrhage or mass effect. The

ventricles are not enlarged. The posterior

fossa structures are seen best sagittally and

app ear unremarkable.

IMPRESSION: NO HEMORRHAGE IDENTIFIED

During the ultrasound, Blane had another apneic episode,

requiring ambu bagging.

18. At 1:00 a.m., October 6, 1998, Blane was given

phenobarbital for suspected seizure activity, and at 1:30 a.m.,

he was intubated and placed on a ventilator because of multiple

apneic episodes. Later that morning, at or about 9:00 a.m.,

Blane was transferred to Shands Hospital at the University of

Florida (Shands Hospital), a level 3 neonatal intensive care

facilit y, where he remained until October 17, 1998, when he was

discharged to his mother's care.

19. While admitted to Shands Hospital, Blane underwent a

number of studies to identify the cause of his difficulties

(seizures/apnea). Among those studies was an EE G, as well as CT

of the head, done on October 6, 1998. The EEG was read, as

follows:

IMPRESSION: This is an abnormal EEG because

of the presence of sharp waves seen over the

frontocentral and temporal regions. This is

consistent with but not diagnostic of a

seizure disorder. In addition, positive

sharp waves are also noted over both temporal

regions. This is consistent with a diagnosis

of intraventricular hemorrhage or

periventricular leukomalacia.

The CT of the head was reported, as follows:

The peri pheral cortical areas in the ACA and

MCA distributions bilaterally have markedly

decreased attenuation and loss of cortical

sulci. These changes are most pronounced on

the right. There is no evidence for

intracranial hemorrhage. There is no

evidence of herniation at this time. The

basal ganglia, thalamus, and cerebellum are

intact.

IMPRESSION: T he peripheral cortical

territories in the ACA and MCA artery

distributions bilaterally have decreased

attenuation and loss of cortical sulci.

These changes ar e most pronounced on the

right and are compatible with an anoxic brain

injury.

20. A head UMR study was obtained on October 7, 1998, and

compared with the CT exam of October 6, 1998. The results were

reported, as follows:

FINDINGS: Cerebral M.R. stud y was obtained

10/7/98 and compared to the 10/6/98 CT exam.

There is diffuse cytogenic edema which is

comparable on the two studies and is not

evolved. The edema corresponds to lateral

cortical areas on the right side in the

middle cerebral artery zone a nd involves the

anterior suprasylvian, the anterior

infrasylvian and basal ganglion region on the

left side. This also appears to be involving

much of the middle cerebral artery zone on

the left side. The remainder of the brain

has less edema or no edema . The T1 - weighted

images are hyperintense in the basal ganglion

region on the right side, indicative of

coagulative necrosis in blood products, but

not distinct hematoma. The findings are

compatible with perfusion defects in the

middle cerebral artery zo nes bilaterally.

They do not appear to correspond to areas of

cortex to suggest trauma since the patient is

recently delivered. The remainder of the

examination is unremarkable. There is no

midline shift or downward herniation.

IMPRESSION: Evidence of diffuse cytogenic

edema in the middle cerebral artery zones

bilaterally as described above. Etiology is

not apparent.

Regarding the results of the scan, the attending neonatologist

noted "CT scan . . . grossly abnormal -- [consistent with] . . .

diffu se hypoxic/ischemic insult, of recent timing, although it is

not possible to pin down the exact timing."

21. Finally, at 7:57 a.m., October 15, 1998, Blane had a

final CT of the head to reassess his cerebral edema. That exam

was reported, as follows:

COM PARISON: Continuous axial CT images were

obtained of the brain. Those dated 10/15/98

are directly compared to prior dated 10/6/98.

FINDINGS: Again seen is ischemic

encephalopathy. Multiple vascular

territories show areas of ischemia/infarct.

The isch emic core now contains blood products

and radiographic appearance consistent with

coagulative necrosis. No hematoma is seen.

When compared to prior images there is

decreased edema with now visualization of the

lateral ventricles. Decreased mass effect

w hen compared to prior images is seen.

IMPRESSION: Known ischemic encephalopathy

with blood products now seen in the ischemic

core. Decreased edema. Less mass effect.

The cause and timing of Blane's brain injury

22. To address the issue of whether Bl ane's brain injury

was "caused by oxygen deprivation or mechanical injury occurring

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

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

coverage under the Plan, Petitioners offered medica l records

relating to Mrs. Pearson's antepartum and intrapartum course, as

well as Blane's birth and subsequent development. (Petitioners'

Exhibits 1 and 2). Portions of those records have been addressed

supra , and other salient portions of those records will be

addressed infra . Additionally, Petitioner Janet Pearson

testified on her own behalf, and offered the testimony of

Janet Luna (Mrs. Pearson's mother) and the deposition testimony

of Laura Law (Mrs. Pearson's sister). Respondent offered the

deposi tion testimony of Dr. Michael Duchowny, a physician board -

certified in pediatric neurology, and Dr. Charles Kalstone, a

physician board - certified in obstetrics and gynecology.

23. As for the cause and timing of Blane's brain injury, it

was Dr. Duchowny's opinion that the injury Blane suffered was,

more likely than not, intrauterine acquired, and attributable to

events which occurred prior to labor and delivery. In so

concluding, Dr. Duchowny observed that contrary to what one would

expect if Blane had su ffered a recent neurological injury, his

Apgar scores were good, his arterial blood gases were normal, and

he required no assistance other than blowby oxygen. It was also

Dr. Duchowny's opinion that Blane's brain injury was not caused

by oxygen deprivatio n or mechanical injury. (Respondent's

Exhibit 1, pages 25 and 26). As for the cause of Blane's injury,

it was Dr. Duchowny's opinion that it was most likely associated

with a stroke or series of strokes suffered late in term.

(Respondent's Exhibit 1, pa ges 23 and 24). For similar reasons,

Dr. Kalstone, like Dr. Duchowny, was of the opinion, based on his

review of the medical records, including the fetal monitor

strips, that Blane's presentation (during labor and delivery) was

not consistent with a brain injury caused by oxygen deprivation

or mechanical injury occurring in the course of labor, delivery,

or resuscitation. As for the cause, as well as the timing of

Blane's injury, Dr. Kalstone deferred to others, such as a

pediatric neurologist, who were m ore suited to address that

issue. (Respondent's Exhibit 2, page 14).

24. Petitioners did not offer any expert testimony to

support their view that Blane's brain injury was occasioned by

oxygen deprivation or mechanical injury occurring in the course

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

delivery period in the hospital. Petitioners did, however, offer

the testimony of Petitioner Janet Pearson, Janet Luna and

Laura Law on two matters: the actions of the nursing staff,

which they perc eived to be an effort to forestall Blane's

delivery; and their opinions regarding Blane's condition on

delivery. These matters, Petitioners believe, were not

considered by Respondent's experts (because they were not

contained within the medical records), and they contend such

matters compel the conclusion that Blane's injury was occasioned

by oxygen deprivation or mechanical injury occurring in the

course of labor, delivery, or resuscitation in the immediate

post - delivery period.

25. With regard to the first matter, Petitioner

Janet Pearson and her witnesses testified that a nurse gloved - up,

placed her hand inside Mrs. Pearson's vagina, and placed her hand

on Blane's head to forestall delivery until the doctor could

arrive. Petitioners suggest the nurse 's act was improper and may

have resulted in injury to Blane; however, they offered no

competent proof to support such contention. Indeed, the only

testimony on the matter was given by Doctors Kalstone and

Duchowny who observed that, under the circumstanc es of this case,

the nurse's action was unlikely to have caused any injury to

Blane. In this regard, Dr. Kalstone, responding to questions by

counsel for Petitioners observed:

Q. Let me ask you, Doctor, hypothetically,

assuming that at sometime during th e labor

that Blane was manipulated by one or more

nurses in such a fashion as to push his head

back into or farther up the birth canal,

assuming that type of manipulation, is that

the type of motor force that could cause an

injury?

* * *

A. If the n urses were trying to hold the

baby in, so to speak, then I wouldn't expect

it would cause significant damage like this

baby has. The kinds of damage that that

thing, that that kind of action can cause,

although I've never seen it, would be if

there was li ke intracranial hemorrhage that

caused the problem, that is actual trauma,

and its hard to traumatize a baby's head by

pushing it back up, but that would be one

mechanism, that if you caused an intracranial

hemorrhage, so to speak, and I didn't see any

evi dence of that in the record, in the CT

scan. There was nothing suspicious in the

baby's records that I could tell that that

was a brain hemorrhage, but that would be one

possible mechanism that one at least would

look for.

And the other would be if that in some way

can cause an oxygen deprivation, which I've

never seen it . . . [do] that, again, I

haven't seen this done that often, sometimes

we intentionally push a baby's head up when

the cord prolapses to keep them off the cord.

There's a decrease in th e fetal heart

sometimes by reflex when you push on the

baby's head, but it usually wouldn't cause

brain damage or significant problem, and if

it did, I would expect it, that the baby

would come out in poor condition if this

occurred right before the doctor arrived, but

this baby was born with an APGAR of 8 and 9

at one and five minutes, which were normal,

so I would think that if there was anything

that the nurses did that caused the oxygen

deprivation, that, first of all, I would

think that would be unlike ly that it would

cause that, just what they could be able to

do with their hands. And second of all, I

would think it wouldn't have been the kind of

thing that would have damaged the baby and

then the baby came out without showing signs

of being asphyxia ted. [Respondent's Exhibit

2, pages 15 - 17].

Dr. Duchowny's opinions on the matter were strikingly similar to

those of Dr. Kalstone. (Respondent's Exhibit 1, pages 20 - 22, 24,

and 32).

26. With regard to the second matter, Mrs. Pearson and her

witnesses testified as to their observations regarding Blane's

condition on delivery, which they contend supports an Apgar score

substantially lower than the score recorded at birth. 5

Petitioners also suggest that the Apgar scores recorded by the

nurse were most li kely inflated because of a "certain self -

interest motive . . . , if, and in the event, that they indeed

were pushing him back in, holding him, . . . to wait for the

doctor to get there." (Petitioners' proposed final order,

paragraph 28). Consequently, si nce Respondent's experts relied

on the Apgar scores of record in rendering their opinions,

Petitioners suggest their opinions should be rejected, and a

conclusion drawn that Blane's injury was caused by oxygen

deprivation that occurred during the course of labor, delivery,

or resuscitation. Petitioners' contention is rejected.

27. In rejecting Petitioners' contention, it is initially

observed that, where, as here, there was no showing that the

nursing staff acted improperly, or that their actions could

reasonably cause injury to the infant, there was no compelling

reason for fabrication. Moreover, following delivery, Blane was

also examined by Ms. Dees, who discerned no apparent abnormality,

and Blane's course in the newborn nursery did not raise any

co ncern until approximately 4 hours of age. Under such

circumstances, it is doubtful that Blane's initial Apgar scores

were inflated by the nursing staff at delivery. Additionally, it

is observed that, while Petitioners offered testimony which, if

credited , might warrant a reassessment of Blane's Apgar scores,

they failed to offer any expert testimony or other competent

proof as to what that score would be. Consequently, any

reassessment of Blane's Apgar scores would be founded on

speculation. Finally, it is observed that the opinions of

Doctors Duchowny and Kalstone were not predicted simply on

Blane's Apgar scores. Rather, their opinion that Blane's injury

was not caused by oxygen deprivation or mechanical injury

occurring in the course of labor, delive ry, or resuscitation, was

also premised on evidence which demonstrated that Blane's

arterial blood gases were normal, he required no assistance at

birth other than blowby oxygen, and the fetal monitor strips

failed to reveal any event consistent with fetal compromise.

28. Accordingly, it must be concluded that the proof failed

to demonstrate that Blane suffered a "birth - related neurological

injury" since the proof failed to demonstrate that, more likely

than not, his impairments were associated with a bra in or spinal

cord injury caused by oxygen deprivation or mechanical injury

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

the immediate post - delivery period in the hospital.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

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

these proceedings. Section 766.301, et seq. , Florida Statutes.

30. The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of pro viding 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.

31. The injured "infant, his personal representative,

parents, depen dents, 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 Neurologi cal Injury Compensation

Association, 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 inj ury is a

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

Statutes.

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

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

compensation to the claimant, provided 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 admin istrative

law judge in accordance with the provisions of C hapter 120,

F lorida Statutes. Sections 766.304, 766.307, 766.309, and

766.31, F lorida Statutes.

33. In discharging this responsibility, the administrative

law judge must make the following determi nation 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 neurological injury

a s 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 midwife in

a teachi ng 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 administrative law j udge 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.

34. Pertinent to this case, "birth - related neurolo gical

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 course of

labor, delivery, or resuscitation in the

immediate post - delivery period in a hospital,

which renders the infant permanently and

substantially mentally and physically

impaired. This definition shall apply to

live births only and shall not include

disability or de ath caused by genetic or

congenital abnormality.

35. 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

Rehabilitative Serv ices , 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").

36. Here, the proof failed to support the conclusion that,

more likely than no t, the brain injury Blane suffered was caused

by oxygen deprivation or mechanical injury occurring in the

course of labor, delivery, or resuscitation in the immediate

post - delivery period in the hospital. Consequently, the record

developed in this case fa iled to demonstrate that Blane suffered

a "birth - related neurological injury," within the meaning of

Section 766.302(2), Florida Statutes, and the subject claim is

not compensable under the Plan. 6 Sections 766.302(2), 766.309(1),

and 766.31(1), Florida St atutes. See also Florida Birth - Related

Neurological Injury Compensation Association v. Florida Division

of Administrative Hearings , 686 So. 2d 1349 (Fla. 1997), and Nagy

v. Florida Birth - Related Neurological Injury Compensation

Association , 27 Fla.L.Weekl y D591a (Fla. 4th DCA M arch 13, 2002).

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

that ". . . the injury alleged is not a birth - related

neurological injury . . . he [is required to] enter an order [to

such effect] and . . . cause a cop y of such order to be sent

immediately to the parties by registered or certified mail."

Section 766.309(2), Florida Statutes. Such an order constitutes

final agency action subject to appellate court review. Section

766.311(1), Florida Statutes.

CONCLUS ION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the petition for compensation filed by Blane

Earl Pearson and Janet Pearson, as parents and natural guardians

of Blane Earl Pearson, Jr., a minor, be and the same is he reby

denied with prejudice.

DONE AND ORDERED this 21st day of March, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 A palachee 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 21st day of March, 2002.

ENDNOTES

1/ At hearing, t he parties agreed that Petitioners be allowed to

take the deposition of Laura Law post - hearing, and to submit the

deposition as Petitioners' next numbered exhibit. As noted, that

deposition has been received as Petitioners' Exhibit 5.

2/ At the time of the taking of Dr. Kalstone's deposition, he

had not had the opportunity to review the fetal monitor strips.

Thereafter, he reviewed the strips and on August 13, 2001,

executed an affidavit, which was filed of record September 7,

2001, wherein he averred:

3. The opinions delivered in this affidavit

are all within a reasonable degree of medical

probability.

4. I gave deposition testimony in the case

of Blane Earl Pearson on June 11th, 2001 at

6:00 p.m.

5. Subsequent to giving said testimony I

have rev iewed Fetal Heart Rate Monitor strips

from the birth of Blane Earl Pearson.

6. The opinions I gave during my deposition

have not changed after reviewing said strips.

It is still my opinion that Blane Earl

Pearson did not suffer a birth - related

injury.

At hearing, the parties stipulated that, if called to testify,

Dr. Kalstone would testify that he:

. . . reviewed the fetal monitor strips from

the birth of Blane and that the opinions he

gave during the course of his deposition have

not changed after vi ewing the strips, and it

is still his opinion that Blane did not

suffer a birth - related neurological injury.

(Transcript, page 5)

3/ Between 7:58 a.m. and 9:19 a.m., there were five instances

when tachycardia was noted (at 7:58 a.m., 8:03 a.m., 8:09 a .m.,

8:44 a.m., and 8:50 a.m.); however, between each episode the

fetal heart rate was reassuring, with good reactivity and

variability. A last episode of tachycardia was noted at 10:12

a.m., which was also followed by a reassuring fetal heart rate,

with good reactivity and variability. Dr. Charles Kalstone, a

physician board - certified in obstetrics and gynecology, examined

the medical records related to Blane's birth at Alachua General

Hospital, including the fetal monitor strips, as well as the

records related to Blane's subsequent admission to Shands

Hospital at the University of Florida, and concluded that the

episodes of tachycardia noted during labor were not significant

or, stated otherwise, were not a reflection of fetal compromise.

Dr. Michael Du chowny, a physician board - certified in pediatric

neurology, was of a similar opinion. Notably, Petitioners

offered no proof to the contrary.

4/ At 11:48 a.m., Mrs. Pearson was moved to a sitting position

for the epidural, and at 12:04 p.m., the epidur al was

administered. In the interim, two incidents of bradycardia were

detected (one at 11:58 a.m., and another at 12:01 p.m.), and

following the epidural another episode was detected (at

12:06 p.m.). As for those episodes, Dr. Kalstone was of the

opinio n that they were not a reflection of fetal compromise

because they were isolated, and the infant's heart rate recovered

to normal and continued normal throughout the rest of labor.

Again, Petitioners offered no proof to the contrary.

5/ Interestingly, a lthough not dispositive on the issue of

Blane's condition on delivery, on October 6, 1998, at 10:30 a.m.,

staff at Shands's Hospital noted the following comment from

Blane's father: "Dad stated he didn't understand what the other

hospital did to his baby because he came out fine."

(Petitioners' Exhibit 1, Nursing Intervention/Outcome notes,

Shands Hospital).

6/ Petitioners complain that there was no medical advisory panel

review of this claim and, consequently, no panel report, with a

recommendation as to whether the injury for which the claim was

filed was a birth - related neurological injury, as required by

Section 766.308, Florida Statutes. However, that provision of

the Plan was repealed, effective July 1, 2001. Laws of Florida,

Chapter 2001 - 277, Se ction 151.

COPIES FURNISHED:

(By certified mail)

Samuel Hankin, Esquire

305 Northeast First Street

Gainesville, Florida 32601

Lynn Larson, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, Ea st, Suite 101

Post Office Box 14567

Tallahassee, Florida 32312

B. Forest Hamilton, Esquire

Post Office Box 38454

Tallahassee, Florida 32315 - 8454

Bradley Williams, M.D.

717 Southwest 4th Avenue

Gainesville, Florida 32601

Shands Hospital

801 Southwest 2nd Avenue

Gainesville, Florida 32601

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 govern ed 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. 1st DCA 1992). The Notice of

Appeal must be filed within 30 days o f rendition of the order to

be reviewed.