01-000279N Jennie Michelle Osburn, On Behalf Of And As Parent And Natural Guardian Of Joshua Ryan Osburn vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Thursday, August 29, 2002.

Summary: Proof demonstrated that, more likely than not, infant`s brain injury occurred during the course of premature labor, precipitated by placental abruption. Consequently, claim was covered by the Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JENNIE MICHELLE OSBURN, as parent )

and natural guardian of JOSHUA )

RYAN OSBURN, a deceased minor, )

)

Petitioner, )

)

vs. ) Case No. 01 - 0279N

)

FLORIDA BIRTH - RELATED NEUROLOGICAL )

INJURY COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

DEAN E. ALTENHOFEN, M.D.; CHARLES )

A. HORAN, III, M.D.; and HORAN AND )

TURNER, M.D., P.A., )

)

Intervenors. )

____________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings,

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

hearing in th e above - styled case on October 4, 2001, in

Pensacola, Florida.

APPEARANCES

For Petitioner: Samuel W. Bearman, Esquire

1015 North 12th Avenue

Pensacola, Florida 32501

For Respondent: Christopher R. J ohnson, Esquire

Whibbs, Whibbs & Johnson, P.A.

105 East Gregory Square

Pensacola, Florida 32501

For Intervenor Dean E. Altenhofen, M.D.:

Thomas Gonzalez, Esquir e

Beggs & Lane

3 West Garden Street

Pensacola, Florida 32576 - 2950

For Intervenors Charles A. Horan, III, M.D., and Horan and

Turner, M.D., P.A.:

Danny L. Kepner , Esquire

Shell, Fleming, Davis & Menge, P.A.

226 South Palafox Street, Ninth Floor

Pensacola, Florida 32501

STATEMENT OF THE ISSUE

At issue in the proceeding is whether Joshua Ryan O sburn, a

deceased minor, suffered an injury for which compensation should

be awarded under the Florida Birth - Related Neurological Injury

Compensation Plan.

PRELIMINARY STATEMENT

On January 19, 2001, Jennie Michelle Caddell, formerly

Jennie Michelle Osburn , as mother and natural guardian of

Joshua Ryan Osburn (Joshua), a deceased minor, filed a petition

(claim) with the Division of Administrative Hearings (DOAH) for

compensation under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan).

D OAH served the Florida Birth - Related Neurological Injury

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

January 25, 2001, and on April 11, 2001, Dean E. Altenhofen,

M.D., Charles A. Horan, III, M.D., and Horan and Turner, M.D.,

P.A., were gran ted leave to intervene. Thereafter, on May 29,

2001, 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 entere d] setting a hearing in this cause [on such

issue]." Such a hearing was held on October 4, 2001.

At hearing, the parties stipulated to the factual matters

set forth in paragraphs 1, 2, and 12 of the Findings of Fact.

Petitioner's Exhibit 1 (the medical r ecords filed with DOAH on

January 24, 2001), Petitioner's Exhibit 2 (the deposition of

Michael C. Goodman, M.D.), Petitioner's Exhibit 3 (fetal monitor

strips), and Petitioner's Exhibit 4 (Sacred Heart Hospital

emergency room medical records), as well as R espondent's Exhibit

1 (the deposition of Charles Kalstone, M.D.), were received into

evidence. Intervenor Dean E. Altenhofen, M.D., called James E.

Maher, M.D., as a witness. No other witnesses were called, and

no further exhibits were offered.

The trans cript of the hearing was filed October 18, 2001,

and the parties were accorded 10 days from that date to file

proposed final orders. The parties elected to file such

proposals, and they have been duly considered.

FINDINGS OF FACT

Fundamental finding s

1. Petitioner, Jennie Michelle Caddell, formerly Jennie

Michelle Osburn, is the mother and natural guardian of

Joshua Ryan Osburn, a deceased minor, and personal representative

of her deceased son's estate. Joshua was born October 25, 1997,

at Sacred Heart Hospital, a hospital located in Pensacola,

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

2. The physicians providing obstetrical services during the

birth of Joshua included Drs. Dean E. Altenhofen and Charles A.

Horan, III, who were at all t imes material hereto "participating

physician[s]" in the Florida Birth - Related Neurological Injury

Compensation Plan, as defined by Section 766.302(7), Florida

Statutes.

Mrs. Caddell's antepartum course and Joshua's birth

3. Mrs. Caddell's antepartum cour se was without apparent

complication until approximately 7:05 p.m., October 24, 1997,

when, with the fetus at 33 and 5/7 weeks' gestation (estimated

date of delivery December 7, 1997), she was involved in an

automobile accident in Pensacola, Florida. Emer gency medical

services (EMS) responded to the scene and, on arrival, noted an

approximate 3 to 4 inch circumference area of redness to the

right lower quadrant of the abdomen, palpably tender and with

slight rigidness as compared to the left; low back pa in without

deformity; and right wrist pain without swelling or deformity.

4. Following evaluation at the scene, EMS transported

Mrs. Caddell to Sacred Heart Hospital, where she was admitted to

the Emergency Department at or about 7:45 p.m. On admission ,

Mrs. Caddell complained of abdominal pain, cramping, and thoracic

back pain and chest pain. No bleeding was apparent. Fetal heart

tone was noted at 140, and Mrs. Caddell reported feeling fetal

movement.

5. Mrs. Caddell was examined by the Emergency De partment

physician at 7:55 p.m.. The results of his physical examination

were reported as follows:

PHYSICAL EXAMINATION: Well developed, well

nourished white female, pregnant, mobilized

on back board. HEAD: Is atraumatic. Pupils

equal, round and react ive to light. TMs are

clear. Nose is without discharge. NECK:

Immobilized. Collar removed while

maintaining immobilization. There is no

significant tenderness to palpation and the

cervical spine and collar is discontinued.

CHEST: There is diffuse t enderness of the

anterior chest, more so on the left. There

is abrasion and early bruising noted over the

neck and the anterior chest consistent with a

seat belt injury. LUNGS: Are clear with

good breath sounds. CARDIOVASCULAR: Regular

rate and rhythm without murmur, rub or

gallop. ABDOMEN: Pregnant, soft. The

fundus is quite tender. Appears to be

contracting. There is no rebound or

guarding. Diminished bowel sounds. There is

tenderness to palpation in the mid thoracic

spine. EXTREMITIES: No c yanosis, clubbing

or edema . . . .

6. Given Mrs. Caddell's history, the Emergency Department

physician ordered partial thoracic spine and chest x - rays to rule

out spinal or other neurologic injury. These studies were read

as not revealing any significan t abnormalities and it was decided

to transfer Mrs. Caddell to Labor and Delivery for fetal

monitoring. According to the Emergency Department records, a

fetal heart tone of 160 was recorded at 9:30 p.m., and

Mrs. Caddell was transferred to Labor and Deliv ery at 9:45 p.m.

7. At or about 10:09 p.m., Mrs. Caddell was placed on a

monitor which revealed some fetal tachycardia in the 160s, with

occasional late decelerations, and regular uterine contractions

every 1 1/2 to 2 minutes, lasting approximately 45 se conds in

duration. Mrs. Caddell was hydrated and, at approximately

10:30 p.m., she received terbutaline to stop the contractions

and, at approximately 10:40 p.m., nubain to relieve her complaint

of pain associated with her seat belt injury.

8. Following receipt of terbutaline, Mrs. Caddell's

contractions were noted to abate, but not cease, and then some

decreased reactivity was observed. Further occasional

decelerations were noted at 11:00 p.m. Vaginal examination at

approximately 11:09 p.m., revealed t he cervix to be thick, long,

and closed.

9. At approximately 11:30 p.m., an ultrasound revealed an

accumulation of retroplacental blood consistent with placental

abruption, and Mrs. Caddell was taken to the operating room for

an emergency cesarean sectio n. At the time of surgery,

Mrs. Caddell was found to have approximately 30 percent abruption

of the placenta.

10. Joshua was delivered at midnight, severely depressed,

and died October 30, 1997. Cause of death was severe hypoxic

ischemic encephalopathy, caused by perinatal asphyxia, secondary

to placental abruption.

Coverage under the Plan

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

Plan for infants who suffer a "birth - related neurological

injury," defined as an "injury to the brain . . . c aused 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

substantially mentally and physically impaired." Sections

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

12. Here, there is no dispute that Joshua suffered an

injury to the brain caused by oxygen deprivation which rendered

him permanently and substantially mentally and physically

impaired. What is at issue is whether the injury Joshua received

occurred during the course of labor, delivery, or resuscitation

in the immediate post - delivery period in the hospital.

13. To address the issue, the parties offered selected

medical records relating to Mrs. Caddell's antepartu m and

intrapartum course, as well as those associated with Joshua's

birth and subsequent development. Additionally, Petitioner

offered the deposition testimony of Michael C. Goodman, M.D., a

physician board - certified in obstetrics and gynecology;

Responde nt offered the deposition testimony of Charles Kalstone,

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

and Intervenor Altenhofen offered the testimony of James E.

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

gynecology, as w ell as the subspecialty of maternal fetal

medicine.

14. Regarding such issue, it was Dr. Maher's opinion that

the abruption was initiated by the automobile accident and

progressed over time, leading to a progressive decrease in

placental perfusion. He wa s also of the opinion that the

abruption precipitated the onset of labor, where contractions

intermittently exacerbated the ongoing process of oxygen

deprivation to the baby. Consequently, Dr. Maher concluded that

Joshua's brain injury occurred during the course of labor and

delivery. Dr. Goodman shared opinions strikingly similar to

those of Dr. Maher. In contrast, Dr. Kalstone was of the opinion

that the abruption occurred, as well as Joshua's injury, at the

instant of, and in the immediate moments fol lowing the impact of

the automobile accident, and that Mrs. Caddell was not then or

thereafter in labor.

15. The medical records and the testimony of the physicians

offered by the parties have been carefully considered. So

considered, it must be conclude d that the opinions rendered by

Drs. Maher and Goodman are most persuasive and consistent with

the medical records. Consequently, it is resolved that, more

likely than not, the injury Joshua received occurred during the

course of premature labor, precipit ated by placental abruption. 1

CONCLUSIONS OF LAW

16. 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.

17. The Florida Birth - Related Neu rological Injury

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

"for the purpose of providing compensation, irrespective of

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

births occurring on or after January 1, 1989. S ection

766.303(1), Florida Statutes.

18. The injured "infant, his personal representative,

parents, dependents, and next of kin," may seek compensation

under the Plan by filing a claim for compensation with the

Division of Administrative Hearings. Sectio ns 766.302(3),

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

Florida Birth - Related Neurological Injury Compensation

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

the date of service of a complete claim . . . in which to fi le 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.

19. 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 administrative

law judge in accordance with the provisions of Chapter 120,

Florida Statutes. Sections 766.304, 766.307, 766.309, and

766.31, Florid a Statutes.

20. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the injury claimed is a birth -

related neurological injury. If the claimant

has demons trated, 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 p hysically impaired, a

rebuttable presumption shall arise that the

injury is a birth - related neurological 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 midwife 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 administrative law judge concludes that the "infant

has sustained a birth - related neurological injury and that

obstetrical services were delivered by a participati ng physician

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

21. 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 a t 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 death caused by genetic or

congenital abnormality.

22. As the claimant, the burden rested on Petitioner to

demonstrate entitlement to compensat ion. Section 766.309(1)(a),

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

Rehabilitative 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 befor e an administrative

tribunal.")

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

provided obstetrical services at birth was a "participating

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

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

defined by the Plan. Consequently, Joshua qualifies for coverage

under the Plan. Section 766.309, Florida Statutes.

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

that "the infant has sustained a birth - related neurol ogical

injury and that obstetrical services were delivered by a

participating physician at birth," 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 compensation to be awarded were

bifurcated. Accordingly, absent agreement by the parties, a

further hearing will be necessary to resolve any existing

disputes regar ding "actual expenses," the amount and manner of

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

the "reasonable expenses incurred in connection with the filing

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

Nevertheless, and notwiths tanding that matters related to the

amount of compensation may need to be addressed, the

determination that the claim qualifies for compensation under the

Plan constitutes final agency action subject to appellate court

review. Section 766.311(1), Florida Statutes.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the petition for compensation filed by Jennie

Michelle Caddell, formerly Jennie Michelle Osburn, as parent and

natural guardian of Joshua Ryan Osburn, be and the same is hereby

approved.

IT IS FURTHER ORDERED that:

1. NICA shall make immediate payment for all expenses

previously incurred.

2. Jennie Michelle Caddell, formerly Jennie Michelle

Osburn, as parent and natural guardian of Joshua Ryan Osburn, a

deceased minor, is 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

res olved within such period, the parties will so advise the

administrative law judge, and a hearing will be scheduled to

resolve such issue.

3. Petitioner is entitled to an award of reasonable

expenses incurred in connection with the filing of the claim,

inc luding reasonable attorney's fees. The parties are accorded

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

approval 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 Section 766.312,

Florida Statutes, jurisdiction is reserved to resolve any

disputes, should they arise, regarding the parties' complianc e

with the terms of this Final Order.

DONE AND ORDERED this 20th day of November, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, F lorida 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 20th day of November, 2001.

ENDNOTE

1/ In so concluding, the vaginal examination at 11:09 p.m.,

which revealed the cervix to be thick, long and closed, has not

been overlo oked. However, given that only 4 hours had elapsed

since the automobile accident, and the likelihood that the

abruption progressed over time, such finding (which fails to

reflect cervical change) is not dispositive of whether labor had

begun.

COPIES FUR NISHED:

(By certified mail)

Lynn Larson, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32312

Samuel W. Bearman, Esquire

1015 North 12th Avenue

Pensacola, Florida 32501

Christopher R. Johnson, Esquire

Whibbs, Whibbs & Johnson, P.A.

105 East Gregory Square

Pensacola, Florida 32501

Thomas Gonzalez, Esquire

J. Nixon Daniel, III, Esquire

Beggs & Lane

3 West Garden Street

Pensacola, F lorida 32576 - 2950

Danny L. Kepner, Esquire

Shell, Fleming, Davis & Menge, P.A.

226 South Palafox Street, Ninth Floor

Pensacola, Florida 32501

Sacred Heart Hospital

5151 North 9th Avenue

Pensacola, Florida 32504

Daniel Holland, M.D.

Sacred Heart Hosp ital

5151 North 9th Avenue

Pensacola, Florida 32504

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 26

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 proceed ings 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 prescribe d 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 w ithin 30 days of rendition of the order to

be reviewed.