01-001215N Kysha Lawton And Leroy Frazier, As Parents And Natural Guardians Of Kyara Frazier, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, January 8, 2003.

Summary: Proof failed to demonstrate that infant suffered brain injury caused by oxygen deprivation or mechanical injury during birth.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KYSHA LAWTON and LEROY FRAZIER, )

as parents and natural )

guardians of KYARA FRAZIER, a )

minor, )

)

Petitioners, )

)

vs. ) Case No. 01 - 1215N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

ST. ANTHONY'S HOSPITAL, INC., )

and BETH LIEBOWITZ, M.D., )

)

Intervenors. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative

Hearings, b y Administrative Law Judge William J. Kendrick, held

a final hearing in the above - styled case on February 19, 2002,

in St. Petersburg, Florida, and on November 6, 2002, by

telephone conference.

APPEARANCES

For Petitioners: William F. Blews, Esquire

William F. Blews, P.A.

600 First Avenue, North, Suite 307

Post Office Box 417

St. Petersburg, Florida 33701

For Respondent: B. Forest Hamilton, Esquire

Post Office Box 38454

Tallahassee, Florida 32315 - 8454

For Intervenor St. Anthony's Hospital, Inc.:

Kirk S. Davis, Esquire

Akerman, Senterfitt & Eidson, P.A.

Post Office Box 3273

Tampa, Florida 33601 - 3273

For Intervenor Beth Liebowitz, M.D. 1 :

William E. Hennen, Esquire

James G. Linquist, Esquire

Barr, Mu rman, Tonelli, Slother & Sleft

201 East Kennedy Boulevard, Suite 1700

Tampa, Florida 33602

STATEMENT OF THE ISSUES

1. Whether Kyara Frazier, a minor, suffered a "birth -

related neurological injury," as defined by Section 766.302(2),

Florida Statutes.

2. Whether the participating physician and hospital

satisfied the notice provisions of the Florida Birth - Related

Neurological Injury Compensation Plan (Plan), as prescribed by

Section 766.316, Florida Statutes.

PR ELIMINARY STATEMENT

In July 1999, Kyara Frazier, a minor, by her parents and

natural guardians, Kysha Lawton and Leroy Frazier, and

Kysha Lawton and Leroy Frazier, individually, filed a complaint

against St. Anthony's Hospital, Inc.; Beth Liebowitz, M.D.; and

Bay Gynecological Associates, P.A., a professional association

with which Dr. Liebowitz was affiliated, in the Circuit Court

for the Sixth Judicial Circuit, in and for Pinellas County,

Florida, alleging medical malpractice associated with the labor

of Ms. Lawton and the delivery of Kyara.

Following amendment of the complaint, St. Anthony's

Hospital, Dr. Liebowitz, and the professional association

responded, and raised, inter alia , the defense of NICA

exclusivity. Section 766.303(2), Florida Statutes. Petitioners

replied, and averred that NICA exclusivity did not bar their

civil action because the hospital and participating physician

failed to comply with the notice provisions of the Plan.

In the wake of the amendments to Sections 766.301(1)(d) and

766 .304, Florida Statutes (Supp. 1998), and the decision in

O'Leary v. Florida Birth - Related Neurological Injury

Compensation Association , 747 So. 2d 624 (Fla. 5th DCA 2000),

St. Anthony's Hospital prevailed upon the court to abate the

civil suit until it was resolved, by an administrative law

judge, whether Kyara's injury was compensable under the Plan,

and whether notice was given or excused. The court's order,

dated September 13, 2000, provided, as follows:

In 1996, the Florida Supreme Court held in

Humana of Florida v. McKaughan , 668 So. 2d

974 (Fla. 1996) that NICA does not vest

exclusive jurisdiction in an administrative

officer to determine if an injury is covered

by the plan. However, in 1998, the

legislature amended § 766.304 and the

statute now prov ides, in part, that "the

administrative law judge has exclusive

jurisdiction to determine whether a claim

filed under the act is compensable. No

civil action may be brought until the

determinations under s. 766.309 have been

made by the administrative law judge."

In O'Leary v. Florida Birth - Related

Neurological Injury Compensation Assoc. , 25

Fla. L. Weekly D1234 (Fla. 5th DCA May 19,

2000), the Fifth District Court of Appeal

held that the administrative law judge had

exclusive jurisdiction to determine th e

applicability of NICA. Further, the

administrative law judge had exclusive

jurisdiction to determine whether notice of

participation in NICA was required and

provided. The court stated, "all questions

of compensability, including those which

arise rega rding the adequacy of notice, are

properly decided in the administrative

forum."

* * *

ACCORDINGLY, it is hereby,

ORDERED AND ADJUDGED:

1. This action shall be abated until such

time as the issues of applicability of the

Florida Birth - Related Neur ological

Compensation (NICA) to Plaintiffs' claims

and the compensability of Plaintiffs' claims

under NICA are fully and finally resolved by

an Administrative Law Judge or in Appellate

form.

On March 29, 2001, Kysha Lawton and Leroy Frazier, as

parents an d natural guardians of Kyara Frazier, a minor, filed a

petition (claim) with the Division of Administrative Hearings

(DOAH), for compensation under the Florida Birth - Related

Neurological Injury Compensation Plan.

DOAH served the Florida Birth - Related Neu rological Injury

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

March 30, 2001, and on June 6, 2001, NICA gave notice that, upon

review of the claim, it had "determined that such claim is not a

'birth - related neurological injury' within the me aning of

Section 766.302(2), Florida Statutes," and requested that "an

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

of compensability." Following intervention by St. Anthony's

Hospital and Dr. Liebowitz, as well as a number of continuan ces,

a hearing was ultimately scheduled for February 19, 2002, to

address the issue of compensability, as well as notice.

Subsequently, on February 15, 2002, a pre - hearing conference was

held and it was resolved that "[t]he issues of notice and

compensabi lity are bifurcated and . . . the hearing to be held

on February 19, 2002, will be [to address] whether notice was

accorded the patient as contemplated by Section 766.316, Florida

Statutes." (Order of February 18, 2002.)

At hearing, Petitioners called Kys ha Lawton and

Sandra Blakeman, as witnesses, and Petitioners' Exhibit 1 (a

Stipulation between Petitioners and Intervenor Beth Liebowitz,

M.D.) and Exhibit 2 (St. Anthony's records for Kysha Lawton)

were received into evidence. 2 Intervenor St. Anthony's H ospital

called Kim McFadden as a witness, and Intervenor's Exhibit 1

(St. Anthony's Clinstar Visit History), Exhibit 2 (affidavit of

Kim McFadden), Exhibit 3 ( C onditions of Treatment form, dated

12/16/96), Exhibit 4 (Advance Directive Status form), Exhibit 5

(Tuberculosis Screen form), and Exhibit 6 (Conditions of

Treatment form, undated), were received into evidence. No other

witnesses were called, and no further exhibits were offered.

The transcript of the hearing was filed March 6, 2002, and

the parties were accorded 10 days from that date to file

proposed orders; however, the record was not complete until

copies of the records of St. Anthony's Hospital relating to

Kysha Lawton's admission of December 16, 1996, were filed

April 15, 2002, and received int o evidence as Petitioners'

Exhibit 2. Consequently, the requirement that an order be

rendered within 30 days after the transcript has been filed was

waived. See Rule 28 - 106.216(2), Florida Administrative Code.

Petitioners and Intervenors elected to file such proposals, and

they were duly considered.

On April 26, 2002, an Order was entered which resolved that

the hospital and the participating physician failed to comply

with the notice provisions of the Plan. The Order concluded:

Having resolved that the notice provisions

of the Plan were not satisfied, it is

ORDERED that Petitioners are accorded 30

days from the date of this Order to elect,

in writing, whether to waive notice and

pursue a claim for Plan benefits or whether

to pursue their civil remedies .

Thereafter, on May 8, 2002, the Fourth District Court of

Appeal, State of Florida, issued its decision in Gugelmin v.

Division of Administrative Hearings , 815 So. 2d 764 (Fla. 4th

DCA 2002). In that opinion, the Court held, inter alia , that:

. . . the ALJ exceeded his authority to

determine compensability and notice issues

by ruling on the impact of such

determinations on . . . [the claimants' and

the hospital's] rights and remedies . . .

[,and] requiring . . . [the claimants] to

elect between remedies . . . .

Based upon that decision, Intervenor St. Anthony's

Hospital, on May 17, 2002, filed a Motion for Clarification

and/or Reconsideration of Order dated April 26, 2002. A hearing

was held on that motion on May 23, 2002, and on May 24, 2002, an

Order was entered which vacated the Order of April 26, 2002, and

provided that notice would be readdressed in a subsequent order

when compensability was resolved.

On November 6, 2002, a hearing was held to resolve

compensability. At that hearing, Petitioners' Exhibit 3 (the

deposition of Robert F. Cullen, M.D., with Intervenor's

deposition composite E xhibit 1) and Exhibit 4 (the deposition of

Mary Pavan, M.D., with Intervenor's deposition exhibits 1 and 2)

were received into evidence. Respondent's Exhibit 1 ( the

deposition of Michael Duchowny, M.D., with exhibits) and Exhibit

2 (the deposition of Donald Willis, M.D., with exhibits) were

received into evidence. Finally, Joint Exhibit 1 (the medical

records filed March 28, 2001, and noted as "Exhibit 1" to the

claim for compensation) and Joint Exhibits 2A and 2B, two

volumes (assessments, evaluations, and other records filed

March 28, 2001, and noted as "Exhibit 2" to the claim for

compensation) were received into evidence. No witnesses were

called and no furth er exhibits were offered.

The transcript of the hearing was filed November 21, 2002,

and the parties were initially accorded 10 days from that date

to file proposed orders; however, at the request of Intervenor

St. Anthony's Hospital, and without objection , the time for

filing proposed orders was extended to December 6, 2002.

Consequently, the requirement that an order be rendered within

30 days after the transcript has been filed was waived. See

Rule 28 - 106.216(2), Florida Administrative Code. The parti es

elected to file such proposals, and they have been duly

considered. 3

FINDINGS OF FACT

Preliminary findings

1. Kysha Lawton and Leroy Frazier are the parents and

natural guardians of Kyara Frazier, a minor. Kyara was born a

live infant on December 16 , 1996, at St. Anthony's Hospital, a

hospital located in St. Petersburg, Florida, and her birth

weight exceeded 2,500 grams.

2. The physician providing obstetrical services at Kyara's

birth was Beth Liebowitz, M.D., who, at all times material

hereto, wa s a "participating physician" in the Florida Birth -

Related Neurological Injury Compensation Plan, as defined by

Section 766.302(7), Florida Statutes.

Kyara's birth and subsequent development

3. At or about 7:00 a.m., December 16, 1996, Ms. Lawton,

with t he fetus at term, presented to St. Anthony's Hospital, in

labor. Following admission, vaginal examination revealed the

cervix at 2 centimeters dilation, effacement at 90 percent, and

the fetus at - 3 station, and fetal monitoring revealed a

reassuring feta l heart rate, with a baseline of 130 to 140 beats

per minute.

4. From 10:30 a.m., when her labor was initially augmented

with Pitocin, until 5:00 p.m., when she was evaluated by

Dr. Liebowitz, the Labor and Delivery Flow Sheet reflects that

Ms. Lawton's l abor progress was slow, but steady, and fetal

monitoring continued to reveal a reassuring fetal heart rate

baseline of approximately 130 beats per minute. At that time,

vaginal examination revealed the cervix at 6 - 7 centimeters

dilation, effacement at 100 percent, and the fetus between

station 0 and . 4

5. Following examination, Dr. Liebowitz ordered an

increase in Pitocin and shortly thereafter, at 5:08 p.m., a

variable deceleration to 80 - 90 beats per minute, for 3 minutes,

and at 6:21 p.m., a variable deceleration to 70 beats per

minute, for approximately 3 minutes, was noted. Fetal heart

rate was, however, noted as reassuring, with a baseline of 130 -

140 beats per minute, and long term variability present.

6. Dr. Liebowitz next examined Ms. Lawton at approximately

6:35 p.m. At the time, vaginal examination revealed the cervix

at 8 centimeters, effacement at 100 percent, and the fetus at

station. Dr. Liebowitz ordered an increase in Pitocin.

7. Following the increase in Pitocin, several

decelerati ons to the 90 beat per minute range were noted

(between approximately 6:37 p.m., and 6:45 p.m.), and at

approximately 6:55 p.m., a vacuum extractor was applied by

Dr. Liebowitz. At or about that time, a variable deceleration

to 60 beats per minute, for ap proximately 2 minutes, was noted.

Following recovery, and as last recorded on the fetal monitor

strips (at 7:00 p.m.), the fetal heart rate had dropped to 90

beats per minute.

8. On delivery of the infant's head, a nuchal cord x1 and

a shoulder dystocia were noted. The nuchal cord was reduced,

and at 7:05 p.m., Kyara was delivered, albeit with a fractured

right clavicle (associated with efforts employed to resolve the

shoulder dystocia).

9. On delivery, Kyara was depressed (limp, without

spontaneous r espiration) and required resuscitation (positive

pressure ventilation for 30 - 40 seconds), together with

suctioning, before she pinked up and began spontaneous

respirations. Apgar scores were recorded as 4 and 9, at one and

five minutes, respectively. 5

10. Following delivery, Kyara was transferred to the

newborn nursery and on December 18, 1996, she and her mother

were discharged. Notably, apart from the clavicular fracture,

transient tachypnea of the newborn (TTN), which resolved, and a

cephalohematoma, 6 Kyara's newborn assessments were normal, and

without evidence of prenatal, perinatal or postnatal

complications.

11. Following discharge, Kyara's development was without

apparent complication until February 2, 1997, when, at 7 weeks

of age, she evidenced signs of seizure activity and was admitted

to St. Anthony's Hospital. At the time, the parents described

their concerns, as follows:

. . . The mother noted that the patient had

an episode of upper and lower extremity

twitching at 1130 hours while sleepin g.

This episode lasted approximately 10 seconds

and then the baby cried and fell back to

sleep. At approximately noon, the mother

awoke the child and the baby fed well. The

parents state that the child appeared

normal. At approximately 1800 hours while

in the prone position, the patient had a

identical episode lasting of 10 seconds

duration. The mother noted that the eyes

were deviated to the left . . . .

At St. Anthony's, a similar episode was noted.

12. Kyara was transferred to All Children's Hosp ital,

where she was admitted at 10:30 p.m., February 2, 1997, for

further evaluation. A CT brain scan was performed the same date

and preliminarily reported as showing a "R[igh]t epidural old

hematoma lesion parietal 2.5mm. 5 - 6mm. depth." The results of

the scan were more formally reported, as follows:

Findings: There is a biconvex lesion along

the inner table of the right temporal

calvarium. It measures approximately 6mm.

thick and its base measures 2 to 2.5cm. Its

outer margin is increased in its at tenuation

and is visible on bone windowing. Its more

central density is lower and isointense with

adjacent brain parenchyma. The adjacent

calvarium appears intact on bone windowing.

The brain attenuation pattern is normal.

The ventricles are normal in their size,

position and contour. No midline shift.

The mastoid air cells are normally aerated

and developed.

IMPRESSION: 1. Small right parietotemporal

epidural hematoma with partial healing.

13. On February 3, 1997, a skeletal survey was performed

and compared with the CT scan. Pertinent to this case, the

results of that survey were reported, as follows:

Findings: There is a curvilinear

calcification extending from and paralleling

the outer table of the skull of the

superior/posterior right parie tal region

most consistent with a calcified

cephalohematoma. The calcified epidural

hematoma seen on the prior CT brain is not

visualized. There is no identifiable skull

fracture. . .

IMPRESSION: 1. Calcified cephalohematoma

of the superior/posterior right parietal

region.

14. Kyara was medicated with Phenobarbital, and discharged

from All Children's Hospital on February 5, 1997, with an MRI of

the brain scheduled for February 7, 1997. Discharge diagnosis

was listed as:

1) Sepsis ruled out

2) Sei zure - EEG . . . [Normal]

3) Small old epidural calcified hemorrhage

consistent with vacuum extract[ion]

15. The MRI of the brain done on February 7, 1997, was

compared with the CT scan done on February 2, 1997, and the

skeletal survey done on February 3, 1997, and reported, as

follows:

Findings: Overlying the posterior right

temporoparietal region, there is a small

biconvexed collection, measuring

approximately 3.0 x 0.4 cm. This collection

is predominantly of very high signal on IR

images, very high signal on PD images,

moderately high signal on T2 images, and

moderately high signal on GRE images. This

collection was partially calcified on the

prior CT. This collection almost certainly

reflects a relatively old epidural or

subdural hematoma. This c ollection is

associated with mild compression of the

adjacent brain.

Overlying the superior - posterior right

parietal region, there is a small - moderate

outwardly convexed collection, measuring

approximately 3.5 x 0.6 cm. This collection

is of very high si gnal on IR images, of

signal similar to brain on T1 images, a very

high signal on PD/T2 images, and of signal

similar to brain on GRE images. This

collection is contiguous with the outer

table of the skull and is calcified on the

prior plain film exam of the skull. This

collection represents a calcified

cephalohematoma.

Otherwise, the exam is unremarkable.

Specifically, midline structures appear to

be well formed. Myelination and gray/white

differentiation is within normal limits.

There is no identifi able mass or mass

effect. There is no identifiable asymmetry

in size or signal of the temporal lobes.

IMPRESSION: 1. Small partially calcified

epidural or subdural

hematoma overlying the

posterior ri ght

temporoparietal region,

associated with slight

compression of the adjacent

brain.

2. Small to moderate calcified

cephalohematoma of the

superior - posterior right

parietal region.

16. Following her discharge from All Children's Hospital,

Kyara was followed by physicians (pediatric neurologists)

associated with the Neurology Clinic. There, on April 15, 1997,

Kyara presented for her first visit with Dr. Jose Ferreira.

Dr. Ferreira reported the results of that visit, as follows:

Since discharge from the hospital, she has

had no recurrence of seizures. Her

development continues to make progress. She

is usually alert and playful, with good eye

contact. She has been feeding well and

sleeping well. There have been no concerns

from a medical or neurological standpoint.

She is being maintained on Phenobarbital, 4

cc b.i.d., which she has tolerated well.

On examination today, her head circumference

was 41.5 cm. There were no bruits on

auscultation of the head, neck, and chest.

The abdominal exam was benign. The

extremities had no deformities or joint

tenderness. She was alert and smiling with

stimulation. She was m aintaining eye

contact and tracking. Her pupils were equal

and reactive, but 4 mm. The funduscopic

exam showed no retinal abnormalities. The

face was symmetric, and the tongue was not

enlarged. Motor exam showed no focal

weakness. She had a strong gra sp and

symmetric movement of all extremities. The

head control was appropriate for her age.

She was able to step forward when held in

standing position. The deep tendon reflexes

were symmetric, and the plantar responses

were flexor bilaterally.

IMPRESS ION:

1. A history of seizures, with a nonfocal

neurologic examination.

2. There is no recurrence of seizures on

the current dose of Phenobarbital.

17. Kyara was next seen by Dr. Ferreira on October 24,

1997, at which time he noted that, but for a sei zure in May of

1997, she had been seizure - free. Neurological exam that day,

like the prior exam, noted no neurologic abnormalities; however,

when next seen by Dr. Ferreira, on March 3, 1998 (at 14 months

of age), she was noted to have "evidence of develop mental delay,

maximally involving speech and language . . . [,with] some

developmental delay in her motor areas." At the time,

Dr. Ferreira noted that:

. . . S he has not started saying any words.

She has not started walking independently .

. . . She is maintaining eye contact

briefly . . . . She was not following

commands . . . Her motor exam shows no

focal weakness . . . .

18. Following Dr. Ferriera, Dr. Raymond Fernandez provided

follow - up services (on 8 occasions) through the Neurology Clinic

for Kyara, from July 31, 1998, through August 13, 1999, and

Dr. James Johnson provided those services (on 2 occasions), from

September 20, 1999, through December 10, 1999. During that

period, Kyara's seizures persisted, and they have since proven

intractable. As for her neurologic presentation, Kyara was

noted as largely withdrawn, although on occasion appeared more

socially interactive, and she did not speak. No focal

neurological abnormalities were noted. Dr. Fernandez'

impression was "neuro - behavioral sy ndrome with pervasive

elements but not clearly within the autism spectrum. Mental

retardation is also a possibility." Dr. Johnson's impression

was "[p]ervasive developmental disorder."

19. Apart from the Neurology Clinic, Kyara was seen by

Dr. Eric Trid as, a developmental pediatrician associated with

the CP/Developmental Clinic, for behavioral and developmental

assessment. Kyara was seen by Dridas on four occasions, and

in his report of a May 4, 1999, visit he noted the results of

his examination an d impressions, as follows:

Neurological examination: Revealed an alert

youngster who made inconsistent eye contact.

Kyara was nonverbal throughout the

examination. She was unable to follow

simple commands. There was little intent of

communication other than for an occasional

grunt. Most of her sounds consisted of open

vowels or grunting. She did not use any

form of nonverbal communication (pointing,

gesturing, etc). Relative to her social

interaction, Kyara's eye contact was felt to

be somewhat fleet ing. While at times she

would make eye contact with the examiner,

she did not seem to show any interest in

interacting other than for grabbing the

stethoscope or the examiner's pen. She did

not play with toys appropriately and showed

no interest in items presented to her.

* * *

IMPRESSIONS:

1. Seizure disorder.

2. Global developmental delays. Symptoms:

Kyara is clearly showing fairly extreme and

significant delays, especially in the

language area. There is little intent of

communication and h er receptive language

abilities appear to be quite low.

3. Pervasive developmental disorder of

childhood. Symptoms: Kyara seems to fit

the diagnostic criteria for the pervasive

developmental disorders, in particular

infantile autism. That is, she is s howing a

severe qualitative impairment of

communication, qualitative impairment of

socialization and a restricted repertoire of

activities. The delays in language and

socialization appear to be the most

prominent at this point. There is no

indication of any self - injurious or self -

stimulatory behavior, nor any significant

aggression. It is possible that some of her

autistic symptoms may be the product of her

global developmental delays and significant

impairment. However, clinically she meets

the diagnos tic criteria for autism.

In the report of his last examination on January 4, 2000,

Dr. Tridas noted his impression as "[p]ervasive developmental

disorder of childhood, not otherwise specified. Global

developmental delays."

20. In addition to Dridas, Kyara was also evaluated by

Dr. Mary Pavan, a developmental pediatrician and the Medical

Supervisor of the Early Intervention Program (EIP). Dr. Pavan

concluded, based on her examination of July 21, 1999, which will

be discussed more fully infra , that al though Kyara did exhibit

autistic symptoms (global developmental delay and repetitive

types of behavior) her presentation was most consistent with

severe cognitive delays (mental retardation). Notably,

Dr. Pavan also observed, "the two diagnoses -- mental

retardation and autism -- are very close together, because

extreme mental retardation can have autistic features.

Similarly, autism can be associated with mental retardation

. . . [they are not mutually exclusively,] you can have both or

you can have one or the other." 7

21. On June 26, 2000, another CT scan of the brain was

done. That scan was read as normal, and the right epidural

hematoma had resolved.

Coverage under the Plan

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

Plan for infa nts 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 hospita l, which renders the infant

permanently and substantially mentally and physically impaired."

Section 766.302(2), Florida Statutes. See also Section 766.309,

Florida Statutes.

23. Here, there is no dispute that Kyara is permanently

and substantially ment ally and physically impaired. Rather,

what is disputed is whether the proof demonstrates, more likely

than not, that Kyara's impairment resulted from an "injury to

the brain . . . caused by oxygen deprivation or mechanical

injury occurring in the course o f labor, delivery, or

resuscitation in the immediate post - delivery period," as opposed

to some other etiology or at a time that predated or posted

dated birth.

The cause of Kyara's impairment

24. To address the cause of Kyara's impairment, the

parties o ffered medical records relating to Ms. Lawton's

antepartum and intrapartum course, as well as Kyara's delivery

and subsequent development. Petitioners also offered the

deposition testimony of two physicians: Robert F. Cullen, M.D.,

and Mary Pavan, M.D. 8 In turn, Respondent offered the deposition

testimony of two physicians: Michael Duchowny, M.D., and

Donald Willis, M.D.

25. Dr. Willis (whose testimony was offered by Respondent)

is a physician board - certified in obstetrics and gynecology, as

well as maternal fetal medicine. Pertinent to this case,

Dr. Willis reviewed the medical records related to Kyara's

birth, including the fetal monitor strips, and was called upon

to render his opinion as to whether they revealed any incident

during labor and deli very that would be consistent with fetal

compromise or injury. On this issue, Dr. Willis was of the

opinion that, apart from the fractured clavicle, there was no

evidence of a traumatic or hypoxic event that caused injury to

Kyara.

26. In reaching such c onclusion, Dr. Willis noted that,

although there were decelerations, there was also good recovery,

and that the fetal monitor strips were otherwise reassuring.

Moreover, and consistent with his conclusions, Dr. Willis noted

that while Kyara's one - minute A pgar score was low her five -

minute Apgar score was normal; her newborn assessments were

normal; and her hospital course was uneventful.

27. Dr. Pavan (whose testimony was offered by Petitioners)

is a physician board - certified in pediatrics, as well as

neu rodevelopmental disabilities who, as discussed supra ,

examined Kyara on July 21, 1999, and resolved that Kyara's

presentation, as of that date, was most consistent with mental

retardation. As for the cause of Kyara's delays, Dr. Pavan

could identify no et iology that would account for Kyara's

difficulties.

28. Regarding Kyara's history, and Dr. Pavan's inability

to identify an etiology, Dr. Pavan offered the following

observations:

Q. Could you list for me the possible

causes of developmental progressio n that's

seen in Kyara's case or lack of

developmental progression?

* * *

A. I should think it would have to be

either abnormality in how the brain

developed. I'm thinking about fetal

development. It could be metabolic, it

could be structural. Th ere could be brain

injury at any time before birth, during

birth, after birth. There could be injury

from seizures that were not controlled,

could be infectious etiology. There could

be a familial problem, but we have no

history or that. It could be a m etabolic

abnormality.

Q. Anything else?

A. Um, not off the top of my head.

Q. Have you ruled out any of those here,

such as when you went to look at the medical

records from her birth as to whether there

was any damage during the birthing process?

A . An MRI would help me to know if it's

possible that there could have been injury

during the birth process that would show up

on the MRI.

Q. What would you be looking for?

A. An abnormality in myelination or in the

structure. Kyara is, I don't know t hat we

have another child that we have followed who

has not made progress like Kyara has not

made progress. And I don't understand it.

Q. Without the MRI?

A. Without the MRI --

Q. Based on just your review of the

records, did you see that there was any --

A. No. There is some area, with the CT

scan, there was some area of epidural

hemorrhage that might be related, but she

has so much more severe problems than I

would expect from that finding.

* * *

Q. Okay. You noted on the CT scan that

there was some epidural hematoma . . . [a

focal injury]; is that right?

A. Right.

* * *

Q. And did you see any focal deficit in

Kyara?

A. I saw no focal deficit with Kyara.

* * *

Q. In your review of that MRI report, does

that assist you in determining any etiology

of Kyara's condition?

A. It rules out some possibilities.

Q. What does it rule out?

A. It rules out that there was a

significant developmental abnormality in the

myelination pattern of the brain. And also

on this date it rules out a brain injury.

So this is very --

Q. Any in - brain injury?

A. No, any injury. It rules out a brain

injury to the parenchyma of the brain.

Q. And so when you said that there was no

brain injury to the parenchyma of the brain

in Kyara Fraz ier's case that means what?

A. I probably shouldn't have said that

because then later I saw that there was some

compression of the adjacent brain. That

would be a focal type of, a focal area that

was affected.

Q. And Kyara's problems are not focally

c aused, correct?

A. That's correct.

* * *

Q. Go ahead.

A. I do not think that a compression on the

adjacent brain would cause the difficulty

with learning and development that Kyara

has.

29. Dr. Duchowny (whose testimony was offered by

Respo ndent) practices pediatric neurology at Miami Children's

Hospital, and is board - certified in pediatrics, pediatric

neurology, and clinical neurophysiology. Dr. Duchowny examined

Kyara on May 24, 2001, and was of the opinion that Kyara's

presentation was m ost consistent with autism, a developmental

abnormality (an abnormality acquired prior to birth, at the time

the brain was forming). The results of Dr. Duchowny's

evaluation, and opinions, may be summarized as follows:

Q. If you would just briefly go thr ough

your written report and tell me what your

findings were.

A. At the time of my evaluation Kyara was a

four and a half year old girl, and she had a

known history of epilepsy. Her examination

revealed that she had no expressive

language, and had promi nent cognitive delay

and also had hypotonia meaning decreased

tone of her muscles at rest with increased

tone when she would go to do something.

Her gait was unstable with her toes pointing

down. And she additionally exhibited

diminished deep tendon refl exes.

Additionally it was evident that she did not

have good social skills. That she had poor

eye contact and did not relate well to

strangers and this was present throughout

the evaluation. I thought that her findings

were most compatible with a severe form of

childhood autism.

* * *

Q. Can you briefly . . . [describe] the

symptoms or indicators of autism and which

ones Kyara met?

A. Autism is a developmental disorder

characterized by limitations in a number of

neurologic areas. Most signific antly there

is severe compromise of socialization skills

wherein . . . the autistic individual does

not interact in a socially appropriate

manner. There is no feeling of interaction

in a normal social sense and there is

typically poor eye contact. Other things

found in autism are language disturbance,

cognitive delay, seizures in the hyper

portion of affected individuals and motor

difficulties in terms of tone, reflexes, and

coordination . . . . [ T ]hose features . . .

are . . . virtually all present in K yara.

Dr. Duchowny did not, however, notice "repetitive motor

stereotype which is often seen in children with autism."

30. With regard to the MRI report of February 7, 1997,

Dr. Duchowny offered the following salient observations:

. . . [T]he impression from the MRI is that

there was a small partially calcified

hematoma in the right posterior

temporoparietal region with a superimposed

calcified cephalohematoma. And in contrast

the remainder of the brain was normal.

* * *

Q. Did Kyara exhibit any l asting effects

from those two incidents?

A. I don't believe so, no.

* * *

Q. . . . [A]re there indications that you

would find in a child who had suffered a

hematoma that had caused neurological injury

that are not existent in Kyara's case?

A. I f Kyara had acquired a significant

hematoma at birth which caused neurological

injury you would expect to see destruction

or atrophy of underlying brain tissue. You

would expect to see unilateral spasticity

and asymmetric findings based on the

presence of the hematoma on one side of the

brain, but not the other. Instead the

entire hemispheres of Kyara are essentially

intact. There are no significant

asymmetries and the types of deficits which

she exhibits are typical of children with

developmental proble ms rather than brain

damage due to trauma or hypoxia.

* * *

Q. Doctor, let me ask you to take a look at

. . . the MRI report and look at the last

sentence if you would, the paragraph with

reference to findings, and would you tell us

what that says w ith reference to

compression?

A. "This collection is associated with mild

compression of the adjacent brain."

Q. Now what is the effect of having

compression on the brain from that hematoma?

A. Well, none because in the next paragraph

it stated that there is no identifiable mass

or mass effect, so obviously there is no

displacement of brain. And I am not sure

that there really is compression. I think

there may be an altered configuration, but

obviously it's without significance.

* *

Q. . . . What would you expect to see in

Kyara or in a child who was suffering from

hematoma that did result in significant

brain compression and how does that differ

from Kyara?

A. There would have to be mass effect

acutely, meaning displacement of brain and

ul timately there would be destruction of

brain tissue, neither of which were in

evidence with Kyara.

31. Dr. Cullen (whose testimony was offered by

Petitioners) is a physician board - certified in pediatrics who,

like Dr. Duchowny, practices pediatric neurol ogy at Miami

Children's Hospital. Dr. Cullen examined Kyara on July 17,

2002, and in his opinion, Kyara's presentation is most

consistent with mental retardation. The results of Dr. Cullen's

evaluation of Kyara and his opinions may be summarized as

follo ws:

NEUROLOGICALLY, she was alert. She would

vocalize, but did not use any specific

language. Eye contact with the examiner,

one - on - one, was good with toys. Everything

that we gave her, she would automatically go

and put it in her mouth. I did not real ly

get her to follow any commands. She would

constantly suck on her thumb or finger or

take the toy given her. She did not

appreciate how to use the small tape measure

. . . . Her extraocular eye movements were

full, but she still had alternating

exotro pia. I could not see the discs. She

had reasonable visual fields, although she

picked up the right temporal field a little

bit quicker than the left. Corneal was

decreased on the left compared to the right.

There was some weakness of the left

orbicular is oculi. She had adequate

auditory responses, a good gag, good palatal

and pharyngeal movements. Her tongue did

remain midline.

MOTOR EXAMINATION had shown adequate muscle

tone and bulk. There was a question of some

atrophy of the distal left forear m.

Strength showed some weakness on the left.

Grasp was a bit decreased when being pulled

up to a sitting position. On reaching for

objects, she did not appear to have a good

pincer grasp and used more of her whole

hand. When walking, her gait was unst eady.

She did tend to toe - walk, and more on the

left than on the right with a slight limp on

the left. No seizure activity was observed.

IN SUMMATION, Kyara is a 5 and 7/12 - year - old

young lady who is indeed mentally retarded.

She has a seizure disorder that is to date

intractable. She has some mild left - sided

findings, mainly a left facial weakness,

decreased corneal, some delay in peripheral

field acknowledgment on the left and an up -

going toe on the left and some weakness on

the left. She has a defi cit in expressive

and receptive language. She also has an

acquired microcephaly . . . . She does not

really fit into the category of PDD or

Autism . . . .

32. As for the cause of Kyara's delays, Dr. Cullen concurs

with Dr. Willis that there is no evi dence that Kyara suffered a

hypoxic insult during labor and delivery. Rather, Dr. Cullen

was of the opinion that her delays resulted from a trauma

induced brain injury occasioned by the use of the vacuum

extractor during delivery. That injury, Dr. Cullen opined, is

on a "cellular level," and not demonstrable by CT scan or MRI.

Dr. Cullen explained his conclusion, as follows:

. . . I think there . . . [was] some

intrapartum compromise of fetal reserve

which, while itself didn't produce brain

injury, sets her up or makes her more

susceptible, if you will, to the traumatic

application of the vacuum extractor, . . .

which resulted in compression of brain

tissue and hemorrhage.

* * *

. . . The traumatic injury then set off a

whole series of events . . . [, including]

compromise of autonomic regulation of

cerebral blood flow [,]. . . vascocon -

striction [,] and release [,] because of the

hypoxia and ischemia [,] of chemical

compounds to further injure the brain.

* * *

. . . From then on the chemical changes are

enforce[] producing . . . the injury . . . .

Something at 8:00, 9:00, 10:00, noon, that

kind of thing. (Petitioners' Exhibit 3,

pages 6, 20, 54, 64, 92, and 93)

33. According to Dr. Cullen, Kyara's brain injury is

global in nature, although more to the right side of the brain

than the left, and is demonstrable by the fact that:

. . . she has gone on now and shown the

mental retardation. She has gone on and

showed a seizure. She has gone on and

showed a left hemiparesis. She has also

gone on and shown a deficit in

expressive/receptive language. She also

developed an acquired microcephaly.

34. The medical records, as well as the testimony of the

physicians offered by the parties, have been reviewed and

weighed. So considered, it must be resolved that the proof does

not permit a conclusion to be drawn, with the requisite degree

of confidence, that Kyara's neurologic impairment resulted from

an injury to the brain caused by oxygen deprivation or

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

resuscitation, as opposed to some other etiology.

35. In reaching such conclusion, it is noted that Kyara's

course pre - delivery and post - delivery was inconsistent with a

hypoxic or traumatically induced brain injury having occurred

dur ing labor, delivery, or resuscitation. First, fetal

monitoring during labor and delivery does not support a

conclusion that Kyara suffered an intrapartum event or events

that led to hypoxic induced or trauma induced brain injury.

Moreover, while Kyara di d require resuscitative measures at

birth, she was quickly stabilized, and her hospital course was

without evidence of perinatal or postnatal complications.

Finally, neither the CT scans nor MRI reveal evidence of brain

damage. 9

36. In resolving that th e proof does not demonstrate, more

likely than not, that Kyara suffered a brain injury during

birth, it is also observed that Kyara's presentation is complex,

and that historically she has evidenced findings consistent with

autism and mental retardation. If clearly autistic, there is

little dispute that Kyara's impairments are most likely

developmentally based. Moreover, if clearly mentally retarded,

there are innumerable explanations for her presentation,

including developmental abnormality; injury befor e birth, during

birth, and after birth; and injury from uncontrolled seizures.

That Kyara's presentation is complex does not simplify the

matter. However, while it cannot be resolved, based on this

record, whether Kyara is autistic, mentally retarded, or both,

it may be resolved that her presentation is consistent or,

stated otherwise, not inconsistent with a developmentally - based

injury.

The dispute regarding notice

37. At the time of Kyara's birth, Section 766.316, Florida

Statutes (1995), prescribed the notice requirements, as follows:

Each hospital with a participating physician

on its staff and each participating

physician . . . shall provide notice to the

obstetrical patients thereof as to the

limited no - fault alternative for birth -

related neurolog ical injuries. Such notice

shall be provided on forms furnished by the

association and shall include a clear and

concise explanation of a patient's rights

and limitations under the plan.

38. Responding to Section 766.16, NICA developed a

brochure title d "Peace of Mind for an Unexpected Problem" (the

NICA brochure) to comply with the statutory mandate, and

distributed the brochure to participating physicians and

hospitals so they could furnish the brochure to their

obstetrical patients.

Findings related to the participating physician and notice

39. Ms. Lawton received her prenatal care at Bay

Gynecological Associates, P.A. (Bay Gynecological), an office

maintained for the practice of obstetrics and gynecology by

Beth Liebowitz, M.D., and George Foster , M.D., in

St. Petersburg, Florida.

40. At the time of Ms. Lawton's initial visit (April 29,

1996), it was the customary practice of Bay Gynecological to

provide all new obstetrical patients with a copy of the NICA

brochure, and to have the patient sign a form acknowledging

receipt of the brochure (the NICA form); however, no such form

is contained within the file of Ms. Lawton and Ms. Lawton denies

having received a NICA brochure. Consequently, it must be

resolved whether, notwithstanding the absence of a signed form

acknowledging receipt of the brochure, as well as Ms. Lawton's

denial, the proof was sufficiently compelling to allow one to

conclude that, more likely than not, Ms. Lawton was provided a

NICA brochure on her initial visit.

41. The proof re garding Bay Gynecological's customary

practice was brief (comprising less than four pages of the

transcript), and limited to the testimony of Sandra Blakeman, a

former employee of Bay Gynecological. Pertinent to her

employment at Bay Gynecological and the issue of notice,

Ms. Blakeman offered the following testimony:

DIRECT EXAMINATION

BY MR. BLEWS:

Q. . . . In 1996 what were your

responsibilities . . . [at Bay

Gynecological]?

A. I saw the OB patients. I brought them

back, did their vital signs, drew their

blood, took them to the doctor's office.

Q. In 1996 was a patient there named Kysha

Lawton?

A. That's my understanding there was.

Q. Yes. And you have reviewed her file

from Bay Gynecological there; is that

correct?

A. Yes.

Q. Was it the policy of Bay Gynecological

at the time of 1996 to have a form signed

acknowledging that the patient had received

the Peace of Mind booklet regarding the NICA

provisions?

A. Yes.

Q. When you reviewed that file was there

any form in there for Kysha Law ton?

A. No, there was not.

Q. Do you remember Kysha Lawton?

A. No, I don't.

Q. And you were the person responsible for

giving notice to the patients of NICA; is

that correct?

A. Yes.

Q. And so you have no memory of her and no

knowledge of whet her any form was or was not

signed?

A. No, I do not. There is an entire packet

of papers that are missing from her chart.

* * *

CROSS - EXAMINATION

BY MR. HENNEN:

Q. Ms. Blakeman, during the years you

worked for that P.A. was it your

responsibili ty throughout that time to

insure [sic] that these papers were -- or to

attempt to insure [sic] these papers were

signed?

A. Yes.

Q. Okay. And were they given, to the best

of your knowledge, to every patient who came

in in an obstetrical fashion?

A. Yes, I gave them to the patients in the

lab before they saw the doctor for the first

time.

Q. Okay.

A. And the papers were all signed and put

in the chart.

* * *

Q. Were the papers that were signed,

including the acknowledgment of the NICA

for m, affixed inside the chart or were they

stuck in there loosely?

A. They were put in there loosely and

affixed later.

42. There are two possible explanations for the absence of

a NICA form in the physician's records. First, that such a form

was nev er presented to Ms. Lawton. If that were the case, then

established practice was not followed, and it would be

speculative to presume, based on such practice, that Ms. Lawton

was provided a NICA brochure. See e.g. , Watson v. Freeman

Decorating, Co. , 455 So. 2d 1097, 1099 (Fla. 1st DCA

1984)("There is a general presumption that the ordinary course

of business has been followed absent a showing to the

contrary.") A second, and also plausible explanation, given the

office routine, is that for some reason th e NICA form was

misplaced. In that case, it would be reasonable to conclude

that, consistent with established routine, Ms. Lawton was

provided a NICA brochure.

43. Here, Intervenors contend that, notwithstanding the

absence of a signed form acknowledgin g receipt of the NICA

brochure, the customary practice of Bay Gynecological to provide

a NICA brochure to all new obstetrical patients should be

accepted as compelling proof that Ms. Lawton was provided a

brochure on her initial visit. As an explanation f or the

absence of the form, Intervenors note that "Ms. Blakeman

testified that an entire packet of papers was missing from

Kysha Lawton's chart," which they contend "may be attributed to

the papers being placed loosely within the chart as opposed to

having never been provided to Ms. Lawton at all."

(St. Anthony's proposed order, filed March 18, 2002, at

paragraph 16 and Dr. Liebowitz's proposed order, filed March 18,

2002, at paragraph 16.) Essentially, Intervenors contend the

form was lost, as opposed to never having existed.

44. Given the proof, or lack thereof, the explanation

Intervenors offered for the absent form was not persuasive.

First, there was no proof, apart from the NICA form, as to what

documents were or should have been generated on Ms. L awton's

initial visit, and no testimony describing the character of the

documents contained in the "entire packet of papers" ostensibly

missing from Ms. Lawton's file. Consequently, there being no

demonstrated correlation between the documents usually gen erated

on the initial visit and the missing packet of papers, it would

not be reasonable to infer that it was the initial documentation

(including the NICA form) that was lost, or that the loss

occurred between the time the papers were placed loosely in th e

file and the later time, when they were routinely affixed.

Second, it is unlikely that patient records, detached from a

patient's file, would go unnoticed in a physician's office, and

not be returned to the file. Therefore, given the absence of a

signe d NICA form, or a reasonable explanation for its absence,

the proof failed to demonstrate, more likely than not, that Bay

Gynecological's customary practice was followed on Ms. Lawton's

initial visit or that she was otherwise provided notice on

behalf of t he participating physician.

Findings related to the hospital and notice

45. As for St. Anthony's Hospital and the notice issue,

the proof demonstrates that prior to Ms. Lawton's admission on

December 16, 1996, St. Anthony's established a practice whereby

the patient financial representative would meet with obstetrical

patients, such as Ms. Lawton (who were pre - registered and

admitted directly to the maternity floor) following admission,

and give the patient NICA notice. In practice, when an

expectant mot her, such as Ms. Lawton, presented to the maternity

floor, financial services would be notified. Thereafter, a

financial representative would come to the patient's room to

obtain a signed Condition of Treatment form, which included four

provisions that, i f applicable, required the patient's initials.

Among those provisions was one acknowledging receipt of NICA

notice. During that meeting, the patient would also be provided

an admission packet that included a Patient Bill of rights;

Medicare Notice; Advan ce Directive Information; an Information

booklet containing important telephone numbers; and a copy of

the NICA brochure.

46. Here, with regard to Ms. Lawton's admission to

St. Anthony's Hospital on December 16, 1996, the proof

demonstrates that, consiste nt with the hospital's practice,

Kim McFadden (then known as Kim Crawford), the financial

representative on duty, met with Ms. Lawton. At the time, it

was Ms. McFadden's practice to present the Conditions of

Treatment form to the patient on a clipboard wi th the back of

the form (Page 2) up. That portion of the form was the one that

required the patient to initial certain provisions, as

applicable, and to acknowledge her understanding of the

provisions of the form by affixing her signature. It was also

Ms . McFadden's practice to point to where on the form the

patient was to initial or sign.

47. Pertinent to this case, the back of the form provided,

as follows:

CONDITIONS OF TREATMENT (continued) Page 2

SPECIAL INFORMATION AND AUTHORIZATIONS

(Please pay close attention)

9. INITIAL Authorization to Release

Information . . . .

10. INITIAL I acknowledge receipt of the

"Important Message from

Medicare" prior to or at the

time of admission. (For any

questions, please call PRO,

1 - 800 - 634 - 6280 or Utilization

Management at the Hospital.[)]

11. INITIAL I acknowledge receipt of the

"Important Message from

CHAMPUS/VA" prior to or at the

time of admission. (For any

questions, please call PRO,

1 - 800 - 634 - 6280 or Utilization

Management at the Hospital.[)]

12. Private Room Request - If a private

room is desired, the undersi gned understands

that the extra charge for the private room

is the responsibility of the undersigned.

The hospital cannot guarantee receipt of a

private room and if at the time of admission

a private room is not available the

undersigned will not be charg ed for the

requested private room.

Private room request: _____ YES _____ NO

Obstetrical Patients Only

13. INITIAL I acknowledge receipt of Peace

of Mind Brochure, Florida Statute § 766.301,

prior to or at the time of admission.

THE UNDERSIGN ED CERTIFIES THAT THE

INFORMATION ON THE FRONT AND BACK OF THIS

SHEET HAS BEEN READ AND IS UNDERSTOOD. THE

UNDERSIGNED IS THE PATIENT OR IS DULY

AUTHORIZED BY THE PATIENT AS THE PATIENT'S

REPRESENTATIVE TO EXECUTE THIS DOCUMENT AND

ACCEPT ITS TERMS.

DATE _______ PATIENT NAME/CHILD_____________

___________________________

Signature of Patient or

Patient's Duly Authorized

Representative

Notably, the form presented to Ms. Lawton had a che ck or slash

mark next to Item 9, as well as the patient signature line, and

the only item initialed on the form signed by Ms. Lawton was

Item 9, relating to Authorization to Release Information.

48. Given Ms. McFadden's practice of pointing to where on

t he form the patient was to initial or sign, as well as the

presence of a check or slash mark next to the only items

initialed or signed by Ms. Lawton, it is reasonable to infer,

since Ms. Lawton did not initial, that the provision relating to

the NICA broc hure ( I tem 13) was not brought to Ms. Lawton's

attention. 10 Consequently, with respect to Ms. Lawton, the

customary practice was not followed. Therefore, the proof

failed to demonstrate that the hospital provided notice (the

NICA brochure), as required b y the Plan.

CONCLUSIONS OF LAW

49. 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.

50. The Florida Birth - Related Neurological Injur y

Compensation 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. Section 766.303(1),

Florida S tatutes.

51. The injured "infant, her or 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. Sections

766.302(3), 766.303 (2), 766.305(1), and 766.313, Florida

Statutes. The Florida Birth - Related Neurological 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 injury

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

Florida Statutes.

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

is a compensable birth - relate d 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,

however, NICA disputes the claim, as it h as in the instant case,

the dispute must be resolved by the administrative law judge in

accordance with the provisions of Chapter 120, Florida Statutes.

Sections 766.304, 766.309, and 766.31, Florida Statutes.

53. 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 demonstrated, to the

satisfaction of the administrative law

jud ge, 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 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 participating physician

at the birth." Section 766.31(1), Florida S tatutes.

54. 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 depriva tion 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

appl y to live births only and shall not

include disability or death caused by

genetic or congenital abnormality.

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

demonstrate that Kyara suffered a "birth - related neurological

injury." Section 766.30 9(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 before an administrative tr ibunal.")

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

more likely than not, Kyara's neurologic impairments resulted

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

or mechanical injury occurring in the course of labor, deliv ery,

or resuscitation." Consequently, the record developed in this

case failed to demonstrate that Kyara suffered a "birth - related

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

Florida Statutes, and the claim is not compensable. Section s

766.302(2), 766.309(1), and 766.31(1), Florida Statutes. See

also Humana of Florida, Inc. v. McKaughan , 652 So. 2d 852, 859

(Fla. 5th DCA 1995)("[B]ecause the Plan . . . is a statutory

substitute for common law rights and liabilities, it should be

stric tly construed to include only those subjects clearly

embraced within its terms."), approved Florida Birth - Related

Neurological Injury Compensation Association v. McKaughan , 668

So. 2d 974, 979 (Fla. 1996).

57. With regard to the notice issue, the burden r ested on

the health care providers to demonstrate, more likely than not,

that the notice provisions of the Plan were satisfied. See

Galen of Florida, Inc. v. Braniff , 696 So. 2d 308, 311 (Fla.

1997)("[T]he assertion of NICA exclusivity is an affirmative

d efense.") See also Balino v. Department of Health and

Rehabilitative Services , supra . Here, for reasons noted in the

Findings of Fact, the hospital and the participating physician

failed to offer compelling proof that they complied with the

notice provis ions of the Plan.

58. 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 copy of such order to

be s ent 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.

CONCLUSION

Based on the forego ing Findings of Fact and Conclusions of

Law, it is

ORDERED that the petition for compensation filed by

Kysha Lawton and Leroy Frazier, as parents and natural guardians

of Kyara Frazier, a minor, is dismissed with prejudice.

DONE AND ORDERED this 8th day o f January, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 4 88 - 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 8th day of January, 2003.

ENDNOTES

1/ Mr. Hennen appeared on behalf of Dr. Liebowitz at the

February 19, 2002 , hearing, and Mr. Linquist appeared on the

doctor's behalf at the November 6, 2002, hearing.

2/ With the parties' agreement, the records of St. Anthony's

Hospital relating to the admission of Kysha Lawton on

December 16, 1996, were copied, and the copie s (filed with DOAH

on April 15, 2002) received into evidence as Petitioners'

Exhibit 2.

3/ Petitioners, Intervenor St. Anthony's Hospital, and

Respondent submitted proposed final orders. Intervenor

Beth Liebowitz, M.D., filed a notice wherein she adopt ed the

proposed final order filed by Intervenor St. Anthony's Hospital.

4/ The Labor and Delivery Flow Sheet reflects the fetus between

station 0 and , but the Nursing Record notes the fetus at - 2

station. The nurse's note is most likely erroneous bec ause that

would reflect a regression from the vaginal examination done at

3:15 p.m., which noted the fetus at 0 station. Such discrepancy

is not, however, important to the resolution of this case.

5/ The Apgar scores assigned to Kyara are a numerical

ex pression 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 thro ugh a maximum score of 2. As noted, at one minute,

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

2, respiratory effort and reflex irritability being graded at 1

each and muscle tone and color being graded at 0. At five

minutes, Kyara's A pgar score totaled 9, with heart rate, muscle

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

respiratory effort being graded at 1.

6/ A "cephalohematoma," also called "cephalhematoma," is "a

subperiosteal hemorrhage limited to the surfa ce of one cranial

bone, a usually benign condition seen frequently in the newborn

as a result of bone trauma." Dorland's Illustrated Medical

Dictionary, Twenty - Sixth Edition.

7/ Dr. Pavan explained the differences between severe

developmental delay (men tal retardation) and pervasive

developmental disorder (autism), as follows:

. . . Pervasive developmental disorder is in

the family of autism. Most children and

adults with autism have what we call

atypical, a different kind of development.

A child deve lopmental delay would have

mental retardation . . . . So a child who

has delayed development, if the child

doesn't catch - up is going to end up with

mental retardation. People with mental

retardation relate normally to other people.

They talk when they'r e intellectually ready

to talk, they walk, they can learn to take

care of themselves. They act just like we

do, except they can't do the higher

intellectual functions that we can do . . .

Autism is an abnormal type of [social]

development where the perso n doesn't make

eye contact, doesn't learn to imitate,

doesn't do social kinds of things that we

expect, like greeting people, saying hello,

saying goodbye when you leave. We, children

learn a great deal about imitating others.

And when children have auti sm they don't do

that imitation. The second part of autism

is that they don't develop language

normally. So a child with autism is likely

to do repetitive kinds of ya - ya, ya - ya, da -

da, da - da, ba - ba, ba - ba kinds of sounds.

They don't make any sense . . . . The

delayed language is a major problem because

it's not just language expression it's also

understanding language. So a child with

autism may not stop when their name is

called. They may just keep doing what

they're doing. They may not respond to s top

or no, and have to be taught a lot of

separate steps so that they can learn. The

third part -- so we've got problems with

social interaction, we have delayed

language, the third one and the last one is

that children with autism tend to have lots

of re petitive types of movements . . . . So

when . . . [we are] talking about pervasive

developmental disorder, . . . [we are]

talking about a child who's much more

complex than a child who just has mental

retardation.

8/ Dr. Pavan's deposition, Petitioners' Exhibit 4, also

includes (as deposition E xhibit 1) a copy of a prior deposition,

taken May 22, 2000.

9/ In resolving that the proof failed to demonstrate, more

likely than not, that Kyara suffered brain injury during her

birth, the opinions of Dr. Culle n have not been overlooked;

however, when his opinions are compared with those of the other

physicians whose testimony was offered, as well as Kyara's

medical history (which, following delivery, did not reveal

evidence of perinatal or postnatal complicatio ns; following CT

scans and MRI imaging did not reveal evidence of brain damage;

following multiple examinations did not reveal evidence of focal

injury; and following multiple examinations revealed that Kyara

did present with elements consistent with, alth ough not always

clearly within, the autistic spectrum), Dr. Cullen's testimony

was less than compelling.

10/ It is commonly known that marks, such as a check or "x", are

placed on documents where the preparer wants the other party to

sign or initial.

COPIES FURNISHED :

(By certified mail)

William F. Blews, Esquire

William F. Blews, P.A.

600 First Avenue, North, Suite 307

Post Office Box 417

St. Petersburg, Florida 33701

Kirk S. Davis, Esquire

Christopher P. Calkin, Esquire

Akerman, Senterfitt & Ei dson, P.A.

Post Office Box 3273

Tampa, Florida 33601 - 3273

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32317 - 4567

B. Forest Hamilton, Esquire

Post Office Box 38454

Tallahassee, Florida 32315 - 8454

James G. Linquist, Esquire

Barr, Murman, Tonelli, Slother & Sleft

201 East Kennedy Boulevard, Suite 1700

Tampa, Florida 33602

St. Anthony's Hospital

1200 - 7th Avenue, N orth

St. Petersburg, Florida 33705

Beth L. Liebowitz, M.D.

1685 Tamiami Trail

Murdoch, Florida 33938

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 final order is entitled

to judicial review pursuant to Sections 120.68 and 766.311,

Florida Statutes. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such proceedings are commenced by

filing the original of a notice of appeal with the Agency Clerk

of the Division of Administrative Hearings and a cop y,

accompanied by filing fees prescribed by law, with the

appropriate District Court of Appeal. See Section 766.311,

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

rendition of the order to be reviewed.