01-002466N Lissette Emilia Reyes And Juan Carlos Prieto On Behalf Of, And As Parents And Natural Guardians Of Caren Prieto, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, July 10, 2002.

Summary: Proof failed to demonstrate that infant`s hemorrhage occurred during labor and delivery, or that infant was substantially mentally impaired. Therefore, claim not shown to be compensable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LISSETTE EMILIA REYES and JUAN )

CARLOS PRIETO, as parents and )

natural guardians of CAREN )

PRIETO, a minor, )

)

Petitioners, )

)

vs. )

) Case No. 01 - 2466N

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 th e above - styled case on May 13, 2002, by video

teleconference, with sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Barbara C. McCauley, Esquire

Post Office Box 566272

Miami, Florida 33 256 - 6272

For Respondent: B. Forest Hamilton, Esquire

Post Office Box 38454

Tallahassee, Florida 32315 - 8454

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Caren Prieto, a

minor, suffered a n injury for which compensation should be

awarded under the Florida Birth - Related Neurological Injury

Compensation Plan.

PRELIMINARY STATEMENT

On June 22, 2001, Lissette Emilia Reyes and Juan Carlos

Prieto, as parents and natural guardians of Caren Prieto (Caren),

a minor, filed a petition (claim) with the Division of

Administrative Hearings (DOAH) for compensation under the Florida

Birth - Related Neurological Injury Compensation Plan (Plan).

DOAH served the Florida Birth - Related Neurological Injury

Compens ation Association (NICA) with a copy of the claim on

June 26, 2001. NICA reviewed the claim and on October 31, 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 Statutes," and requested that "an order [be

entered] setting a hearing in this cause on the issue of

compensability." Such a hearing was held on May 13, 2002.

At hearing, the parties stipulated to the factual matters

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

Lissette Emilia Reyes testified on Petitioners' behalf, and

Petitioners' Exhibit 1 (the medical records filed with DOAH on

June 22, 2001), was received into evidence. Respondent's Exhibit

1 (the deposition of Michael Duchowny, M.D.) and Respondent's

Exhibit 2 (the deposition of Donald Willis, M.D.), were received

into evidence. No other witnesses were called, and no further

exhibits were offered.

The transcript of the hearing was filed June 13, 2002, and

the parties were acc orded 10 days from that date to file proposed

final orders. Respondent elected to file such a proposal, and it

has been duly considered.

FINDINGS OF FACT

Fundamental findings

1. Petitioners, Lissette Emilia Reyes and Juan Carlos

Prieto, are the parents and natural guardians of Caren Prieto, a

minor. Caren, also known as Karen, was born a live infant on

November 18, 2000, at Hialeah Hospital, a hospital located in

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

2. The physician providing o bstetrical services at Caren's

birth was Ramon Hechavarria, 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.

Car en's birth

3. At or about 9:20 p.m., November 18, 2000, Ms. Reyes

(with an estimated date of delivery of December 7, 2000, and the

fetus at 37 weeks gestation) presented to Hialeah Hospital in

labor. At the time, Ms. Reyes reported her membranes had

rup tured at 8:30 p.m., with clear fluid noted, and provided a

medical history that included two previous cesareans and

requested a repeat cesarean section.

4. Initial vaginal examination revealed the cervix at 4 - 5

centimeters dilation, effacement at 60 perce nt, and the fetus at

station - 3, with clear amniotic fluid observed. Uterine

contractions were noted at a frequency of 2 - 3 minutes, and fetal

heart rate was reassuring at 125 - 145 beats per minute, with

accelerations.

5. At 9:30 p.m., Dr. Hechavarria was notified of Ms. Reyes'

status, and a repeat cesarean section was scheduled for later

that evening. In the interim, fetal heart rate continued to be

reassuring. 1

6. According to the records, Ms. Reyes was in the operating

at 11:30 p.m., anesthesia began a t 11:40 p.m., surgery began at

11:45 p.m., and Caren was delivered, without difficulty, at

11:57 p.m.

7. On delivery, Caren was bulb - suctioned, stimulated and

accorded blowby oxygen. Otherwise no intervention was required.

Initial newborn assessment not ed no apparent abnormalities, and

Apgar scores were recorded as 9 at one minute and 9 at five

minutes.

8. The Apgar scores assigned to Caren 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 and five

minutes, Caren's Apgar score totaled 9 , with heart rate,

respiratory effort, muscle tone, and reflex irritability being

graded at 2 each, and color being graded at 1. Such scores are

considered normal, and inconsistent with recent hypoxic insult or

trauma.

9. Following the initial newborn as sessment, Caren was

transported to the newborn nursery, where she remained until

approximately 7:25 a.m., November 20, 2000, when she was

transferred to the neonatal intensive care unit (NICU) for septic

workup. At the time, some fever was detected and a positive c -

reactive protein (CRP) test was returned, consistent with, but

not diagnostic of, the presence of an infectious process. 2 Blood

culture was ordered, and Caren was started on a regime of

antibiotics (Ampicillin and Gentamycin).

10. Following ad mission to the neonatal intensive care

unit, Caren evidenced no distress until 7:05 a.m., November 21,

2000, when "what appeared to be a mild tremor . . . for about

five seconds" was noted. Thereafter, at 11:00 a.m., Caren was

noted to have a "jerking mov ement [and] twitching of [right]

arm," and at 12:00 (noon), during the course of an

electroencephalogram (EEG) "twitching of [the right] leg" was

noted. In response, Caren was given a loading dose of

Phenobarbital, and a head ultrasound was ordered.

11. The results of the EEG were abnormal. Impression was:

ABNORMAL STUDY DUE TO THE PRESENCE OF

FREQUENT INTERICTAL EPILEPTIFORM ACTIVITY AS

WELL AS INTERMITTENT BRIEF SEIZURE ACTIVITY

THAT APPEARED PREDOMINANTLY ON THE

LEFT . . . .

The head ultrasound was also abnormal, and revealed a "left

intraventricular and right caudate hemorrhage."

12. At 5:30 p.m., November 21, 2000, Caren was transferred

to Jackson Memorial Hospital (JMH) and remained at that facility

until discharged to her mother's care on Januar y 3, 2001.

Caren's subsequent development

13. On September 4, 2001, following the filing of the

subject claim, Caren was examined by Dr. Michael Duchowny, a

physician board - certified in pediatrics, neurology with special

competence in child neurology, an d clinical neurophysiology.

Dr. Duchowny reported the results of his neurology evaluation, as

well as the history he obtained from the parents, as follows:

HISTORY ACCORDING TO MR. AND MRS. PRIETO:

The mother began by explaining that Karen is

10 months o ld, but has a significant delay.

She has just begun rolling over and is unable

to sit up on her own. She attends the

rehabilitation program at Jackson Memorial

Hospital here in Miami and receives physical

therapy twice weekly.

Mrs. Prieto indicated that Karen was "born

normal". In the first week of life she was

noted to have evidence of bulging fontanelle

and hydrocephalus was diagnosed. A right

ventricular peroneal shunt was performed and

it is still in place and functional. Her

head circumferences h ave been followed at

Jackson Memorial Hospital by Dr. Isidro

Lopez, Karen's pediatrician.

Karen experienced a flurry of seizures in the

first week of life. She was placed on

phenobarbitol and remains on 4 cc b.i.d. She

has had no further seizures.

Mrs. Prieto has also noted that Karen's

"right eye turns in" and she feel[s] that her

"left arm is weak". Her thumb was fisted in

the past, but has opened up at this point.

Karen's vision and hearing are said to be

normal and her feeding has been quite stabl e.

She sleeps through the night. There has been

no recent exposure to toxic or infectious

agents.

* * *

PHYSICAL EXAMINATION today reveals an alert,

pleasant and socially responsive 10 - month - old

infant who sits on her mother's lap. The

skin is war m and moist. There is a right

asymmetry with the right eye appearing

smaller than the left. There are no other

dysmorphic features and no evidence of

dysraphism. The right VP shunt is palpated

and appears normal. Her head circumference

measures 40.6 c m and the anterior and

posterior fontanelles are both patient and

flat. The neck is supple without masses,

thyromegaly or adenopathy and the

cardiovascular, respiratory and abdominal

examinations are normal. There are no

neurocutaneous stigmata.

NEUROLO GICAL EXAMINATION reveals evidence of

a child with significant motor delay. Karen

can roll over in both directions, but clearly

lacks the ability to sit on her own. She has

generalized hypotonia with bilateral

hyperreflexia and extensor plantar responses .

Her head control is poor. The tonic neck

response is present and not obligate in both

directions. Moro response is absent. There

is no force grasping or sucking responses and

I saw no evidence of fisting of the thumbs.

There are no adventitious move ments, focal

weakness or atrophy. At the same time, Karen

does have an asymmetry of movement where by

she moves the right arm more than the left.

There is full range of movement on the left

however. The cranial nerves examination

reveals no visual field s to confrontation

testing. There is an alternating isotropia,

more prominent on the right. Pupils are 3 mm

and briskly reactive to direct and

conceptually presented light. There are no

funduscopic abnormalities. Sensory

examination is intact to withdr awal of all

extremities to touch. The neurovascular

examination is unremarkable. Karen has no[ ]

evidence of sitting balance and has poor head

control.

In SUMMARY, Karen's neurologic examination is

significant for marked motor developmental

delay with a n asymmetry of movement. She

additionally has hydrocephalus which is

stable and has an alternating isotropia which

is being followed by Ophthalmology. Her

seizures are no longer a clinical problem and

I suspect that her medications will be

withdrawn in t he near term. An EEG would be

appropriate.

14. As for Caren's mental development, Dr. Duchowny

expressed his views as follows:

. . . It is very hard to assess her mental

development at age 10 months.

You know, I think that her mental

development i s difficult to assess, but I

didn't find evidence of a severe mental

impairment in that she was aware and socially

responsive.

15. Here, the only proof of record regarding Caren's mental

development are the observations and opinions expressed by

Dr. Du chowny. Consequently, while it may be fairly resolved that

Caren has suffered a significant or substantial motor impairment,

there is no proof of record to support a conclusion that she is

substantially mentally impaired.

The cause and timing of Caren's n eurologic insult

16. To address the issue of whether Caren's impairments

were associated with an "injury to the brain or spinal cord . . .

caused by oxygen deprivation or mechanical injury occurring in

the course of labor, delivery, or resuscitation in t he immediate

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

under the Plan, Petitioners offered selected medical records

relating to Caren's birth and subsequent development, and

Respondent offered the deposition testimony of Dr. Duchowny,

w hose qualifications were previously noted, and the deposition

testimony of Dr. Donald Willis, a physician board - certified in

obstetrics and gynecology, as well as maternal - fetal medicine.

17. As for the cause and timing of Caren's impairments, it

was Dr. Duchowny's opinion, based on the results of his

neurologic examination and review of the medical records, that

Caren's impairments were caused by the intercranial hemorrhage

she suffered after birth, and are not related to the birth

process. More particul arly, Dr. Duchowny expressed his views, as

follows:

Q. Did you form any opinions as to the

etiology of her physical and mental

impairment?

A. Yes, I did. I thought that her

impairment[s] were due to the intercranial

hemorrhage, the hydrocephalus that s he

developed after birth.

Q. Did you form an opinion -- you indicated

after birth. Did you have a more specific

indication of the timing of the hydrocephalus

and the hemorrhage? Indication as to time.

A. Review of the records suggest that the

hemorrh age probably occurred on the third day

of life.

Q. What in the medical records indicated to

you that it was the third day in life?

A. Her post - natal course was essentially

uncomplicated until the third day of life

when she developed seizures. At that time,

an ultrasound revealed the evidence of

hemorrhage and she had a left

intraventricular hemorrhage and also a

hemorrhage on the right side as well.

This was, from a timing standpoint

suggest[s] to me that that was when -- the

seizures would sugges t to me that was the

timing of the hemorrhage, since there had

been no abnormalities prior to that time.

Q. In your review of the medical records,

did you specifically look at the records

pertaining to Karen's birth itself?

A. Yes, I did. Yes.

Q. An d what were your opinions as to her

delivery course?

A. I thought there was no problem[ ] that I

could detect either during labor[,] delivery

and even in the immediate post - natal period.

Things actually were quite stable.

And I don't think that the re is any

indication from the medical records that she

had any serious problem ongoing at that

point.

Q. What is your opinion as to Karen's

condition, her prognosis and their

relationship to your understanding of the

NICA statute as far as whether or not they

were birth - related injuries?

A. . . . I think that the timing of the

acquisition of her neurological impairment is

most constant with events after birth. And

that the intra partum period, during labor

and delivery were, in fact, not relevant to

Ka ren's neurologic problems.

Q. . . . [If there were an injury during

labor and delivery], how would you expect

that to manifest itself . . . [at birth]?

* * *

A. I think there would be evidence that the

newborn had sustained some injury and that

would include items such as depressed Apgar

scores, absence of respiration requiring

intubation, immediate seizures. Evidence of

systemic damage such as cardiac, liver or

kidney damage, shock, dissimilar

intravascular coagulation, I think would be

some of the things that I would look for to

indicate that there had been a significant

problem during labor and delivery.

Q. And in your review of the medical

records, did you find any of the things that

you have just mentioned?

A. No. No, I didn't.

As f or Dr. Willis, he was also of the opinion that the medical

records revealed no evidence of oxygen deprivation or other

trauma associated with Caren's birth.

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

physicians and Ms. Reyes, have been caref ully considered. So

considered, it must be concluded that the proof failed to

demonstrate, more likely than not, that any impairment Caren

suffers was occasioned by an injury to the brain or spinal cord

caused by oxygen deprivation or mechanical injury oc curring in

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

post - delivery period.

CONCLUSIONS OF LAW

19. 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.

20. The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims" rel ating to births

occurring on or after January 1, 1989. Section 766.303(1),

Florida Statutes.

21. The injured "infant, his personal representative,

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

under the Plan by filing a claim for compensat ion 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 o f 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.

22. If N ICA 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. Secti on 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. Sect ions 766.304, 766.307, 766.309, and

766.31, Florida Statutes.

23. 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 -

relate d 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

ren dered 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 particip ating 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 resu scitation 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

ob stetrical services were delivered by a participating physician

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

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

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

mean:

. . . injury to th e 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 death caused by genetic or

congenital abnormality.

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

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

asserting the affirmative issue before an administrative

tribunal.")

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

more likely than not, Caren suffered an injury to the brain or

spinal cord caused by oxygen deprivation or mecha nical injury

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

the immediate post - delivery period in the hospital, or that any

injury she did receive rendered her permanently and substantially

mentally and physically impaired. Consequently, the record

developed in this case failed to demonstrate that Caren 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. Sections 766.302(2), 76 6.309(1),

and 766.31(1), Florida Statutes. 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 Compe nsation

Association , 813 So. 2d 155 (Fla. 4th DCA 2002).

27. 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 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.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the petition for compensation filed by

Lissette Emilia Reyes and Carlos Prieto, as parents and natural

guardians of Caren Prieto, a minor, be and the s ame is hereby

denied with prejudice.

DONE AND ORDERED this 10th day of July, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative H earings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Adm inistrative Hearings

this 10th day of July, 2002.

ENDNOTES

1/ There is only one incident of decreased fetal heart rate

noted in the medical records, and that occurred at 10:50 p.m.,

when a variable deceleration was noted to 85 beats per minute,

w ith a quick recovery to baseline. Such an isolated incident is

not consistent with fetal distress, and does not detract from the

conclusion that fetal heart rate continued to be reassuring

during labor. (Respondents' Exhibit 2, at pages 25 and 26).

2. CRP testing is a basic screening test for infection but,

since a positive result is consistent with an inflammation of

infectious or noninfectious origin, it is not diagnostic. Here,

Sepsis was always suspected, but not confirmed. If confirmed,

Sepsis mi ght offer a reasonable explanation for the hemorrhage

Caren suffered. (Dorland's Illustrated Medical Dictionary,

Twenty - sixth Edition (1985); Respondent's Exhibit 1, at pages 14,

15, and 17; and Respondent's Exhibit 2, at pages 8 and 9).

COPIES FURNISHE D:

(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

B. Forest Hamilton, Esquire

Post Office Box 38454

Tallahassee, Florida 32315 - 8454

Barbara C. McCauley, Esquire

Post Office Box 566272

Miami, Florida 33256 - 6272

Ramon Hechavarria, M.D.

Medical Arts Building

1190 Northwest 95th Street

Miami, Florida 33150 - 2063

Hialeah Hospital

651 East 27th St reet

Hialeah, Florida 33013 - 3637

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

Tal lahassee, 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 Flo rida

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 appropria te District

Court of Appeal. See Section 120.68(2), Florida Statutes, and

Florida Birth - Related Neurological Injury Compensation Association

v. Carreras , 598 So. 2d 299 (Fla. 1st DCA 1992). The Notice of

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

be reviewed.