02-002021N Rebekah Leah Scarfone, Individually And As Mother And Natural Guardian Of Madison Mccorkle, Iii vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, October 24, 2003.

Summary: The proof demonstrated that the infant was not permanently and substantially mentally and physically impaired. Therefore, the claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REBEKAH LEAH SCARFONE, )

individually and as mother and )

natural guardian of MADISON )

MCCORKLE, III, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2021N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Responden t, )

)

and )

)

STANLEY E. ROSEWATER, M.D. AND )

OB - GYN ASSOCIATES OF PINELLAS )

COUNTY, P.A.; MORTON PLANT )

MEASE HEALTHCARE, INC., d/b/a )

MORTON PLANT HOSPITAL; )

UNIVERSITY OF SOUTH FLORIDA )

BOARD OF TRUSTEES; and FLORIDA )

BOARD OF EDUCATION, )

)

Intervenors. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings,

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

hearing i n the above - styled case on August 5, 2003, in St.

Petersburg, Florida.

APPEARANCES

For Petitioner: Frances G. Prockop, Esquire

Gunn Merlin, P.A.

Suite 950

777 South Harbour Island Boulevard

Tampa, Florida 33602

For Respondent: Donald W. Whitte more, Esquire

Andrew W. Rosin, Esquire

Phelps Dunbar, LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

For Intervenors Stanley E. Rosewater, M.D. and Ob - Gyn

Associates of Pinellas County, P.A.:

John D. Kiernan, Esquire

Abb ey, Adams, Byelick, Kiernan,

Mueller & Lancaster, LLP

Post Office Box 1511

St. Petersburg, Florida 33731

For Intervenor Morton Plant Mease Healthcare, Inc.,

d/b/a Morton Plant Hospital:

David S. Nelson, Esquire

Barr, Murman, Tonelli, Sloth er & Sleet

201 East Kennedy Boulevard, Suite 1700

Post Office Box 172669

Tampa, Florida 33672 - 0669

For Intervenors University of South Florida Board of

Trustees and Florida Board of Education:

Glenn M. Burton, Esquire

Burton, Schulte, Week ley, Hoeler,

Robbins & Beytin, P.A.

100 South Ashley Drive, Suite 600

Post Office Box 1772

Tampa, Florida 33601 - 1772

For Intervenors Community Health Centers of Pinellas,

Inc., d/b/a Mother and Child Care of Clearwater:

G. Andrew Willers, Esquire

Burton, Schulte, Weekley, Hoeler,

Robbins & Beytin, P.A.

100 South Ashley Drive, Suite 600

Post Office Box 1772

Tampa, Florida 33601 - 1772

STATEMENT OF THE ISSUES

1. Whether Madison McCorkle, III, a minor, qualifies for

coverage under the Flo rida Birth - Related Neurological Injury

Compensation Plan (Plan).

2. Whether the notice provisions of the Plan were satisfied

by the participating physician.

PRELIMINARY STATEMENT

On May 13, 2002, Rebekah Leah Scarfone, individually, and as

mother and nat ural guardian of Madison McCorkle, III (Madison), a

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

Administrative Hearings (DOAH) for compensation under the Florida

Birth - Related Neurological Injury Compensation Plan. Pertinent

to this case, apart f rom contending that Madison suffered an

injury compensable under the Plan, Petitioner also sought to

avoid a claim of Plan immunity by averring that, and presumably

requesting a finding that, the participating physician failed to

comply with the notice pro visions of the Plan. 1

DOAH served the Florida Birth - Related Neurological Injury

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

May 20, 2002, and on December 13, 2002, NICA served its response

to the claim, and denied that Madison suffered a "b irth - related

neurological injury," as that term is defined by the Plan. In

the interim, Stanley E. Rosewater, M.D.; OB - GYN Associates of

Pinellas County, P.A.; Morton Plant Mease Healthcare, Inc., d/b/a

Morton Plant Hospital; University of South Florida B oard of

Trustees; and Florida Board of Education, were accorded leave to

intervene. Thereafter, at hearing, Community Health Centers of

Pinellas, Inc., d/b/a Mother and Child Care of Clearwater, was

also accorded leave to intervene.

Given the pleadings, a nd the parties' Pre - Hearing

Stipulation, a hearing was held on August 5, 2003, to resolve

whether Madison qualified for coverage under the Plan and whether

the notice provisions of the Plan were satisfied by the

participating physician.

At hearing, Petit ioner's Exhibit 1 (the medical records

filed with DOAH on May 13, 2002), Respondent's Exhibits 1 - 3,

Intervenor Morton Plant Hospital's (Hospital's) Exhibits 1 and 2,

and Intervenors' Stanley E. Rosewater, M.D., and OB - GYN

Associates of Pinellas County, P.A . (Doctor's) Exhibits 1 - 3, were

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

exhibits were offered.

The hearing transcript was filed September 8, 2003, and the

parties were accorded 10 days from that date to file proposed

orders. Int ervenors and Respondent elected to file such

proposals and they have been duly considered.

FINDINGS OF FACT

Preliminary Findings

1. Petitioner, Rebekah Leah Scarfone, now Rebekah Scarfone

Jackson, is the mother and natural guardian of Madison McCorkle,

III, a minor. Madison was born a live infant on June 2, 1999, at

Morton Plant Hospital, a hospital located in Pinellas County,

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

2. The physician providing obstetrical services at

Madison's birth was Stan ley E. Rosewater, M.D., who, at all times

material hereto, was a "participating physician" in the Florida

Birth - Related Neurological Injury Compensation Plan.

Madison's Birth

3. At or about 1:15 a.m., June 2, 1999, Ms. Scarfone (with

an estimated date of delivery of June 3, 1999, and the fetus at

term) presented to Morton Plant Hospital, in labor. At the time,

Ms. Scarfone's membranes were noted as intact, and vaginal

examination revealed the cervix at three centimeters dilation,

effacement at 90 percent , and the fetus at - 1 station.

Contractions were noted at a frequency of four minutes, with a

duration of 70 - 80 seconds, and fetal monitoring revealed a

reassuring fetal heart rate, with a baseline of 125 - 130 beats per

minute.

4. From 1:15 a.m. until 3: 48 p.m., when she was first

evaluated by Dr. Rosewater, Ms. Scarfone's labor progress was

slow, but steady, and fetal monitoring continued to reveal a

reassuring fetal heart rate. At 3:48 p.m., Dr. Rosewater's

vaginal examination revealed the cervix at ni ne centimeters,

effacement at 100 percent, and the fetus at 0 station.

5. Thereafter, commencing at or about 4:35 p.m., and

continuing until 6:00 p.m., when the fetal heart rate was noted

at 50 - 60 beats per minute and Ms. Scarfone was moved to the

operat ing room for a stat forceps delivery, a pattern of

deceleration in fetal heart rate developed.

6. Following admission to the operating room, at 6:13 p.m.,

the fetal heart rate was noted in the 160 beat per minute range,

anesthesia was started at 6:15 p.m ., forceps were applied by

Dr. Rosewater at or about 6:25 p.m., and Madison was delivered at

6:29 p.m. According to the delivery notes, the cord was observed

around the baby's shoulder during delivery, and reduced, and

following delivery the baby was bulb suctioned on the perineum

and taken to a warmer for resuscitation by the neonatology team.

7. At delivery, Madison was depressed (limp, without

spontaneous respiration), and required positive pressure

ventilation for about one minute before spontaneous r espiration

was achieved. Apgar scores were recorded as 2, 7, and 7, at one,

five and ten minutes, respectively. 2

8. Following delivery, Madison was transferred to the

neonatal intensive care unit (NICU) and at or about 10:15 a.m.,

June 3, 1999, with evid ence of seizure activity, he was

transported to All Children's Hospital for further management.

On discharge from All Children's Hospital on July 1, 1999,

Madison's Neonatal Discharge Summary described his history as

follows:

Discharge Diagnoses:

1. Te rm Male Infant

2. Perinatal Depression

3. Hypoxic Ischemic Encephalopathy

4. Seizures

5. Right Optic nerve Hypoplasia and Left

Macular Edema

6. Acute Tubular Necrosis

7. Evolving Encephalomalacia

8. Right Submandibular Fat Necrosis

* * *

HISTO RY: Baby Boy Scarfone was born by a

forceps delivery with a vertex presentation to

a 20 year old G1P0 mother. Apgars were 2,7,

and 7 and 1, 5, and 10 minutes respectively.

Birth weight was 3210 gms and estimated

gestational age was term. Maternal histo ry

was significant for: blood type A, HBS Ag - ,

RPR nonreactive, and Group B strep negative.

During labor there were deep variable

decelerations. The mother took prenatal

vitamins and received Pitocin. This was a

forceps delivery and the cord was noted to be

around the body. Delivery room resuscitation

included whiffs of oxygen and positive

pressure ventilation via mask. Care at the

referring hospital included intubation and

ventilation, peripheral IV fluids, umbilical

arterial catheter placement, Dop amine, normal

saline boluses x 3, and sodium bicarbonate

were given. Cranial ultrasound was

performed. [ 3 ] Blood cultures were drawn and

Ampicillin and Gentamicin initiated. The

infant was noted to have 4 episodes of seizure

activity and was started on Phenobarbital.

The infant was transferred to All Children's

Hospital for perinatal depression and

seizures.

RESPIRATORY: The infant was admitted on room

air. The initial chest x - ray showed clear

lung fields.

The infant developed stridor, with feeding s,

at 21 days of life. A Pulmonology consult was

obtained. An OPMS study was recommended. No

evidence of aspiration or suck, [s]wallow,

incoordination was noted. The pulmonologist

did not feel a bronchoscopy was needed at this

time.

The infant had a s leep study performed with pH

probe at 21 days of life. There were numerous

central apneas and transient desaturations.

There was no evidence of reflux. The infant

was also studied in a car seat which showed

intermittent central apnea, mixed apnea, and a

few obstructive apneas and desaturations. The

infant will be discharged home with an apnea

monitor. He will also receive oxygen and when

traveling will be placed in a car bed. He

will have Pulmonology follow up 2 weeks after

hospital discharge.

CARD IOVASCULAR: The infant had hypotension

due to perinatal depression at newborn day of

age and required treatment with volume

expansion and Dopamine for 4 days.

* * *

INFECTION: Blood cultures were obtained at

the referring hospital. The infant was

star ted on Ampicillin and Gentamicin.

Gentamicin was discontinued due to increased

creatinine level. Ampicillin was continued

for a total of 3 days.

* * *

CENTRAL NERVOUS SYSTEM: The infant was

admitted with a diagnosis of seizures which

were treated wi th Phenobarbital, Dilantin, and

Ativan. The infant was evaluated by

Neurology. A CT scan at 1 day of age for

perinatal depression revealed bra[i]n edema in

the left parietal/occipital region. A MRI, at

5 days, revealed probably left cerebellar

intrapare nchymal subacute hemorrhage, abnormal

signal in the left hemisphere and basal

ganglia probably representing infarction.

The infant was evaluated by Ophthalmology on

6/4/99 for retinal (macular) edema and right

optic nerve hypoplasia. [H]e will be follow ed

by Ophthalmology.

A repeat CT scan, at 19 days of life, revealed

evolving encephalomalacia. A follow up EEG at

22 days of age was within normal limits.

At the time of hospital discharge the infant

is receiving Phenobarbital with the last level

14.4. He will be followed by Neurology and

have a follow up Phenobarbital level in one

week.

Due to the history of perinatal depression the

infant will require developmental follow up,

occupational therapy, and physical therapy

intervention. . . .

Discharge planning included follow - up with his pediatrician at

Mother and Child Care (Dr. K. Adnan); Ophthalmology (Dr. J. Bruce

Hess); Neurology (Pediatric Neurology Associates, P.A.);

occupational therapy/physical therapy (Morton Plant Hospital -

Barrett Center, O utpatient Rehabilitative Services); and the

Early Intervention Program.

Madison's Subsequent Development

9. Madison received a physical therapy evaluation at the

Barrett Center on July 13, 1999, and an occupational therapy

evaluation on August 10, 1999, t o assess his need for

rehabilitative services. Assessment on physical therapy

evaluation was, as follows:

Musculoskeletal Status

Madison presents normal to mild high tone.

Range of motion marked by tightness in hip and

knee flexion; range of motion of fe et within

normal limits for his age, but Madison has a

tendency to maintain feet dorsiflexed.

Madison has increased flexion recoil of lower

extremities during range of motion testing and

when placed in various positions.

Recommendation was "[s]tart Physi cal Therapy services once a

week; re - evaluation in six months." Assessment on occupational

therapy evaluation was, as follows:

Madison had normal tone in his upper

extremities. He had the age appropriate grasp

reflex. Passive and active range of motion of

the upper extremities was within normal

limits.

Under the circumstances, occupational therapy was not

recommended, but follow - up screening in three months to monitor

progress was suggested. Thereafter, by February 8, 2000,

Madison was also receiving occupational therapy.

10. Madison had his first evaluation under the Early

Intervention Program on August 2, 1999. The results of that

evaluation were reported, as follows:

Neurological Dubowitz is done with the patient

in quiet alert state. Although he cries to

aversive stimuli, he consoles readily with

holding and a nipple. Movement and tone

reveals symmetric arm and leg recoil. Flexion

responses are initial in upper and lower

extremities. There is some increase in tone

in the lower extremities. Although head lags

behind the body when brought from supine to

sitting, in supported sitting he attempts to

bring head upright from both anterior and

posterior positions. In prone, he rolls head

to the side and brings hand to shoulder level.

No abnormal movements are noted. Reflexes

indicate symmetric Moro response. Walking

reflex is present. Palmar grasp is

maintained. Suck is regular with good

stripping. Neurobehavior includes conjugate

eye movements, turning toward a rattle, and

following a bright object horizontally and

vertically.

* * *

Dubowitz Neonatal Neurological Examination is

suspicious due to increased tone in the lower

extremities.

* * *

EARLY INTERVENTION PROGRAM PLAN:

* * *

Recommend continuing with physical therapy on

weekly basi s.

11. Madison was re - evaluated under the Early Intervention

Program on May 12, 2000. According to standardized testing,

Madison's cognitive skills were considered at risk for delay for

his chronological age of 11 months 10 days; however,

communication screening indicated his receptive and expressive

language skills were age - appropriate. Neurological examination

revealed that tone was mildly low, movements symmetrical.

Recommendation was to follow - up in six months to monitor

Madison's growth and devel opment.

12. Madison's next evaluation under the Early Intervention

Program was on November 10, 2000, at age 17 months 8 days. At

the time, assessment was "[c]ognitive skills are delayed at a 13

month age level"; [m]otor skills are within normal limits at a 16

month age level"; and "[c]ommunication skills are in an at risk

category with both receptive and expressive language at a 14

month level." Based on such evaluation, a homebound teacher was

recommended one hour per week to work on cognitive and

commu nication skills, and physical or occupational therapy were

no longer deemed developmentally necessary. Nevertheless,

according to the records of Pediatric Neurology Associates,

discussed infra , physical and occupational therapy continued.

Subsequently, i n early 2001, Madison was also accorded speech

therapy.

13. Madison's initial evaluation at Pediatric Neurology

Associates, was on August 2, 1999. The results of that

evaluation were noted, as follows:

This 2 month old was seen for a hospital

follow - up f or experiencing difficulties at

birth. He has suffered perinatal depression

and then neonatal seizures. There have been

no seizures since hospitalization.

* * *

PHYSICAL EXAMINATION: The patient is a well -

developed, well - nourished 2 month old white

m ale. Head circumference is 38.5 centimeters,

which is at the 50th percentile. There are no

skin rashes noted. Anterior fontanel is soft

and flat. Head and facies are symmetric

without dysmorphic features. He does track

objects. The pupils are equal, round, and

respond to light, and constrict, bilaterally,

to light. The conjunctivae are pink.

The funduscopic examination demonstrates a

positive red reflex. Tongue and palate are

symmetric. There is upper respiratory

congestion. Neck is supple withou t

lymphadenopathy. Chest is clear to

auscultation, bilaterally. Heart demonstrates

regular rate and rhythm with normal S1 and S2.

Spine is straight without masses, lesions, or

dimples. Abdomen is soft and round without

hepatosplenomegaly or tenderness. Full range

of motion noted. There are no motor

asymmetries identified. Tone is within normal

limits. Deep tendon reflexes are .

Response to plantar stimulation is withdrawal,

bilaterally.

LABORATORIES: EEG, performed 06/04/99, is

abnormal because of excessive sharp transients

in the left posterior and central vertex

region. EEG, performed 06/22/99, is normal.

CT of the brain, 06/21/99, demonstrates

peripheral foci of abnormal low density within

the left parietal occipital region. High left

pari etal convexity and possibly more

anteriorly within the left parietal lobe, as

above. These regions likely represent

evolving and encephalomalacia, possibly

secondary to infarction, infection, or other

brain insult. MRI of the brain, 06/07/99,

demonstrate s probably left cerebellar

intraparenchymal early subacute hemorrhage.

Abnormal signal in the left hemisphere,

especially parietal occipital and in the basal

ganglia (especially right thalamus) probably

represents infarction. Phenobarbital level,

06/14/9 9, is 19.2 (15 to 40).

IMPRESSION:

1. Hypoxic ischemic encephalopathy.

Seizures, which are currently under control.

Perinatal depression.

2. Right optic nerve hypoplasia.

PLAN:

1. Will obtain Dr. Hess' ophthalmologic

report. [ 4 ]

2. Will begin weanin g Phenobarbital . . . .

14. Madison was also seen at Pediatric Neurology

Associates (or Children's Medical Services Clinic) on

November 12, 1999, February 8, 2000, November 27, 2001,

and June 26, 2002. Initially, Ms. Scarfone reported no

evidence of se izure activity, abnormal movements, or

altered consciousness; however, on November 27, 2001,

she reported a paroxysmal episode ("a spasm or seizure")

had occurred, about two weeks previous. A CT of the

brain on November 30, 2001, demonstrated:

1. Small f ocal area of decreased attenuation

in the high left parietal area peripherally.

This probably represents a small area of

encephalomalacia.

2. No definite additional areas of abnormal

attenuation are identified. Specifically, the

fairly prominent area of low attenuation seen in

the left posterior parietal area on the previous

study of 06/21/99 is no longer seen. No new

abnormalities are appreciated.

15. Subsequently, on June 26, 2002, Ms. Scarfone reported

paroxysmal episodes, at one episode per mont h for the previous

four to five months. At the time, the "Plan" included "[f]ollow -

up in C[hildren's] M[edical] S[ervices] within the next two to

four months," "[i]n the meantime, obtain a CT of the brain,

noncontrast and repeat the EEG," and "[i]f episod es should

continue, may consider an empirical trial of anticonvulsant

therapy."

16. On October 3, 2002, Madison had a prolonged seizure.

At the time, the head CT scan was negative; however, EEG of

October 4, 2002, was abnormal, and Madison was placed on

maintenance Dilantin, which, given allergic reaction, was changed

to Depakene and then to Keppra. Madison's follow - up visit at

Pediatric Neurology Associates on December 18, 2002, was

reported, as follows:

This 3 year old returns for a follow - up for

hi story of hospitalization for seizure

exacerbation.

His mother reports his seizures usually start

with waking up out of his sleep with coughing

and then vomiting. He will stare and then go

into tonic - clonic activity. The last event

was one to two weeks ago.

DEVELOPMENT: He is in multimodal therapies at

school for a history of developmental delay.

PAST MEDICAL HISTORY: He has a history of

anoxic encephalopathy and seizures.

PHYSICAL EXAMINATION: The patient is a 3 year

old, male weighing 43 pounds (19.5 kilograms).

Height 39 - 3/4 inches. Blood pressure is

86/44. Heart rate is 108. There are no skin

rashes noted.

* * *

The extraocular movements are full and intact

without nystagmus noted. The pupils are

equal, round, and respond to light, and

constrict bilaterally to light. Convergence

is positive. Conjunctivae are pink. The

funduscopic exam demonstrates discs of normal

color and sharp margins with no hemorrhage or

exudates. He is slightly impulsive during the

exam. The neck is supple with out

lymphadenopathy. The heart demonstrates

regular rate and rhythm with normal S1 and S2.

Full range of motion. Tone is slightly low.

Reflexes are . Gait is without ataxia.

* * *

IMPRESSION:

1. Seizure reoccurrence.

PLAN:

1. Continue with Kep pra . . . .

3. Follow - up will be in the CMS Clinic with

Dr. Casadonte . . .

17. Dr. Casadonte reported the results of his follow - up of

April 18, 2003, as follows:

Madison McCorkel [sic] presents to the CMS

clinic. He's a child with seizures secondary

to anoxic encephalopathy experienced at birth.

He's on Keppra . . . . Mom reports he's had

only one event in two months. The events are

stereotypically where he awakens from his

sleep. He coughs and stares. They last

several minutes and then he's sle epy

afterwards.

He is three years 10 months . . . .

He's alert.

Pupils are equal and reactive.

His face is symmetric.

He moves his extremities equally.

He attends Fuguitt Elementary through the

FDLRS program.

The plan is to continue Keppra . . . .

18. Notably, Madison's medical records fail to support a

conclusion that he is substantially mentally or physically

impaired, much less permanently impaired, and none of his

treating physicians has expressed such an opinion. It is also

worthy of note that, w hile Respondent presented the testimony of

Dr. Michael Duchowny, discussed infra , to address the issues,

neither Petitioner nor Intervenors, although they had the burden

to prove Madison suffered a birth - related neurological injury,

offered any expert test imony to establish that Madison's current

deficits resulted from a brain injury caused by oxygen

deprivation or mechanical injury occurring in the course of

labor, delivery, or resuscitation, or that Madison was

permanently and substantially mentally and p hysically impaired.

19. Dr. Duchowny, a physician board certified in

pediatrics, neurology with special competence in child neurology,

and clinical neurophysiology, examined Madison, at NICA's

request, on September 11, 2002, and reported the results of h is

evaluation, as follows:

Madison's NEUROLOGIC EXAMINATION reveals him

to be overactive, inattentive, and impulsive.

He maintains poor eye contact and it is

difficult to keep him on track for the

evaluation. He is quite defensive and, for

example, fends off attempts to have his fundi

looked at in detail. There are marked

imitative gestures and repetitive movements.

He tends to wave goodbye throughout the

evaluation in a semi - repetitive fashion. The

speech sounds are poorly articulated for

lingual, lab ial, and guttural consonance and

it is very difficult to understand his speech

output. He tends to speak in one or two

words. He could identify some body parts but

not others and was not able to articulate

colors in any specific fashion. It was

difficul t to keep his attention span on track.

The cranial nerve examination reveals full

visual fields to direct confrontation testing.

He blinks to threat in both directions and

reacts to sound in all planes. The pupils are

3mm and briskly reactive to direct and

consensually presented light. I could not get

a full fundoscopic evaluation. The tongue and

palate move well. The uvula is midline.

Motor examination reveals symmetric strength

and bulk. His tone is slightly diminished

throughout and his movements are

uncoordinated. He postures his outstretched

hands in a very marked fashion and there is

marked decomposition of rapid alternating

movement sequences. He has distal career from

movements as well. There is no focal weakness

or atrophy. The deep tend on reflexes are 1

bilaterally. His gait and station are stable.

There is pesplanus bilaterally. He did not

fall while walking. The spine is straight

without dysraphism. There is withdrawal of

all extremities to provocation. Neurovascular

examination discloses no cervical, cranial or

ocular bruits, and there are no temperature or

pulse asymmetries.

IN SUMMARY, Madison's neurologic examination

is significant for developmental delays in

multiple areas. He is clearly delayed in

terms of his expressive a nd receptive language

skills, and has a speech articulation defect.

He also has a short attention span, high

activity level, and an impulsive behavioral

style. Marked dyspraxia is also noted. Apart

from these developmental findings, there are

no focal or lateralizing features to suggest

structural brain damage and I believe that

Madison most likely has a pervasive

developmental disorder and is at risk for

falling within the autistic spectrum in the

future. . . .

I have not as yet had an opportunity to review

Madison's medical records and will issue a

final report once the review process is

complete.

Following review of the medical records, Dr. Duchowny concluded:

A review of the medical records suggests that

the pregnancy with Madison was complicated by

a probable vira[l] infection, as evidenced by

the placental pathology, ophthalmology

findings, elevated liver function tests, and

neuro - imaging findings. The findings on

Madison's neurologic examination are most

consistent with the developmental syndro me of

pervasive developmental disorder, and I

strongly suspect that Madison will ultimately

be diagnosed with childhood autism. Given

these findings, I do not believe that Madison

suffers from a substantial motor or mental

impairment, or that h[is] proble ms were

acquired in the course of labor, deliver, or

the immediate post partum period.

Stated otherwise, while Dr. Duchowny acknowledged that Madison's

birth was stressful, and resulted in a number of problems that

had to be managed post - delivery, he was of the opinion that the

deficits Madison currently exhibits are "developmentally based,

meaning that they have to do with abnormalities during the

formation of the brain as opposed to consequences of hypoxia,

ischemia or trauma." (Respondent's Exhibit 3, at page 30.) As

for Dr. Duchowny's opinion that Madison does not suffer from a

substantial motor or mental impairment, it is worthy of note

that, although they had the opportunity to do so during the

course of his deposition, the parties did not challenge or

otherwise question his opinion.

20. Finally, pertinent to a current assessment of Madison's

neurologic presentation is the deposition testimony of

Ms. Scarfone, taken July 21, 2003. (Hospital Exhibit 2.) At the

time, Ms. Scarfone offered the followi ng observations:

Q Is Madison currently enrolled in any school

or educational program?

A Yes.

Q Where?

A Fuguitt elementary in the FDLRS Program.

Q What is the FDLRS Program?

A It's for kids that have developmental

problems, autistic children, f or kids that are

developmentally delayed.

Q Is that a year - round program?

A Yes. He was in pre - K, and he's going to be

in pre - K again.

Q Has he been diagnosed as suffering from

autism?

A No.

Q What kind of developmental delays does he

have?

A Speech. He's four. They say that he's at

age three. So I guess that would be

developmental altogether.

Q What other developmental delays does he

have other than speech?

A He's not like other kids. I mean, he's

behind. I don't know what - what it w ould be

called. I mean, he's four years old, and he

acts as if he's three. I mean, healthwise, I

mean, his vision is bad in his left eye, and

he has seizures.

Q Describe the seizures for me.

A Before he was not placed on the medicine,

he would wake u p from a nap, and he would have

convulsions. Since he's been placed on the

medicine, he will just wake up with the

gagging effect, and he'll just stare off. And

he'll last maybe like a minute or two, and

then he'll - it will go away, and he'll just

want to go to sleep.

Q How often does he have these seizures?

A Since he's been on the medicine, he usually

has maybe one to every three months.

Q Does he have any problem with swallowing?

A No.

Q Does he have any motor problems?

A Motor skills?

Q Yes, ma'am.

A I was told that he did, yes.

Q By whom were you told?

A I don't recall. Plenty of people have told

me, but it was a certain program that I used

to take him to. I was told by his

occupational therapist that he had, and I

don't remembe r what it was called.

Q Is he currently enrolled in any programs

designed to assist him with any motor

problems?

A No.

Q What kind of motor problems has he had in

the past?

A He was delayed when he was young. He,

like, wasn't sitting up when he sh ould. They

had to - I had to take him to therapy to set

him up because his - when he was born, his

legs were bowed up. I had to take him to

therapy to stretch his legs. He was late

sitting up and crawling, walking, stuff like

that.

Q Does he currently have any motor deficits?

A No.

Q He is able to walk, run, jump?

A Yes.

Q Skip?

A Yes.

Q As far as you're concerned, whatever motor

problems he's had in the past with his legs

have resolved?

A Yes.

Q Does he have any motor problems with hi s

hands or arms?

A No.

* * *

Q Fuguitt Elementary is a public school?

A Yes.

Q And he's going to be repeating the pre - K

program?

A Yes.

Q Is he in school today?

A No. He starts back when school starts

back.

Q Has he been off for the sum mer?

A Yes.

Q What has he been doing?

A Stays home with me.

Q And his brother?

A Yes.

A And his two stepsisters?

A Yes. . . .

Q Okay, Has he had any sort of therapy this

summer?

A Yes, he takes speech therapy in FDLRS.

Q So even thou gh school is not ongoing, that

particular program provides some sort of

summer therapy?

A Oh, I'm sorry, no, not for the summer. No,

he hasn't done anything in that.

Q He hasn't had any kind of therapy since

school let out in May?

A No.

Q Other than that which he receives at

school, is he receiving any sort of therapy?

A No.

* * *

Q Has anyone suggested to you now that he is

in school, that he needs anything in addition

to that which the school is providing?

A No. I did sign - well, I did sign a paper

for his school for vision. They wanted to see

if he qualifies for vision class or vision

therapy.

Q You said it's the one eye that's bad, the

left -

A The left eye.

* * *

Q . . . Other than the problem with his left

eye and the proble ms he has with respect to

speech, are there any other objective problems

that you, as his mother, have observed?

A He's very active, very hyper.

Q Has he been treated for that hyperactivity?

A No.

Coverage Under the Plan

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

Plan for infants who suffer a "birth - related neurological

injury," defined as an "injury to the brain . . . 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." 5

Section 766.302(2). 6 See also Section 766.309.

22. Here, given the proof, it must be resolved that Madison

suffers neither a substantial mental impairment nor a substantial

physical impairment, much less a permanent and substantial mental

and physical impairment required for coverage under the Plan.

Moreover, given Dr. Duchowny's observations, and the paucity of

proof to the contrary, it cannot be resolved, as suggested by

Intervenors, that the cause of Madison's deficits resulted from a

brain injury caused by oxygen deprivation or mechanical injury

that occurred during labor, delivery, or resuscitation, as

opposed to a developmental abnormality, that preceded the onset

of labor. See Wausau Insurance Company v. Tillman , 765 So. 2d

123, 124 (Fla. 1st DCA 2000)("Because the medical conditions

which the claimant alleged had resulted from the workplace

incident were not re adily observable, he was obliged to present

expert medical evidence establishing that causal connection.");

Thomas v. Salvation Army , 562 So. 2d 746, 749 (Fla. 1st DCA

1990)("In evaluating medical evidence, a judge of compensation

claims may not reject unc ontroverted medical testimony without a

reasonable explanation.")

The Notice Provisions of the Plan

23. Pertinent to this case, at the time of Madison's birth,

Section 766.316, Florida Statutes (1998), prescribed the notice

requirement, as follows:

Each hospital with a participating physician

on its staff and each participating physician,

other than residents, assistant residents, and

interns deemed to be participating physicians

under s. 766.314(4)(c), under the Florida

Birth - Related Neurological Injury Compensation

Plan shall provide notice to the obstetrical

patients as to the limited no - fault

alternative for birth - related neurological

injuries. Such notice shall be provided on

forms furnished by the association and shall

include a clear and concise ex planation of a

patient's rights and limitations under the

plan. The hospital or the participating

physician may elect to have the patient sign a

form acknowledging receipt of the notice form.

Signature of the patient acknowledging receipt

of the notice f orm raises a rebuttable

presumption that the notice requirements of

this section have been met. Notice need not

be given to a patient when the patient has an

emergency medical condition as defined in s.

[395.002(9)(b)] [ 7 ] or when notice is not

practicable .

24. Here, there being no proof to support a contrary

conclusion, Dr. Rosewater presumably did not provide Ms. Scarfone

notice. See Balino v. Department of Health and Rehabilitative

Services , 348 So. 2d 349, 350 (Fla. 1st DCA 1977)("[T]he burden

of pr oof, apart from statute, is on the party asserting the

affirmative issue before an administrative tribunal.") However,

at the time, he was not required to do so.

25. Notably, Section 766.316, Florida Statutes (1998),

describes those circumstances under which notice need not be

given, as follows:

. . . Notice need not be given to a patient

when the patient has an emergency medical

condition as defined in [s. 395.002(9)(b)] or

when notice is not practicable.

Pertinent to this case, Section 395.002(9)(b), defines "emergency

medical condition" to mean:

(b) With respect to a pregnant woman:

* * *

3. That there is evidence of the onset and

persistence of uterine contractions or rupture

of the membranes.

Here, on presentation to Morton Plant Hospital, the re was clear

evidence of the onset and persistence of uterine contractions.

Consequently, Dr. Rosewater was not required to provide Ms.

Scarfone with notice.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

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

these proceedings. Section 766.301, et seq .

27. The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birt h - related neurological injury claims" relating to births

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

28. The injured "infant, her or his personal

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

compensation under the Plan b y filing a claim for compensation

with the Division of Administrative Hearings. Sections

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

Birth - Related Neurological Injury Compensation Association, which

administers the Plan, has "45 days fro m 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).

29. If NICA de termines that the injury alleged in a claim

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

compensation to the claimant, provided that the award is approved

by the administrative law judge to whom the claim has been

assigned. Section 766 .305(6). 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 C hapter 120, F lorida Statutes.

Sections 766.304, 766.309, a nd 766.31.

30. 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 demonst rated, to the satisfaction of the

administrative law judge, that the infant has

sustained a brain or spinal cord injury

caused by oxygen deprivation or mechanical

injury and that the infant was thereby

rendered permanently and substantially

mentally and ph ysically 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, o r 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). 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 bir th." Section

766.31(1).

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

injury" is defined by Section 766.302(2), to mean:

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case of a

multiple gestation, a live infant weighing at

least 2,000 grams at birth caused by oxygen

deprivation or mechanical injury occurring in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

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.

32. As the claimants, the burden rested on Pet itioner or,

as the proponent of the issue, the Intervenors to demonstrate

that Madison suffered a "birth - related neurological injury."

Section 766.309(1)(a). See also Balino v. Department of Health

and Rehabilitative Services , supra , ("[T]he burden of p roof,

apart from statute, is on the party asserting the affirmative

issue before an administrative tribunal.")

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

more likely than not, Madison's neurologic impairments resulted

from an "injury to th e brain . . . caused by oxygen deprivation

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

or resuscitation." Moreover, the proof demonstrated that Madison

was neither substantially mentally impaired nor substantially

physically impaired. Consequently, the record developed in this

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

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

and the claim is not compensable. Sections 766.302(2),

766.309(1), and 766.31(1) . See also Florida Birth - Related

Neurological Injury Compensation Association v. Florida Division

of Administrative Hearings , 686 So. 2d 1349 (Fla. 1997)(The Plan

is written in the conjunctive and can only be interpreted to

require both substantial mental and substantial physical

impairment.); 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 strictly constructed to include on ly those subjects

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

Related Neurological Injury Compensation Association v.

McKaughan , 668 So. 2d 974, 979 (Fla. 1996).

34. 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). Such an order constitutes final agency

action subject to appellate court review. Section 766.311(1).

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by Rebekah

Leah Scarfone, indivi dually, and as mother and natural guardian

of Madison McCorkle, III, a minor, is dismissed with prejudice.

DONE AND ORDERED this 24th day of October, 2003, in

Tallahassee, Leon County, Florida.

S

______________________ ____________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.stat e.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of October, 2003.

ENDNOTES

1 / Petitioner a lso averred that Morton Plant Hospital and Mother

and Child Care of Clearwater failed to comply with the notice

provisions of the Plan; however, that claim was abandoned in the

parties' Pre - Hearing Stipulation.

2 / The Apgar scores assigned to Madison ar e a numerical

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

sum points gained on assessment of heart rate, respiratory

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

category being assigned a score ranging from the lowest score of

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

Madison's Apgar score totaled 2, with heart rate and reflex

irritability being graded at 1 each, and respiratory effort,

muscle tone, and color being graded at 0. At five and ten

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

respiratory effort being graded at 2 each, and muscle tone,

reflex irritability, and color being graded at 1 each.

3 / The ultrasound revealed no evidence of intracranial

hemorrhage, but did reveal a 1 .0 by 1.5 centimeter fluid

collection in the left scalp consistent with edema or hematoma.

4 / Madison was followed by Dr. Hess, a pediatric ophthalmologist

for suspected hypoplasia of the right optic nerve; evolving

atrophy of the left optic nerve, which evolved following evidence

of macula retinae edema; and strabismus (a deviation of the eye

which the patient cannot overcome). Ultimately, Madison

demonstrated good vision in the right eye, with good fixation and

following abilities; however, his left ey e evidenced very poor

vision, with optic nerve atrophy, and reduced fixation and

following. Consequently, on February 15, 2000, at 8 months of

age, Madison underwent eye muscle surgery (strabismus surgery) to

realign his eyes. Such surgery was successful . As for the cause

of Madison's macula retinae edema, and resultant optic atrophy,

Dr. Hess was of the opinion that it was most likely associated

with the left cerebellar hemorrhage noted on the MRI scan at five

days of age. (Doctor's Exhibit 3, pages 17 and 18.) Dr. Hess

did not, however, have any opinion as to "whether . . .

[Madison's] visual impairments were related to in any way the

circumstances surrounding his birth," or otherwise express an

opinion as to the timing of the hemorrhage he felt was t he cause

of Madison's optic atrophy. (Doctor's Exhibit 3, page 14.)

5 / Permanent and substantial are not defined by the Plan,

however, the American Heritage Dictionary of the English Language,

New College Edition (1979), defines "permanent" as:

. . . 1 . Fixed and changeless; lasting or

meant to last indefinitely. 2. Not expected

to change in status, condition, or

place . . .

It further defines "substantial" as:

. . . 1. Of, pertaining to, or having

substance; material. 2. Not imaginary;

true; real. 3. Solidly built, strong. 4.

Ample, sustaining . . . 5. Considerable in

importance, value, degree, amount, or extent

. . . -- sub - stan'tial - ly adv.

When, as here, the Legislature has not defined the words used in

a phrase, they should usu ally be given their plain and ordinary

meaning. Southeastern Fisheries Association, Inc. v. Department

of Natural Resources , 453 So. 2d 1351 (Fla. 1984.) Where,

however, the phrase contains a key word like "substantially," the

phrase is plainly susceptib le to more than one meaning. Under

such circumstances, consideration must be accorded not only the

literal or usual meaning of the word, but also to its meaning and

effect in the context of the objectives and purposes of the

statute's enactment. See Flor ida State Racing Commission v.

McLaughlin , 102 So. 2d 574 (Fla. 1958.) Indeed, "[i]t is a

fundamental rule of statutory construction that legislative

intent is the polestar by which the court must be guided [in

construing enactments of the legislative]." State v. Webb , 398

So. 2d 820, 834 (Fla. 1981).

Turning to the provisions of the Plan, certain insights may be

gleaned regarding the meaning the Legislature intended to ascribe

to the word "substantially," and more particularly its use in the

phrase "per manently and substantially mentally and physically

impaired." First, the Legislature has expressed its intent in

Section 766.301(2), Florida Statutes, as follows:

It is the intent of the Legislature to

provide compensation, on a no - fault basis,

for a l imited class of catastrophic injuries

that result in unusually high costs for

custodian care and rehabilitation. This plan

shall apply only to birth - related

neurological injuries. (Emphasis added)

"Catastrophic," an adjective of the noun "catastrophe," is

defined by The American Heritage Dictionary of the English

Language, New College Edition (1979), as "a great and sudden

calamity; disaster." (Emphasis added.)

It is further worthy of note that physicians commonly use terms

such as "mild," "moderate," and "severe" to describe the scope of

an infant's mental and physical injury.

Finally, as observed by the court in Humana of Florida, Inc. v.

McKaughn , 652 So. 2d 852, 858 (Fla. 2d DCA 1995), the Florida

Birth - Related Neurological Injury Compensation Plan , like the

Worker's Compensation Act, is a "limited statutory substitute for

common law rights and liabilities." Accordingly, "because the

Plan . . . is a statutory substitute for common law rights and

liabilities, it should be strictly construed to inclu de only

those subjects clearly embraced within its terms . . . [and] a

legal representative of an infant should be free to pursue common

law remedies for damages resulting in an injury not encompassed

within the express provisions of the Plan." Humana of Florida,

Inc. v. McKaughn , supra , at page 859. Accord , Carlile v. Game

and Fresh Water Fish Commission , 354 So. 2d 362 (Fla. 1977)(A

statute designed to change the common law rule must speak in

clear, unequivocal terms, for the presumption is that no chan ge

in the common law was intended unless the statute is explicit in

this regard.)

Given the Legislature's intent to restrict no - fault coverage

under the Plan to "a limited class of catastrophic injuries," as

well as the common practice among physicians to use terms such as

"mild," "moderate," or "severe" to describe the degree of an

infant's injuries, it is concluded that the word "substantially,"

as used in the phrase "permanently and substantially mentally and

physically impaired," denotes a "catastrophi c" mental and

physical injury, as opposed to one that might be described as

"mild" or "moderate."

6 / All citations are to Florida Statutes (2002) unless otherwise

indicated.

7 / Redesignated as Section 395.002(9)(b), from Section

395.002(8)(b), to confo rm to amendments by Chapter 98 - 89,

Section 23, Laws of Florida, and Chapter 98 - 171, Section 37, Laws

of Florida. See Section 766.316, Florida Statutes (1998), note

2.

COPIES FURNISHED:

(By certified mail)

Kenneth A. Beytin, Esquire

Burton, Schulte, Wee kley, Hoeler

& Beytin, P.A.

100 South Ashley Drive, Suite 600

Post Office Box 1772

Tampa, Florida 33601 - 1772

Glenn M. Burton, Esquire

Burton, Schulte, Weekley, Hoeler,

Robbins & Beytin, P.A.

100 South Ashley Drive, Suite 600

Post Office Box 1772

Tamp a, Florida 33601 - 1772

Lee D. Gunn, Esquire

Gunn Merlin, P.A.

Suite 950

777 South Harbour Island Boulevard

Tampa, Florida 33602

John D. Kiernan, Esquire

Abbey, Adams, Byelick, Kiernan,

Mueller & Lancaster, LLP

Post Office Box 1511

St. Petersburg, Florida 33731

David S. Nelson, Esquire

Barr, Murman, Tonelli, Slother & Sleet

201 East Kennedy Boulevard, Suite 1700

Post Office Box 172669

Tampa, Florida 33672 - 0669

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compen sation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32308

Donald H. Whittemore, Esquire

Phelps Dunbar, LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

G. Andrew Willers, Esquire

Burton, Schulte , Weekley, Hoeler,

Robbins & Beytin, P.A.

100 South Ashley Drive, Suite 600

Post Office Box 1772

Tampa, Florida 33601 - 1772

Ms. Charlene Willoughby

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

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 proceed ings are commenced by

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

the Division of Administrative Hearings and a copy, 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.