02-002213N Kizzy Bouler Green And Benny Green, On Behalf Of And As Parents And Natural Guardians Of Jordan Green, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, April 24, 2003.

Summary: Claim compensable under the Plan, but time barred since it was filed more than five years after the infant`s birth.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIZZY BOULER GREEN and BENNY )

GREEN, as parents and natural )

guardians of JORDAN GREEN, a )

minor, )

)

Petitioners, )

)

vs. ) Case No. 02 - 2213N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent , )

)

and )

)

CHARLES HENRICHS, M.D. and )

WINTER HAVEN HOSPITAL, INC., )

)

Intervenors. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearin gs,

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

hearing in the above - styled case on February 25, 2003, by video

teleconference, with sites in Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioners: Ronald S. Gilbert, Esquire

Morgan, Colling & Gilbert, P.A.

20 North Orange Avenue, Suite 1600

Orlando, Florida 32802 - 4979

For Respondent: Ronald A. Labasky, Esquire

Landers & Parsons, P.A.

310 West College Avenue

Tallahassee, Florida 32301

For Intervenor Charles Henrichs, M.D.:

J. Charles Ingram, Esquire

Mark A. Buckles, Esquire

Hannah, Estes & Ingram, P.A.

Post Office Box 4974

Orlando, Florida 32802 - 4974

For Intervenor Winter Haven Hospital, Inc.:

Brian L. Smith, Esquire

Hill, Adams, Hall & Schieffelin, P.A.

1030 West Canton Avenue, Suite 200

Winter Park, Florida 32790 - 1090

STATEMENT OF THE ISSUES

1. Whether Jordan Green, a minor, qualifies for coverage

under the Florida Birth - Rel ated Neurological Injury Compensation

Plan (Plan).

2. If so, whether the notice provisions of the Plan were

satisfied.

PRELIMINARY STATEMENT

On May 31, 2002, Kizzy Bouler Green and Benny Green, on

behalf and as parents and natural guardians of Jordan Gre en

(Jordan), a minor, filed a petition (titled "Petition to

Determine Non - entitlement of Benefits Pursuant to Florida Statute

Section 766.304") with the Division of Administrative Hearings

(DOAH), and requested a determination that Jordan's injuries were

n ot compensable under the Florida Birth - Related Neurological

Injury Compensation Plan. Of note, the petition included the

following allegations regarding the impetus for the filing of the

claim:

6. On October 3, 1997, a Complaint was filed

in the Polk Cou nty Circuit Court alleging

negligence against Charles Henrichs, M.D.,

the emergency department physician. As an

affirmative defense the defendants alleged

immunity pursuant to Section 766.303, Florida

Statutes. On January 4, 2002, Judge Dennis

P. Maloney entered an Order of Abatement,

requiring this matter be heard by the

Administrative Law Judge.

DOAH served the Florida Birth - Related Neurological Injury

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

May 31, 2002; and on July 2, 2002, and July 3, 2002,

respectively, Charles Henrichs, M.D., and Winter Haven Hospital

were accorded leave to intervene. Thereafter, on July 11, 2002,

NICA filed a Motion for Summary Judgment and/or Motion to Dismiss

based on its perception that, indisputably, th e claim was time -

barred.

On July 31, 2002, a hearing was held to address NICA's

Motion for Summary Judgment and/or Motion to Dismiss, and on

August 2, 2002, an order was entered which resolved the motion,

as follows:

Here, given the provisions of Section

7 66.313, Florida Statutes, which provides

"[a]ny claim for compensation . . . that is

filed more than 5 years after the birth of an

infant alleged to have a birth - related

neurological injury shall be barred," and the

undisputed facts that Jordan Green was b orn

October 3, 1995, and the subject claim was

not filed until May 31, 2002, Respondent is

entitled to a partial summary judgment, as

requested, which resolves that,

notwithstanding that the claim may be

compensable, Petitioners may not pursue or

recover a n award of benefits. However, since

Plan immunity is a viable defense to a civil

suit, and the administrative law judge has

exclusive jurisdiction to resolve whether a

claim is compensable, it is still necessary,

as in this case, to resolve whether the cl aim

is compensable. See Sections 766.301(1)(d),

766.303(2), and 766.304, Florida Statutes,

and O'Leary v. Florida Birth - Related

Neurological Injury Compensation Association ,

757 So. 2d 624 (Fla. 5th DCA 2000) . . . .

Accordingly, it is

ORDERED that:

1. Respondent's Motion for Summary Judgment

is granted to the extent that, as requested,

it is resolved that the subject claim is

time - barred, and Petitioners may not pursue

or recover an award of benefits.

2. It is further resolved, under the

circumstanc es of this case, that the

administrative law judge has jurisdiction to

resolve, and is obligated to resolve, whether

the claim is compensable . . . .

At hearing, Petitioners called Kizzy Bouler Green and

Berto Lopez, M.D., as witnesses, and Petitioners' E xhibit 1 (the

medical records filed with DOAH on May 31, 2002) and Exhibit 2

(medical records of Mrs. Green and Jordan from Winter Haven

Hospital and Regency Medical Center) were received into evidence.

Intervenor Charles Henrichs, M.D., testified on his own behalf

and his (Doctor's) Exhibit 1 (the deposition of Donald Willis,

M.D.), Exhibit 2 (the deposition of Masuo Koike, M.D.), Exhibit 3

(the deposition of Vincent Gatto, M.D.), Exhibit 4 (Petition to

Approve Settlement, dated December 12, 1995), Exhibi t 5 (Petition

to Appoint a Guardian Ad Litem for Minor, dated December 30,

1995), Exhibit 6 (Amended Petition to Approve Settlement, dated

March 18, 1996), and Exhibit 7 (Notice to Obstetric Patient,

dated April 28, 1998), were received into evidence. No other

witnesses were called, and no further exhibits were offered.

The transcript of the hearing was filed March 17, 2003, and

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

orders. Intervenor Charles Henrichs, M.D., elected to file suc h

a proposal, which was adopted by NICA and Winter Haven Hospital,

and it has been duly considered.

FINDINGS OF FACT

Preliminary findings

1. Petitioners, Kizzy Bouler Green and Benny Green, are the

parents and natural guardians of Jordan Green, a minor.

Jordan was born a live infant on October 3, 1995, at Regency

Medical Center, a division/campus of Winter Haven Hospital, in

Winter Haven, Polk County, Florida, and his birth weight exceeded

2,500 grams.

2. Among the physicians who provided obstetrical s ervices

at Jordan's birth was Vincent Gatto, M.D., who, at the time, was

a "participating physician" in the Florida Birth - Related

Neurological Injury Compensation Plan, as defined by Section

766.302(7), Florida Statutes.

Mrs. Green's antepartum course and Jordan's birth

3. Mrs. Green's antepartum course was without apparent

complication until approximately 12:37 p.m., October 3, 1995,

when, with the fetus at term (40 weeks by last menstrual period)

and an estimated date of delivery of October 1, 1995, she was

involved in an automobile accident in Winter Haven, Florida.

Emergency medical services (EMS) responded to the scene and,

following arrival (at 12:53 p.m.) noted:

P[atien]t denies any traumatic pain .

. . . [Pt] states immediately following

accident that H 2 0 broke, felt no fetal

movement . . . .

4. Mrs. Green was "c - spined" (immobilized), an IV was

established, and she was transported to Winter Haven Hospital,

where she was admitted to the Emergency Department between 1:10

p.m., and 1:20 p. m. On admission, Mrs. Green reported that she

was having contractions since the accident, about 3 - 4 minutes

apart, and that she had not felt the baby move following the

accident.

5. Mrs. Green was examined by Charles Henrichs, M.D., the

Emergency Departm ent physician, between 1:10 p.m., and 1:20 p.m.

Dr. Henrichs reported Mrs. Green's history and the results of her

physical evaluation, as follows:

HISTORY OF PRESENT ILLNESS: This 18 - year - old

white female primigravida was the

unrestrained driver of a car which reportedly

was struck by another vehicle in the front

end at a significant rate of speed . . . .

She indicates that she is having contractions

of her uterus, that she thinks her water

broke, and that she has not felt any fetal

movement since the ac cident.

PHYSICAL EXAMINATION:

* * *

GENERAL: She is alert and fully oriented and

quite lucid. She is fully immobilized by

EMS. Primary survey shows the airway to be

patent, breathing to be equal and unlabored,

circulation to be good with all extr emities,

warm and with good pulses and there to be no

neuro deficits.

HEENT: The head shows no visible or palpable

signs of trauma. The immobilization was

removed, and the neck was entirely nontender

with full range of motion. Eyes PERRL/EOMI.

Maxillo facial and dentition stable.

LUNGS: Clear.

CHEST: No chest wall tenderness.

HEART: Regular rate and rhythm.

MUSCULOSKELETAL: Lower spine, hips, pelvis

nontender.

ABDOMEN: The abdomen shows a gravid uterus.

There are no tetanic contractions. I detect

no fetal movements. Fetal heart tones were

auscultated for by the nurse and by myself.

I was briefly able to listen for fetal heart

tones and heard none before my discussions

[by telephone] with the obstetrician [at

Regency Medical Center, Dr. Matt

Koike] . . . .

PELVIC: Exam shows a Nitrazine to be

negative, vertex presentation, . . .

[fingertip to] 1 cm dilated, no

bleeding . . . .

NEUROLOGIC: She has normal sensorium, motor,

sensation and reflex findings.

. . . The IV established b y EMS is

maintained, and she is maintained on oxygen.

I have discussed the case with Dr. Koike who

responded promptly, and he indicated that we

should make arrangements for her transfer to

the Regency but to obtain a limited abdominal

sonogram for fetal h eart activity. This was

obtained on an emergent basis, and the fetal

heart rate was between 80 - 90. Upon her

return to the emergency department, her exam

is essentially unchanged [with contractions

3 - 5 minutes apart, and no fetal movement].

She was maint ained on oxygen and intravenous

fluids and transferred to the awaiting

ambulance for immediate transfer to the

Regency . . . .

PROVISIONAL DIAGNOSIS: 1) Abrasions. 2)

Contusions. 3) Fetal distress in a term

primigravida.

6. Mrs. Green was tran sported to Regency Medical Center,

where she was admitted at or about 2:10 p.m., and, following a

sonogram which revealed a fetal heart rate (still bradycardiac at

80 - 90 beats per minute), she was wheeled directly to a surgical

suite and an emergency cesar ean section was performed. Dr. Koike

described Mrs. Green's history and Jordan's delivery in his

Operation Note, as follows:

HISTORY: . . . An emergency vehicle brought

the patient to the emergency service at

Winter Haven Hospital and Dr. Charles

Heinric hs, emergency physician, as well as

the nursing staff could not hear a fetal

heart or detect the fetal heart by Sonicate.

Multiple trauma was evaluated and she was

ruled out any central nervous system injury,

including head injury.

Dr. Koike was on call f or OB/GYN backup and

was called. He was told that there was a

fetal demise term pregnancy patient present

as a result of a car accident in the

emergency service. Dr. Koike asked if there

was a sonogram and the response was that a

sonogram [had not been d one]; however, it was

available immediately. A sonogram was

immediately performed and showed a severe

bradycardia. Dr. Koike was told that there

was an emergency vehicle available ready to

take the patient over the Regency if need be.

At that time, the decision had to be made if

she should be operated at the main campus or

the Regency Medical Center. However, at the

Regency Medical Center there were at least

five doctors available near the nursing

station, as well as Dr. Kong [a

neonatologist]. There w as no surgery going

on at that time at Regency, and an

anesthesiologist was available, as well. It

was decided it would be faster overall to

bring the patient over and make sure the baby

was alive and surgery to be done at Regency

Medical Center.

An ambu lance brought the patient to Regency

and the patient was wheeled directly to the

recovery room where a sonogram was performed

by Dr. Gatto and Dr. Koike, making sure there

was still a fetal heart rate present. There

was a fetal heart present, and the pati ent

was wheeled directly to the surgical suite

and surgery was performed.

PREOPERATIVE DIAGNOSIS: Fetal distress,

status car accident trauma; intrauterine

pregnancy at term.

POSTOPERATIVE DIAGNOSIS: Severe

oligohydramnios with severe bradycardia, with

ruptured membranes.

OPERATION: Primary low segment transverse

cesarean section delivery of baby boy, 8

pounds 13 ounces, Apgars of 1 at one minute,

4 at five minutes and 8 at 10 minutes at

2:29 p.m., on October 3, 1995.

SURGEON: Matt J. Koike, M.D.

ASSISTANT: Vincent Gatto, M.D.

* * *

OPERATIVE FINDINGS: Oligohydramnios. There

was blood in the uterine cavity.

PROCEDURE: . . . The patient was brought to

the OR, an IV was already in. The patient

was placed in the supine position, the

abdome n was doused with Betadine solution and

draped quickly for primary cesarean section.

The Foley was already in place and draining

clear urine. An incision was made 3 cm above

the symphysis pubis with a Pfannenstiel

incision to the skin, through the

subcut aneous tissue and fascia. The

peritoneum was entered longitudinally. Then

the uterus was incised at low segment. As

soon as the uterine cavity was entered, it

was evidence there was blood in the uterine

cavity. However, the baby's head was

delivered an d the nasopharynx suctioned out

with DeLee suction and then the baby was

delivered without any problem. The umbilical

cord was clamped in two places and incised

between. The baby was handed over to

Dr. Kong for her care . . . .

7. At delivery, Jordan w as severely depressed (blue and

limp, with no spontaneous respirations, and a heart rate of

approximately 80 beats per minute), and was immediately

intubated. Spontaneous respirations were noted at 2 - 3 minutes of

life. Arterial cord blood gas revealed, f ollowing delivery, a pH

of 6.65 and base excess of - 31.4, consistent with severe acidosis

and acute brain injury (caused by oxygen deprivation), most

likely within 30 to 45 minutes of delivery.

8. At or about 2:45 p.m., Jordan was transported to the

n eonatal intensive care unit (NICU) for further observation and

management, and at 5:20 p.m., he was transferred to Tampa General

Hospital, where he remained until discharged to his parents' care

on October 21, 1995. While there, sequential CT head scans ( on

October 9, 1995, and October 18, 1995) revealed findings

consistent with diffuse ischemic encephalopathy. Subsequent

evaluations following discharge confirmed significant brain

injury, with severe delay in all areas of development.

Coverage under the Plan

9. 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 . . . occurring in the course of labor, delivery, or

res uscitation in the immediate post - delivery period in a

hospital, which renders the infant permanently and substantially

mentally and physically impaired." Section 766.302(2), Florida

Statutes. See also Section 766.309(1)(a), Florida Statutes.

10. Here, i t is undisputed that Jordan suffered an injury

to the brain caused by oxygen deprivation (secondary to placental

abruption, precipitated by the automobile accident) which

rendered him permanently and substantially mentally and

physically impaired. What re mains to resolve is whether the

brain injury occurred in the course of labor, delivery, or

resuscitation in the immediate post - delivery period in the

hospital. As to that issue, Petitioners are of the view that the

injury occurred following the accident, but before delivery, and

that Mrs. Green was not in labor during that time period. In

contrast, while NICA and the Intervenors agree the injury

followed the automobile accident, they are of the view that the

proof supports the conclusion that Mrs. Green w as in labor and,

consequently, the injury occurred during labor, delivery, or

resuscitation.

11. Pertinent to this case, when the proof demonstrates

that the infant suffered an injury to the brain caused by oxygen

deprivation that rendered him permanent ly and substantially

mentally and physically impaired, a rebuttable presumption arises

that the injury is a "birth - related neurological injury," as

defined by the Plan. Section 766.309(1)(a), Florida Statutes.

Under the circumstances of this case, the pr esumption is that

Jordan's injury occurred "in the course of labor, delivery or

resuscitation in the immediate post - delivery period in a

hospital." Consequently, the issue is whether there was credible

evidence produced to support a contrary conclusion an d, if so,

whether absent the aid of such presumption the record

demonstrates, more likely than not, that Jordan's injury occurred

during labor, delivery, or resuscitation. 1 Here, there was no

credible or persuasive evidence produced to support a contrary

conclusion. 2 Indeed, the credible proof was consistent with the

presumption. 3

The notice provisions of the Plan

12. While Petitioners have stipulated that the giving of

notice by the hospital and the participating physician prior to

delivery was not practicable, they contend the notice provisions

of the Plan were not satisfied because post - delivery notice was

not given in a timely manner.

13. Pertinent to this case, at the time of Jordan's birth,

Section 766.316, Florida Statutes, prescribed the noti ce

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 B irth -

Related Neurological Injury Compensation Plan

shall provide notice to the obstetrical

patients thereof 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 explanation of a

patient's rights and limitations under the

plan.

14. In Galen of Florida, Inc. v. Braniff , 696 So. 2d 308,

309 (Fla. 1997), the court resolved that the notice provision

existent at the time of Jorda n's birth required, "as a condition

precedent to invoking the Florida Birth - Related Neurological

Injury Compensation Plan as a patient's exclusive remedy,

healthcare providers must, when practicable, give their

obstetrical patients notice of their particip ation in the plan a

reasonable time prior to delivery." Here, since the giving of

notice was not practicable prior to delivery, the hospital and

the participating physician were not required to give predelivery

notice. As for Petitioners' contention (tha t the notice

provisions of the Plan were not satisfied because post - delivery

notice was not given in a timely manner), it must be resolved

that, given "the purpose of the notice is to give an obstetrical

patient an opportunity to make an informed choice be tween using a

health care provider participating in the NICA plan or using a

provider who is not a participant and thereby preserving her

civil remedies," post - delivery notice is not required, as a

condition precedent to invoking the Plan as a patient's ex clusive

remedy. 4 Id. at 309. Turner v. Hubrich , 656 So. 2d 970, 971

(Fla. 5th DCA 1995)("The statute is silent as to when notice is

to be given, but it would make little sense to allow the patients

to be apprised of rights and limitations after the servi ces

leading to the alleged injuries have been performed.")

CONCLUSIONS OF LAW

15. 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.

16. 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" relating to births

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

Florida Statutes.

17. 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 Administ rative 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.

18. If NICA determines that the injury al leged in a claim

is a compensable birth - related neurological injury, as it has in

the instant case, 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.

19. 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 th e claimant

has demonstrated, to the satisfaction of the

administrative law judge, that the infant has

sustained a brain or spinal cord injury

caused by oxygen deprivation or mechanical

injury and that the infant was thereby

rendered permanently and substan tially

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 po st - 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 deliv ered by a participating physician

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

20. 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 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 a nd

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.

21. Here, it has been established that a physician who

provided ob stetrical services at birth was a "participating

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

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

defined by the Plan. Consequently, Jordan qualifies for coverage

under the Pl an. Sections 766.309 and 766.31, Florida Statutes.

22. Where, as here, it has been resolved that a claim

qualifies for coverage under Section 766.309, Florida Statutes,

the administrative law judge is usually required to make a

determination as to how mu ch compensation, if any, is to be

awarded. Section 766.31(1), Florida Statutes. However, when, as

here, it has been shown that the claim is time barred,

Petitioners may not recover an award of compensation under the

Plan. Section 766.313, Florida Statut es ("Any claim for

compensation under ss. 766.301 - 766.316 that is filed more than 5

years after the birth of an infant alleged to have a birth -

related neurological injury shall be barred.")

23. When the administrative law judge determines that a

claim qua lifies for coverage under the Plan, he is required to

enter an order to such effect (even though a claimant is not

entitled to pursue an award of benefits), and cause a copy of

such order to "be sent immediately by registered or certified

mail to each pers on served with a copy of the petition under s.

766.305(2), Florida Statutes." Section 766.31(3), Florida

Statutes. Such an order constitutes final agency action subject

to appellant court review. Section 766.311, Florida Statutes.

CONCLUSION

Based on th e foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by

Petitioners, Kizzy Bouler Green and Benny Green, as parents and

natural guardians of Jordan Green, a minor, qualifies for

coverage under the Plan; however, given that the claim is time -

barred, they may not pursue or recover an award of benefits.

It is further ORDERED that the notice provisions of the Plan

were satisfied.

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

Tallahassee, Leon County, F lorida.

__________________________________

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 Fili ng (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of April, 2003.

ENDNOTES

1/ Where, as here, a presumption is "established primarily to

facilitate the determination of a particular action in which the

presumption is applied, rather than to implement public policy,

[it] is a presumption affecting the burden of produci ng

evidence." Section 90.303, Florida Statutes. The nature and

effect or usefulness of such a presumption in assessing the

quality of the proof was addressed in Berwick v. Prudential and

Casualty Insurance, Co. , 436 So. 2d 239, 240 (Fla. 3d DCA 1983),

as follows:

Unless otherwise provided by statute, a

presumption established primarily to

facilitate the determination of an action, as

here, rather than to implement public policy

is a rebuttable "presumption affecting the

burden of producing evidence," see Section

90. - 303, Fla. Stat. (1981), a "bursting

bubble" presumption, see C. Ehrhardt, supra,

at Sections 302.1, 303.1. Such a presumption

requires the trier of fact to assume the

existence of the presumed fact unless

credible evidence sufficient to susta in a

finding of the non - existence of the presumed

fact is introduced, in which event the bubble

bursts and the existence of the fact is

determined without regard to the presumption.

See Sections 90.302(1), Fla. Stat. (1981); C.

Ehrhardt, supra at Section 302.1; see

generally Ladd, Presumptions in Civil

Actions, 1977 Ariz.St.L.J. 275 (1977)

Accord , Caldwell v. Division of Retirement , 372 So. 2d 438 (Fla.

1979), Public Health Trust of Dade County v. Valcin , 507 So. 2d

596 (Fla. 1987), and Insurance Company of the State of

Pennsylvania v. Estate of Guzman , 421 So. 2d 597 (Fla. 4th DCA

1982. See also Gulle v. Boggs , 174 So. 2d 26, 29 (Fla. 1965),

citing with approval Tyrrell v. Prudential Insurance Co. , 109 Vt.

6, 192 A. 184, 115 A.L.R. 392, where in it was s tated:

Presumptions disappear when facts appear; and

facts are deemed to appear when evidence is

introduced from which they may be found.

2/ In so concluding, the opinion of Dr. Lopez, offered by

Petitioners, that Mrs. Green was not in labor following t he

automobile accident, has not been overlooked; however,

Dr. Lopez's opinion was not sufficient to sustain a finding of

the non - existence of the presumed fact ( i.e. , that Mrs. Green was

in labor when the injury occurred). In this regard, it is

initially noted that a predicate for Dr. Lopez's opinion was the

absence of successive vaginal examinations, which demonstrated

progressive cervical change consistent with labor. However, the

purpose of Dr. Henrich's cervical evaluation (at 1:20 p.m.) was

to rule o ut a precipitous delivery in the emergency room and the

purpose of Dr. Koike's cervical evaluation (at 2:10 p.m.) was to

determine whether Mrs. Green was able to deliver vaginally,

without the need for surgical intervention (cesarean section),

not to resol ved whether Mrs. Green was in labor. (Transcript, at

pages 111 and 114, and Doctor's Exhibit 2, at page 23.)

Consequently, while the examinations of Doctors Henrich and Koike

do not document any significant cervical change (within a 50 -

minute period), th at failing is not compelling proof that

Mrs. Green was not in labor. The remaining premise for

Dr. Lopez's opinion, that neither the presence of contractions

nor rupture of the membranes necessarily evidences the onset of

labor, likewise is not compelling proof that Mrs. Green was not

in labor. Finally, the testimony of Mrs. Green that she was not

experiencing regular uterine contractions and did not report to

the medical staff at Winter Haven Hospital that she was

experiencing regular contractions (which is contrary to

statements attributed to her in the medical records), as well as

her testimony that she was not in labor following the accident

(which is contrary to statements otherwise attributable to her),

has likewise not been overlooked. (Petitioners ' Exhibit 2, and

Doctor's Exhibits 4, 5, and 6). However, on this issue, Mrs.

Green's testimony was not credible or compelling.

3/ In so concluding, the deposition testimony of Dr. Willis, a

physician board - certified in obstetrics and gynecology, as wel l

as maternal - fetal medicine, was found most compelling. Of note,

Dr. Willis made the following observations:

Q. Doctor, did you formulate any opinions as

to whether Kizzy Bouler Green entered labor

following the motor vehicle accident and

prior to the emergency cesarean section being

performed?

A. Yes.

Q. And what is your opinion, sir?

A. My opinion was that she was in labor

following the automobile accident and at the

time of the cesarean section delivery.

Q. And upon what do you base your opin ion

that Kizzy Bouler Green was in labor

following her motor vehicle accident and

prior to the emergency cesarean section?

A. Okay. Well, first, let me say that the

one thing we don't have a lot of information

on is cervical effacement and dilation.

Th ere are no serial examinations of the

cervix that are available to tell us if

there's any progressive dilation or

effacement of the cervix. And I've been in

the situation before, many times, for

emergency cases like this, and the evaluation

of the cervix is obviously going to be done

not so much to detect a 20 or 30 - percent

effacement of the cervix, but more of a rough

estimate; is the patient about to deliver or

not.

So I don't think we really have a good

cervical evaluation to judge whether or not

sh e was in labor. So I think that we have to

use other information, and the information

that I used was I think that probably the

most important is that the records show,

fairly clear, that following the accident,

she began having uterine contractions, and

they're reported to be every three to four

minutes, after [that] three to five minutes,

and that's pretty consistent in her

records . . . .

So she was having regular, frequent uterine

contractions that began after the accident.

And we know that o ne of the risks or

complications from trauma during pregnancy is

the initiation of labor.

The other thing is that her water bag

apparently ruptured or broke at the time of

the accident. This, I think, is confirmed at

the cesarean section delivery. The operative

report states that there was oligohydramnios,

which is lack of amniotic fluid, and it

specifically states that that was consistent

with rupture of the amniotic membranes.

And patients with ruptured membranes, at

term, have a very high likelihood of labor.

In fact, if you rupture your membranes at

term and just observe that patient, half of

those patients will actually deliver within

about five hours, and 90, 95 percent of the

patient[s] will deliver within twenty - four

hours. So after a ruptured membrane, labor

is fairly common.

. . . and the other thing is the placental

abruption that the patient had, and the

majority of placental abruptions either occur

during labor or will initiate labor.

So I guess using all of that information --

regular uterine contractions in a woman, just

having significant abdominal trauma or

significant trauma, and ruptured membranes,

regular uterine contractions and placental

abruptions -- the probability is that she is,

in fact, is in labor.

4/ At hearing, Inte rvenor Charles Heinrichs, M.D., offered

Doctor's Exhibit 7, a Notice to Obstetric Patient signed by

Mrs. Green on April 28, 1998, which advised her that "Vincent W.

Gatto, M.D., and Eva J. Salamon, M.D." were participants in the

Florida Birth - Related Neuro logical Injury Plan, and which

acknowledging her receipt of a copy of the brochure prepared by

NICA. However, the circumstances surrounding the giving of such

notice are not apparent from the record, although the date

coincides with the prenatal period as sociated with the birth of

Mrs. Green's third child (Angela, on November 11, 1998), and the

relevance of that notice to Jordan's birth is likewise not

apparent from the record.

COPIES FURNISHED:

(By certified mail)

Ronald S. Gilbert, Esquire

Morgan, C olling & Gilbert, P.A.

20 North Orange Avenue, Suite 1600

Orlando, Florida 32802 - 4979

Ronald A. Labasky, Esquire

Landers & Parsons, P.A.

310 West College Avenue

Tallahassee, Florida 32301

Kenney Shipley, Executive Director

Florida Birth - Related Neurolo gical

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32312

J. Charles Ingram, Esquire

Mark A. Buckles, Esquire

Hannah, Estes & Ingram, P.A.

Post Office Box 4974

Orlando, Florida 32802 - 49 74

Brian L. Smith, Esquire

G. Bruce Hill, Esquire

Hill, Adams, Hall & Schieffelin, P.A.

1030 West Canton Avenue, Suite 200

Winter Park, Florida 32790 - 1090

Charles Henrichs, M.D.

Winter Haven Hospital

200 Avenue F, Northeast

Winter Haven, Florida 33881

Winter Haven Hospital

200 Avenue F, Northeast

Winter Haven, Florida 33881

Ms. Charlene Willoughby

Agency for Health Care Administration

Consumer Services Unit

Post Office Box 14000

Tallahassee, Florida 32308

Mark Casteel, General Counsel

Department o f 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 copy, accompanied by

filing fee s 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 b e filed within 30 days of rendition of the order to

be reviewed.