02-003276N Susan Hackerman And Steven Hackerman, On Behalf Of And As Parents And Natural Guardians Of Kevin A. Hackerman, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, December 19, 2003.

Summary: The proof failed to show that the infant`s neurological impairment resulted from a brain injury caused by oxygen deprivation or mechanical injury that occurred during labor, delivery, or resuscitation. Therefore, the claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSAN HACKERMAN and STEVEN )

HACKERMAN, as parents and )

natural guardians of KEVIN A. )

HACKERMAN, a minor, )

)

Petitioners, )

)

vs. ) Case No. 02 - 3276N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Re spondent, )

)

and )

)

PAMELA P. CARBIENER, M.D. and )

HALIFAX HOSPITAL MEDICAL )

CENTER, )

)

Intervenors. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings,

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

in the above - styled case on November 21, 2003, by video

teleconference, with sites in Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioners: Ronald S. G ilbert, Esquire

Morgan, Colling & Gilbert, P.A.

20 North Orange Avenue, Suite 1600

Post Office Box 4979

Orlando, Florida 32802 - 4979

For Respondent: Lynn W alker Wright, Esquire

Lynn Walker Wright, P.A.

2716 Rew Circle, Suite 102

Ocoee, Florida 34761

For Intervenors: Kirk S. Davis, Esquire

Akerman, Senterfitt & Eidson, P.A.

Post Office Box 3273

Tampa, Florida 33601 - 3273

STATEMENT OF THE ISSUE

Whether Kevin A. Hackerman, a minor, qualifies for coverage

under the Florida Birth - Related Neurological Injury Compensatio n

Plan.

PRELIMINARY STATEMENT

On August 19, 2002, Susan Hackerman and Steven Hackerman, on

behalf of and as parents and natural guardians of Kevin A.

Hackerman (Kevin), 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

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

August 20, 2002, and on January 17, 2003, N ICA 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 case on the issue of compe nsability."

In the interim, Pamela P. Carbiener, M.D., and Halifax Hospital

Medical Center, were accorded leave to intervene.

At hearing, Petitioners presented the testimony of

Susan Hackerman and Beverley Giardina, and Petitioners' Exhibit 1

(the medical records filed with DOAH on August 19, 2002),

Exhibit 2 (the deposition of Michael Duchowny, M.D.), Exhibit 3

(Dr. Duchowny's report of neurological evaluation, dated

November 27, 2002), Exhibit 4 (Dr. Duchowny's report, dated

December 19, 2002), Exhibit 5 (Dr. Duchowny's report, dated

January 6, 2003), Exhibit 6 (the deposition of Rubin Lopez,

M.D.), Exhibit 7 (the deposition of Pamela Carbiener, M.D.),

Exhibit 8 (the deposition of Robert Hartmann, M.D.), Exhibit 9

(the deposition of Susan Newell, R.N.), a nd Exhibit 10 (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 December 8, 2003,

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

proposed orders. Respondent elected to file such a proposal and

it has been duly considered.

FINDINGS OF FACT

Fundamental findings

1. Petitioners, Susan Hackerman and Steven Hackerman, are

the parents and natural guardians of Kevin A. Hackerman, a minor.

Kevin was born a live infant on September 25, 2000, at Halifax

Hospital Medical Center, a hospital located in Daytona Beach,

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

2. The physician providing obstetrical services at Kevin 's

birth was Pamela Carbiener, 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. 1

Coverage under the Plan

3. Pe rtinent 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 r esuscitation in the immediate postdelivery

period in a hospital, which renders the infant permanently and

substantially mentally and physically impaired." § 766.302(2),

Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat.

4. Here, indisputably, Kevin i s permanently and

substantially mentally and physically impaired. What remains to

resolve is whether the proof supports the conclusion that, more

likely than not, Kevin's neurologic impairment resulted from an

"injury to the brain . . . caused by oxygen d eprivation or

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

resuscitation in the immediate postdelivery period," as required

for coverage under the Plan.

The cause and timing of Kevin's

neurological impairment

5. To address the caus e and timing of Kevin's neurological

impairment, Petitioners offered selected medical records related

to Kevin's birth and subsequent development (Petitioners'

Exhibit 1); the deposition of Michael Duchowny, M.D., a physician

board - certified in pediatrics, neurology with special competence

in child neurology, and clinical neurophysiology (Petitioners'

Exhibit 2); the results of Dr. Duchowny's neurologic examination

of Kevin, as well as Dr. Duchowny's conclusions following review

of the medical records (Peti tioners' Exhibits 3 - 5); the

deposition of Rubin Lopez, M.D., a physician board - certified in

pediatrics, who attended Kevin on September 26, 2000, at Halifax

Hospital (Petitioners' Exhibit 6); the deposition of

Pamela Carbiener, M.D., the delivering obstetr ician (Petitioners'

Exhibit 7); the deposition of Robert Hartmann, M.D., a physician

board - certified in pediatrics, who practices pediatrics and

neonatology, and who attended Kevin at Halifax Hospital

(Petitioners' Exhibit 8); the deposition of Susan Newel l, R.N.,

the nurse who attended Kevin following delivery (Petitioners'

Exhibit 9); the deposition of Donald Willis, M.D., an

obstetrician who reviewed the medical records (Petitioners'

Exhibit 10); and the lay testimony of Susan Hackerman, Kevin's

mother, and Beverley Giardina, Kevin's maternal grandmother.

6. As for the event, and its timing, which caused Kevin's

neurologic impairment, it was Dr. Duchowny's opinion, based on

the results of his neurologic evaluation of Kevin on November 27,

2002, and revie w of the medical records, that, while of unknown

etiology, Kevin's neurologic impairment was prenatal

(developmental) in origin, having occurred prior to the onset of

labor, and not associated with oxygen deprivation or mechanical

injury, during labor, del ivery, or resuscitation. Dr. Duchowny

described the bases for his opinion, as follows:

Q. . . . Could you tell me why [in your

opinion Kevin does not qualify under the NICA

statute]?

A. I believe that Kevin's neurologic

impairment was unlikely to be ac quired in the

course of labor, delivery or the immediate

resuscitation period. He was born at 40

weeks gestation, but was small for his

gestational age in that his birth weight was

only five pounds - seven ounces. His head

circumference was small at birth. It was 32

centimeters, indicating an inadequate

development of the brain prior to birth and,

additionally, he had Apgar scores which were

three and eight, and the eight Apgar score at

five minutes suggested he was doing

reasonably well at the time of del ivery. In

fact, he was doing well enough that the

doctors didn't need to intubate him and

provide ventilatory support, elected not to

draw blood gases and, in fact, felt that he

was reasonably stable just after delivery.

Kevin did experience some respir atory

problems subsequently in that he developed

left lower lobe pneumonia and a left tension

pneumothorax but, in my opinion, these

problems were treated adequately and he was

not significantly hypoxic nor was there any

evidence of damage to the brain as a

consequence of these postnatal events.

Furthermore, Kevin's MRI scan which was

performed in May of 2001 demonstrated the

possibility of a small degree of

periventicular leukomalacia [PVL] but was

otherwise within normal limits. In my

opinion, this MRI finding is inconsistent

with the severe nature of Kevin's neurologic

impairment.

Q. When you say that that MRI was . . .

inconsistent, what do you mean by that,

doctor?

A. What I mean is that given Kevin's severe

degree of impairment, had the cause bee n

perinatal hypoxia, I would have expected to

see many more abnormalities and more

widespread involvement on the MRI scan,

abnormalities such as diffuse brain atrophy,

enlargement of the ventricles, possibly areas

of abnormal signal. None of those were

pr esent.

* * *

Q. There is some notation in the records

throughout this case of meconium staining.

Can you please indicate whether nor not the

meconium staining that is noted has any

significance with regard to your medical

opinion.

A. Yes . . . . Meconium staining represents

distress in utero and requires approximately

72 hours for this finding to take place.

This finding, therefore, again, predates

Kevin's neurological problems prior to the

onset of labor and delivery.

7. The opinions of Dan iel Shanks, M.D., Kevin's consulting

pediatric neurologist following discharge from Halifax Hospital,

were consistent with those expressed by Dr. Duchowny. Pertinent

to this case, Dr. Shanks evaluated Kevin on March 30, 2001, at 6

months of age, and concl uded:

IMPRESSION: Developmental delays likely

global but worse in regard to his motor

skills as compared to social skills.

Language skills may be significantly delayed

as well. He has microcephaly and has had

this since birth. This suggests more likely

a prenatal situation which could either be

related to malformation, injury, chromosomal

or metabolic abnormality, or alternate

syndromic - type diagnosis. Often, no specific

etiology can be established with certainty.

My bias would be to pursue initial

evaluations to include brain MRI Scan, high -

resolution karyotype and lactate, and

baseline ophthalmologic evaluation. It would

seem reasonable also to undergo a baseline

genetics evaluation to help guide additional

need for metabolic work up or for review of

any abnormalities on karyotype. Additional

work up can be guided by the above.

(Petitioners' Exhibit 1.) Following testing, Kevin was again

evaluated by Dr. Shanks on June 15, 2001. Dr. Shanks reported

the results of that testing and his evaluation as follows:

. . . Kevin is seen today in the Pediatric

Neurology Clinic for follow - up of evaluation

for static encephalopathy and quadriplegic

cerebral palsy. He underwent neuroimaging

with brain MRI last month that demonstrated

findings suspicious for P VL, however,

somewhat difficult to well assess due to his

age. He had chromosomes high resolution that

were negative and a normal lactate. No

specific etiology is apparent for his

encephalopathy and he continues to evidence

significant motor delays. Lan guage delays

are a little bit more difficult to assess.

He is very visually alert and socially

attentive. He has poor head control and low

truncal tone and low base tone when relaxed.

He has very limited mobility . . . .

(Petitioners' Exhibit 1.) Foll owing evaluation, Dr. Shanks,

reported his impression, as follows:

. . . Static encephalopathy likely from a

prenatal process. No specific etiology has

been established to this point. If he has a

dysmyelinating or PVL type evolution, this

would suggest a process that adversely

affected CNS during third trimester. There

is no evidence of tissue loss or an injury.

8. As for Dr. Willis, the obstetrician who reviewed the

medical records, it was his opinion that the birth records failed

to support a conclus ion that Kevin suffered a brain injury from

oxygen deprivation or other trauma associated with his birth or

resuscitation. Dr. Carbiener, the attending obstetrician, was

also of the opinion that it was unlikely Kevin suffered an injury

during labor and de livery, but declined to address the period

following delivery, since she was attending the mother, not the

child, at the time.

9. Dr. Lopez, the pediatrician who examined Kevin at

approximately 4 hours of age (12:38 a.m., July 26, 2000), offered

no opinio n regarding the etiology of Kevin's developmental

delays, or whether he suffered oxygen deprivation or mechanical

injury during labor and delivery. 2 Dr. Hartmann, the attending

neonataologist at Halifax Hospital, likewise ventured no opinion

regarding the etiology of Kevin's developmental delays or whether

he suffered oxygen deprivation during labor; however, based on

the newborn resuscitation record, Dr. Hartmann was of the opinion

that Kevin did not suffer any significant lack of oxygen from the

time of delivery until positive pressure ventilator was

initiated. Nurse Newell, who attended Kevin following delivery,

voiced no opinion regarding the likelihood that Kevin suffered

brain injury from oxygen deprivation or other trauma.

10. Given the record, it must be concluded that the proof

demonstrated, more likely than not, that Kevin's deficits were

not occasioned by an injury to the brain caused by oxygen

deprivation or mechanical injury occurring in the course of

labor, delivery, or resuscitation in the i mmediate postdelivery

period, but were occasioned by a developmental abnormality, that

preceded the onset of labor. See , e.g. , 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 readily 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 uncontroverted medical

testimony without a reasonable explanation."). In so concluding,

the testimony of Mrs. Hackerman and Mrs. Giardina has not been

overlooked; however, while competent to demonst rate that Kevin

was depressed at birth, and later developed respiratory distress,

it was not competent proof to support any conclusion regarding

the etiology of Kevin's developmental delays. See , e.g. , Vero

Beach Care Center v. Ricks , 476 So. 2d 262, 264 (Fla. 1st DCA

1985)("[L]ay testimony is legally insufficient to support a

finding of causation where the medical condition involved is not

readily observable.").

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the part ies to, and the subject matter of,

these proceedings. § 766.301, et seq , Fla. Stat .

12. 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 January 1, 1989. § 766.303(1), Fla. Stat.

13. The injured "infant, her or his personal

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

compensation und er the Plan by filing a claim for compensation

with the Division of Administrative Hearings. §§ 766.302(3),

766.303(2), 766.305(1), and 766.313, Fla. Stat. 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."

§ 766.305(3), Fla . Stat.

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

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

compensation to the claimant, provided that the award is approved

by the administrative law judge to whom the claim has been

assigned. § 766.305(6), Fla. Stat. 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.

§ § 766.304, 766.309, and 766.31, Fla. Stat.

15. 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 inju ry. 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

rendered permanently a nd substantially

mentally and physically impaired, a

rebuttable presumption shall arise that the

injury is a birth - related neurological injury

as defined in s. 766.303(2).

(b) Whether obstetrical services were

delivered by a participating physician in the

course of labor, delivery, or resuscitation

in the immediate post - delivery period in a

hospital; or by a certified nurse midwife in

a teaching hospital supervised by a

participating physician in the course of

labor, delivery, or resuscitation in the

im mediate post - delivery period in a hospital.

§ 766.309(1), Fla. Stat. 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 delivere d by a participating physician at birth."

§ 766.31(1), Fla. Stat.

16. 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 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

impa ired. This definition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

17. As the claimants, the burden rested on Petitioners, as

the proponents of the issue, to demonstrate that Kevi n suffered a

"birth - related neurological injury." § 766.309(1)(a), Fla. Stat.

See also Balino v. Department of Health and Rehabilitative

Services , 348 So. 2d 349, 350 (Fla. 1st DCA 1997)("[T]he burden

of proof, apart from statute, is on the party asserti ng the

affirmative issue before an administrative tribunal.").

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

more likely than not, Kevin's neurologic impairments resulted

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

or mech anical injury occurring in the course of labor, delivery,

or resuscitation." Consequently, the record developed in this

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

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

and the claim is not compensable. §§ 766.302(2), 766.309(1), and

766.31(1), Fla. Stat.

19. 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 orde r [to

such effect] and . . . cause a copy of such order to be sent

immediately to the parties by registered or certified mail."

§ 766.309(2), Fla. Stat. Such an order constitutes final agency

action subject to appellate court review. § 766.311(1), Fla.

Stat.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by

Susan Hackerman and Steven Hackerman, on behalf of and as parents

and natural guardians of Kevin A. Hackerman, a min or, is

dismissed with prejudice.

DONE AND ORDERED this 19th day of December, 2003, in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administr ative Hearings

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 Administrative Hearings

this 19th day of December, 2003.

ENDNOTES

1/ All citations are to Florida Statutes (2000), unless otherwise

indicated.

2/ The dialogue between Petitioners' counsel and Dr. Lopez

regarding the etiology of Kevin's developmental delays was qui te

uninformative:

Q. . . . Do you have an opinion as to what

was causing the respiratory distress at that

point in time [12:38 a.m., July 26, 2000].

A. No.

Q. All right. Do you have an opinion as to

whether nor not the respiratory distress was

caus ing any immediate injury to the baby?

A. Immediate injury?

Q. Yes.

A. No.

Q. You don't have an opinion, one way or

another?

A. Right.

Q. I want you to assume -- you're not aware

of any -- of the status of this baby today?

A. Not at all.

Q. Or any of the diagnostic studies that

have been done?

A. Not at all.

Q. All right. Was there any demonstrated

microcephaly at the time that you did your

examination?

A. Not according to my note.

Q. You would have written that down if there

had bee n?

A. Yes.

Q. I want you to assume that Kevin Hackerman

has since been diagnosed with developmental

delays that are global in nature, that he has

difficulty with language and communication,

that he has microcephaly today, and that

genetic studies have ruled out any birth

defect issues that are genetically based.

Given that additional information regarding

Kevin's current status, that he suffers from

global developmental delay, do you have an

opinion within a reasonable degree of medical

probability as to whether or not the

respiratory distress that you diagnosed at

the time you saw Kevin was in any way related

to the ultimate developmental delay that he

has suffered?

A. I don't know.

Q. All right.

A. I can't say that specifically.

Q. All right. Do you have an opinion as to

whether or not the developmental delay that

I've now told you about is in any way related

to the events of labor or delivery?

A. That's a possibility.

Q. When you say it's possible, let's define

your opinion a little bette r, if we can.

I've told you that genetic studies were done

that ruled out any genetic basis for the

developmental delay. I want you to assume

that there's been no injury or acute process

or disease processes since the time that you

saw Kevin on September 26, 2000 that would

account for the developmental delay.

And given your examination of him on that

date that he was in respiratory distress, do

you have an opinion -- with the understanding

that I just laid out, do you have an opinion

within a reasonable degree of medical

probability as to whether or not the

developmental delay issues are related to

labor and delivery?

A. Yes, it would be then.

Q. Okay.

A. Assuming nothing else, as you've said.

Q. Do you have an opinion as to whether or

not the us e of the vacuum in any way

adversely affected this baby?

A. No, I don't know.

Q. You don't know.

Do you have an opinion as to whether or not

there was actual oxygen depravation that

occurred during labor or delivery?

A. I don't know that.

Q. Do yo u have an opinion as to whether or

not there was actual mechanical injury

suffered by the baby during labor and

delivery?

A. I don't know that.

Q. Although you're unable to state the exact

etiology of any injury during labor and

delivery, given the gen etic studies that I

told you about and the lack of any injury or

acute disease process after your examination

of the baby, do I understand that it is your

opinion that more likely than not, this baby

did suffer some type of insult during labor

and delivery that has since manifested itself

as developmental delay?

A. Yes.

(Petitioners' Exhibit 6, pages 16 - 19.) Moreover, given the

record in this case, Dr. Lopez's opinion that Kevin's deficits

were related to an incident, albeit of unknown etiology, that

oc curred during labor and delivery is rejected as without an

accurate or adequate foundation, and contrary to the more

persuasive proof.

COPIES FURNISHED:

(By certified mail)

Ronald S. Gilbert, Esquire

Morgan, Colling & Gilbert, P.A.

20 North Orange Av enue, Suite 1600

Post Office Box 4979

Orlando, Florida 32802 - 4979

Lynn Walker Wright, Esquire

Lynn Walker Wright, P.A.

2716 Rew Circle, Suite 102

Ocoee, Florida 34761

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 - 4567

Kirk S. Davis, Esquire

Akerman, Senterfitt & Eidson, P.A.

Post Office Box 3273

Tampa, Florida 33601 - 3273

Pamela Carbiener, M.D.

Halifax OB/GYN Associates

311 North Clyde Morris Boulevard

Suite 180

Daytona Beach, Florida 32114

Halifax Hospital Medical Center

303 North Clyde Morris Boulevard

Daytona Beach, Florida 32114

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 t he 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 fees prescribed by law, with the approp riate 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.