03-003657N Vanessa M. Alicea, On Behalf Of And As Natural Guardian Of Aiymani Arlynne Emmanuelli Alicea, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, April 13, 2006.

Summary: While the infant was substantially impaired, the proof demonstrated that the cause of her impairments was most likely developmentally based and not birth-related. Therefore, the claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VANESSA M. ALICEA, on behalf of )

and as natural guardian of )

AIYMANI ARLYNNE EMMANUELLI )

ALICEA, a minor , )

)

Petitioner , )

)

vs. ) Case No. 03 - 3657N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Res pondent . )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative

Hearings, by Administrative Law Judge William J. Kendrick, held

a hearing in the above - st yled case on March 1, 2006, by video

teleconference , with sites in Tallahassee and Jacksonville,

Florida.

APPEARANCES

For Petitioner: Rodney S. Margol, Esquire

Margol & Pennington, P.A.

One Independent D rive, Suite 1700

Jacksonville, Florida 32202 - 5010

For Respondent: M. Mark Bajalia, Esquire

Brennan, Manna & Diamond

76 South Laura Street, Suite 2110

Jacksonvil le, Florida 32202

STATEMENT OF THE ISSUE

At issue is whether A iymani A rlynne E mmanuelli A licea , a

minor, qualifies for coverage under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan).

PRELIMINARY STATEMENT

On October 3, 2003, Vanes sa M. Alicia, as the parent and

natural guardian of Aiymani Arlynne Emmanuelli Alic e a (Aiymani),

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

Administrative Hearings (DOAH) for compensation under the Plan.

DOAH served the Florida Birth - Related Ne urological Injury

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

October 8, 2003, and on January 30, 2004, following an extension

of time within which to do so, NICA responded to the claim, and

gave notice that it was of the view that Aiymani did not suffer

a "birth - related neurological injury," as defined by Section

766.302(2), Florida Statutes, and requested that a hearing be

scheduled to resolve whether the claim was compensable.

A hearing to resolve whether the claim was compensable was

i nitially scheduled for May 24, 2004; however, at the parties'

request th e hearing was canceled and the case was abated until

May 24, 2005. Thereafter, the hearing was rescheduled for

March 1, 2006.

At hearing, the parties stipulated to the facts set forth

in paragraphs 1, 2, and 4 of the Findings of Fact, infra , and

Petitioner's Exhibits 1 - 10 and Respondent's Exhibits 1 - 16, were

received into evidence.

The transcript of the hearing was filed March 16, 2006, and

the parties were accorded 10 days from that d ate to file

proposed orders. The parties elected to file such proposals and

they have been duly - considered.

FINDINGS OF FACT

Preliminary findings

1. Vanessa M. Alicea is the natural mother and guardian of

Aiymani Arlynne Emmanuelli Alicea, a minor. Aiy mani was born a

live infant on July 20, 2002, at Orange Park Medical Center, a

hospital located in Orange Park, Florida, and her birth weight

exceeded 2,500 grams.

2. The physician providing obstetrical services at

Aiymani's birth was R. Roland Powers, 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.

Coverage under the Plan

3. 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 resuscitation in the immediate postdelivery period

in a hospital which renders the infant permanently and

substantially mentally and physically impaired." 1 § 766.302(2),

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

4. Here, the parties have stipulated, and the proof is

otherwise compelling, th at Aiymani is permanently and

substantially mentally and physically impaired. What remains to

resolve is whether Aiymani's impairments resulted from an

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

occurring in the course of labor, deliver y, or resuscitation in

the immediate postdelivery period," as required for coverage

under the Plan.

Aiymani's birth and immediate postnatal course

5. At or about 6:30 a.m., July 20, 2002, Ms. Alicea, with

an estimated delivery date of July 15, 2002, and the fetus at 40

5/7 weeks' gestation, was admitted to Orange Park Medical

Center, for induction of labor. At the time, it was noted that

during her prenatal care (on June 18, 2002), Ms. Alicea had

tested positive for Group B Streptococcus (GBS) in the vag ina,

and had been provided antibiotic treatment. Otherwise, her

prenatal course was without apparent complication.

6. Upon admission, Ms. Alicea's membranes were intact;

blood pressure was noted as 117/76; mild contractions were

documented, at a frequenc y of 3 - 6 minutes, with a duration of

50 - 60 seconds; vaginal examination revealed the cervix at 1

centimeter dilation, 70 percent effacement, and the fetus at - 2

station; and fetal monitoring revealed a reassuring fetal heart

rate, with a baseline in the 14 0 - beat per minute range. An IV

was started at 7:20 a.m., antibiotics (Ampicillin) were started

at 8:19 a.m., and Pitocin induction was started at 8:40 a.m.

7. Ms. Alicea's labor slowly progressed, and at

11:12 a.m., her membranes spontaneously ruptured, with a small

amount of clear fluid noted. At the time, vaginal examination

revealed the cervix at 3 centimeters dilation, 80 percent

effacement, and the fetus at - 1 station. Mild contractions

continued to be documented, at a frequency of 2 - 6 minutes, wit h

a duration of 50 - 60 seconds. However, beginning at 11:40 a.m.,

her contractions were noted as moderate, at a frequency of 2 - 4

minutes, with a duration of 60 seconds, and fetal monitoring

continued to reveal a reassuring fetal heart rate, with a

baseline in the 130 to 140 - beat per minute range. Nevertheless,

an occasional decrease in long - term variability was noted, as

well as "subtle" late decelerations.

8. At 1:21 p.m., an epidural anesthesia was started;

moderate contractions continued, at a frequenc y of 1.5 - 5

minutes, with a duration of 50 - 60 seconds; and by 3:41 p.m.,

vaginal examination revealed the cervix at 4 centimeters, 80

percent effacement, and the fetus at - 2 station. In the

interim, at 2:02 p.m., postepidural hypotension was noted, and

add ressed intravenously with ephedrine (at 2:02 p.m., 2:18 p.m.,

and 2:24 p.m.). Fetal monitoring continued to appear

reassuring, with a baseline in the 130 to 140 / 140 to 150 - beat

per minute range. However, occasional decreases in long - term

variability were noted, and addressed with position change,

oxygen by mask, and IV bolus.

9. Ms. Alicea's labor continued, with moderate

contractions, and at 4:08 p.m., vaginal examination revealed the

cervix at 5 centimeters, 80 percent effacement, and the fetus at

- 1 t o - 2 station. At the time, while fetal monitoring was

otherwise reassuring (with a baseline of 140 - 150 beats per

minute, and short and long - term variability present), variable

decelerations were documented. Amnioinfusion, to relieve

umbilical cord compre ssion, was started at 4:26 p.m. , but

variable decelerations persisted ; by 5:53 p.m., long - term

variability had decreased ; by 6:08 p.m., accelerations were no

longer documented ; and at 6:40 p.m., variable late decelerations

were noted. In the interim, mate rnal blood pressure had fallen ,

fetal heart rate baseline had risen to 150 - beats per minute , and

at 6:14 p.m., vaginal examination revealed an arrest of active

labor (with the cervix at 5 centimeters, 90 percent effacement,

and the fetus at - 2 station), an d at 6:40 p.m., fetal heart rate

was noted a s " 150 's - 170 's" beats per minute. At the time,

Pitocin was discontinued , and intervention included position

change, oxygen by mask, and IV bolus.

10. According to the labor and delivery records, at

6:44 p .m., Dr. Powers was called to come to labor and delivery ,

and notified of fetal tachycardia, decreased long - term

variability, late decelerations and low maternal blood pressure

(hypotension). On his orders, Ms. Alicea was given an IV bolus,

terbutaline, a nd ephedrine, and Ms. Alicea was taken to the

operating room for stat cesarean section, secondary to arrest of

active labor and nonreassuring fetal rhythm. Notably, at

6:57 p.m., a portable external fetal monitor was attached, and

at 7:00 p.m., revealed a fetal heart rate as " 110 's - 120 's,"

beat s per minute , with accelerations up to " 140 ' s for 50

seconds. "

11. Ms. Alicea was noted in the operating room at

7:05 p.m., surgery started at 7:15 p.m., and Aiymani was

delivered by cesarean section at 7:20 p.m., with Apgar scores of

8 and 9, or 7 and 9, depending on which records are consulted,

at one and five minutes respectively. 2 Aiymani's delivery was

described in Dr. Powers' Operative Report, as follows:

. . . the fetal vertex [was] delivered with

a vacuum extractor. The oropharynx and

nasopharynx were bulb suctioned after nuchal

cord x1 was reduced. (This was a loose

nuchal cord.) The infant was placed out of

the field where it was continued to be bulb

suctioned with clear fluid noted. Cord was

doubly c lamped and cut. The infant was

handed to the nurse practitioner for further

ca r e and treatment. Cord blood and cord pH

obtained . . . .

According to the medical records, resuscitation efforts included

blowby oxygen, as well as bulb and deep suctioning, and cord pH

(arterial) was reported as 7.089, and below the reference range

of 7.1 to 7.4.

12. Following delivery, Aiymani was transferred to the

newborn nursery, where she was admitted at 7:30 p.m., and

remained until she was discharged with her mother a t 8:00 p.m.,

July 22, 2002. Initial examination on admission to the nursery

was grossly normal, and her subsequent newborn course was

uncomplicated and without evidence of neurologic compromise.

Aiymani's subsequent development

13. Following discharge f rom Orange Park Medical Center,

Aiymani's development was without apparent complication until

November 20, 2002, when, at 4 months of age, Ms. Alicea voiced

concerns to Aiymani's pediatrician (Daya Patel, M.D.) that

Aiymani was not holding her head up and w as not bearing weight

on her l egs . 3 Dr. Patel diagnosed generalized hypotonia and

motor developmental delay, and referred Aiymani for physical

therapy. However, no diagnostic workup was undertaken at this

point.

14. On February 20, 2003, Aiymani was a dmitted to Wolfson

Children's Hospital on referral from her pediatrician for

difficulty breathing. The Admission Admitting Note concluded:

IMPRESSION:

1. Respiratory infection with mild

wheezing.

2. Severe generalized hypotonia of prenatal

onset. He r wheezing seems to not require

much in the way of treatment. Since she is

on day 3, even if this is an RSV infection

she seems to be handling it reasonably well.

On the other hand, given her weakness and

hypotonia, she will have to be watched more

caref ully. As far as the hypotonia, it is

severe and early onset without detectable

reflexes, the most likely cause would be

spinal muscular atrophy Type I. Other

possibilities would be severe cerebral

palsy, myotonic dystrophy, hypothyroidism,

congenital syn drome such as Prader - Willi or

major CNS malformations. Primary muscle

disease is possible as well as diseases of

neuromuscular junction. We will involve

Neurology early in this admission in order

to be efficient in finding the diagnosis.

We will do some basic labs and check the

neonatal screening for thyroid problems.

Other consultations will be obtained as

suggested by Neurology.

15. As proposed, neurology was involved early in the

admission when Daniel Shanks, M.D., of Nemours Children's

Clinic , was called for consultation. Dr. Shanks evaluated

Aiymani on February 21, 2003, and reported the results of his

consultation, as follows:

REASON FOR CONSULTATION: Evaluation of

hypotnoia

Mother reports that the decrease in overall

movement pattern may dat e back to the third

trimester, when she was poorly active in

utero. They have been particularly

concerned over the last 2 to 3 months with

poor head control, poor movement patterns,

and very prominent hypotonia. Her mother

does report that perhaps she is a little

more active over the last couple of months.

She has been in physical therapy through

Nemours in Orange park. No diagnostic

workup has been undertaken to this point.

She cannot roll. She can left her legs

against gravity to a limited degree. She

has had good p.o. feeding. She has had no

significant respiratory events other than

the present URI symptoms, for which she is

admitted. She has not been critically ill

or hospitalized.

She is the 7 pound 4 ounce produc t of a term

infancy [sic] , tha t was generally

unremarkable, other than the decreased

movements. She was discharged by 2 days of

age, and has had no significant

hospitalizations, surgeries, or serious

injuries.

* * *

FAMILY HISTORY:

There is no history of neurologic,

neurodevelo pmental or neuromuscular

abnormalities, and specifically no history

of infants with severe hypotonia.

REVIEW OF SYSTEMS:

Generally unremarkable, other than her low

tone and movement patterns. She is alert,

interactive. There are no constitutional,

H EENT, cardiac, respiratory, GI, GU,

musculoskeletal, hematologic,

endocrinologic, or immunologic concerns.

* * *

On physical examination, height 67 cm;

weight 8.15 kg; head circumference 42.5 cm

(50th percentile); weight for height is

approximately 9 0th percentile. Generally,

she is a well appearing, alert, socially

interactive infant. She lays in a very

hypotonic frog - leg posture. Anterior

fontanelle is 1 x 2 cm and flat. Cranium

appears normal. Neck is supple. There are

no chest deformities. Abdomen is benign.

Extremities have full range of motion, no

deformities or asymmetries, and in fact

range of motion is mildly exaggerated due to

the hypotonia. Back is without midline

lesions, and no significant neurocutaneous

lesions are noted.

NEUROL OGIC EXAM:

She is visually attentive and socially

interactive. Cranial nerves: Pupils equal,

round and reactive to light. Red reflexes

are intact bilaterally. Extraocular

movements are full and conjugate. Facial

muscle movements are symmetric. She

r esponds to auditory stimulation. There are

no overt oral motor abnormalities and no

fasciculations are noted in the tongue.

Motor exam shows profound hypotonia and

apparent weakness. She has very minimal

anti - gravity movement. She has little

movement w hen trying to pull her extremity

away from a noxious stimulus. She is

areflexic. Sensory exam appears grossly

intact, and there are no adventitial

movements. She has essentially no head

control and negative support reflex. She is

hypotonic both truncal ly and peripherally.

She has limited mobility, in that she can do

very little anti - gravity, and has no ability

to get from one point to another.

IMPRESSION:

Likely profound hypotonia due to

neuromuscular disease and anterior horn cell

disease would be st atistically the most

likely. One cannot exclude other

neuromuscular processes, however. I think

it would be reasonable to send SMN DNA test

to Athena, as well as to obtain baseline CPK

and a nerve conduction study. Further

evaluations can be based on th ese. If they

are unrevealing, then proceeding to muscle

biopsy and other metabolic work - up will be

considered.

16. An MR Brain scan of February 21, 2003, concluded:

FINDINGS: Midline structures of corpus

callosum, pituitary gland and cerebellar

vermis are within normal limits. Mega

cisterna magna is present. There is no mass

effect or midline shift. The ventricles

have a slightly undulating contour,

particularly involving the bodies of the

lateral ventricles. The periventricular

white matter volume is decreased. Because

of the patient's age of 7 months, bright

signal is seen on the T2 - weighted images in

the periventricular and subcortical white

matter, but this is expected for the degree

of myelination at this age. It is

difficult, therefore, to e valua t e for true

signal abnormality or normal lack of

myelination at this age. The decreased

white matter volume may represent

periventricular leukomalacia. Imaging

followup when the patient is 2 years of age

or older is suggested to evaluate for

periven tricular white matter signal

abnormality.

Mildly prominent extra - axial CSF spaces

adjacent to the frontal and parietal lobes

bilaterally is a normal finding for the

patient's age . . . .

IMPRESSION:

1. Abnormal contour of the bodies of the

lateral ventricles with decrease in volume

of periventricular white matter as discussed

above. Finding may be secondary to

periventricular leukomalacia, although

presence of signal abnormality in the

periventricular white matter is difficult to

assess at this age due to normal bright

signal in the periventricular white matter

from lack of myelination. Imaging followup

is recommended when the patient is 2 years

of age to determine presence of abnormal

periventricular white matter signal.[ 4 ]

2. Mega cisterna magn a.

3. No other structional anomalies are

identified.

4. The myelination pattern of the white

matter is compatible with the patient's age

of 7 months.

A motor and sensory nerve conduction study of February 25, 200 3 ,

was reported normal for Aiymani's ag e, with "[n]o evidence of

neuropathy at the sites tested. "

1 7 . Aiymani was seen at Nemours Children's Clinic for

follow - up by Dr. Shanks on March 18, 2003. At the time,

Dr. Shanks noted the following:

PE: . . . GENERAL APPEARANCE: alert,

healthy, not i n distress. HEAD:

atraumatic, normorcephalic. NECK: supple

with full range of motion.

EXTREMITIES: no asymmetries or deformities.

NEUROLOGICAL EXAM: On neurological exam ,

. . . muscle tone was severely decreased in

extremities and trunk. There is little

antigravity movement and I suspect

diminished strength. Deep tendon reflexes

were absent bilaterally. . . . . Sensation

was normal to light touch.

IMPRESSION: Congenital hypotonia which is

significant and appears associated with

weakness. Ne uromuscular hypotonia which

most likely represents anterior horn cell

disease. Unfortunately, the critical test

is not paid by Medicaid. Athena (the only

lab available for the test) is to be in

touch with the family to see if arrangements

can be made. A lternatively, we may have to

proceed with muscle biopsy as another

potentially confirmatory test. I will see

her back when this is settled. She should

continue with PT and oral feeding competence

will need to be monitored.

1 8 . Aiymani continued to be f ollowed at Nemours Children's

Clinic by neurology (Dr. Shanks, and following his retirement,

Dr. Da v id Hammond), genetics (Dr. Pamela Arn), and multiple

Nemours sub - specialists . However, despite multiple studies, no

etiology or unifying diagnosis for Aiym ani's severe hypotonia

and developmental delay was identified , and at no time did her

treating physicians postulate that a likely cause for Aiymani's

neurologic impairments was a brain injury (hypoxic or otherwise)

suffered during the course of birth.

The parties' experts

1 9 . Apart from the medical records related to Aiymani's

birth and subsequent development, salient portions of which have

been addressed supra , the parties offered the opinions of three

physicians to address the likely etiology of Aiymani 's

neurologic impairment. These physicians' statements were brief,

and in written format. (Petitioner's Exhibit 1; Respondent's

Exhibits 12 - 16).

20 . Offered on behalf of Petitioner was the statement of

Dr. James O'Leary, a physician board - certified in obstetrics and

gynecology, and maternal - fetal medicine. Dr. O'Leary wrote:

I have evaluated the medical care rendered

to Vanessa Alicea and her 7 pound, 4 ounce

daughter. At this time, I am prepared to

provide you with my opinions concerning the

relation ship of that care to the adverse

outcome. These opinions are based on the

standard care applicable at the time the

events in this case occurred, namely 2002

and they are expressed in terms of a

reasonable degree of medical certainty.

It is my opinion tha t the permanent

neurologic damage sustained by her daughter ,

Aiymani, which left her brain damaged,

occurred during the course of labor, on

July 20, 2002, because of the delay in

proper treatment of postepidural hypotension

and fetal distress which complic ated her

labor. In addition, Dr. Powers should have

performed an emergency cesarean section much

sooner.

The prenatal care was within accepted

standards of care. The ultrasound

examinations have excluded any possible

intrauterine causes of brain damage.

The labor progress was not normal. The rate

of dilation was abnormal. There was also an

arrest of dilation at 5 cm/minus two station

at 6:14 p.m. based upon SVE documentation.

Review of the fetal monitoring tracings

reveals evidence of late decelerati ons and

an increasing baseline heart rate, variable

decelerations and a decrease in the number

of accelerations.

The standard of care required that the

persistent hypotensive episode be rapidly

treated and the Pitocin stopped. The

failure to do this le d to worsening of the

fetal heart r ate abnormalities, and the

ultimate ischemic brain damage from

persistent utero - placental insufficiency.

Had the physician and nurse midwife properly

treated the hypotension and stopped the

Pitocin, the fetal distress wo uld have

resolved and Aiymani's neurological injuries

would not have occurred.

2 1 . In contrast, Dr. Donald Willis, also an expert in

obstetrics and maternal - fetal medicine, whose observations were

offered on behalf of Respondent, wrote:

I have reviewed t he medical records for the

above named individual. The mother was a 20

year old admitted for induction of labor due

to post dates. Cesarean delivery was done

for a non - reassuring fetal heart rate

pattern and failure to progress. Amniotic

fluid was clear . The birth weight was 3,290

grams. The newborn was not depressed.

Apgar scores were 8/9. The baby was

described as "term, pink, alert, strong

cry." The newborn hospital course was

uncomplicated and the baby was discharged

home with the mother at 48 h ours.

There was no apparent Obstetrical incident

that led to this child's injury.

Stated otherwise, Dr. Willis concluded:

As such; it is my opinion that there was not

an injury to the brain or spinal cord caused

by oxygen deprivation or mechanical injur y

occurring in the course of labor, delivery,

or resuscitation in the immediate

postdelivery period in a hospital as

required by Section 766.302(2), Florida

Statutes, for a claim to qualify for

compensation under Sections 766.301 through

766.316, Florida S tatutes.

2 2 . Finally, Dr. Michael Duchowny, a physician board -

certified in neurology with special competence in child

neurology, and associated with Miami Children's Hospital,

offered observations on behalf of Respondent. Notably,

Dr. Duchowny examined Aiymani on January 14, 2004, and on

October 19, 2005, and based on the results of his examinations

and review of the medical records , was of the opinion that

Aiymani suffer ed a substantial mental and physical impairment.

However, similar to Aiymani's trea ting physicians at Nemours

Children's Clinic, Dr. Duchowny was of the opinion that

Aiymani's neurologic impairments were most likely

developmentally based, and not birth - related. Dr. Duchowny

concluded:

. . . medical records provide [] no support

for beli eving that Aiymani's neurologic

impairments resulted from either oxygen

deprivation or mechanical injury at the time

of birth. [Moreover,] I believe that

Aiymani most likely has ataxic cerebral

palsy which was acquired prenatally and

therefore do not beli eve that she is

compensable under the NICA statute.

The likely etiology of Aiymani's neurologic impairments

2 3 . Given the record, it must be resolved that the cause

of Aiymani's neurologic impairments, while yet unidentified, was

most likely developme ntally based, as opposed to birth - related.

In so concluding, it is noted that the medi c al records reve a l

that Aiymani was not depressed at birth and her immediate

postnatal course was uneventful. Moreover, among the physicians

who have examined or treate d Aiymani, and were well qualified to

address the cause of her impairments, there appears to be no

disagreement that the likely ca u se of her impairments was

developmentally based, and not birth - related. Consequently,

Dr. O'Leary's opinion regarding causat ion is rejected , as

unlikely . Moreover, given the studies that have been done to

identify the cause of Aiymani's impairments, as well as the

conclusion that the ca u se of her impairments was most likely

developmentally based, Dr. O'Leary's observation that "[t]he

[prenatal] ultrasound examinations have excluded any possible

intrauterine cause of brain damage" is less than persuasive.

CONCLUSIONS OF LAW

2 4 . The Division of Administrative Hearings has

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

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

2 5 . 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.

2 6 . The injured infant, her or his personal

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

compensation under the Plan by filing a claim fo r compensation

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

766.303(2), and 766.305(1), Fla. Stat. The Florida Birth -

Related Neurological Injury Compensation Association, which

administers the Plan, has "45 days from the date of service o f 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(4), Fla. Stat.

2 7 . 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(7), 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. Sta t.

2 8 . In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the injury claimed is a

birth - related neurological injury. If the

claimant has demonstrated, t o 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 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

resusc itation in the immediate postdelivery

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 postdelivery

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 delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

29 . 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 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.

30 . As the proponent of the issue, the burden rested on

Petitioner to demonstrate that Aiymani suffered a "birth - related

neurological injury." § 766.309(1)(a), Fla. Stat. S ee 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 asserting the affirmative

issue before an administrative tribunal.")

3 1 . Here, the proof failed to support the conclusion that,

more likely than not, Aiymani's neurologic impairment was the

result of a brain or spinal cord injury caused by oxygen

deprivation or mechanical injury occurring in the course of

labor, delivery, or resuscitation in the immediate postdelivery

period in the hospital . Consequently, given the provisions of

Section 766.302(2) , Florida Statutes, Aiymani does not qualify

for coverage under the Plan. See also §§ 766.309(1) and

766.31(1), Fla. Stat.; Humana of Florida, Inc. v. McKaughan , 652

So. 2d 852, 859 (Fla. 5th DCA 1995)("[B]ecause the Plan . . . is

a statutory substitute f or common law rights and liabilities, it

should be strictly constructed to include only those subjects

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

Related Neurological Injury Compensation Association v.

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

3 2 . Where, as here, the administrative law judge

determines that ". . . the injury alleged is not a birth - related

neurological injury . . . she or 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." § 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 Con clusions of

Law, it is

ORDERED the claim for compensation filed by Vanessa M.

Alicea, as the parent and natural guardian of Aiymani Arlynne

Emmanuelli Alicea, a minor, is dismissed with prejudice.

DONE AND ORDERED this 13th day of April , 200 6 , in

Tallaha ssee, 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

F ax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of April, 2006 .

ENDNOTES

1/ The definition of "birth - related neurological injury" also

includes an "injury to the brain . . . c aused by . . .

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," as well as an "injur y to the

. . . spinal cord . . . 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

me ntally and physically impaired." § 766.302(2), Fla. Stat.

However, in this case there is no contention or proof to support

a conclusion that the infant suffered an injury to the brain

caused by mechanical injury or an injury to the spinal cord.

Indeed, the parties have stipulated that th e only issue is

whether Aiymani's impairments were caused by an "injury to the

brain . . . caused by oxygen deprivation . . . occurring in the

course of labor, delivery, or resuscitation in the immediate

postdelivery peri od." (Prehearing Stipulation, filed

February 28, 2006 ; Transcript, pages 4 - 6 . )

2/ The Apgar scores assigned to Aiymani are a numerical

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

sum points gained on assessment of heart rate, respir atory

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

category being assigned a sc o re ranging from the lowest score of

0 through a maximum sc o re of 2. Here, according to the mother's

labor and delivery records (Petitioner's Exhibit 5, Respo ndent's

Exhibit 1), at one minute, Aiymani's Apgar score totaled 8, with

heart rate, respiratory effort, and reflex irritability being

graded at 2 each, and muscle tone and color being graded at 1

each. At five minutes, Aiymani's Apgar score was noted as 9,

with heart rate, respiratory effort, muscle tone, and reflex

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

1. According to the newborn records (Petitioner's Exhibit 4,

Respondent's Exhibit 5), at one minute, Aiymani's Apgar score

total ed 7, with heart rate, respiratory effort, and reflex

irritability being graded at 2 each, muscle tone being graded at

1, and color being graded at 0. At five minutes, Aiymani's

Apgar score was noted as 9, and scored consistent with the labor

and delivery records. Aiymani's Apgar scores were acceptable,

and inconsistent with depression at birth.

3/ See Respondent's Exhibit 6, examinations of July 24, 2002,

through November 20, 2002.

4/ A n MR Brain scan without and with contrast was performed on

June 1 4, 2005, and compared with the follow - up exam that had

been recommended (and performed on August 3, 2004). The results

of that brain scan were consistent with end stage

periventricular leukomalacia, and reported as follows:

FINDINGS: Stable appearance o f the corpus

callosum which is intact but thin.

Pituitary gland and cerebellar vermis are

within normal limits. Mega cisterna magna

is identified with a stable configuration

when compared to the prior study.

There is stable ventricular asymmetry with

le ft lateral ventricle slightly larger than

the right. There is an irregular

configuration of the lateral walls of the

lateral ventricles. The scalloped border of

the lateral ventricles is secondary to loss

of volume of the periventricular white

matter and there is abnormal bright signal

in the periventricular white matter

bilaterally. Findings are compatible with

end stage periventricular leukomalacia.

There is stable prominence of the cortical

sulci and the extraaxial CSF spaces. They

are symmetric in size. No focal parenchymal

mass. No midline shift.

No abnormal configuration or signal

intensity in the hippocampi.

Visualized paranasal sinuses and mastoid air

cells are clear. The orbital structures are

symmetric and within normal limits.

After con trast administration, no abnormal

parenchymal or meningeal enhancement.

MR BRAIN/W/WO CONTRAST I

1. Unenhanced and enhanced MRI examination

of the brain demonstrating stable

configuration of end stage periventricular

leukomalacia.

2. Remainder of the examination is

unremarkable.

COPIES FURNISHED :

(Via Certified Mail)

Rodney S. Margol, Esquire

Margol & Pennington, P.A.

One Independent Drive, Suite 1700

Jacksonville, Florida 32202 - 5010

(Certified Mail No. 7005 1820 0002 9840 6871)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7005 1820 0002 9840 6888)

M. Mark Bajalia, Esquire

Brennan, Manna & Diamond

76 South L aura Street, Suite 2110

Jacksonville, Florida 32202

(Certified Mail No. 7005 1820 0002 9840 6895)

R. Roland Powers, Jr., M.D.

1605 Kingsley Avenue

Orange Park, Florida 32073

(Certified Mail No. 7005 1820 0002 9840 6901)

Sharon Jones, ARNP, CNM

Orange P ark Medical Center

2001 Kingsley Avenue

Orange Park, Florida 32073

(Certified Mail No. 7005 1820 0002 9840 6918)

Orange Park Medical Center

2001 Kingsley Avenue

Orange Park, Florida 32073

(Certified Mail No. 7005 1820 0002 9840 6925)

Charlene Willoughb y, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7005 1820 0002 9840 6932)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this F inal O rder 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 a ppeal 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 I njury

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.