03-003856N Lorna Merklinger And Scott Merklinger, On Behalf Of And As Parents And Natural Guardian Of Daniel S. Merklinger, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, October 8, 2004.

Summary: The infant suffered a brain injury at birth during a forceps delivery, but he was not rendered substanitally mentally or physically impaired. The claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LORNA MERKLINGER AND SCOTT )

MERKLINGER, on behalf of and as )

parents and natural guardians )

of DANIEL S. MERKLINGER, a )

minor, )

)

Petitioners, )

) Case No. 03 - 3856N

vs. )

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATI ON ASSOCIATION, )

)

Respondent, )

)

and )

)

FLORIDA HOSPITAL WATERMAN and )

JOSE RAMON GONZALEZ, M.D., )

)

Intervenors. )

)

FINAL ORDER

Pursuant to notice, the Di vision of Administrative

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

a final hearing in the above - styled case on September 1, 2004,

in Leesburg, Florida.

APPEARANCES

For Petitioners: J. Clancey Bounds, Esquire

Maher, Guiley and Maher, P.A.

631 West Morse Boulevard, Suite 200

Winter Park, Florida 32789

For Respondent: George W. (Trey) Tate, III, Esquire

Wendell B. Hayes, Esquire

Broad and Cassel

390 North Orange Avenue, Suite 1100

Orlando, Florida 32801 - 1641

For Intervenor Florida Hospital Waterman:

Kevin W. Richardson, Esquire

G. Douglas Nail, Esquire

McCumber Inclan, P.A.

8529 South Park Circle, Suite 240

Orlando, Florida 32818

For Intervenor Jose Ramon Gonzalez, M.D.:

W. Pe ter Martin, Esquire

Dennis, Jackson, Martin & Fontela, P.A.

Post Office Box 15589

Tallahassee, Florida 32317 - 5589

STATEMENT OF THE ISSUES

Whether Daniel S. Merklinger, a minor, qualifies for

coverage under the Florida Birth - Related Neurological Injury

Compensation Plan.

PRELIMINARY STATEMENT

On October 20, 2003, Lorna Merklinger and Scott Merklinger,

on behalf of and as parents and natural guardians of Daniel S.

Merklinger (Daniel), a min or, filed a petition (claim) with the

Division of Administrative Hearings (DOAH) for compensation

under the Florida Birth - Related Neurological Injury Compensation

Plan (Plan). 1

DOAH served the Florida Birth - Related Neurological Injury

Compensation Associat ion (NICA) with a copy of the claim on

October 21, 2003, and on March 4, 2004, NICA filed a Motion for

Summary Final Order, predicated on the opinion of its expert

that Daniel did not show evidence of a substantial mental or

motor impairment. By Order of April 8, 2004, NICA's Motion for

Summary Final Order was denied, and on April 16, 2004, NICA gave

notice that it was of the view that Daniel did not suffer a

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

766.302(2), Florida Statutes (2001). 2 By Notice of Hearing dated

May 14, 2004, a hearing was scheduled for September 1, 2004, to

resolve whether the claim was compensable.

At hearing, Respondent's Exhibits A - K, and Intervenors'

(Hospital's/Physician's) Exhibits 1 - 4, were received into

evidence . No witnesses were called, and no further exhibits

were offered.

The transcript of the hearing was filed September 10, 2004,

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

proposed final orders. Respondent and Intervenors elected to

file s uch proposals, and they have been fully considered.

FINDINGS OF FACT

Preliminary findings

1. Lorna Merklinger and Scott Merklinger are the natural

parents and guardians of Daniel S. Merklinger, a minor.

Daniel was born a live infant on November 17, 200 1, at Florida

Hospital Waterman, a hospital located in Eustis, Florida, and

his birth weight exceeded 2,500 grams.

2. The physician providing obstetrical services at

Daniel's birth was Jose Ramon Gonzalez, 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.

Daniel's birth and postnatal course

3. At or about 6:50 a.m., November 16, 2001,

Mrs. Merklinger, with an es timated delivery date of November 23,

2001, and the fetus at 39 weeks gestation, presented to Florida

Hospital Waterman, for induction of labor. At the time,

Mrs. Merklinger's membranes were noted as intact, and vaginal

examination revealed the cervix at fingertip dilation,

effacement at 60 percent, and the fetus at - 1 station. Uterine

contractions were noted as mild, irregular and with a duration

of 60 seconds, and external fetal monitoring revealed a

reassuring fetal heart rate, with a baseline at 130 t o 140 beats

per minute.

4. Pitocin induction was started at or about 7:00 a.m.,

and continued until 3:51 p.m., when it was discontinued

following a vaginal examination that revealed no progress in

cervical dilation. 3 Given the lack of progress, C ytotec w as

inserted vaginally at 4:34 p.m., and again at 1:10 a.m.,

November 17, 2001.

5. From 8:18 a.m., when Pitocin induction was restarted,

until 7:00 p.m., when Dr. Gonzalez ordered Mrs. Merklinger

prepared for delivery, Mrs. Merklinger's labor progress wa s

slow, but, until 6:20 p.m., when prolonged decelerations in the

90 to 102 beat per minute range were noted, fetal monitoring

continued to reveal a reassuring fetal heart rate.

6. Starting at 7:25 p.m., vacuum delivery was attempted on

three occasions, unsuccessfully, and between 7:30 p.m., and

7:32 p.m., forceps were applied three times. Then, after

delivery of Daniel's head, a right shoulder dystocia was noted,

and relieved with suprapubic pressure and McRoberts maneuver,

and Daniel was delivered at 7:42 p.m.

7. At delivery, Daniel was depressed (limp, with poor

respiratory effort), and required resuscitation measures,

including oxygen and bag/mask for four to five minutes. Apgar

scores were recorded as 3, 6, and 8, at one, five, and ten

minutes, respectively. 4

8. Following delivery, Daniel was transported to the

nursery, where he remained until approximately 6:10 p.m.,

November 18, 2001, when he was transferred via ambulance to the

neonatal intensive care unit at Arnold Palmer Hospital for

Childr en & Women. Reason for transfer was noted as fractured

skull and subdural hematoma. Daniel's history and diagnoses at

Florida Hospital Waterman were summarized by his attending

physician (Dr. Thomas Carlson) in Daniel's discharge summary, as

follows:

HIS TORY OF PRESENT ILLNESS: Baby boy

Merklinger is a product of a pregnancy

complicated by a maternal age of 41,

maternal chronic hypertension and asthma.

Labor was induced with Pitocin. Toward the

termination of delivery, the child became

distressed and d elivery was urgent . . . .

Mother suffered a third degree laceration in

the rapid delivery, and the child's head was

quite bruised . . . . I was called at the

time of delivery and was in Orlando. I

transferred the call to the doctor on call,

Dr. Burgos. When she was reached, the baby

had already been born and was breathing, so

she elected not to go in at that time. The

baby was born at 1958 [sic] hours. My

examination was complete and note written at

2130 hours. The child was, according to the

nurse, bagged for approximately 5 minutes

postpartum, but then did well.

When I saw the baby under the warmer, I

immediately noticed severe bruising and

abrasions of the forehead, on through the

occiput with large quantity of subcutaneous

blood under the scalp. The right cornea was

noted to be cloudy. The chest was clear.

Heart regular without murmur. The child was

breathing well with good oxygen saturation,

good capillary refill on room air. There

was also noted an apparent fracture of the

right clavicle, and the left arm had some

decreased movement probably from pulling of

the nerve plexus at birth. Impression at

that time was traumatic birth doing

well . . . .

The following morning, it was noted that the

hemoglobin and hematocrit were dropping

. . . . It was noted that the head

circumference was growing . . . .

Intravenous antibiotics and fluids were

begun. I ordered a CT of the head, chest

x - ray and came in to see the child. IV

antibiotics were begun. The chest x - ray

showed mildly displ aced right clavicular

fracture. The heart and lungs appeared

normal. No pneumothorax identified. CT of

the brain without contrast revealed a

frontal subdural hematoma, 11 mm in

thickness with mild mass effect and midline

shift. Scalp hematoma noted on physical

exam was also present. . . . [Mildly]

depressed left frontal skull fracture,

minimally displaced left posterior fossa

fracture at the lambdoid suture inferiorly.

A right anterolateral scalp hematoma with

slight suture separation at coronal sutu re,

and a minimally depressed fracture extending

back towards the right lambdoid. No

intraventricular hemorrhage. With this

finding, it was elected to immediately

transfer the child to Arnold Palmer Hospital

because a neuro surgeon was needed. The

child was then transferred out.

DIAGNOSES

Traumatic birth.

Multiple skull injuries with depressed

fractures and subdural hematomas.

Traumatized right cornea.

Mild Erb's palsy on the left.

Fractured right clavicle.

9. At approximately 7:11 p.m., November 18, 2001, Daniel

was admitted to Arnold Palmer Hospital. Upon admission, Daniel

was examined by Dr. Michael McMahan, who noted that:

. . . On arrival of the team, tonic colonic

motions of the lower extremity noted, could

not be suppressed. Phenobarbital . . .

given . . . . Ampicillin and Claforan begun

after blood culture obtained . . . . The

infant has been feeding well, but with

question of seizures infant was made n.p.o.

and placed on IV fluids . . . . PHYSICAL

EXAM: . . . Irritable. Molding. Severe

bruising of the scalp. Very large caput as

well as cephalohematomas. Question of

subgaleal bleed. Fontanelle is full. Eyes

are open. Cloudy right cornea . . . .

Chest: Right clavicle with palpable

fracture/crepitus . . . . Neuro: Normal

tone and m otor strength, moves all

extremities . . . . Bruises on chest.

IMPRESSION:

1. Term AGA male

2. Intracranial bleed.

3. Possible seizures.

4. Rule out sepsis

10. On November 18 and 19, 2001, 5 with a diagnosis of

"depressed left temporal skull fractu re with underlying epidural

hematoma," Daniel underwent a "[l]eft temporal craniotomy for

elevation of skull fracture and evacuation of epidural

hematoma," and "[p]lacement of left frontal external ventricular

drain with Codman monitor." The surgeon was E ric Trumble, M.D.,

a pediatric neurosurgeon, who noted that Daniel "tolerated the

procedure well, was sent to NICU postoperatively."

11. On November 27, 2001, at 10 days of age, Daniel was

discharged home on Phenobarbital, with instructions to follow up

with his pediatrician within one week, Drumble in 2 - 3 weeks,

and the development center. Discharge examination noted:

. . . active, alert, no distress. Head and

neck: Large cephalohematoma. Incision

healing. Chest clear. No murmur. Abdomen

so ft. Normal motor strength. Slightly

decreased tone left arm.

Discharge summary noted the following problems addressed during

Daniel's hospitalization:

2. Depressed skull fracture: Neurosurgery

consult obtained. Infant was taken to OR on

November 18 f or left temporal craniotomy and

evacuation of EDH. CT scan of the head on

November 19 showed extensive scalp swelling,

multiple nondepressed skull fractures, small

amount of intracranial hemorrhage, question

status of intracranial pressure with low

densit y changes inferiorly raising

possibility of increased intracranial

pressure. Infant continued on

phenobarbital. Skull incision clean and

healing. Large cephalohematomas remain

present. MRI was done on November 27. This

showed scalp hematoma which cros ses the

midline over the vertex, evidence for

parenchymal hemorrhage adjacent to the

atria/occipital horn, right lateral

ventricle mixed signal intensity consistent

with evolving hemorrhage. Additionally,

posterior extra - axial hemorrhage is

appreciated, l ikely subdural hemorrhage.

Small amount of hemorrhage also seen along

the interhemispheric fissure towards the

vertex. Small areas of parenchymal signal

abnormality seen in the left periventricular

parenchyma likely related to ventricular

shunt placement . An increased signal

intensity is seen on both ADC and T2

weighted sequences within the white matter

of the right parieto - occipital region likely

reflecting edema. No midline shift.

Midline structures intact.

No ventriculomegaly. Infant has slightly

decreased tone in the left arm compared to

the right. No seizure activity noted. He

is discharged home on phenobarbital 6 mg

p.o.q. 12 hours for follow up with

Dr. Trumble in 2 - 3 weeks . . . .

3. Possible sepsis: Treated with

ampicillin and Clafora n times seven days.

Blood culture negative.

* * *

5. Ophthalmology: Eye exam on November 20

with diffuse hemorrhage OU. Follow up on

November 27 improved, but still significant

hemorrhage present. Guarded visual

prognosis OD. For recheck in th ree weeks

with Dr. Gold.

Final diagnoses were:

1. Term AGA (appropriate for gestational

age) male.

2. Depressed skull fracture, status post

evacuation of hematoma.

3. Possible seizures.

4. Possible sepsis.

5. Left corneal opacification.

6. Ane mia.

Daniel's subsequent development

12. Following discharge from Arnold Palmer Hospital,

Daniel was referred to Pediatric Neuroscience, P.A., where he

was initially followed by Drumble, who had performed his

surgery. Drumble first examined Dan iel on December 20,

2001, and in a letter to Daniel's pediatrician (Thomas Carlson,

M.D.) reported his impressions, as follows:

I have just had the opportunity to see

Daniel with his mother in the neurosurgery

clinic today. As you know, he is a 1 - month -

o ld child whose last neurosurgery

intervention was a craniotomy for evacuation

of epidural hematoma on 11/19/01. He has

been doing very well since that time without

headaches, nausea or vomiting and meeting

developmental milestones.

On examination, Daniel is bright, alert, and

interactive. He weighs 9 pounds 8 ounces

and has a head circumference of 37.25 cm.

His incision is well healed. He remains

neurologically intact. Eom's are intact.

Disc margins are sharp bilaterally. His

anterior fontanelle is soft and flat. He

does have a bony ridge palpable about the

posterior aspect of the left craniotomy and

a scalp ridge in the right occipital region.

I am pleased with the improvement Daniel has

had thus far. I would like to see him back

in the neurosurg ery clinic in 3/02 with a

repeat head CT for routine follow - up. He

may discontinue all neuro - active medications

from my stand - point, including anti -

convulsants.

13. Drumble next examined Daniel on March 14, 2002, at

which time he noted that Daniel h ad a "progressive right

occipital flatness with the right ear anterior to the left and

subtle right frontal bossing," and prescribed an occipital

molding band. Otherwise, there was no change in Drumble's

impression of Daniel's progress, and he noted t he "repeat head

CT done at Arnold Palmer Hospital on 3/5/02 . . . was

intracranially normal. T he fractures healing well."

14. Following March 14, 2002, Daniel was seen by

Dr. Trumble on June 10, 2002; July 22, 2002; and September 26,

2002, during which time Daniel's occipital flatness improved and

Dr. Trumble remained pleased with Daniel's progress.

Dr. Trumble's impressions for this time period may be gleaned

from the text of his letter to Daniel's pediatrician of

September 26, 2002, as follows:

I hav e just had the opportunity to see

Daniel with his mother in the neurosurgery

clinic today. As you know, he is a 10 -

month - old child whose last neurosurgical

intervention was a craniotomy for evacuation

of epidural hematoma on 11/19/01. He has

been doing v ery well since that time without

headaches, nausea or vomiting and meeting

developmental milestones. His right

occipital flatness has improved since he

obtained his occipital molding band,

initially in 3/02 with a replacement in late

5/02. He comes in fo r routine follow - up

today. Mother notes that he was recently

developmentally graded advanced.[ 6 ]

On examination, Daniel is bright, alert, and

interactive. He weighs 16 pounds, 12 ounces

and has a head circumference of 44.3 cm.

His left temporal incisio n is well healed.

He remains neurologically intact. Eom's are

intact. Disc margins are sharp bilaterally.

His anterior fontanelle is soft and flat.

He has mild right occipital flatness, with

his right ear anterior to his left and mild,

compensatory ri ght frontal bossing. These

findings are very subtle and much improved

since he was placed in the occipital molding

band.

As part of his ongoing work - up, Daniel had a

repeat head CT that was intracranially

normal. His bone flap is integrating well.

I am pleased with the improvement Daniel has

had thus far. I do not feel that

neurosurgical intervention is warranted at

this time. We will be happy to see them

back at any time but don't feel that they

need[] routine neurosurgical follow - up.

15. Following Drumble's September 26, 2002,

evaluation, Daniel has been followed by Ronald Davis, M.D., a

pediatric neurologist. Dr. Davis first evaluated Daniel on

June 27, 2003, and reported the results of his evaluation to

Daniel's pediatrician, as follows:

I h ad the opportunity to evaluate Daniel.

As you well know, he is a 19 - month - old who

was born with a delivery complicated by

multiple skull fractures and subdurals as a

result of forceps delivery. He subsequently

had some transient seizure activity and was

on Phenobarb, but was able to wean off. He

underwent a number of surgical repairs, but

developmentally has done well.

Over the course of the last number of weeks

he had events where he vomits out of the

blue, turns pale, cold and clammy. He has

some eye deviation and becomes unresponsive

and still. It lasts for a number of minutes

and he can be sleepy afterwards. He has had

somewhere between 7 - 8 of these events. They

are very discrete events without any clear

tonic or clonic activity. They have been

occurring on a cycle range about every 4 - 8

days.

As a result of this he has had an EEG. It

actually demonstrated the presence of right

frontotemporal sharp wave discharges.

Interestingly, in the past mother had

wondered whether or not he had also had so me

headache like activities where he would seem

to grab his head and wince in pain.

Though he has had a number of CT scans he

has not had an MRI. He has not been started

on any medications.

PAST MEDICAL HISTORY: Otherwise notable for

the subdurals and the fractures. He has

some right facial injury and a right orbital

injury.

* * *

ON EXAM:

General: He is a well - developed, healthy -

appearing male with some slight facial

asymmetry, right over left . . . . HEENT,

patient is normocephalic. Pupils are

reactive . . . . .

NEUROLOGICAL EXAM:

Mental Status: He was awake, alert,

oriented. He was attentive and interactive.

His speech was fluent. He had no anomia.

He could follow directions appropriately.

He had good right - left orientation.

Crania l nerves II - XII: Intact. F ull EOM's.

Fundi were sharp bilaterally. Tongue was

midline.

Motor Exam: Normal tone and bulk with 5/5

strength. He did not have a drift.

Sensory Exam: Intact to light touch,

vibration and cold.

Reflexes: 2.

Toes: Do wn.

Coordination and Gait: No primary ataxia,

dysmetria or tremor. He had appropriate

gait for age.

IMPRESSION: Daniel is a 19 - month - old with

seizure - like episodes, likely partial in

nature with an abnormal EEG with trauma as

the most likely inciti ng event.

PLAN: At this point I am going to arrange

for an MRI to rule out any structural

abnormality.

I have given them Diastat 5 mg to use for

any prolonged events and they are going to

think over the use of long - term

antiepileptic medication. The si de effects

and risks of going on medicine as well as

not going on antiepileptic medication on a

routine basis were reviewed.

16. Following an MRI, Daniel had a follow - up visit with

Dr. Davis on August 26, 2003. Dr. Davis reported the results of

that eva luation, as follows:

I had the opportunity to follow - up with

Daniel. As you well know, he is our nearly

2 - year - old who suffered traumatic fractures

as a result of delivery by forceps, as well

as the presence of subdurals. Since his

last visit he has had an MRI and EEG. His

EEG had, of course, demonstrated the

presence of frontotemporal sharp wave

discharges on the right. This did correlate

with MRI abnormality. The MRI actually

demonstrated thickening cortex in that

region, as well as focal cystic

ence phalomalacia there, as well as in the

right gyrus rectus and the basal ganglia.

Additionally, there was periventricular

leukomalacia noted bilaterally.

He continues to do well developmentally.

There are some mild delays, but he continues

to advance wit hout any evidence of

regression or plateauing.

* * *

NEUROLOGICAL EXAM:

Mental Status: He was awake, alert,

attentive and interactive. His speech is

mildly disarticulate, but fluent. He is

able to engage appropriately.

Cranial nerves II - XII: In tact with some

estropia of the right.

Motor Exam: Demonstrates symmetric

movement.

Reflexes: 1

Coordination and Gait: No primary ataxia.

IMPRESSION: Daniel is a nearly 2 - year - old

with traumatic injury was described with

resultant mild developmenta l delay,

periventricular leukomalacia and an abnormal

EEG.

PLAN: At this point we will just continue

to have the Diastat 5 mg to use for any

breakthrough seizures. We will continue to

hold off on any routine antiepileptic

medication as he has not had an y

breakthrough seizures.

17. Dr. Davis continues to follow Daniel's progress. On

his most recent evaluation of July 19, 2004, Dr. Davis noted:

I had the opportunity to follow - up with

Daniel. As you well know, he is our young

man with history of traum atic fractures from

delivery by forceps and subdural hematoma.

He has abnormal EEG and periventricular

leukomalacia on MRI.

He continues to do relatively well. He has

not had any significant seizure activity,

though mother does relate a time when he

app eared to be having some type of partial

spell in the face of being overheated.

Interestingly, the grandfather also reports

that he sees Daniel put his head down at

times as if he has some transient and/or

paroxysmal head pain which can last for a

number o f seconds.

However, he did have a repeat EEG back in

June which continued to demonstrate the

presence of left frontocentral spike and

wave discharges, as well as independent

right frontocentral spike and wave

discharges.

Cognitively he continues to adva nce. There

appears to be no regression.

ON EXAMINATION:

General: He is well developed and healthy

appearing. . . . HEENT. patient is

normocephalic. Pupils are reactive . . . .

NEUROLOGIC EXAM:

Mental Status: He was awake, alert,

attentive, inter active and engaging. His

speech was mildly disarticulate, but fluent.

Cranial nerves II - XII: Intact. Full EOM's,

though mild esotropia is noted of the right.

He has some mild asymmetry of his facies.

Motor Exam: Normal tone and symmetric

movement.

Reflexes: 1.

Coordination and Gait: No primary movement

disorder.

IMPRESSION: Daniel is a young man with

traumatic brain injury in the face of

periventricular leukomalacia with mild

developmental issues and abnormal EEG.

PLAN: At this point I am co ncerned a little

bit about these events that are both

described by the grandfather, as well as the

single event noted by the mother.

Should these recur and/or persist I am going

to arrange for a more prolonged ambulatory

study.

In the meantime we will continue to have the

Diastat available and monitor him closely.

18. On February 9, 2004, following the filing of the claim

in this case, Daniel was, at Respondent's request, examined by

Michael Duchowny, M.D., a pediatric neurologist. Dr. Duchowny

repor ted the results of his neurology examination, as follows:

PHYSICAL EXAMINATION reveals an alert,

cooperative, well - developed and well -

nourished 2 - year - old boy. Daniel weighs 24

pounds and is 34 inches tall. The skin is

warm and moist. There is one café - au - lait

spot on the right thigh. There are no other

neurocutaneous stigmata and no somatic

dysmorphic features. The head circumference

measures 48.5 cm, which is at the 50th

percentile for age match controls. A bony

ridge is palpated over the right skul l vault

and there is also a small area of

depression. There are no facial

asymmetries. There is some reddening

beneath the eyes compatible with an allergic

diathesis. The neck is supple without

masses or thyromegaly. Bilateral anterior

and posterior ce rvical adenopathy is

palpated as well as small post auricular

lymph nodes. The lungs' fields are clear

and the heart sounds reveal a grade 2/6

innocent ejection systolic murmur. There is

no palpable abdominal organomegaly. The

abdomen is soft and non - t ender. Peripheral

pulses are 2 and symmetric.

NEUROLOGICAL EXAMINATION reveals an alert,

well developed, cooperative and sociable 2 -

year - old. Daniel interacts very well and

shows a very high level of curiosity. He

was not overly defensive and cooperat ed

fully for the evaluation. Daniel has an

appropriate attentional span for his age and

spoke in long phrases. He articulated his

needs well. He also anticipated maneuvers

and assisted in getting himself dresse[d]

and undressed. Cranial nerve examinat ion

reveals full visual fields to direct

confrontation testing. I can see no

evidence of corneal scarring. The pupils

are 2 to 3 mm and react briskly to direct

and consensually presented light. A brief

funduscopic examination was unremarkable.

The extr aocular movements are full and

conjugate. There are no facial asymmetries.

The tongue and palate move well. The uvula

is midline. Motor examination reveals

symmetric strength, bulk and tone. There

are no adventitious movements and no focal

weakness or atrophy. The deep tendon

reflexes are 2 and symmetric and there are

no pathologic reflexes. Both plantar

responses are downgoing. Daniel's stance is

narrowly based and he walks with good

stability and symmetric arm swing. He turns

crisply. He is abl e to get up from a

sitting position without difficulty.

Sensory examination is intact to the

withdrawal of all extremities to

stimulation. Neurovascular examination

reveals no cervical, cranial or ocular

bruits. There are no temperature or pulse

asymmet ries. Daniel is able to grasp with

either hand and transfers readily.

In SUMMARY, Daniel's neurological

examination reveals no significant findings.

He does have some cranial dysmorphism

secondary to his previous skull fractures

and surgery. However, D aniel does not show

evidence of a substantial mental or motor

impairment . . . .

Coverage under the Plan

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

Plan for infants who suffer a "birth - related neurological

injury," defined as in "injury to the brain . . . 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 physica lly impaired."

§ 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla.

Stat.

20. In this case, Petitioners and NICA are of the view

that Daniel suffered an injury to the brain caused by the

forceps delivery, but that he was not rendered permanen tly and

substantially mentally and physically impaired. In contrast,

Intervenors are of the view that Daniel's brain injury did

result in permanent and substantial mental and physical

impairment.

The significance of Daniel's impairment

21. To address th e significance of any impairment Daniel

may have suffered, the parties offered the records related to

Daniel's birth and subsequent development, pertinent portions of

which have been addressed supra (Respondent's Exhibits A - G); a

color photograph of Daniel taken within the first 24 hours of

birth (Intervenors' Exhibit 1); the deposition of

Michael Duchowny, M.D., an expert in pediatric neurology

(Respondent's Exhibit H); the deposition of Ronald Davis, M.D.,

an expert in pediatric neurology (Respondent's Ex hibit K); the

deposition of Petitioner Lorna Merklinger (Respondent's Exhibit

I); the deposition of Petitioner Scott Merklinger (Respondent's

Exhibit J); the deposition of Loren Mann, Daniel's maternal

grandmother (Intervenors' Exhibit 3); the deposition o f

Ruth Merklinger, Daniel's paternal grandmother (Intervenors'

Exhibit 4); and the deposition of George Merklinger, Daniel's

paternal grandfather (Intervenors' Exhibit 2).

22. Dr. Duchowny, as revealed in his deposition, was of

the opinion, based on his r eview of the medical records and his

neurologic evaluation of Daniel on February 9, 2004, that Daniel

was neither mentally nor physically impaired, much less

substantially mentally and physically impaired, as required for

coverage under the Plan. Dr Ducho wny described his evaluation

and conclusions, as follows:

Q. Doctor, when you examined

Daniel Merklinger, what physical and

neurological exams did you conduct on him

specifically? What did you have him do or

what did you observe?

A. Well, his weight an d height were

recorded. I looked at his skin. I looked

at his head. I felt his head, measured his

head circumference. Observed his face, his

mouth, his throat.

I looked at and palpated his neck. I

listened to his chest. I listened and felt

his abdo men, looking for his internal

organs, and palpated his extremities and his

peripheral pulses.

On the neurological examination, I observed

his behavior and his communication patterns,

both expressive and receptive. I looked at

his attention span, his so cial abilities,

his ability to engage me in both the

examination and in conversation. I looked

at his ability to participate in the

expected activities of daily living within a

limited sense; for example, how he dressed

or undressed himself.

I certainly observed his behavior, both with

respect to me and with respect to his

family. I performed a cranial nerve

examination, which included an examination

of the eyes, of the facial movements, and an

observation of his hearing abilities. I

also looked at the way his mouth moved, how

he swallowed, how his tongue moved, whether

or not there was any drooling.

I further looked at his motor abilities,

including the movements of his extremities,

his arm and legs. I evaluated his muscle

tone. I looked to see if th ere was any

atrophy, any abnormal movement, any lack of

movement, any stiffness in any of his limbs.

I made sure that his gait was stable, that

it was symmetric, that his coordination was

appropriate for his age, that his hand use

was appropriate, and tha t he had bimanual

dexterity, that he transferred between

hands, that he had good, fine motor

coordination and pincer grasp.

I looked at his ability to show evidence of

good muscle strength; for example, getting

up from a sitting position, his ability to

w alk and turn and show coordinated

movements.

I examined him for sensation, just looking

at the way he moved his arms and legs in

response to my touch and pressure, and also

examined the patterns of the blood flow to

his head by checking his neck and head for

temperature, for the pulses, making sure

there were no abnormalities or asymmetries.

I also listened to his neck and head to make

sure that there were no abnormal sounds

emanating from the vessels supplying blood

to his head.

Q. Was his behavior age appropriate?

A. I thought so, yes.

Q. Was his communication ability age

appropriate?

A. Yes.

Q. Was his motor ability and coordination

age appropriate?

A. Yes.

Q. Did you see anything during your

examination that led you to believe that he

was physically impaired?

A. No.

Q. Did you see anything in your examination

that led you to believe he was mentally

impaired?

A. No.

Q. Do you have an opinion regarding whether

or not he is substantially and permanently

physically impaired?

A. Yes. I do not belie[ve] he is

substantially impaired, mentally or

physically.

(Respondent's Exhibit H, pages 34 - 37).

23. Dr. Davis, as revealed in his deposition, was of the

opinion that Daniel suffered some developmental delays, but

articulated no finding s from which one could reasonably conclude

that Daniel was either substantially mentally or physically

impaired. Regarding Daniel's developmental delays, Dr. Davis

described them as follows:

Q. Okay. And have you noticed . . . [any

developmental issues] in your treatment of

Daniel?

A. He has some disarticulation of his

speech. In other words, his speech is

difficult to understand. There is some

slight inconsistencies in his motor skills,

so you would see that. But then, also, when

you go through som e of the -- just the

typical other developmental learning issues,

he has some difficulty with that as well.

* * *

Q. . . . [W]hen I was asking you about

developmental delays, could you be more

specific about what it is that you base that

upon as a c linical symptom?

A. In particular for Daniel or --

Q. Yes, yes. Specifically for Daniel.

A. He has some difficulty with his speech,

which is the motor component of the way he

moves his mouth, if you will, that sort of

formation of words. There is some movement

abnormalities noted in his face, some

asymmetry there.

And then his gait is a little -- this is

more from recollection than from others,

because I don't remember documenting it.

But his -- he's a little bit wide based in

his stance, so th ere are more subtle degrees

there of his motor difficulties. But the

more prominent is his disarticulation of

speech, that formation, the mechanical

formation of words.

* * *

Q. All right. Earlier, I believe you

described his -- the motor dysfunct ion he's

currently displaying as mild; is that

correct?

A. I think that's in my note, yes.

* * *

Q. You . . . mentioned that the -- that

Daniel has some developmental delays. What

were you referring to? Was it just the

speech and the --

A. And the motor, yes.

Q. Okay. And could you -- I think you've

already gone over this a couple times, but

for the motor dysfunction, other than the

asymmetry in his face and speech

disarticulation, was it anything other than

the widened gait?

A. Not that I have documented here, no.

(Respondent's Exhibit K, pages 24, 29, 64, 65, and 69).

Notably, Dr. Davis did not opine that, or disclose any findings

that would support a conclusion that, more likely than not,

Daniel was mentally impaired, that Daniel was s ubstantially

physically impaired, or that Daniel's brain injury would, at any

time in the future, result in substantial mental or physical

impairment.

24. As for the deposition testimony of Daniel's parents

and grandparents, with regard to his current men tal and physical

presentation, they were all of the opinion, to the extent they

were called upon to express one, that Daniel's mental and

physical development were age appropriate. Their concerns for

Daniel, to the extent they expressed them, were specula tive in

nature, and premised on their uncertainty as to whether Daniel's

brain injury would, either through the manifestation of

persistent seizure activity or developmental deficiencies,

adversely affect him in the future. Such concerns are certainly

nat ural, but insufficient to support a conclusion that, more

likely than not, Daniel's brain injury has rendered him, or will

render him, permanently and substantially mentally and

physically impaired.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

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

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

26. The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providin g 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.

27. 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 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

n eurological injury." § 766.305(3), Fla. Stat.

28. 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 administrati ve 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 provisi ons of C hapter 120, F lorida

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

29. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the injury clai med is a

birth - related neurological injury. If the

claimant has demonstrated, to the

satisfaction of the administrative law

judge, that the infant has sustained a brain

or spinal cord injury caused by oxygen

deprivation or mechanical injury and that

the i nfant 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

de livered 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 lab or, delivery, or

resuscitation in the immediate 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 delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

30. 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 l ive

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

su bstantially 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.

31. As the proponents of the issue, the burden rested on

Intervenors to demonstrate that Daniel 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, i s on the party asserting the affirmative

issue before an administrative tribunal.").

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

more likely than not, Daniel suffered an "injury to the brain

. . . caused by oxygen deprivation or mechani cal injury

occurring in the course of labor, delivery, or resuscitation

. . . which render[ed] . . . [him] permanently and substantially

mentally and physically impaired." Consequently, the record

developed in this case failed to demonstrate that Danie l

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. See also

Florida Birth - Related Neurological Injury Compensation

Association v. Florida Division of Administrative Hearings , 686

So. 2d 1349 (Fla. 1997)(The Plan is written in the conjunctive

and can only be interpreted to require both substantial mental

and substantial physical impairment.); Humana of Florida, Inc.

v. McKaughan , 652 So. 2d 852, 859 (Fla. 5th DCA 1995)("[B]ecause

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

and liabilities, it should be strictly constructed to include

only those subjects clearly embraced within its terms."),

approved , Florida Bir th - Related Neurological Injury Compensation

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

33. Where, as here, the administrative law judge

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

neurological injury . . . he [is requi red 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 Conclusions of

Law, it is

ORDERED that the claim for compensation filed by

Lorna Merklinger and Scott Merklinger, on behalf of and as

parents and natural guardians of Dan iel S. Merklinger, a minor,

is dismissed with prejudice.

DONE AND ORDERED this 8th day of October, 2004, in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearing s

this 8th day of October, 2004.

ENDNOTES

1/ On October 24, 2003, Petitioners filed an amended petition

to correctly reflect Daniel's date of birth as November 17,

2001.

2/ All citations are to Florida Statutes (2001) unless

otherwise indicated.

3/ Vaginal examination at 3:45 p.m., again revealed the cervix

at fingertip dilation, with effacement at 80 percent and the

fetus at - 1 station.

4/ The Apgar scores assigned to Daniel are a numerical

expression of the condition of a newborn infant, and ref lect the

sum points gained on assessment of heart rate, respiratory

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

each category being assigned a score ranging from the lowest

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

minut e, Daniel's Apgar score totaled 3, with heart rate being

graded at 2, respirator effort being graded at 1, and muscle

tone, reflex irritability and skin color being graded at 0 each.

At five minutes, Daniel's Apgar score totaled 6, with heart rate

being g raded at 2, and respiratory effort, muscle tone, reflex

irritability and skin color being graded at 1 each. At ten

minutes, Daniel's Apgar score totaled 8, with heart rate,

respiratory effort, and reflex irritability being graded at 2

each, and muscle ton e and skin color being graded at 1 each.

5/ Surgery was noted to start at 11:15 p.m., November 18, 2001,

and end at 12:22 a.m., November 19, 2001.

6/ On September 17, 2002, Daniel was evaluated by Arnold

Palmer's Developmental Center for Infant's and C hildren, and

given a Mullen Scales of Early Learning test. The test measured

his development in five categories: Gross Motor, Visual

Reception, Fine Motor, Receptive Language, and Expressive

Language. Daniel's scores were age appropriate or above in all

areas.

COPIES FURNISHED:

(By certified mail)

J. Clancey Bounds, Esquire

Maher, Guiley and Maher, P.A.

631 West Morse Boulevard, Suite 200

Winter Park, Florida 32789

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Comp ensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32308

George W. (Trey) Tate, III, Esquire

Wendell B. Hayes, Esquire

Broad and Cassel

390 North Orange Avenue, Suite 1100

Orlando, Florida 32801 - 1641

K evin W. Richardson, Esquire

G. Douglas Nail, Esquire

McCumber Inclan, P.A.

8529 South Park Circle, Suite 240

Orlando, Florida 32818

W. Peter Martin, Esquire

Craig A. Dennis, Esquire

Dennis, Jackson, Martin & Fontela, P.A.

Post Office Box 15589

Tallahasse e, Florida 32317 - 5589

Jose Ramon Gonzalez, M.D.

201 East Magnolia Avenue

Eustis, Florida 32726 - 3505

Florida Hospital Waterman

201 North Eustis Street

Post Office Box B

Eustis, Florida 32726

Ms. Charlene Willoughby

Department of Health

4052 Bald Cypre ss Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled

to judicial review pursuant to Sections 120.68 and 766.311,

Florida Statutes. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such 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, wi th the

appropriate District Court of Appeal. See Section 766.311,

Florida Statutes, and Florida Birth - Related Neurological Injury

Compensation Association v. Carreras , 598 So. 2d 299 (Fla. 1st

DCA 1992). The notice of appeal must be filed within 30 days of

rendition of the order to be reviewed.