03-004418N Jody Workman And Brian Workman, On Behalf Of And As Parents And Natural Guardians Of Alyssa Workman, A Deceased Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, November 29, 2004.

Summary: The proof failed to support the conclusion that the infant suffered a brain injury caused by oxygen deprivation during labor, delivery, or resuscitation. Therefore, the claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JODY WORKMAN AND BRIAN WORKMAN, )

on behalf of and as parents and )

natural guardians of ALYSSA )

WORKMAN, a deceased minor, )

)

Petitioners, )

)

vs. ) Case No. 03 - 4418N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION A SSOCIATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings,

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

hearing in the above - styled case on August 31, 2004, in

Inverness, Florida.

APPEARANCES

For Petitioners: Brian Workman, pr o se

Jody Workman, pro se

11240 North Northwood Drive, Lot 14

Inglis, Florida 34449

For Respondent: Donald H. Whittemore, Esquire

Phelps Dunbar, LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

STATEMENT OF THE ISSUES

At i ssue is whether Alyssa Workman, a deceased minor,

qualifies for coverage under the Florida Birth - Related

Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On November 25, 2003, Jody Workman and Brian Workman, on

behalf of and as parents and nat ural guardians of Alyssa Workman

(Alyssa), a deceased 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

November 26, 2003; and on February 27, 2004, NICA filed a Motion

for Summary Final Order, and on March 10, 2004, an Amended Motion

for Summary Final Order; predi cated on the opinion of their

medical experts that Alyssa did not suffer a "birth - related

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

§ 766.302(2), Fla. Stat. (2001) 1 By Order of May 4, 2004, NICA's

motions were denied, and on May 13, 2004 , NICA filed its Response

to Petition for Benefits, and averred that "the instant claim is

not compensable as the injury does not meet the definition of a

'birth - related neurological injury' as defined in Section

766.302(2), Florida Statutes." By Notice o f Hearing dated

May 14, 2004, a hearing was scheduled for August 31, 2004, to

resolve whether the claim was compensable.

At hearing, Jody Workman, Brian Workman, Sharon Richardson

(Alyssa's paternal grandmother), and Peggy Lane (Alyssa's

maternal grandmoth er), testified on Petitioners' behalf, and

Petitioners' Exhibits 1, 2, and 3A - 3K were received into

evidence. 2 Respondent called no witnesses, but offered

Respondent's Exhibits 1 - 7, which were received into evidence. 3

The transcript of the hearing was fil ed September 30, 2004,

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

proposed final orders. Both parties elected to file such

proposals (Respondent on October 11, 2004, and Petitioners on

October 18, 2004), and they have been duly considere d.

FINDINGS OF FACT

Preliminary findings

1. Petitioners, Jody Workman and Brian Workman, are the

natural parents and guardians of Alyssa Workman, a deceased

minor. Alyssa was born a live infant on May 30, 2002, at Seven

Rivers Community Hospital, a hos pital located in Crystal River,

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

2. The physician providing obstetrical services at Alyssa's

birth was Rose Sobel, M.D., who, at all times material hereto,

was a "participating physician" in the Florida B irth - 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 or 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 mentally and physically impaired."

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

Fla. Stat.

4. In this case, Petitioners are of the opinion that Alyssa

suffered a "birth - related neurological injury" because, in their

view o f the evidence, she suffered an injury to the brain caused

by oxygen deprivation occurring in the cause of labor, delivery,

or resuscitation, that ultimately produced severe seizure

activity and which, together with the medications required to

abate her se izure activity, led to her death. In contrast, NICA

is of the view that the evidence fails to support the conclusion

that Alyssa suffered a "birth - related neurological injury" since

there was no competent proof to support a conclusion that, more

likely th an not, Alyssa suffered an injury to the brain caused by

oxygen deprivation in the course of labor, delivery, or

resuscitation, or that her seizure activity was caused by such an

injury, as opposed to another etiology.

Alyssa's birth and postnatal course

5. At or about 6:00 a.m., May 30, 2002, Mrs. Workman, with

an estimated delivery date of May 21, 2002, and the fetus at

41 2/7 weeks' gestation, presented to Seven Rivers Community

Hospital, for augmentation of labor. At the time, Mrs. Workman's

membra nes were noted as intact, and vaginal examination revealed

the cervix at 2 centimeters dilation, effacement at 50 percent,

and the fetus at - 2 station. Uterine contractions were noted as

mild, occasional (approximately every 7 minutes), and external

fetal monitoring revealed a reassuring fetal heart rate, with a

baseline in the 130 - beat per minute range.

6. At about 6:45 a.m., Petocin augmentation was started,

and Mrs. Workman's labor slowly progressed until 4:37 p.m., when

complete cervical dilation wa s noted, and Alyssa was delivered at

5:03 p.m. Of note, in so far as the Labor Progress Chart

reflects, as well as the fetal monitor strips and Anesthesia

Report, external fetal monitoring continued until approximately

5:00 p.m., and continued to reveal a reassuring fetal heart rate.

Of further note, at 9 pounds 1 1/2 ounces (4,125 grams), Alyssa

was large for gestational age (LGA), and delivery was complicated

by a shoulder dystocia, which was relieved with suprapubic

pressure and McRoberts maneuver, and a nuchal cord x1, around the

neck, which was relieved as Alyssa's neck was delivered. 4

Alyssa's mouth and nose were suctioned while her head was in the

perineum.

7. At delivery, Alyssa was depressed (cyanotic, floppy,

with no respiratory effort), and was placed in a radiant warmer,

where her oropharynx was suctioned, and she was given blowby

oxygen; however, she failed to respond, and a code blue was

called for the resuscitation team. On arrival of the team,

Alyssa's oropharynx was again suctioned and she was given

bag/mask ventilation, with first gasp noted at 3 minutes and

sustained respiration noted at 4 minutes. ( See Labor and

Delivery Summary and New Born flow sheet.) Apgar scores were

recorded as 2 and 8, at one and five minutes, respectively. 5

8. Contrasted with the conclusion one would draw from the

Labor and Delivery Summary and New Born flow sheet, discussed

supra , Petitioners offered proof, through the testimony of

Mr. and Mrs. Workman, Mrs. Richardson and Mrs. Lane, that

Alyssa's first ga sp (at 3 minutes) followed the start of

resuscitative efforts by the team, and did not represent an

elapsed time from her birth. Petitioners also offered proof

through the same witnesses, that in their opinion the team did

not start resuscitative efforts until three or four minutes after

birth. According to Petitioners, this delay caused brain injury

to Alyssa, which resulted in the seizures or epileptic activity

discussed infra . 6

9. Here, it is unnecessary to resolve whether three or four

minutes elap sed following Alyssa's delivery before the team began

resuscitative efforts with bag/mask ventilation, as advocated by

Petitioners, or whether that activity began earlier, as one would

conclude from the delivery records, since the proof fails to

support th e conclusion that, more likely than not, any oxygen

deprivation Alyssa may have suffered caused brain injury. In so

concluding, it is noted that Alyssa's one - minute Apgar score

documented a reassuring heart rate; her five - minute Apgar score

documented sus tained respirations; her newborn assessment, at

5:30 p.m., was grossly normal; her newborn course was without

significant incident; and she was discharged with her mother on

May 31, 2002, at one day of age. It is also noted that, except

for two episodes o f startle reflex (at 3 months and 4 months of

age), which may evidence seizure activity, but is also common in

children, and a suspected delay in gross motor skill development,

noted at 9 months of age, Alyssa's early development was

appropriate; and an MR I of the brain done March 23, 2003,

discussed more fully infra , was normal. Finally, and most

importantly, the record is devoid of any expert medical testimony

or other competent proof that would support a conclusion that,

more likely than not, Alyssa suf fered a brain injury caused by

oxygen deprivation during labor, delivery or resuscitation. See

Wausau Insurance Company v. Tillman , 765 So. 2d 123 (Fla. 1st DCA

2000)("Because the medical conditions which the claimant alleged

had resulted from the workpla ce incident were not readily

observable, he was obliged to present expert medical evidence

establishing that causal connection."); Ackley v. General Parcel

Service , 646 So. 2d 242 (Fla. 1st DCA 1995)(determining cause of

psychiatric illness is essentially a medical question, requiring

expert medical evidence); 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.") For similar

reasons, the proof failed to support the conclusion that the

seizures Alyssa subsequently experienced were related to a brain

injury that occurred during labor, delivery, or resuscitation.

Alyssa's subsequent development

10. Except as heretofore noted, Alyssa's development was

appropriate until approximately 10:10 p.m., March 22, 2003, when,

at 9 months of age, she evidenced sudden onset of seizure

activity, preceded by vomiting, and was transported (by her

family) to Seven Ri vers Community Hospital, and then by

helicopter to Shands, where she was admitted at 1:55 a.m.,

March 23, 2003, and remained until April 16, 2003, when she was

discharged to her parents' care. Alyssa's hospital course was

documented in her Discharge Sum mary, as follows:

ADMISSION DIAGNOSIS: Status Epilepticus

(complex partial)[ 7 ]

DISCHARGE DIAGNOSIS: Same; Focal motor

seizures.

SERVICE: Pediatric Neurology.

* * *

PROCEDURES: Endotrachial Intubation,

Pentobarbital Infusion with continuous EEG

m onitoring, MRI of the brain, EEG, ICC line

placement, Chest x - rays.

* * *

HOSPITAL COURSE: Alyssa Workman is a 10 -

month - old, white female who was admitted to

Shands Teaching Hospital due to intractable

seizures manifested by unresponsiveness,

head/e ye deviation to the right and right

hemibody clonic activity. Hospital course

will be presented by pertinent problems and

subsequent hospital outcomes.

(1) Neurology. The patient was initially

admitted in status epilepticus. Alyssa had

failed IV loadi ng doses of Ativan,

Fosphenytoin, and Phenobarbital. Alyssa

failed continuous IV midazolam infusion. She

was placed in a pentobartital coma [to abort

status epilepticus] and subsequently

intubated. She was discontinued from the

continuous pentobarbital infusion after

electrographic seizure activity in the left

temporal/parietal region was suppressed for

greater than 24 hours with the initiation of

phenobarbital. Tegretol and Topamax were

added to the regimen to allow for

discontinuation of Phenobarbital . Due to

continued focal motor clonic activity of the

right upper extremity with preserved mental

status, Alyssa was transferred to the

Epilepsy Monitoring Unit for further

classification of her seizures. Continuous

EEG monitoring demonstrated brief, sem i -

rhythmic delta frequency discharge in the

left parietal region without rhythmic

spike/wave discharge. MRI of the brain was

performed on three occasions; the first two

studies were normal, the last demonstrated

evidence of diffuse atrophy.[ 8 ] She was

di scharged home with AED regimen of Tegretol,

Topamax, and clonazepam. The patient will

follow - up in Neurology Clinic.

(2) Infectious disease. The patient

underwent a rule out sepsis to determine if

an infectious disease agent could possibly be

causing t he etiology of her disorder. The

patient was afebrile throughout the remainder

of her hospitalization and received a sepsis

workup. She also received ten days of

ceftriaxone. Blood, CSF and urine cultures

were all insignificant. HSV and Bartonella

stud ies were obtained and were

negative. . . . Her last CBC was obtained on

03/28/2003 and was within normal limits.

(2) FEN. The patient was initially

maintained on NG feeds secondary to

intubation and poor p.o. intake. At

discharge, the patient w as tolerating a p.o.

regular diet without any complications and

requiring no maintenance IV fluids. Her last

BMP was obtained on 04/14/2003 and was within

normal limits.

(3) Respiratory. The patient was intubated

secondary to status epilepticus from

03 /24/2003 - 04/01/2003. Following extubation,

the patient has been stable on room air. At

discharge, the patient is stable on room air

and requiring no supplemental oxygen.

(4) Gastroenterology. The patient had

serial LFTs measured to determine secondary

effects of anti - epileptic medications. Her

last LFTs were within normal limits.

(5) Metabolic. A metabolic workup was

undertaken to determine if this could

possibly be causing the patient's myoclonic

jerks. The patient had an ammonia level of

24 that was within normal limits and a serum

amino acids that were within normal limits.

Urine organic acids are pending at discharge.

CSF lactate and glycine are pending at

discharge. A pyruvate level was obtained and

was less than 0.10 which is low. This wi ll

be followed up in Neurology Clinic.

CONDITION: Stable.

DISPOSITION: Home.

* * *

DISCHARGE MEDICATIONS: Tegretol 100 mg p.o.

t.i.d., Topamax 25 mg p.o. qam, 50 mg p.o.

q.p.m. and clonazepam 0.125 mg p.o. b.i.d.

FOLLOW - UP: Follow - up will occur in the

Pediatric Neurology Clinic with Dr. Suhrbier

. . . .

11. Following discharge from Shands, Alyssa was followed at

the Pediatric Neurology Clinic (by Doctors Paul Carney and

David Suhrbier) for intractable epilepsy manifested by right

upper extremi ty focal motor seizures, which spread to the trunk

and lower extremity. During this time, Alyssa followed a number

of medication trials with varying success, but the seizures

persisted and on July 24, 2003, she again presented to Seven

Rivers Community Ho spital in status epilipticus. There, despite

Ativan and Dilantin loading, the hospital was unable to break her

seizures, and she was transferred to Shands on July 25, 2003, for

further management.

12. Alyssa remained at Shands until August 8, 2003, when

she was discharged. Alyssa's hospital course was documented in

her Transfer Summary (from the pediatric intensive care unit to

the floor nursery) of August 8, 2003, shortly before her

discharge, as follows:

Alyssa is a 14 mo[nth female with] known

[histor y of] idiopathic[ 9 ] intractable[ 10 ]

epilepsy (now being called Lennox - Gastant

Syndrome) that initially presented to Seven

Rivers Hospital on 7/24/03 [with] focal

status epilepticus . . . SRH unable to break

[seizures with] Ativan and Dilantin load (had

pro longed course in their ER) before being

transferred to STH [Shands Teaching Hospital]

for further m[anagement] . . . . Once here

needed to be placed in pentobarbital coma to

achieve burst suppression and lysis

[abatement] of seizures . . . . Intubated

wh ile in PB coma . . . . [W]as extubated on

8/3/03 and is currently on RA [room air] and

stable. Had HD [hemodynamic] instability

initially [with] PB induction that required

Dopamine infusion, but was quickly weaned and

remained HDS (hemodynamically stable ) for the

rest of her course . . . . Alyssa's neuro

exam is not normal and is notable for almost

constant myoclonic m[ovement] of head and

extremities . . . . She is globally

hypotonic.

Principal diagnosis at discharge was generalized seizure

disorder , with a secondary diagnosis of developmental delay.

13. While hospitalized, Alyssa underwent a repeat MRI of

the brain (with and without contrast) which was "completely

normal." 11 The MRI was performed on August 5, 2003, and reported,

as follows:

FINDIN GS:

Clinical Indication: Intractable seizures.

Comparison: MRI of the brain 7/22/03

* * *

Findings:

The brain density is appropriate for a young

child. There is minimal retained

interstitial water in the cerebral white

matter. Brain formati on is normal.

Myelination is appropriate for age with

evidence of myelination in corticospinal

tracts, visual pathways and corpus callosum.

Ventricular size and sulcal pattern are

within normal limits. There is no evidence

of mass lesion, hydrocephalus, intra or extra

axial fluid collection to account for

symptoms, as questioned. There is no

evidence of neural migration disorder. The

paranasal sinuses and oto - mastoid air cells

are normally developed and aerated without

evidence of acute or chronic muco periosteal

thickening of intrasinus fluid.

Incidentally noted is extracranial soft

tissue swelling in the high left parietal

convexity region.

MR venography demonstrates all the major

dural sinuses to be patent. There is no

evidence of narrowing.

Com parison with the prior exam demonstrates

no apparent interval change.

IMPRESSION:

Negative MRI and MRV of the brain.

14. Alyssa was discharged on a regimen of oral steroids,

Topamax, and Klonopin, but nevertheless developed near continuous

focal clon ic activity of the left hemibody with convulsive

activity lasting for hours at a time. Purposeful use of the left

upper extremity and lower extremity significantly declined along

with her cognitive function. Keppra was added to the regimen

without signif icant improvement, and on September 8, 2003, Alyssa

was readmitted to Shands for the purpose of further diagnostic

investigation and treatment of her seizure disorder.

15. During the course of her hospitalization, Alyssa was

administered intravenous immun oglobulin (IVIG) as a potential

therapy for her intractable seizure activity, which significantly

reduced the frequency of her convulsive attacks. Further

diagnostic testing to identify an idiology for Alyssa's seizure

activity was unrevealing, and she wa s discharged on September 16,

2003.

16. Following discharge, Alyssa had a progressively

declining course, her seizures persisted, and on October 22,

2003, she presented at Shands' Pediatric Neurology Clinic for

evaluation by Dr. Suhrbier. Dr. Suhrbier s ummarized the results

of his evaluation, as follows:

On today's evaluation, Alyssa is somnolent

but arousable. She does not significantly

fixate on targets or track purposefully.

Pupils are mildly dilated and sluggishly

reactive. Optic discs are sharp.

Extraocular movements are conjugate but

demonstrate intermittent left beating

nystagmus . . . . Alyssa does not vocalize .

. . . Neurologic: Deep tendon reflexes are

3/4 in the upper and lower extremities with

absent Babinski sign. Motor examination:

Severe hypotonia with minimal spontaneous

movement.

* * *

Impression: 17 - month female with intractable

epilepsy, progressive developmental delay,

evidence of hepatocellular dysfunction, and

failure to thrive with oral motor

dysfunction. Currently, she is in a

stuporous state which I fear may represent

non - convulsive status epilepticus.

Plan: 1) We will obtain comprehensive

metabolic panel . . . today in clinic. 2)

Will transfer to EEG laboratory for STAT EEG.

3) We will admit to the Pediat ric IMC for

clinical observation. We will consult GI for

input regarding etiology of elevated liver

enzymes as well as assistance with

nutritional status.

17. Alyssa was admitted to Shands later that day, and

discharged on November 15, 2003. Alyssa's hospital course was

described in her Discharge Summary, as follows:

DIAGNOSIS: (1) Seizures. (2) Pancreatitis.

(3) Developmental delay. (4) Feeding

intolerance.

* * *

ADMISSION HISTORY AND PHYSICAL: Alyssa is an

18 - month - old Caucasian female with a history

of intractable epilepsy and developmental

delay who presented to the Neurology Clinic

on 10/22/03 with a six - day history of acting

sleepy, not smiling, not crying, and "looking

drugged" per father. The father notes that

the patient had a fe ver and vomiting six days

prior to admission and he felt that Alyssa

had the flu. However, she had never "perked

up" after the illness though the fever had

been gone for several days. The patient had

also displayed several of her clinical

seizures which involve left - sided jerks. The

father noticed approximately eight of these

seizures during the past six days, much fewer

than her usual. In the Neurology Clinic on

the date of admission, Alyssa was found to be

in nonconvulsive status epilepticus. She was

sent to the Emergency Room and given Ativan

times two and loaded with phosphenytoin 20

mg/kg. She was still having synchronized

spiking wave discharges, so was sent to the

PICU for further care including pentobarbital

coma. The father describes Alyssa's baseline

activity at home as being "flacid." She

cannot sit on her own, crawl or hold a

bottle, has approximately two words, will

open her eyes and fix, and has been NG fed

due to failure to thrive.

HOSPITAL COURSE: Alyssa was admitted to the

Pediatr ic ICU. She was placed in a

pentobarbital coma, intubated, and vital

signs were monitored closely . . . . For

further details of hospital admission, please

refer to the systems evaluation as follows:

(1) Respiratory: When pentobarb, was

stopped, Alyssa was weaned from the

ventilator without difficulty. She needed

frequent suctioning of her secretions. At

the time of discharge, Alyssa had no elicited

gag reflex. She had frequent episodes of

desaturation requiring suctioning and oxygen.

At the time of discharge, suctioning device

and home oxygen had been obtained for father.

(2) Cardiovascular: Alyssa briefly required

pressors while on the pentobarb in pentobarb

coma, however, her blood pressure remained

stable when off of pentobarb. She did have

oc casional episodes of poor peripheral

perfusion requiring normal saline boluses,

but otherwise was clinically stable. (3)

Neurological System: Alyssa was weaned from

the pentobarb coma on 10/30/03 due to blood

pressure instability. A brain MRI was

obtain ed which demonstrated generalized and

focal atrophy. The focal atrophy was noted

in the hippocampal regions. White matter

distribution showed a normal pattern of

arborization but a generalized decrease in

volume . . . . Ophthalmology consult was

obtaine d which showed normal eye anatomy.

Muscle biopsy was performed by Peds Surgery

which showed no evidence of mitochondrial

enzyme deficiency by histopathology; however,

enzyme studies were still pending at the time

of this summary. A whole blood sample was

sent to Athena Diagnostics for mitochondrial

DNA evaluation which was still pending at the

time of this discharge. A liver biopsy was

obtained by Peds Surgery which showed

histologic evidence of TPN changes but no

specific abnormalities. Again, further

studies are pending at the time of this

summary . . . . At the time of discharge,

Alyssa was requiring approximately one dose

of Ativan every 24 to 48 hours. There was no

evidence of subclinical seizure activity at

the time of her discharge. She was sen t home

on Celontin, Mebaral, and pyridoxine as well

as p.r.n. rectal Diastat. (4) GI System:

Alyssa was kept on hyperalimentation for the

majority of her hospitalization. On 11/07/03

an NJ tube was placed and feeds as Tolerex (a

low - fat formula), were b egun at trickle

rates. Alyssa tolerated this trickle formula

very well and her lipases came down to a low

of 200 at the time of her discharge.

However, as feeds were increased toward

maintenance fluid goals, Alyssa developed

abdominal distention and had several episodes

of vomiting associated with some respiratory

distress. Abdominal distention usually

resolved with holding the feeds. Alyssa's

father requested that an NG tube be placed,

however, staff felt that this was against

Alyssa's best interest si nce she had no gag

reflex and would . . . be unable to protect

her airway. A NJ tube was replaced and feeds

were restarted with Boost in the hopes that

she would tolerate this formula more readily.

However, Alyssa again developed abdominal

distention. O n the day of discharge feeds

were held and abdominal distention resolved.

T he father became very agitated with the

feeding regimen and felt that he could feed

Alyssa at home with more success. He was

advised about the risk of dehydration and

aspiration. However, he still chose after

lengthy discussions with Dr. Pineda,

Pediatric GI, and Pediatric Neurology to sign

Alyssa out AMA [against medical advice]. He

was told absolute minimum fluid goals for

each day and was also reassured that he could

bring Aly ssa back at any time if he had

problems at home . . . .

18. The brain MRI noted in the Discharge Summary was

performed October 26, 2003, and reported, as follows:

FINDINGS:

History: Patient with intractable epilepsy

presenting with increasingly poor control of

seizures.

* * *

Compared to a prior study of 8/5/2003 patient

now appears to have a fairly large collection

of fluid posteriorly in the deeper layers of

the scalp. No obvious blood products are

seen. There is no enhancement. Perhaps thi s

is a area of prior scalp injury related

seizures which was previously a deep scalp

hematoma which now has turned into a seroma.

There is no communication of this with

intracranial structures and there is no

evidence of skull injury.

The study as on pri or exam shows a generally

atrophic appearance of the brain which can be

caused in part by seizure medications. No

focal abnormalities are present. There is a

general diminished volume of white matter

although there does appear to be considerable

myelinat ion present. The white matter which

is present appears relatively normal with

there being some extension into the

subcortical regions and arcuate bundles so

that while the white matter volume may be

diminished in its overall pattern development

is not abn ormal and this may just reflect

generalized brain atrophy.

The temporal pole poles of both lateral

ventricles are dilated. The hippocampal

formations appear atrophic bilaterally more

on the right side. The parahippocampal gyri

also appears small and whi te matter volume in

this region is diminished. It is uncertain

whether this is a primary or secondary effect

of the patient's seizure disorder. The

fornices are small and the mamillary bodies

are difficult to identify.

Contrast was given and there is no evidence

of abnormality that would explain the

patient's symptoms. There is no abnormal

meningeal or brain enhancement.

Diffusion weighted images of the brain show

possible areas of minimal predominantly

cortical and subcortical areas of restricted

diff usion in the posterior temporal parietal

regions. This is a nonspecific finding and

quite subtle it could be related to

generalized prolonged seizure activity. No

altered signal intensity on T2 - weighted

images is seen in these areas.

IMPRESSION:

Really no change from prior imaging studies

except for a collection of fluid in the deep

layers of the scalp probably due to a

resolving scalp hematoma presumably related

to scalp trauma due to seizures. No evidence

of acute blood products within this

collectio n.

Other findings described above. Their

relationship to the patient's seizure

disorder is uncertain. No definite

abnormalities seen on diffusion weighted

images . . . but subtle changes reflecting

seizure activity could be present.

19. On November 20, 2003, Alyssa suffered cardiorespiratory

arrest. EMS was contacted and she was transported to Seven

Rivers Community Hospital, during which CPR was initiated (total

CPR time greater than 2 hours) including intubation. At the

hospital, Alyssa was found to have pulseless ventricular

fibrillation, with arterial blood gas pH of 7.068. Thereafter,

Alyssa was transported to Shands by helicopter, where she died at

10:37 p.m., November 20, 2003. A postmortem examination at

Shands included the following obse rvations:

NEUROPATHOLOGIC DIAGNOSES:

1. Diffuse organizing and organized hypoxic -

ischemic encephalopathy (see note).

2. Diffuse cerebral white matter loss (see

note).

3. Widespread myofiber atrophy/hypotrophy in

skeletal muscle.

NEUROPATHOLOGIC NOTE :

This 18 month old female, with a history of

nuchal cord and asphyxia at birth (Apgars

reported 2 and 8), suffered subsequent

developmental delay which apparently left her

flaccid and unable to sit, crawl, or hold her

bottle. She was reportedly admitted to

hospital on 10/22/03 in non - convulsive

status - epilepticus, for which she was

intubated and placed in Phenobarbital coma.

Following extubation on 11/2, she apparently

continued to be in some respiratory distress,

having difficulties with aspiration and

requiring frequent suctioning. She was

reportedly discharged against medical advice

on 11/15. Apparently during the evening of

11/19, the parents reported that she had

become somnolent and was experiencing mild

respiratory distress with abdominal

disten tion, then, early in the morning of

11/20, she had to be emergently transported,

with CPR, to hospital, and was then

transferred to Shands - UF via helicopter,

where she was reported to have had

spontaneous respirations but was hypothermic.

During the eveni ng of 11/20, her condition

continued to deteriorate and, after

discussing the infant's poor prognosis with

family, maximal support was discontinued and

she died. At autopsy, the infant's brain

exhibited histologic evidence of marked and

diffuse hypoxic - is chemic encephalopathy, with

features suggesting between 10 and 20 days

duration. In addition, there were changes in

hippocampus, which suggested the possibility

of at least one superimposed more recent

(less than a few days old) hypoxic - ischemic

event. A ll of these changes had also been

associated with gross evidence of an

underlying diffuse white matter loss,

presumably causing the moderate, apparently

" ex vacuo " (in the absence of demonstrable

CSF obstruction) ventricular enlargement. It

should be note d that diffuse white matter

injury of this type could occur in the

setting of perinatal hypoxia. Although it

appears that this infant was weak and flaccid

prior to her admission on 10/22, the

widespread myofiber atrophy/hypotrophy in

skeletal muscle seen post - mortem appeared

similar to that in a biopsy (during life) and

was probably not due to denervation (i.e.,

"lower motor neuron"). The myofiber atrophy

may have represented disuse - like effects due

to loss of upper motor neuron function as a

result of th e older (and possibly more

recent) diffuse hypoxic - ischemic brain

injury.

The cause and timing of Alyssa's

neurologic impairments

20. To address the cause and timing of Alyssa's neurologic

impairments, the parties offered a report of Postmortem

Examina tion (Petitioners' Exhibit 1); a report by Dr. Suhrbier,

dated November 18, 2003, and a discharge summary, dated

November 15, 2003 (Petitioners' Exhibit 2); photographs of Alyssa

(Petitioners' Exhibit 3A - 3K); medical records related to Alyssa's

birth and s ubsequent development (Respondent's Exhibits 1 - 5); an

affidavit, curriculum vitae, and two reports by Michael Duchowny,

M.D. (Respondent's Exhibit 6); and an affidavit and report by

Donald Willis, M.D. (Respondent's Exhibit 7). Petitioners also

presented the testimony of Mr. Workman, Mrs. Workman,

Mrs. Richardson (Alyssa's paternal grandmother), and Mrs. Lane

(Alyssa's maternal grandmother), as to the events surrounding

Alyssa's birth and, in the case of Mr. Workman, his perception of

a casual relationship between the events surrounding Alyssa's

birth and her neurologic impairment. Notably, the medical

records do not reveal an etiology for Alyssa's encephalopathy and

epilepsy; no competent medical testimony was offered to support a

conclusion that, more li kely than not, Alyssa suffered an injury

to the brain caused by oxygen deprivation during labor, delivery

or resuscitation that resulted in neurologic impairment 12 ; and the

lay testimony of Mr. Workman, and any of his witnesses, regarding

a causal relation ship between the events surrounding Alyssa's

birth and her neurologic impairment is legally insufficient to

support a finding regarding the cause or timing of Alyssa's

neurologic impairment. See Wausau Insurance Company v. Tillman

supra ; Ackley v. General Parcel Service , supra ; Vero Beach Care

Center v. Ricks , supra . Consequently, while the proof suggests

that Alyssa may have suffered oxygen deprivation during labor,

delivery, or resuscitation, it fails to support the conclusion

that, more likely than not , any oxygen deprivation she may have

suffered caused brain injury, or resulted in neurologic

impairment.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

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

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

22. 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.

23. 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 c laim . . . 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.

24. 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.

25. In dis charging 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, to the satisfac tion 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

r ebuttable presumption shall arise that the

injury is a birth - related neurological injury

as defined in s. 766.303(2).

(b) Whether obstetrical services were

delivered by a participating physician in the

course of labor, delivery, or resuscitation

in the immediate post - delivery period in a

hospital; or by a certified nurse midwife in

a teaching hospital supervised by a

participating physician in the course of

labor, delivery, or resuscitation in the

immediate post - delivery period in a hospital.

§ 766.3 09(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.

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

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

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case of a

multiple gestation, a live infant weighing at

least 2,000 grams at birth caused by oxygen

deprivation or mechanical injury occurring in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospital, which renders the

infant perm anently 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.

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

P etitioners to demonstrate that Alyssa 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

f rom statute, is on the party asserting the affirmative issue

before an administrative tribunal.").

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

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

. . . caused by oxygen deprivat ion or mechanical injury occurring

in the course of labor, delivery, or resuscitation . . . which

render[ed] . . . [her] permanently and substantially mentally and

physically impaired." Consequently, the record developed in this

case failed to demonstrate that Alyssa 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 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 Birth - Related Neurol ogical Injury Compensation

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

29. Where, as here, the administrative law judge determines

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

neurological injury . . . he [is required to] enter an order [to

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

immediately to the parties by registered or certified mail."

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

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

Stat.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by

Jody Workman and Brian Workman, on behalf of and as parents and

natural guardians of Alyssa Workman, a deceased m inor, is

dismissed with prejudice.

DONE AND ORDERED this 29th day of November, 2004, in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Adminis trative 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 29th day of N ovember, 2004.

ENDNOTES

1/ All citations are to Florida Statutes (2001) unless otherwise

indicated.

2/ Given Respondent's objection, on the basis of hearsay, to

Petitioners' Exhibit 1, a report of Postmortem Examination by the

Department of Patholog y, Shands at the University of Florida, the

admissibility of the exhibit was taken under advisement. Upon

reflection, the exhibit is received into evidence.

3/ Copies of Respondent's Exhibits 1 - 5 (medical records related

to Alyssa's birth and subsequent development) were provided to

Petitioners' post - hearing and, although they were accorded an

opportunity to do so, they raised no objection to there receipt

into evidence. Consequently, Respondent's Exhibits 1 - 5 were

received into evidence. Respondent's Exhibits 6 and 7 are

hearsay, and not otherwise admissible over objection in a civil

action. Consequently, they were received into evidence subject

to the limitations imposed by Section 120.57(1)(c), Florida

Statutes (2003)("Hearsay evidence may be used f or the purpose of

supplementing or explaining other evidence, but it shall not be

sufficient in itself to support a finding unless it would be

admissible over objection in civil actions.")

4/ At hearing, Mr. Workman also noted Mrs. Workman's history of

l ow lying placenta, and voiced concern of a placenta previa;

however, the medical records reveal any low lying placenta she

may have had resolved itself, as evidenced by a report of

ultrasound examination on February 20, 2002, and the Obstetric

Admitting Re cord of May 30, 2002, and there was no evidence of a

placenta previa encountered during labor or delivery.

(Respondent's Exhibit 2).

5/ The Apgar scores assigned to Alyssa are a numerical

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

poi nts gained on assessment of heart rate, respiratory, effort,

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

being assigned a score ranging from the lowest score of 0 through

a maximum score of 2. As noted, at one minute, Alyssa's Apgar

sc ore totaled 2, with heart rate being graded at 2, and

respiratory effort, muscle tone, reflex irritability and color

being graded at 0. At five minutes, Alyssa's Apgar score totaled

8, with heart rate, respiratory effort, and reflex irritability

being gra ded at 2 each, and muscle tone and color being graded at

1 each.

6/ Petitioners' witnesses, given the circumstances of birth,

expressed somewhat different opinions regarding the time that

elapsed from Alyssa's birth until resuscitative efforts were

start ed by the team, with the most frequent expressed estimate

being the 3 or 4 minutes noted by Mr. Workman. (Transcript, page

15) That estimate was also the figure used by Petitioners in

paragraph 2 of their Proposed Final Order, where they state:

. . . Wi tnesses testified that Alyssa layed

on the warmer several minutes before a code

blue was called, and then immediately the

resuscitation team came in and began to bag

and mask Alyssa . . . .

Paragraph 2 of Petitioners' Proposed Final Order continues, and

c oncludes as follows:

It then took her three minutes for first gasp

and four to sustain respiration. This means

Alyssa was not getting any oxygen for three

to four minutes.

To the extent Petitioners are suggesting that Alyssa did not get

any oxygen for t hree to four minutes following the onset of

resuscitative efforts, their opinion is rejected. At best, the

testimony reflects a delay in the onset of spontaneous

respiration and not a lack of oxygenation.

7/ "Status epilepticus" is defined by Dorland' s Illustrated

Medical Dictionary, Twenty - eighth Edition (1994), hereinafter

referred to as Dorland's Dictionary, as

1. a continuous series of generalized tonic -

clonic seizures without return to

consciousness, a life - threatening emergency.

Called also co nvulsive s. epilepticus .

2. any prolonged series of similar seizures

without return to full consciousness between

them; the two major types are convulsive s.

epilepticus , which is life - threatening, and

nonconvulsive s. epilepticus , which is

serious but n ot usually life - threatening.

8/ The first MRI of the brain was performed on March 23, 2003,

and reported, as follows:

FINDINGS: Clinical Indication: Seizure.

This study was performed to evaluate for

intracranial abnormality.

* * *

Findings:

T he brain density is appropriate for a young

child. There is minimal retained

interstitial water in the cerebral white

matter. Brain formation is normal.

Myelination is appropriate for age with

evidence of myelination in corticospinal

tracts, visual path ways and corpus callosum.

There is no evidence for malformation of

cortical development or foreign tissue

lesion. Ventricular size and sulcal pattern

are within normal limits. There is no

evidence of mass lesion, hydrocephalus, intra

or extra axial flui d collection to account

for symptoms, as questioned. The paranasal

sinuses and oto mastoid air cells are

normally developed and aerated without

evidence of acute or chronic mucoperiosteal

thickening of intrasinus fluid.

IMPRESSION: Negative enhanced MRI of brain

for seizure.

The second MRI of the brain, also read as normal, was performed

on March 27, 2003, and reported as follows:

Examination shows midline structures are

normally localized. Ventricular system and

sulci are normal. No abnormal areas o f

increased or decreased signal are identified.

There is normal brain morphology. There is

normal degree of myelination for age. There

is no evidence of diffusion abnormality.

Hippocampal regions are normal in appearance.

Examination of the calvarium vault

demonstrates soft tissue swelling and

probable blood products in the extracalvarial

soft tissues. This is localized to the

occipital region in the midline. This is a

new finding in comparison to prior study. Of

note there is no evidence of subjace nt brain

injury.

IMPRESSION:

1. Normal MR examination of the brain for

age. This remains stable in comparison with

study of 4 days prior.

2. A focal area of extracalvarial soft

tissue swelling/injury occipital region.

This is a new finding.

The t hird MRI of the brain, read as abnormal, was performed on

April 8, 2003, and reported as follows:

FINDINGS:

Clinical Indication: 10 month - old female

with right - sided focal seizures. This study

was performed to evaluate for a structural

abnormality.

Co mparison: March 27, 2003

* * *

Findings:

The prior MR had demonstrated a normal

ventricle size and sulcal size. The current

exam demonstrate dilatation of both

consistent with an atrophic process.

However, whether this . . . apparent atrophy

is . . . related to the state of hydration,

effective current medications vs. chronic

progressive atrophy is not clear.

IMPRESSION:

The current study was obtained to evaluate

for a focal abnormality in the left temporal

parietal region. This area had focal EEG

findings. The current MR demonstrates no

focal abnormality within this area. There

are global apparent atrophic changes as

described above.

9/ "Idiopathic" is defined as "of the nature of an idiopathy;

self - originated; of unknown causation," and "idiopathy" is

defined as "a morbid state of spontaneous origin; and neither

sympathetic nor traumatic." Dorland's Dictionary.

10/ "Intractable" is defined as "resistant to cure, relief, or

control." Dorland's Dictionary.

11/ Respondent's Exhibit 1 (Staff Notes, August 5, 2003).

12/ As noted in Endnote 3, the affidavits of Doctors Duchowny

and Willis are not competent proof to support a conclusion

regarding causation.

COPIES FURNISHED:

(By certified mail)

Jody Workman

Brian Workman

11240 North Northwood Drive, Lot 14

Inglis, Florida 34449

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308

Donald H. Whittemore, Esquire

Phelps D unbar, LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

Rose Sobel, M.D.

6151 North Suncoast Boulevard, Suite 1 - C

Crystal River, Florida 34428

Seven Rivers Community Hospital

6201 North Suncoast Boulevard

Crystal River, Florida 34428

Char lene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

to judicial review pursuant to Sections 120.68 and 766.311,

Florida Statutes. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such proceedings are commenced by

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

t he Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the appropriate District Court

of Appeal. See Section 766.311, Florida Statutes, and Florida

Birth - Related Neurological Injury Compensation Association v .

Carreras , 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.