04-000799N Arnold Irchai And Irina Irchai, On Behalf Of And As Parents And Natural Guardians Of Daniel Irchai, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, October 15, 2004.

Summary: The proof failed to demonstrate that the infant suffered a birth-related injury. The claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARNOLD IRCHAI AND IRINA IRCHAI, )

on behalf of and as parents and )

natural guardians of DANIEL )

IRCHAI, a minor, )

)

Petitioners, )

)

vs. ) Case No. 04 - 0799N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent. )

)

FINAL ORDER

With the parties' agreement, this case was heard on an

agreed record.

STATEMENT OF THE ISSUE

At issue is whether Daniel Irchai, a mi nor, qualifies for

coverage under the Florida Birth - Related Neurological Injury

Compensation Plan.

PRELIMINARY STATEMENT

On March 10, 2004, Arnold Irchai and Irina Irchai, on

behalf of and as parents and natural guardians of Daniel Irchai

(Daniel), a mino r, filed a petition (claim) with the Division of

Administrative Hearings (DOAH) for benefits under the Florida

Birth - Related Neurological Injury Compensation Plan (Plan).

DOAH served the Florida Birth - Related Neurological Injury

Compensation Association (N ICA) with a copy of the claim on

March 11, 2004. NICA reviewed the claim and on June 16, 2004,

gave notice that it was of the view that the infant did not

suffer a "birth - related neurological injury" as defined by

Section 766.302(2), Florida Statutes (200 2), 1 and requested that

a hearing be scheduled to address the issue of compensability.

By Notice of Hearing dated July 9, 2004, a hearing was

scheduled for August 25, 2004, in Gainesville, Florida, to

address the issue of compensability; however, on August 12,

2004, the parties filed a Joint Motion to Submit Stipulated

Factual Record and Written Agreement in Lieu of Contested

Hearing. The parties' motion was approved by Order of

August 18, 2004, and the hearing scheduled for August 25, 2004,

was cancelled.

On September 14, 2004, the parties filed their Pre - Hearing

Stipulation and a Notice of Filing Stipulated Record, and on

September 22, 2004, an Amended Notice of Filing Stipulated

Record. 2 Thereafter, Petitioners and Respondent filed proposed

final orders , which have been duly considered.

FINDINGS OF FACT

Stipulated facts

1. Petitioners, Arnold Irchai and Irina Irchai, are the

natural parents and guardians of Daniel Irchai, a minor. Daniel

was born a live infant on February 14, 2003, at North Florida

R egional Medical Center, a licensed hospital located in

Gainesville, Alachua County, Florida, and his birth weight

exceeded 2,500 grams.

2. The physician providing obstetrical services at

Daniel's birth was Richard Brazzel, M.D., who, at all times

material hereto, was a "participating physician" in the Florida

Birth - Related Neurological Injury Compensation Plan, as defined

by Section 766.302(7), Florida Statutes.

Coverage under the Plan

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

Plan for infan ts who suffer a "birth - related neurological

injury," defined as an "injury to the brain . . . caused by

oxygen deprivation or mechanical injury occurring in the course

of labor, delivery, or 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 view that Daniel

suffered a "birth - related neurologica l injury," as defined by

the Plan. In contrast, NICA is of the view that Daniel did not

suffer a "birth - related neurological injury" since the proof

failed to support the conclusion that, more likely than not,

Daniel suffered a brain injury "caused by oxy gen deprivation or

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

resuscitation in the immediate postdelivery period" in the

hospital and, regardless of the etiology of Daniel's brain

injury, he was not rendered "permanently and substanti ally

mentally and physically impaired."

Daniel's birth and postnatal course

5. At approximately 10:00 a.m., February 14, 2003,

Mrs. Irchai was admitted to North Florida Regional Medical

Center for an elective repeat cesarean section. According to

the ho spital records, pre op was complete at 11:00 a.m.,

Mrs. Irchai was moved to the operating room at 11:45 a.m.,

anesthesia was started at 11:50 a.m., surgery was started at

12:14 p.m., and Daniel was delivered, with vacuum assist, at

12:26 p.m. Of note, the records reveal maternal hypotension

after the spinal anesthesia, with some fetal bradycardia before

delivery, and at least three attempts with the vacuum extractor

before Daniel was delivered.

6. Following delivery, Daniel was slow to respond, and was

"v igorus[ly]" stimulated and administered blow - by oxygen for 15

minutes. Apgar scores were recorded as 6 and 8, at one and five

minutes, respectively, 3 and cord pH was recorded as 6.89.

Physical examination by Dr. Burchfield, the neonatalogist

present at delivery, noted breath sounds with fine crackles, as

well as intermittent grunting.

7. At 12:41 p.m., Daniel was transported to the special

care nursery where, at 12:45 p.m., he was assessed for

abnormalities. Admission assessment was grossly normal, except

for apparent respiratory problems, with evidence of slight nasal

flaring, grunting, mild subcostal retractions, and diminished

breath sounds. A cephalhematoma was also noted. 4

8. Daniel initially responded well to blow - by oxygen, but

grunting wors ened and a stat consultation by neonatology was

requested. On arrival at 1:50 p.m., Dr. Burchfield's physical

examination revealed retractions, grunting, rales bilaterally,

good skin perfusion, and open and flat fontanelle.

Dr. Burchfield's impression wa s probable transitory tachypnea of

the newborn (TTN), and his treatment plan included hood oxygen,

IV fluids, blood cultures, and antibiotics (Ampicillin and

Gentamicin).

9. The nurses' progress notes reveal that between

3:00 p.m., and 3:40 p.m., Daniel continued under the oxygen

hood, but was very fussy, and on one occasion was noted to

secrete approximately 5 cc of blood from his mouth. The

progress notes further reveal that between 3:40 p.m., and

3:50 p.m., when Dr. Burchfield was paged, Daniel was p laced on

NCPAP, and blood secretions from his mouth continued.

Dr. Burchfield described the events in his progress notes, as

follows:

I was paged at 3:50 p.m. to say that this

baby had vomited bright red blood [BRB] -

baby's respiratory distress worsened & NCPAP

started. OG placed & copious BRB came up.

Baby had an estimate of 10 - 15 cc of blood.

Upon arrival [at approximately 4:20 p.m.]

baby was on NCPAP . . . . I intubated

consider further deficiency." At 11:45 p.m., Dr. Burchfield

made the following progress note:

Baby is critically ill [with] evidence of

bleeding diathesis — bleeding from GI track,

lung, scalp. Emergency head US showed no

bleed earlier this evening, but fontanelle

is more tense now, so will re peat in a.m.

Fibrinogen[ 7 ] was very low - 26. T his

improved to 90 [with] FFP. Coags improved

somewhat [with] FFP also . . . .

Baby is having frequent desats and some

posturing - its unclear if this is occluded

ET and he's fighting, or if he is having

seiz ures. We have given a dose of Ativan.

This severe hypofibrinogenemia may be due to

1) Liver disease 2) C ongenital deficiency of

Factor I 3) DIC [disseminated intravascular

coagulation].[ 8 ] We have sent LFT's to rule

out #1). Platelet count is not extrem ely

low, as one would see [with] DIC. Now that

FFP is given, we can't accurately obtain

other factor levels to study DIC (Factors V,

VIII).

We will give some cryoprecipitate to bring

fibrinogen higher.

11. On February 15, 2003, David Suhrbier, D.O., a

pediatric neurologist, examined Daniel. Dr. Suhrbier summarized

Daniel's history and his impressions, as follows:

CHIEF COMPLAINT: Seizure activity and

abnormal CT of the brain.

HISTORY OF PRESENT ILLNESS: Baby boy Irchai

is a one - day - old Caucasian ma le who was

referred from North Florida Regional Medical

Center due to respiratory distress requiring

intubation and the development of

hematemesis[ 9 ] and hemoptysis.[ 10 ]

Upon arrival the infant demonstrated

evidence of disseminated hemorrhage disorder

of the newborn manifested by a subgaleal

OFC 37 cm. Pulmonary: Breath sounds equal

bilaterally. Lung fields clear to

auscultation . . . . .

Neurologic: Mental status: Infant

somnolent (however the infant has received

two doses of Ativan and loading dose of

Phenobarbital). Cranial nerves : Pupils

equal, round, and reactive to light. Infant

attempted to squeeze eyes shut in response

to light stimulus. Deep tendon reflexes 2

in the upper and lower extremities. Motor:

Minimal spontaneous movement of the

extremities upon stimulation. Wi th cotton

tip applicator the infant demonstrated the

ability to flex arms against gravity.

Withdrew lower extremities.

IMPRESSION: Neonatal seizures.

Cerebellar hematoma,

subarachnoid hemorrhage, and

intraparenc hymal hemorrhage.

Obstructive Hydrocephalus due

to cerebellar hematoma.

RECOMMENDATIONS: Follow OFC measurements on

a daily basis.

Carefully monitor infant for symptoms of

Cushing's triad.

Repeat CT of the brain in 24 hours.

Ma intain Phenobarbital on minimal

maintenance dosing 3 mg/kg/day.

Electroencephalogram on Monday.

Should Phenobarbital fail, consider

adjunctive Fosphenytoin.

12. During the course of his admission at Shands, Daniel

underwent multiple radiological studies, with the last study, a

cerebral CT, performed February 25, 2003, approximately 10 days

prior to his discharge. That study, performed to evaluate for

interval changes from the previous study of February 17, 2003,

was read as follows:

The previous study demonstrated hemorrhage

in the fourth ventricle, paramesencephalic

cisterns, and right cerebellum with

subarachnoid blood in the right sylvian

region. A large cephalohematoma over the

right posterior scalp at the high convexity

was also present.

The curr ent exam demonstrates expected

evolutionary changes of blood products. The

region of hemorrhage shows decreased density

from prior in the paramesencephalic cisterns

and the right cerebellum. The subarachnoid

blood at the right sylvian fissure is also

dec reased in density. The scalp hematoma

also is decreased in density. There are no

new regions of hemorrhage. The ventricles

remain midline. They are enlarged but

unchanged from prior. Again noted is

transependymal fluid migration that is

similar when c ompared to prior study. No

new regions of hemorrhage are seen.

IMPRESSION: Expected evolution of blood

products in the previous regions of

intracranial hemorrhage and scalp hematoma.

Persistent hydrocephalus that is unchanged

from the prior exam. No n ew regions of

hemorrhage are seen.

13. On March 6, 2003, Daniel's condition was stable, and

he was discharged to his parents' care. Primary diagnosis on

discharge was consumptive coagulopathy (DIC), and secondary

diagnoses and complications were noted a s

ventriculomegaly/hydrocephalus, seizures, cerebellar hemorrhage,

intracranial hemorrhage, and extracranial hemorrhage. Follow - up

appointments were scheduled or recommended with Pediatric

Neurosurgery, Pediatric Neurology, and Daniel's pediatrician

(John Hellrung, M.D.).

Daniel's subsequent development

14. Following discharge, Daniel did follow - up with

Pediatric Neurosurgery, with his last visit on April 9, 2003.

At that time a CT scan was performed, which showed decreased

ventricular size and resolu tion of the intracranial hemorrhage.

Pediatric Neurology recommended monitoring of head

circumference, and Daniel was placed on an as needed status for

return to the clinic.

15. Following discharge, Daniel also followed - up with

Pediatric Neurology, with his first visit on May 15, 2003. At

that time, Daniel was examined by Paul Carney, M.D., a pediatric

neurologist, who reported the results of his evaluation to

Daniel's pediatrician (Dr. Hellrung), by letter of the same

date, as follows:

Daniel Irchai was seen in the Pediatric

Neurology Clinic this morning accompanied by

his parents. As you know, he is a three -

month - old who had an intracranial hemorrhage

at birth, as well as a large right parietal

cephalohematoma. He was last seen as an

inpatient during his stay in the NICU.

Pediatric Neurology was initially consulted

as he experienced some abnormal posturing

and possible seizure activity during his

first week of life. He was loaded with

Phenobarbital and has been maintained on

Phenobarbital routine dos e since that time

. . . . Since his discharge, the Irchais

have not noticed any seizure activity, no

episodes of loss of tone, abnormal

posturing, eye deviation or tonic/clonic

activity. They are very eager to see if

Phenobarbital can be weaned off as t hey are

concerned how this is impacting his

development. It is for this reason that

they present in clinic today.

* * *

Developmental History: Now at three months,

Daniel is noted to be awake and alert. He

has had no difficulty tolerating the

Phen obarbital therapy. He smiles, he is not

a fuzzy [sic] baby, no irritability noted.

He does respond to mom. What mom does

report is that he, if looking straight on

him, Daniel will smile, coo and interact.

However, if she is away from him and she

calls to him no matter what method she uses,

he will not turn his head to find her. He

has never done this. She does report that

he is trying to hold his head up, has not

rolled over completely yet, he does

________[ 12 ] with kicking and moving all

extremities equally. When placed on his

stomach, he will make attempts to lift his

head up but does not get it completely up,

will remain with his cheeks to the side,

does appear to bring his knees up to try to

move and will attempt to push up lifting the

chest but d oes not completely make it. His

appetite is good, he is breast - fed. He does

not have any problems with choking, spitting

up, drooling or controlling his secretions.

* * *

Review of Systems: Negative for nausea,

vomiting, diarrhea, no fever, no sei zures

noted, no change in tone, no altered level

of consciousness, staring or deviations of

the eyes and generalized tonic/clonic

activity. Appetite is good. He is breast -

fed only, has been growing well. No recent

colds, no past infections.

Physical E xam: On exam today, . . . height

was 61.5 cm, weight was 6.11 kg, head

circumference 39.5 cm. Today he was plotted

out compared to birth at two months and at

three months and he is following a nice

curve right below the 50th percentile for

age . . . . N eurologically, Daniel was

awake and alert. He had a social smile,

would seem to track but would not turn his

head to voice. He was examined initially

supine. Anterior fontanel open, flat, soft.

Face was symmetric. His tongue was midline,

palate was sy mmetric. He had a good suck.

Pupils were equal, round and reactive to

light with accommodation. A red reflex was

noted on funduscopic exam. He did have

moderate head lag when raised to the seated

position. He had strong finger grasps

bilaterally. Sup ine, he was moving all

extremities vigorously. Reflexes were 2 on

bilateral upper extremities, 3 bilateral

lower extremities but he did have a plantar

grasp when toes were downgoing. He had a

positive Moro. He did have decreased

central tone, increase d ventral suspension

but otherwise had a nonfocal exam. No

clonus was noted, no tremor was noted.

* * *

Plan: Today we have spent a great deal of

time with the Irchais going over all the

scans that have been done, his head plot and

his neurological exam of today. We feel

optimistic that Daniel will do well overall.

We have reviewed the EEG that was completed

as an inpatient with them. In light of the

fact that he has not had any other further

clinical events and has continued to make

some strides despite having some of the

motor ____________ that we are noting today,

we feel it is reasonable to begin a slow

Phenobarbital taper. It may be that the

hypotonic features we are seen in his exam

may be related to Phenobarbital therapy. We

have given th em instructions to wean by half

a cc every week until he is off, this will

take approximately seven weeks. If after

his Phenobarbital has been tapered to off,

Daniel continues to show some hypotonicity,

it would be reasonable to start occupational

and phy sical therapy at that time. We would

like him to have a followup head MRI to be

completed in the next three to four months

to give them a better idea as to if any

scarring or atrophy remains from his initial

bleed . . . .

16. As requested, Daniel had a follow - up head MRI on

September 8, 2003. The results of that study were reported by

the attending radiologist, as follows:

Encephalomalacic changes with almost

complete destruction of the upper vermis is

present. Old blood products are present as

well at this site which are also seen on

diffusion weighted imaging as dark signal in

the poster fossa. There is no evidence of

vascular malformations. Otherwise, the

brain density is appropriate for a young

child. Brain formation is normal.

Myelination is ap propriate for age with

evidence of myelination in corticospinal

tracts, visual pathways and corpus callosum.

Ventricular size and sulcal pattern are

within normal limits. No evidence of acute

hemorrhage.

IMPRESSION:

Encephalomalacia changes with old bl ood

products in the posterior fossa as above.

No evidence of vascular malformation.

17. Daniel's next evaluation by Dr. Carney, and his most

recent, was on September 18, 2003. Dr. Carney reported the

results of that evaluation, as follows:

I had the pl easure of seeing Daniel today in

the Pediatric Neurology on followup. As you

know, he is a 7 - month - old boy who has a

history of neonatal seizures secondary to a

cerebellar hematoma with intracranial bleed

and cephalohematoma[.] [W]hen I last saw

him on 0 5/18/03 [sic] . . . [h]e was doing

quite well. He had no recurrent seizures at

that time therefore, the Phenobarbital was

tapered and discontinued. At today's visit,

his parents report that he is doing quite

well. He has good head control if sitting

wit h minimal support. His tracking

laterally and vertically to mom's voice,

dad's voice as well as to face and object

recognition. He is cooing. They are

concerned that he has had some head bobbing

which on further questioning sounds like

mild titubation. He has had no

developmental regression. No seizures since

I last saw him.

He underwent a followup brain MRI which

demonstrated a superior vermis

encephalomalacic abnormality secondary to

his neonatal intracranial hemorrhage.

Ventricular sizes were not dilated nor were

the basilar cisterns, and the third and

fourth ventricles appeared open and patent.

There were no recurrent bleeds, nor was

there brain atrophy or cerebellar

hemispheric atrophy.

* * *

Physical Examination: Weight 8.19 kg, head

c ircumference 43 cm (50th percentile),

height 73 cm, . . . . He was awake, alert,

tracked laterally to moving object. He had

good neck tone. When placed on his abdomen,

he lifted his head and held it in a erect

position for more than two minutes. He

wou ld sit with minimal support. He had no

axial slippage. Resistance to passive

manipulation was normal in both upper and

lower extremities. Deep tendon reflexes

were 2 at the biceps, triceps,

brachioradialis, knees and ankles. Optic

discs were pink and flat. I saw no retinal

abnormalities. No drooling. Tongue at the

midline, palate rose symmetrically, cooed

throughout the examination. General

physical examination no adenopathy or

thyromegaly. Chest clear to auscultation.

Heart sounds were regular r ate and rhythm

without murmurs. Abdomen soft without signs

of hepatosplenomegaly, abdominal masses, no

skin rashes were noted. Genitalia - normal

male.

Assessment and Plan: A 7 - month - old boy with

neonatal cerebellar hemorrhage as outlined

above and pos t hemorrhage encephalomalacic

defect. Developmentally he has made good

progress. For the most part, he is on track

with the exception of some head titubation.

His parents are very much interested in

pursuing physical therapy and therefore, I

am recommen ding this at this time. He will

have a followup brain MRI in six months and

will see me in clinic thereafter . . . .

18. Following discharge from Shands, Daniel received

routine care from his pediatrician, Dr. Hellrung, with his first

visit on March 10, 2003, at 3 weeks of age, and his last visit

on May 12, 2004, at 15 months of age. Dr. Hellrung's records do

not reveal any significant findings or observations that are

pertinent to this case, but do document, as noted by Petitioners

in their proposed fi nal order, "tremor of head," and that as of

May 12, 2004, Daniel showed evidence of a delay in gross motor

development, since he did not yet "Walk[] alone, stoop[],

recover[]," and a delay in language development, since he was

"not [yet] talking."

19. On June 2, 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

reported the results of his neurologic examination, as well as

his review of Dani el's medical records, as follows:

I evaluated Daniel Irchai on June 02, 2004.

The evaluation was performed at Miami

Children's Hospital. Both parents were in

attendance and supplied historical

information.

HISTORY ACCORDING TO MR. AND MRS. IRCHAI:

Dani el is a 15 - month - old boy who suffers

from developmental delay. The parents

indicated that Daniel is not yet walking or

talking and has very poor balance. He has

just started to stand while holding on but

seems "wobbly." He is unable to walk

independentl y. They note no present changes

in his muscle tone, although his mother felt

that he may have been excessively loose

several months ago. Parents also indicated

that Daniel's head may shake in a side - to -

side manner when he is in the sitting

position. Thi s is particularly evident when

he is reaching. They believe that these

movements have diminished somewhat over the

last several months.

* * *

Daniel is sociable and plays well with his

older brother. He does not drool except

while teething. There has been no

behavioral regression. Daniel has recently

been evaluated for physical therapy at the

"Kids on the Move" Program. He has not yet

been scheduled for a routine physical

therapy exercise regime.

Daniel's health is otherwise good. His

vision i s normal, although the left eye will

occasionally "move up under the eyelid" on

directed right gaze.[ 13 ] Daniel's hearing is

good and his appetite has been stable. He

is on no intercurrent medications but did

take phenobarbital for the first five - months

of life.

* * *

Daniel rolled over at four - months and sat at

eight - months. He began standing with

support at thirteen - months but cannot walk

independently or talk in words. He is not

yet toilet trained. Daniel is fully

immunized and has no known allergies. He

has never undergone surgery or been

hospitalized after the neonatal period.

* * *

PHYSICAL EXAMINATION reveals an alert, well -

developed and well - nourished 15 - month - old

boy. Daniel weighs 23 pounds. The hair is

blond and of normal tex ture. The eyes are

blue. There is a nevus flammeus below the

occipital hairline. There are no other

cutaneous markings and no dysmorphic

features. The head circumference measures

46.1 centimeters, which approximates the

20th percentile for age. The fo ntanels are

closed. There are no cranial or facial

anomalies or asymmetries. The neck is

supple without masses, thyromegaly or

adenopathy. The cardiovascular examination

reveals normal heart sounds and the lung

fields are clear. The abdomen is soft and

non - tender. There is no palpable

organomegaly. Peripheral pulses are 2 and

symmetric.

NEUROLOGICAL EXAMINATION reveals an

initially quiet infant sitting in his

father's lap. However, Daniel is quite

fearful and defensive and began crying

inconsolabl y when approached. He did not

speak in words at anytime during the

evaluation but at least initially followed

simple commands. Cranial nerve examination

reveals full visual fields to direct

confrontation testing and normal ocular

fundi, which were seen only briefly. The

pupils are 3 mm and react briskly to direct

and consensually presented light. No facial

asymmetries. The tongue and palate move

well. The uvula is midline. Motor

examination reveals mild generalized

hypotonia for both axial and appen dicular

musculature. There were no tremors or

evidence of adventitious movements.

Daniel's head control was stable. Daniel is

able to stand with minimal support but is

unable to take steps independently. He did

not fall. The deep tendon reflexes are

s lightly exaggerated at 2 - 3 bilaterally.

Plantar responses are downgoing. There are

no pathological reflexes. Sensory

examination is intact to withdrawal of all

extremities to stimulation. Neurovascular

examination reveals no cervical, cranial, or

ocul ar bruits and no temperature or pulse

asymmetries.

In SUMMARY, Daniel's neurologic examination

reveals very slight delays in motor and

language development with excessive

behavioral irritability. He demonstrates no

findings to suggest structural brain da mage

and his seizures are in complete remission.

A review of Daniel's medical records further

indicates that Daniel's postnatal

circumstances did not result from

intrapartum oxygen deprivation or mechanical

injury . . . .

The cause and timing of Daniel's brain injury,

as well as the significance of Daniel's impairment

20. Given Dr. Duchowny's opinion that "Daniel's neurologic

evaluation reveals very slight delays in motor and language

development," and the absence of any contrary opinion or facts

of rec ord that would compel a contrary conclusion, it must be

resolved that Daniel suffers neither a substantial mental

impairment nor a substantial physical impairment, much less a

permanent and substantial mental and physical impairment as

required for coverag e under the Plan. See Thomas v. Salvation

Army , 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating

medical evidence, a judge of compensation claims may not reject

uncontroverted medical testimony without a reasonable

explanation.") Moreover, given Dr . Duchowny's opinion "that

Daniel's postnatal circumstances did not result from intrapartum

oxygen deprivation or mechanical injury," and the absence of any

contrary opinion or facts of record that would compel a contrary

conclusion, it must be resolved th at the proof fails to support

the conclusion that Daniel's deficits resulted from a brain

injury that occurred during labor, delivery, or resuscitation,

as opposed to some other etiology ( i.e. : the bleeding he

experienced postdelivery). See Thomas v. Sal vation Army , supra ;

Wausau Insurance Company v. Tillman , 765 So. 2d 123, 124 (Fla.

1st DCA 2000)("Because the medical conditions which the claimant

alleged had resulted from the workplace incident were not

readily observable, he was obliged to present expe rt medical

evidence establishing that causal connection."); Nagy v. Florida

Birth - Related Neurological Injury Compensation Association , 813

So. 2d 155, 160 (Fla. 4th DCA 2002)("[T]he oxygen deprivation or

mechanical injury to the brain must take place duri ng labor or

delivery, or immediately afterward . . . . The fact that a

brain injury from oxygen deprivation could be traced back to a

mechanical injury outside the brain resulting in subgaleal

hemorrhaging does not satisfy the requirement that the oxygen

deprivation or mechanical injury to the brain occur during labor

or delivery.") Consequently, the proof failed to support the

conclusion that, more likely than not, Daniel suffered a "birth -

related neurological injury," as defined by the Plan.

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 perso nal

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

Bi rth - 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 iss ue 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 t hat 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 administra tive 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 discharging this responsibility, the administrative

law judge must make the following determination based upon the

avail able evidence:

(a) Whether the injury claimed 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

de privation or mechanical injury and that

the infant was thereby rendered permanently

and substantially mentally and physically

impaired, a rebuttable presumption shall

arise that the injury is a birth - related

neurological injury as defined in s.

766.303(2).

(b) Whether obstetrical services were

delivered by a participating physician in

the course of labor, delivery, or

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.

§ 766.309(1), Fla. Stat. An award may be sustained only if the

administrative law judge concludes that the "infant has

sust ained 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 me an:

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams at

birth caused by oxygen deprivation or

mechanical injury occurring in the course of

labor, delivery, or resuscitation in the

immediate postdelivery period in a hospital ,

which renders the infant permanently and

substantially mentally and physically

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 th e issue, the burden rested on

Petitioners 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, 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, Daniel suffered an "injury to the brain

. . . caused by oxygen deprivation or mechanical injury

occurring in the course of labor, delivery, or resuscitation" or

that the injury he did suffer "render[ed] . . . [him]

permanently and substantially mentally and physically impaired."

Consequently, t he record developed in this case failed to

demonstrate that Daniel 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 F lorida 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 substant ial 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 sub jects clearly embraced

within its terms."), approved , Florida Birth - Related

Neurological Injury Compensation Association v. McKaughan , 668

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

29. Where, as here, the administrative law judge

determines that ". . . the injury alle ged 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 c onstitutes 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

Arnold Irchai and Irina Irchai, on behalf of and as parents and

natural guardians of Daniel Irchai, a minor, is dismissed with

prejudice.

DONE AND ORDERED this 15th 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 Hearings

this 15th day of October, 2004.

ENDNOTES

1/ All citations are to Florida Statutes (2002) unless otherwise

indicated.

2/ The documents attached to the initial Notice of Filing

Stipulated Record wer e not separated or labeled by exhibit

number. That oversight was corrected with the filing of the

Amended Notice of Filing Stipulated Record, when the documents

attached to that notice were separated and labeled by exhibit

number. Here, the documents att ached to the amended notice and

marked Exhibits 1 - 8, have been used as the parties' E xhibits 1 -

8.

3/ The Apgar scores assigned to Daniel are a numerical

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

sum points gained on assessment of heart rate, respiration,

muscle tone, reflex irritation, and skin color, with each

category being assigned a score of 0 through a maximum score of

2. As noted, at one minute, Daniel's Apgar score totaled 6,

with heart rate, respiration and reflex irritat ion being graded

at 2 each, and muscle tone and skin color being graded at 0

each. At five minutes, Daniel's Apgar score totaled 8, with

heart rate, respiration and reflex irritation being graded at 2

each, and muscles tone and skin color being graded at 1 each.

4/ A "cephalhematoma" is defined by Dorland's Illustrated

Medical Dictionary, Twenty - sixth Edition (1985), hereafter

referred to as Dorland's Dictionary, as "a subperiosteal

hemorrhage limited to the surface of one cranial bone, a usually

benig n condition seen frequently in the newborn as a result of

bone trauma."

5/ "Hemorrhagic disease of the newborn" is "a self - limited

hemorrhagic disorder of the first days of life, caused by a

deficiency of the vitamin K - dependent blood coagulation facto rs

II, VII, IX, and X." See "hemorrhagic d. of newborn" under

"disease," Dorland's Dictionary.

6/ "Coagulopathy" is "any disorder of blood coagulation."

Dorland's Dictionary.

7/ "Fibrinogen" is coagulation Factor I. See "coagulation

factors" under " factors," Dorland's Dictionary.

8/ "Disseminated intravascular coagulation," commonly

abbreviated "DIC," is "a disorder characterized by reduction in

the elements involved in blood coagulation due to their

utilization in widespread blood clotting within the vessels; the

activation of the clotting mechanism may arise from any of a

number of disorders. In the late stages, it is marked by

profuse hemorrhaging. Called also consumption coagulopathy and

defibrination syndrome." See "diffuse intravascular c." under

"coagulation," Dorland's Dictionary.

9/ "Hematemesis" is "the vomiting of blood." Dorland's

Dictionary

10/ "Hemoptysis" is "the expectoration of blood or of blood -

stained sputum." Dorland's Dictionary.

11/ "Thrombocytopenia," is a "decr ease in the number of blood

platelets." Dorland's Dictionary.

12/ Blank spaces are as they appear in the original document.

13/ On June 8, 2004, Daniel was seen by Lawrence Levine, M.D.,

Assistant Professor, Department of Ophtalmology, University of

F lorida, College of Medicine, for what his parents described as

an intermittent in - crossing and upward crossing of the left eye.

Dr. Levine's Impression and Plan were, as follows:

IMPRESSION: (1) Intermittent esotropia and

hypertropia (elevation) of the left eye.

(2) Exam demonstrates overactive inferior

oblique muscle, left eye. (3) History of DIC

(disseminated intravascular coagulation) as

an infant. Mother reports intracranial

bleeding secondary to DIC.

PLAN: (1) At this time, the patient

demonstra tes the ability to fixate and

follow well with both eyes. No intervention

required, however, will follow. (2) This

intermittent strabismus may be secondary to

an congenital strabismus, however, it may

also represent a manifestation of an early

neurologic insult (variable strabismus). At

this time, it does not appear to pose a

threat to his visual development and we will

monitor it. I have asked the patient to

return in three months. (3) Return in three

months, sooner any worsening of the eye

misalignment .

Notably, while Dr. Levine observed that Daniel's condition "may"

be related to his history of "early neurologic insult," he did

not express an ultimate opinion regarding its etiology.

COPIES FURNISHED:

(By certified mail)

Kenney Shipley, Executive Di rector

Florida Birth Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308

William E. Hahn, Esquire

William E. Hahn, P.A.

310 South Fielding Avenue

Tampa, Florida 33606 - 2225

M. Mark Bajal ia, Esquire

Volpe, Bajalia, Wickes, Rogerson & Galloway

1301 Riverplace Boulevard, Suite 1700

Jacksonville, Florida 32207

Richard Brazzel, M.D.

6440 West Newberry Road

Gainesville, Florida 32605

North Florida Regional Medical Center

6500 Newberry Road

Gainesville, Florida 32605

Ms. Charlene Willoughby

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

to judicial review pursuant to Sections 120.68 and 766.311,

Florida Statutes. Review proceedings are governed by 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 Divisi on 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. Carrera s , 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.