04-001880N Jon Petersen And Kimberly Petersen, Husband And Wife And As Parents And Natural Guardians Of Jennifer Petersen, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Tuesday, March 28, 2006.

Summary: Final Order resolving that the claim was compensable and that the hospital failed to give notice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JON PETERSEN AND KIMBERLY )

PETERSEN, husband and wife and )

as parents and natural )

guardians of JENNIFER PETERSEN, )

a minor, )

)

Petitioner s , )

)

vs. ) Case No. 04 - 1880N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

JANA M. BURES FORSTHOEFEL, M.D. )

and TALLAHASSEE MEMORIAL )

REGIONAL MEDICAL CENTER, INC., )

)

Intervenor s . )

)

FI NAL ORDER ON COMPENSABILITY A ND NOTICE

Pursuant to notice, the Division of Administrative

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

a hearing in the above - styled case on July 15, 2005, in

Tallahassee, Florida .

APPEARANCES

For Pe titioner s : William R. Waters, Jr., Esquire

Pearson & Waters, P.A.

703 North Monroe Street

Tallahassee, Florida 32303

For Respondent: M. Mark Bajalia, Esquire

Brennan, Manna & Diamond

76 South Laura Street, Suite 1700

Jacksonville, Florida 32202

For Intervenor Jana M. Bures Forsthoefel, M.D.:

Jeannette M. Andrews, Esquire

Andrews, Crabtree, Knox & Andrews, LLP

Post Office Box 12800

Tallahassee, Florida 32317 - 2800

For Intervenor Tallahassee Memorial Regional Medical

Center, Inc.:

Jesse F. Suber, Esquire

Henry, Buchanan, Hudson,

Suber & Carter, P.A.

Post Office Drawer 1049

Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

1. Whether Jennifer Peterson, a minor, qualifies for

coverage under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan).

2. Whether the hospital 's failure to give notice, as

contemplated by Section 766.316, Florida Statutes, was excused

because the patient had an "e mergency medical condition," as

defined by Section 395.002(9)(b), Florida Statutes, or the

giving of notice was not practicable.

PRELIMINARY STATEMENT

On May 27, 2004, Jon Petersen and Kimberly Petersen, as

parents and natural guardians of Jennifer Peters en (Jennifer), a

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

Administrative Hearings (DOAH) for compensation under the Plan.

DOAH served the Florida Birth - Related Neurological Injury

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

Ju ne 2, 2004, and on November 19, 2004, following a number of

extensions of time within which to do so, NICA filed its

response to the petition, wherein it gave notice that it was of

the view that Jennifer did not suffer a "birth - related

neurological injury, " as defined by Section 766.302(2), Florida

Statutes, and requested that a hearing be scheduled to resolve

whether the claim was compensable.

The hearing on compensability was initially scheduled for

April 4, 2005, but at the parties' request was continued and a

hearing was ultimately held on July 15, 2005. By then, Jana M.

Bures Forsthoefel, M.D., and Tallahassee Memorial Regional

Medical Center, Inc. (Tallahassee Memorial Hospital) had been

accorded leave to intervene, and Petitioners had filed an

amende d petition which averred Jennifer's birth weight did not

meet the statutory minimum for coverage under the Plan (2,500

grams for a single gestation) , and that the hospital failed to

comply with the notice provisions of the Plan. Consequently,

the hearing scheduled for July 15, 2005, was noticed to resolve

whether the claim was compen sable, and whether the hospital's

failure to give notice was excused because the patient had an

"emergency medical condition," as defined by Section

395.002(9)(b), Florida Stat utes, or the giving of notice was not

practicable.

At hearing, Joint Exhibits 1 and 2 were received into

evidence, and post - hearing Petitioners' Exhibit 1 was received

into evidence. (Transcript, page 5, and Order, dated August 2,

2005.) Testifying on be half of Petitioners were

Kimberly Petersen and Harlan Giles, M.D. , and testifying on

behalf of Tallahassee Memorial Hospital were Stacie Forbes,

R.N., Jeff Ahsinger, R.N., and Jana M. Bures Forsthoefel, M.D.

No other witnesses were called, and no further exhibits were

offered.

The transcript of the hearing was filed August 9, 2005, and

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

argument or proposed orders. Intervenor Jana M. Bures

Forsthoefel, M.D., elected to file written argument, and the

other parties elected to file proposed orders. The parties'

submittals have been duly considered.

FINDINGS OF FACT

Preliminary findings

1. Jon Petersen and Ki mberly Petersen are the natural

parents of Jennifer Petersen, a minor. Jennifer was born a live

infant on December 20, 2001, at Tallahassee Memorial Hospital, a

hospital located in Tallahassee, Florida.

2. The physician providing obstetrical services at

Jen nifer's birth was Jana M. Bures Forsthoefel, M.D., who at all

times material heret o, was a "participating physician" in the

Florida Birth - Related Neurological Injury Compensation Plan, as

defined by Section 766.302(7), Florida Statutes.

Coverage under the Plan

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

Plan for infants who suffer a "birth - related neurological

injury," defined as an

injury to the brain . . . 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 caus ed 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 . . . .

4. In this case, it is undisputed that Jennifer suffered

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 the

hospital, which rend ered her permanently and substantially

mentally and physically impaired. What is disputed is whether

Jennifer weighed at least 2,500 grams at birth. As to that

issue, Petitioners were of the view that "[b]ased on the

evidence presented . . . it cannot be established what

Jennifer Petersen's 'actual' birth weight was at the time of her

birth" or, alternatively, that it was most likely less than the

2,500 grams recorded on admission to the ne wborn intensive care

unit (NICU) , after she had been intubated. ( Petitioners'

proposed order, page 4.) In contrast, the other parties were of

the view that the weight recorded in the NICU, which they chose

to characterize as the "official birth weight," should be

accepted as Jennifer's birth weight, without considerati on of

any weight attributable to the endotracheal tube that was

inserted after delivery. ( See Respondent's and Intervenors'

post - hearing submittals.)

5. Notably, when it has been shown "that the infant has

sustained a brain . . . injury caused by oxygen deprivation or

mechanical injury and that the infant was thereby rendered

permanently and substantially mentally and physically impaired,

a rebuttable presumption . . . [arises] that the injury is a

birth - related neurological injury, as defined [by the Pla n]."

§ 766.309(1)(a), Fla. Stat. Under the circumstances of this

case, the presumption is that Jennifer's birth weight was 2,500

grams or greater. Consequently, to be resolved is whether there

was credible evidence produced to support a contrary conclus ion

and, if so, whether absent the aid of the presumption the record

demonstrates, more likely than not, that Jennifer's birth weight

met or exceeded 2,500 grams. 1

The proof regarding Jennifer's birth weight

6. Pertinent to Jennifer's birth weight , the proof

demonstrates that when delivered at 12:42 a.m., December 20,

2001, at 33 4/7 weeks gestation, Jennifer was severely

depressed, and was immediately intubated and given

cardiopulmonary resuscitation. At 3 minutes of life, a heart

rate greater than 100 beats per minute was achieved, and at 5

minutes of life the endotracheal tube was secured and she was

transferred to the NICU, where she was admitted at 12:50 a.m.

7. Following admission to the NICU, Jennifer was weighed

for the first, and insofar as the record reveals, the only time. 2

That process was credibly described at hearing by Stacie Forbes,

R.N., one of two nurses on duty in the newborn intensive care

unit at the time, as follows:

Q. Okay. Ma'am, what I'm going to . . .

show you is . . . [a do cument that's]

identified as Bates stamp 0309 [the Newborn

ICU A dmission A ssessment form 3 ] and get you

to tell the Judge, if you can, what that

document is.

A. Okay. This document is our standard

admission document for the newborn intensive

care unit. When a baby comes into our unit,

this is our initial assessment, the very

first thing we do.

* * *

Q. All right. Now, . . . did you write the

entries on that form?

A. Yes.

Q. And that's your signature down below?

A. Yes.

Q. Were you present when this b a b y

Jennifer Peterson was weighed?

A. Yes.

* * *

Q. How much did that baby weigh?

A. 2500 grams, or 2.5 kilograms.

Q. What did you . . . write down how much

it weighed?

A. I wrote 2.500.

Q. All right. Now, I would like for you ,

if you would, to just briefly describe to us

how you go about weighing a baby to get that

weight.

A. Okay. The baby comes in. As soon as

the baby is stable, the first thing we do is

we put the baby on the radiant warmer, we

zero the warmer out, and t hen we lay the

baby on the warmer and the grams comes up on

the scale, on the bed scale.

Q. All right. So when you put the baby on

the bed scale, the weight in grams appears

on a digital display?

A. Yes.

Q. So it's digital, 2500?

A. Yes.

Q. You don't have to do any kind of

conversion at all?

A. No.

Q. Okay. Is it always the grams weight

that comes up first in every case?

A. Yes.

Q. All right. Now, if you look on that

form that you are looking at, it's got a

weight in pounds [5 pounds 8. 1 ounces] next

to it?

A. Yes.

Q. Would you explain to the Court how you

go about getting weight in pounds?

A. As soon as the grams comes up, there is

a button on the scale that you push that

converts it to pounds.

Q. Okay. And so, do you, as the n urse,

have to do any sort of mathematical

calculation or computation?

A. No.

Q. Who does that -- or how is that done?

A. It's done by the radiant warmer.

Q. Which is where the scale is?

A. Yes, the scale.

* * *

Q. . . . Now, the 2500 grams that you

recorded on the newborn admission form?

A. Yes.

Q. Is that the official birth weight of the

baby?

A. Yes.

Q. . . . [H]ow is that used later on, in

terms of the care of the baby?

A. We do all of our medications, all of our

IV fluids, bl ood transfusions, anything, any

medical care, we use grams or kilograms, so,

for the baby. We don't use the pounds.

Q. All right. So, in other words, then you

take that weight and when you have to figure

out how much medicine you are going to give

th em, it's based many times on the weight of

the baby?

A. Yes.

Q. And the weight that you use for that is

2500 grams?

A. Y es, that's correct.

* * *

Q. Was [the baby] intubated when . . .

[she] was admitted to the newborn ICU?

A. Yes.

* * *

Q. Okay. Was the baby intubated when it

was weighed?

A. Yes.

Q. Do you know what the weight of a

standard 3.5 intubation tube is?

A. No.

Q. Did you deduct anything for the

intubation tube?

A. No. (Transcript, pages 15 - 1 9 , 22 and

23.)

8. T here is no reason to question Nurse Forbes' testimony

that Jennifer's initial weight, as displayed by the bed scale,

was 2,500 grams. However, since the scale calculated an

equivalent in pounds and ounces as 5 pounds 8.1 ounces, when the

correct figure would have been (5 pounds 8.185 ounces), closer

to 5 pounds 8.2 ounces, and since only a weight of approximately

2,497.60 grams would produce an equivalent weight of 5 pounds

8.1 ounces, there is cause to question the reliability of the

bed scale. Consequ ently, since no reasonable explanation for

the discrepanc y was offered at hearing, and since a plausible

explanation i s malfunction or improper calibration, the weight

of 2,500 grams noted for Jennifer on her initial examination

cannot be accepted as relia ble. Similarly, since the weight of

2,500 grams is not reliable, a reduction of that weight by the

weight of the endotracheal tube, if shown , 4 would likewise not

produce an accurate reflection of Jennifer's birth weight. 5

Consequently, there being no oth er evidence of her birth weight,

there was no credible evidence produced to rebut the presumption

that Jennifer weighed at least 2,500 grams at birth.

The notice provisions of the Plan

9. With regard to notice, Petitioners have stipulated that

"Dr. Forst hoefel provided notice to the Petitioners pursuant to

Section 766.316, Florida Statutes," but contend the hospital ,

although it had a reasonable opportunity to do so, did not.

(Amended Pre - Hearing Stipulation.) In contrast, while

acknowledging that notic e was never given, the hospital and NICA

contend the giving of notice was not required because, when

Mrs. Petersen presented to the hospital on December 18, 2001,

she had an "emergency medical condition as defined in s.

395.002(9)(b)," Florida Statutes. P etitioners dispute such

contention. Therefore , it must be resolve d whether the giving

of notice was not required. 6

10. At all times material hereto, Section 766.316, Florida

Statutes (2001), prescribed the notice requirements of the Plan,

as follows:

E ach hospital with a participating physician

on its staff and each participating

physician, other than residents, assistant

residents, and interns deemed to be

participating physicians under s.

766.314(4)(c), under the Florida Birth -

Related Neurological Inj ury Compensation

Plan shall provide notice to the obstetrical

patients as to the limited no - fault

alternative for birth - related neurological

injuries. Such notice shall be provided on

forms furnished by the association and shall

include a clear and concis e explanation of a

patient's rights and limitations under the

plan. The hospital or the participating

physician may elect to have the patient sign

a form acknowledging receipt of the notice

form. Signature of the patient

acknowledging receipt of the noti ce form

raises a rebuttable presumption that the

notice requirements of this section have

been met. Notice need not be given to a

patient when the patient has an emergency

medical condition as defined in

s. 395.002(9)(b) or when notice is not

practicabl e.

11. Section 395.002(9)(b), Florida Statutes, defines

"emergency medical condition" to mean:

(b) With respect to a pregnant woman:

1. That there is inadequate time to effect

safe transfer to another hospital prior to

delivery ;

2. That a transfer may pose a threat to the

health and safety of the patient or fetus;

or

3. That there is evidence of the onset and

persistence of uterine contractions or

rupture of the membranes.

The Plan does not define "practicable." However, "practicable"

is a comm only understood word that, as defined by Webster's

dictionary, means "capable of being done, effected, or

performed; feasible." Webster's New Twentieth Century

Dictionary, Second Edition (1979). See Seagrave v. State , 802

So. 2d 281, 286 (Fla. 2001)("Whe n necessary, the plain and

ordinary meaning of words [in a statute] can be ascertained by

reference to a dictionary.") Here, the hospital does not

suggest that, and the record would not support a conclusion

that, the giving of notice was not practicable. Consequently,

the sole issue is whether Mrs. Petersen had an "emergency

medical condition."

Findings related to the hospital and notice

12. At 2:33 a.m., December 18, 2001, Mrs. Petersen, with

an estimated delivery date of February 3, 2002, and the fet us at

33 2/7 weeks ' gestation, presented to Tallahassee Memorial

Hospital, where she was initially assessed in Labor and Delivery

Triage. Of note, history revealed Mrs. Petersen had been seen

in Triage the previous afternoon, on referral from her

obstetri cian's office for monitoring because of perceived

cervical change. At that time, she complained of feeling

menstrual - like cramping, but no cervical change was noted

(cervical dilation was recorded at 1.5 centimeters dilation,

effacement at 80 percent, and the fetus at - 3 station), and

nitrazine test was negative. Mrs. Petersen was treated with

stat doses of terbutaline (to forestall preterm labor),

stabilized, and discharged. During the night, Mrs. Petersen

began to feel i ncreasing discomfort, and return ed to the

hospital (at 2:33 a.m., December 18, 2001) where assessment

revealed the cervix at 1.5 centimeters, effacement at 90

percent, and the fetus at station B (Ballott). Mild uterine

activity was noted to have begun at 2:00 a.m., but regular or

persis tent uterine contract ion s were not noted. 7 Nevertheless,

given evidence of early (preterm) cervical change and risk for

preterm delivery, Mrs. Petersen was admitted for preterm labor

pathway and tocolysis (inhibilation of uterine contractions).

(Joint Exhibit 2, Tabs 3, 4, 23, and 27.)

13. A t 3:30 a.m., Mrs. Petersen was transferred from

Triage to Labor and Delivery, where she was received at

3:45 a.m. External fetal monitor [EFM] was applied, which

revealed a reassuring fetal heart rate and no uterin e

contractions. Moreover, no uterine contractions were charted

until 7:30 a.m., and those that were subsequently charted were

irregular until well after 10:00 a.m., December 19, 2001, when

Mrs. Petersen's membranes spontaneously ruptured, and she was

comm itted to deliver. At that time, the decision was made to

discontinue tycolysis, and to augment labor with Petocin, in

anticipation of vaginal delivery. (Joint Exhibit 2, Tabs 7 and

23, Transcript, pages 50, 51, 61, and 62.)

14. Petocin augmentation star ted at 1:40 p.m., and

Mrs. Petersen's labor slowly progressed. Vaginal examination at

6:45 p.m., revealed the cervix at 2 centimeters dilation,

effacement at 90 percent, and the fetus at station O, and

vaginal examination at 10:11 p.m., revealed the cervi x at 3.5

centimeters dilation, effacement at 95 percent, and the fetus at

station O. (Joint Exhibit 2, Tab 23.)

15. At 11:55 p.m., Mrs. Petersen requested an epidural for

pain management. Dr. Forsthoefel described the events that

subsequently unfolded i n her Operative Report, as follows:

[Patient] [r]equesting pain management in

the form of an epidural. Had received

Stadol X 2 with stable fetal heart tones,

occasional variable decels with an

inadequate pattern of labor with frequent

contractions, but no t of the intensity

required for adequate progress. During the

period of the epidural placement, was laid

down immediately after the epidural

placement and at that point fetal heart

tones could not be identified. Immediately

I was called and came to the r oom from Room

#1 where there had also been fetal distress.

At the time of entry in Room #4 for

evaluation, epidural was in place. Blood

pressure had dropped immediately after

dosing of the epidural and was felt to be

secondary to epidural dosing. Fetal heart

tones were felt to be in the 70s and 80s,

again felt to be secondary to epidural.

However, exam was immediately done. Patient

was noted to be 4 - 5 cm, complete vertex at

- 1 and 0 station.

A forebag was once again palpated and

ruptured. At this p oint, bloody fluid was

noted from the rupturing of the forebag.

IUPC that was present was removed for the

possibility of reinsertion for re -

evaluation. Scalp electrode was applied and

at that time, fetal heart tones were again

felt to be between 75 and 8 0, initially

thought perhaps secondary to positioning and

low blood pressure. Call to Anesthesia for

ephedrine had been made and was in the

process of being given. Patient was tilted

from right and left rapidly with no response

to fetal heart tones. Mat ernal heart tones

were in the 100s and this was felt to be

possible fetal. However, a moment later, it

was noted the maternal heart rate was at 80

and what appeared to be the fetal heart was

at the exact same rate. Concern that there

was misjudgment of f etal tracing

interpretation that heart rate had been lost

on the fetus and that actual maternal heart

rate was being picked up was considered and

although etiology of the event could not be

determined at that immediate moment, call

for immediate cesarean s ection was made.

Patient was rushed to the operating room and

patient had general anesthesia and patient

was prepped and draped for an abdominal

procedure. Incision was made with the knife

and extended through the fascia with the

deep knife. The fascia was incised with the

knife and extended in lateral fashion with

both blunt and sharp dissection. Fascia was

dissected from the underlying rectus muscles

using sharp dissection. Rectus muscles were

dissected laterally using blunt dissection.

Peritoneum w as entered with blunt

dissection.

Immediately on entry, there was noted to be

bloody fluid in the abdominal cavity.

Examination of the lower uterine segment,

however, quickly revealed no evidence of a

defect of the lower uterine segment.

Therefore an in cision was made rapidly in

the lower uterine segment and a transverse

incision was made extended with bandage

scissors. The infant was delivered [at

12:42 a.m., December 20, 2005] from a vertex

presentation. Cord was clamped in two

places and cut. Infan t was suctioned and

was limp. Handed to the Neonatal Team in

sterile fashion for resuscitation.

* * *

FINAL ASSESSMENT: Intrauterine pregnancy at

33 weeks with spontaneous rupture of

membranes. In the face of preterm labor,

magnesium sulfate disc ontinued. Patient

positive for beta Strep, now contracting.

Plan for delivery was made with Pitocin

augmentation, intrauterine pressure catheter

was placed. Fetal distress requiring

immediate cesarean section with evidence of

ruptured uterus at the fund us in a bivalve

fashion compatible with previous classical

incision.

16. To resolve whether Mrs. Petersen had an "emer gency

medical condition," the parties presented Joint Exhibit 2, which

included the medical records related to Mrs. Petersen's

admission of December 18, 2001, addressed supra . The hospital

also presented the testimony of Dr. Forsthoefel, Mrs. Petersen's

obstetrician, and Petitioners presented the testimony of

Dr. Giles, a physician board - certified in obstetrics and

gynecology, as well as maternal - fetal medicine.

17. On the issue of "emergency medical condition," it was

Dr. Forsthoefel's opinion that on presentation to the hospital,

Mrs. Petersen was having persistent uterine contractions, and

that those contractions persisted despite effo rts to stop them.

It was further Dr. Forsthoefel's opinion that Mrs. Petersen was

not medically stable when she presented to the hospital, or

thereafter, and that a transfer might have compromised patient

safety.

18. In contrast, it was Dr. Giles' opinio n that on

presentation to the hospital, Mrs. Petersen was not having

persistent uterine contractions, and that she never evidenced

persistent contractions until well after her membranes

spontaneously ruptured. It was further Dr. Giles ' opinion that

Mrs. P etersen was medically stable on presentation to the

hospital ; that she remained medically stable until she entered

the active phase of labor, some time after her membranes

ruptured ; that the fetus evidenced good fetal heart rate status ;

and that a transfer would not have posed a threat to the safety

of Mrs. Petersen or the fetus.

19. Here, Dr. Giles' testimony, is credited, as most

consistent with the proof . Consequently, it is resolved that

Mrs. Petersen was not having persistent uterine contractions

whe n she presented to the hospital; that Mrs. Petersen did not

evidence persistent uterine contractions until after her

membranes ruptured; and that Mrs. Petersen was medically stable

at and following admission, and a transfer would not have posed

a threat to the safety of Mrs. Petersen or the fetus .

Therefore, Mrs. Petersen did not have an "emergency medical

condition," as that term is defined by Section 395.002(9)(b),

Florida Statutes, and the hospital was required t o give notice,

during the course of Mrs. Petersen's December 18, 2001,

admission.

CONCLUSIONS OF LAW

Jurisdiction

2 0 . The Division of Administrative Hearings has

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

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

Compensability and award

2 1 . In resolving whether a claim is covered by the Plan,

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

claiman t has demonstrated, to the

satisfaction of the administrative law

judge, that the infant has sustained a brain

or spinal cord injury caused by oxygen

deprivation or mechanical injury and that

the infant was thereby rendered permanently

and substantially me ntally 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 postdelivery

period in a hospital; or by a certified

nurse midwife in a teaching hospital

supervised by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospital.

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

administrative law judge concludes that the "infant has

sustained a birth - related neurological injury and that

obstetrical services were delivered by a participating physician

at the birth." § 766.31(1), Fla. Stat.

2 2 . "Birth - related neurological injury" is defined by

Section 766.302(2), Florida Statutes, to mean:

. . . injury to the brain or spinal cord of

a live infant weighing at least 2,500 grams

for a single ges tation 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 ho spital, 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.

2 3 . In this case, it has been established that the

physician who provided obstetrical services at Jennifer's birth

w as a "participating physician," and that Jennifer suffered a

"birth - related neurological injury." Consequently, Jennifer

qualifies for coverage under the Plan, and Petitioners are

entitled to an award of compensation. §§ 766.309 and 766.31,

Fla. Stat. However, i n this case, the issues of compensability

and notice, and issues related to an award were bifurcated.

Accordingly, absent agreement by the parties, and subject to the

approval of the administrative law judge, a hearing will be

necessary to resolve any disputes regarding the amount and

manner of payment of "an award to the parents . . . of the

infant," the "[r]easonable expenses incurred in connection wit h

the filing of . . . [the] claim . . . , including reasonable

attorney's fees," and the amount owing for "expenses previously

incurred." § 766.31(1), Fla. Stat. Nevertheless, since the

notice of intent to initiate civil litigation related to

Jennifer's b irth was mailed on or after September 15, 2003, the

determination of compensability and notice constitute final

agency action which is subject to appellate court review. 8

§ 766.309(4), Fla. Stat.; Ch. 2003 - 416, § 77, Laws of Fla.

Notice

2 4 . While the cl aim qualifies for coverage, Petitioners

have sought the opportunity to avoid a claim of Plan immunity in

a civil action, by requesting a finding that the notice

provisions of the Plan were not satisfied by the hospital . As

the proponent of the immunity cl aim, the burden rested on the

hospital to demonstrate, more likely than not, that the notice

provision of the Plan were satisfied. See Tabb v. Florida

Birth - Related Neurological Injury Compensation Association , 880

So. 2d 1253, 1260 (Fla. 1st DCA 2004)("T he ALJ . . . properly

found that '[a]s the proponent of the issue, the burden rested

on the health care provider to demonstrate, more likely than

not, that the notice provisions of the Plan were satisfied. ' ");

Galen of Florida, Inc. v. Braniff , 696 So. 2d 308, 311 (Fla.

1997)("[T]he assertion of NICA exclusivity is an affirmative

defense."); id. at 309 ("[A]s a condition precedent to invoking

the Florida Birth - Related Neurological Injury Compensation Plan

as a patient's exclusive remedy, health care provide rs must,

when practicable, give their obstetrical patients notice of

their participation in the plan a reasonable time prior to

delivery.")

2 5 . Here, for reasons appearing in the Fi ndings of Fact,

the hospital failed to demonstrate that Mrs. Petersen had an

"emergency medical condition " during her December 18, 2001,

admission, until her membranes ruptured. Consequently, by

having failed to give notice, when it had a reasonable

opportunity to do so, the hospital failed to comply with the

notice provisions of the Plan. Galen of Florida, Inc. v.

Braniff , 696 So. 2d 308 (Fla. 1997); Board of Regents v. Athey ,

694 So. 2d 46 (Fla. 1st DCA 1997)

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensa tion filed by

Jon Petersen and Kimberly Petersen, as parents and natural

guardians of Jennifer Petersen, a minor, be and the same is

hereby approved.

It is FURTHER ORDERED that the participating physician

complied with the notice provisions of the Plan, b ut the

hospital did not.

It is FURTHER ORDERED that the parties are accorded 30 days

from the date of this order to resolve, subject to approval by

the administrative law judge, the amount and manner of payment

of an award to the parents, the reasonable ex penses incurred in

connection with the filing of the claim, inclu ding reasonable

attorney's fees, and the amount owing for expenses previously

incurred. If not resolved within such period, the parties shall

so advise the administrative law judge, and a he aring will be

scheduled to resolve such issues. Once resolved, a n award will

be made consistent with Section 766.31, Florida Statutes.

DONE AND ORDERED this 8th day of September , 2005, 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 th e Clerk of the

Division of Administrative Hearings

this 8th day of September , 2005.

ENDNOTES

1/ Where, as here, a presumption is "established primarily to

facilitate the determination of a particular action in which the

presumption is applied, rather t han to implement public policy,

[it] is a presumption affecting the burden of producing

evidence." § 90.303, Fla . Stat. The nature and effect or

usefulness of such a presumption in assessing the quality of the

proof was addressed in Berwick v. Prudential and Casualty

Insurance, Co. , 436 So. 2d 239, 240 (Fla. 3d DCA 1983), as

follows:

Unless otherwise provided by statute, a

presumption established primarily to

facilitate the determination of an action,

as here, rather than to implement public

policy is a rebuttable "presumption

affecting the burden of producing evidence,"

see § 90.303, Fla. Stat. (1981), a "bursting

bubble" presumption, see C. Ehrhardt, supra ,

at §§ 302.1, 303.1. Such a presumption

requires the trier of fact to assume the

existence of the presumed fact unless

credible evidence sufficient to sustain a

finding of the non - existence of the presumed

fact is introduced, in which event the

bubble bursts and the existence of the fact

is determined without regard to the

presumption. See § 90.302(1 ), Fla. Stat.

(1981); C. Ehrhardt, supra at § 302.1; see

generally Ladd, Presumptions in Civil

Actions, 1977 Ariz.St.L.J. 275 (1977)

Accord Caldwell v. Division of Retirement , 372 So. 2d 438 (Fla.

1979), Public Health Trust of Dade County v. Valcin , 507 S o. 2d

596 (Fla. 1987), and Insurance Company of the State of

Pennsylvania v. Estate of Guzman , 421 So. 2d 597 (Fla. 4th DCA

1982. See also Gulle v. Boggs , 174 So. 2d 26, 29 (Fla. 1965),

citing with approval Tyrrell v. Prudential Insurance Co. , 109

Vt. 6, 192 A. 184, 115 A.L.R. 392, where in it was stated:

Presumptions disappear when facts appear;

and facts are deemed to appear when evidence

is introduced from which they may be found.

2/ With but one exception, the records of Tallahassee Memorial

Hospita l consistently reflect Jennifer's initial weight as it

was entered on the Newborn ICU Admission Assessment form (2,500

grams and 5 pounds 8.1 ounces). (Joint Exhibit 1, Tab 26.)

That exception is the Labor and Delivery Summary (Joint Exhibit

2, Tab 5), w hich reflects a weight of 2,495 grams and 5 pounds 8

ounces. The reason for the discrepancy is reasonably explained

by the fact that the weight was provided in pounds and ounces to

labor and delivery by the newborn intensive care unit, and since

the labor and delivery Watchchild Computer System only accepts

whole ounces, a weight of 5 pounds 8 ounces was entered in the

system. The system then displayed the equivalent in grams as

2,495 (a whole number derived from a conversion figure of

2 , 494.8 grams). No te, as used in this order, all conversions

are calculated based on an equivalency of 1 gram = 0.035274

ounces, and 1 ounce = 28.350 grams. See Petitioners' Exhibit 1,

pages C - 11 and C - 18, and Dorland's Illustrated Medical

Dictionary, 28th Edition (1994), Appendix 5 (Table of Weights

and Measures), page 1929.

3/ Joint Exhibit 1, Tab 26.

4/ In this case, no credible proof was offered regarding the

weight of the endotraceal tube. § 120.57(1)(c), Fla. Stat.

("Hearsay evidence may be used for 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.") However, given the conclusion

that a weight of 2,500 grams is not reliable, the i mplications

of that failure need not be addressed.

5 / Were a weight of 2,500 grams a reliable reflection of

Jennifer's weight when initially assessed in the newborn

intensive care unit, it would have been appropriate to reduce

that figure by the weight o f the endotracheal tube to derive her

birth weight. Respondent's and Intervenors' contention that

2,500 grams , as Jennifer's "official birth weight , " should be

used , as her actual birth weight, without reduction for the

weight of the endotracheal tube , is rejected as unpersuasive .

In so concluding , the hospital 's suggest ion that "[t]o find

otherwise would be to ignore the policy and practice of . . .

[the hospital] in recording the NICU weight as the infant's

official weight and thereafter relying on that figure for

medications and other health care decisions , " has not been

overlooked. (Hospital's Proposed Order on Compensability and

Notice, paragraph 22.) However , the Plan speaks in terms of

"birth weight," which would not include an endotracheal tube,

and not "official birth weight," a term not used in the Plan .

Therefore, the hospital's policy cannot subvert the unambiguous

language of the Plan. Moreover , the hospital's records, as with

all evidence, are subject to scrutiny, and when shown to be

inac curate cannot support a finding of fact. As for the

hospital's practice of medicating a newborn based on its NICU

weight, hopefully, if the weight of the foreign object is

significant to the decision - making, its weight would be taken

into account before m edicating the child.

6 / O'Leary v. Florida Birth - Related Neurological Injury

Compensation Association , 757 So. 2d 624, 627 (Fla. 5th DCA

2000)("All questions of compensability, including those which

arise regarding the adequacy of notice, are properly de cided in

the administrative forum.") Accord University of Miami v. M.A. ,

793 So. 2d 999 (Fla. 3d DCA 2001); Tabb v. Florida Birth - Related

Neurological Injury Compensation Association , 880 So. 2d 1253

(Fla. 1st DCA 2004). See also Gugelmin v. Division of

Administrative Hearings , 815 So. 2d 764 (Fla. 4th DCA 2002);

Behan v. Florida Birth - Related Neurological Compensation

Association , 664 So. 2d 1173 (Fla. 4th DCA 1995). But see All

Children's Hospital, Inc. v. Department of Administrative

Hearings , 863 So. 2d 450 (Fla. 2d DCA 2004)( certifying

conflict ); Florida Health Sciences Center, Inc. v. Division of

Administrative Hearings , 871 So. 2d 1062 (Fla. 2d DCA

2004)(same); Florida Birth - Related Neurological Injury

Compensation Association v. Ferguson , 869 So. 2d 686 (Fla. 2d

DCA 2004)(same); and, Bayfront Medical Center, Inc. v. Florida

Birth - Related Neurological Injury Compensation Association , 893

So. 2d 636 (Fla. 2d DCA 2005) .

7/ The first stage of "labor" is commonly understood to

"begin[] with the onset of regular uterine contractions."

Dorland's Illustrated Medical Dictionary, Twenty - eighth Edition

(1994). "Regular," is commonly understood to mean "[o]ccurring

at fixed intervals, periodic." The American Heritage Dictionary

of the English Language, New College Edition (1979). Similarly,

"persistent" is commonly understood to mean "[i]nsistently

repetitive or continuous." Id.

8 / Amended Pre - Hearing Stipulation, paragraph 11, wherein the

parties stipulated that the notice of intent was mailed on

Nove mber 17, 2003.

COPIES FURNISHED:

(By certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308

(Certified Mail No. 7099 3400 0 010 4399 5810)

William R. Waters, Jr., Esquire

Pearson & Waters, P.A.

703 North Monroe Street

Tallahassee, Florida 32303

( Certified Mail No. 7099 3400 0010 4399 5803)

Jeannette M. Andrews, Esquire

Andrews, Crabtree, Knox & Andrews, LLP

Post Office Box 12800

Tallahassee, Florida 32317 - 2800

(Certified Mail No. 7099 3400 0010 4404 1745)

M. Mark Bajalia, Esquire

Brennan, Manna & Diamond

76 South Laura Street, Suite 1700

Jacksonville, Florida 32202

(Certified Mail No. 7099 3400 0010 4399 5735)

Jesse F. S uber, Esquire

Henry, Buchanan, Hudson,

Suber & Carter, P.A.

Post Office Drawer 1049

Tallahassee, Florida 32302

(Certified Mail No. 7099 3400 0010 4399 5728)

Jana Bures Forsthoefel, M.D.

1405 Centerville Road

Tallahassee, Florida 32308

(Certified Mail No. 7099 3400 0010 4399 5711)

Tallahassee Memorial Hospital

1300 Miccosukee Road

Tallahassee, Florida 32308

(Certified Mail No. 7099 3400 0010 4399 5704)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald C ypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7099 3400 0010 4399 5698)

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 co py,

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.