04-003847N Eman Mustafa, A Minor, By Her Parents And Natural Guardians, Shiren Mustafa And Nehad Mustafa vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, March 28, 2006.

Summary: The proof failed to demonstrate that the child`s neurological problems were birth related or that she was substantially mentally and physically impaird. The claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMAN MUSTAFA, a minor, by her )

parents and natural guardians, )

SHIREN MUSTAFA AND NEHAD )

MUSTAFA, )

)

Petitioner s , )

)

vs. ) Case No. 04 - 3847N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent , )

)

and )

)

CARYN L BRAY, M.D. and )

UNIVERSITY COMMUNITY HOSPITAL, )

INC., )

)

Intervenor s . )

)

FINAL ORDER

Pursuant to notice, the Division of Administra tive

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

a final hearing in the above - styled case on December 2, 2005, by

video teleconference, with sites in Tallahassee and Tampa,

Florida.

APPEARANCES

For Petitioner s : William F. Blews, Esquire

600 First Avenue, North, Suite 307

Post Office Box 417

St. Petersburg, Florida 33701

For Respondent: Stanley L. Martin, Esquire

Phelps Dunbar, LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

For Intervenor Caryn L. Bray, M.D.:

Damien M. Hoffman, Esquire

Stephens, Lynn, Klein, LaCava,

Hoffman & Puya, P.A

Bank of America Plaza, Suite 2500

101 East Kennedy Boulevard

Tampa, Florida 33602 - 3650

For Intervenor University Community Hospital, Inc.:

Rodney W. Morgan, Esquire

Morgan, Lamb, Goldman & Valles, P.A.

2701 North Rocky Point Drive, Suite 410

Tampa, Florida 33607 - 5919

STATEMENT OF THE ISSUES

1. Whet her Eman Mustafa, a minor, qualifies for coverage

under the Florida Birth - Related Neurological Injury Compensation

Plan (Plan).

2. If so, whether the hospital and the participating

physician gave the patient notice, as contemplated by Section

766.316, Flo rida Statutes, or whether any failure to give notice

was excused because the patient had an "emergency medical

condition," as defined by Section 395.002(9)(b), Florida

Statutes, or the giving of notice was not practicable.

PRELIMINARY STATEMENT

On October 26, 2004, Shiren Mustafa and Nehad Mustafa, as

parents and natural guardians of Eman Mustafa (Eman), a minor,

filed a petition (claim) with the Division of Administrative

Hearings (DOAH) to resolve whether Eman qualified for

compensation under the Plan.

D OAH served the Florida Birth - Related Neurological Injury

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

October 26, 2004, and on March 11, 2005, NICA gave notice that

it was of the view Eman 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. In the interim, Caryn L.

Bray, M.D., and University Community Hospital, Inc. (University

Community Hospital) were granted leave to intervene, and on

April 12, 2005, Petitioners filed an Amended Petition, which

apart from requesting a hearing to resolve whether the claim was

compensable, requested a finding that Dr. Bray, the physician

who provided obstetrical service s at Eman's birth, and

University Community Hospital, the hospital at which Eman was

born, failed to comply with the notice provisions of the Plan.

Consequently, the hearing held on December 2, 2005, was noticed

to resolve whether the claim was compensabl e and whether the

healthcare providers gave notice, as required by the Plan.

At hearing, Petitioners' Exhibits 1 - 8, and University

Community Hospital (UCH) Exhibits 1 and 2 were received into

evidence. 1 Post - hearing, Respondent's Exhibit 1 was received

in to evidence. 2 No witnesses were called, and no further

exhibits were offered.

The transcript of the hearing was filed February 7, 2006,

and Respondent's Exhibit 1, the deposition of Michael Duchowny,

M.D., taken post - hearing, was filed March 7, 2006.

Con sequently, the parties were accorded until March 17, 2006, to

file proposed orders. (Transcript, page 21). Petitioners and

Respondent elected to file proposed orders, but Intervenors

declined the opportunity to do so. The parties' proposals have

been du ly - considered.

FINDINGS OF FACT

Stipulated facts

1. Shiren Mustafa and Nehad Mustafa are the natural

parents and guardians of Eman Mustafa, a minor. Eman was born a

live infant on February 22, 2002, at University Community

Hospital, a hospital located in Tampa, Florida, and her birth

weight exceeded 2,500 grams.

2. The physician providing obstetrical services at Eman's

birth was Caryn L. Bray, M.D., who, at all times material

hereto, was a "participating physician" in the Florida Birth -

Related Neurol ogical Injury Compensation Plan, as defined by

Section 766.302(7), Florida Statutes.

Eman's birth and immediate postnatal course

3. At or about 8:00 p.m., February 21, 2002, Mrs. Mustafa,

with an estimated delivery date of February 15, 2002, and the

fetu s at 40 6/7 weeks ' gestation, was admitted to University

Community Hospital, for induction of labor, and proposed vaginal

birth, after prior cesarean section (VBAC). At the time,

Mrs. Mustafa's membranes were intact; irregular contractions

were noted; vag inal examination revealed the cervix closed,

effacement at 60 - 70 percent, and the fetus at station - 2; and

fetal monitoring revealed a reassuring fetal heart rate, with a

baseline in the 130 - beat per minute range.

4. At 9:00 p.m., Cervidil was placed to s often the cervix

overnight, and by 7:15 a.m., February 22, 2002, vaginal

examination revealed the cervix at 1 - 2 centimeters dilation,

effacement at 90 percent, and the fetus at station - 1. Cervidil

was removed; at 7:40 a.m., the membranes spontaneously ru ptured,

with clear fluid noted; and Pitocin was started to augment

labor. Fetal monitoring contained to reveal a reassuring fetal

heart rate.

5. Mrs. Mustafa's labor rapidly progressed and by

8:30 a.m., vaginal examination revealed the cervix at 5

centim eters, 3 effacement complete and the fetus at station 0, and

by 9:30 a.m., vaginal examination revealed complete dilation and

effacement, and the fetus at station . Late decelerations

were also noted at 9:30 a.m., but fetal heart rate was otherwise

reass uring.

6. Dr. Bray was paged at 9:32 a.m., and returned the page

at 9:39 a.m. At the time, Dr. Bray was notified of

Mrs. Mustafa's status and requested that the patient start

pushing. However, due to the low station of the fetus, staff

requested Dr. B ray's presence for pushing, and Dr. Bray stated

she would be be d side in approximately 10 minutes. Thereafter,

at 9:58 a.m., further decels were noted, and Pitocin was

stopped.

7. At 9:59 a.m., Dr. Bray was noted at bedside, oxygen was

applied, fluid bolu s started, and fetal heart rate decels to 60

beats per minute were documented. Thereafter, at 10:03 a.m.,

Mrs. Mustafa was pushing, complaining of pain when abdomen

palpated, and fetal heart rate in the 50 - beat per minute range

was noted. The n, at 10:07 a.m., fetal heart rate in the 50s was

noted, with brief accelerations to the 110 - beat per minute

range, and Dr. Bray requested a Kiwi vacuum.

8. At 10:09 a.m., Kiwi vacuum - assisted delivery, with

patient pushing, proved unsuccessful, and fetal heart rate was

noted in the 110 - beat per minute range, with deceleration back

to the 60 - beat per minute range. At 10:11 a.m., Dr. Bray

requested fundal pressure , with patient pushing, but again Kiwi

vacuum - assisted delivery was unsuccessful, despite three

attempts. Medela vacuum was called for and at 10:17 a.m., two

attempts at delivery with the Medela vacuum and fundal pressure

proved unsuccessful. Then, at 10:19 a.m., with fetal heart rate

remaining in the 60 - beat per minute range, a stat cesarean

section was ca lled for non - reassuring fetal heart rate and

suspected uterine rupture.

9. At 10:22 a.m., Mrs. Mustafa was taken to the operating

room, where she was admitted at 10:25 a.m.; surgery started at

10:30 a.m., at which time uterine rupture was confirmed; and

Eman was delivered at 10:32 a.m., with Apgar scores of 1, 3, and

6, at one, five, and ten minutes respectively. 4 According to

the medical records, Eman required resuscitation at birth, with

tracheal intubation, IPPV, and cardiac massage, and was then

tr ansferred to the neonatal intensive care unit (NICA), where

she developed spontaneous respirations, and within two to three

hours was weaned from the ventilator.

10. Eman's subsequent newborn course was without incident

or evidence of residual effects of birth trauma, and she was

discharged with her mother on February 25, 2002. Eman's

Discharge Summary included the following observations:

PHYSICAL EXAMINATION: A term female infant,

weight 3329 grams, length 51 cm, and hip

circumference 32 cm. Temperatur e 97.3,

heart rate 158, respiratory rate 62, blood

pressure 51/48. HEENT: Normocephalic.

Eyes examined at discharge: Pupils were

reactive and the red reflex seen. No nasal

flaring. Neck supple. Lungs: No

retractions. Good air entry. Heart regular

rate and rhythm. No murmur. Abdomen soft,

no masses, three - vessel cord. Genitalia:

Female. Extremities: Moving all limbs,

hips stable. No rashes. Neurological:

Good tone.

INITIAL IMPRESSION:

1. Term female infant.

2. Perinatal depression.

3. Maternal uterine rupture.

4. Respiratory distress.

5. At once (STAT) cesarean section.

INITIAL TREATMENT:

1. NICU admission.

2. Pulse oximetry monitoring.

3. Conventional mechanical ventilation.

4. Nothing by mouth.

5. Intravenous fluids.

6. Sep sis workup.

7. Antibiotics.

8. Chest x - ray.

PROGRESS:

1. Respiratory: The infant was extubated

and weaned to room air within approximately

two to three hours of admission. Initial

chest x - ray was not significant.

2. Rule out sepsis: The infant wa s treated

with antibiotics; namely, ampicillin and

gentamicin for 48 hours. These were

discontinued when the cultures remained

negative.

3. Fluids and electrolytes: On admission,

the infant was given early intravenous

fluids, approximately 24 to 48 hou rs enteral

feeds were begun and increased

progressively. At the present time the

infant is breastfeeding only. She is

voiding well, passing stools.

4. Neurological: The infant has good tone

and good reflexes, no clonus, and appears to

be neurologicall y normal.

SUMMARY: This is a term female infant who

was delivered after having maternal uterine

rupture. The infant did require neonatal

resuscitation but recovered very quickly.

At the present time the infant is doing well

and feeding well.

FINAL DIA GNOSIS:

1. Term female infant.

2. Cesarean section.

3. Perinatal depression.

4. Rule out sepsis.

5. Respiratory distress.

Eman's subsequent development

11. Eman's early development was apparently without

significant concern until approximately 19 months of age, when

she was referred by her pediatrician (Issaam Albanna, M.D.) to

Jose Ferreira, M.D., a physician board - certified in

neurophysiology and neurology with special qualification in

child neurology, for evaluation concerning "some gait

disturb ance with falling and some coordination problems."

Pertinent to this case, Dr. Ferreira reported the results of his

initial evaluation of October 6, 2003, as follows:

I had the pleasure of seeing Eman for

initial evaluation today accompanied by her

mother and aunt. The main concern is some

gait disturbance with falling and some

coordination problems.

The y report that she started walking

somewhat late at 14 - 15 months and was doing

better initially and then seems to be

falling more frequently recently and w ill

walk on her toes at times. There is also

some deficits with the coordination where

she seems to be "clumsy" at times, hands

"clinched" frequently and her muscles "give

out" on her apparently more frequently then

expected for age. She has been develop ing

speech with about 5 words at this point.

She tends to drool frequently . . . . She

is potty training currently as she starts to

talk with 5 - 6 words vocabulary . . . .

PAST MEDICAL HISTORY: She was born at full

term pregnancy. Birth weight was 7 lb 8

ounces. There was some traumatic delivery

as she describes it with uterine rupture and

labor requiring a stat cesarean section.

She went home with her mother. There was no

other problems noted initially.

* * *

GENERAL PHYSICAL EXAMINATION: H C: 45 cm

(5th percentile) WT: 23 lb HR: 90 and

regular.

HEENT: Unremarkable. Normocephalic. . . .

The extremities have full range of motion

with no edema, deformities or joint

tenderness. The midline back shows no

midline defects and no point tendern ess to

percussion. The skin shows no

neurocutaneous findings of significance and

there was no dysmorphic features.

NEUROLOGICAL EXAMINATION: Shows she was

alert. She was initially showing

significant stranger anxiety and then was

more comfortable with the examiner as the

interview took place. She was able to

follow some simple commands from her mother.

She did not say any words during the

examination. The cranial nerve examination

revealed full extraocular movements and

visual fie l ds full to confront ation. The

pupils were equal and reactive. The

funduscopic exam showed bilateral red

reflex. The face is symmetric and the

tongue midline with no fasciculations.

There was some degree of drooling noted.

Her motor exam shows she had no focal

weakness. There is no significant increased

resistance to pass of motion other than

possibly the right upper extremities. She

tended to maintain her hands fisted with

some cortical thumbs at times specially when

she walked. The gait shows she was somewhat

stooped forward to a mild degree but

otherwise wide based appropriate for age.

She tended to fall occasionally. There was

no asymmetry of the use of her extremities

otherwise except that she tended to hold the

right arm more flexed and the right hand

more frequ ently closed and pronated. The

deep tendon reflexes showed 2. There is no

sustained ankle clonus. The plantar

responses were extensor bilaterally. Gait

and coordination showed there was no tremors

and no ataxia [failure of musculature

coordination] 5 o f significance other than the

tendency to fall which was somewhat limited

coordination. The plantar responses were

extensor bilaterally.

IMPRESSION:

1. Gait disturbance associated with a mild

degree of incoordination with her age with

some mild upper m otor neuron dysfunction

signs as described above in the neurological

examination.

* * *

RECOMMENDATIONS:

1. She will have an MRI of the brain

without contrast.

2. She will have a metabolic screening

including serum amino acids, ammonia levels,

th yroid functions studies, total carnitine

levels, ammonia and lactate and CPK levels.

3. She will be seen for follow up here in

approximately one and a half to two months

or earlier if there is any acute changes.

Physical and occupational therapy may be

recommended at this point . . . .

(Petitioners' Exhibit 2).

12. Eman was reevaluated by Dr. Ferreira on December 15,

2003, and he reported the results of that visit, as follows:

I had the pleasure of seeing Eman for follow

up today accompanied by her pa rents. As you

know, she has a history of difficulties with

her gait and some developmental delay and

coordination difficulties. She had an MRI

of the brain, which was normal with the

exception of some sinusitis. She also had a

metabolic screen and had e levated T4 [,] and

T3 and TSH was normal. She continues having

difficulties with her gait and coordination.

She has had some drooling at times. Her

speech has been somewhat delayed and she has

approximately 10 - 15 word vocabulary but

difficult to understa nd and does not show

any signs to suggest regression. She has

been sleeping and eating well.

* * *

HEENT: Unremarkable. . . . The extremities

had full range of motion and no edema.

NEUROLOGICAL EXAMINATION: She was alert and

friendly. She was c ooperative. Cranial

nerve exam revealed full extra ocular

movements and visual fields grossly full to

confrontation. The pupils are equal and

reactive. The funduscopic exam shows

bilateral red reflex. The face is symmetric

and the tongue was midline wit h no

fasciculations. The motor exams shows she

had some difficulties with fine motor

coordination. She did not have a good

pincer grasp and she tended to keep her

hands mostly in a pronated position and

somewhat flexed at the elbow and especially

when sh e walked. Her muscle tone was

minimally increased in all extremities.

Deep tendon reflexes were 2ｯ. The

plantar responses were extensor bilaterally.

Her gait was minimally spastic with a

slightly wide base. She tended to walk

somewhat stood forward to a mild degree.

When she was sitting she also had some mild

degree of truncal ataxia.

IMPRESSION:

1. History of developmental disorder with

mild speech and language delay as well as

some drooling.

2. Mild degree of spasticity with gait

disturban ce.

3. There is history of sinusitis.

RECOMMENDATIONS:

1. As her MRI did not show any intracranial

pathology an EEG will be done to evaluate

for any encephalopathic changes.

2. She was referred to occupational, speech

and physical therapy.

3. Th e thyroid function (T4 was mildly

elevated) will be repeated.

4. She will be seen for follow up here in

three to four months or earlier if there is

any acute changes . . . .

(Petitioners' Exhibit 2).

13. Eman was last evaluated by Dr. Ferreira on

Fe bruary 11, 2004, and he reported the results of that visit, as

follows:

I had the p leasure of seeing Eman for follow

up today accompanied by her parents for a

history of gait disturbance with some

developmental delay and coordination

difficulties. She had an EEG done today

which showed a mild abnormality with the

right occipital rhythm being slightly lower

voltage than the left. The EEG was

otherwise normal. She is now in physical,

occupational and speech therapy. This just

started so it is difficult to say whether or

not improvement has been noted. Her parents

feel however that she has improved. She is

learning new words and her parents feel that

she is steadily showing improvement. She is

falling still but is moving around better

than she has previo usly. They also feel her

drooling has improved. She is eating and

sleeping well and they have no new concerns

today.

* * *

HEENT: Unremarkable. . . . Extremities had

full range of motion.

NEUROLOGICAL EX A M INATION: She is awake and

alert. She i s very cooperative and

friendly. She was speaking at times and was

smiling. Cranial nerve and motor exams were

unchanged from the last evaluation. Her

pincer grasp was still not as good as

expected for her age and she tended to keep

her hands pronated w hen walking. Her muscle

tone was still mildly increased. Deep

tendon reflexes were 2 and she was walking

with a slightly wide based gait for age.

She was sitting without assistance for short

periods of time today but continued with a

mild degree of tru ncal ataxia.

RECOMMENDATIONS:

1. The thyroid panel will be repeated as it

was requested at the last visit but unable

to be completed.[ 6 ]

2. She will continue in the therapies . . .

.

(Petitioners' Exhibit 2).

14. According to Dr. Ferreira , as of th e last time he saw

Eman (February 11, 2004) she was still showing some neurologic

deficits, which he described as a mild degree of spasticity

(increased musc le tone), with gait disturbance; mild upper motor

dysfunction, wi th a less than age - appropriate pin cer grasp and

tendency to pronate her hands when walking; and a mild speech

and language delay. ( See Dr. Ferreira's report s of December 15,

2003, and February 11, 2004, supra , and Petitioners' Exhibit 2,

pages 15 - 21, 28 - 32, and 42). As for permanency , Dr . Ferreira

declined (given the limited contact he had with Eman) to offer

an opinion regarding the significance of any dysfunction that

might persist . Moreover , Dr. Ferreira , who was not familiar

with Eman's birth records or those medical records that pre dated

his evaluation of October 6, 2003, offered no opinion, within a

reasonable degree of medical certainty, as to the likely

etiology of Eman's neurologic defects ( i.e. , whether they

resulted from brain injury caused by oxygen deprivation or

mechanical i njury occurring dur ing labor delivery or

resuscitation , or another etiology) or whether Eman suffered any

mental impairment.

Subsequent neurologic evaluation s

15. On February 23, 2005, Eman was, at NICA's request,

evaluated by Michael Duchowny, M.D., a pediatric neurologist

associated with Miami Children's Hospital. Dr. Duchowny

reported the results of his evaluation, as follows:

PRE - AND PERINATAL HISTORY: Eman was born in

Tampa at University Hospital after a full

term gestation. Her birth weight wa s 7

pounds 9 ounces, and she remained in the

nursery for three days.

Eman walked at eighteen months and said

single words at two years. She is just

beginning toilet training. She is fully

immunized and has no known allergies. She

has never undergone surgery and has not been

hospitalized after birth.

PHYSICAL EXAMINATION reveals an alert, well -

developed and well - nourished, cooperative 3 -

year - old girl. Eman weighs 36 pounds and is

45 inches tall. The skin is warm and moist.

There are no neurocutan eous stigmata . . .

The spine is straight. The head

circumference measures 45. 8 centimeters,

which is below the 3rd percentile for age.

There are no cranial or facial anomalies or

asymmetries. The neck is supple without

masses, thyromegaly or adenopath y. The

cardiovascular examination is unremarkable,

and the lung fields are clear. There is no

palpable abdominal organomegaly. Peripheral

pulses are 2 and symmetri c .

Eman's NEUROLOGIC EXAMINATION reveals her to

be socially interactive and cooperativ e.

She has a good attention span and is quite

inquisitive. She smiles frequently. She is

able to understand commands and completes

them very clearly. She is quite interactive

playing games. She knows body parts. She

is behaviorally intact. Cranial n erve

examinations reveal full visual fields to

confrontation testing. The pupils are 3mm

and briskly reactive to direct and

consensually presented light. There are

full and conjugate extraocular movements.

Funduscopic examination is unremarkable with

we ll - defined optic disc margins. There are

no significant facial asymmetries. The

tongue movements are poorly coordinated.

Drooling is noted intermittently. Motor

examination reveals static hypotonia with a

mild increase in tone in all extremities.

Ther e are no contract ures and there is full

range of motion in all joints. The ga i t is

complex with the left heel being slightly

elevated with a mil d degree of circumduction

at the hips and inte rn al rotation at the

ankles. Deep tendon reflexes are 1 in the

upper extremities, 3 at the knees, and 1

at the ankles. Plantar responses are

downgoing. Sensory examination is intact to

withdrawal of all extremities to

stimulation. Neurovascular examination

reveals no cervical, cranial or ocular

bruits and no temp erature or pulse

asymmetries.

(Petitioners' Exhibit 3).

16. B ased on his n euro logic evaluation and review of the

medical records, Dr. Duchowny was of the opinion that Eman's

impairments were most likely developmentally based ( the product

of atypical brain development ), as opposed to birth trauma

( brain injury caused by oxygen deprivation or mechanical injury

occurring in the course of labor, delivery or resuscitation ) .

In so concluding, Dr. Duchowny noted that following delivery,

Eman's hospital cour se was inconsistent with traumatic brain

damage (there being an absence of significant prolonged

respiratory depression, an absence of systemic organ

involvement, and an absence of seizure a ctivity ) , and her MRI

scan of November 13, 2003, was normal. Dr. Duchowny also noted

that Eman's presentation on February 23, 2005, with a pattern of

immature muscle control and expressive language delay, was

typical of children with developmental disabilities, as opposed

to disabilities associated with birth trauma. F inally,

Dr. Duchowny was of the opinion that Eman's expressive language

delay was mild to moderate, and her motor disability was

moderate, as opposed to substantial, and that her condition was

likely to improve with time. (Petitioners' Exhibit 4;

Responde nt's Exhibit 1).

17. Subsequent ly, on March 11, 2005, Eman was, at

University Community Hospital's request, evaluated by S . Parrish

Winesett, M.D. a physician board - certified in pediatrics and

neurology with special qualification in child neurology.

Dr. Winesett reported the results of his evaluation, as follows:

PHYSICAL EXAMINATION:

General: Show s a young lady who is alert,

who is quite interactive. She smiles

easily. She has no obvious dysmorphic

features. She has normally placed eyes,

ears, nose, philtrum and mouth. Her mental

status is that she said single words during

my exam. I did not really hear her say

sentences. She was rather quiet for the

most part. She seemed to follow directions

well. Cranial nerve exam showed her pupils

were equal and responsive to light. She

seemed to have full visual fields. Her

extraocular eye movements were intact.

Range of motion in all directions was full.

Face was symmetrical with good facial

movements in both the upper and lower face.

Tongue was midlin e without any

fasiculations. Palate raised symmetrically.

She shrugged her shoulders will.

Motor exam seemed to show that she was

strong in all four extremities. I could not

get her to fully resist me and give her full

effort in trying to resist me, but she did

seem to be fairly strong in what resistance

I could elicit. She does not seem to have

any obvious atrophy of the muscles. She

seemed to have normal to n e and bulk. In

particular, I did not detect any asymmetry

of tone nor did I detect any hyp ertonia.

Reflexes in the upper extremities were

normal in the biceps, brachial radialis and

triceps. In the lower extremities, she did

not have any pathologic increase in

reflexes, but her patella and ankle reflexes

were brisk.

Her motor coordinatio n showed that in

reaching with both hands, she seemed to be

somewhat jerky and has a very slow approach

in reaching for my tape measure. She did

not seem to be particularly adept at pushing

the buttons and pulling the tape as I would

expect a child of thr ee to be. She seemed

to be very slow. Finger tapping also seemed

to be slow and somewhat labored. She did

not diminish her amplitude as she tapped.

Sensation was not exten sively tested, but

she did seem to acknowledge being touched in

all four extrem ities in a normal fashion.

Her gait was clearly abnormal. Her hands

while sitting never showed a ny adduction of

the thumbs within the palms. When she

walked, she immediately assumed a posture in

which she pulled her arms close to her side,

bent her elbo ws and brought her thumbs

within her palm. This was seen each time

she started to walk. She did not circumduct

her legs but instead seemed to drag her

lower extremities and have an almost

slapping motion of her feet as she pulled

her legs forward. She d id not particularly

scissor while she was walking. She did not

space out her gait while she was walking.

* * *

Review of the medical records provided to me

of both the child, as well as the mother

. . . showed the following. The child was

born on February 22, 2002 as the product of

a 41 week pregnancy. There was an attempted

vaginal birth after previous C - section. At

approximately 10:02, the fetal heart rate

was noticed to be decelerating. The

obstetrician was called at that time. The

child ha d heart deceleration during this

period that was noted in the nurses notes to

be down in the 50's and noted in the

physician's notes to be in the 70's. The

child was then taken to the operating room

where the child was born at approximately

10:32. The child, at that time, was handed

over to the neonatal resuscitation team who

started resuscitation effort and gave the

child Apgar scores of 1, 3 and 6 at 1, 5 and

10 minutes. The patient had been intubated

by the 3rd Apgar score. The child was taken

bac k to the NICU where at 10:45, a blood gas

was performed which showed a pH of 7.31, a

PC02 of 22 and a base excess of - 18. The

child recovered quite quickly and was

extubated in approximately two hours.

Review of the operating notes showed that

there was reported 200 to 300 cc of blood in

the uterus and that there was a uterine

rupture noted by the physicians at the

operation. The child was discharged from

the NICU on February 25, 2002 with the

neurological exam reported to be normal.

The child has subse quently been seen by Dr.

Jose Ferriera for the same complaints that

they presented to me with. He has done an

MRI which was read as normal by the Tampa

Children's Hospital radiologist. Thyroid

function tests were ordered and showed a

mild elevation of T 4 . . . . A speech therapy

evaluation including the Rossetti Infant

Toddler Language Scale showed that she

scored at the 15 month range at the age of

23 months for her speech skills. There was

apparently some splintering of the scoring

but mostly within th e 15 to 18 month range.

An auditory comprehension subtest, she

scores at 23 months which is normal. She is

also noted to have some oral motor speech

difficulties. Physical and occupational

therapy evaluations were reviewed but not as

significantly to th e data.

IMPRESSION: Eman is a young lady who is

presenting with predominantly problems in

gait disturbance, as well as speech

problems. Many of her speech problems could

be related to problems in the coordination

of her speech. There is a mild increa se in

reflexes in the lower extremities; however,

it does not appear to be a significant

degree of hypertonia. Overall, this child

appears to have predominant problems with

dyscoordination.

This is not a typical presentation for a

neonatal hypoxic isch emic encephalopathy

syndrome. In addition, the fact that the

child recovered so quickly and was extubated

within two hours and was discharged within

two days makes it highly unlikely that the

hypoxia suffered at birth is the cause of

the neurologic syndro me.

( Petitioners' Exhibit 3) .

18. Based on his neurologic evaluation and review of the

medical records, Dr. Winesett was of the opinion that, while of

unknown etiology, it was unlikely Eman's neurologic problems

were related to birth trauma. Dr. Wine sett also describe d

Eman's motor difficulties as moderate, as opposed to

substantial, and offer ed no opinion regarding her cognitive

function. (Petitioner's Exhibit 3, pages 18, 19, 22 - 26,

and 36).

Coverage under the Plan

1 9 . Pertinent to this case, c overage is afford ed by the

Plan for infants 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 imm ediate

postdelivery period in a hospital, which renders the infant

permanently and substantially mentally and physically impaired." 7

§ 766.302(2), Fla. Stat. See also §§ 766.309(1) and 766.31(1),

Fla. Stat.

The etiology and significance of Eman's impai rments

20 . Here, among the physicians who have examined Eman, and

who were particularly qualified to address the etiology and

significance of her impairments, none concluded that Eman's

impairments most likely resulted from brain injury caused by

oxygen deprivation or mechanical injury occurring in the course

of labor, delivery, or resuscitating in the immediate

postdelivery period in the hospital , or that Eman was

permanent ly and substantially mentally and physically impaired.

See , e.g. , Wausau Insuranc e Company v. Tillman , 765 So. 2d 123,

124 (Fla. 1st DCA 2000)("Because of the medical conditions which

the claimant alleged had resulted from the workplace 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); 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."). Therefore, the proof fails to support the

conclusion that Eman suffered a "birth - relate d neurological

injury," as required for coverage under the Plan.

The notice provisions of the Plan

21 . G iven that Eman did not suffer an injury compensable

under the Plan, it is unnecessary to address whether the

healthcare providers complied with the no tice provisions of the

Plan. See , e.g. , Galen of Florida, Inc. v. Braniff , 696 So. 2d

308, 309 (Fla. 1997)("[A]s a condition precedent to invoking the

Florida Birth - Related Neurological Injury Compensation Plan as a

patient's exclusive remedy, healthcare providers must, when

practicable, give their obstetrical patients notice of their

participation in the plan a reasonable time prior to

delivery. " ); O'Leary v. Florida Birth - Related Neurological

Injury Compensation Association , 757 So. 2d 624, 627 (Fla. 5t h

DCA 2000)("We recognize that lack of proper notice does not

affect a claimant's ability to obtain compensation from the

Plan. However, a healthprovider who disputes a plaintiff's

assertion of inadequate notice is raising the issue of whether a

claim can only be compensated under the plan.").

CONCLUSIONS OF LAW

2 2 . The Division of Administrative Hearings has

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

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

2 3 . The Florida Birth - Related Neuro logical 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), Fl a. Stat.

2 4 . 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), an d 766.305(1), Fla. Stat. The Florida Birth -

Related Neurological Injury Compensation Association, which

administers the Plan, has "45 days from the date of service of a

complete claim . . . in which to file a response to the petition

and to submit relevant written information relating to the issue

of whether the injury is a birth - related neurological injury."

§ 766.305(4), Fla. Stat.

2 5 . If NICA determines that the injury alleged in a claim

is a compensable birth - related neurological injury, it may award

compensation to the claimant, provided that the award is

approved by the administrative law judge to whom the claim has

been assigned. § 766.305(7), Fla. Stat. If, on the other hand,

NICA disputes the claim, as it has in the instant case, the

dispute mus t 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.

2 6 . In discharging this responsibility, the administrative

law judge must make the foll owing determination based upon the

available 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

o r spinal cord injury caused by oxygen

deprivation or mechanical injury and that

the infant was thereby rendered permanently

and substantially mentally and physically

impaired, a rebuttable presumption shall

arise that the injury is a birth - related

neurolog ical 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 jud ge 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.

2 7 . Pertinent to this case, "birth - related neurological

injury" i s defined by Section 766.302(2), Florida Statutes,

to mean:

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case of a

multiple gestation, a live infant weighing

at least 2,000 grams at bir th 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.

2 8 . As the proponent of the issue, the burden rested on

Petitioners to demonstrate that Eman suffered a "birth - related

neurological injury." § 766.309(1)(a), Fla. Stat. S ee also

Balino v. Department of Health and Rehabilitative Services , 348

So. 2d 349, 350 (Fla. 1st DCA 1997)("[T]he burden of proof,

apart from statute, is on the party asserting the affirmative

issue bef ore an administrative tribunal.")

2 9 . Here, the proof failed to support the conclusion that,

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

result of a brain or spinal cord injury caused by oxygen

deprivation or mechanical injury occurring in the course of

labor, delivery, or resuscitation in the immediate postdelivery

period in the hospital, or that Eman was permanently and

substantially mentally and physically impaired. Consequently,

given the provisions of Section 766.302(2), Florida Statu tes,

Eman does not qualify for coverage under the Plan. See also

§§ 766.309(1) and 766.31(1), Fla. Stat.; Humana of Florida, Inc.

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

the Plan . . . is a statutory substitute for common law righ ts

and liabilities, it should be strictly constructed to include

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

approved , Florida Birth - Related Neurological Injury Compensation

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

Florida B irth - 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 physical impairm ent.)

30 . Where, as here, the administrative law judge

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

neurological injury . . . she or he [is required to] enter an

order [to such effect] and . . . cause a copy of such order to

be sent im mediately to the parties by registered or certified

mail." § 766.309(2), Fla. Stat. Such an order constitutes

final agency action subject to appellate court review.

§ 766.311(1), Fla. Stat.

CONCLUSION

Based on the foregoing Findings of Fact and Conclu sions of

Law, it is

ORDERED the claim for compensation filed by Shiren Mustafa

and Nehad Mustafa, as parents and natural guardians of

Eman Mustafa, a minor, is dismissed with prejudice.

DONE AND ORDERED this 28th day of March, 2006, 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 28th day of March, 2006.

ENDNOTES

1/ With regard to Petitioners' Exhibit 1, the deposition of

Caryn Bray, M.D., Respondent reserved certain objecti ons, and

was directed to designate post - hearing, by page and line number,

the questions and answers to which it had objection.

(Transcript, pages 13 and 14). On December 12, 2005, Respondent

filed its objection to the following questions and answers:

pa ge 98, lines 15 - 25; and page 99, lines 1 and 2. Upon

consideration, it is noted that Dr. Bray's answer is not

responsive to the question posed ; the record lacks the requisite

foundation to demonstrate that Dr. Bray, through her education,

training, and ex perience, is qualified to render an opinion as

to the etiology and significance of Eman's neurological

problems; and the record lacks the requisite foundation to

support a conclusion that Dr. Bray was familiar with the term

"birth - related neurological inju ry," as defined by the Plan.

Therefore, Respondent's object is sustained.

2/ With the parties' agreement, NICA took the deposition of

Michael Duchowny, M.D., post - hearing, and it was received into

evidence as Respondent's Exhibit 1.

3/ There is some discrepancy in the medical records regarding

dilation of the cervix at 8:30 a.m. The Interdiscip linary Team

Progress Notes reflect 5 centimeters , whereas the Physician's

Progress Notes refl ect 6 - 7 centimeters. Here, the

Interdisciplinary Team Progress No tes are likely more accurate ;

however , the exact extent of cervical dilation is unimportant to

the res o l u tion of this case . ( See Petitioners ' Exhibit 1, pages

56 - 58)

4/ The Apgar scores assigned to Eman are a numerical expression

of the condition of a new born infant, and reflect the sum

points gained on assessment of respiratory rate, heart rate,

reflex, tone, 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, Eman's Apgar score totaled 1,

with heart rate being graded at 1, and respiratory rate , reflex,

tone, and color being graded at 0. At five minutes, Eman's

Apgar score totaled 3, with heart rate being graded at 2, color

at 1, and respiratory rate, reflex, a nd tone being graded at 0.

At ten minutes, Eman's Apgar score totaled 6, with respiratory

rate and heart rate being graded at 2 each, tone and color being

graded at 1 each, and reflex being graded at 0.

5/ See "ataxia," Dorland's Illustrated Medical Dic tionary,

Twenty - eighth Edition (1994) .

6/ Whether the thyroid panel was repeated is not of record.

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

includes an "injury to the . . . spinal cord . . . caused by

oxygen deprivation or mechanic al 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. However, in this case there is no

contention or proof to support a conclusion that the infant

suffered an injury to the spinal cord.

COPIES FURNISHED :

(via Certified Mail)

William F. Blews, Esquire

600 First Avenue, North, Suite 307

Post Office Box 417

St. Petersburg, Florida 33701

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

Rodney W. Morgan, Esquire

Morgan, Lamb, Goldman & Valles, P.A.

2701 North Rocky Point Drive, Suite 410

Tampa, Florida 33607 - 5919

Damien M. Hoffman, Esquire

Stephens, Lynn, Klein, .

LaCava, Hoffman & Puya, P.A

Bank of America Plaza, Suite 2500

101 East Kennedy Boulevard

Tampa, Florida 33602 - 3650

Stanley L. Martin, Esquire

P helps Dunbar, LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

Caryn L. Bray, M.D.

13601 Bruce B. Downs Boulevard

Suite 160

Tampa, Florida 33613

University Community Hospital

3100 East Fletcher Avenue

Tampa, Florida 33613 - 4613

Charlene Wil loughby, 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 judicia l 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 Divi sion 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. Carre ras , 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.