05-004512N Milagros Magaly Castro And William Marcelo Castro, As Personal Representatives Of The Estate Of Isaac Castro And David Castro, Deceased Twin Minors vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, June 27, 2006.

Summary: The evidence demonstrated that the infants suffered profound brain injury before delivery, and the mother was never in labor. The claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MILAGROS MAGALY CASTRO AND )

WILLIAM MARCELO CASTRO, as )

P ersonal R epresentatives of the )

E state s of ISAAC CASTRO AND )

DAVID CASTRO, deceased twin )

minors, )

)

Petitioner s , )

)

vs. ) Case No. 05 - 45 12N

)

FLORIDA BIRTH - RELATED )

NEUR OLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent, )

)

and )

)

LIFEMARK HOSPITALS OF FLORIDA, )

INC. , d/b/a PALMETTO GENERAL )

HOSPITAL, )

)

Intervenor . )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative

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

a hearing in the above - styled case on May 23, 2006, in

Tallahassee, Florida.

APPEARANCES

For Petitioners: Jorge E. Silva, Esquire

Paul Jon Layne, Esquire

Silva & Silva

236 Valencia Avenue

Coral Gables, Florida 33134

For Respondent: Donald H. Whittemore, Esquire

Phelps Dunbar, LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

For Intervenor: Steven J. Mitchel, Esquire

Schell, Mitchel & Cooley, L.L.P.

1830 Main Street, Suite 100

Weston, Florida 33326

STATEMENT OF THE ISSUE

Whether Isaac Castro and David Castro, deceased minors,

qualify for coverage under the Florida Birth - Related

Neurological Injury Compensation Pl an (Plan).

PRELIMINARY STATEMENT

On December 12, 2005, Milagros Magaly Castro and

William Marcelo Castro, as Personal Representatives of the

Estates of Isaac Castro (Isaac) and David Castro (David),

deceased twin minors, filed a petition with the Division of

Administrative Hearings (DOAH) to resolve whether Isaac and

David qualified for coverage under the Plan. Notably,

Petitioners were of the view that the claim was not compensable,

but requested a resolution of the issue as "a prerequisite to

Petitioners ' anticipated civil action."

DOAH served the Florida Birth - Related Neurological Injury

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

December 12, 2005, and on February 20, 2006, following an

extension of time within which to do so, NICA responded to the

petition and gave notice that it was of the view the claim was

compensable. Thereafter, Lifemark Hospital s of Florida, Inc.,

d/b/a Palmetto General Hospital, was accorded leave to

intervene, and a hearing was scheduled for May 23, 2006, to

resolve whether the claim was compensable.

At hearing, the parties stipulated to the facts included in

paragraphs 1 and 2 of the Findings of Fact which follow, as well

as the following additional matters:

1. The hospital gave notice as required by

th e Plan. § 766.316, Fla. Stat.

2. The Petitioners have recovered under a

settlement agreement with all healthcare

providers involved in Isaac's and David's

birth, with the exception of Palmetto

General Hospital, and if the claim is

compensable they are n ot entitled to an

award. § 766.304, Fla. Stat.

3. At no time prior to Isaac 's and David's

birth was their mother, Mrs. Castro, in

labor.

4. Isaac and David suffered a brain injury

caused by oxygen deprivation that rendered

them permanently and substan tially mentally

and physically impaired. [ 1 ] The sole issue

is whether the injury occurred during

delivery or immediate post - delivery

resuscitation.

Moreover , Petitioners' Exhibits A 2 and B 3 were received into

evidence and, with the parties' agreement, post - hearing

Petitioners filed the DVDs (3) related to Dr. du Plessis'

deposition, and they were received into evidence as Petitioners'

Exhibit C. 4 No witnesses were called, and no further exhibits

were offered.

The transcript of the hearing was filed Ju ne 9, 2006, and

the parties were initially accorded 10 days from that date to

file proposed orders. However, at Respondent's request, the

time for filing was extended to June 23, 2006. The parties

elected to file such proposals and they have been duly -

co nsidered.

FINDINGS OF FACT

Stipulated facts

1. Milagros Magaly Castro and William Marcelo Castro are

the natural parents of Isaac Castro and David Castro, deceased

minors, and the Personal Representatives of their deceased sons'

estates. Isaac and Davi d were the product of a multiple (twin)

gestation, and were born live infants on November 25, 2004, at

Palmetto General Hospital, a hospital located in Hialeah,

Florida, each with a birth weight exceeding 2,000 grams.

David died December 7, 2004, and Isaa c died January 12, 2005.

2. The physician providing obstetrical services at Isaac's

and David's birth was Monica Daniel, 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.

Isaac's and David's birth

3. At or about 1:50 p.m., October 11, 2004, Mrs. Castro,

age d 40, with an estimated delivery date of December 30, 2004,

and the twins at 28 weeks' gestation, presented to Palmetto

General Hospital on referral from her perinatologist for

inpatient management, with concerns of elevated blood pressure

(suspected pregnancy induced hypertension) , and increased

creatinine levels . At the time, Mrs. Castro's pregnancy was

consi dered high risk, with advanced maternal age and twin

gestation, and was further complicated by insulin dependent

gestational diabetes and hypothyroidism. Nevertheless, numerous

assessments during the term of her pregnancy were reassuring for

fetal well - be ing, as was her initial assessment at Palmetto

General Hospital.

4. Mrs. Castro was admitted to the hospital at 3:00 p.m.,

that day, and her pregnancy was managed without apparent adverse

incident until November 24, 2004, when, with the twins at 34 6/7

weeks' gestation, Mrs. Castro demonstrated severe preeclampsia,

with increasing creatini n e levels (worsening renal status).

Notably, however, fetal monitoring between 1:01 p.m., and

approximately 4:07 p.m., that afternoon, 5 provided reassuring

evidence of continued fetal well - being. 6

5. Given her condition, Dr. Daniel ordered Mrs. Castro

admitted to labor and delivery , where she was received at

9:10 p.m., for cesarean section delivery. Notably, Dr. Daniel's

admission orders included a requirement for e xternal fetal

monitoring. However, that order was not followed, and no fetal

monitor strips exist that would aid in assessing fetal status

subsequent to 4:07 p.m., November 24, 2004. The progress notes

do, however, include a few entries that bear on the issue.

6. A t 9:10 p.m., on admission to labor and delivery, the

nurse noted that Mrs. Castro reported normal fetal movement, and

denied pain, vaginal discharge, or blurred vision. Thereafter,

at 10:30 p.m., the nurse note d that Mrs. Castro showed abnorma l

lung sounds, with crackles bilaterally to the bases, and dyspnea

(difficult or labored breathing). Mrs. Castro was provided

supplement al oxygen by nasal cannula (NC) . At 1:00 a .m.,

November 25, 2004, while being prepared for surgery, the nurse

note d th at Mrs. Castro was slightly dyspneic and still receiving

supplemental oxygen, NC at 2 liters. Assessment revealed

reassuring fetal heart tones, with "FHT's via US on right upper

quadrant in the 130's [and] FHT's via US on lower left upper

quadrant in the 120's." Otherwise, the records provide no

information regarding fetal status until the twins were

delivered. 7

7 . At 1:35 a.m., Mrs. Castro was noted in the operating

room , with an oxygen saturation level of 92 percent. She was

given oxygen by mask, an d by 1:4 5 a.m., her saturation levels

were at 100 percent. No fetal heart tones were obtained "due to

maternal instability," and , at 1:56 a.m., the incision was made

(delivery began), and at 2:01 a.m., Isaac (identified as Twin A

in the medical records) a nd at 2:02 a.m., David (identified as

Twin B in the medical records) were delivered , severely

depressed. Isaac's Apgar scores were noted as 1, 2, 2, 2, 2, 2,

and 5, at one, five, ten, fifteen, twenty, twenty - five, and

twenty - eight minutes, respectively. 8 David's Apgar scores were

noted as 3, 5, and 6, at one, five, and ten minutes,

respectively. 9

8 . Isaac's delivery and hospital course are documented in

his Death Summary, as follows:

BIRTH

DATE: 11/25/2004 [TIME 02:01 hours]

WEIGHT: 2.275kg

GEST AGE: 35 weeks GROWTH: AGA

Amniotic fluid was meconium stained.

Presentation was vertex. The patient was

born in the delivery room by emergent

cesarean section under spinal anesthesia for

maternal hypertension and increasing

creatinine. Th e patient was born first of

twins. Apgar scores were 1 at 1 minute, 2

at 5 minutes and 2 at 10 minutes. At

delivery, the patient was cyanotic, floppy,

apneic and bradycardiceatment at

delivery included oxygen, stimulation, oral

suctioning, bag and m ask ventilation,

endotrachcal tube ventilation, epinephrine

and cardiac compression. At birth baby was

cyanotic, absent breathing effort,

bradycardic (in the 20's - 30's). Baby

noticed to have particulate meconium.

Oropharynx was suctioned by wall upon he ad

delivery. Bag mask ventilation was started

with no improvement in respiratory effort.

Baby was intubated and epinephrine was given

x 3 by EET but still no improvement in heart

rate (in the 20's - 30's). UAC line was

placed while baby continued being ba gged,

and epinephrine was given IV x 2. Also 6

Meq of sodium bicarbonate was given x 2 plus

one bolus of 4.5 Meq. Saline solution bolus

of 20cc was given x1 . . . . On minute

number 28 - 29 of life an adequate heart beat

was final l y noticed with improvemen t in

color. Tone and activity still poor and no

response to pain stimuli. ABG form UAC

showed a pH=6.7 PCO2=47 PO2 - 380 BE= - 31

HC03=5.6 . . . .

ADMISSION

DATE: 11/25/04

The patient was admitted immediately

following delivery. Indications for

admi ssion included metabolic acidosis,

possible sepsis, respiratory distress,

prematurity and perinatal depression. Upon

admission to NICU mechanical ventilation was

started. Chest XR compatible with H MD vs.

pneumonia. No air leak. Infasurf was given

x 1 w ith good response, and several H CO3

corrections were needed.

ADMISSION PHYSICAL EXAM . . .

OVERALL STATUS: Critical - initial NICU

day. BED: Radiant warmer. TEMP: Stable.

H R: Stable. RR: Unstable. BP: Stable

. . . .

CONDITION: Acroc yanotic and depressed,

intubated, hypertonic extremities.

HEENT: Soft fontanelles, sluggish pupil

reaction to light, ETT in place.

RESPIRATORY: Minimally depressed air

exchange and decreased breath sounds

bilaterally (improved after surfactant

admi nistration).

CARDIAC: Normal sinus rhythm . . . .

NEUROLOGIC: Depressed mental status.

Severely decreased muscle tone initially and

hypertonicity noticed after NICU admission.

Seizures noticed (lip smacking and tonic -

clonic seizures on all 4 extr emities > on

the R hand) . . . .

* * *

RESOLVED DIAGNOSES

DIAGNOSIS #1: RESPIRATORY DISTRESS

ONSET: 11/25/ 20 04 RESOLVED: 1/12/2005

* * *

COMMENTS: Developed respiratory distress

at birth. Chest Xrays compatible with HMD

vs pneumonia. Initially severe respiratory

acidosis. Improved with Infasurf x 1. On

vent since birth, self - extubated during

nursing touch - time on 12/5, was extubated

for 19 hrs on nasal cannula but was

reintubated on 12/6 for PC02 70 felt to be

secondary to mucous pl ug. He has no gag

reflex and has poor control of respiratory

secretions reason why he has been kept on

mechanical ventilation. He is still

ventilator dependent, was on ETT CPAP and

after an extubation attempt on 1/2 he failed

oxyhood and was reintubate d on 1/3/05. now

extubated to nasal cannula.

* * *

DIAGNOSIS #3: POSSIBLE SEPSIS

ONSET: 11/25/2004 RESOLVED: 12/6/2004

* * *

COMMENTS: Completed a 10 day course of

antibiotics for suspect sepsis due to

unknown GBS, respiratory distress , and

severe metabolic and respiratory acidosis.

There is no clinical evidence of sepsis at

this time.

* * *

DIAGNOSIS #10: SEVERE HYPOXIC - ISCHEMIC

BRAIN INJURY

ONSET: 11/25/2004 RESOLVED: 1/12/2005

PROCEDURES: cranial ultrasound on

1 1/25/2004 (unofficially no bleed); MRI scan

on 12/3/2004 (findings suggesting ischemic

encephalopathy, normal size ventricles, no

mass effects or midline shift)

COMMENTS: Adequate heart rate not

obtained till 28 - 29 minutes of life. He

presented with s eizures and an abnormal

neurologic exam and abnormal EEG findings.

The pediatric neurologist impression was of

a severe hypoxic ischemic encephalopathy

with multifocal seizures. No clinical

neurologic deterioration has been noted

recently. The MRI was c ompatible with

ischemic encephalopathy. Ped neurologist

has been following the baby with us. No

neurological improvement has been noted

recently. . . . Baby remains unresponsive,

fixed pupils, minimal spontaneous breathing,

does not have any spontaneous movement. No

new changes noted recently. The baby has

been unstable and recommended MRI of the

brain was able to be done due to the

critical condition of the infant.

DIAGNOSIS #11: SEIZURES

ONSET: 11/25/2004 RESOLVED: 1/12/2005

* * *

COM MENTS: The pediatric neurologist

impression is of a severe hypoxic ischemic

encephalopathy with multifocal seizures.

Baby was initially noted to be lip - smacking

shortly after admission to NICU then started

with tonic - clonic movement of all four

extremiti es > on the R hand. Initially

treated with p henobarbital and Versed.

Phenobarb discontinued 11/26. No clinical

seizure activity on P E but on 11/29 EEG

showed diffuse electrical sz. Phenobarb and

Cerebryx started. EEG on 12/1 was unchanged

but occasion al correlation with subtle

finger movement. 12/2 with decerebrate

posturing of UE to deep painful stimuli.

EEG from 12/3 showed seizure activity but

some improvement was reported.

Phenobarbital given x1 then held 2nd level

elevated Cerebryx continued ti ll 12/9

discontinued per pedi - neuro. Depacon added

on 12/6 as recommended by pediatric

neurologist no change before discontinued

12/10. Phenobarb was resumed on 12/8. level

42.3 on 12/11. The dose has been adjusted

as per neurologist. No recent new

neu rological changes or improvement noted.

He continues on phenobarb w/occasional

clinical seizure noted . . . .

* * *

DIAGNOSIS #13: SEVERE METABOLIC ACIDOSIS

ONSET: 11/25/2004 RESOLVED: 12/2/ 2004

COMMENTS: Severe metabolic acidosis at

bir th pH 6.7 HCO3=5.6. Baby received HCO3

bolus x 3 in the OR and several corrections

upon admission to NICU.

* * *

DEATH INFORMATION

DISPOSITION: The patient died on

1/12/2005 at 00 : 52 hours. The cause of

death was Cardio - respiratory arrest. Bab y

Boy "A" Castro is an 48 d /o w/Hypoxic -

ischemic - encephalopathy , seizures, s/p 28 - 29

min full resuscitation, initially w/o a

heart rate; who has been in a vegetative

neurological state, w/intractable seizures

since birth 11/25/04. Baby never tolerated

any feeds and remained in TPN, was extubated

to n/c w/() spontaneous breathing but NO

gag and unable to clear secretions since

baby never had any spontaneous voluntary

movement. Tonight while parents visited

baby was having desaturations and

bradycardia tha t required IPPB, to improve

heart rate and O2 sats. Parents requested

to stop the IPPB, and requested to hold baby

w/O2 N/C. Baby expired almost immediately

of cardiorespiratory arrest at

12:52 a.m. . . . .

9 . David's delivery and hospital course are documented in

his Death Summary, as follows:

BIRTH

DATE: 11/25/2004 TIME: 02:02 hours

WEIGHT: 2.150kg

GEST AGE: 35 weeks GROWTH: AGA

RUPTURE OF MEMBRANES: At delivery.

AMNIOTIC FLUID: Clear. PRESENTATION:

Vertex. DELIVERY: Bo rn in the delivery

room by emergent cesarean section under

spinal anesthesia for maternal hypertension

with increasing cr e atinine.

BIRTH ORDER: Second of twins. APGARS: 3

at 1 minute, 5 at 5 minutes and 6 at 10

minutes. CONDITION AT DELIVERY: Cyano tic

and floppy. TREATMENT AT DELIVERY:

Stimulation, oxygen, oral suctioning, bag

and mask ventilation and endotrachael tube

ventilation.

At birth baby was cyanotic, no respiratory

effort, floppy, bradycardic in the 50's.

Mouth was suctioned with bulb, a nd bag mask

ventilation was started for about 5 minutes

before improvement in color and activity

were seen. Baby was intubated aprox on min

of life 4 - 5 by pediatrician Dr. Torres. No

medication was needed during intervention,

and baby responded well to i ntubation,

oxygen and ambu bag ventilation. Baby

noticed to be floppy despite color and heart

rate improvementansferred stable to

NICU. Initial ABG's showed severe metabolic

acidosis pH=6.9 HCO3=7.4 BE= - 25.

ADMISSION

DATE: 11/25/2004

ADMISSI ON TYPE: Immediately following

delivery. ADMISSION INDICATIONS: Metabolic

acidosis, respiratory distress, possible

sepsis, prematurity and perinatal

depression. Upon admission to NICU

mechanical ventilation was stated. Chest XR

showed reticulogranular pattern and air

bronchograms compatible with HMD vs.

pneumonia. No air leak. Infasurf was given

x 1 with good response. Na bicarbonate

corrections were needed x 3.

ADMISSION PHYSICAL EXAM

OVERALL STATUS: Critical - initial NICU

day. BED: Radiant w armer. TEMP: Stable.

HR: Stable. RR: Unstable: BP: Stable.

URINE OUTPUT: Stable.

CONDITION: on PRVC, breathing above the

ventilator (tachypn e ic), pink color, mild

acrocyanosis.

HEENT: Pupils reactive to light, soft

fontanelles, no bulging.

RESPIRATORY: Minimally decreased air

exchange, initially decreased breath sounds,

improved after Infasurf and mechanical

ventilator sounds heard equally bilaterally.

CARDIAC: Normal sinus rhythm . . . .

NEUROLOGIC: Depressed mental status and

decreas ed muscle tone.

* * *

RESOLVED DIAGNOSES

DIAGNOSIS #1: SEVERE RESPIRATORY DISTRESS

ONSET: 11/25/2004 RESOLVED: 12/7/2004

* * *

COMMENTS: Respiratory distress at birth.

Chest XR compatible with HMD vs pneumonia.

Received Infasurf x 1 with adequate

response. In room air but requiring vent

support due to no spontaneous respirations

breathing with the vent. Poor respiratory

effort more likely due to hypoxic ischemic

ence phalopathy but no deterioration in

respiratory status. He remai ns critically

ill and on high ventilatory support,

unstable and deteriorating due to DIC and

sepsis. During the course of the day the

baby continued to deteriorate clinically and

presented episodes of bradycardia and

decreased SAO2 requiring higher ventil atory

support and multiple doses of epinephrine.

Later in the afternoon he became bradycardic

and did not respond to resuscitative

measures and was declared dead at

3:25 PM. . . .

DIAGNOSIS #2: METABOLIC ACIDOSIS

ONSET: 11/25/2004 RESOLVED: 11/29/2004

MEDICATIONS: Sodium bicarbonate on

11/25/2004.

COMMENTS: Upon admission required Na

bicarbonate corrections x3. Initial ABG's

showed a pH=6.9 HCO3=7.4 BE= - 25, currently

stable.

* * *

DIAGNOSIS #6: POSSIBLE SEPSIS

ONSET: 11 /25/2004 RESOLVED: 12/5/2004

* * *

COMMENTS: Completing a 10 day course of

antibiotics for suspect sepsis secondary to

maternal GBS unknown, respiratory distress

at birth, severe metabolic acidosis. The

blood culture was negative and there is no

clinical evidence of sepsis at this time .

* * *

DIAGNOSIS #10: HYPOXIC - ISCHEMIC BRAIN

INJURY

ONSET: 11/25/2004 RESOLVED: 12/7/2004

PROCEDURES: cranial ultrasound from

11/25/2004 till 12/7/2004(normal)

COMMENTS: Perinatal depression, r equired

bag mask ventilation, intubation and oxygen

in order to improve. Apgar scores were

3/5/6. The baby had presented seizures and

systemic failure and the assessment of the

pediatric neurologist was of severe hypo xic

and ischemic encephalopathy. Neu rologically

he has not changed recently and continues

with an abnormal neurological exam and no

improvement in neuro condition.

DIAGNOSIS #11: SEIZURES

ONSET: 11/25/2004 RESOLVED: 12/7/2004

* * *

COMMENTS: Shortly after admission to NICU

he started with generalized tonic - clonic

seizures. Persistent Sz activity on

phenobarb and Cerebryx correlates with

independent clonic movements of UE, extensor

posturing of UE R>L and gaze deviation per

neurologist Dr. Bustamante. Last EEG from

12/3 showe d worsening EEG with seizure

activity and burst suppression. The

pediatric neurologist impression was of a

severe hypoxic ischemic encephalopathy with

multifocal seizures. Phenobarbital on hold

since 12/1 for level 61.8 down to 29.5 will

not resume per n euro and phosphenytoin level

18.8 on maintenance dose 2.5 mg/kg q 12. An

MRI was not done due to the critical and

unstable condition of the infant.

* * *

DEATH INFORMATION

DISCHARGE TYPE: Died. DATE OF DEATH:

12/7/2004. TIME OF DEATH: 15:25 hours.

CAUSE OF DEATH: Respiratory failure, sepsis

and multisystemic failure . . . .

Coverage under the Plan

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

Plan for infants who suffer a "birth - related neurological

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

oxygen deprivation . . . 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.

1 1 . Here, it is undisputed that Isaac and David suffered

an injury to the brain caused by oxygen deprivation, which

rendered them permanently and substantially mentally and

physicall y impaired. What is disputed is whether the injury

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

the immediate postdelivery period," as required for coverage

under the Plan. § 766.302(2), Fla. Stat.; Nagy v. Florida

Birth - Related Neurol ogical Injury Compensation Association , 813

So. 2d 155 (Fla. 4th DCA 2002). As to that issue, Petitioners

are of the view that the brain injury occurred before delivery,

and since it is undisputed that Mrs. Castro was never in labor

the injury is not cove red by the Plan. In contrast, NICA and

the hospital are of the view that the injury either occurred

during, or continued through, delivery and resuscitation, and is

therefore compensable.

1 2 . As an aid to resolving such issue, Section

766.309(1)(a), Flor ida Statutes, provides that when, as here,

the proof demonstrates "that the infant has sustained a brain

. . . injury caused by oxygen deprivation . . . and that the

infant was thereby rendered permanently and substantially

mentally and physically impair ed , a rebuttable presumption . . .

[arises] that the injury is a birth - related neurological injury,

as defined [by the Plan]." Here, since Mrs. Castro was never in

labor, the presumption is that Isaac's and David's brain injury

occurred in the course of d elivery or resuscitation in the

immediate postdelivery period. See Orlando Regional Healthcare

Systems, Inc. v. Alexander , 909 So. 2d 582 (Fla. 5th DCA 2005).

Consequently, to be resolved is whether there was credible

evidence produced to support a contr ary conclusion and, if so,

whether , absent the presumption , the record demonstrates, more

likely than not, that Isaac's and David's brain injury occurred

during delivery or resuscitation in the immediate postdelivery

period. 10

The timing of the twins' brai n injury

1 3 . To address the timing of the twins' brain injury, the

parties offer ed the medical records relating to Mrs. Castro's

antepartal course, as well as those associated with the twins'

birth and subsequent development. (Petitioners' Exhibit A, ta bs

8 - 11, and Exhibit B). Additionally, the parties offered the

deposition testimony of Dr. Daniel, a physician board - certified

in obstetrics and gynecology; Adré du Plessis, M.D., a physician

board - certified in pediatrics, and neurology with special

compe tence in child neurology; Steven Chavoustie, M.D., a

physician board - certified in obstetrics and gynecology;

Michael Katz, M.D., a physician board - certified in obstetrics

and gynecology, and maternal - fetal medicine; and Donald Willis,

M.D., a physician boa rd - certified in obstetrics and gynecology,

and maternal - fetal medicine. (Petitioners' Exhibit A, tabs 3 - 7)

The testimony of Doctors Daniel, du Plessis, and Chavoustie was

supportive of Petitioners' view, and the testimony of Doctors

Katz and Willis was s upportive of the views of NICA and the

hospital.

1 4 . The medical records and the testimony of the parties'

experts have been carefully considered. So considered, it must

be resolved that there was credible evidence (through the

testimony of Doctors Danie l, du Plessis, and Chavoustie) to

rebut the presumption established by Section 766.309(1)(a),

Florida Statutes, and that , absent the presumption, the record

failed to demonstrate, more likely than not, that any injury the

twins may have suffered during del ivery or immediate

postdelivery resuscitation contributed significantly to the

profound neurologic impairment they suffered. I ndeed, the more

compelling proof supports a contrary conclusion.

1 5 . In so concluding, it is notable that the twins' brain

injur y started sometime after 4:07 p.m., November 24, 2004, when

fetal reserves were lost, and the twins ability to compensate

for a lack of oxygen failed , and that, given the severe

depression the twins demonstrated at birth (cyanotic, apneic,

floppy, and prof oundly bradycardic), consistent with injury to

the brain stem, the more robust level of a newborn brain; the

need for intensive delivery room resuscitation (with intubation

and, in the case of Isaac, advanced CPR) , likewise consistent

with injury to the br ain stem ; and the profound acidotic state

in which they presented , it is likely, more so than not, that

t he twins suffered profound brain damage well prior to delivery

( which was quick and without complication ) , that accounts for

the severe neurological im pairment (mental and physical) they

demonstrated at birth. Consequently, since Mrs. Castro was not

in labor when the profound brain injury most likely occurred,

the twins were not shown to have suffered a "birth - related

neurological injury," as defined by the Plan.

CONCLUSIONS OF LAW

1 6 . The Division of Administrative Hearings has

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

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

1 7 . The Florida Birth - Related Neurological Injury

Compensation P lan 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.

1 8 . The injured "in fant, her or his personal

representative, parents, dependents, and next of kin," may seek

compensation under the Plan by filing a claim for compensation

with the Division of Administrative Hearings. §§ 766.302(3),

766.303(2), 766.305(1), and 766.313, Fla. Stat. The Florida

Birth - Related Neurological Injury Compensation Association,

which administers the Plan, has "45 days from the date of

service of a complete claim . . . in which to file a response to

the petition and to submit relevant written informati on relating

to the issue of whether the injury is a birth - related

neurological injury." § 766.305(4), Fla. Stat.

1 9 . If NICA determines that the injury alleged in a claim

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

compensation to th e claimant, provided that the award is

approved by the administrative law judge to whom the claim has

been assigned. § 766.305(7), Fla. Stat. However, if a dispute

exists, as it does in the instant case, the dispute must be

resolved by the assigned admin istrative law judge in accordance

with the provisions of C hapter 120, F lorida Statutes.

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

20 . In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the injury claimed is a

birth - related neurological injury. If the

claimant has demonstrated, to the

satisfaction of the administrative law

judge, that the infant has sustained a brain

or spinal cord injury caused by oxyg en

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

neurological injury as defined in s.

766.30 3(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

sustained a birth - related neurological injury and that

obstetrical services were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

2 1 . Pertinent to this case, "birth - related neurological

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

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case of a

multiple gestation, a live infant weighing

at least 2,000 grams at birth caused by

oxygen deprivation or mechanical injur y

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.

22. As the proponent of the issue, the burden rested on

the hospital and NICA to demonstrate that the twins suffered a

"birth - related neurological injury." § 766.309(1)( a), Fla.

Stat. See also Balino v. Department of Health 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.") .

2 3 . Here, the proof failed to support the conclusion that,

more likely than not, the twins' suffered an " injury to the

brain . . . caused by oxygen deprivation . . . occurring in the

course of labor, delivery, or resuscitation in the immediate

postdelivery per iod . . . [which rendered them ] permanently and

substantially mentally and physically impaired . " Consequently,

Isaac and David do not qualify for coverage under the Plan.

§ 766.302(2), Fla. Stat. See also Humana of Florida, Inc. v.

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

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

liabilities, it should be strictly construed to include only

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

Florida Birth - Related Neu rological Injury Compensation

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

2 4 . Where, as here, the administrative law judge

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

neurological injury . . . he [is required to] enter an ord er [to

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

immediately to the parties by registered or certified mail."

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

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

Stat.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by

Milagros Magaly Castro and William Marcelo Castro, as Personal

Representatives of the Estates of Isaac Castro and Dav id Castro,

deceased twin minors, is dismissed with prejudice.

DONE AND ORDERED this 27th day of June, 2006 , in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative H earings

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 27th day of June, 2006 .

ENDNOTES

1/ The transcript contains a scriveners' error at page 7, line

5, in that it fails to note that the parties' stipulation

included an agreement that Isaac and David were rendered both

substantially mentally and physically impaired.

2/ Pet itioners' Exhibit A is a binder which includes 11 tabbed

items, identified in the index, as follows: Item 1, Revised

Final Joint Pre - Hearing Stipulation; Item 2, Petitioners' Motion

to Strike or for Evidentiary Inference Against Intervenor

Palmetto Genera l Hospital; Item 3, Deposition Transcript of

Dr. Monica Daniel; Item 4, Deposition Transcript of Adr é du

Plessis; Item 5, Deposition Transcript of Dr. Steven Chavoustie;

Item 6, Deposition Transcript of Dr. Michael Katz; Item 7,

Deposition Transcript of Dr . Donald Willis; Item 8, Baby "A" and

Baby "B" delivery outcome 11/25/04; Item 9,

N otes/Orders/Progress and Nursing Records 24 Hours Prior to

Delivery; Item 10, Death Summary - Isaac (Baby A); and Item 11,

Death Summary - David (Baby B).

3/ Petitioners' Exhibit B is a box of medical records, that

contains Milagros Castro's medical records from Palmetto General

Hospital (Volumes I and II), Isaac's (Baby A's) medical records

from Palmetto General Hospital (Volumes I and II), and David's

(Baby B's) medical r ecords from Palmetto General Hospital (one

volume).

4/ Post - hearing, Petitioners also filed the exhibits to

Dr. Katz's deposition. Those exhibits have been placed at the

back of Dr. Katz's deposition which is Item 6 of Petitioners'

Exhibit A.

5/ The f etal monitor strips run from 1:01 p.m., to

approximately 1:45 p.m., and from 3:35 p.m., to approximately

4:07 p.m., November 24, 2004.

6/ During her admission Mrs. Castro underwent a series of

biophysical profiles that were consistently reassuring for fe tal

well - being, with the last test being done November 23, 200 4 .

Fetal monitoring during her admission was likewise reassuring

for fetal well - being.

7/ The entry at 9:10 p.m., regarding normal fetal movement and

the entry at 1:00 a.m., regarding reassur ing fetal heart tones

are suggestive of continued fetal well - being, but insufficient

to render the issue free from doubt.

8/ An Apgar score is a numerical expression of the condition of

a newborn infant, and reflects the sum points gained on

assessment o f heart rate, respiratory effort, muscle tone,

reflex irritability, and color, with each category being

assigned a score ranging from the lowest score of 0 to a maximum

score of 2. See Dorland's Illustrated Medical Dictionary, 28th

Edition, 1994. Here, a t one minute, Isaac's Apgar score totaled

1, with heart rate being graded at 1 (less than 100 beats per

minute), and all other criteria being graded at 0; at five, ten,

fifteen, twenty, and twenty - five minutes, Isaac's Apgar score

totaled 2, with heart rat e and color being graded at 1 each, and

all other criteria being graded at 0; and at twenty - eight

minutes Isaac's Apgar s c ore total ed 5, with heart rate being

graded at 2 (greater than 100 beats per minute), reflex

irritability, color, and respiratory effo rt being graded at 1

each, and muscle tone being graded at 0.

9/ At one minute, David's Apgar score totaled 3, with heart

rate, reflex irritability, and color being graded at 1 each, and

respiratory effort and muscle tone being graded at 0; at five

min utes David's Apgar score totaled 5, with heart rate being

graded at 2, muscle tone, reflex irritability, and color being

graded at 1 each, and respiratory effort being graded at 0; and

at ten minutes, David's Apgar score totaled 6, with heart rate

being gr aded at 2, and all other criteria being graded at 1.

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

facilitate the determination of a particular action in which the

presumption is applied, rather than 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 bur den 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 s ufficient 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 So. 2d

596 (Fla. 1987), and Insurance Comp any 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 ) , wherein it was stated:

Presumptions disappear when facts appear;

and facts are deemed to appear when evidence

is introduced from which they may be found.

COPIES FURNISHED :

(Via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7005 1820 0002 9840 6697)

Jorge E. Silva, Esquire

Paul Jon Layne, Esquire

Silva & Silva

236 Valencia Avenue

Coral Gables, Florida 33134

(Cer tified Mail No. 7003 1010 0001 2044 4623)

Donald H. Whittemore, Esquire

Phelps Dunbar, LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

(Certified Mail No. 7005 1820 0002 9840 6574)

Steven J. Mitchel, Esquire

Schell, Mitchel & Cooley, L.L.P.

1830 Main Street, Suite 100

Weston, Florida 33326

(Certified Mail No. 700 5 1820 0002 9840 6598 )

Pablo E. Uribasterra, M.D.

1613 North Harrison Parkway, Suite 200

Sunrise, Florida 33323

(Certified Mail No. 7005 1820 0002 9840 6611)

Monica Daniel, M.D.

1613 North Harrison Parkway, Suite 200

Sunrise, Florida 33323

(Certified Mail No. 7005 1820 0002 9840 6628)

Carlos Sarduy, M.D.

1613 North Harrison Parkway, Suite 200

Sunrise, Florida 33323

(Certified Mail No. 7005 1820 0002 9840 6635)

All Women's Heal thcare of

South Florida, Inc.

1613 North Harrison Parkway, Suite 200

Sunrise, Florida 33323

(Certified Mail No. 7005 1820 0002 9840 6642)

Dade Women's Healthcare, d/b/a

Castillo - Plaza & Associates, M.D., Inc.

1613 North Harrison Parkway, Suite 200

Sunr ise, Florida 33323

(Certified Mail No. 7005 1820 0002 9840 6659)

Alfredo Rodriguez - Martirena, M.D.

7100 West 20th Avenue

Hialeah, Florida 33016

(Certified Mail No. 7005 1820 0002 9840 6666)

Sunlife Prenatal Associates of Hialeah

7100 West 20th Avenue , Suite 107

Hialeah, Florida 33016

(Certified Mail No. 7005 1820 0002 9840 6673)

Lifemark Hospitals of Florida, Inc.

d/b/a Palmetto General Hospital

2001 West 68th Street

Hialeah, Florida 33016

(Certified Mail No. 7005 1820 0002 9840 6680)

Charlene Will oughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7005 1820 0002 9840 6604)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affecte d by this F inal O rder is entitled

to judicial review pursuant to Sections 120.68 and 766.311,

Florida Statutes. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such proceedings are commenced by

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

of the Division of Administrative Hearings and a copy,

accompanied by filing fees prescribed by law, with the

appropriate District Court of Appeal. See Section 766.311,

Florida Statutes, and Florida Birth - Related Neurologi cal 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.