06-002422N Robert Bennett And Tammy Bennett, Individually And As Parents And Natural Guardians Of Tristan Bennett, A Minor Child vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, October 3, 2007.

Summary: The infant`s brain injury most likely post-dated the immediate post-delivery period. The petition is dismissed with prejudice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT BENNETT AND TAMMY )

BENNETT, INDIVIDUALLY AND AS )

PARENTS AND NATURAL GUARDIANS )

OF TRISTAN BENNETT, A MINOR )

CHILD , )

)

Petitioner s , )

)

vs. ) Case No. 06 - 2422N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION AS SOCIATION , )

)

Respondent, )

)

and )

)

WILLIAM H. LONG, M.D., ST. )

VINCENT'S MEDICAL CENTER , INC., )

and NORTH FLORIDA OBSTETRICAL )

AND GYNECOLOGICAL ASSOCIATES, )

P.A., )

)

Intervenor s . )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings

(DOAH), by Administrative Law Judge William J. Kendrick, held a

hearing in the above - styled case on July 9, 2007, in

Tallahassee, Florida.

APPEARAN CES

For Petitioners: James W. Gustafson, Jr., Esquire

Searcy Denney Scarola Barnhart

& Shipley, P.A.

The Towle House

517 North Calhoun Street

Tallahassee, Florida 32301

For Respondent: M. Mark Bajalia, Esquire

Brennan, Manna & Diamond

76 South Laura Street, Suite 2110

Jacksonville, Florida 32202

For Intervenor St. V incent's Medical Center, Inc.:

Martin B. Unger, Esquire

Stephanie S. Klein, Esquire

The Unger Law Group, P.L.

Post Office Box 4909

Orlando, F lorida 32802 - 4909

For Intervenors William H. Long, M.D., and North Florida

Obstetrical and Gynecological Associates , P.A.:

William Peter Martin, Esquire

Dennis, Jackson, Martin & Fontela, P.A.

Post Office Box 15589

Tallahassee, Florida 32317 - 5589

STATEMENT OF THE ISSUES

1. Whether Tristan Bennett, a minor, qualifies for

coverage under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan).

2. Whether the hospital and the participating physician

provided the patient notice, as contemplated by Section 766.316,

Florida Statutes, or whether notice was not required 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 July 12, 2006, Robert Bennett and Tammy Bennett,

individually and as parents and natural guardians of

Tristan Bennett (Tristan), a minor, filed a petition with the

Division of Administrative Hearings (DOAH) to resolve whether

Tristan qualified for coverage under the Plan, and whether the

hospital and the participating physician complied with the

notice provisions of the Plan. 1

DOAH served the Florida Birth - Related Neurological Injury

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

July 12, 2006, and on October 3, 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 t hat Tristan 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 the issue. Requests for leave to intervene

filed on behalf of William H. Long, M.D., St. Vincent's Medical

Center, Inc. (St. Vincent's Medical Center), and North Florida

Obstetrical and Gynecological Associates, P.A. (North Florida

OB/GYN) were granted by orders of August 1, 2006, October 4,

2006, and January 10, 2007, respectively.

Give n the issues raised, a hearing was scheduled for

April 11 and 12, 2007, then rescheduled for July 9 - 13, 2007, to

address compensability and notice, and leaving the amount of an

award, if any, to be addressed in a separate proceeding.

§ 766.309(4), Fla. St at

At hearing, Exhibits 1 - 32, as identified in the Notice of

Filing Stipulated Record, filed July 5, 2007, were received into

evidence , as well as Dr. Long's (Doctor's) Exhibits 1 - 3 and

St. Vincent's Medical Center's (Hospital's) Exhibit 1.

Petitioners ca lled Tammy Bennett as a witness, and Intervenors

presented the testimony of Gary Hawkins, M.D.

The transcript of the hearing was filed July 31, 2007, and

the parties were initially accorded until August 10, 2007, to

file proposed orders. However, at the p arties' request the time

for filing proposed orders was extended to August 17, 2007. The

parties elected to file such proposals and they have been duly -

considered.

FINDINGS OF FACT

Stipulated facts

1. Robert Bennett and Tammy Bennett are the natural

par ents of Tristan Bennett, a minoristan was born a live

infant on September 26, 2001, at St. Vincent's Medical Center, a

licensed hospital located in Jacksonville, Florida, and her

birth weight exceeded 2,500 grams.

2. Obstetrical services were deliver ed at Tristan's birth

by William H. Long, 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.

Mrs. Bennett's antepa rtum course and Tristan's birth

The accident

3. Mrs. Bennett's antepartum course was without apparent

complication until approximately 7:05 a.m., September 26, 2001,

when Mrs. Bennett was involved in a motor vehicle accident in

Mac c lenny, Florida, whe n t he right front tire of the SUV she was

driving at low speed slid into a drainage ditch in front of her

home and struck a culvert, flattening the tire. 2 At the time,

the fetus was at term (38 weeks' gestation), with an estimate d

delivery date of October 8 , 2001. However, given a previous

cesarean section and breech presentation, Mrs. Bennett was

scheduled to have a cesarean section at St. Vincent's Medical

Center on October 3, 2001.

4. Baker County Emergency Medical Services (EMS) responded

to the scene, and following arrival (at 7:15 a.m.) noted a chief

complaint of lower back and abdominal pain. Assessment revealed

the abdomen to be soft, but tender.

5. Mrs. Bennett was immobilized supine on a backboard,

provided oxygen ( O 2 ) by nasal cannula (nc), and transported to Ed

Fraser Memorial Hospital (also known as Baker County Community

Hospital) in Macclenny. 3

The Ed Fraser Memorial Hospital admission

6. Mrs. Bennett arrived at Ed Fraser Memorial Hospital at

7:33 a.m. Initial vital signs were obtained a t 7:42 a.m.,

showing a blood pressure of 134/101, heart rate of 108, and

oxygen saturation of 97%. Chief complaint when triaged at

7:45 a.m., was noted as "MVA Restrained G[ravida]3 P[ara]2

back/abd[ominal] pain." She was noted to be alert and

cooperativ e, with coherent speech, and physical examination was

within normal limits.

7. Cheryl Kennedy, R.N., an ER nurse in the Ed Fraser

Memorial Hospital emergency department, used a h andheld Doppler

to evaluate fetal heart tones "[i]mmediately upon the patient

arriving in the emergency room." Mrs. Kennedy testified that

her note "FHT 118 (placenta)" on the Triage Sheet meant that

"[t]he sound from the Doppler was more indicative that that was

the placenta that we were picking the heart rate up from, versus

fro m the fetus." Stated otherwise, the entry most likely

reflected a maternal heart rate and not a fetal heart tone

(FHT). (Exhibit 14, pages 10, 11, and 42).

8. At 8:00 a.m., Mrs. Bennett was evaluated by the

emergency room physician, Wayne Oberti, M.D. Dr. Oberti's

history documented a complaint of lower back pain, denial of

abdominal pain, minimal chest tightness, no neck pain, no change

in vision, and the development of some nausea, vomiting and

diarrhea over the course of her admission. Dr. Obert i's

physical examination noted the abdomen as soft, nontender; that

movement of the right lower extremity precipitated low back

pain; and that he was unable to identify fetal heart beat (FHB)

with handheld Doppler. 4 Other findings were not shown to be

remarka ble. A one - view lumbar spine x - ray and pregnancy

sonogram for fetal heart rate (FHR) were ordered by Dr. Oberti.

9. Mrs. Bennett was removed from the backboard after

Dr. Oberti's examination, and at 8:10, following an episode of

vomiting, was taken to x - ray via stretcher, where she had an x -

ray of her lumbar spine (that was unremarkable ) . Then

Mrs. Bennett was moved into the hallway, where she waited on the

stretcher for the sonogram. There she had an episode of nausea,

vomiting and diarrhea, was cleane d and taken into a room for the

sonogram, and then returned to the emergency room at 9:00 a.m.

10. The extent of Mrs. Bennett's sonogram is a subject of

controversy. One film/sheet containing six sonogram images

exists for the sonogram study. Each of th e images on the film

contain the time the image was taken. The first image was timed

at 8:45 a.m., and the last image was timed at 9:00 a.m. Two of

the six images contain a fetal heart rate, the first reading

being 146 beats per minute and the second rea ding, obtained at

9:00 a.m., being 133 beats per minute, all within normal limits

(120 to 160 beats per minute). However, Jessica Knabb, the

ultrasound technician, testified it was likely more images were

obtained, since there were usually four to five sh eets for such

a study. (Exhibit 15, page 7). Moreover , at the time it was

the hospital's policy to provide the original films if a request

to review the study was made by third parties , and the study was

requested on a number of occasions. (Exhibit 21). Therefore,

it is likely that some of the films from the sonogram study

(taken after Mrs. Bennett's episode of nausea and before the

film that exists for 8:45 a.m., to 9:00 a.m.) are missing.

11. Although the film of record documents a reassuring

fetal h eart rate, Dr. Oberti testified that he was advised by

"whoever answered the phone in the ER" that the sonogram study

revealed a heart rate in the 80s, and he so documented the

report on the Emergency/Outpatient Department record as "FHR

80s" and initiated Mrs. Bennett's transfer via helicopter

(LifeFlight) to St. Vincent's Medical Center for presumed "fetal

distress." The Physician Certificate of Transfer, signed by

Dr. Oberti at 9:10 a.m., noted the availability of labor and

delivery services, with fetal monitoring and back - up surgical

services at St. Vincent's Medical Center, as the reasons for

transfer. (Exhibit 16, pages 22, 23, and 79; Exhibit 3).

12. Before transfer, and following her return to the

emergency room at 9:00 a.m. , Mrs. Bennett was giv en O 2 via nc,

normal saline (NS) by IV for hydration, Phenergan for nausea,

and a Foley catheter was placed in preparation for her transfer

to St. Vincent's Medical Center by LifeFlight. Notably, the

records of Baker C ounty EMS and Ed Fraser Memorial Hosp ital make

no mention of Mrs. Bennett being in labor , Dr. Oberti and

Mrs. Bennett were of the opinion she was not in labor, 5 and

monitoring on presentation to St. Vincent's Medical Center,

discussed infra , provides support for their opinions.

LifeFlight

13. LifeFlight arrived at Ed Fraser Memorial Hospital at

9:25 a.m., and departed with Mrs. Bennett at 9:41 a.m. The

LifeFlight records note that Mrs. Bennett complained of high

abdominal pain and low back pain following a car accident at a

low rate of speed in which she was a restrained driver. The

LifeFlight record then states:

. . . Pt was taken to x - ray for a sonogram

at which FHT were noted to be in the 80's

for about a 10 min. period. . . . It was

determined that there was fetal distress and

LifeFligh t was called for emergent

transport.

Notably, the LifeFlight records do not reflect where the

information regarding the "10 min. period" of fetal bradycardia

came from, and LifeFlight personnel did not recall who provided

the information. Moreover, Dr. O berti denied that a fetal heart

rate in the 80s was ever reported for a 10 minute period , and

the hospital records contain no such documentation .

(Exhibit 16, pages 32 and 33 ; Exhibit 3 ) .

14. The LifeFlight records also state that Dr. Oberti

performed a vaginal/cervical examination of Mrs. Bennett at Ed

Fraser Memorial Hospital:

. . . Cervical exam done by Dr. Oberti at

0800 with report of 2cm dilation and no

drainage or bloody show.

However, Dr. Oberti denied having performed a vaginal

examination of Mrs. Benne t t, and the hospital records contain no

such documentation. (Exhibit 16, pages 38, 53, and 74;

Exhibit 3 ).

15. Here, there is no reason to question the integrity and

professionalism of the LifeFlight paramedics. Indeed, they ha d

no apparent re ason to fabricate the information reported and the

most likely source of the information was hospital personnel.

However, under the circumstances, that does not make the

information reliable and it remains hearsay which, there being

no apparent exception to its admissibility, cannot support a

finding of fact. § 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 woul d be admissible over objection in civil

actions.")

St. Vincent's Medical Center

16. Mrs. Bennett's transfer via LifeFlight was without

incident, and at 9:59 a.m., she was admitted to labor and

delivery at St. Vincent's Medical Center and placed on externa l

fetal monitoring. At the time, an "irritable" uterus was noted,

with contractions of mild intensity, lasting 30 - 45 seconds,

consistent with placental abruption (at an unknown stage) and

not labor. 6 Fetal monitoring was reassuring, with a fetal heart

ra te baseline in the 150s, with average long - term variability

and accelerations present.

17. Mrs. Bennett was continuously monitored until

12:47 p.m., when fetal monitoring was discontinued and she was

taken to the operating room for a cesarean section deli very.

During that period, Mrs. Bennett's contractions were always

mild, and did not increase in intensity , did not increase in

duration , and demonstrated a pattern consistent with an

irritable uterus due to placental abruption, unlikely to produce

cervica l change. 7 Stated otherwise, the record reveals that,

more likely than not, Mrs. Bennett was not in labor , when

monitoring was discontinued at 12:47 p.m., or , there being no

persuasive evidence to support a contrary conclusion,

thereafter . 8 During the sa me period, fetal monitoring continued

to reveal a reassuring fetal heart rate, with a fetal heart rate

baseline in the 160s, with average long - term variability. 9

18. Of note, Dr. Long wrote an Admit Note at 12:15 p.m.,

which stated:

C[hief]/c[omplaint]/ A [uto mobile ]A[ccident]

this AM H[istory] 31 y[ear] o[ld] G[ravida]3

P[ara]2 L[ast]M[enstrual]P[eriod] = 12 - 31 - 00

= EDC 10 - 8 - 01 [with]

E[stimated]G[estational]A[ge]38 wks

S[tatus]/P[ost] previous

C[esarean]/S[ection] involved in single car

A[uto mobile ]A[ccid ent] this AM [with] blunt

trauma from steering wheel to abd[omen]. Pt

was taken by rescue to Frazier Memorial Hosp

where eval showed no evidence of

sig[nificant] trauma but ? FHT to 80

B [eats] P[er]M[inute]. Pt sent to St V's by

helicopter. On arrival he re

F[etal]H[eart] T[ones] in 150's. Pt

c[omplained]/o[f] uterine c[ontraction] &

vague discomfort. She has sl[ight] lower

back pain. Fetus is active. No vag[inal]

bleeding or ROM.

P[ast]M[edical]H[istory] Migraines . . .

Exam [Blood pressure] 131/86 [ Pulse] 87

[ Temperature] 99.2 {Respirations] 18

F[etal]H[eart]T[ones] 150 - 160's . . .

Abd[omen] F[undal]H [eight][consistent with]

term [gestation] Breech Sl[ightly] tender

diffusely. C[ervi]x Post[erior] 1 - 2 [cm

dilated] 30[% effaced] - 3 [station] BR[eech]

Ext(remities] w[ithin]n[ormal]l[imits]

E[lectronic]F[etal]M[onitor] [shows] mild

[every] 1 - 2 min ctx F[etal]H[eart]T[ones]

160.

Ass[essment]: Previous C[esarean]/S[ection]

at term; Breech; A[uto mobile ]A[ccident] with

? abruption.

Plan: Will proceed with repeat C/S . . .

(Exhibit 7; Exhibit 20, pages 40 - 42) .

19. Of further note, Dr. Long wrote an addendum at

12:40 p.m., which stated:

Pt has had no urine output since admission.

Foley has been replaced [with] only small

am [ ount ] of blood tinged fluid.

U[ltra]/S[ound] ? [shows] no fluid vis[ible]

in bladder.

* * *

Ass[essment]: No urine output. Prob[abl e ]

adeq[uate] hydration R[ule]/O[ut] Bladder

injury; R[ule]/O[ut] developing anemia ?

hypovolemia ? ?U[rin ary ]O[utput].

Pl[an]: Will repeat CBC, PT PTT. Will

proceed [with] C[esarean]/S[ection] &

abd[ominal] exploration & eval[uat ion ]

g[enito]u[rinary] for poss[ible] trauma.

20. With regard to Tristan's delivery, the medical records

reveal that at 1:16 p.m., the operation started (the incision

w as made/delivery began); at 1:21 p.m. Mrs. Bennett's membranes

were ruptured, with clear fluid noted; and at 1:22 p.m. , Tristan

was delivered without difficulty or trauma. Evidence of a

partial placental abruption was noted.

21. At delivery, Tristan did not cry, had minimal

respiratory effort, and required resuscitation, with bulb, free

flow oxygen, mechanical suction, and bag and mask ambu. Apgar

scores of 6 and 8 were reported at one and five minutes

respectively. 10 Cord bl ood gas revealed profound m etabolic

acidosis, with an arterial cord pH of 6.76, PC O 2 51.2, PO 2 of 17,

and a base excess (BE) of - 28. Venous cord pH was reported as

7.18, PCO 2 as 46.6, PO 2 as 20 and BE as - 10.3.

22. Following delivery, Tristan was transferred to the

newborn nurse ry, whe re she was received at 1:45 p.m., and placed

on a heated warming table. Initial assessment noted slight

wetness throughout lung fields, bilateral chest rise, tach yp nea,

no nasal flaring, occasional expiratory grunting, no

retractions, pale pink col or with slight acrocyanosis, and

improving tone. Arterial b lood gas collected at 1: 47 revealed a

pH of 7.14, PO 2 of 90, PCO 2 of 31.7, and BE of - 16.4. Under the

circumstances, Tristan was transferred to the special care

nursery for further management, du e to moderate respiratory

distress and metabolic acidosis.

istan was admitted to the special care nursery at

2:10 p.m., and placed on a radiant warmer. Initial assessment

noted oxygen saturation (SaO 2 ) at 97% on room air; color pale,

pink; mild g runting, with slight retractions; and moderate

lethargyistan was provided respiratory support ( NS bolus,

free flow oxygen, and O 2 via nc) and bicarbonate therapy; her

respiratory distress and metabolic acidosis resolved fairly

quickly; and by 9:30 p.m ., her respiration was noted as

unlabored, skin remained pale/pink, and she was sleeping

quietly.

Tristan's subsequent neonatal course

24. The medical records related to Tristan's subsequent

neonatal course reveal that prior to her pulmonary arrest on

O ctober 3, 2001, Tristan suffered from renal failure and acute

tubular necrosis (ATN), with resulting oliguria, fluid

retention, and hyponatremia; respiratory distress; elevated

liver enzymes; and was placed on empiric antibiotics for

possible sepsis. Howe ver, while Tristan's metabolic acidosis

and multi - organ system failure support the conclusion she

suffered a hypoxic ischemic insult before, during, and likely

immediately following delivery, physician progress notes during

the days following her delivery repeatedly document the absence

of neurologic involvement or neurological damage. Pertinent

entries read:

[9/28/01]

PE: pink, alert, active . . . appears

clinically stable.

[9/28/01 3:15 p.m.]

Neuro grossly intact, symmetric exam, no

focal deficits . . . Suspect renal

failure/ATN, and probably . . . hyponatremia

. . . Suspect must have suffered some

asphyxia damage in MVA.

[9/29/01 7:45 a.m.]

Neuro - Active Alert . . .

[9/30/01 5:30 p.m.]

No evidence of CNS [central nervous system]

dysfunction at p resent.

[10/1/01 10:05 p.m.]

Neuro grossly intact . . . (8) Asphyxia -

i nfant [with] S[ymptoms] C[onsistent]/w[ith]

asphyxial/hypoxic organ damage. Remains in

ATN, olig uric phase, [with] blood, pro[ein]

in urine. Creatinine cont to increase.

LFT's al so elevated, though actually

improving.

No other organ damage evident @ this time.

* * *

(10) CNS - No neuro abnormalities

noted . . . .

[10/2/01 11:45 a.m.]

No focal neuro deficits,

Active & Alert . . . .

(8) Asphyxi a : Multiorgan failure . . . .

(10) CNS No obvious neuro abnormalities.

[10/3/01 a.m.]

#8 Asphyxia : Multiorgan involvement . . . .

No evidence of CNS involvement.

25. On October 3, 2001, at approximately 9:30 a.m., the

Special Care Nursery Flow Sheet documents that Trista n suffered

from a pulmonary hemorrhage, with frank b lood noted orally, and

a moderate amount of blood was suctioned by bulb. At

10:30 a.m., Tristan was noted to be apneic (not breathing) , with

a heart rate below 80 beats per minute and slowly decreasing;

oxygen saturation (SaO 2 ) was decreasing to the 40 percent (%)

range; and a large amount of frank blood was noted coming from

the mouth. At 11:00 a.m., Tristan was intubated, placed on a

ventilator, and received transfusions of red blood cells and

fresh fr ozen plasma beginning at 11:18 a.m. and 11:30 a.m.,

respectively.

26. At 3:00 p.m., Tristan's heart rate was noted in the

40s, with saturations at 45%, and suctioning obtained a large

amount of blood - tinged mucous. At 3:23 p.m., Tristan's heart

rate wa s 53, saturations decreased from 40% to 23%, and CPR,

with Ambu and chest comparisons, was begun. At 3:26 p.m., CPR

was stopped; at 3:27 p.m., heart rate was noted at 77 and

saturations at 68%; and at 3:29 p.m., heart rate was noted at

90, slowly increasi ng to 108, and saturations at 65%istan's

arterial blood gas collected at 3:34 p.m., showed a pH of 7.03

and a BE of - 12.2. At 3:39 p.m., a large amount of thick,

blood - tinged mucous was again suctioned, and at 3:43 p.m., more

blood - tinged mucous was suctioned.

27. At 3:48 p.m., Tristan's heart rate had decreased to

28, and her saturations to 39%. By 3:55 p.m., Tristan's heart

rate had increased slowly to 66, and saturations to 50%, and at

3:istan's heart rate had increased to 132, and saturat ions

to 89%. Arterial blood gas collected at 4:10 p.m., showed a pH

of 6.88 and a BE of - 23.5.

istan remained critically unstable throughout the

rest of the day and evening of October 3, 2001, and between

11:20 p.m., and 11:30 p.m., staff noted t he likely onset of

seizure activity ("Baby having stiffening of legs & arm

trembling."). Physician's Progress notes document additional

neurologic abnormalities following the October 3 arrest and

resuscitation:

[10/4/01 11:20 a.m.]

Possible seizure last night . . .

#10 CNS: Had no obvious CNS dysfunction

till last night.

[10/5/01 11:00 a.m.]

(10) CNS tremors on PB [Phenobarbital] . . .

EEG in progress. Dr. Gama consulted office

aware.

(A) ? Seizures Encephalopathy?

(P) Neuro consulted . . . CT when stable.

29. A neurological consult by Dr. Gama on October 5, 2001,

describes Tristan's hospital course leading up to the October 3,

2001, arrest and then state s :

The baby developed thrombocytopenia and then

progressively started bleeding with

associ ated pulmonary bleeding. This was

controlled with appropriate ventilatory

support; however, a second episode of

pulmonary hemorrhage occurred, this time

associated with significant decline and

requiring some resuscitation. This occurred

on 10/3. The pat ient following this was

noted to have some jerking movements of her

extremities which were easily controlled

with pressure. However because of her

clinical decline, it was felt that this

represented seizure activity. The baby was

bloused with phenobarbit al. The level was

followed but because of recurrence of these

symptoms, the patient was rebolused today.

The patient's phenobarbital is 23 today. An

electroencephalogram has been obtained but

is still pending in its results. Neurologic

consultation is obtained.

* * *

PHYSICAL EXAMINATION:

The patient's examination demonstrates a

head circumference of 33.5 cm. The baby is

sedated, intubated, and with an umbilical

catheter in place. The head demonstrates a

normotensive anterior fontanelle. The

sut ures are unremarkable. There is some

scalp edema secondary to slight fluid

overload most likely secondary to her renal

disease process. Pupils were 1 mm and

equal. Doll's eyes were present. The

patient's sucking reflex is decreased.

Rooting reflex is decreased. She is

intubated through her mouth. The patient's

motor examination shows that she is floppy

with decreased muscle tone throughout,

retraction response is absent, head control

is absent, motor reflex is absent. The baby

withdraws extremities to touch. The deep

tendon reflexes are hypoactive. Babinski

could not be elicited. Palmar and plantar

grasp are decreased. Spine shows no

particular abnormalities . . . .

IMPRESSION

1. New onset seizures most likely secondary

to multiple factors inc luding:

a. Status post pulmonary hemorrhage.

b. Hypoxic ischemic encephalopathy.

c. Metabolic as well as possible

dysmorphogenic causes.

d. Rule out central nervous system

hemorrhage.

2. Acute tubular necrosis secondary to

hypotension, metab olic acidosis and possibly

hypoxemia.

3. Live r dysfunction.

4. Disseminated intravascular coagulation.

5. Status post metabolic acidosis.

6. Status post hypertension.

7. Status post maternal motor vehicle

accident and trauma . . . .

30. CT sca n performed October 29, 2001, showed multicystic

encephalomalacia of the cortex. EEG's performed October 5,

2001, October 8, 2001, October 17, 2001, and November 2, 2001,

were all abnormal, showing background disorganization suggestive

of diffuse cerebral dysfunction.

istan was discharged home on November 14, 2001, with

follow - up appointments with her primary care physician

(Carithers Pediatrics), as well as nephrology (for renal

status), neurology (Dr. Gama), and physical and occupational

therapy.

32. Thereafter, on November 27, 2001, Dr. Gama reported

the results of a follow - up neurologic evaluation to Tristan's

pediatrician (Dr. Julie Baker), and concluded:

In general, it is my opinion that Tristan is

status post severe perinatal distress with

h ypoxic ischemic encephalopathy, metabolic

acidosis, associated with coagulopathy and

complicated with one cardiac arrest

requiring resuscitation while at the special

care nursery. The result of all these

complications is culminated with what

appears to be a severe hypoxic ischemic

encephalopathy with multicystic

encephalomalacia and seizure disorder . . .

(Exhibit 10) .

Coverage under the Plan

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

Plan for infants who suffer a "birth - related neurologi cal

injury," defined as an "injury 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." 11 § 766.302(2),

Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat.

34. Here, it is undisputed that Tristan suffered brain

injury, caused by oxygen deprivation, which rendered her

permanently and substantially menta lly and physically impaired.

What must be resolved is whether the record supports a

conclusion that, more likely than not, such injury occurred "in

the course of labor, delivery, or resuscitation in the immediate

postdelivery period," as required for cove rage under the Plan.

As to that issue, Petitioners were of the view that while

Tristan may have suffered oxygen deprivation at St. Vincent's

Medical Center between 12:47 p.m. (when the fetal monitor was

disconnected and Mrs. Bennett was moved from labor a nd delivery

to the operating room for a cesarean section delivery) and

1:22 p.m., September 26, 2001 (when Tristan was delivered),

Mrs. Bennett was never in labor, and Tristan did not suffer

neurologic injury or evidence profound neurologic impairment

("pe rmanent and substantial mental and physical impairment")

until after her pulmonary arrest on October 3, 2001. In

contrast, NICA was of the view that Tristan's neurologic

impairments resulted from a brain injury caused by oxygen

deprivation (secondary to a partial placental abruption), that

occurred following the automobile accident the morning of

September 26, 2001, and prior to her transfer from Ed Fraser

Memorial Hospital to St. Vincent's Medical Center, and that

Mrs. Bennett was not in labor at the time . Finally, Intervenors

were of the view that Tristan suffered a brain injury, and

profound neurologic impairment, caused by oxygen deprivation at

St. Vincent's Medical Center between 12:47 p.m. and 1:22 p.m.,

that Mrs. Bennett was in labor when the fetal monitor was

disconnected , and that injury likely continued into the

immediate postdelivery period. (Prehearing Stipulation) .

The statutory presumption

35. Pertinent to this case, Section 766.309(1)(a), Florida

Statutes, provides:

. . . If the claimant has demonstrated, to

the satisfaction of the administrative law

judge, that the infant has sustained a brain

or spinal cord injury caused by oxygen

deprivation or mechanical injury and that

the infant was thereby rendered permanently

and substantially ment ally and physically

impaired, a rebuttable presumption shall

arise that the injury is a birth - related

neurological injury as defined in s.

766.302(2).

36. "Claimant," as that term is used in the Plan, is

defined by Section 766.302(3), to mean:

. . . any person who files a claim pursuant

to s. 766.305 for compensation for a birth

related neurological injury to an infant.

Such a claim may be filed by any legal

representative on behalf of an injured

infant; and, in the case of a deceased

infant, the claim may be filed by an

administrator, personal representative, or

other legal representative thereof.

37. Notably, in this case it is not the Petitioners

(Claimants) who seek the benefit of the presumption, but the

Intervenors , who urge its application over Petitioners'

objection. Consequently, it must be resolved whether any party,

other than Petitioners (Claimants) may claim the presumption

( i.e. , that the injury occurred "in the course of labor,

delivery, or resuscitation in the immediate postdelivery

pe riod") . If so, it must then be resolved whether there was

credible evidence produced to support a contrary conclusion and,

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

demonstrates, more likely than not, that Tristan's injury

occurred dur ing labor, delivery, or resuscitation. 12

38. The ultimate goal in construing a statutory provision

is to give effect to legislative intent. Bellsouth

Telecommunications, Inc. v. Meeks , 863 So. 2d 287 (Fla. 2003).

"In attempting to discern legislative in tent, we first look to

the actual language used in the statute." Id. at 289. "If the

statutory language used is unclear, we apply rules of statutory

construction and explore legislative history to determine

legislative intent." Id. at 289. "Ambiguity s uggests that

reasonable persons can find different meanings in the same

language." Forsythe v. Longboat Key Beach Erosion Control

District , 604 So. 2d 452, 455 (Fla. 1992). "[I]f the language

of the statute under scrutiny is clear and unambiguous, there is

no reason for construction beyond giving effect to the plain

meaning of the statutory words." Crutcher v. School Board of

Broward County , 834 So. 2d 228, 232 (Fla. 1st DCA 2002).

39. Here, the language chosen by the legislative is clear

and unambiguou s . T he presumption is for Petitioners '

(Claimants ' ) be nefit, and is not available to aid other parties

in satisfying their burden to establish that Tristan's brain

injury occurred in the course of labor, delivery, or

resuscitation. Balino v. Department o f 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 of an issue before an administrative

tribunal."). Moreover, there was credible evidence prod uced (in

Tristan's medical records) to support a contrary conclusion, and

to require resolution of the issue without regard to the

presumption.

The likely timing of the brain injury that

rendered Tristan profoundly, neurologically impaired

40. To addre ss the cause and timing of Tristan's

neurologic impairment, the parties offered the medical records

related to Mrs. Bennett's antepartal course, as well as those

associated with Tristan's birth and subsequent development.

Additionally, the parties offered the deposition testimony of

many of the health care providers who were involved with

Mrs. Bennett's care on September 26, 2001, and Tristan's birth.

Finally, the parties offered the testimony of four expert

witnesses to support their respective positions . Offered by

Petitioners was the testimony of Richard Fields, M.D., a

physician board - certified in obstetrics and gynecology, and

Norman Pryor, M.D., a physician board - certified in pediatrics

and pediatric nephrology; offered by Respondent was the

testimo ny of Donald Willis, M.D., a physician board - certified in

obstetrics and gynecology, and maternal - fetal medicine; and

offered by Intervenors was the testimony of Gary Hankins, M.D.,

a physician board - certified in obstetrics and gynecology and

maternal - feta l medicine. Oddly, no party offered the testimony

of a neurologist or neonatologist to address, apart from the

observations of the health care providers who were involved in

Tristan's care, the likely timing of the brain injury that

rendered Tristan profo undly, neurologically impaired.

41. The medical records, as well as the testimony of the

physicians and other witnesses, have been thoroughly reviewed.

Having done so, it must be resolved that the record developed in

this case compels the conclusion that , more likely than not,

Tristan suffered multi - system failure as a consequence of the

oxygen deprivation she suffered between 12:47 p.m. (when the

fetal monitor was disconnected and Mrs. Bennett was moved to the

operating room) and 1:22 p.m. (when Tristan was delivered), that

likely continued during the immediate postdelivery resuscitative

period . However, it is unlikely Tristan suffer ed a brain injury

or substantial neurologic impairment until after she experienced

profound episodes of oxygen deprivation on October 3, 2001,

following the onset of pulmonary hemorrhaging and pulmonary

arrest.

42. In so concluding, it is noted that Tristan was

delivered atraumatically, she responded rapidly to resuscitation

immediately after delivery, her neurologic examinat ions during

the first seven days of life were normal, she suffered prolonged

and severe decrease s in fetal heart rate and saturations on

October 3, 2001, she manifested prolonged and severe acidosis

following her arrest, and she evidenced seizure activity and

neurologic decline thereafter. Given the proof, it is likely,

more so than not, that Tristan's profound neurologic impairments

resulted from a brain injury caused by oxygen deprivation that

occurred October 3, 2001, and not during labor, delivery, or

resuscitation in the immediate postdelivery period in the

hospital. Consequently, Tristan was not shown to have suffer ed

a "birth - related neurological injury" as defined by the Plan,

and the claim is not compensable. § 766.302(2), Fla. Stat. See

also Na gy v. Florida Birth - Related Neurological Injury

Compensation Association , 813 So. 2d 155, 160 (Fla. 4th DCA

2002)("According to the plain meaning of the words written, the

oxygen deprivation or mechanical injury must take place during

labor and delivery, o r immediately afterward.").

The notice issue

43. Apart from contesting compensability, Petitioners also

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

civil action, by requesting a finding that the notice provisions

were not satisfied by t he health care provider s . See 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, health care providers must, when practicable, give their

obstetrical patients notice of their participation in the plan a

reasonable time prior to delivery."). Consequently, it is

necessary to resolve whether the hospital and the participating

physician complied with the noti ce provisions of the Plan.

Florida Birth - Related Neurological Injury Compensation

Association v. Florida Division of Administrative Hearings , 948

So. 2d 705, 717 (Fla. 2007)("[W]hen the issue of whether notice

was adequately provided pursuant to section 7 66.316 is raised in

a NICA claim, we conclude that the ALJ has jurisdiction to

determine whether the health care provider complied with the

requirements of section 766.316.") . Accord O'Leary v. Florida

Birth - Related Neurological Injury Compensation Associ ation , 757

So. 2d 624, 627 (Fla. 5th DCA 2000)("All questions of

compensability, including those which arise regarding the

adequacy of notice, are properly decided in the administrative

forum."); University of Miami v. M.A. , 793 So. 2d 999 (Fla. 3d

DCA 200 1); Tabb v. Florida Birth - Related Neurological Injury

Compensation Association , 880 So. 2d 1253 (Fla. 1st DCA 2004).

The notice provisions of the Plan

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

Statutes, prescribed the notice requirement s of the Plan, as

follows:

Each 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 Bi rth -

Related Neurological Injury 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 shal l

include a clear and concise 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

ackno wledging receipt of the notice 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 wh en notice is not

practicable.

45. 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

deli very;

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[ 13 ] or

rupture of the membranes.

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

"practicable" is a commonly 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)("When necessary, the plain and

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

reference to a dictionary.").

The NICA brocure

47. Responding to Section 766.316, Florida Statutes, NICA

developed a brochure (a s the "form" prescribed by the Plan),

titled "Peace of Mind for an Unexpected Problem" (the NICA

brochure), which contained a clear and concise explanation of a

patient's rights and limitations under the Plan, and distributed

the brochure to the participat ing physicians and hospitals so

they could furnish a copy of it to their obstetrical patients. 14

(Exhibit 4 to Exhibit 25).

Findings related to notice

48. Mrs. Bennett received her prenatal care at

St. Vincent's Division I, one of a number of offices in the

Jacksonville area operated by North Florida OB/GYN, a group

practice comprising numerous physicians. At the time, three

obstetricians who delivered babies were on staff at

St. Vincent's Division I: Dr. William Long, Dr. Thomas Virtue,

and Dr. Scot t Wells. Dr. Long, who had delivered Mrs. Bennett ' s

two previous children (boys, born in 1993 and 1997), was

Mrs. Bennett's primary ob/gyn. However, as a group practice,

all physicians rotated delivery calls at the hospital, so it was

possible another ph ysician would participate in the delivery.

Consequently, a patient commonly saw all the delivering

physicians during prenatal care. Notably, all physicians

associated with the St. Vincent's Division I, who delivered

babies, were participating physicians in the Plan.

49. On February 5, 2001, Mrs. Bennett presented to

St. Vincent's Division I for her initial prenatal visit. At the

time, consistent with established routine, Kathryn Becker, R.N.,

the OB care coordinator, met with Mrs. Bennett to discuss he r

case, take a patient history, and provide her with a number of

forms to complete and sign, including: a Consent for

Obstetrical Delivery form; Florida's Healthy Start Prenatal Risk

Screening Instrument; a Consent for Human Immunodeficiency Virus

form; a Genetic Screening Supplement; and a Notice to Obstetric

Patient form (to acknowledge receipt of the NICA brochure) and a

NICA brochure. The Notice to Obstetric Patient provided:

NOTICE TO OBSTETRIC PATIENT

(See Section 766.316, Florida Statutes)

I have been furnished information by North

Florida OB/GYN prepared by the Florida Birth

Related Neurological Injury Compensation

Association, and have been advised that they

are a participating practice in the program,

wherein certain limited compensation is

avai lable in the event certain neurological

injury may occur during labor delivery or

resuscitation. For specifics on the

program, I understand I can contact the

Florida Birth Related Neurological Injury

Compensation Association (NICA), Barnett

Bank Building, 315 South Calhoun Street,

Suite 312, Tallahassee, Florida 32301,

(904) 488 - 8191. I further acknowledge that

I have received a copy of the brochure

prepared by NICA.

DATED this ____ day of _____________, 2001.

_____________________ Attest:_________ ____

Signature of Patient Nurse/Physician

_____________________ Date:_______________

(Name of Patient) Printed

_____________________

Social Security Number

_____________________

Witness to Signature

Mrs. Bennett signed the fo rm, acknowledging receipt of the NICA

brochure and Nurse Becker witnessed her signature .

50. Here, there is no dispute that Mrs. Bennett signed the

Notice to Obstetric Patient or any debate that she received a

copy of the NICA brochure on her initial vi sit. Rather, what is

at issue is whether the form, which provides "I have been

furnished information by North Florida OB/GYN prepared by the

Florida Birth - Related Neurological Injury Compensation

Association, and have been advised that they are a particip ating

practice in the program," co upled with w hat Mrs. Bennett was

told during her initial visit, was adequate to place

Mrs. Bennett on notice that Dr. Long w as a participant in the

Plan.

51. As described by Nurse Becker, during the course of the

initial visit, her custom and practice when discussing NICA was

to inform the patient that "all of the doctors in our practice

that deliver babies participate" and then "explain the pamphlet

. . . [,] point out the information inside, that it tells them

briefly a bout it [,and] [t]he back tells them who it's with and

how to contact them." Here, Nurse Becker is confident she

followed her routine, since she witnessed Mrs. Bennett's

signature on a number of documents, including the Notice to

Obstetric Patient, and do cumented her routine through an entry

on the ACOG Antepartum Record. That entry read "NOB [ new

obstetric] Interview [with] PNV, PNL, Consents, NICA, Health y

Start, prentatal education & literature completed; PTL, SAB &

safety info given. " (Exhibit 25, pa ges 6, 15, and 39; Exhibit 1

to Exhibit 25).

52. Giving due consideration to the proof, it must be

resolved, contrary to Petitioners' view, that the Notice to

Obstetric Patient, although it did not specifically name St.

Vincent's Division I, was not misle ading, and tha t when coupled

with Nurse Becker's disclosure that "all of the doctors in our

practice that deliver babies participate," was adequate to place

Mrs. Bennett on notice that all physicians at that office who

delivered babies participated in the Plan. In so concluding, it

is noted that Mrs. Bennett had been a patient of Dr. Long's for

an extended period, that all her prenatal care was at St.

Vincent's Division I, and the only logical conclusion a

reasonable person could draw from receiving this i nformation was

that Dr. Long and the other physicians in the office who did

deliveries were participating physicians. Accordingly, the

proof demonstrates Dr. Long satisfied the notice provisions of

the Plan. See Jackson v. Florida Birth - Related Neurologi cal

Injury Compensation Association , 932 So. 2d 1125 (Fla. 5th DCA

2006).

53. In all, Mrs. Bennett had 14 prenatal visits at

St. Vincent's Division I, with the last two being on

September 18 and 24, 2001. Of note, on September 18, 2001,

Mrs. Bennett, who had a previous cesarean section (with her

second child) and presented with a breech, voiced her election

to proceed with a repeat cesarean section. Accordingly, she met

with staff at St. Vincent's Division I that day, staff

coordinated with St. Vincent's Medical Center, and surgery was

scheduled for October 3, 2001. Notably, there is no proof that

at any time prior to her admission of September 26, 2001, Mrs.

Bennett visited or otherwise contacted St. Vincent's Medical

Center.

54. At or about 9:59 a.m., September 26, 2001,

Mrs. Bennett was admitted to labor and delivery at St. Vincent's

Medical Center for monitoring, and at or about 11:20 a.m., she

was formally admitted. At that time, her attending nurse,

Christine May, R.N., provided Mrs. Bennett with a number of

forms to sign, including a Consent to Anesthesia, Parental

Acknowledgment of Preventative Safety Measures, and a Notice to

Obstetric Patient (to acknowledge receipt of the NICA brochure)

and a NICA brochure. The Notice to Obstetric Patient pro vided:

NOTICE TO OBSTETRIC PATIENT

(See Section 766.316, Florida Statutes)

I have been furnished information by St.

Vincent's Medical Center pr epared by the

Florida Birth Related Neurological Injury

Compensation Association, and have been

advised that Dr. Long [ 15 ] is a participating

physician in the program, wherein certain

limited compensation is available in the

event certain neurological injury may occur

during labor , delivery or resuscitation.

For specifics on the program, I understand I

can contact t he Florida Birth Related

Neurological Injury Compensation Association

(NICA), Barnett Bank Building, 315 South

Calhoun Street, Suite 312, Tallahassee,

Florida 32301, (904) 488 - 8191. I further

acknowledge that I have received a copy of

the brochure prepar ed by NICA.

DATED this ____ day of _____________, 2001.

________________________

Signature of Patient

________________________

(Name of Patient) Printed

________________________

Social Security Number

________________________

Witness to Sign ature

Attest:

___________________________

Nurse or Physician

Date:______________________

Mrs. Bennett signed the form, acknowledging receipt of the NICA

brochure, and Nurse May witnessed her signature.

55. Here, Petitioner contends that "[g]iven th e fact that

Mrs. Bennett had pre - registered for her scheduled cesarean

section delivery, it was practicable for St. Vincent's Medical

Center to have given Mrs. Bennett notice of NICA participation

prior to two hours before delivery . " Therefore , Petitioner s

conclude, "St. Vincent's Medical Center failed to comply with

the notice provisions of the Plan." (Petitioners' Proposed

Final Order on Compensability and Notice, paragraph 5 4 ).

However, as previously noted, the scheduling of Mrs. Bennett's

cesarean se ction with St. Vincent's Medical Center was done by

staff at St. Vincent's Division I, and there is no proof that

Mrs. Bennett visited or had any contact with St. Vincent's

Medical Center. Accordingly , the notice provided Mrs. Bennett

on September 26, 200 1, was timely, as prior notice was not

practicable. 1 6

CONCLUSIONS OF LAW

Jurisdiction

56. The Division of Administrative Hearings has

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

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

Compensab ility

57. The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims" relating to births

occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

58. 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 Administrati ve Hearings. §§ 766.302(3),

766.303(2), and 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 resp onse 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.

59. 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 must be resolved by the assigned administrative law

judge in accordance with the provisions of C hapter 120, F lorida

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

60. 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

jud ge, that the infant has sustained a brain

or spinal cord injury caused by oxygen

deprivation or mechanical injury and that

the infant was thereby rendered permanently

and substantially mentally and physically

impaired, a 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 s ustained 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.

61. Pertinent to this case, "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 gestation or, in the case of a

multiple gestation, a live infant weighing

at least 2,000 grams at birth caused by

oxygen deprivation or mechanical injury

occurring in the course of labor, delivery,

or resuscitation in the immediate

postdelivery period in a hospital, which

renders the infant permanently and

substa ntially 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.

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

Intervenors to demon strate that Tristan 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 before an administrative tribunal.").

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

more likely than not, Tristan suffered an injury to the 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 that rendered her permanently and substantially

mentally and physically impaired. Indeed, the more compelling

proof demons trated that any injury Tristan suffered, that

resulted in profound neurologic impairment, post - dated the

immediate postdelivery period. Consequently, given the

provisions of Section 766.302(2), Florida Statutes, Tristan 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 rights 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); Nagy ,

813 So. 2d at 160 ("[T]he oxygen deprivation or mechanical

injury must take place during labor, delivery, or immediately

afterward.").

Notice

64. Apart from contesting compensability, Petitioners also

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

civil action, by requesting a find ing that the notice provisions

of the Plan were not satisfied by the health care providers . As

the proponent of the immunity claim, the burden rested on the

health care providers to demonstrate, more likely than not, that

the notice provisions of the Plan were satisfied. See Tabb v.

Florida Birth - Related Neurological Injury Compensation

Association , 880 So. 2d 1253, 1260 (Fla. 1st DCA 2004)("The ALJ

. . . properly found that '[a]s the proponent of the issue, the

burden rested on the health care provider t o 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 condi tion precedent

to invoking the Florida Birth - Related Neurological Injury

Compensation Plan as a patient's exclusive remedy, health care

providers must, when practicable, give their obstetrical

patients notice of their participation in the plan a reasonable

time prior to delivery.") . Here, for reasons appearing in the

Findings of Fact, the participating physician and hospital

demonstrated that they complied with the notice provision of the

Plan.

Disposition

65. 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 immediately to the parties by registered or certified

mai l." § 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 the petition filed by Rober t Bennett and

Tammy Bennett, individually and as parents and natural guardians

of Tristan Bennett, a minor, is dismissed with prejudice.

DONE AND ORDERED this 3rd day of October , 2007 , 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 3rd day of October , 2007 .

ENDNOTES

1/ According to the petition, the claim was filed following the

entry of an order abating a civil suit "pending administrative

determination" of compensability u nder the Plan.

2/ Mrs. Bennett testified she was restrained (with shoulder

harness and lap belt), described the ditch as two to three feet

deep, and estimated her speed to be 3 - 5 miles per hour. While

the front tire was blown, no further damage to the v ehicle was

noted.

3/ Ed Fraser Memorial Hospital had no obstetrical services.

However, it was apparently the closest medical facility that

could screen Mrs. Bennett after her motor vehicle accident.

4 / The hospital was not equipped to provide continuo us

monitoring for fetal heart rate and uterine activity.

5 / On examination, Dr. Oberti noted Mrs. Bennett's abdomen as

soft, nontender, did not feel any contractions, and concluded

she was not in labor. (Exhibit 16, pages 55, 56, and 71) .

6 / Dr. Long described uterine "irritability" as "some

tightening of the uterus, but without any defined pattern or

regularity." (Exhibit 20, page 32) . "Labor" is commonly

understood to mean the onset of regular contractions that result

in cervical changes. See Exh ibit 23, pages 31 and 61. See also

"Labor" Dorland's Illustrated Medical Dictionary, 28th Edition,

1994 ("The first [stage of labor](the sta g e of cervical

dilatation ) begins with the onset of regular uterine

contractions and ends when the os is completely dilated.") .

7 / Dr. Long performed a vaginal exam at or about 12:15 p.m.,

and noted the cervix to be 1 - 2 centimeters dilated 30 percent

effaced, and the fetus at - 3 station. Notably, such is

essentially an un effaced cervix and essentially no different

t hat she exhibited during prenatal examinations on September 12

and 18, 2001. See Exhibit 23, pages 58 - 61, and Exhibit 24,

pages 39, 91, and 92.

8 / On this issue, the deposition testimony of Doctors Fields

and Willis was most persuasive. (Exhibits 23 and 24) .

9 / No fetal monitor strips exist after 12:47 p.m., that would

assist in assessing fetal status. However, an isolated check

just prior to surgery revealed a fetal heart rate of 166 beats

per minute.

1 0 / The Apgar scores assigned to Tristan ar e a numerical

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

sum points gained on assessment of heart rate, muscle tone,

respiratory effort, reflex irritability, and color, with each

category being assigned a score ranging from the lowest score of

0 through a maximum score of 2. See Dorland's Illustrated

Medical Dictionary, 28th Edition, 1994. Here, at one minute,

Tristan's Apgar score totaled 6, with heart rate being graded at

2, and muscle tone, respiratory effort, reflex irritability, and

color being graded at 1 each. At five minutes, Tristan's Apgar

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

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

being graded at 1 each. While low at one minute, Tristan's five

minute Apgar was normal.

1 1 / In its entirety, Section 766.302(2), Florida Statutes,

provides:

(2) Birth - related neurological injury"

means injury to the brain or spinal cord of

a live infant weighing at least 2,500 grams

for a single gestation or, in t he case of a

multiple gestation, a live infant weighing

at least 2,000 grams at birth caused by

oxygen deprivation or mechanical injury

occurring in the course of labor, delivery,

or resuscitation in the immediate

postdelivery period in a hospital, which

r enders 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.

Here, there is no suggestion, or proo f to support a conclusion

that, Tristan suffered an injury to the brain caused by

mechanical injury or that Tristan suffered an injury to the

spinal cord. Consequently, those alternatives need not be

addressed.

1 2 / Where, as here, a presumption is "est ablished 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, Fl a. Stat. The nature and effect or

usefulness of such a presumption in assessing the quality of the

proof was addressed in Berwick v. Prudential Property and

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

as follows:

Unless otherwise provided by statute, a

presu mption 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" presum ption, 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 So. 2d

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

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

198 2. 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 wh en evidence

is introduced from which they may be found.

1 3 / The first stage of "labor" is commonly understood to

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

Dorland's Illustrated Medical Dictionary, 28th Edition, 1994.

"Regular," is commo nly understood to mean "[o]ccurring at fixed

intervals, periodic." The American Heritage Dictionary of the

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

"persistent," as the term is used in Section 395.002(9)(b)3 . ,

Florida Statutes, is commonl y understood to mean "[i]nsistently

repetitive or continuous." Id.

14 / In their petition and Pre - Hearing Stipulation, Petitioners

contended the NICA brochure did not comply with the notice

provisions of the Plan because it did not include a "clear and

c oncise explanation of a patient's rights and limitations under

the p lan." However, no party addressed that argument at hearing

or post - hearing. Nevertheless, it is found that the NICA

brochure "include[s] a clear ['[f]ree from doubt or confusion']

and co ncise ['[e]expressing much in f ew words; succinct']

explanation ['the process of making plain and comprehensible']

of a patient's rights and limitations under the plan." See

"clear," "concise," "explanation , " The American Heritage

Dictionary of the Englis h Language, New College Edition (1979).

See also Jackson v. Florida Birth - Related Neurological Injury

Compensation Association , 932 So. 2d 1125, 1128 (Fla. 5th DCA

2006)("The pamphlet contains a clear and concise explanation of

a patient's rights and limi tations under the NICA plan, as is

required by the terms of the statute.") ; Dianderas v. Florida

Birth - Related Neurological Injury Compensation Association , DOAH

Case No. 04 - 3652, Final Order on Compensability and Notice, May

8, 2006, appeal pending; Coble v. Florida Birth - Related

Neurological Injury Compensation Association , DOAH Case No. 06 -

3883N, Order on Compensability and Notice, May 4, 2007, appeal

pending.

15/ Dr. Long's name was handwritten on the form by Nurse May.

1 6 / The hospital's and physic ian's alternative suggestion that

the giving of notice was excused because when she presented to

St. Vincent's Medical Center on September 26, 2001, she had a

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

Statutes, is not tenable since t here is no competent proof of

record to support such a conclusion.

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. 7099 3400 0010 4399 4868)

James W. Gustafson, Jr., Esquire

Searcy Denney Scarola Barnhart

& Shipley, P.A.

The Towle House

517 North Calhoun Street

Tallahassee, Florida 32301

(Certified Mail No. 7099 3400 0010 4399 4875)

William Peter Martin, Esquire

Dennis, Jackson, Martin & Fontela, P.A.

Post Office Box 15589

Tallahassee, Florida 32317 - 5589

(Certified Mail No. 7099 3400 0010 4399 5056)

Martin B. Unger, Esquire

Stephanie S. Klein, Esquire

The Unger Law Group, P.L .

Post Office Box 4909

Orlando, Florida 32802 - 4909

(Certified Mail No. 7099 3400 0010 4399 5001)

M. Mark Bajalia, Esquire

Brennan, Manna & Diamond

76 South Laura Street, Suite 2110

Jacksonville, Florida 32202

(Certified Mail No. 7099 3400 0010 4399 501 8)

William Long, M.D.

North Florida Obstetrical

& Gynecological Associates, P.A.

1820 Barrs Street, No. 200

Jacksonville, Florida 32204

(Certified Mail No. 7099 3400 0010 4399 4714)

St. Vincent's Medical Center

1800 Barrs Street

Jacksonville, Florida 32204

(Certified Mail No. 7099 3400 0010 4399 4707)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7099 3400 0010 4399 3083)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected 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 Se ction 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.