06-002487N Laura Stever, As Personal Representative Of The Estate Of Harper Dean Stever, A Deceased Minor, And Laura Stever And Joseph Dean Stever, Jr., Individually And As The Natural Parents Of Harper Dean Stever, A Deceased Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, April 27, 2009.

Summary: The infant`s brain injury post-dated the immediate post-delivery period, and therefore was not compensable. The claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAURA STEVER, AS PERSONAL )

REPRESENTATIVE OF THE ESTATE OF )

HARPER DEAN STEVER, A DECEASED )

MINOR, AND LAURA STEVER AND )

JOSEPH DEAN STEVER, JR., )

INDIVIDUALLY AND AS THE NATURAL )

PARENTS OF HARPER DEAN STEVER, )

A DECEASED MINOR, )

)

Petitioners, )

)

vs. ) Case No. 06-2487N

)

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

)

Respondent, )

)

and )

)

ORLANDO REGIONAL HEALTHCARE )

SYSTEM, INC., d/b/a ORLANDO )

REGIONAL SOUTH SEMINOLE )

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 February 26, 2007, by

video teleconference, with sites in Tallahassee and Orlando,

Florida.

For Petitioners: William E. Ruffier, Esquire

Dellecker Wilson King McKenn

& Ruffier, LLP

719 Vassar Street

Orlando, Florida 32804-4920

For Respondent: Robert J. Grace, Jr., Esquire

Stiles, Taylor & Grace, P.A.

Post Office Box 460

Tampa, Florida 33606

For Intervenor: Bradley P. Blystone, Esquire

Marshall, Dennehey, Wagner, Coleman

& Goggin

315 East Robinson Street, Suite 550

Orlando, Florida 32801

STATEMENT OF THE ISSUE

At issue is whether Harper Dean Stever, a deceased minor,

qualifies for coverage under the Florida Birth-Related

Neurological Injury Compensation Plan (Plan).

PRELIMINARY STATEMENT

On July 6, 2006, Laura Stever, as Personal Representative

of the Estate of Harper Dean Stever (Harper), a deceased minor,

filed a petition (claim) with the Division of Administrative

Hearings (DOAH) for compensation under the Plan. Subsequently,

Laura Stever and Joseph Dean Stever, Jr., individually and as

the natural parents of Harper, were joined as Petitioners.

(Order, dated February 26, 2007.)

DOAH served the Florida Birth-Related Neurological Injury

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

July 17, 2006, and on August 30, 2006, NICA responded to the

petition and gave notice that it was of the view that Harper 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. In the interim,

Orlando Regional Healthcare System, Inc., d/b/a Orlando Regional

South Seminole Hospital (South Seminole Hospital), was accorded

leave to intervene.

At hearing, Respondent's Exhibits 1 and 2, 1 and Intervenor's

Exhibits 1-5 2 were received into evidence. Post-hearing, the

deposition of Charles Brill, M.D., was filed and, with the

parties' agreement, received into evidence as Intervenor's

Exhibit 6. No witnesses were called, and no further exhibits

were offered.

The transcript of the hearing was filed March 21, 2007, and

the parties were accorded 10 days from that date to file

proposed orders. Respondent and Intervenor elected to file such

proposals and they have been duly-considered.

FINDINGS OF FACT

Stipulated facts

1. Laura Stever and Joseph Dean Stever, Jr., are the

natural parents of Harper Dean Stever, a deceased minor, and

Mrs. Stever is the Personal Representative of her deceased son's

estate.

2. Harper was born a live infant on October 16, 2004, at

South Seminole Hospital, a licensed hospital located in

Longwood, Florida, and died October 22, 2004. Harper's birth

weight exceeded 2,500 grams.

3. The physician providing obstetrical services at

Harper's birth was Christopher Quinsey, 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.

4. The hospital and the participating physician complied

with the notice provisions of the Plan. § 766.316, Fla. Stat.

Harper's birth and newborn course

5. At or about 8:42 a.m., October 16, 2004, Mrs. Stever,

with an estimated delivery date of October 10, 2004, and the

fetus at 40 6/7 weeks' gestation, presented to South Seminole

Hospital with complaints of contractions and blood-tinged fluid

discharge since 6:00 a.m. At the time, moderate, regular

contractions (at a frequency of 1 1/2 to 2 minutes) were noted;

the membranes were intact; vaginal examination revealed the

cervix at 2 centimeters dilation, 90 percent effacement, and the

fetus at -1 station; and fetal monitoring was reassuring for

fetal well-being, with a fetal heart rate in the 150s, with

positive long-term variability, accelerations, and no

decelerations.

6. Following admission, Mrs. Stever was given morphine

with Vistaril for pain (at 9:15 a.m.), and monitoring continued

to reveal a reassuring fetal heart rate in the 150s and regular

uterine contractions. However, at approximately 9:20 a.m.,

fetal monitoring began to evidence fetal tachycardia (with a

fetal heart rate above 160 beats per minute), with some decrease

in variability, and at 10:20 a.m., Mrs. Stever recorded a

temperature of 100.2, with a fetal heart rate in the 170s.

7. Mrs. Stever was given an IV for hydration (at

10:30 a.m.), Tylenol for her fever (at 10:40 a.m.), and

Ampicillin for presumed early chroioamnionitis (at 10:42 a.m.).

Nevertheless, fetal tachycardia continued, and at 11:30 a.m.,

the fetal heart rate was noted as 180 with decreasing long-term

variability. Therefore, since the tachycardia had not responded

to the hydration, antibiotics, and Tylenol, and notwithstanding

Mrs. Stever's labor had progressed ("to 4 cm dilated, 90%

effaced, with a bulging bag"), the decision was made (at

12:05 p.m.) to proceed with a cesarean section because of

"extended fetal tachycardia with non-reassuring fetal

surveillance."

8. Mrs. Stever was prepared for surgery, and at

12:22 p.m., the external fetal monitor was removed and

Mrs. Stever was moved to the operating room, where she was

received at 12:27 p.m. Of note, when removed, the fetal monitor

revealed a fetal heart tone of 175 to 180 beats per minute,

minimal variability, no accelerations, and no decelerations. Of

further note, the Intraoperative Nurses Notes reveal a fetal

heart tone of 182 beats per minute at 12:36 p.m. (Intervenor's

Exhibit 1, page 109.)

9. At 12:43 p.m., the incision was made (surgery started),

and at 12:48 p.m., Harper was delivered. According to the

medical records, a copious amount of thick meconium stained

fluid was extruded through the incision at the time of entry

into the uterine cavity, and Harper's head was delivered without

difficulty and his nose and mouth were DeLee suctioned by

Dr. Quinsey on the abdomen. Then, the nuchal cord was reduced

and the rest of Harper was delivered atraumatically, the cord

was doubly clamped and cut (so the cord blood could be drawn,

and the child's blood chemistry at the time of birth

ascertained), and Harper was passed off to the awaiting

resuscitation team.

10. Harper was immediately placed in a preheated radiant

warmer, dried briefly, and suctioned. Heart rate was initially

noted at 100 and Harper was given free flow oxygen. However, he

still did not breathe spontaneously, and his heart rate rapidly

slowed to 60, requiring Ambu bag and mask, and chest

compressions. At 12:50 p.m., with a heart rate still at 60 and

Harper's color noted as cyanotic, a "Code Blue 45" was called.

11. At 12:51 p.m., Harper was intubated (with an

endotracheal tube), and his heart rate returned to 160 with

40 seconds of chest compressions and ventilation. At

12:55 p.m., heart rate remained at 160, color was noted as pink,

and ventilation continued with Ambu and endotracheal tube (ET).

By 1:05 p.m., the code ended, and Harper (with a heart rate

above 140) was moved to the special care nursery by the code

team, with continued ventilation by Ambu and ET. Notably,

although successfully resuscitated (revived) in the operating

room, the respiratory failure Harper suffered since birth

persisted, and he would require continuous respiratory support

to survive.

12. Harper's Apgar scores were noted as 1, 5, and 7, at

one, five, and ten minutes respectively. (Intervenor's Exhibit

1, page 91.) Cord blood was drawn at 1:00 p.m., and revealed an

umbilical artery pH of 7.112, PC0 2 of 75.3, PO 2 of 4.5, 0 2 -SAT of

1.3%, and BE of -8.0. (Intervenor's Exhibit 1, page 9;

Intervenor's Exhibit 2, page 677.)

13. The Apgar scores assigned to Harper are a numerical

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

sum points gained on assessment of heart rate, respiratory

effort, reflex irritability, muscle tone, 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; Intervenor's Exhibit 1,

page 91. Such scores help the physician decide what

resuscitative efforts may be required for the baby.

(Respondent's Exhibit 1, page 41.)

14. As noted, Harper's one minute Apgar score was 1, with

heart rate being graded at 1 (under 100 beats per minute), and

respiratory effort (none), reflex irritability (absent), muscle

tone (flaccid), and color (central cyanosis) being graded at 0.

At five minutes, Harper's Apgar score totaled 5, with heart rate

being graded at 2 (above 100 beats per minute), reflex

irritability (medium), muscle tone (lazy) and color (peripheral

cyanosis) being graded at 1 each, and respiratory effort being

graded at 0. At ten minutes, Harper's Apgar score totaled 7,

with heart rate, reflex irritability (good), and color (pink)

being graded at 2 each, muscle tone being graded at 1, and

respiratory effort being graded at 0. (Intervenor's Exhibit 1,

page 91.)

15. Following admission to the special care nursery (at

1:05 p.m.) Harper was assessed and placed on a ventilator (full

ventilatory support with endotracheal intubation). Newborn

assessment noted a heart rate of 140, pale pink color, hypotonic

tone, depressed activity, and no cry. Blood sugar at 1:20 p.m.,

was noted as 51 (hypoglycemic). (Intervenor's Exhibit 2, pages

601 and 675.)

16. Given Harper's acute respiratory failure, an order was

entered to transfer Harper to the neonatal intensive care unit

(NICU) at Arnold Palmer Hospital for Children and Women, and at

1:50 p.m., the Arnold Palmer Hospital neonatal transport team

arrived at South Seminole Hospital to assume responsibility for

Harper's care. In the interim, the progress notes reveal Harper

to have been fairly stable on the ventilator, with oxygen (0 2 )

saturations above 95 percent, color pale pink and responding to

tactile stimulation. (Intervenor's Exhibit 2, pages 675.)

17. When the transport team assumed Harper's care at

1:50 p.m., he appeared relatively stable, with a mean blood

pressure of 49, and an 0 2 saturation level of 92 percent.

(Intervenor Exhibit 2, page 285.) However, by 2:30 p.m., he

appeared dusky with poor profusion, and his 0 2 saturation level

was 85 percent. In response, Harper was given a volume expander

(normal saline) and Ambu'd with 100 percent oxygen. However,

while his 0 2 saturation level briefly improved to 99 percent, it

remained unstable and over time, despite efforts to stabilize

Harper (with Ambu ventilation, sodium bicarbonate for metabolic

acidosis, volume expanders, Dobutamine, Fentanyl, Ampicillin,

and Gentamicin) it dropped to the 70s (by 3:45 p.m.) and 60s (by

4:40 p.m.), and his mean blood pressure dropped into the 30s.

Chest X-ray at 2:37 p.m., was reported as follows:

FINDINGS: . . . Lungs are distinctly

abnormal showing severe opacification

bilaterally in a very diffuse pattern. On

the first day of life I would not expect the

child to present hyaline membrane disease.

I do not see blunting of the costophrenic

angles to suggest pleural fluid associated

with Beta strep pneumonia. Pneumonia is not

ruled out but I am more suspicious of edema

from heart disease or meconium aspiration

that is quite severe . . . .

IMPRESSION:

1. Severe lung opacity bilaterally raising

question of edema from meconium

aspiration . . . .

18. The transport team left South Seminole Hospital at

4:50 p.m. (with 0 2 saturations at 65 percent and mean blood

pressure at 40) and arrived at Arnold Palmer Hospital at

5:30 p.m. (with 0 2 saturations at 57 percent and a mean blood

pressure of 37). During transport, Harper was Ambu'd with Fi 0 2

100 percent.

19. On admission to the neonatal intensive care unit at

Arnold Palmer Hospital, Harper was noted to be cyanotic (pale

gray), with saturations in the 50s despite positive pressure

ventilation, poor perfusion, and adventitial breath sounds

(rales and rhonchi) over all fields. Diagnoses on admission

included hypotension, meconium aspiration syndrome, persistent

pulmonary hypertension newborn, pneumonia-congenital,

respiratory distress-newborn, and sepsis-newborn.

20. Harper was started on high frequency oscillator

ventilation (HFOV) and Dopamine was added to his interventions

to support his blood pressure (BP). However, Harper's condition

did not improve, and at 7:44 p.m., he was placed on veno-venous

extracorporeal membrane oxygenation (V-V ECMO). 3 Chest X-ray at

6:14 p.m. (pre-ECMO) revealed "[h]yperinflation, diffuse

infiltrates and right pleural effusion," and chest X-ray at

10:27 p.m., revealed "[w]orsening diffuse pulmonary infiltrates,

now severe." (Intervenor's Exhibit 2, pages 301 and 297.)

Ultrasound Echoencephalogram pre-ECMO was read as normal, with

the following findings:

The ventricles are of normal size and

symmetrical bilaterally. No intracerebral

hemorrhages or other intracranial

abnormalities are apparent.

21. Harper continued to require increasing pressor support

with little effect ( i.e. , a "mean BP of 40 and arterial

saturations of 75% on maximal ventilatory support").

Accordingly, given Harper's continued deterioration, he was

changed from V-V ECMO to veno-arterial (V-A) ECMO on October 17,

2004, at 2:15 p.m. Oxygen saturations were noted to rise to

85 percent and blood pressure rose to a mean of 70. Ultrasound

Echoencephalogram on October 17, 2004, was normal.

22. On October 18, 2004, Harper remained on V-A ECMO, with

saturations in the 90s, and on Dopamine and Dobutamine, with a

mean BP of 58. At 7:30 a.m., twitching was noted, consistent

with seizure activity, and again at 2:30 p.m., and 10:15 p.m.

(Intervenor's Exhibit 2, page 630.) Phenobarbital was

prescribed. Ultrasound Echoencephalogram revealed "[s]mall

bilateral Grade I germinal matrix hemorrhages."

23. On October 19, 2004, Harper remained on V-A ECMO, with

saturations in the mid 90s, and on Dopamine and Dobutamine, with

a mean BP of 44-49. Seizure episodes continued, as did

treatment with Phenobartital. Ultrasound Echoencephalogram

revealed "[s]table bilateral Grade I intracranial hemorrhages,"

and no new hemorrhages.

24. On October 20, 2004, Harper remained on V-A ECMO, with

saturations in the mid 90s, and on Dopamine and Dobutamine, with

a mean BP of 40-50s. Seizure activity continued, and Harper was

treated with Phenobarbital and Fosphenytoin. Ultrasound

Echoencephalogram revealed a "[s]uspected bilateral Grade II

intracranial hemorrhage."

25. On October 21, 2004, Harper remained on V-A ECMO, with

saturations in the mid 90s, and on Dopamine and Dobutamine, with

a mean BP of 50-60s. Some increase in acidosis over the last 24

hours was noted. Seizure activity continued, as did treatment

with Phenobarbital and Fosphenytoin. Ultrasound

Echoencephalogram revealed "[s]uspect bilateral choroid plexus

hemorrhages."

26. On October 22, 2004, neurologic evaluation noted that

Harper continued with frequent seizure episodes, and near

continuous clonic, jerking activity of the lower extremities.

Harper was noted to be acidotic, with generalized edema,

jaundice, no spontaneous movement, boggy scalp, and decreased

movement. Ultrasound Echoencephalogram revealed "a new 1.5 x

2.1 cm hemorrhagic cyst within the right parietal cerebral

parenchyma . . . equivalent to a Grade IV germinal matrix

hemorrhage."

27. Given Harper's heparinization 4 and contraindications of

ECMO with severe intracranial hemorrhage, Harper was removed

from ECMO and died soon thereafter, at 12:40 p.m., October 22,

2004. At the time, active diagnoses included hypotension,

intraventricular hemorrhage, meconium aspiration syndrome,

persistent pulmonary hypertension newborn, pneumonia-congenital,

and sepsis-newborn.

28. An autopsy was performed October 22, 2004. The report

included the following anatomic findings:

II. RESPIRATORY SYSTEM:

A. Hyaline membrane disease.

B. Acute bronchopneumonia with large

areas of necrosis.

C. Fungal lung abscess with secondary

cyst formation.

III. CENTRAL NERVOUS SYSTEM:

A. Intraventricular hemorrhage.

B. Arachnoidal congestion and

hemorrhage.

C. Cerebellar fungal infarct.

D. Periventricular leukomalacia.

IV. PLACENTA (S-04-31353) Large for

gestational age placenta, three vessel

cord, no acute chorioamnionitis is

seen.[ 5 ]

The likely cause and timing of

Harper's brain injury

29. To address the cause and timing of Harper's brain

injury, the parties offered the medical records related to

Mrs. Stever's antepartal course, as well as those associated

with Harper's birth and subsequent development. Additionally,

the parties offered the deposition testimony of William D.

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

neonatal-perinatal medicine; Charles B. Brill, M.D., a physician

board-certified in pediatrics, and neurology with special

competence in child neurology; and Donald C. Willis, M.D., a

physician board-certified in obstetrics and gynecology, and

maternal-fetal medicine. 6

30. The medical records and the testimony of the parties'

experts have been thoroughly reviewed. Having done so, it must

be resolved that among the physicians who addressed the cause

and timing of Harper's brain injury, Dr. Rhine was the more

qualified to address the issues, and his testimony most candid

and compelling. 7

31. Dr. Rhine expressed his opinions on the likely cause

and timing of Harper's brain injury, as follows:

[Examination by Mr. Grace]

A. [Harper suffered] [p]rocesses

during birth, including meconium aspiration

during labor and delivery, that led to

respiratory failure and ultimately to his

death. Along with that, that respiratory

failure that was obviously caused by . . .

meconium in his lungs [, were] bouts of low

oxygen and low blood pressure in the first

couple hours of life that led to ongoing

resuscitative efforts and escalation of care

until he finally got onto ECMO bypass.

I think before he got onto ECMO bypass,

that more likely than not, he had suffered

substantial injury from his low oxygen and

low blood pressure. Ultimately, that

substantial injury was impacted by him being

on ECMO and was a significant or proximate

cause of his having bleeding into his brain,

which led to the decision for the cessation

of ECMO and his death thereafter.

Q. . . . Let's back up for a minute,

Doctor. Did an hypoxic event occur?

A. Did a hypoxic event occur?

Q. Yes, sir.

A. Yes. Actually, I mean several

events occurred.

Q. Were you talking about several

hypoxic events?

A. Yes.

Q. Will you take me through them and

point out each hypoxic event as you have

found in the records.

A. I think even before birth, there

was enough hypoxic event to lead to this

child having pulmonary hypertension and

passage of meconium. Okay?

Q. Uh-huh.

A. And then there was a transient

hypoxic event right at birth . . . .

And then in the hours after he was

born, as his care was escalated and they

still tried to stabilize his respiratory or

pulmonary status, he had basically prolonged

episodes of low oxygen and low blood

pressure until he finally got onto ECMO in

the evening of the 16th of October.

* * *

Q. Now, with regard to this first

hypoxic event that you have identified

sometime before birth, as you termed it, did

it actually lead to injury to the child?

A. Yes.

Q. And what was the injury?

A. Well, it led to meconium -- the

passage of meconium, which led to meconium

aspiration and the evolution of pulmonary

hypertension.

* * *

Q. Okay. Was there a brain injury

when the child was born?

A. I don't know.

Q. You have no opinion with regard to

that?

A. Not to a reasonable medical

probability, no.

Q. Do you have an opinion, Doctor, if

the child did in fact suffer a brain injury

during labor and delivery?

A. Again, I don't know.

Q. Do you have an opinion whether the

child suffered a brain injury at any time

prior to being placed on ECMO?

A. Yes, I do have an opinion.

Q. What is that opinion?

A. That he did suffer a brain

injury in the hours after delivery and

before he got put on ECMO.

Q. And at what point did the child

suffer the brain injury? Are you able to

pinpoint that for us?

A. Not with precision in terms of

time. I can describe the physiologic events

that I think were associated with the brain

injury, and that itself describes the

timeframe.

Q. Okay.

A. So there is -- first of all, I

think that there is a compromise of blood

and oxygen flow in the minutes after birth,

and there is limited improvement

physiologically thereafter, and then within

two and a half hours, he starts having the

onset of low levels of oxygen and low levels

of blood pressure that more likely than not

are going to lead to brain -- that did lead

to brain injury.

Q. And this is two and a half hours

after birth, Doctor?

A. Yes.

Q. Is that the first event you could

look at that your opinion would lead to

brain injury?

A. No. I talked to someone about the

compromise right around birth. That -- you

know, the fact that he needed to be

resuscitated, gets cardiac compressions,

gets intubated, et cetera, that's going to

be an initial insult. I can't say whether

or not that alone, in and of itself, would

have caused substantial injury, but it

contributed to the injury that I did think

became substantial later on that afternoon

once his saturations and blood pressures

fell again.

Q. Okay. And how did it contribute?

A. Well, basically, the way that the

brain responds to low blood and oxygen

levels is that you can have a compromise of

oxygen to the tissues, and then if it's

repeated and recurrent, you are that much

more susceptible to oxygen and blood

deprivation within the next couple of hours

or so.

* * *

Q. Do you place any significance on

the cord gas ph in terms of ruling in or out

neurological injury?

A. Yes.

Q. Okay. And in terms of this child,

what was the cord gas ph?

A. . . . [I]t is 7.11. So the one

that's collected at 13:07, that one?[ 8 ]

Q. Yes, sir.

A. Okay. . . . assuming it's

umbilical artery, the oxygen level is quite

low, but it is not profoundly acidotic, and

the acidosis is both a mixed, metabolic and

respiratory.

* * *

Q. What about the base excess level,

Doctor?

A. . . . The base axis is minus eight.

Q. So my question is going to be do

you place any significance on the base

excess level being minus eight?

A. Yes.

Q. And what significance do you attach

to that?

A. [F]irst of all, I should say this

is very minimal metabolic acidosis. . . .

[I]f this is an umbilical arterial gas,

there is probably not enough acidosis to be

associated with brain injury at that time.

Q. And that is at the time the cord

gas level is taken, correct?

A. Well, it's actually at the time of

birth. It took about 19 minutes for them to

get over to the cord and to draw it or

something. But the cord gas reflects what's

happened at birth.

* * *

Q. At any time in your review of this

case -- or did you review the fetal monitor

strips?

A. Yes.

Q. And would you agree that the only

abnormality was fetal tachycardia and

decreased variability?

A. Yes.

Q. Can a maternal infection alone

cause fetal tachycardia?

A. Yes.

Q. And do you have an opinion whether

maternal infection here caused the fetal

tachycardia?

A. I think it contributed to it.

Q. So you do think there is a maternal

infection?

A. Well, again, mom had a fever, and I

think that that temperature is associated

with the fetal -- had at least some

contribution to the fetal tachycardia.

Q. Okay. Is it still your opinion,

though, you don't know one way or the other

whether there was a maternal infection?

A. Correct.

* * *

Q. Doctor, a minute ago, you talked

about . . . an ischemic event versus an

hypoxic event. You talked about narrowing

down the definitions, or did I have that

wrong?

A. No. No. I did mention that.

Q. Okay. Tell me what you were

referring to with regard to this specific

case when you brought that up.

A. I just wanted to point out that

there are basically two ways of getting

brain injury from oxygen deprivation, and

that is your oxygen level can be low in your

blood [hypoxia]; or you can have not enough

blood circulating [ischemia] . . . .

Q. And in terms of not having enough

blood circulation, do you have an opinion as

to whether that was applicable to Harper

Stever, the baby in this case?

A. Yes.

Q. What's that opinion?

A. I think that there were two

episodes, one when he was first born and had

a low heart rate, that is, that there was an

abnormal amount of blood being delivered to

his brain during that time, and then later

on in the afternoon of the 16th, he is

profoundly hypotensive, and that, too, is

associated with inadequate blood and oxygen

delivery to the brain.

Q. Okay. Do you see when the child

had a low heart rate?

A. Yes.

Q. When did that occur, specifically?

A. At birth.

Q. And where is that reflected,

Doctor?

A. Well, in the code record and by the

fact that he got cardiac compressions.

Q. Okay. And when the baby was coded

and had this low heart rate, you testified

to, do you have an opinion on whether it

caused brain injury?

A. Well, I think what I said before, I

think in light of what happened later that

day, I think it contributed to it. Whether

or not it would have caused it on its own, I

don't -- I don't know, and actually, I would

dare say probably not.

Q. Okay. Then move on, if you will.

Tie it into what happened later on that day.

A. Well, he continues to have ongoing

care to try to stabilize him --

Q. Uh-huh.

A. -- in the post delivery period, and

that care includes prolonged artificial

ventilation, if you will, as well as support

of his circulation, and despite that, he has

episodes of drops in his saturations and

ultimately in his blood pressure, as well,

before he goes onto ECMO bypass.

* * *

Q. And in terms of meconium

aspiration, Doctor, do you know whether the

baby actually aspirated the meconium in

utero or whether it was perhaps after birth?

A. It's usually a combination of both.

Q. But there is generally no way to

know; is that correct?

A. Well, severe meconium aspiration,

there is usually a component of it that has

occurred before a baby is born.

Q. Okay. In severe meconium

aspiration?

A. Yes.

Q. In this particular case, would you

categorize it as severe meconium aspiration?

A. Yes.

Q. And what do you base that opinion

on, Doctor?

A. Well, the fact that there was such

respiratory failure, as well as the

radiographic changes seen.

* * *

[Examination by Mr. Blystone]

Q. . . . Next, if you would turn to

page 285 of the medical record of Baby

Stever, which is entitled a "Neonatal

Transport Flow Sheet." Do you see that?

A. Yes.

Q. Okay. Now, correct me if I'm

wrong. Is this at the point when the

neonatal transport team arrives and takes

over the care of Harper Dean Stever until

his ultimate delivery to Arnold Palmer

Hospital?

A. Yes.

Q. Is there anything clinically

significant to you on this record as far as

Harper Dean Stever's vital signs and oxygen

saturation level and so forth are concerned?

A. Yes. Normal saturation for babies

is going to be in the 90s, and yet they can

tolerate saturations down to the 80s or even

usually into the 70s without sustaining

injury to their vital organs, including

their brain.

However, persistent levels below 70 are

going to be associated with neurologic

injury, and the fact that the first dip is

at 15:15, and at 16:40 drops below 70 and

stays below 70 until he's left that unit or,

you know, and soon thereafter, he arrives at

Arnold Palmer.

Q. In your opinion as a neonatologist,

would significant brain damage be occurring

in Harper Dean Stever when his oxygen

saturation levels drop and stay below the 80

mark?

A. 70. I'm not going to say 80, but I

think staying below 70, also in concert with

blood pressures -- again, the normal mean

blood pressure for a baby is going to be 40

or more. So when it drops down as low as 30

in conjunction with a saturation of 68

percent, that's likely to be adding to his

injury, and that continues on to Arnold

Palmer for the next couple hours, as well,

before he goes onto ECMO, which sort of is

the continuation of those type of vital

signs.

* * *

Q. On page 287 of that same neonatal

transport flow sheet, I note that at 15:20,

and then again at 15:30, Harper Dean was

administered sodium bicarb. What was the

reason for that?

A. To compensate for acidosis.

Q. What type of acidosis?

A. Metabolic acidosis.

Q. At the time that Harper Dean Stever

was being administered sodium bicarb, you

stated that he then -- that was because he

was having metabolic acidosis at the time?

A. Yes.

Q. And when a child such as Harper

Dean Stever is having metabolic acidosis,

that they had risk for brain injury?

A. Yes, because that reflects

inadequate blood and oxygen delivery to

their body.

Q. Now, you were pointing out to me

before, I think, that Harper Dean Stever's

oxygen saturation levels continued to be

below the 70 mark by the time of the

admission to the neonatal intensive care

unit at Arnold Palmer Hospital, correct?

A. Correct.

* * *

Q. And it appears that generally, his

02 saturation levels were staying in the

60s[ 9 ] to 60s range. Is that fair to say?

A. Yes. There is a brief increase at

17:52 to 17:55. But by 18:10, it's back

below 65, where it stays for over half an

hour, and then it goes up to 69, 75, and

back down to 63, and then 59 percent.

Q. And this is from the timeframe of

17:30 through 19:00 on October 16th,

correct?

A. Correct.

Q. And how was Harper Dean Stever's

blood pressure doing during that timeframe?

A. Well, unfortunately, it was even

worse than it had been before, with his

blood pressure means falling into as low as

24.

Q. So in your opinion as a

neonatologist, from the time of Harper Dean

Stever's arrival to Arnold Palmer Hospital

at 17:30, through this time period, 19:00,

represented on this neonatal intensive care

flow sheet, was he suffering significant

brain damage during that time?

A. Yes.

Q. And why is that?

A. . . . Because there is other

evidence -- there is evidence that he still

has ongoing metabolic acidosis. He has

blood gasses that instead of being only

minimally metabolically acidotic, they are

going up to the moderate to severe range,

and that is after the administration of

bicarb, which should, in theory, counteract

that metabolic acidosis.

So he clearly is having inadequate

blood and oxygen delivery. He is clearly

becoming acidotic. He clearly has a level

of cardiac performance and -- or cardiac

poor performance and inadequate oxygen to

sustain his vital physiology, including his

brain function.

And then ultimately, one thing that

should be mentioned is that his ultimate

autopsy does show periventricular

leukomalacia, which would be the type of

injury that would arise from this pattern of

low blood pressure and low oxygen level that

he really doesn't sustain anywhere else

during his run, during his hospital course

once he gets stabilized by virtue of going

on ECMO.

* * *

Q. Dr. Rhine, had Harper Dean Stever

not passed away, do you have an opinion

within a reasonable degree of medical

probability whether he would have been

substantially, permanently mentally and

physically impaired as a result of his brain

injury to which you testified to?

A. Yes. My opinion is that he would

have had substantial neurologic impairment.

* * *

Q. Dr. Rhine, do you have an opinion

as to when Harper Dean Stever was undergoing

metabolic acidosis to the extent that it was

causing significant brain injury?

A. As I mentioned before in the

afternoon of the 16th after his birth,

during that resuscitation and attempted

stabilization, I think that's when it

occurred.

32. Dr. Willis was of the opinion that the medical records

failed to support the conclusion that Harper suffered a lack of

oxygen substantial enough to cause brain injury during labor,

delivery, or resuscitation immediately following delivery, and

that the tachycardia Harper experienced was most likely related

to maternal infection. As for the likely cause of Harper's

respiratory failure, Dr. Willis was of the opinion it was most

likely the result of infection and meconium aspiration. As for

whether Harper suffered a significant brain injury after he was

transported to the special care nursery, Dr. Willis deferred to

the neonatologists and pediatric neurologists.

33. Contrasted with the opinions of Doctors Rhine and

Willis, Dr. Brill was of the opinion that Harper suffered two

hypoxic injuries. The first being present at birth, and the

second an ongoing injury from the time Harper was an hour old

(when Dr. Brill notes poor profusion and duskiness is

documented) until he died. 10

34. As for the timing of the first injury, Dr. Brill was

of the opinion it occurred within 24 hours preceding birth, and

probably shortly before delivery. As for the cause of the

injury, Dr. Brill was of the opinion it was most likely caused

by a profusely hemorrhagic placenta, which resulted in oxygen

deprivation (hypoxia) to the baby. Dr. Brill's conclusion that

Harper presented with a profound brain injury at birth was

premised on "several features: Number one is . . . the placenta

is described as profusely hemorrhagic, so that there's a cause

for lack of oxygen to the baby; and that event had abnormal

fetal monitoring strips; was born with meconium stained fluid;

and had very low Apgar to begin with; and persistent apnea."

(Intervenor's Exhibit 6, page 19.)

35. As for the cord pH of 7.112, Dr. Brill acknowledged it

was only mildly depressed, but was of the opinion it was taken

"when the baby was 12 minutes old after he had been

resuscitated." (Intervenor's Exhibit 6, pages 22, 23, and 60.)

Dr. Brill was also of the opinion that had the cord pH been

taken within the first two minutes of life it would likely have

been below 7. (Intervenor's Exhibit 6, pages 41 and 42.)

36. Dr. Brill's observations regarding Harper's cord pH

are not credible. The Blood Gas Summary reveals that the blood

sample was drawn from the umbilical cord, and not the infant.

(Intervenor's Exhibit 2, page 677.) The cord pH reflects the

infant's pH and other chemistry at birth, not following

resuscitation. (Intervenor's Exhibit 5, page 26; Respondent's

Exhibit 1, pages 50 and 51.) See also "Blood," "cord b."

("blood contained within the umbilical vessels at the time of

delivery of the infant."), Dorland's Illustrated Medical

Dictionary, 28th Edition, 1994). Dr. Brill's observations to

the contrary detract from the credibility of his testimony

regarding the presence of a hypoxic brain injury at delivery.

However, except for the onset of the injury, Dr. Brill's

observations regarding brain injury following the arrival of the

transport team are consistent with those of Dr. Rhine, and are

credited. As for the onset of the injury, Dr. Rhine's

conclusion that it began at two and a half hours of life (2:30

p.m.) is the more credible. ( See Endnote 10.)

37. Given the proof, it is resolved that, more likely than

not, Harper did not suffer brain injury due to oxygen

deprivation that occurred during labor, delivery, or

resuscitation immediately following delivery. Rather, it is

most likely that Harper began to suffer hypoxic ischemic brain

damage (due to low oxygen saturation levels and low blood

pressure) following the arrival of the transport team at South

Seminole Hospital, when evidence of profound pulmonary

hypotension was noted, at about two and a half hours of life,

and that his brain injury progressively worsened until a point

in time, likely prior to his placement on ECMO, when the injury

was so severe permanent and substantial mental and physical

impairment would necessarily ensure.

Coverage under the Plan

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

Plan for infants who suffer a "birth-related neurological

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

39. Here, it has been resolved that Harper did suffer an

injury to the brain caused by oxygen deprivation that rendered

him permanently and substantially mentally and physically

impaired. However, it was also resolved that Harper's brain

injury began about two and a half hours after birth, following

the arrival of the transport team at South Seminole Hospital.

Nevertheless, Petitioners and Intervenor were of the view that

Harper's brain injury occurred "in the immediate postdelivery

period," because Harper had required continuous respiratory

support since birth. In contrast, NICA was of the view that

while Harper required continuous respiratory support, his brain

injury postdated the "immediate postdelivery period," and

therefore does not qualify for coverage.

40. The ultimate goal in construing a statutory provision

is to give effect to legislative intent. BellSouth Telecomms,

Inc. v. Meeks , 863 So. 2d 287 (Fla. 2003) "In attempting to

discern legislative intent, we first look to the actual language

used in the statute." Id. , at 289. "If the statutory language

is unclear, we apply rules of statutory construction and explore

legislative history to determine legislative intent." Id. , at

289. "Ambiguity suggests 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). "If 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).

41. In enacting the Florida Birth-Related Neurological

Injury Compensation Plan, the Legislature expressed its intent,

as follows:

It is the intent of the Legislature to

provide compensation, on a no-fault basis,

for a limited class of catastrophic injuries

that result in unusually high costs for

custodial care and rehabilitation. This

plan shall apply only to birth-related

neurological injuries.

§ 766.302(2), Fla. Stat.

42. In defining "birth-related neurological injury," the

Legislature chose to limit coverage to brain injuries that

occurred during "labor, delivery, or resuscitation in the

immediate postdelivery period." § 766.302(2), Fla. Stat.

However, the Legislature did not define "resuscitation in the

immediate postdelivery period," and the term has no technical

significance. 12 (Respondent's Exhibit 1, pages 43 and 44;

Intervenor's Exhibit 5, page 30.)

43. "When necessary, the plain and ordinary meaning of

words in a statute can be ascertained by reference to a

dictionary." Seagrave v. State , 802 So. 2d 281, 286 (Fla.

2001). "Resuscitate" is commonly understood to mean "[t]o

return to life or consciousness; revive." The American Heritage

Dictionary of the English Language, New College Edition, 1979.

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

defines "resuscitation" as "the restoration to life or

consciousness of one apparently dead; it includes such measures

as artificial respiration and cardiac massage." "Immediate" is

commonly understood to mean "[n]ext in line or relation[;] . . .

[o]ccuring without delay[;] . . . [o]f or near the present

time[;] . . . [c]lose at hand; near." The American Heritage

Dictionary of the English Language, New College Edition, 1979.

Finally, "period" is commonly understood to mean "[a]n interval

of time characterized by the occurrence of certain conditions or

events." The American Heritage Dictionary of the English

Language, New College Edition, 1979.

44. Under the statutory scheme then, the brain injury must

occur during labor, delivery, or immediately thereafter. Nagy

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,

delivery, or immediately thereafter."). Such conclusion is also

consistent with "the requirement that statutes which are in

derogation of the common law be strictly construed and narrowly

applied." Nagy , 813 So. 2d at 159; Humana of Florida, Inc. v.

McKaughn , 652 So. 2d 852, 859 (Fla. 2d DCA 1995)("Because of 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 Neurological Injury Compensation

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

45. Under the facts of this case, resuscitation in the

immediate postdelivery period ended not later than 1:05 p.m.,

when the code ended and Harper was transferred to the special

care nursery. By then, Harper had been successfully

resuscitated (revived), and his circulation restored. However,

nothing further could be done to establish spontaneous

respirations (until the cause of his respiratory failure could

be addressed), and he would remain on respiratory support for

the remainder of his life. Harper's subsequent brain injury,

which began at about two and a half hours of life, post-dated

his "resuscitation in the immediate postdelivery period."

CONCLUSIONS OF LAW

46. The Division of Administrative Hearings has

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

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

47. 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.

48. The injured infant, her or his personal

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

compensation under the Plan by filing a claim for compensation

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

766.303(2), 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 response to the petition

and to submit relevant written information relating to the issue

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

§ 766.305(4), Fla. Stat.

49. 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 Chapter 120, Florida

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

50. 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 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 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.

51. 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

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.

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

Petitioners and Intervenor to demonstrate that Harper suffered a

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

Stat. See also Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349, 350 (Fla. 1st DCA

1997)("[T]he burden of proof, apart from statute, is on the

party asserting the affirmative issue before an administrative

tribunal.").

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

more likely than not, Harper 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. Indeed, the more compelling proof demonstrated that

any brain injury Harper suffered post-dated the immediate

postdelivery period. Consequently, given the provisions of

Section 766.302(2), Florida Statutes, Harper 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 (The injury to the brain, whether by oxygen deprivation or

mechanical injury, must take place during labor, delivery, or

immediately thereafter).

54. 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

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 the claim for compensation filed by Laura Stever,

as Personal Representative of the Estate of Harper Dean Stever,

a deceased minor, and Laura Stever and Joseph Dean Stever, Jr.,

individually and as the natural parents of Harper Dean Stever, a

deceased minor, is dismissed with prejudice.

DONE AND ORDERED this 30th day of April, 2007, in

Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of April, 2007.

ENDNOTES

1/ Respondent's Exhibits 1 and 2 were described in its Notice

of Filing (filed February 23 2007), as follows:

1. Deposition transcript of Dr. Donald C.

Willis dated January 29, 2007, with

exhibits.

2. Medical records of mother from Advanced

Women's Health Special[ists] (to supplement

medical composite filed by Intervenor).

2/ Intervenor's Exhibits 1-5 were described in its Notice of

Filing (filed February 23, 2007), as follows:

1. Medical records of Laura Stever from

Orlando Regional Healthcare System, Inc.

(South Seminole Hospital and Arnold Palmer

Hospital for Children and Women) from

10/16/04-10/20/04, pages 1-250.

2. Medical records of Harper Dean Stever

from Orlando Regional Healthcare System,

Inc. (South Seminole Hospital and Arnold

Palmer Hospital for Children and Women) from

10/16/04-10/22/04, pages 1-802.

3. Fetal Monitor Strips.

4. Autopsy report of Harper Dean Stever.

5. Deposition of William Rhine, M.D., with

attachments.

3/ ECMO is a treatment method for critically ill newborns whose

lungs are unable to provide sufficient oxygenation of the blood.

ECMO therapy acts as an artificial heart and lung to oxygenate

the baby's blood. (Respondent Exhibit 1, page 45 and 55;

Intervenor Exhibit 6, page 65.)

4/ Heparin, an anticoagulant (or blood thinner), is required

during ECMO therapy. Heparinization significantly increases the

risk of bleeding. (Intervenor's Exhibit 5, page 37.)

5/ The placenta findings were likely taken from the Surgical

Pathology Report (Pathology No. S-04-31353) on the evaluation of

the placenta following Harper's birth at South Seminole

Hospital. (Intervenor's Exhibit 1, page 101.) That report

included the following historical diagnosis and gross

description:

HISTOLOGICAL DIAGNOSIS:

PLACENTA: PLACENTA WITH THREE VESSEL

CORD, LARGE FOR GESTATIONAL AGE (WEIGHT 625

GRAMS). NO ACUTE CHORIOAMNIONITIS, OR ACUTE

FUNISITIS IS SEEN.

GROSS DESCRIPTION:

Received labeled with the patient's name,

"Stever, Laura" . . . . The parenchyma is

beefy red and diffusely hemorrhagic . . . .

6/ See , e.g. , Wausau Insurance Company v. Tillman , 765 So. 2d

123, 124 (Fla. 1st DCA 2000)("Because the medical conditions

which the claimant alleged had resulted from the workplace

incident were not readily observable, he was obligated to

present expert medical evidence establishing that casual

connection."); Ackley v. General Parcel Service , 646 So. 2d 242

(Fla. 1st DCA 1994)(determining cause of psychiatric illness is

essentially a medical question, requiring expert medical

evidence).

7/ Dr. Rhine is a practicing neonatologist; medical director of

the neonatal intensive care unit at the Lucile Packard

Children's Hospital, Stanford University Medical Center; co-

director of the ECMO Program, Stanford University Medical

Center; and an associate professor of pediatrics at Stanford

University. Dr. Rhine cares for critically-ill neonates,

including their resuscitation; instructs other health

professionals in neonatal resuscitation; has research interests

in the metabolic and physiologic mechanisms of neurological

injury, ECMO and inhaled nitric oxide for respiratory failure,

and quality improvement in neonatal care; and has published

extensively. (Intervenor's Exhibit 5.)

8/ The Blood Gas Summary reveals the blood sample was drawn

from the umbilical cord at 1300 (1:00 p.m.) and collected at

1307 (1:07 p.m.). The summary further reveals the figures

reported are arterial blood gases ("A.B.G."). (Intervenor's

Exhibit 2, page 677.) Dr. Quinsey's Clinical Resume describes

the results as an "umbilical artery pH" of 7.11. (Intervenor's

Exhibit 1, page 9.)

9/ This is most likely a typographical error since Harper's 0 2

saturation levels were in the 50s to 60s range. See

Intervenor's Exhibit 2, page 605.

10/ The Neonatal Transport Sheet reflects that the transport

team arrived at 1350 (1:50 p.m.) and that on arrival Harper's

color was "dusky [with] poor profusion." (Intervenor's Exhibit

2, page 289.) However, the Neonatal Transport Sheet also notes

Harper's color as 4/6 (pink/pale) at 1:50 p.m., and does not

describe him as dusky until 1430 (2:30 p.m.), when his color is

noted as 2/6 (dusky/pale) and he starts to demonstrate low

oxygen saturation levels and low blood pressure. (Intervenor's

Exhibit 2, page 285.) Considering the records, Dr. Rhine's

observation that the injury began about two and a half hours

after birth (about 2:30 p.m.) is more creditable than Dr.

Brill's observation.

11/ 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 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

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 that, or proof to support a

conclusion that, Harper suffered an injury to the brain caused

by mechanical injury or that Harper suffered an injury to the

spinal cord. Consequently, those alternatives need not be

addressed.

12/ While the term "resuscitation in the immediate postdelivery

period" has no special meaning in the medical community, the

parties offered testimony from Doctors Rhine, Brill, and Willis

concerning their interpretation of the phrase. As to the

meaning of the phrase, Dr. Rhine observed:

Q. . . . Doctor, I know you earlier

testified that you had a copy of the statute

here, Chapter 766. Outside of the statute,

are you familiar with the term "immediate

post-delivery resuscitative period"?

A. Not in any technical sense.

Q. . . . You have never seen it defined in

a text or periodical, have you?

A. Not that I'm aware of, no.

Q. All right. How would you define it in

terms of this particular case, if you can,

or do you not define it?

A. Well, I think it would entail the time

it took to get him stabilized from a both

cardiac and respiratory point of view until

he was receiving a level of support where he

would be expected to not have ongoing

injury, including to his brain.

Q. And in this particular case, when would

that be in terms of how many minutes or

hours after birth?

A. Well, I think it's hours before he goes

onto ECMO bypass.

Q. So you're using that term, the post-

delivery resuscitative phase as up until the

child went on ECMO?

A. Yes.

(Intervenor's Exhibit 5, pages 30 and 31.) Dr. Brill observed:

Q. In your opinion, when did the

resuscitation in the immediate post delivery

period conclude in the matter of

Harper Stever?

* * *

THE WITNESS: I think it occurred for at

least -- it depends on how you want to

define it. I think it had to extend for at

least the seven hours of life and one could

say that it lasted for six days.

* * *

Q. So you, as a pediatric neurologist, how

do you define then the immediate post

delivery resuscitation period?

* * *

THE WITNESS: I would define it as the need

for active resuscitation. And by the time

he went on ECMO, which is a medical taking

over of the heart and lung function, I think

that's a reasonable time to say the

immediate post resuscitative period ended.

(Intervenor's Exhibit 6, pages 47 and 48.) Finally, Dr. Willis

observed:

Q. What do you consider the immediate

resuscitative period?

A. That's always the difficult question to

answer because there's no definition, but I

think, for practical purposes, we could just

say about the time of the ten minute Apgar.

Q. That's just your personal opinion?

A. There is no definition in the textbooks

for that, but it's basically from the time

of birth until the baby is stabilized or

unable to be stabilized after birth. And I

would suspect by the time we hit that ten

minute Apgar, the baby -- it was pretty

clear at that point that this baby was not

going to stabilize.

* * *

Q. And what is the basis of your opinion of

saying that the immediate post-delivery

resuscitation period that first five to ten

minutes after birth?

A. Well, the definition of the immediate

post-delivery period or post delivery or

post-delivery resuscitative period is that

period from the time of birth until the baby

is either stabilized or unable to be

stabilized after birth. And so my opinion

is that by the time we reach about that ten

minute Apgar, either the baby is going to be

-- you're either able to stabilize the baby

or you're unable to stabilize the baby. And

in this case they were unable to stabilize

this baby. It continued to have respiratory

distress and respiratory failure. And that

just becomes what I would consider more of a

newborn problem, not an immediate

resuscitative period problem.

(Respondent's Exhibit 1, pages 43-46.) Here, since the phrase

"resuscitation in the immediate postdelivery period" has no

technical significance, the Doctors' opinions are largely

irrelevant. However, Dr. Willis' opinion is consistent with the

meaning of the words chosen by the legislature.

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 2833)

William E. Ruffier, Esquire

Dellecker Wilson King McKenn

& Ruffier, LLP

719 Vassar Street

Orlando, Florida 32804-4920

(Certified Mail No. 7099 3400 0010 4399 2826)

Bradley P. Blystone, Esquire

Marshall, Dennehey, Wagner, Coleman

& Goggin

315 East Robinson Street, Suite 550

Orlando, Florida 32801

(Certified Mail No. 7099 3400 0010 4399 2819)

Robert J. Grace, Jr., Esquire

Stiles, Taylor & Grace, P.A.

Post Office Box 460

Tampa, Florida 33606

(Certified Mail No. 7099 3400 0010 4399 5575)

Christopher K. Quinsey, M.D.

661 East Altamonte Drive, Suite 318

Altamonte Springs, Florida 32701

(Certified Mail No. 7099 3400 0010 4399 5568)

South Seminole Hospital

555 West State Road 434

Longwood, Florida 32750

(Certified Mail No. 7003 1010 0001 2044 2414)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7003 1010 0001 2044 2421)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Sections 120.68 and 766.311,

Florida Statutes. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such proceedings are commenced by

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

of the Division of Administrative Hearings and a copy,

accompanied by filing fees prescribed by law, with the

appropriate District Court of Appeal. See Section 766.311,

Florida Statutes, and Florida Birth-Related Neurological Injury

Compensation Association v. 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.