07-003629N Michelle Taylor And Dennis Taylor, Jr., On Behalf Of And As Parents And Natural Guardians Of Natalie Taylor, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, April 23, 2008.

Summary: The proof demonstrated that the cause of the infant`s impairments was most likely developmentally based, as opposed to birth-related. The Claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHELLE TAYLOR AND DENNIS )

TAYLOR, JR., ON BEHALF OF AND )

AS PARENTS AND NATURAL )

GUARDIANS OF NATALIE TAYLOR, A )

MINOR, )

)

Petitioners, )

)

vs. ) Case No. 07-3629N

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

)

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 March 18, 2008, in St.

Augustine, Florida.

APPEARANCES

For Petitioners: Dennis Taylor, Jr., pro se

Michelle Taylor, pro se

1870 Adams Acres Road

St. Augustine, Florida 32084

For Respondent: Tana D. Storey, Esquire

Brewton Plante, P.A.

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue is whether Natalie Taylor (Natalie), a minor,

qualifies for coverage under the Florida Birth-Related

Neurological Injury Compensation Plan (Plan).

PRELIMINARY STATEMENT

On August 13, 2007, Michelle Taylor and Dennis Taylor, Jr.,

on behalf of and as parents and natural guardians of

Natalie Taylor, a minor, filed a petition (claim) with the

Division of Administrative Hearings (DOAH) for compensation

under the Plan.

DOAH served the Florida Birth-Related Injury Compensation

Association (NICA) with a copy of the petition on August 14,

2007, and on October 31, 2007, following an extension of time

within which to do so, NICA responded to the petition and gave

notice that it was of the view that Natalie 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. Such a hearing was held

March 18, 2008.

At hearing, Michelle Taylor and Dennis Taylor, Jr.,

testified on their own behalf, and called Lillian Taylor,

Mary Hall, and Amnath Kirdnual, M.D., as witnesses.

Petitioners' Exhibit 1 (Dr. Kirdnual's records relating to

Mrs. Taylor's prenatal care and Natalie's birth), and

Respondent's Exhibit 1 (the deposition of Donald Willis, M.D.),

Exhibit 2 (the deposition of Michael Duchowny, M.D.), Exhibit 3

(Flagler Hospital medical records for Mrs. Taylor's admission of

August 14, 2002, as well as Natalie's birth and immediate

newborn course), and Exhibit 4 (medical records related to

Natalie's subsequent development) were received into evidence.

The transcript of the hearing was filed April 10, 2008, and

the parties were accorded 10 days from that date to file

proposed orders. Respondent elected to file such a proposal and

it has been duly-considered.

Stipulated facts

1. Michelle Taylor and Dennis Taylor, Jr., are the natural

parents and guardians of Natalie Taylor, a minor. Natalie was

born a live infant on August 14, 2002, at Flagler Hospital, a

hospital located in St. Augustine, Florida, and her birth weight

exceeded 2,500 grams.

2. Obstetrical services were delivered at Natalie's birth

by Amnath Kirdnual, 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.

Coverage under the Plan

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

Plan for infants who suffer a "birth-related neurological

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

oxygen deprivation . . . occurring in the course of labor,

delivery, or resuscitation in the immediate postdelivery period

in a hospital, which renders the infant permanently and

substantially mentally and physically impaired." § 766.302(2),

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

4. Here, it is undisputed that Natalie is permanently and

substantially mentally and physically impaired. (Respondent's

Exhibit 2, page 9; Respondent's Exhibit 4). What must be

resolved is whether the proof supports the conclusion that, more

likely than not, Natalie's impairments resulted from an "injury

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

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

immediate postdelivery period," as required for coverage under

the Plan. On that issue, Petitioners are of the view that

Natalie suffered such an injury. In contrast, NICA is of the

view that the cause of Natalie's impairments was most likely

developmentally based, as opposed to birth related.

Natalie's birth and immediate newborn course

5. At or about 1:26 p.m., August 14, 2002, Mrs. Taylor,

with an estimated delivery date of August 12, 2002, and the

fetus at 40 2/7 weeks' gestation, presented to Flagler Hospital

in early labor. At the time, the membranes were noted as

intact; vaginal examination revealed the cervix at 2 centimeters

dilation, 70 percent effacement, and the fetus at -3 station;

and fetal monitoring was reassuring for fetal well-being, with a

fetal heart rate in the 140-beat per minute range.

6. Following admission at 2:30 p.m., an IV was started; at

3:30 p.m., pitocin drip was started; and at 3:50 p.m., the

membranes were ruptured. At that time, vaginal examination

revealed the cervix at 3 centimeters dilation, 80 percent

effacement, and the fetus at -1 station.

7. Mrs. Taylor's labor slowly progressed, and at

7:45 p.m., dilation and effacement were noted as complete,

Mrs. Taylor began pushing, and at 8:15 p.m., Natalie was

delivered. At delivery, "one true knot" was noted in the cord. 1

8. According to the Delivery Record, Natalie was bulb-

suctioned at delivery, but required no resuscitation; no

abnormalities or injuries were apparent; and Apgar scores were

recorded as 9 and 9, at one and five minutes, respectively.

Although not noted on the Delivery Record, Petitioners offered

testimony at hearing that Natalie was given oxygen following

delivery.

9. The Apgar scores assigned to Natalie are a numerical

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

sum points gained on assessment of heart rate, respiratory rate,

muscle tone, response to stimulation, and color, with each

category being assigned a score ranging from the lowest score of

0 through a maximum score of 2. See Petitioners' Exhibit 1,

Delivery Record; and Dorland's Illustrated Medical Dictionary,

28th Edition, 1994. As noted, Natalie's one minute and five

minute Apgar score was 9, with heart rate (above 100 beats per

minute), respiratory rate (good with strong cry), muscle tone

(well flexed), and response to stimulation (cry) being graded at

2 each, and color (body pink/extremities blue) being graded at

1.

10. At or about 8:30 p.m., Natalie was transferred to the

newborn nursery. There, the Newborn Admission Record and the

Transitional Care-First Six Hours record reveal a normal newborn

examination and normal presentation, with the exception of

slight peripheral cyanosis noted at 9:00 p.m., and feeding

difficulties initially noted at 10:30 p.m. (Respondent's

Exhibit 3). According to the Nursery Daily Care Flow Sheet,

Natalie's feeding difficulties persisted until 6:00 p.m.,

August 15, 2002, when they resolved. (Respondent's Exhibit 3).

At hearing, Petitioners offered testimony that those feeding

difficulties included problems with sucking the bottle.

Otherwise, Natalie's newborn course was apparently uneventful,

and she was discharged with her mother on August 16, 2002.

Natalie's subsequent development

11. At some time after November 13, 2002, when Natalie was

a three-month-old infant, but before May 2, 2003, when she was a

seven-month-old infant, Natalie began to evidence developmental

delays in her motor and sensory skills. 2 By her most recent

neurological evaluation of record, dated September 26, 2007,

"Natalie's neurologic examination [now] reveals evidence of

global delay and is characterized by a virtual absence of motor

developmental milestones, generalized hypotonia and a

choreoathetotic movement disorder. She additionally shows no

evidence of verbal or nonverbal communication." (Respondent's

Exhibit 2).

12. To date, Natalie has had a very extensive diagnostic

workup, including central nervous system imaging, metabolic and

genetic screening, and neurologic and other consultations.

However, to date her treating physicians and consultants have

not identified a likely cause for Natalie's impairments.

(Respondent's Exhibit 4). Of note, several MRI scans of the

brain done in March 2003, December 2003, and May 2006, were

unremarkable (without evidence of brain injury).

The likely cause of Natalie's impairments

13. With regard to the likely cause of Natalie's

impairments, Petitioners were of the view that her impairments

were the result of a brain injury caused by oxygen deprivation

Natalie suffered during labor, delivery, or resuscitation.

However, as previously noted, Natalie's treating physicians and

consultants have not expressed such an opinion, and Petitioners

offered no expert medical evidence to support such a conclusion.

Ackley v. General Parcel Services , 646 So. 2d 242, 245 (Fla. 1st

DCA 1994)("The determination of the cause of a non-observable

medical condition, such as a psychiatric illness, is essentially

a medical question."); Broadfoot v. Albert Hugo Association,

Inc. , 478 So. 2d 863, 865 (Fla. 1st DCA 1985)("[L]ay testimony

cannot be used to establish causal relationship within

reasonable medical probability as to conditions and symptoms

that are not readily observable.") In contrast, NICA offered

the opinions of Michael Duchowny, M.D. and Donald Willis, M.D.,

to support their view that the cause of Natalie's impairments

was most likely developmentally based, as opposed to birth

related. (Respondent's Exhibits 1 and 2).

14. Dr. Duchowny is a physician board-certified in

pediatrics, neurology with special competence in child

neurology, electroencephalography, and clinical neurophysiology.

Based on his review of the medical records, as well as his

evaluation of Natalie on September 26, 2007, Dr. Duchowny was of

the opinion that Natalie's neurologic impairments were most

likely developmentally based, as opposed to birth-related.

Dr. Duchowny expressed the bases for his opinion, as follows:

Q. . . . What is your expert medical

opinion as to whether Natalie Taylor suffers

a permanent, substantial mental and physical

injury or impairment?

A. I believe that Natalie does have a

substantial mental and physical impairment.

But in my opinion, her impairment was most

likely acquired prenatally, rather than in

the course of labor and delivery.

Q. What makes you think that?

A. Natalie's examination reveals findings

that, in my view, support a prenatal

acquisition rather than intrapartum.

For example, she has multiple dysmorphic

features, which are noted in my report, that

include an abnormality of her midfacial

region, abnormality of her philtrum and her

lips. Her eyelid has a pseudoptosis,

meaning that it is droopy. And she also has

a slight scoliotic curvature.

The neurological examination demonstrates

significant decrease in muscle tone, so

severe that, for example, Natalie didn't

show evidence of any weightbearing

abilities. She had trouble keeping her head

up, or showing any support for her posture.

There were no -- she also had frequent

involuntary movements that were

uncoordinated, so-called choreoathetotic

movements.

There were no focal findings on examination

to suggest a localized structural brain

lesion. She also demonstrated no evidence

of meaningful verbal or non-verbal

communication. These findings are much more

likely to be attributable to a problem in

the way the brain developed prenatally

rather than damage acquired by either oxygen

deprivation or mechanical injury in the

course of labor and delivery.

Furthermore, Natalie's MRI scan of the

brain, which was performed on May 16th, 2006

was normal. A finding which is consistent

with the belief that Natalie's brain

problems are developmentally based and

inconsistent with brain injury acquired in

the course of oxygen deprivation or

mechanical injury during labor or on

delivery.

Q. Okay. And is that opinion rendered

based on a reasonable degree of medical

probability?

A. Yes.

(Respondent's Exhibit 2, pages 9-11). As for Petitioners'

concern about oxygen deprivation during Natalie's birth,

Dr. Duchowny noted:

. . . [I]f Natalie's injuries were the

result of that period at birth when the cord

was around her neck, where I know that you

[Mrs. Taylor] have a concern that her brain

didn't get enough oxygen, that lack of

oxygen would lead to brain damage, it would

kill brain cells and Natalie's examination

would look very different, that's one thing.

And secondly, the MRI scan of the brain,

Ms. Taylor, would in fact show that tissue

was damaged by the lack of oxygen. So, if

you think about it, although you might think

that Natalie's brain didn't get oxygen at

that time, certainly there's no evidence of

that from the MRI scan of the brain.

In fact, the MRI suggested that the brain is

entirely normal. And, really, Ms. Taylor,

that's inconsistent with Natalie being

asphyxiated at birth.

(Respondent's Exhibit 2, pages 12 and 13).

15. Dr. Willis is a physician board-certified in

obstetrics and gynecology, and maternal-fetal medicine. Based

on his review of the medical records, Dr. Willis was of the

opinion the records failed to support a conclusion that Natalie

suffered a brain injury caused by oxygen deprivation or trauma

during labor, delivery, or resuscitation. Dr. Willis expressed

the bases for his opinion, as follows:

Q. After reviewing the records in this

case, what is your opinion concerning

whether there was an injury to Natalie's

brain or spinal cord caused by oxygen

deprivation or mechanical injury?

A. After reviewing the records, I don't

think that Natalie's injury was a result of

oxygen deprivation or trauma at the time of

labor or delivery.

Q. Okay. Was there any resuscitation in

this case?

A. No, the baby did not require any

resuscitation. I looked at the fetal heart

rate monitor strip, and that looked good.

The baby was not in distress during labor.

The baby was born by spontaneous vaginal

birth. The birth weight was very

appropriate, seven pounds, two ounces.

There was a knot present in the umbilical

cord that was recorded, but the baby did not

require any resuscitation at birth. The

apgar scores were nine and nine, which are

perfectly normal. And, importantly, the

baby had a normal newborn course. Because

if a baby has oxygen deprivation during

labor or delivery that is sufficient to

cause brain damage, then they will -- they

will have problems during the newborn

hospital course, things such as seizures,

feeding difficulties, abnormalities with

their platelet counts, they'll be lethargic,

they'll have neurologic problems. And this

baby had a relatively normal newborn course.

Q. So is that the basis for you determining

there is no oxygen deprivation or trauma at

birth?

A. Yes.

* * *

MS. STOREY: Hello, Mrs. Taylor?

MRS. TAYLOR: Yes.

MS. STOREY: . . . Did you have a question?

MRS. TAYLOR: How he's saying that Natalie

did not have oxygen, when Natalie came out,

Natalie was blue and she had to have oxygen

hooked up to her. She did have it hooked

up, but it was not recorded.

DOCTOR WILLIS: Do you want me to answer?

MS. STOREY: Yeah, go ahead.

DOCTOR WILLIS: Okay. Ms. Taylor, let me

try to answer that. First of all, I did not

really say that the baby did not have some

oxygen deprivation at time of labor or

delivery. What I can say is . . . that the

baby did not have oxygen deprivation or lack

of oxygen at time of labor and delivery that

would be sufficient to cause brain injury.

So I'm really not arguing the point. You

know, if she looked blue at birth or

required a little oxygen at birth, that's

really not a point that I'm arguing. What

I'm simply saying is, is that if a baby has

oxygen deprivation or lack of oxygen during

labor and delivery that is sufficient to

cause brain injury, then those babies will

have many other problems. They won't act

like normal newborn babies.

And let me get any questions you have about

that, or I can explain more to you about

that. But when a baby has oxygen -- lack of

oxygen, enough to cause brain injury, they

get brain swelling, and it really affects

them dramatically in that for several days

they may be very lethargic, their muscle

tone is very poor, many different things

that we see.

* * *

Q. . . . And have the opinions that you've

rendered with respect to this case been

provided within a reasonable degree of

medical probability?

A. Yes.

(Respondent's Exhibit 1, pages 5-9).

16. The opinions of Doctors Duchowny and Willis regarding

the likely cause of Natalie's impairments were not controverted

or shown to lack credibility. Consequently, it must be resolved

that the cause of Natalie's impairments was most likely

developmentally based, as opposed to birth-related. See Thomas

v. Salvation Army , 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In

evaluating medical evidence, a judge of compensation claims may

not reject uncontroverted medical testimony without a reasonable

explanation.").

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

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

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

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

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

Petitioners to demonstrate that Natalie 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.").

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

more likely than not, Natalie's neurologic impairments were the

result of an injury to the brain or spinal cord caused by oxygen

deprivation or mechanical injury occurring in the course of

labor, delivery, or resuscitation in the immediate postdelivery

period in the hospital. Consequently, given the provisions of

Section 766.302(2), Florida Statutes, Natalie was not shown to

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. 2d 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).

25. 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 Michelle Taylor

and Dennis Taylor, Jr., on behalf of and as parents and natural

guardians of Natalie Taylor, a minor, is dismissed with

prejudice.

DONE AND ORDERED this 23rd day of April, 2008, 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 23rd day of April, 2008.

ENDNOTES

1/ At hearing, Petitioners offered testimony that the umbilical

cord had two knots. However, the Delivery Record and Progress

Notes document "one true knot." (Petitioners' Exhibit 1).

2/ The record is not clear as to a precise date Natalie first

began to evidence developmental delays. However, a History and

Physical at Wolfson Children's Hospital on November 13, 2002,

noted "Her developmental milestones, thus far, have been

normal," and a History and Physical at Flagler Hospital on

May 2, 2003, noted "She has had delayed development in her motor

and sensory skills."

COPIES FURNISHED :

(Via Certified Mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7005 1820 0002 9840 5898)

Tana D. Storey, Esquire

Brewton Plante, P.A.

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

(Certified Mail No. 7005 1820 0002 9840 5904)

Dennis Taylor, Jr.

Michelle Taylor

1870 Adams Acres Road

St. Augustine, Florida 32084

(Certified Mail No. 7005 1820 0002 9840 5911)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7005 1820 0002 9840 5928)

Amnath Kirdnual, M.D.

201 Health Park Boulevard, Suite 211

St. Augustine, Florida 32086

(Certified Mail No. 7005 1820 0002 9840 5935)

Flagler Hospital

400 Health Park Boulevard

St. Augustine, Florida 32086

(Certified Mail No. 7005 1820 0002 9840 5942)

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.