08-001140N Douglas Stalley, As Guardian Of The Property Of Inaaya Limone vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, March 11, 2009.

Summary: The infant`s brain injury likely post-dated "resuscitation in the immediate postdelivery period." Therefore, the claim was not compensable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS STALLEY, AS GUARDIAN OF )

THE PROPERTY OF INAAYA LIMONE, )

)

Petitioner, )

)

vs. ) Case No. 08-1140N

)

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

)

Respondent, )

)

and )

)

FLORIDA HEALTH SCIENCES CENTER, )

INC., d/b/a TAMPA GENERAL )

HOSPITAL, )

)

Intervenor. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative

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

a hearing in the above-styled case on November 13 and 14, 2008,

by video teleconference, with sites in Tallahassee and Tampa,

Florida.

APPEARANCES

For Petitioner: William E. Hahn, Esquire

William E. Hahn, P.A.

310 South Fielding Avenue

Tampa, Florida 33606-2225

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

Stiles, Taylor & Grace, P.A.

Post Office Box 460

Tampa, Florida 33606

For Intervenor: Edward J. Carbone, Esquire

Patricia S. Calhoun, Esquire

Buchanan Ingersoll, P.A.

2500 Suntrust Financial Centre

401 East Jackson Street

Tampa, Florida 33602

STATEMENT OF THE ISSUE

At issue is whether Inaaya Limone, a minor, qualifies for

coverage under the Florida Birth-Related Neurological Injury

Compensation Plan (Plan).

PRELIMINARY STATEMENT

On March 5, 2008, Douglas Stalley, as Guardian Ad Litem for

Inaaya Limone (Inaaya), a minor, filed a petition with the

Division of Administrative Hearings (DOAH) to resolve whether

Inaaya qualified for coverage under the Plan. The petition

included the following allegations:

9. The Petitioners do not believe that

Inaaya Limone suffered a "birth-related

neurological injury["] which was caused by

oxygen deprivation or mechanical injury

occurring in course of labor, delivery or

resuscitation in the immediate post-delivery

period at Tampa General Hospital. While

Petitioners do believe that Inaaya Limone

has suffered permanent mental and physical

impairments, it is our firm belief that this

was a consequence of the failure to properly

staff and prepare for the extubation which

took place on March 31, 2004, more than two

full days following the birth of Inaaya

Limone.

10. Petitioners, in good faith, have filed

this Petition as a direct consequence of an

Order entered by the Honorable James M.

Barton, Tampa[,] Florida, abating a civil

action which has been brought against Tampa

General Hospital . . . . [Emphasis in

original]

DOAH served the Florida Birth-Related Neurological Injury

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

March 6, 2008, and on August 21, 2008, following a number of

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

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

compensable, and offered to provide benefits as prescribed by

the Plan. In the interim, Florida Health Sciences Center, Inc.,

d/b/a Tampa General Hospital, was accorded leave to intervene.

Given that Petitioner was of the view that Inaaya did not

suffer a "birth-related neurological injury," a hearing was

scheduled for November 13 and 14, 2008, to resolve whether the

claim was compensable. Left to resolve in a subsequent

proceeding were issues related to an award. § 766.309(4), Fla.

Stat.

At hearing, Joint Exhibits 1A, 1B, and 2-15 were received

into evidence, and Petitioner called Paul Gatewood, M.D.,

Enid Gilbert-Barness, M.D., William Spellacy, M.D., and

Michael Duchowny, M.D., as witnesses. No other witnesses were

called, and no further exhibits were offered.

The transcript of the hearing was filed November 26, 2008,

and the parties were initially accorded 10 days from that date

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

time for filing proposed orders was extended to December 16,

2008. The parties elected to file such proposals and they have

been duly-considered.

FINDINGS OF FACT

Stipulated facts

1. Douglas Stalley is the Guardian Ad Litem for

Inaaya Limone, a minor, and Fatima El-Atriss is Inaaya's mother.

Inaaya was born a live infant on March 29, 2004, at Florida

Health Sciences Center, Inc., d/b/a Tampa General Hospital, a

licensed hospital located in Tampa, Florida, and her birth

weight exceeded 2,500 grams.

2. Obstetrical services were delivered at Inaaya's birth

by William Spellacy, 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.

3. The participating physician (Dr. Spellacy) and the

hospital (Tampa General Hospital) complied with the notice

provisions of the Plan.

4. Inaaya sustained a brain injury caused by oxygen

deprivation and was thereby rendered permanently and

substantially mentally and physically impaired.

Coverage under the Plan

5. 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.

6. Here, it is undisputed that Inaaya suffered a brain

injury, caused by oxygen deprivation, which rendered her

permanently and substantially mentally and physically impaired.

What must be resolved is whether the record supports the

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

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

postdelivery period" in the hospital, as required for coverage

under the Plan. § 766.302(2), Fla. Stat.; 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 as written, the oxygen deprivation or

mechanical injury to the brain must take place during labor, or

delivery, or immediately afterward."). As to that issue,

Petitioner was of the view that Inaaya's brain injury was not

birth-related (did not result from oxygen deprivation that

occurred during labor, delivery, or resuscitation in the

immediate postdelivery period), but followed Inaaya's extubation

on March 31, 2004, when she stopped breathing, and efforts to

re-intubate her were not successful for 7 to 8 minutes. In

contrast, NICA was of the view that Inaaya's brain injury likely

resulted from oxygen deprivation that occurred during labor,

delivery, or resuscitation immediately thereafter. Intervenor

agreed with NICA's position, and further contended that the

oxygen deprivation caused Innaya to aspirate meconium, which

lead to meconium aspiration syndrome, with further injury to her

brain following delivery.

Inaaya's birth and immediate newborn course

7. At or about 12:01 a.m., March 29, 2004, Fatima El-

Atriss, with an estimated delivery date of March 8, 2004, and

the fetus post-dates at 43 weeks' gestation by ultrasound (US),

presented to Tampa General Hospital complaining of the onset of

uterine contractions at 7:00 p.m., the previous evening. There,

physical examination revealed Ms. El Atriss to be morbidly obese

(5'5", 383 lbs.); external fetal monitoring (begun at

12:11 a.m.) revealed an overall reassuring fetal heart rate in

the 160 beat per minute (BPM) range; and vaginal examination (at

12:40 a.m.) revealed the cervix at 1 centimeter dilation,

effacement thick, and the fetus high.

8. Ms. El-Atriss was admitted to labor and delivery at or

about 1:30 a.m., for induction of labor; was induced with

petocin; progressed to complete dilation by 2:07 p.m.; and at

2:14 p.m., Inaaya was born by spontaneous vaginal delivery. In

the interim, at 7:50 a.m., Ms. El-Atriss' membranes were

artificially ruptured, with thick meconium noted, and the Labor

and Delivery Record documents recurrent moderate/severe variable

decelerations and prolonged decelerations. However, given

Ms. El-Atriss' obesity, at times monitoring was difficult. But,

as late as 1:40 p.m., the physicians' progress notes described

the fetal heart rate as overall reassuring.

9. At delivery, Inaaya was described as pink and vigorous,

but with evidence of mild respiratory distress ("grunting") and

was provided blow-by oxygen for 1 minute and suctioned (by bulb

and catheter). Otherwise, Inaaya did not require resuscitation.

Apgar scores were good (8 and 9, at one and five minutes,

respectively). 1 Retractions were documented at 5 minutes of

life, with improvement at 15 minutes of life. (Joint Exhibit

1A, Labor and Delivery Record, page 2).

10. According to the medical records, Inaaya was

transferred to the newborn nursery at or about 2:25 p.m. (Joint

Exhibit 1A, Labor and Delivery Record, page 2). There,

admission examination was normal, except for skin (meconium

stained nails, skin and cord were noted), throat (secretions

were noted), and lungs (retractions, grunting, and tachypnea

were noted). Impression/Plan was noted as: (1) viable post-

term appropriate for gestational age female - routine care; (2)

tachypnea/respiratory distress (thick meconium) - required

blowby on delivery, now to keep oxygen saturation greater than

90 percent, check chest x-ray. (Joint Exhibit 2, Newborn

History and Physical).

11. Insofar as the record reveals, Inaaya did not require

intervention until 2:50 p.m., when her respiratory rate was

elevated at 84, her oxygen saturation level was low at 87, and

she was accorded blow-by oxygen. Thereafter, at 3:15 p.m.,

notwithstanding she was receiving blow-by oxygen, Inaaya's

respiratory rate was still elevated at 98, and her oxygen

saturations remained low at 81. (Joint Exhibit 2, Transition

Newborn Admission DataBase; Joint Exhibit 10, page 32).

Accordingly, Inaaya was immediately tranferred to the neonatal

intensive care unit (NICU) for further management.

12. Upon arrival at NICU, the neonatalogist noted that

Inaaya was crying, pink, well-perfused, in mild to moderate

distress (tachypnea, grunting, and retracting), and on exam

breath sounds were described as coarse with rales bilaterally.

Neurological exam was described as "normal/nonfocal."

Assessment was full-term, appropriate for gestational age baby

girl with meconium aspiration syndrome. Respiration plan

included NCPAP (nasal continuous positive airway pressure),

chest x-ray (CXR), and arterial blood gases (ABGs).

Neurological plan noted "[no] issues."

13. Following evaluation, Inaaya was placed on NCPAP, and

chest x-ray was obtained at 3:23 p.m., which showed marked

prominence of pulmonary vessels consistent with congestive heart

failure. However, an "emergency echocardiogram due to

[patient's] clinical deterioration to rule out congenital heart

disease," ordered at 4:56 p.m., showed normal intracardiac

anatomy, and revealed pulmonary hypertension with bi-directional

ductus. Initial arterial blood gases drawn at 4:07 p.m.,

indicated a pH of 7.43, PO 2 of 64, PCO 2 of 35, and a BE (base

excess) of 0, findings inconsistent with acidosis. (Joint

Exhibit 6, p. 15).

14. At or about 6:15 p.m., with her respiratory status

deteriorating, Inaaya was sedated in preparation for intubation,

and at 6:40 p.m., she was intubated and placed on high frequency

oscillator ventilation (HFOV) until the early morning of

March 30, 2004, when she was switched to synchronized

intermittent mandatory ventilation (SIMV). In the interim, at

11:00 p.m., March 29, 2004, Dopamine was added to Inaaya's

interventions to support her blood pressure, and when that

proved inadequate Dobutamine was added at 4:00 a.m., March 30,

2004.

15. At 3:10 p.m., March 31, 2004, Inaaya was extubated,

and immediately clamped down and became apnic, with bradycardia.

Code was initiated at 3:11 p.m., with chest compressions and

positive pressure ventilation (PPV), and four attempts were made

to re-intubate Inaaya, with the fourth attempt at 3:18 p.m.,

proving successful. Notably, during attempts to re-intubate

Inaaya copious secretions were visualized below the cords, and

they were suctioned following re-intubation. Following re-

intubation, Inaaya was placed on SIMV.

16. According to the Code 19 Flow Sheet, from 3:11 p.m.,

when the code was called, through re-intubation at 3:18 p.m.,

"pulse ox[imeter] not reading," and saturations were noted as

zero. During the same period, heart rate was noted as 40 to 50

beats per minute. Thereafter, at 3:19 p.m., heart rate was

noted as 50, with saturations at 20 percent; at 3:20 p.m., heart

rate was noted as 51, with saturations at 80 percent; and at

3:21 p.m., heart rate was noted at 117, with saturations at 77

percent. The Code ended at 3:25 p.m., and post-code heart rate

was documented as 210, with saturations at 99 percent.

17. Of note, the last arterial blood gas before the Code

was called, was taken at 1:52 p.m., and indicated a pH of 7.39,

PO 2 of 83, PCO 2 of 37, and a BD (base deficit) of 2, which were

within the reference range. First arterial blood gas following

the Code, at 3:33 p.m., indicated a pH of 7.10, PO 2 of 205, PCO 2

of 72, and a BD of 8, which were all outside the reference

range, and consistent with metabolic acidosis. Arterial blood

gases were still abnormal at 4:16 p.m., but by 6:57 p.m., they

were within the reference range.

18. Later on March 31, 2004, sedation (Versed and

Fentanyl) was decreased, and Inaaya was slowly weaned until

April 2, 2004, when Versed and Fentanyl were stopped. In the

interim, on April 1, 2004, the nurses note Inaaya's pupil

reaction as sluggish bilaterally. However, given Inaaya's

sedation, the reliability of such observation as clinical

evidence of neurologic injury is fairly debatable.

19. On April 7, 2004, an MRI of the brain was done. The

radiologist's impression was "[a]bnormal basal ganglia signal

[symmetrically demonstrated bilaterally involving the globus

pallidus]. This may be seen with hypoxia or hypoperfusion."

Follow-up MRI was done on December 1, 2004, and reported by the

same radiologist, as follows:

CLINICAL INDICATION: Developmental delay.

Abnormal MRI of the brain 04/07/04 performed

at Tower Advanced MRI.

The previous examination was performed at a

time with the clinical history of hypoxic

event. April, 2004. Comparison is made.

* * *

IMPRESSION:

1. SEQUELA ARE NOTED FROM HYPOXIC EVENT.

THE AREA OF THE BASAL GANGLIA PREVIOUSLY

NOTED AS ABNORMAL HAS EVOLVED INTO

ABNORMALLY DECREASED SIGNAL SUGGESTING THE

POSSIBILITY OF DYSTROPHIC CALCIFICATIONS....

Notably, while Inaaya's brain injury is consistent with a

hypoxic/ischemic event, it is not possible, based solely on the

MRIs, to time the onset of the injury ( i.e. , as birth-related or

as related to the Code event).

20. A neurology consult was requested, and on April 9,

2004, Inaaya was evaluated by Maria Gieron-Korthals, M.D., a

pediatric neurologist. Dr. Gieron-Korthals reported the results

of her evaluation, as follows:

REASON FOR CONSULTATION: Abnormal MRI and

poor sucking.

HISTORY OF PRESENT ILLNESS: This baby was

born on March 29th, so it is 12 days old by

normal vaginal delivery with meconium-

stained amniotic fluid and respiratory

distress, subsequently diagnosed with

meconium-aspiration syndrome . . . .

The baby was initially put on ventilator,

subsequently placed on CPAP and subsequently

on oxygen by a nasal cannula and now is on

room air. On day four of life, the infant

apparently coded and needed some pressors

for a couple of days. The present concern

is that the baby has a poor suck and does

not take a lot by mouth.

Regarding the feeding, the information I

gather is that the sucking ability is

inconsistent. At times the baby does suck

well, at some other time not. Nevertheless,

the baby is gaining weight and the feeding

is supplemented by NG. The MRI of the brain

was performed a couple of days ago and it

was abnormal showing bilateral basal ganglia

lesions ie decreased signal on diffusion-

weighted images of MRI. We reviewed the MRI

today.

PHYSICAL EXAMINATION: On physical

examination, the baby's behavior was

somewhat unusual. The baby had episodes of

very strong cry, inconsolable and then

suddenly would stop crying, become

motionless with eyes widely open and turned

down. This behavior occurred intermittently

throughout the entire period of evaluation.

The head was shaved for IV and all sutures

were somewhat overlapping anterior fontanel

can be covered with the tip of the fifth

finger. There was a swelling and redness of

the right lower eyelid more than the left.

The pupils seem equal and reactive to light

and eye's moved to doll's maneuver. The

facial expression was symmetrical and

movements were normal. The gag reflex,

however, is decreased and the sucking is

intermittent and not strong. The other

developmental reflexes, such as Moro, palmar

and plantar grasps were present, but rooting

was not elicited.

On motor system examination, even when the

baby was crying, there was a marked head lag

on pulling up to sitting position. The

posture of the rest of the body with flexion

at the elbows and knees was normal. In

ventral suspension, however, the head was

flexed and the back was curved, indicative

of mild hypotonia. Deep tendon reflexes

were about 1 biceps and patella and there

was no clonus at the ankle.

IMPRESSION: This is a 12 day-old baby with

meconium aspiration syndrome followed by an

episode during which the baby coded and with

abnormal MRI for basal ganglia involvement

which is most likely secondary to hypoxic

event that occurred during the above

episode. The baby's suck is indeed of

concern and so is the baby's behavior of

going from crying to motionless state. One

should consider the possibility of seizures

and the plan is to obtain one EEG today to

capture the episode of going from crying to

motionless state and determine whether or

not these are seizures . . . .

EEG was done and was interpreted as normal.

21. On April 12, 2004, Inaaya was discharged from Tampa

General Hospital. The diagnoses at that time included:

1) Meconium Aspiration Syndrome

2) Hypotension, resolved

3) Clinical Sepsis, resolved

4) Respiratory distress syndrome with

tacypnea, resolved

5) Poor po intake, resolved

Outpatient follow-up with pediatrics, neurology, and cardiology

was recommended.

22. Currently, Inaaya presents with severe cerebral palsy,

with profound mental and physical disabilities, that

indisputably are related to the brain injury she suffered (to

the basal ganglia) because of oxygen deprivation. Left to

resolve is the likely timing of Inaaya's brain injury.

The statutory presumption

23. When, as here, the proof demonstrates that the infant

suffered an injury to the brain caused by oxygen deprivation

that rendered her permanently and substantially mentally and

physically impaired, a rebuttable presumption arises that the

injury is a "birth-related neurological injury," as defined by

the Plan. § 766.309(1)(a), Fla. Stat. See also Orlando

Regional Healthcare System, Inc. v. Alexander , 909 So. 2d 582

(Fla. 5th DCA 2005). In this case, the presumptions is that

Inaaya's injury occurred "in the course of labor, delivery, or

resuscitation in the immediate postdelivery period in . . .

[the] hospital." Consequently, it must 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

Inaaya's injury "occurred in the course of labor, delivery, or

resuscitation in the immediate postdelivery period. 2 Here, there

should be no serious debate that credible evidence was produced

(through the medical records and the various experts and fact

witnesses who testified) to support a contrary conclusion.

The likely cause and timing of the brain injury that

rendered Inaaya profoundly, neurologically impaired

24. To address the likely cause and timing of the brain

injury that rendered Inaaya profoundly, neurologically impaired,

the parties offered the medical records related to Ms. El-

Atriss' antepartal course, as well as those associated with

Inaaya's birth and subsequent development. Additionally, the

parties offered the testimony (by deposition or live) of many of

the health care providers who were involved with Ms. El-Atriss'

and Inaaya's care at Tampa General Hospital, including

William Spellacy, M.D., the participating physician who provided

obstetrical services at Inaaya's birth; Enid Gilbert-Barness,

M.D., a pediatric pathologist; Terri Ashmeade, M.D., a

neonatologist; Maria Gieron-Korthals, M.D., a pediatric

neurologist; and Edward Blum, III, a respiratory therapist.

Finally, between them, the parties offered the testimony (by

deposition or live) of eight experts retained by them to offer

opinions related to the likely cause and timing of Inaaya's

brain injury. Offered by Petitioner were Paul Gatewood, M.D.,

an obstetrician/gynecologist; Michael Duchowny, M.D., a

pediatric neurologist; William Rhine, M.D., a neonatologist; and

Elias Chalhub, M.D., a pediatric neurologist. Offered by

Respondent was Joseph Casadonte, M.D., a pediatric neurologist,

and offered by Intervenor were Barry Schifrin, M.D., an

obstetrician/gynecologist; Edwina Popek, M.D., a pediatric

pathologist; and Marcus Hermansen, M.D., a neonatologist.

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

various health care providers, have been thoroughly reviewed.

Having done so, it is apparent that Inaaya developed respiratory

dysfunction, caused by meconium aspiration in utero , induced by

the stresses of labor, that revealed itself following delivery

with evidence of grunting and retractions. However, the record

failed to demonstrate that, more likely than not, any oxygen

deprivation she may have suffered during labor, delivery, or

resuscitation in the immediate postdelivery period, as a result

of her respiratory dysfunction or otherwise, resulted in brain

injury. Rather, the likely cause of Inaaya's brain injury was

shown to be the oxygen deprivation she suffered during the Code

event.

26. In so concluding, it is noted that, following delivery

at 2:14 p.m., March 29, 2004, Inaaya was described as pink and

vigorous, albeit with evidence of mild respiratory distress; she

required minimal resuscitation measures (blow-by oxygen for 1

minute and suctioning); her Apgar scores were good (8 and 9, at

one and five minutes, respectively); her initial arterial blood

gases at 4:07 p.m., did not reveal any acidosis; her

neurological evaluations before sedation at 6:40 p.m., were

normal; the first arterial blood gases following the Code event

of March 31, 2004, were consistent with metabolic acidosis;

there was evidence of neurologic dysfunction after, but not

before, sedation was stopped on April 2, 2004; and the MRI

results were consistent with an acute hypoxic ischemic event.

Given the proof, it is likely, as opined by the health care

providers offered by Petitioner, that the cause of Inaaya's

brain injury was the oxygen deprivation she suffered during the

Code event on March 31, 2004, and not any oxygen deprivation she

may have suffered during labor, delivery, or resuscitation in

the immediate postdelivery period in the hospital. 3

Consequently, Inaaya was not shown to have suffered a "birth-

related neurological injury" as defined by the Plan. §

766.302(2), Fla. Stat. See also 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 as written, the oxygen deprivation or mechanical injury to

the brain must take place during labor, or delivery, or

immediately afterward.").

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

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

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

28. 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.

29. 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 within five years

and 766.313, Fla. Stat. The Florida Birth-Related Neurological

Injury Compensation Association, which administers the Plan, has

"45 days from the date of service of a complete claim . . . in

which to file a response to the petition and to submit relevant

written information relating to the issue of whether the injury

is a birth-related neurological injury." § 766.305(3), Fla.

Stat.

30. 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. However, if a dispute

exists, as it does 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.

31. 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 post-delivery

period in a hospital; or by a certified

nurse midwife in a teaching hospital

supervised by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate post-delivery

period in a hospital.

§ 766.309(1), Fla. Stat. An award may be sustained only if the

administrative law judge concludes that the "infant has

sustained a birth-related neurological injury and that

obstetrical services were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

32. Pertinent to this case, "birth-related neurological

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

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case of a

multiple gestation, a live infant weighing

at least 2,000 grams at birth caused by

oxygen deprivation or mechanical 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.

33. As the proponents of the issue, the burden rested on

Respondent and Intervenor to demonstrate that Inaaya suffered a

"birth-related neurological injury." See Balino v. Department

of Health and Rehabilitative Services , 348 So. 2d 349, 350 (Fla.

1st DCA 1977)("[T]he burden of proof, apart from statute, is on

the party asserting the affirmative issue before an

administrative tribunal."); Galen of Florida, Inc. v. Braniff ,

696 So. 2d 308, 311 (Fla. 1997)("[T]he assertion of NICA

exclusivity is an affirmative defense."); Tabb v. Florida Birth-

Related Neurological Injury Compensation Association , 880 So. 2d

1253, 1260 (Fla. 1st DCA 2004)("As the proponent of the issue,

the burden rested on the health care providers to demonstrate,

more likely than not, that the notice provisions of the Plan

were satisfied.").

34. Here, the proof failed to demonstrate that Inaaya's

impairments were, more likely than not, caused by 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 a

hospital." Indeed, the more compelling proof established that

the cause of Inaaya's neurologic impairments was most likely a

brain injury caused by oxygen deprivation that post-dated labor,

delivery, and resuscitation in the immediate postdelivery

period. Consequently, given the provisions of Section

766.302(2), Florida Statutes, Inaaya does not qualify for

coverage under the Plan. See also Humana of Florida, Inc. v.

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

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

liabilities, it should be strictly construed to include only

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

Florida Birth-Related Neurological Injury Compensation

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

35. Where, as here, the administrative law judge

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

neurological injury . . . he [is required to] enter an 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 that the claim for compensation filed by

Douglas Stalley, as Guardian Ad Litem for Inaaya Limone, a

minor, is dismissed with prejudice.

DONE AND ORDERED this 11th day of March, 2009, 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]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of March, 2009.

ENDNOTES

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

a newborn infant, and reflects the sum points gained on

assessment of heart rate, respiratory effort, muscle tone,

reflex irritability, and color, with each category being

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

of 2. (Dorland's Illustrated Medical Dictionary, 28th Edition,

1994; Joint Exhibit 1A, Labor and Delivery Record). Here, at

one minute, Inaaya's Apgar score 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. At five

minutes, Inaaya's Apgar score totaled 9, with heart rate,

respiratory effort, muscle tone, and reflex irritability being

graded at 2 each, and color being graded at 1.

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

facilitate the determination of a particular action in which the

presumption is applied, rather than to implement public policy,

[it] is a presumption affecting the burden of producing

evidence." § 90.303, Fla. Stat. The nature and effect or

usefulness of such a presumption in assessing the quality of the

proof was addressed in Berwick v. Prudential Property and

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

as follows:

Unless otherwise provided by statute, a

presumption established primarily to

facilitate the determination of an action,

as here, rather than to implement public

policy is a rebuttable "presumption

affecting the burden of producing evidence,"

see § 90.303, Fla. Stat. (1981), a "bursting

bubble" presumption, see C. Ehrhardt, supra,

at §§ 302.1, 303.1. Such a presumption

requires the trier of fact to assume the

existence of the presumed fact unless

credible evidence 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

1982. See also Gulle v. Boggs , 174 So. 2d 26, 29 (Fla. 1965),

citing with approval Tyrrell v. Prudential Insurance Co. , 109

Vt. 6, 192 A. 184, 115 A.L.R. 392, wherein it was stated:

Presumptions disappear when facts appear;

and facts are deemed to appear when evidence

is introduced from which they may be found.

3/ 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.

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."

When not defined, "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.

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 as written, the oxygen

deprivation or mechanical injury to the brain must take place

during labor, or delivery, or immediately afterward."). 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)("[B]ecause the Plan . . . is a statutory substitute

for common law rights and liabilities, it should be strictly

construed to include only those subjects clearly embraced within

its terms."), approved , Florida Birth-Related Neurological

Injury Compensation Association v. McKaughn , 668 So. 2d 974, 979

(Fla. 1996).

Under the facts of this case, resuscitation in the immediate

postdelivery period ended not later than the five-minute Apgar,

by which time Inaaya had been provided blow-by oxygen for 1

minute and suctioned. Thereafter, Inaaya required no further

respiratory support until after her transfer to the newborn

nursery, when at 2:50 p.m., she was again provided blow-by

oxygen. Inaaya's subsequent brain injury, post-dated her

"resuscitation in the immediate postdelivery period." (Joint

Exhibit 6, pp. 36-39, 43-46, 66 and 67). Compare , Orlando

Regional Health Care System, Inc. v. Florida Birth-Related

Neurological Injury Compensation Association , 33 Fla.L.Weekly

D2563 (Fla. 5th DCA 2008).

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 4404 3664)

Edward J. Carbone, Esquire

Patricia S. Calhoun, Esquire

Buchanan Ingersoll, P.A.

2500 Suntrust Financial Centre

401 East Jackson Street

Tampa, Florida 33602

(Certified Mail No. 7099 3400 0010 4404 3657)

Robert J. Grace, Jr., Esquire

Stiles, Taylor & Grace, P.A.

Post Office Box 460

Tampa, Florida 33606

(Certified Mail No. 7099 3400 0010 4404 3640)

William E. Hahn, Esquire

William E. Hahn, P.A.

310 South Fielding Avenue

Tampa, Florida 33606-2225

(Certified Mail No. 7099 3400 0010 4404 3633)

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 4404 3626)

William Spellacy, M.D.

University of South Florida

College of Medicine

12901 Bruce B. Downs Boulevard, MDC 2

Tampa, Florida 33602

(Certified Mail No. 7099 3400 0010 4404 3619)

Tampa General Hospital

One Davis Boulevard

Tampa, Florida 33602

(Certified Mail No. 7099 3400 0010 4404 3602)

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.