08-002167N Aimee Redwine, On Behalf Of And As Parent And Natural Guardian Of Eliana Redwine, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, August 11, 2009.

Summary: The cause of infant's impairments was most likely a congenital brain injury that predated the onset of labor. The claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AIMEE REDWINE, ON BEHALF OF AND )

AS PARENT AND NATURAL GUARDIAN )

OF ELIANA REDWINE, A MINOR, )

)

Petitioner, )

)

vs. ) Case No. 08-2167N

)

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 May 28, 2009, by video

teleconference, with sites in Tallahassee and Gainesville,

Florida.

APPEARANCES

For Petitioner: Michael K. Bailey, Esquire

Bailey & Myers, P.A.

875 Concourse Parkway South, Suite 195

Maitland, Florida 32751

For Respondent: David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

STATEMENT OF THE ISSUE

At issue is whether Eliana Redwine, a minor, qualifies for

coverage under the Florida Birth-Related Neurological Injury

Compensation Plan (Plan).

PRELIMINARY STATEMENT

On May 2, 2008, Aimee Redwine, on behalf of and as parent

and natural guardian of Eliana Redwine (Eliana), a minor, filed

a petition (claim) with the Division of Administrative Hearings

(DOAH) for benefits under the Plan.

DOAH served the Florida Birth-Related Neurological Injury

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

May 5, 2008, and on October 20, 2008, 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 Eliana did not suffer a

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

requested that a hearing be scheduled to resolve the issue.

At hearing, Cynthia Van and Aimee Redwine testified on

behalf of Petitioner, and Joint Exhibits 1A and 1B, Petitioner's

Exhibits 1-3, and Respondent's Exhibits 1-4 were received into

evidence. No other witnesses were called and no further

exhibits were offered.

The transcript of the hearing was filed June 19, 2009, 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.

FINDINGS OF FACT

Stipulated facts 1

1. Petitioner, Aimee Redwine, is a parent and natural

guardian of Eliana Redwine. Eliana was born a live infant on

October 10, 2006, at Shands at AGH, a licensed Florida hospital

located in Gainesville, Florida, and her birth weight exceeded

2,500 grams.

2. Obstetrical services were delivered at Eliana's birth

by George Buchanan, 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 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." 2

§ 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla.

Stat.

4. Here, it is undisputed that Eliana suffered a brain-

damaging event, 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 was "caused by oxygen deprivation or

mechanical injury occurring 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.").

Eliana's birth and immediate newborn course

5. At or about 11:43 a.m., October 10, 2006, Mrs. Redwine,

with an estimated delivery date of October 17, 2006, and the

fetus at 39 3/7 weeks' gestation by ultrasound (US), was

admitted to Shands at AGH for induction of labor due to

preeclampsia. There, fetal monitoring revealed an overall

reassuring fetal heart rate in the 140 beat per minute range,

and vaginal examination revealed the cervix at 2-3 centimeters

dilation, effacement at 50 percent, and the fetus high.

6. Mrs. Redwine was induced with Petocin, starting at

2:36 p.m.; progressed to complete dilation by 9:58 p.m.; and at

10:05 p.m., Eliana was born by spontaneous vaginal delivery. In

the interim, at 6:16 p.m., Mrs. Redwine's membranes were

artificially ruptured, with clear fluid noted, and fetal

monitoring remained reassuring. At delivery, a single nuchal

cord was noted, and relieved.

7. According to the medical records, Eliana cried

spontaneously following delivery; was bulb-suctioned, dried, and

stimulated; and was assigned Apgar scores of 8 and 8, at one and

five minutes, respectively. However, Eliana subsequently showed

evidence of respiratory distress (retractions and grunting) 3 and,

at or about 10:20 p.m., a Neonatal Intensive Care Nurse (NICU)

nurse (Melissa Decker, R.N.) was called to observe her. (Joint

Exhibit 1B, Tab 14, Bate Stamp p. 408).

8. The NICU nurse arrived at labor and delivery when

Eliana was 20 minutes of age (10:25 p.m.), and noted moderate

subcostal retractions, with grunting; some central cyanosis;

significant facial bruising; and oxygen being provided via blow-

by. Eliana was suctioned by catheter, with a copious amount of

thick mucous returned, and transported to the neonatal intensive

care unit for continued care via transport isolette, with blow-

by oxygen provided during transport. (Joint Exhibit 1B, Tab 14,

Bate Stamp p. 408).

9. Eliana was received in the neonatal intensive care unit

at or about 10:35 p.m., and placed on a radient warmer (RW) bed.

Oxygen saturation was noted as 92% with blow-by.

10. Eliana was placed under an oxyhood, with oxygen

started at 90%, and a decrease in cyanosis was noted. By

12:15 a.m., October 11, 2006, no further grunting or retractions

were noted, oxygen saturation was noted as 100%, and Eliana was

described as pink and well-perfused. Orders were received to

begin weaning, and by 1:30 a.m., Eliana was weaned to room air,

with oxygen saturation noted as 98%. Eliana experienced no

further respiratory difficulties, and was discharged with her

mother on October 13, 2006.

Eliana's subsequent development

11. On April 5, 2007, Eliana was seen by Myra Alfino,

M.D., a pediatrician associated with the University of Florida,

for developmental delay. Dr. Alfino noted a number of

abnormalities, including microcephaly (37.8 cm), eyes not

tracking, and hypotonia, and ordered a brain MRI. The MRI, done

April 11, 2007, was reported, as follows:

Findings: This study is abnormal. There is

advanced global atrophy. There is diffuse

leukomalacia of the white matter of the

cerebrum and of the dentate nuclei of the

cerebellum and Wallerian degeneration in

long tracks. Patient motion precludes

evaluation of the optic nerve size. There

is compensatory extra-axial fluid. There is

a focal intradural blood collection of acute

to subacute nature along the posterior falx.

The corpus callosum is small. The paranasal

sinuses and oto-mastiod air cells are

normally developed and aerated without

evidence of acute or chronic mucoperiosteal

thickening or intrasinus fluid.

IMPRESSION:

1. Post anoxic brain damage producing

microcephaly and extensive leukomalacia.

2. Small subacute intradural hemorrhage as

above.

12. Following the MRI, Eliana was seen by Dr. Omid

Rabbani, a resident doing a 3-month rotation in pediatric

neurology, and Dr. Edgar Andrade, a physician board-certified in

neurology with special competence in child neurology, and

Assistant Professor in the College of Medicine, Department of

Pediatrics, Division of Pediatric Neurology, who was

Dr. Rabbani's attending (supervising) physician. Dr. Andrade

included the following attending attestation to Dr. Rabbani's

report:

I have spoke with the caregivers and have

examined the patient and have formulated a

join[t] history, physical assessment and

plan of care, as Dr. Rabbani has documented

it. The patient reportedly suffered anoxic

brain injury at the time of birth.[ 4 ]

Neurological exam was significant for poor

head control, diffuse hypotonia,

hyperreflexia and a brisk Moro response.

Brain MRI supports the notion of post anoxic

brain damage. I have educated the family

about potential complications of such

findings included but not limited to

cerebral palsy and developmental delay. I

have recommended enrolling the patient in a

comprehensive multidisciplinary program

where she can receive physical, occupational

and speech therapy. Follow up in the clinic

in 3-4 months.

Notably, neither Dr. Rabbani nor Dr. Andrade expressed an

opinion regarding the cause or timing of Eliana's brain injury.

(Petitioner's Exhibit 1; Respondent's Exhibit 3).

The likely cause and timing of Eliana's brain injury

13. To address the likely etiology of Eliana's brain

injury, NICA offered the deposition testimony of Donald Willis,

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

and maternal-fetal medicine, and Raymond Fernandez, M.D., a

pediatric neurologist.

14. Dr. Willis reviewed the medical records associated

with Eliana's birth and newborn course and concluded that, more

likely than not, Eliana did not suffer a brain injury caused by

oxygen deprivation or mechanical injury during labor, delivery,

or resuscitation in the immediate postdelivery period. 5 In so

concluding, Dr. Willis observed that fetal monitoring during

labor was reassuring; the baby's Apgar scores were good (8 at

one and five minutes); the baby did not require any significant

resuscitation at birth; and there was no clinical evidence of an

acute brain injury during Eliana's immediate newborn course.

(Respondent's Exhibit 4).

15. Dr. Fernandez evaluated Eliana on October 1, 2008.

Based on that evaluation, as well as his review of the medical

records, Dr. Fernandez was of the opinion that Eliana was

permanently and substantially mentally and physically impaired,

and that the cause of such neurologic impairment was the brain

damaging event revealed by the MRI scan of April 11, 2007. As

for the etiology of the brain injury, Dr. Fernandez was of the

opinion that, while its cause could not be identified, 6 the

injury most likely occurred in utero , weeks or months before the

onset of labor, and not during labor, delivery, or resuscitation

in the immediate postdelivery period. (Respondent's Exhibit 2).

16. In expressing, his opinion, Dr. Fernandez noted that,

at birth, Eliana presented with a congenital microcephaly, a

head circumference of 30.5 centimeters (cm) that was way below

the third percentile for age matched controls; that such

condition is consistent with long-standing growth retardation of

the brain during the course of pregnancy; and that when he

examined Dr. Eliana, at almost two years of age, her head

circumference, at 39.5 cm, was still well below the third

percentile. Moreover, Dr. Fernandez, like Dr. Willis, was of

the opinion that there was no clinical evidence to support the

conclusions that, more likely than not, Eliana suffered a

significant brain injury during labor, delivery, or immediately

thereafter. (Respondent's Exhibit 2).

17. Notably, when a medical condition is not readily

observable, issues of causation are essentially medical

questions, requiring expert medical evidence. See , e.g. , Vero

Beach Care Center v. Ricks , 476 So. 2d 262, 264 (Fla. 1st DCA

1985)("[L]ay testimony is legally insufficient to support a

finding of causation where the medical condition involved is not

readily observable."); Ackley v. General Parcel Service , 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."); 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 causal connection."). Here, Petitioner

offered no expert testimony to support a finding regarding the

cause or timing of Eliana's brain injury, and the opinions of

Doctors Willis and Duchowny were logical, consistent with the

record, not controverted, and not shown to lack credibility.

Consequently, it must be resolved that Eliana's brain injury

represents a congenital abnormality, that predated the onset of

labor, as opposed to a "birth-related neurological injury." 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

18. The Division of Administrative Hearings has

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

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

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

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

Petitioner to demonstrate that Eliana suffered a "birth-related

neurological injury." See § 766.309(1)(a), Fla. Stat. See also

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 of

an issue before an administrative tribunal.").

25. Here, the proof failed to demonstrate that Eliana's

impairments were, more likely than not, caused by an "injury to

the brain . . . 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 Eliana's neurologic impairments was most likely a

congenital brain injury, that predated the onset of labor.

Consequently, given the provisions of Section 766.302(2),

Florida Statutes, Eliana 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).

26. 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

Aimee Redwine, on behalf of and as parent and natural guardian

of Eliana Redwine, is dismissed with prejudice.

DONE AND ORDERED this 11th day of August, 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 August, 2009.

ENDNOTES

1/ Joint Pre-Hearing Stipulation; Transcript, p. 3.

2/ 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 or proof to support a conclusion

that Eliana suffered an injury to the spinal cord.

Consequently, that alternative need not be addressed.

3/ Karen Dees, an advanced registered nurse practitioner (ARNP)

characterized Eliana's respiratory distress as mild. (Joint

Exhibit 1A, Tab 5, Bate Stamp page 7).

4/ The source of this information was Eliana's mother,

Mrs. Redwine.

5/ 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.

§ 766.301(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 1:30 a.m., October 11,

2006, by which time Eliana had been weaned to room air.

Thereafter, Eliana required no further intervention.

6/ According to Dr. Fernandez, such injury could be associated

with reduced blood flow, reduced oxygen, infection, and some

metabolic diseases. (Respondent's Exhibit 2, p. 19).

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. 91 7108 2133 3935 7992 4635)

Michael K. Bailey, Esquire

Bailey & Myers, P.A.

875 Concourse Parkway South, Suite 195

Maitland, Florida 32751

(Certified Mail No. 91 7108 2133 3935 7992 4642)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

(Certified Mail No. 91 7108 2133 3935 7992 4659)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 91 7108 2133 3935 7992 4666)

George Buchanan, M.D.

171 Southwest 4th Avenue

Gainesville, Florida 32601

(Certified Mail No. 91 7108 2133 3935 7992 4673)

Shands at AGH

801 Southwest 2nd Avenue

Gainesville, Florida 32601

(Certified Mail No. 91 7108 2133 3935 7992 4680)

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.