08-003097N Miguel Hernandez And Lynn Henandez, On Behalf Of And Natural Guardians Of Christian M. Hernandez, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, March 17, 2009.

Summary: The cause of the infant`s impairments was most likely developmentally based, as opposed to birth-related, and infant was not substantially mentally and physically impaired. The claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIGUEL HERNANDEZ AND LYNN )

HERNANDEZ, ON BEHALF OF AND )

NATURAL GUARDIANS OF CHRISTIAN )

M. HERNANDEZ, A MINOR, )

)

Petitioners, )

)

vs. ) Case No. 08-3097N

)

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

)

Respondent, )

)

and )

)

MOUNT SINAI MEDICAL CENTER OF )

FLORIDA, INC., and IGNACIO A. )

ZABALETA, M.D., )

)

Intervenors. )

)

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 January 20, 2009, by video

teleconference, with sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioners: Natasha Cortes, Esquire

Grossman Roth, P.A.

2525 Ponce de Leon Boulevard, Suite 1150

Coral Gables, Florida 33134

For Respondent: David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

For Intervenors: Scott E. Solomon, Esquire

Falk, Waas, Hernandez, Cortina,

Solomon & Bonner, P.A.

Two Alhambra Plaza, Suite 750

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

At issue is whether Christian M. Hernandez, a minor,

qualifies for coverage under the Florida Birth-Related

Neurological Injury Compensation Plan (Plan).

PRELIMINARY STATEMENT

On June 24, 2008, Miguel Hernandez and Lynn Hernandez, on

behalf of and as natural guardians of Christian M. Hernandez

(Christian), a minor, filed a petition with the Division of

Administrative Hearings (DOAH) to resolve whether Christian

qualified for coverage under the Plan.

DOAH served the Florida Birth-Related Neurological Injury

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

June 25, 2008, and on September 26, 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 Christian did not

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

Section 766.301(2), Florida Statutes, and requested that a

hearing be scheduled to resolve the issue. In the interim,

Mount Sinai Medical Center of Florida, Inc. (Mount Sinai Medical

Center), and Ignacio A. Zabaleta, M.D., were accorded leave to

intervene.

At hearing, Joint Exhibits 1-5, and Intervenors' Exhibits 1

and 2 were received into evidence. No witnesses were called,

and no further exhibits were offered.

The transcript of the hearing was filed January 29, 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

Preliminary findings related to compensability

1. Miguel Hernandez and Lynn Hernandez, are the parents

and natural guardians of Christian M. Hernandez, a minor.

Christian was born a live infant on March 28, 2005, at Mount

Sinai Medical Center, a hospital located in Miami Beach,

Florida, and his birth weight exceeded 2,500 grams.

2. Obstetrical services were delivered at Christian's

birth by Melvin E. Castillo, 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." 1

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

Stat.

4. Here, Petitioners and NICA are of the view that

Christian did not suffer such an injury, whereas Intervenors

hold a contrary view.

Whether Christian suffered a "birth-related neurological injury"

5. To address whether Christian suffered a "birth-related

neurological injury," the parties offered the Mount Sinai

Medical Center records associated with Christian's birth and

immediate newborn course, March 28, 2005, to April 2, 2005

(Joint Exhibits 1 and 2), as well as the Miami Children's

Hospital medical records associated with his subsequent care,

April 2, 2005, to May 11, 2005 (Joint Exhibit 3). The parties

also offered the deposition testimony of Donald Willis, M.D., a

physician board-certified in obstetrics and gynecology, and

maternal-fetal medicine, and Michael Duchowny, M.D., a physician

board-certified in pediatrics, neurology with special competence

in child neurology, electroencephalography, and neurophysiology.

(Joint Exhibits 4 and 5).

6. Dr. Willis reviewed the medical records related to

Christian's birth and subsequent development, and accurately

summarized his history, as follows:

. . . The mother, Lynn Hernandez, was a 36

year old G3 P2 admitted at term in early

labor. Her cervix was dilated 2 cms. She

was taking Synthroid for hypothyroidism and

had a previous Cesarean delivery. Meconium

was identified with rupture of the

membranes. Ampicillin was given during

labor.

The fetal heart rate pattern on admission

had a normal baseline and was reactive.

Variable decelerations, to about 90 bpm,

developed during the second stage of labor

and vacuum assisted delivery was done for

this indication. Vacuum was applied and the

baby was delivered on the first pull.

Delivery was complicated by a tight nuchal

cord and mild shoulder dystocia. McRoberts

maneuver was required for delivery of the

shoulders. Birth weight was 4,180 grams or

9 lbs 3 ozs. No meconium was identified

below the vocal cords by neonatal

evaluation.

Apgar scores were 7/9/9. The baby was

floppy at birth, but responded to

resuscitation. From the delivery room, the

baby was taken to the NICU for possible

sepsis and respiratory distress.

Retractions and a rapid respiratory rate

were present. Neurologic exam was normal.

Oxygen saturation was in the 90's on

admission, but the baby was unable to

maintain adequate oxygenation with hood

oxygen. Oxygen saturation dropped to the

50's and intubation and mechanical

ventilation was required shortly after

being admitted to the NICU (about one hour).

Respiratory distress continued with

progressively increasing ventilator settings

required to maintain adequate oxygenation.

The baby was transferred to Miami Children's

Hospital for possible ECMO.

Diagnoses included meconium aspiration

syndrome, suspected viral pneumonia and

significant pulmonary hypertension. Chest

tubes were placed for pneumothorax.

Respiratory distress worsened and ECMO was

started. Head ultrasound was done before

ECMO and was normal. The baby suffered an

intracranial hemorrhage while on ECMO, which

required discontinuation of ECMO. The baby

was on ECMO for 32 hours. Serial CT scans

showed an evolving intracranial hemorrhage

with eventual development of a porencephalic

cyst. The baby was discharged home on day

43 of life.

(Joint Exhibit 4; See also Joint Exhibit 1; Joint Exhibit 2,

Discharge Summary; Joint Exhibit 3, Discharge Summary).

7. Based on his evaluation of the medical records, it was

Dr. Willis' opinion that Christian did not suffer a brain injury

caused by oxygen deprivation or mechanical injury during labor,

delivery, or resuscitation in the immediate postdelivery period,

and that the intracranial hemorrhage he suffered while on ECMO,

was a complication of the blood thinner (anti-coagulant)

required for ECMO therapy. 2 (Joint Exhibit 4, pp. 13, 14, and

22). Compare , Orlando Regional Health Care System, Inc. v.

Florida Birth-Related Neurological Injury Compensation

Association , 33 Fla. L. Weekly D2563 (Fla. 5th DCA 2008)(Where

infant found to have suffered a "birth-related neurological

injury" when it was shown that the infant required active

resuscitation from birth until he was placed on ECMO bypass

hours after his birth, and that the infant suffered a brain

injury caused by oxygen deprivation, which rendered him

permanently and substantially mentally and physically impaired,

between the time of birth and the time of being placed on

ECMO.). Notably, it was not shown through Dr. Willis' testimony

or otherwise that Christian's intracranial hemorrhage was caused

by oxygen deprivation or mechanical injury, and Dr. Willis

offered no opinion regarding the significance of, or any

sequelae caused by, the brain injury Christian suffered while on

ECMO. (Joint Exhibit 4, p. 14).

8. Dr. Duchowny evaluated Christian on September 28, 2007.

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

records, Dr. Duchowny was of the opinion that Christian's

impairments were, more likely than not, the result of a

developmentally based brain disorder, as opposed to a brain

injury. Dr. Duchowny was also of the opinion that Christian

does not have a substantial physical impairment. Rather his

motor function is essentially appropriate for age and he does

not currently demonstrate, and is unlikely to demonstrate in the

future, a substantial mental impairment. (Joint Exhibit 5).

9. When, as here, the 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, the opinions of

Doctors Willis and Duchowny were not controverted or shown to

lack credibility. Consequently, it must be resolved that the

cause of Christian's impairments was most likely a

developmentally based brain abnormality, as opposed to a "birth-

related neurological injury," and, regardless of the etiology of

his impairments, he is not permanently and substantially

mentally and physically impaired. 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

10. The Division of Administrative Hearings has

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

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

11. 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.

12. 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.

13. 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(6), 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.

14. 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.

15. 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.

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

Intervenors to demonstrate that Christian 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.").

17. Here, indisputably, Christian's neurologic impairments

were not "caused by an injury to the brain . . . caused by

oxygen deprivation or mechanical injury occurring in the course

of labor, delivery, or resuscitation" and, regardless of the

etiology of his problems, Christian is not permanently and

substantially mentally and physically impaired. Consequently,

given the provisions of Section 766.302(2), Florida Statutes,

Christian 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); Florida Birth-Related Neurological

Injury Compensation Association v. Florida Division of

Administrative Hearings , 686 So. 2d 1349 (Fla. 1997)(The Plan is

written in the conjunctive and can only be interpreted to

require both substantial mental and substantial physical

impairment.).

18. 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

Miguel Hernandez and Lynn Hernandez, on behalf of and as natural

guardians of Christian M. Hernandez, a minor, is dismissed with

prejudice.

DONE AND ORDERED this 17th 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 17th day of March, 2009.

ENDNOTES

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

provides:

(2) Birth-related neurological injury means

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in 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 Christian suffered an injury to the spinal cord.

Consequently, that alternative need not be addressed.

2/ The use of a blood thinner (anti-coagulant) required for

ECMO therapy significantly increases the risk that any

hemorrhage will be clinically significant. (Joint Exhibit 4, p.

22).

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. 7008 3230 0001 6307 8848)

Natasha Cortes, Esquire

Grossman Roth, P.A.

2525 Ponce de Leon Boulevard, Suite 1150

Coral Gables, Florida 33134

(Certified Mail No. 7008 3230 0001 6307 8855)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

(Certified Mail No. 7008 3230 0001 6307 8879)

Scott E. Solomon, Esquire

Falk, Waas, Hernandez, Cortina,

Solomon & Bonner, P.A.

Two Alhambra Plaza, Suite 750

Coral Gables, Florida 33134

(Certified Mail No. 7008 3230 0001 6307 8886)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7008 3230 0001 6307 8893)

Melvin E. Casillo, M.D.

4302 Alton Road, Suite 580

Miami Beach, Florida 33178

(Certified Mail No. 7008 3230 0001 6307 8909)

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.