08-003472N April D. Adams And Jeffrey Floyd Adams, Individually And On Behalf Of And As Parents And Natural Guardians Of Elizabeth Ann Adams, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, April 24, 2009.

Summary: Infant`s impairments were likely the result of a meningoencephalitis, as opposed to a brain injury caused by oxygen deprivation or mechanical injury, and infant not substantially impaired. Claim denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

APRIL D. ADAMS AND JEFFREY )

FLOYD ADAMS, INDIVIDUALLY AND )

ON BEHALF OF AND AS PARENTS AND )

NATURAL GUARDIANS OF ELIZABETH )

ANN ADAMS, A MINOR, )

)

Petitioners, )

)

vs. ) Case No. 08-3472N

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

MICHELLE MCLANAHAN, M.D., )

)

Intervenor. )

)

FINAL ORDER

With the parties' agreement, this case was resolved on an

agreed record.

APPEARANCES

For Petitioners: C. Rufus Pennington, III, Esquire

Margol & Pennington, P.A.

320 North First Street, Suite 609

Jacksonville Beach, Florida 32250

For Respondent: M. Mark Bajalia, Esquire Brennan, Manna & Diamond

800 West Monroe Street

Jacksonville, Florida 32202

For Intervenor: Richard E. Ramsey, Esquire

Wicker, Smith, O'Hara, McCoy,

Graham & Ford, P.A.

50 North Laura Street, Suite 3150

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

At issue is whether Elizabeth Ann Adams, a minor, qualifies

for coverage under the Florida Birth-Related Neurological Injury

Compensation Plan (Plan).

PRELIMINARY STATEMENT

On July 17, 2008, April D. Adams and Jeffrey Floyd Adams,

individually and on behalf of and as parents and natural

guardians of Elizabeth Ann Adams (Elizabeth), a minor, filed a

petition with the Division of Administrative Hearings (DOAH) to

resolve whether Elizabeth qualified for coverage under the Plan. 1

DOAH served the Florida Birth-Related Neurological Injury

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

July 17, 2008, and on September 18, 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 Elizabeth did not

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

Plan, and requested that a hearing be scheduled to resolve the

issue.

A hearing was scheduled for March 18, 2009, to resolve

whether the claim was compensable. In the interim,

Michelle McLanahan, M.D., was granted leave to intervene, and on

March 10, 2009, the parties filed a Joint Motion to Submit

Stipulated Factual Record and Written Argument in Lieu of a

Contested Hearing, together with a Pre-hearing Stipulation. An

Amended Pre-hearing Stipulation was filed March 12, 2009.

By Order of March 13, 2009, the parties' motion was

granted, and the hearing scheduled for March 18, 2009, was

cancelled. The parties' stipulated record, Exhibits 1-28, was

duly-filed and accepted. 2

The parties were accorded until March 30, 2009, to file

written argument or proposed orders. Petitioners elected to

file a Memorandum Regarding Final Order and Respondent elected

to file a Proposed Final Order. The parties' submittals have

been duly-considered.

FINDINGS OF FACT

Stipulated facts

1. April D. Adams and Jeffrey Floyd Adams are the natural

parents of Elizabeth Ann Adams, a minor. Elizabeth was born a

live infant on September 17, 2004, at St. Luke's Hospital, a

licensed hospital located in Jacksonville, Florida, and her

birth weight exceeded 2,500 grams.

2. Obstetrical services were delivered at Elizabeth's

birth by Michelle McLanahan, 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. Sufficient notice of participation in the Florida

Birth-Related Neurological Injury Compensation Plan on the part

of Michelle McLanahan, M.D., and St. Luke's Hospital was

provided to April D. Adams.

Coverage under the Plan

4. 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." 3

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

Stat.

5. Here, Petitioners were of the view that Elizabeth

suffered a subgaleal hemorrhage 4 (a bleed) and resulting

subgaleal hematoma 5 (a collection of blood within the tissue)

between the skull and scalp (outside the brain) resulting from

the use of the vacuum extractor during delivery, and that the

hemorrhage was substantial enough to result in hypovolemia, and

ultimately hypoxic-ischemic brain injury. 6 (Petitioners'

Memorandum Regarding Final Order, pp. 5-7). In contrast, NICA

was of the view that the record failed to support the conclusion

that Elizabeth's brain injury was caused by oxygen deprivation

or mechanical injury occurring in the course of labor, delivery,

or resuscitation in the immediate postdelivery period and that,

regardless of the etiology of her brain injury, Elizabeth was

not permanently and substantially mentally and physically

impaired. Intervenor expressed no position on the issue.

Elizabeth's birth and immediate newborn course

6. At or about 11:24 a.m., September 16, 2004, Mrs. Adams,

with an estimated delivery date of September 20, 2004, the fetus

at 39 3/7 weeks' gestation, and a history of mild pregnancy

induced hypertension (PIH), was admitted to St. Luke's Hospital

for induction of labor. There, initial physical examination

revealed her membranes were intact, no vaginal bleeding, and

external fetal monitoring revealed a reassuring fetal heart rate

baseline of 150-160 beats per minute, average long term

variability and no decelerations.

7. At or about 12:40 p.m., an IV was started for

hydration, and at 3:14 p.m., Mrs. Adams' membranes spontaneous

ruptured, with clear fluid noted. At the time, vaginal

examination revealed the cervix at 2 centimeters dilation,

effacement at 70 percent, and the fetus at -3 station. In the

interim, external fetal monitoring was reassuring for fetal

well-being. Thereafter, Cytotec ("miso[prostol]") was placed

vaginally to soften the cervix (for induction of labor).

8. Mrs. Adams' progress continued to be monitored, and at

6:10 p.m., vaginal examination revealed the cervix unchanged.

However, at 6:58 p.m., vaginal examination revealed some change,

with the cervix at 3-4 centimeters, effacement at 70 percent,

and the fetus at -3 station, and an intrauterine pressure

catheter (IUPC) was placed to measure the force of contractions

during labor. Fetal monitoring continued to be reassuring for

fetal well-being, with a fetal heart rate baseline of 145-160

beats per minute, average long term variability, and no

decelerations.

9. At 8:16 p.m., Pitocin infusion (for labor induction)

was started, and at 8:37 p.m., contractions were noted at 1-2

minutes, and vaginal examination revealed the cervix at 5

centimeters dilation, effacement at 70 percent, and the fetus at

-1 station. Fetal monitoring continued to be reassuring, with a

baseline in the 150s.

10. Mrs. Adams' progress continued, albeit slowly, with a

prolonged second stage of labor (the expulsion/pushing stage)

lasting more than two and a half hours, 7 and at 5:03 a.m.,

September 17, 2004, Elizabeth was delivered vaginally, with

vacuum assistance (three attempts). Of note, approximately

three hours before delivery, recurrent variable decelerations

and a mild baseline tachycardia developed, and approximately

eight minutes before delivery severe, repetitive variable

decelerations developed which prompted the vacuum-assisted

delivery.

11. At delivery, Elizabeth was dried, stimulated, and

bulb-suctioned, otherwise no resuscitation measures were

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

minutes). 8 Physical examination at 5:10 a.m., revealed no

abnormalities, with the exception of an elevated temperature

(102.7, rectal) and skin color (acrocyanosis was noted). 9 By

5:40 a.m., skin color was noted as pink.

12. Elizabeth roomed-in at her mother's bedside, and was

routinely monitored by hospital staff. Of note, Elizabeth's

temperature remained elevated until 1:30 p.m., when it was

documented at 98.1 (auxiliary). In the interim, at 11:58 a.m.,

with temperatures of 100.0 (auxiliary) and 100.7 (rectal),

complete blood count (CBC) and blood cultures were drawn.

13. The CBC results revealed an elevated white blood

count. Under the circumstances, the attending physician

(Dr. Schwartz) noted, at 4:34 p.m., "[w]ill repeat CBC in a.m.

. . . [w]ill not st[art] ABX unless temps elevated again."

Blood culture was subsequently reported as negative.

14. It also may be noted, although not shown to be

clinically significant, that Elizabeth's behavior was, starting

at 6:10 a.m., periodically described as "irritable" and "fussy."

(Exhibit 18, pp. 22-24). Otherwise, Elizabeth's newborn stay

was without incident, with normal newborn examinations,

breastfeeding well, and voiding and stooling appropriately,

until 8:35 p.m., when the attending nurse made the following

entry in the records:

Assumed care of infant. Infant/Mom ID #

checked/verified. Physical assessment done

and noted. Infant noted to be jittery and

irritable. Mom states that infant has not

breastfed since 1700-1730. Temp stable now

at 98.8. Infant noted to settle after

wrapping. Placed in mother's arms. Mom

will breastfeed infant shortly. Will eval

infant's next feeding.

Thereafter, at 8:42 p.m., the attending nurse made the following

entry:

Called into room by parents. States that

infant shreiked then arched her back and

turned purple. Upon enter room infant's

color noted to be dusky with purple lips.

Left eye noted to be turned in and rt eye

gazed. Unwrapped and body noted to be

modled but no shaking present at this time.

Infant taken to nicu for immediate

evaluation.

15. Elizabeth's subsequent care was summarized in her

Discharge Summary, as follows:

. . . Nursing brought the infant to this

Special Care Nursery and it was felt that

the infant was having seizure activity. At

this point a complete septic workup was

performed. The infant was placed on IV

antibiotics and further cultures including

spinal fluid were sent. The workup was

initially benign; however, a CT scan [on

September 18, 2004] was within normal limits

except that J. Norman Patton, M.D., Division

of Cardiovascular Diseases, Internal

Medicine, could not completely rule out some

mild evidence of inflammatory response in

the brain . . . .

16. The CT scan of September 18, 2004, was done to rule

out a bleed as the cause of Elizabeth's seizures, and was read

as follows:

CT head without and with contrast.

Iodinated contrast was given per protocol.

Nonionic contrast was utilized.

Small subgaleal hematoma in the biparietal

locations. The intracranial contents appear

unremarkable. Specifically, there is no

evidence for parenchymal/extra-axial

hemorrhage, nor pathologic enhancement. The

ventricle volume is within normal limits,

and without midline shift.

A subgaleal hematoma or hemorrhage is a bleeding between the

skull and the skin on the outside of the skull (scalp), and not

within the brain. (Exhibit 18, pp. 15, 16, and 18).

17. The Discharge Summary continued, and documented

Elizabeth's care as follows:

At this point acyclovir was also added to

the antibiotic regimen. The CSF PCR was

negative, but surface cultures revealed

positive HSV [herpes simplex virus] in the

rectal swab, although negative in the

oropharynx. For this reason the infant was

continued on acyclovir for a total of 21

days. After negative cultures the

ampicillin and gentamicin were discontinued.

The infant also required mild oxygen in this

period and was placed on 1.5 liters 30-40%.

Over the next several days this was able to

be discontinued. Dr. Gamma, Pediatric

Neurology, was involved in the patient's

case and consulted on a regular basis. EEG

was consistent with seizure activity. The

infant was on phenobarbital and later

secondary to continued occasional seizures,

was started on Cerebyx. The goal was to get

this infant's phenobarbital level to between

20 and 30; however, the infant metabolized

the phenobarbital very well and despite

increasing the dose, the phenobarbital level

remained in the 19-20 range. Eventually the

Cerebyx was discontinued and the infant is

discharged home only on phenobarbital. The

infant initially was fed fairly slowly, but

by the end of admission was eating well and

gaining weight steadily. The infant was

ready for discharge on 10/09/04 following 21

days of acyclovir and at this point the

infant had a phenobarbital level of 19.3 and

a weight of 3940 grams or 8 pounds 11

ounces. The parents have been very involved

with the infant, visited often, and have

demonstrated good care for this baby. The

infant's workup also includes urine for

amino acids, which was within normal limits.

Liver function tests were within normal

limits. Screening CBCs were within normal

limits. Ammonia was normal at 36. Urine

organic acids were within normal

limits . . . .

18. An MRI performed on September 22, 2004, revealed:

. . . restricted diffusion in the left

occipital lobe, both parietal and frontal

lobes, worse on the left, consistent with

cytotoxic edema as seen in infarction,

secondary to ischemic and or sequelae of

severe meningoencephalitis . . . . The

ventricle volume is within normal limits,

and without midline shift.

A head ultrasound performed on September 30, 2004, was normal

and reported, as follows:

Using the anterior fontanelle as an acoustic

window, routine coronal and sagittal images

were obtained.

No evidence for intracranial or germinal

matrix hemorrhage. Ventricles are not

dilated and appear normal in shape and

position. No obvious parenchymal

abnormality.

19. Elizabeth was discharged on October 9, 2004. Physical

examination on discharge was noted in her Discharge Summary, as

follows:

Physical exam on discharge revealed a

discharge weight of 3940 grams, length of

53 cm, and head circumference of 35.5 cm.

The infant was well-developed, well-

nourished, alert, pink non-jaundiced female

in no acute distress. HEENT was negative.

Anterior fontanelle was soft and flat.

Lungs were clear to auscultation in no

distress. Heart - Regular rhythm without

murmur. Abdomen - Soft, benign and

nontender. GU - Normal female. Back -

Normal extremities, negative Ortolani,

negative bilaterally. Neurologic exam

intact.

Discharge medication was phenobarbital. Follow-up was

recommended with pediatrics, neurology, Early Intervention

Program at Shands, and Occupational Therapy and Physical Therapy

at Nemours. Discharge Diagnoses were:

1) HSV ENCEPHALITIS - SEPSIS.

2) NEONATAL SEIZURES.

3) TERM FEMALE NEWBORN.

Of note, subsequent testing revealed that Elizabeth had not been

exposed to the herpes simplex virus (HSV), and the positive HSV

result was a false positive.

Elizabeth's subsequent development

20. Following Elizabeth's discharge from St. Luke's, she

was evaluated by the Early Intervention Program (in

October 2004) to resolve whether she qualified for services. At

the time, it was felt Elizabeth did not qualify for the program,

as her development was within normal limits (WNL) for her age.

However, in March 2005, at age 6 months, Elizabeth was

reevaluated and found eligible for occupational, speech, and

physical therapy services due to motor and language delay.

Those services were discontinued by October 2005, since

Elizabeth's developmental growth appeared age appropriate.

(Exhibit 7).

21. Elizabeth was weaned off phenobarbital at age 15

months (about December 2005) and remained seizure-free until

October 13, 2006, when a seizure was noted and she was

ultimately transported (after treatment in a local emergency

room) to Wolfson's Childrens Hospital (Wolfson's) in

Jacksonville. There she was loaded with phenobarbital and

Dilantin, the seizures stopped, and on October 15, 2006, she was

discharged on maintenance dosage of phenobarbital. However, on

October 16th, she had a second seizure and was readmitted to

Wolfson's, and then on October 18, 2006, discharged on an

increased dosage of phenobarbital. Thereafter, in

December 2006, her medication was changed from phenobarbital to

Trileptal. (Exhibit 9).

22. Since that time, Elizabeth has experienced seizures on

four occasions, three of which she was treated at Wolfson's

(April 17-19, 2007; March 19-20, 2008; and July 10, 2008) and

the last of which (March 1, 2009) she apparently was treated at

home in North Carolina. (Exhibits 9 and 27).

23. Apart from her seizure disorder, Elizabeth's health

has been good, and developmentally she continued to make good

progress, without the need for any therapies since they were

discontinued in October 2005. Currently, Elizabeth attends a

regular school program, and was shown to evidence very mild

physical impairment and no mental impairment. ( See , e.g. ,

Exhibits 16, 17, and 19).

Whether Elizabeth suffered a "birth-related

Neurological injury"

24. To address whether Elizabeth suffered a "birth-related

neurological injury," the parties offered a Stipulated Record

(Exhibits 1-28), that included the medical records associated

with Mrs. Adam's antepartal course, the medical records

associated with Elizabeth's birth and subsequent development,

the deposition testimony of the delivering obstetrician

(Dr. McLanahan), and the deposition testimony of Mr. and

Mrs. Adams. 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.

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

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

caused by oxygen deprivation or mechanical injury during labor,

delivery, or resuscitation in the immediate postdelivery

period. 10 In so concluding, Dr. Willis observed Elizabeth was

not depressed at birth; her Agpar scores were normal (8 at one

minute, and 9 at five minutes); she did not require any

significant resuscitation (only stimulation and bulb-

suctioning); and her newborn course was without incident until

seizures were noted at 16 hours after birth.

26. As for the subgaleal hemorrhage (the bleed between the

skull and the scalp) Elizabeth was shown to have suffered (on

the CT scan of September 18, 2004), Dr. Willis agreed it was

likely related to the vacuum-assisted delivery. As for the

cause of the periventricular hemorrhage (brain injury/stroke)

Elizabeth was shown to have suffered (on the MRI of

September 22, 2004), Dr. Willis voiced no opinion, and deferred

to the expertise of a pediatric neurologist. As for

Petitioners' theory of the case, that a subgaleal hemorrhage can

progress to cause bleeding within the brain as a result of

hypovolemia, Dr. Willis agreed. However, he did not see

evidence in this case to suggest such a causative connection.

Dr. Willis expressed his opinion, as follows:

Q. Tell me why you don't think, if you

don't think, that her brain injury is

related to the vacuum extraction?

A. Well, subgaleal hemorrhage is between

the skull and the skin on the outside of the

skull, and that's very common with vacuum

extractions.

But the only way that that can cause a brain

injury that I'm aware of is that if so much

hemorrhage occurs into that hematoma that

the baby becomes hypovolemic and has a

stroke due to hypovolemia and low blood

pressure related to blood loss. I am not

aware that this child had a subgaleal

hematoma that was to that extent.

(Exhibit 18, pp. 17 and 18). See also Exhibit 18, p. 35.

27. Dr. Duchowny evaluated Elizabeth on September 10,

2008. Based on his evaluation, as well as his review of the

medical records, Dr. Duchowny was of the opinion that

Elizabeth's impairments were likely the result of a

meningoencephalitis (an "inflammation of the brain and

meninges" 11 ), resulting from a viral infection, albeit not HSV,

as opposed to a brain injury caused by oxygen deprivation or

mechanical injury occurring during labor or delivery.

Dr. Duchowny was also of the opinion that Elizabeth was neither

substantially mentally nor substantially physically impaired.

(Exhibits 15 and 19).

28. Dr. Duchowny described the results of his evaluation,

and the bases for his opinions, as follows:

Q. . . . During that examination did you

obtain any medical history from Elizabeth's

family?

A. Yes.

Q. What was the history that you obtained?

A. I was able to speak to Elizabeth's

mother, who was the person, the caretaker,

bringing Elizabeth to my office; and she

first talked about Elizabeth's seizures,

which began shortly after birth, at age

sixteen hours; and continued with a total of

five seizures during her life. The

seizures, although infrequent, were

prolonged, and her mother indicated that

they lasted between three and five hours,

all of which, obviously, resulted in

hospitalizations. They were terminated with

rescue Diastat in order to stop the status

epilepticus.

All of Elizabeth's seizures began on the

right side of her body but then would

generalize to involve both arms and both

legs, and most recently Elizabeth has been

treated which Trileptal, which apparently

has brought the seizures under control.

Her mother then went on to describe mild

weakness on the right side of Elizabeth's

body. She commented that Elizabeth had

trouble with fine motor coordination,

particularly a pincer grasp, and as a result

was a left hander. However, Elizabeth's

overall motoric ability was good. She

didn't have any specific limitations to her

motor abilities, and she was fully

functional for her age, which at that time

was three years.

On a positive note, her mother indicated

that her mental development was going well,

that there were no delays in her acquisition

of speech and language, and that she was in

the New Dimensions Preschool Program where

she was attending a regular classroom.

There has never been any regression of

Elizabeth's abilities, and at the time that

I evaluated Elizabeth in September, she did

not have an ongoing need for either physical

or occupational therapy.

Otherwise, things were good; she was

healthy. She was under the care of

Dr. Harry Abrams at Nemours Children's

Hospital. She continued to have abnormal

EEGs, and her mother commented that her MRI

scan of the brain revealed damage, primarily

on the left side of her brain.

Q. What information, if any, did you obtain

regarding her birth?

A. Well, again, this was information from

Elizabeth's mother, and she told me that

Elizabeth was born after a term gestation at

St. Luke's Hospital. It was a natural

delivery, but with the assistance of a

vacuum for the extraction. Elizabeth

weighed seven pounds, eleven ounces. She

breathed well. She was not a jaundice baby,

but that she remained in the NICU at St.

Luke's Hospital for a treatment of suspected

infection with the herpes simplex virus; so

essentially, a herpes simplex encephalitis

concern.

Q. Thank you.

Did you obtain any information with respect

to Elizabeth's growth and development?

A. Yes. Elizabeth rolled over and sat at

six months and then was able to stand at age

ten months. She was walking on her own by

age thirteen months and began talking in

single words between a year and age eighteen

months.

At the time I saw her she had not yet been

toilet trained, but she received all of her

immunizations and had no known allergies to

medications. She had undergone surgery on

two occasions for the ear tubes and, of

course, there were the multiple

hospitalizations for the recurrent bouts of

status epilepticus.

Q. Did you perform a physical examination

of Elizabeth?

A. Yes.

Q. What were your findings upon that

examination?

A. When I saw her, she was actually quite

cooperative so, socially, she was very

appropriate for her age. She seemed

appropriately nourished and developed. Her

weight was recorded at thirty-five pounds.

There was no abnormalities of her skin, neck

and she had no abnormal aspects of her body

which suggested a malformation. I noted

that her spine was normal. Her head growth

was good. She had a head circumference of

49.1 centimeters, which for age three years

is within standard percentiles. There were

no abnormalities of her heart, her lungs,

her abdomen, and her extremities or her

peripheral pulses.

Q. Did you also perform a neurological

examination of Elizabeth?

A. Yes. And once again, in terms of her

social abilities, she actually was quite

good for her age and she was appropriately

verbal at her age level. She answered

questions, she provided decent verbal

content. I thought her speech sounds had a

very mild disarticulation, but she knew her

colors. She was able to identify parts of

her body, and she was able to draw with a

pencil using her left hand. No drooling was

noted.

Examination of her cranial nerves was

essentially normal, and her motor

examination revealed a well developed, age

appropriate amount of muscle strength, bulk

of her muscle and muscle tone. I was unable

to detect any specific focal weakness,

although, again, there was a difference in

terms of her fine motor coordination. Even

though she used both hands cooperatively,

she clearly preferred her left hand,

although I was able to demonstrate a pincer

grasp bilaterally and reasonably good manual

dexterity.

Where I did think there was asymmetry had to

do with her walking where her left arm would

swing in a more prominent fashion on the

left compared to the right. Also, there was

a tendency actually for both feet to turn

in, but this was more prominent, again, on

the right side.

I thought that Elizabeth's sensory

examination was normal and that her gait was

appropriate in terms of coordination,

despite the asymmetric arm swing.

Her deep tendon reflexes were normal and

symmetric on both sides of the body, in

other words, both arms and legs; and her

plantar response, which is a reflex response

to stroking the bottom of the feet, was

normal. There were no abnormalities of her

neurovascular examination, meaning that

there were no asymmetries when a stethoscope

was placed on her neck, head or over her

eyes. The bones of her skull were closed,

which was appropriate.

Q. Okay. Thank you.

Based upon your review of the medical

records and documents which you identified

earlier, and based upon your examination of

Elizabeth and the findings from that

examination, were you able to form an

opinion as to the nature and extent of

Elizabeth's neurological delays or

developmental delays, if any, and the

etiology of those delays?

A. Well, there were some findings on the

neurological exam with respect to

Elizabeth's motor coordination, and my

impression was that these findings were, at

best, mild. I would characterize them

really as very mild.

Q. Specifically, what are those findings?

A. The asymmetric arm swing, the

establishment of handedness on the left and

slightly decreased -- well, really, minimal,

minimal change in dexterity. Really, the

arm swing and the handedness.

Q. And those delays that you've identified

and, as I understand it, it's your opinion

that you would characterize those as mild?

A. Yes.

Q. What functional impact, if any, do those

mild delays have on Elizabeth based upon

your examination of her when you saw her?

A. Well, at present I would have predicted

that there would be no compromise to her

functionality, and that appeared to be the

case.

Q. With respect to her cognitive

development, what were you able to conclude

based upon your review of the medical

records and your examination of her?

A. My examination revealed normal cognitive

development; in other words, a level of

mental function, which was at age level. So

I was, again, not surprised that she was in

a regular class at the New Dimensions

Preschool.

Based upon your review of the medical

records, were you able to form an opinion as

to the etiology of any of those neurological

problems that were identified?

A. Well, from a review of the records, I

think that there was a strong indication

that Elizabeth had had some kind of

meningoencephalitis in the first week of

life, and I believe that her findings on

neurological examination today are related

to the previous bout of meningoencephalitis.

Q. Do you have an opinion as to whether or

not Elizabeth suffers from a substantial

mental impairment?

A. I do, and that is that I do not believe

that Elizabeth has a substantial mental

impairment.

Q. Do you have an opinion as to whether or

not Elizabeth suffers from a substantial

physical impairment?

A. I do not believe that Elizabeth has a

substantial physical impairment either.

* * *

Q. . . . You mentioned the motor findings

that you described as, at best, mild, or

very mild, and you listed the asymmetrical

arm swing, and the handedness on the left

and the minimal loss of dexterity.

I think your findings also included

abnormalities in the gait, is that correct?

A. Yes, that's true. There was a toe-in

position bilaterally, but I didn't see that

as a functional problem. She did that, but

it didn't seem to contribute to any

disability at all . . . .

(Exhibit 19, pp. 7-16).

29. 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 logical, consistent with the

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

Consequently, it must be resolved that the cause of Elizabeth's

impairments was most likely a meningoencephalitis, as opposed to

a "birth-related neurological injury," and, regardless of the

etiology of her impairments, she 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

30. The Division of Administrative Hearings has

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

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

31. 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.

32. 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.

33. 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.

34. 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.

35. 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.

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

Petitioners to demonstrate that Elizabeth 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 issue before an administrative tribunal.").

37. Here, the proof failed to demonstrate that Elizabeth

suffered "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" or that Elizabeth was "permanently and substantially

mentally and physically impaired." Consequently, given the

provisions of Section 766.302(2), Florida Statutes, Elizabeth

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.).

38. 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 April D.

Adams and Jeffrey Floyd Adams, individually and on behalf of and

as parents and natural guardians of Elizabeth Ann Adams, a

minor, is dismissed with prejudice.

DONE AND ORDERED this 24th day of April, 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 24th day of April, 2009.

ENDNOTES

1/ The petition also alleged that the physician who provided

obstetrical services at Elizabeth's birth (Michelle McLanahan,

M.D.) and the hospital at which her birth occurred (St. Luke's

Hospital) failed to comply with the notice provisions of the

Plan. However, the parties subsequently stipulated the

physician and hospital provided adequate notice of their

participation in the Plan. (Amended Pre-hearing Stipulation,

Admitted Facts, paragraph 9).

2/ The parties' stipulated record is identified by their

Amended Notice of Filing Stipulated Record (Exhibits 1-26),

attached to their Amended Pre-hearing Stipulation, filed

March 12, 2009; Notice of Filing Supplement to Stipulated Record

(Exhibit 27), filed March 19, 2009; and Notice of Filing

Supplement to Stipulated Record (Exhibit 28), filed March 27,

2009.

3/ 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 Elizabeth suffered an injury to the spinal cord that

rendered her permanently and substantially mentally and

physically impaired. Consequently, that alternative need not be

addressed.

4/ A "hemorrhage" is "the escape of blood from the vessels;

bleeding." Dorland's Illustrated Medical Dictionary, 28th

Edition, 1994. See also Exhibit 18, pp. 17 and 18.

5/ A "hematoma" is "a localized collection of blood, usually

clotted, in an organ, space, or tissue, due to a break in the

wall of a blood vessel." Dorland's Illustrated Medical

Dictionary, 28th Edition, 1994. See also Exhibit 18, pp. 17 and

18.

6/ Petitioners note that their "argument is contrary to the

ruling of the Fourth District Court of Appeal on closely similar

facts in Nagy v. Florida Birth-Related Neurological Injury

Compensation Ass'n , 813 So. 2d 155 (Fla. 4th DCA 2002)," but

"respectfully submit that Nagy is wrongly decided."

(Petitioners' Memorandum Regarding Final Order, pp. 5 and 6).

Notably, in Nagy , the court concluded the child did not suffer a

"birth-related neurological injury." In doing so, the court

reasoned:

Because the initial injury was to something

other than the baby's brain or spinal cord,

by definition, it is not a "birth-related

neurological injury" written section

766.302(2). The fact that the subgaleal

bleeding ultimately led to cerebral hypoxia

and hypovolemia, and this loss of oxygenated

blood in turn damaged the brain sometime

before death occurred 14 hours from birth,

simply means that the deprivation and injury

to the brain did not occur during labor or

delivery [, or immediately afterward]. The

fact that a brain injury from oxygen

deprivation could be traced back to a

mechanical injury outside the brain

resulting in subgaleal hemorrhaging does not

satisfy the requirement that the oxygen

deprivation or mechanical injury to the

brain occur during labor or delivery [or

immediately afterward].

Nagy , 813 So. 2d at 160

Here, contrary to Petitioners' suggestion, the facts are not

"closely similar" to the facts in Nagy . In Nagy , the proof

clearly demonstrated that the subgaleal bleed continued

unabated, resulting in hypovolemia, ischema, cardiogenic shock,

brain injury, and death. Here, as discussed infra , the record

does not support a conclusion that the subgaleal bleed resulted

in hypovolemia and brain injury. ( See e.g. , Exhibit 18, pp. 17,

18, and 35). Moreover, if it did, Nagy would apply, and

foreclose recovery.

7/ Vaginal examination at 11:06 p.m., revealed the cervix at

6.5 centimeters, effacement at 75 percent, and the fetus at -1

station; at 1:00 a.m., September 17, 2004, the cervix at 10

centimeters (complete), effacement at 100 percent (complete) and

the fetus at 0 station; and at 4:33 a.m., the cervix complete

and the fetus at station.

8/ 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; Exhibit 1). Here, at one minute, Elizabeth's Apgar score

totaled 8, with heart rate, respirator effort, and reflex

irritability being graded at 2 each, and muscle tone and color

being graded at 1 each. At five minutes, Elizabeth's Apgar

score totaled 9, with heart rate, respiratory effort, muscle

tone, reflex irritability being graded at 2 each, and color

being graded at 1.

9/ "Acrocyanosis' is "a condition marked by symmetrical

cyanosis of the extremities, with persistent uneven blue or red

discoloration of the skin of the digits, wrists, and ankles and

with profuse sweating and coldness of the digits." Dorland's

Illustrated Medical Dictionary, 28th Edition, 1994.

10/ 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 the five-minute Apgar,

by which time Elizabeth had been stimulated and bulb-suctioned.

(Exhibits 18, pp. 19 and 20). Thereafter, Elizabeth required no

further intervention until 16 hours of life when she showed

evidence of seizure activity. Elizabeth's brain injury likely

post-dated her "resuscitation in the immediate postdelivery

period."

11/ See "meningoencephalitis," Dorland's Illustrated Medical

Dictionary, 28th Edition, 1994.

COPIES FURNISHED :

(Via Certified Mail)

C. Rufus Pennington, III, Esquire

Margol & Pennington, P.A.

320 North First Street, Suite 609

Jacksonville Beach, Florida 32250

(Certified Mail No. 7008 3230 0001 6307 8985)

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 8992)

M. Mark Bajalia, Esquire

Brennan, Manna & Diamond

800 West Monroe Street

Jacksonville, Florida 32202

(Certified Mail No. 7008 3230 0001 6307 9005)

Richard E. Ramsey, Esquire

Wicker, Smith, O'Hara, McCoy,

Graham & Ford, P.A.

50 North Laura Street, Suite 3150

Jacksonville, Florida 32202

(Certified Mail No. 7008 3230 0001 6307 9012)

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 9029)

Michelle A. McLanahan, M.D.

8075 Gate Parkway West, Suite 305

Jacksonville, Florida 32216

(Certified Mail No. 7008 3230 0001 6307 9036)

St. Luke's Hospital

4201 Belfort Road

Jacksonville, Florida 32216

(Certified Mail No. 7008 3230 0001 6307 9043)

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.