09-005432N Senboya Sutton, As Mother And Natural Guardian Of Jael Sutton, A Minor, And Julie M. Goddard As Legal Guardian Of The Property Of Jael Sutton, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, June 8, 2012.

Summary: DOAH does not have jurisdiction to award costs pursuant to Section 57.041, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SENBOYA SUTTON, as mother and )

natural guardian of JAEL )

SUTTON, A MINOR, AND JULIE M. )

GODDARD as legal guardian of )

the property of JAEL SUTTON, a )

minor , )

)

Petitioners , )

)

vs. ) Case No. 09 - 5432N

)

FLORIDA BIRTH - RELATED )

N EUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent, )

)

and )

)

ST. JOSEPH'S HOSPITAL, INC., )

d/b/a ST. JOSEPH'S WOMEN'S )

HOSPITAL; UNIVERSITY COMMUNITY )

HOSPITAL, INC.; MARK DAVIS, )

M.D.; MARK DAVIS, M.D., P.A.; )

UNIVERSITY OF SOUTH FLORIDA )

BOARD OF TRUSTEE S ; KENNETH J. )

SOLOMON, M.D.; AND NNEKA )

AMAIZU, M.D., )

)

Intervenors . )

)

FINAL ORDER

Upon due notice, a final hearing was held on D ecember 3,

2010, before Ella Jane P. Davis, a duly - assigned Administrative

Law Judge of the Division of Administrative Hearings, via video

tele conference with sites in Tallahassee and Tampa , Florida .

APPEARANCES

For Petitioners: Danell G. DeBerg, Esquire

DeBerg & DeBerg, P.A.

1815 Tyrone Boulevard

St. Petersburg, Florida 33710

Samuel S. Mehring, Jr., Esquire

3712 West Azeele Street

Tampa, Florida 33606

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

Stiles, Taylor & Grace, P.A.

Post Office Box 460

Tampa, Florida 33601

For Intervenor Mark Davis, M.D . and Mark Davis, M.D., P.A. :

Isabel Del Cid, Esquire

Lubell & Rosen

200 South Andrews Avenue, Suite 602

Fort Lauderdale, Florida 33301

For Intervenor St. Joseph's Ho spital, Inc., d/b/a

St. Joseph's Women's Hospital:

H. Hamilton Rice, III, Esquire

Bush, Grazianno & Rice, P.A.

Post Office Box 3423

Tampa, Florida 33601 - 3423

For Inte rvenor University Community Hospital:

Rodney W. Morgan, Esquire

Morgan, Lamb, Goldman & Valles, P.A.

500 North Westshore Boulevard

Suite 820

Tampa, Fl orida 33609

For Intervenor University of South Florida Board of

Trustees:

Louis J. La Cava, Esquire

La Cava & Jacobson

101 East Kennedy Boulevard, Suite 2500

Tampa, Flor ida 33602

For Intervenors Kenneth J. Solomon, M.D., and Nneka Amaizu,

M.D.:

Rodney W. Morgan, Esquire

Morgan, Lamb, Goldman & Valles, P.A.

500 North Westshore Boulevard

S uite 820

Tampa, Florida 33609

STATEMENT OF THE ISSUE

Whether Jael Sutton, a minor, qualifies for benefits under

Florida's Birth - Related Neurological Injury Compensation Plan

(Plan).

PRELIMINARY STATEMENT

On October 5, 2009, Petiti oner Senboya Sutton, as mother

and natural guardian of Jael Sutton, and Julie M Goddard, as

legal guardian of the property of Jael Sutton, a minor, filed a

petition (claim) with the Division of Administrative Hearings

(DOAH). Named in the p etition as invo lved in Jael's birth were

Mark Davis, M.D., Nneka Symphorosa Amaizu, M.D., and

St. Joseph's Women's Hospital.

DOAH served the Florida Birth - Related Neurological Injury

Compensation Association (NICA), Dr. Davis, Dr. Amai z u, and

St. Joseph's Women's Hospita l , with their respective copies of

the petition/claim on October 8, 2009. By O rder entered

October 23, 2009, St. Joseph's Hospital, Inc. , d/b/a

St. Joseph's Women's Hospital (St. Joseph's) was granted

I ntervenor status. Without timely obj ection to motion s to

intervene and by O rder entered October 27, 2009, University

Community Hospital, Inc., Mark Davis, M.D., and Mark Davis,

M.D., P.A. , were granted I ntervenor status ; b y O rder entered

October 29, 2009, University of South Florida Board of Trustees

was gr anted I ntervenor status ; and by Order of November 4, 2009,

Kenneth J. Solomon, M.D., and Nn eka Amaizu, M.D. , were granted

I ntervenor status .

Following several extensions of time in which to do so, on

April 30, 2010, NICA filed the Response to Petition requ ired by

s ection 766.305(4), Fl orida Statutes , suggest ing that Jael did

not suffer a "birth - related neurological injury" as defined in

section 766.302(2), and requested that a hearing be scheduled to

resolve whether the claim was compensable. Discovery ens ued ,

and final hearing was held on December 3, 2010, in accord with

the parties' Pre - Hearing Stipulation, which had been filed

November 19, 2010.

Either pursuant to the parties' written or oral

stipulation s, or pursuant to oral rulings on the record, the

f ollowing items were admitted in evidence , some of which are

composites and some of which are duplicative: Joint Exhibits 1 -

8, 9, 9A, 10, 10A, 11, 11A, 12, 12A, 13, and 14; Petitioners '

Exhibits 1 and 2; Respondent NICA's Exhibit 3; Intervenor St.

Joseph's Exhibit 1; and Intervenor University Community

Hospital's (UCH's) Exhibit 1. There also were two after - filed

exhibits, which the undersigned has marked as Petitioners '

Exhibit 3 and UCH Exhibit 2 , respectively . 1

No oral testimony was presented. Petiti oners, Respondent,

and Intervenors (collectively) were accorded time to state their

respective positions . (TR 27 - 72) .

The T ranscript (TR) was filed on January 7, 2011, and the

parties were accorded 30 days thereafter in which to file their

proposed final orders. Upon an agreed motion, filed February 3,

2011, an O rder was entered on February 4, 2011, extending the

filing of the parties' respective proposals to February 11,

2011. All parties filed their respective proposals on time .

Intervenors filed a si ngle, integrated proposal. All proposals

have been considered.

FINDINGS OF FACT

1. Petitioner, Senboya Sut t on , is the natural parent of

Jael Sutton (Jael) .

2. At all times material, Senboya Sutton was an obstetric

patient of Intervenor, Mark Davis, M.D. , who was a

"participating physician" in the Florida Birth - Related

Neurological Injury Compensation Plan, as defined by section

766.302(7). Dr. Davis provided obstetrical services "in the

course of labor, delivery and resuscitation in the immediate

postde livery period in a hospital," as related to this case.

3. Jael was born on November 28, 2006.

4. At birth, Jael weighed in excess of 2,500 grams.

5. Jael was a single gestation.

6. Jael was born live at St. Joseph's .

7. St. Joseph's is a licensed ho sp ital located in Tampa,

Florida.

8. The parties stipulated that all notice requirements of

the statute have been met and that the notice requirement of

section 766.316 , is not at issue herein. 2

9 . Coverage is afforded by the p lan 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 t he infant permanently and substantially

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

See also §§ 766.309 and 766.31, Fla. Stat. 3

10 . Herein, it is undisputed that Jael is " permanently and

substantially mentally and physically impaired . " Also, as

described more fully hereafter, all the testifying experts

concur that Jael's underlying brain damage did not result from a

mechanical injury , but did result from sepsis and/or meningitis.

However, it remains for determination whether or not Ja el 's

brain injury and permanent and substantial mental and physical

impairment occurred in the course of "labor, delivery, or

resuscitation in the immediate postdelivery period , " hereafter

referred to as "the statutory period . " 4

11. The following terms were defined within this record:

"Hypoxia" means "not enough oxygen . " "Cerebral ischemia" means

"not enough blood is getting to the brain . " "Perfusion," for

purposes of the instant case, means " to pass blood through the

brain to ensure adequate oxygen . "

12 . For her pregnancy with Jael, Ms. Sutton was first seen

by Dr. Davis on August 17, 2006. Her delivery date was

estimated as January 25, 2007.

13. On November 17, 2006, a vaginal culture was taken of

Ms. Sutton . On November 25, 2006, it was report ed as " positive "

for Group B streptococcus (Group B - strep) , a genus of bacteria

that causes l i fe - threatening infections in newborn infants. 5

Dr. Chalhub testified that intrauterine infections are the

leading cause of cerebral palsy in term infants. Jael was not a

term infant, but c e rebral palsy is one of the conditions with

which he has been diagnosed .

14. On November 27, 2006, at approximately noon, 6

Ms. Sutton presented to St. Joseph's. She complained of a

single episode of leaking fluid at 1:02 p.m. Hospital records

characterized this as the onset of labor, despite Ms. Sutton's

denial of contractions. The plan of treatment was to rule out

spontaneous rupture of the membranes. A nitrazine test was

performed to identify amniotic fluid outside the am niotic sac,

and was negative. Dr. Davis was present and ordered a non -

stress test. At 1:34 p.m., Ms. Sutton again complained of

leaking flui d and mucus discharge was noted. At 1:58 p.m. ,

Dr. Davis re viewed the fetal monitor strip and discharged

Ms. Sutt on .

15. At approximately 5:50 p.m. , on November 27, 2006,

Ms. Sutton presented to UCH. Her membranes were noted as

possibly ruptured , and she complained of small gushes of fluid

since noon. Again, a nitrazine test was performed and was

negative. A spe culum vaginal examination was performed; fetal

heart rate was monitored; and a non - stress test was performed.

She was discharged home upon phone orders of the "on - call"

physician and advised to follow up with her obstetrician.

16. T he next morning, befor e 10:00 a.m., Dr. Davis did an

ultrasound in his office. The ultrasound showed what was

believed to be decreased amniotic fluid; a 34 - week , four day

gestation; and ruptured membranes. Due to the Group B strep and

the gestation in excess of 34 weeks , Dr. Davis initiated a plan

of care to induce labor and perform a vaginal delivery.

17. Later on November 28, 2006, Ms. Sutton was admitted to

St. Joseph's. Examination by speculum sho w ed positive nitrazine

and a copious amount of fluid in the vaginal vault, which , in

hindsight after Jael's birth, Dr. Davis recorded as "probably a

high leak to begin with . " A fern test for nitrazine was

positive. The cervix was 2 - 3 centimeters d ilated. Labor

steadily progressed. At 11:32 a.m., a nurse noted a non -

reassuring fetal heart rate. At 11:47 a.m., Dr. Davis re viewed

fetal heart rate tracings from his office. These were better,

without decelerations . Ms. Sutton was placed in a left lateral

position and continuous face mask oxygen was maintained.

18. At 11:49 a.m. , another sterile vaginal exam was

performed . The amniotic fluid was noted to be clear and of

normal quantity. At 11:54 a.m., due to a non - reassuring fetal

heartbeat, Dr. Davis called for an immediate Caesarean section.

Jael's fetal heart rate was 160, just prior to the C - section.

19. A low transverse uterine incision was performed at

12:16 p.m. , and Jael was delivered. Throughout the C - section,

under general anesthesia, Ms. Sutton's oxygen saturation levels

remained at 100.

20. There is no record of trauma or of mechanical injury

to Jael during labor or delivery. Indeed, the parties agree

that there was no mechanical injury to Jael during labor or

delivery. See infra .

21 . The delivery record does not show checks or fill - ins

for the following, b ut the following is printed or typed in on

the deliver y room record form: "suction bulb, suction catheter,

tactile stimulation, oxygen/PPV [7 ] , intubated, neonatologist

present."

2 2 . Apgar scores were taken at one and five minutes after

Jael's birth. 8

2 3 . Jael's one minute Apgar score showed:

Heart rate 2 > 100

Respiratory effort 0 none

Muscle tone 1 some flexion

Activity 0 none

Color 0 blue/pale

Total 3

2 4 . Jael's five minute Apgar score showed:

Heart rate 2 > 100

Respiratory effort 2 good cry

Muscle tone 1 some flexion

Activity 1 grimace

Color 1 extremities blue

Total 7

25 . It is a point of contention among the parties as to

whether Jael was intubated in the delivery room or in the

Neonatal Intensive Care Unit ( NICU ) . I t is more likely that

intubation and adminis t ration of nitrous oxide began after he

was stabilized , as evidenced by the good Apgar score at five

minutes after birth.

2 6 . The "good cry" recorded at five minutes of life

(12:21 p.m.) suggests that Jael was breathing on his own at that

point , had stabi lized, and was not intubated before his

admission to the NICU at 12:40 p.m.

2 7 . Jael's cord blood gas was collected at ten minutes

after birth at 12:26 p.m. Its pH measured 7.206. A cord blood

of 7.2 or higher suggests absence of metabolic acidosis .

Met abolic acidosis is a sign of a pathological condition, not of

a mechanical injury or of oxygen deprivation. 9

2 8 . At 12:32 p.m. , Jael was t ransferred by isolette from

the delivery/operating room to NICU due to " post C - section

respiratory status ." It wou ld be fair to say that, at this

point, if not sooner, Jael's care passed from the NICA

participating physician, who provided obstetrical services to

the mother , to other health care professionals in the NICU.

29. At 12:40 p.m. , on November 28, 2006, Jael was admitted

to the NICU. The records show that v entilation support was

given, and Jael was intubated. No physician associated with

Jael's delivery or NICU care testified . However , Dr. Katz, a

pediatric neurologist, opined without refutation that intuba tion

at that stage might have been for ventilation, but could as

easily have been to keep Jael's airway open because he was born

premature ly . The reasons that were contemporaneously documented

for Jael's admission to NICU were "premi, 34 weeks, R/O sepsis ."

This notation most probably means , "34 week gestation al ,

premature infant ; rule out sepsis."

3 0 . "'Sepsis' refers to the presence in the blood or other

tissues of pathogenic microorganisms or their toxins; the

condition associated with such presence." 1 0

3 1 . As described more fully hereafter, all testifying

medical experts, regardless of specialty, agreed that in the

NICU, Jael suffered from vascular inflammation, decreased blood

pressure, and diminished perfusion caused by infection. Where

they disag ree is whether it was sepsis or meningitis which was

ultimately responsible for Jael's diminished blood supply to the

brain.

3 2 . "' Meningitis ' is an inflammation of the m eninges,

usually by either a bacterium (bacterial meningitis) or a virus

(viral m eningitis)." 11

3 3 . Upon admission to the NICU a t 12:40 p.m., Jael's

oxygen saturation levels were at 93 per cent, and despite

continuing very low blood pressures, his oxygen saturation

levels remained in the 80's and 90's until 6:40 p.m. , that

evening.

3 4 . Jael was not assessed again after NICU admission until

1:20 p.m. At that time, a nurse noted that she was unable to

obtain his blood pressure in either leg , although no reason was

given. Dr. Katz testified that this could mean anything, up to

and incl uding an ill - fitting blood pressure cuff. Jael's

bedside glucose (BSG) was recorded as 10 , and 50 cc of D10 b olus

were ordered.

3 5 . At 1:44 p.m. , on November 28, 2006, the BSG was

recorded as 43 and ano t her bolus was administered .

3 6 . At 1:58 p.m., Nov ember 28, 2006, a blood culture was

drawn which was not reported back until the next day, but when

it was reported back, the blood culture was read as positive for

Group B strep .

3 7 . At 2:00 p.m. and 2:05 p.m., on November 28, 2006,

boluses and antibioti cs were ordered, but one or more

antibiotics were not administered to Jael for the first time

until considerably later .

3 8 . At 2:05 p.m. , on November 28, 2006, orders were

written for survan t a and dopamine. Dr. Katz opined that Jael

was in septic shock at this time.

39 . At 2:16 p.m. on November 28, 2006, N eonatologist

Dr. Amaizu entered an NICU admission note that Jael was

lethargic with decreased reactions to stimuli. Capillary reflex

was > 2 sec. Jael had decreased tone and activity. Alt hough

perfu sion was decreased, his skin was pink. The active

diagnosis at that point was "hypoglycemi a , prematurity,

respiratory distress syndrome, R/O sepsis newborn . "

4 0 . At 2:25 p.m., an NICU nursing assessment was done.

Jael was described as withdrawn, flaccid , lethargic with absent

reflexes (suck, rooting, moro, and grasp) . Central cyanosis

(blueness in the torso) was observed. At 3:07 p.m. , dopamine

was administered.

4 1 . On the following day, November 29, 2006, Terry Declue,

M.D., performed an endocrinol ogy consult on Jael , who was on

nitrous oxide via an oscillatory ventilator. He noted

hypoglycemia . Perfusion was noted as good with capillary refill

one second. The chest appeared clear , and Jael moved

spontaneously. Dr. Declue's diagnosis was:

1 . Severe metabolic acidosis

2. Lactic acidosis

3. Respiratory failure

4. Gram positive cocci sepsis

5. Pulmonary hypertension

4 2 . On December 1, 2006, three days post - birth, a cranial

neuro - sonogram was performed. At that time, hospital

R adiologist s Steen Mandel, M.D. , and John Rasmussen, M.D. , read

the sonogram as normal.

4 3 . On December 4, 2006, four days post - birth, Jael

underwent a lumbar puncture. His cerebrospinal fluid showed a

white blood count of 185, reference 0 - 5. The consulting

neu rologist diagnosed S trep Group B sepsis and meningitis .

4 4 . On December 10, 2006, a second cranial ultrasound was

done. Th is second sonogram was read by Michael Shaw, M.D. He

recorded that ventricular size and configuration was normal ,

with no evidence of germinal matrix or inter - ventricular bleed,

but the ventricles appeared slightly (not significantly) more

prominent than the prior December 1, 2006 , study .

4 5 . On December 15, 2006, an MRI was performed and

interpreted by radiologist Elaine Engleman, M.D. Her impression

was:

Extensive c ystic encephalomalacia [12]

involving both cerebral hemispheres

throughout all vascular territories. There

is slightly less extensive involvement in

the posterior cerebral artery territories.

There is preservation of parenchyma

involving the basal ganglia, thalami and

brainstem.

4 6 . Jael was discharged from St. Joseph's on January 5,

2007, with a diagnosis of :

1) Prematurity at 34 weeks gestational age

2) Respiratory distress syndrome

3) Neonatal de pression

4) Seve re m etabolic acidosis

5) Patent ductus arteriosis

6) C holestasis

7) Lactic acidosis

8) Respiratory failure

9) Meningitis that was treated for three

weeks and supravent r icular tachycardia

4 7 . On August 1, 2007, ano t her MRI was perf ormed on Jael's

brain and interpreted by Radiologist, James Hanner, M.D. His

report opined:

FINDINGS:

There is extensive cystic encephalomalacia

seen throughout in the frontal, temporal,

and parieto - occipital lobes associated with

significant ex vacuo enl argement of the

occipital horns, bilaterally, left greater

than right. There is some sparing of the

medial frontal accident, hemorrhage, or

extra - axial fluid collection is identified.

The hindbrain structures are normal without

developmental anomaly. Th ere is wallerian

degeneration of the cerebral peduncles

bilaterally.

IMPRESSION:

Extensive supratentorial systic

encephalomalacia associated with ex va c uo

enlargement of the lateral ventricles and

occipital horns, left greater than right.

The volume l oss has progressed when compared

to the earlier examination.

48 . D espite some variant medical testimony , across all

experts, to the effect that Jael was probably infected with

Group B - strep from his mother before labor, during labor, or

during delivery, Intervenors collectively submit that, " . . .

Jael Sutton did not suffer from oxygen deprivation during labor

or delivery . . . " (proposed finding of fact 54 of Intervenors'

proposed final order). Due to this admission and the other

parties' similar positi ons , it is not necessary for the

undersigned to resolve when labor began ; when "active" labor

began ; when the amniotic fluid began to leak ; or even whether

Jael's delivery by C - section undermines any medical opinions

rendered herein in terms of acquisition of bacterial infection

during Jael's passage through the birth canal.

49 . Therefore, the issue is further narrowed to whether or

not Jael suffered from oxygen deprivation " occurring in the

course of . . . resuscitation in the immediate postdelivery

per iod . . . which render[ed] the infant permanently and

substantially mentally and physically impaired ."

5 0 . The parties presented medical experts in a variety of

fields who offered their opinions , within reasonable medical

probability , as to what happene d to Jael and within which

periods of time. All experts testified by deposition, but the

undersigned has had the benefit of viewing DVDs of the

depositions of Dr. Robert Zimmerman and Dr. Mary K. Edwards -

Brown .

5 1 . Michael Duchowny , M.D., a Florida - licen sed physician,

is a professor of neurology at the University of Miami Leonard

Miller School of Medicine; a clinical professor of neurology at

Florida International University College of Medicine; and senior

attending physician at Miami Children's Hospital. He is board -

certified in pediatric neurology, with speci a l competence in

child neurology , c linical neurology , and clinical n e uro -

physiology. He performed a medical examination of Jael on

February 17, 2010 , and reviewed the mother's and the child's

medic al records, including the ultrasound study of December 1,

2006 , and the MRI scans of December 15, 2006 , and August 1,

2007. He did not read the December 10, 2006 , ultrasound.

5 2 . Dr. Duchowny's testimony confirmed , without

equivocation , that Jael is tr agically and profoundly permanently

and substantially mentally and physically impaired. It was his

ultimate opinion that Jael did not suffer a birth - related

neurological injury due either to mechanical injury or

deprivation of oxygen supply or blood flow to the brain within

the statutory period. He reached this conclusion because, in

his expert opinion, no impairment occurred during the statutory

period .

53. Dr. Duchowny did not see , on the films he reviewed ,

any sign of damage during th e statutory per iod. He diagnosed

the cause of Jael's multiple problems as meningitis , and opined,

in pertinent part, as follows:

Q: . . . Do you have an opinion, within a

reasonable degree of medical probability,

whether or not he had an impairment that was

acquired du ring labor, delivery or post -

delivery? . . .

A: If we're going to define it as

impairment, I would say, no.

Q: So what you're saying is that no damage

was done, even if he had the infection,

right?

A: I am saying that, because I don't see

any indica tion of damage at that time.

Q: . . . You don't find him -- you don't

find that he had a mechanical injury; is

that right?

A: That's correct.

Q: And you don't find that there was

deprivation of blood f low o r oxygen,

correct?

A: That's correct. ( Depo. 33 - 34).

54. Dr. Duchowny testified concerning the meningitis

diagnosis as follows :

A. . . . Meningitis means -- it

specifically refers to a bacterial infection

of the membranes covering the brain. These

are anatomically called the meninges, so

th at in its strictest sense, a meningitis is

an infection and an inflammation of the

membranes covering the brain, but, in point

of fact, it spreads from the membranes

usually directly to the brain itself, and

that's where th e problems come in. . . .

* * *

I don't believe that Jael's brain damage was

due to either a mechanical injury or oxygen -

- deprivation of oxygen supply or blood flow

to the brain. I think that Jael's brain

damage is primarily due to the effects of

meningitis.

* * *

. . . the MRI findings are consistent with

severe bacterial meningitis, in this case,

Group B strep meningitis. The findings,

also, to me, are supported by the fact that

if one looks at the clinical course of Jael,

there really is no specific hypoxic or

ischemic event that would be in the records

to explain the findings on neuroimaging and

the neurologic outcome. . . . So although

one can see findings on MRI that are

consistent with hypoxic and ischemic dam age,

for example, cystic encepha lomalacia, if one

looks at the t otality of the picture,

meaning, put the clinical events together

with the neuroimaging findings and the

neurologic examination, I think that this

pattern of evidence all supports the fact

that Jael's neurologic damage is primarily

due to bacterial meningi tis. (Depo. 20 - 26).

5 5 . Michael Katz, M.D., is a pediatric neurologist, and

board - certified in pediatrics, pediatric neurology, and n euro -

developmental disabilities . He is based at Hackensack

Univer si ty Medical Center, New Jersey. He examined Jael on

September 14, 2009, and testified on behalf of Petitioners by a

November 19, 2010, deposition. He considered the "resuscitative

period" in Jael's case to be "until the Apgar is normalized at

five minu tes when the Apgar was seven," and opined that the

inju ry to Jael's brain did not take place in that period. He

concluded that the cause of Jael's permanent and substantial

mental and physical impairment was a "strep B meningitis."

5 6 . More specifically , Dr. Katz testified :

Q: In your opinion within a re asonable

degree of medical probability, was there any

injury to Jael Sutton's brain caused by

oxygen deprivation occurring during labor or

delivery or resuscitation in the immediate

postdelivery period?

A: No .

* * *

Q : What significant history did y ou elicit

that leads you to reach that diagnosis and

opinion of causation?

* * *

A: . . . First is that Mom was group B strep

positive. The second was that mom had

premature ruptured membranes. . . . Jael had

a clinical deterioration, essentially went

into shock and required pressors and

resuscitation. And the ultimate, and

probably most important fact, is when he was

finally clinically stable, we were able to

do a lumbar puncture, and w e drew ou t group

B strep spinal bacteria in his spinal fluid,

alo ng with a diagnosis of grou p B strep

meningitis. (Depo. 11 - 12).

5 7. Robert Zimmerman , M.D., is a professor of radiology of

the division of neurosurgery at Children's Hospital of

Pennsylvania. He has been chief of pediatric neurology there

since 1989. He is licensed to practice medicine in

Pennsylvania, New Jersey, and Israel, and has been board -

certified in diagnostic radiology and neuroradiology.

5 8 . In Dr. Zimmerman's opinion, after having read the two

ultrasounds (December 1, 2006 and December 1 0, 2006) and the two

MRIs (December 15, 2006 and August 1, 2007) performed on Jael,

the first ultrasound was abnormal and clearly showed decreased

oxygen (hypoxia) and decreased blood flow (ischemia), and the

remaining studies showed advancing stages of br ain injury (the

brain turning to "swiss cheese") due to lack of oxygen and lack

of blood flow. This was cystic encephalomal a cia. He

acknowledged that a hypoglycemic event could possibly have

contributed to the situation, but he perceived no traumatic

eve nt and no mechanical injury.

59. As to timing, Dr. Zimmerman indicated that the

progression of the ischemia possibly started intrauterine, even

before delivery, but the best he could place a point of injury

was , "in and around the time that the kid was being delivered,

the day of birth or a little earlier, or perhaps right after

birth, but somewhere in that vicinity . . . . Sometime around

the 28th." He believed that hypoxic ischemia caused the holes

in Jael's brain, and that the condition first began t o develop

more than 1 - 6 days before the first ultrasound of December 1,

2006. He indicated that sepsis was probably the cause of the

oxygen insufficiency and ruled out bacterial meningitis, but he

ultimately conceded he would defer those decisions to a

cl inician, such as a pediatric neurologist.

60 . Dr. Zimmerman's opinion is diminished by his

vascillations on placing the time of injury and his disclaimers ,

and by there being no indication he reviewed any medical

information on Jael other than the four films .

61 . Mary K. Edwards - Brown M.D. , is a neuro - radiologist

with a subspecialty interest in pediatric neuroradiology. She

is board - certified in radiology and in neuroradiology. She is

also a full professor of radiology at Indiana University and

practi ces at Riley Children's Hospital, Riley, Indiana. She

also teaches medical professionals at many levels, including

preparation for specialty boards.

6 2 . Dr. Edwards - Brown also re viewed the history and all

four of Jael's films (December 1, 2006; December 10, 2006;

December 15, 2006, and August 1, 2007 ) . She, unlike

Dr. Zimmerman, considered the first ultrasound to be normal . In

the December 10, 2006, MRI, she found non - specific brain damage

by tissue destruction . In the December 15, 2006, MRI, she, like

Dr. Zimmerman, found massive brain damage and diffused cystic

encephalomalacia , which she also considered non - specific .

According to Dr. Edwards - Brown, t he most common cause for this

condition is that insufficient oxygen was getting to the brain,

which c an occur b y not enough oxygen being present , by

infection, or by trauma.

63. Dr. Edwards - Brown ultimately opined that:

. . . [ Jael ] was suffering from a profound

meningitis, which caused the pattern of

hypoxic - ischemic encephalitis --

encephal o malacia. And it was a mechanism of

meni n gitis that induced hypoglycemia and

brain injury that happened after this child

was born.

* * *

Given that Jael was born with Apgars of 3

and 7, and a pH of 7.2, those are signs that

-- most children who have those Apg ars and

that non - acidotic pH at birth generally do

very well, and certainly don't have a

pattern of injury as we've seen here.

And given the fact that the ultrasound of

December 1st looks normal to me i t is my

opinion that this injury occurred after the

t ime of birth [November 28, 2006] . And most

likely, the bulk of the injury occurred

after December 1st, that first ultrasound

that looks so very normal.

6 4 . Doctors Duchowny, Katz, and Edwards - Brown concurred,

in varying terminology, that Jael's situati on was a slow -

evolving brain injury not consistent with a sentinel hypoxic

insult occurring during resuscitation in the immediate

postdelivery period . Dr. Zimmerman also could not point to any

specific sentinel event.

6 5 . Elias Chalhub, M.D. , testified b y a deposition taken

November 26, 2010. Dr. Chalhub is board - certified in

pediatrics, psychiatry, and neurology, but he has not done

research or published in over 20 years. Based on a records

review, and without examining Jael, he testified that Jael's

G roup B strep sepsis occurred wit hin an hour and a half of birth

when the child was in the NICU in septic shock. He noted the

records of Jael's pale, blue color (cyanosis) but also agreed

that the baby had reasonably good Apgars and normal cord gas

before transfer to the NICU . He stated Jael deteriorated

rapidly after the good Apgars , which , in his opinion, is

consistent with septic shock .

66. However, Dr. Chalhub conceded that the baby was stable

at five minutes after birth; that there was nothing in t he

nursing notes at 1:00 p.m. , on December 28, 2006, that alerted

to a problem; that there was no indication about an inability to

get blood pressures before 1:20 p.m.; that thereafter, the baby

became hypotensive, and that the first abnormal blood pressur e

reading was a t 1:52 p.m., an hour and 36 minutes after birth .

6 7 . Dr. Chalhub o pined that between birth at 12:16 p.m.

and 2:00 p.m. , on November 28, 2006, there was sepsis and

decreased perfusion that resulted in Jael's injury . He was

satisfied that th e Group B - strep, which may have been acquired

before labor or during birth, resulted in sepsis and that the

brain injury occurred before the sepsis became meningitis, but

conceded the meningitis , which came later, could have

contributed to Jael's brain dam age. He stated he did not

believe that hypoglycemia, detected at 1:20 p.m., contributed to

the brain damage .

6 8 . That said, Dr. Chalhub , in asserting compensability,

also set the "immediate postdelivery period in a hospital" at an

arbitrary "six hours from birth , " without even relating the six

hour period to acts of "resuscitation" or to the facts of this

case. He claimed " six hours " would be what neonatologists would

say constituted the "immediate post - resuscitative period , " but

he quoted no neonatal authority for the proposition. Clearly,

his arbitrary concept is not the understanding of the greater

medical community as evidenced by the other testifying

physicians, nor is it the status of Florida law. 13 Accordingly,

I have discounted his opinion tha t the oxygen deprivation

occurred during the statutory period .

6 9 . It might have been helpful to have heard testimony

from a perfusionist or neonatologist, but herein radiologists'

opinions have been compared with each other and neurologists'

opinions hav e been compared with those of other neurologists.

Dr. Chalhub's opinion is less persuasive than some other

witnesses f or the reasons related supra . The opinions of the

physicians who actually examined Jael are more persuasive than

th ose of physicians who only did a records review. Finally, the

logic and reasoning of all experts have been compared and

weighed and one common theme appears: whether characterized as

"sepsis" or "meningitis," the Group B - strep resulted in a

plethora of diagnoses , culminating in ultimate brain cell death.

70 . Within these parameters, and upon the credible

evidence as a whole, it is found that more likely than not, Jael

did not suffer brain injury due to oxygen deprivation that

occurred during labor, delivery or resuscitatio n in the

immediate postdelivery period in a hospital. Rather, it is more

likely than not that Jael suffered brain damage after he was

initially stabilized and after he was removed to the NICU due to

his premature birth status.

7 1 . Based on the credible evidence as a whole, it appears

that wherever and whenever Jael was intubated, he probably was

not intubated until after the Apgars and after the immediate

resuscitative period ended. Due to Jael's "good cry"

immediately after delivery, the increasingly good Apgars, the

good cord blood report, and the fact that there was no

indication of oxygen deprivation to the brain at least until the

first ultrasound of December 1, 2006, three days after delivery,

the more compelling evidence supports a finding that J ael did

not suffer from oxygen deprivation during labor or delivery and

did not suffer injury to the brain during that period, either.

As to his intubation in NICU, it is as likely that his airway

was being protected by intubation as it is that he suffere d any

problem breathing or any oxygen deprivation before 2:00 p.m., on

November 28, 2006, when he went into shock. Accordingly, t he

record fails to support a finding that there was an hypoxic or

ischemic event during the statutory period (labor, delivery, or

resuscitation in the immediate postdelivery period in a

hospital) .

72. Alternatively, it is conceivable, but not proven, that

Jael suffered oxygen deprivation at some unspecified point in

time which occurred after 2 : 00 p.m. , on December 28, 2006, an d

after he had arrived in NICU, which still is not within the

statutory period. Since both the oxygen deprivation and the

injury cannot be placed in the statutory period, Petitioners

cannot prevail.

CONCLUSIONS OF LAW

7 3 . The Division of Administrativ e Hearings has

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

this cause. § § 766.301 - 766.316, Fla. Stat.

7 4 . The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providing co mpensation, irrespective of fault, for

birth - related neurological injury claims" relating to births

occurring after January 1, 1989. § 766.303(1), Fla. Stat.

7 5 . The injured infant, her or his personal

representative, parents, dependents, and next of kin , may seek

compensation under the plan by filing a claim for compensation

with the Division of Administrative Hearings. §§ 766.302(3),

766.303(2), and 766.305(1), Fla. Stat. T he Florida Birth -

Related Neurological Injury Compensation Association, which

ad ministers the Plan, has "45 days from the date of service of a

complete claim . . . in which to file a response to the petition

and submit relevant written information relating to the issue of

whether the injury is a birth - related neurological injury."

§ 766.305(4), Fla. Stat.

7 6 . 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, Flor ida

Statutes. §§ 766.304, 766.309, and 766.31, Fla. Stat.

7 7 . In discharging this responsibility, the Administrative

Law Judge must make the following determination based upon

available evidence:

(a) Whether the injury claimed is a birth -

related neurolo gical 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 per manently

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 physi cian in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospital; or by a certified

nurse midwife in a teaching hospital

supervised by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospital.

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

Administrative Law Judge concludes that the "infant has

sustained a birth - related neurological injury and that

obstetrical services were de livered by a participating physician

at birth." § 766.31(1), Fla. Stat.

7 8 . Pertinent to this case "birth - related neurological

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

Injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

s ingle 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

postdeliver y period in a hospital, which

renders an infant permanently and

substantially mentally and physically

impaired. This definition shall apply to

live births on l y and shall not include

disability or death caused by genetic or

congenital abnormality.

7 9 . Pe titioners, who have asserted from the start that

Jael did not suffer from oxygen deprivation in the statutory

period, but suffered from meningitis that manifested after

birth, did not assert the statutory presumption of section

766.309 (1)(a ). Rather, in reliance upon St. Vincent's Medical

Center, Inc. v. Bennett , 27 So. 3d 65, (Fla. 1st DCA 2009),

Intervenors have invoked the presumption . T hat case is

currently before the Florida Supreme Court, but the First

District Court of Appeal's holding is binding here .

Nevertheless, the presumption having been applied in

Intervenors' favor, the presumption has been fully rebutted by

Petitioners and Respondent .

80 . Consequ ently, given the provisions of section

766.302(2), Jael does not qualify for coverage under the P lan.

See also §§ 766.309(1) and 766.31(1), Fla. Stat.; Humana of

Fla., Inc. v. McKaughan , 652 So. 2d 852, 859 (Fla. 5th DCA

1995)("[B]ecause the Plan . . . is a statutory substitute for

common law rights and liabilities, it should be strictly

constru ed to include only those subjects clearly embraced

within its terms."), approved , Fla. Birth - Related N eurological

Injury Comp. Ass'n v. McKaughan , 668 So. 2d 974,979 (Fla.

1996).

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions

of Law , it is ORDERED:

The claim for compensation filed by Senboya Sutton, as

m other and n atural g uardian of Jael Sutton, a minor, and

Julie Goddard, as l egal g uardian of the p roperty of Jael Sutton,

a minor, is dismissed with prejudice.

DONE AND ORDERED this 2 5th day of March, 2011, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

( 850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of March , 2011 .

ENDNOTES

1 / The filed T ranscript is accurate; its table of contents is

not.

Jt. Ex. 1 is Dr. Davis' office records; Jt. Ex. 2 is UCH's

medical records (Bates 001 - 023); Jt. Ex. 3 is UCH's medical

records (Bates 024 - 057 ) ; Jt. Ex. 4 is UCH's medical records

(Bates 058 - 067; Jt. Ex. 5 is St. Joseph's medical records (Bates

SJ H 1 - 5 ) ; Jt. Ex 6 is St. Jo seph's medical records (Bates 185 -

201) [Some other items are mixed in.] ; Jt. Ex. 7 is St. Joseph's

medical records (Bates 208 - 328) ; Jt. Ex. 8 is St. Joseph's

medical records (Bates 329 - 1126); Jt. Ex. 9 is Jael Sutton's

ultrasound report dated 12/1/06 (pg 9 68); Jt. Ex. 10 is Jael

Sutton's ultrasound report dated 12/10/06 (page 9 5 8); Jt. Ex. 1l

is Jael Sutton's MRI report dated 12/1 5 /0 6 (pages 949 A and B );

Jt. Ex. 12 is Jael Sutton's MRI report dated 8/1/07 (J. Sutton

001 - 002); Jt. Ex. 13 is the report of M ichael Duchowny, M.D.

(pages 1 - 4); Jt. Ex. 14 is the report of Michael Duchowny, M.D.

(pages 5 - 6); Jt. Ex s . 9A, 10A, 11A, and 12A are the actual films

on CD corresponding to the reports labeled "Jt. Exs. 9, 10, 11,

and 12, " respectively.

Petitioners ' Ex . 1 is the 11/19/2010 deposition of

Dr. Michael Katz, with exhibit. Petitioners ' Ex. 2 is the

deposition of Dr. Mary K. Edwards - Brown with

exhibits/enclosures. Petitioners ' after - filed DVD of

Dr. Edwards - Brown's deposition has been marked as Petitioners '

Ex 3 .

Respondent NICA withdrew pre - marked NICA Exs. 1 and 2 (two

black notebooks) . NICA Ex. 3 is the Deposition of Dr. Michael

Duchowny with exhibits .

St. Joseph's Ex. 1 is the deposition of D r. Elias G.

Chal h ub.

UCH's Ex. 1 is Dr. Robert Zimmerman 's deposition with all

exhibits. UCH's after - filed DVD of Dr. Robert Zimmerman's

deposition has been marked as UCH's Ex. 2.

2 / (TR - 7 - 8 ) . Accordingly, if the claim is found compensable,

Petitioners ' only recourse is NICA, and if the claim is found

not compensable, Petitioners ' only recourse is a circuit court

action.

3 / (TR - 10,72 - 73 ) . Otherwise, t he parties are aligned as

follows: Petitioners and Respondent NICA submit the claim is

not compensable as Jael did not suffer an injury to the brain or

sp inal cord " caused by oxygen deprivation or mechanical injury

occurring in the course of labor, delivery or resuscitation in

the immediate postdelivery period in a hospital which rendered

the infant permanently and substantially mentally and physically

impa ired." Intervenors contend that Jael suffer ed such an

injury with in the statutory period. (Prehearing Stipulation) .

4 / The parties are also divided upon how the statutory

presumption at section 766.309 (1) (a) is to be applied.

Petitioners and NICA as sert that only a " claimant ," and thus,

only a petitioner, may assert the presumption. Intervenors

assert that they are equally entitled to assert the presumption .

Intervenors have been accorded the presumption . However, by

their proposed final order, In tervenors have acknowledged that

Jael did not suffer oxygen deprivation during labor or delivery .

See Conclusions of Law.

5/ See Dorland's Illustrated Medical Dictionary , 1588 (28th ed.

1994).

6/ All times from all medical records have been converte d to

standard a.m. and p.m. times.

7/ " PPV " is an abbreviation for " Positive pressure

ventilation . "

8 / Apgar scores are a numerical expression of the condition of

a newborn infant and reflect the sum of points gained on

assessment of heart rate, respir atory effort, muscle tone,

reflex irritability, and color, with each category being

assigned a score ranging from the lowest score of zero to a

maximum of two. See Dorland's Illustrated Medical Dictionary ,

1497 (28th ed. 1994).

9 / " ' Acidosis ' is a path ologic condition resulting from

accumulation of acid or depletion of the alkaline reserve

(bicarbonate content) in the blood and body tissues, and

characterized by an increase in hydrogen ion concentration

(decrease of pH ). Metabolic acidosis is a disturb ance in which

the acid - base status of the body shifts toward the acid side

because of loss of base or retention of noncarbonic, or fixed

(nonvolatile), acids; called also nonrespiratory acidosis . " See

Dorland's Illustrated Medical Dictionary , 16 (28th ed. 1994 . )

1 0 / See Dorland's Illustrated Medical Dictionary , 1507 (28th

ed. 1994).

1 1 / See Dorland's Illustrated M edical Dictionary , 1011

(28th ed. 1994).

12/ "'Encephalomalacia' is softening of the brain, especially

that caused by infarct." See Dorl and's Illustrated Medical

Dictionary , 549 (28th ed. 1994). Dr. Edwards - Brown testified

that this means " the brain has diffusely deteriorated to areas

of cystic change; in other words, big holes have developed

throughout the brain where the brain has died. "

1 3 / The facts of the instant case do not correlate with Orlando

Regional Health Care Sys tem , Inc. v. Fl orida Birth - Related

N eurological Injury Comp ensation Plan , 997 S o. 2d 426 (Fla. 5th

DCA 2008), where the infant was born with meconium aspiration

and never had spontaneous respiration ; a code was called within

two minutes of birth ; and there were immediate chest

compressions and intubation. In the instant case, there was a

significant time gap between the child being stabilized and the

injury. The fa ct that Jael's brain injury from oxygen

deprivation can be traced back to an infection does not satisfy

the requirement that the oxygen deprivation occur during labor,

delivery, or resuscitation in the immediate postdelivery period

in a hospital. See Nagy v. Fla. Birth - Related Neurological

Injury Comp. Ass'n , 813 So. 2d 155 (Fla. 4th DCA 2002). Cf . St.

Vincent's Medical Ctr, Inc. v. Bennett , supra .

COPIES FURNISHED :

(Via Certified Mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurologi cal

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7010 1670 0000 3097 1031)

Danell G. DeBerg, Esquire

DeBerg & DeBerg, P.A.

1815 Tyrone Boulevard

St. Petersburg, Florida 33710

(Certified Mail No. 7010 1670 0000 3097 1048)

Samuel S. Mehring, Jr., Esquire

3712 West Azeele Street

Tampa, Florida 33606

(Certified Mail No. 7010 1670 0000 3097 1055)

Isabel Del Cid, Esquire

Lubell & Rosen

200 South Andrews Avenue, Suite 602

Fort Lauderdale, Fl orida 33301

(Certified Mail No. 7010 1670 0000 3097 1062)

H. Hamilton Rice, III, Esquire

Bush, Grazianno & Rice, P.A.

Post Office Box 3423

Tampa, Florida 33601 - 3423

(Certified Mail No. 7010 1670 0000 3097 1079)

Rodney W. Morgan, Esquire

Morgan, Lamb, G oldman & Valles, P.A.

500 North Westshore Boulevard

Suite 820

Tampa, Florida 33609

(Certified Mail No. 7010 1670 0000 3097 1086)

Louis J. La Cava, Esquire

La Cava & Jacobson

101 East Kennedy Boulevard, Suite 2500

Tampa, Florida 33602

(Certified Mail No . 7010 1670 0000 3097 1093)

Robert J. Grace, Jr., Esquire

Stiles, Taylor & Grace, P.A.

Post Office Box 460

Tampa, Florida 33601

(Certified Mail No. 7010 1670 0000 3097 1109)

Richard B. Mangan, Jr., Esquire

Rissman, Weisberg, Barrett, Hurt,

Donahue & M cLain, P.A.

1 North Dale Mabry Highway

11th Floor

Tampa, Florida 33609

(Certified Mail No. 7010 1670 0000 3097 1116)

Amy Rice, Acting Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7010 1670 0000 3097 1123)

Elizabeth Dudek, Deputy Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7010 1670 0000 3097 113 0)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this F inal O rder 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 Pro cedure. 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.