09-006958N Latasha Williams And Perry Russell, Sr., On Behalf Of And As Parents And Natural Guardians Of Perry Russell, Jr, A Deceased Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, December 3, 2010.

Summary: Infant's brain injury most likely post-dated labor, delivery, and resuscitation in the immediate postdelivery period (the statutory period) so as not to be compensable. Rebuttable presumption stipulated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LATASHA WILLIAMS AND PERRY )

RUSSELL, SR., on behalf of and )

as parents and natural )

guardians of PERRY RUSSELL, JR, )

a deceased minor , )

)

Petitioners , )

)

vs. ) Case No. 09 - 6958N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

CO MPENSATION ASSOCIATION , )

)

Respondent, )

)

and )

)

BAY MEDICAL CENTER, )

)

Intervenor . )

)

FINAL ORDER

Upon due notice, this cause came on for final hearin g

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

Judge of the Division of Administrative Hearings on August 26,

2010, in Tallahassee, Florida.

APPEARANCES

For Petitioners: Grant A. Kuvin, Esquire

Morgan & Morgan, P.A .

20 North Orange Avenue, Suite 1600

Orlando, Florida 32801

For Respondent: M. Mark Bajalia, Esquire

Brennan, Manna & Diamond

800 West Monroe Street

Jacksonville, Florida 32202

For Intervenor: Brian L. Smith, Esquire

Christopher J. Steinhaus, Esquire

Hill, Adams, Hall & Schieffelin, P.A.

Post Office Box 1090

Winter Park, Florida 32790 - 1090

STATEMENT OF THE ISSUES

(1) Compensability, to wit: Whether the inj u ry claimed is

a birth - related neurological injury and whether obstetrical

services were delivered by a participating physician in the

cou rse of labor, delivery, or resuscitation in the immediate

post - delivery period in the hospital .

(2) Whether notice was accorded the patient, as

contemplated by Section 766.316, Florida Statutes, or whether

the failure to give notice was excused because t he patient had

an emergency medical condition, as defined in Se c tion 395.002

(8)(b), Florida Sta t utes, or the giving of notice was not

practicable.

PRELIMINARY STATEMENT

On December 21, 2009, Latasha Williams 1 and Perry Russell,

Sr., on behalf of , and as p arents and natural guardians of ,

Perry Russell, Jr. (Perry , Jr. ), a deceased minor, filed a

petition (claim) with the Division of Administrative Hearings

(DOAH) entitled "Petition for Benefits Pursuant to Florida

Statute Section 766.301 et seq." The Petit ion alleged that

Perry , Jr., "suffered brain damage and ultimately died as a

result of a birth - related neurologic al injury -- meconium

aspiration syndrome , " 2 and contested that "all statutory

re q uirements have been met, including, but not limited to, the

iss ue of timely notice."

Bryce Vincent Jackson, M.D. , of North Florida Obstetric and

Gynecologic Center, P.A. , and Bay Medical Center (hospital) were

named in the Petition as associated with Perry, Jr.'s, birth .

DOAH served the Florida Birth - Related Neurolog ical Injury

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

December 22, 2009 ; s erved Bay Medical Center on December 23,

2009; and served Dr. Jackson on February 22, 2010 . Only Bay

Medical Center sought to intervene, which intervention was

gra nted by Order of February 25, 2010.

On February 3, 2010, NICA filed its response to the

P etition, wherein it gave notice that it was of the view that

Perry , Jr., did not suffer a "birth - related neurological

injury," as that term is defined by Section 766.3 02(2), Florida

Statutes, and requested that a hearing be scheduled to resolve

whether the claim was compensable.

T he case proceeded to hearing on August 26, 2010, upon the

parties' Prehearing Stipulation, filed August 17, 2010.

At hearing, the parties st ipulated to certain factual

matters set forth in the Pre - Hearing Stipulation, including but

not limited to the fact that Dr. Jackson had given statutory

notice of NIC A participation, but that the hospital, Bay Medical

Center, had not given such notice.

T he parties stipulated as a matter of law that Petitioners

are entitled to a rebuttable presumption that Perry, Jr.,

suffered a birth - related neurological injury, pursuant to

Section 766.309(1)(a), Fl orida Statutes .

Joint Exhibits A through R (Ex.) , were ad mitted in

evidence. 3

Petitioners presented the oral testimony of

Latasha Williams, Lakisha McClain, Patricia Williams , and

Berto Lopez, M.D. (expert). Respondent NICA and Intervenor Bay

Medical Center presented no oral testimony.

A T ranscript was filed on September 22, 2010, and the

parties were initially accorded 10 days thereafter in which to

file proposed final orders. However, upon motion, the time for

filing proposed orders was extended to October 8, 2010 , thereby

extending the time for entry of t his Final Order .

Petitioners and Respondent filed their proposals on

October 8, 2010. Intervenor filed its proposal on October 11,

2010, but the late - filing has not been objected - to by any party,

and therefore, all proposals have been considered in prep aration

of this Final Order.

FINDINGS OF FACT

Stipulated Facts 4

1. Latasha Williams Russell is the natural mother of

Perry Russell, Jr. (Perry , Jr.).

2. Perry Russell, Sr. , is the natural father of Perry , Jr.

3. Perry, Jr., was born a live infant on M ay 7, 2008.

4. Perry, Jr., was born at Bay Medical Center, a licensed

hospital located in Panama City, Florida.

5. Perry, Jr.'s , birth weight was in excess of 2 , 500

grams.

6. The physician providing obstetrical services at the

time of Perry, Jr.'s , birt h was Bryce Vincent Jackson. M.D.

7. At all times material , Dr. Jackson was a participating

physician in the Florida Birth - Related N eurological Injury

Compensation Plan.

8. Latasha Williams signed a Notice to Obstetric Patient

(NICA notice form) statin g that Bryce Vincent Jackson, M.D. , is

a "participating physician in the program" on November 20, 2007.

9. Bay Medical Center acknowledged at hearing that it had

never given pre - delivery notice of NICA participation/limitation

to Ms. Williams.

10. On M ay 7, 2008, Perry, Jr., suffered a brain injury

caused by oxygen deprivation.

11. As a result of the oxygen deprivation, Perry, Jr., was

permanently and substantially mentally and physically impaired.

12. Perry, Jr., subsequently died on October 8, 2008 .

13. Perry Jr.'s , death was caused by the brain injury

resulting from the oxygen deprivation.

1 4 . The term , "resuscitation in the immediate postdelivery

period" is not defined in the NICA Statute. §§ 766.301 - 766.316,

Fl a. Stat.

Other Facts Found

1 5 . T he term, "resuscitation in the immediate postdelivery

period" is not uniformly defined in the medical community.

1 6 . Latasha Williams Russell was an obstetrical patient of

Dr. Jackson at North Florida Obstetric and Gynecologic Center ,

beginning on Novembe r 20, 2007. Her expected delivery date was

May 11, 2008.

1 7 . Labor began for Ms. Williams at approximately 0200

[ 2:00 a.m. ] on May 7, 2008. 5 At 084 0 [ 8:40 a.m. ] , she was

admitted to B ay Medical Center, experiencing active contractions

every 2 - 3 minutes for 60 - 80 seconds , four centimeters dilated,

with the baby 100 percent effaced and fetal heart rate of 135

with variability present.

1 8 . Accompanied by female family and friends, Ms. Williams

was placed in a Labor/Delivery/Recovery/ Post - Partum Room (LDR P),

and prepped for delivery. Although her female support team

varied a little in composition in the beginning of her

hospitalization, at all times material, Ms. Williams' mother and

sister and at least one other woman were present in the LDRP

room with h er.

19 . Ms. Williams' c omplete cervical dilation was reported

at 1145 [ 11:45 a.m. ] . At 1215 [ 12:15 p .m. ] , Dr. Jackson

ruptured the membrane s and found 3 meconium - stained amniotic

fluid. M econium at 3 would be of a putty - like consistency.

2 0 . From 12 20 [ 12:20 p.m. ] to 1250 [ 12:50 p.m. ] ,

Ms. Williams pushed through her uterine contractions, and Perry,

Jr.'s , fetal heart rate was sustained between 120 and 130 beats

per minute through this period.

2 1 . At 12:50 p.m., Ms. Williams delivered Perry Russel l,

Jr., a live, 2605 - gram boy, via normal spontaneous vaginal

delivery, assisted by a right medial and lateral episiotomy

performed by Dr. Jackson . Despite the episiotomy, Ms. Williams

suffered a fourth - degree laceration, requiring repair.

2 2 . Dr. Jack son 's narrative record reads :

PROCEDURE PERFORMED:

1. Normal spontaneous vaginal delivery on

May 7, 2008.

2. Right Medial and Lateral episiotomy.

3. Fourth - degree laceration repair.

PROCEDURE DESCRIPTION: The patient

underwent a NSVD [ 6 ] at 1250 on May 7, 2008,

over a right medial lateral episiotomy. She

delivered a male infant that had Apgars [ 7 ] of

6 and 9, and weight equals 5 pounds plus

11.8 ounces (2606 g.) The amniotic fluid

was 3 meconium stained. The baby's airway

was suctioned with a b ulb syringe as well a

[sic] #10 French pediatric suction c annula

connected to the wall suction by

intermittent suction technique prior to

delivery of the thorax. The placenta

delivered spontaneously and was found to be

intact. There were three umbilical cord

vessels. The placenta mass was also small.

The uterine cavity was then manually

explored and found to be intact with no

retained products of conception. Post -

delivery examination of the episiotomy site

revealed an approximately 12mm inlet

verticall y oriented laceration into the

rectal mucosa. The anal sphincter was

intact. One carefully identified the

proximal and distal end of the laceration

and closed the defect with a 4 - 0 chromic

suture in a continuous fashion. The second

layer of closure was then done over the

first layer, again using a 4 - 0 chromic

suture in a continuous fashion. The

remainder of the laceration was sutured in

normal episiotomy repair fashion using 3 - 0

and 2 - 0 chromic sutures. Estimated blood

loss was estimated at 250 mL. An esthesia

equaled epidural.

The mother and baby were left in LDRP in

good stable condition .

( e mphasis added ) .

23 . There is no further written evaluation of the child by

Dr. Jackson, and he did not testify.

2 4 . Upon the foregoing obstetrician 's reco rd a nd the

testimony of the mother, the grand mother , and an aunt who were

present, it is found that Dr. Jackson suctioned Perry, Jr's,

mouth by bulb and wall cannula while Perry, Jr.'s , head was out

of the birth canal and his thorax remained inside, and th en

delivered the remainder of Perry, Jr.'s , body. Perry, Jr.'s,

time of birth was recorded a s 12:50 p.m.

2 5 . After delivering the whole of the baby, 8 Dr. Jackson

again suctioned him and "handed off" Perry, Jr., to one of two

nurses, who took the baby to the LDRP crib/warmer and who

examined and worked to stimulate him. The mother heard the baby

cry when passed to the nurse. (Ex. K - 522) . Meanwhile,

Dr. Jackson directed his primary attention to the repair of

Ms. Williams' episiotomy tear.

2 6 . By all accounts, one or two nurses were present in the

LDRP room at least until shortly before Dr. Jackson finished the

episiotomy repair.

2 7 . At the LDRP's crib, a nurse bulb - suctioned Perry,

Jr.'s , mouth and nose again (Ex . L - 596, TR - 74) , but he would not

su ck her finger and was not very responsive to her vigorous

stimulation by rubbing . She wiped him off and wrapped him in a

swaddling blanket , but he still had meconium staining on his

face and ears .

2 8 . Perry, Jr.'s, Apgar scores at one and five minutes

were documented by one of the nurse s as 6 and 9 as follows:

Heart Respiratory Muscle Reflex Skin

Rate Rate Tone Irritability Color Total

1 Min. 1 1 1 2 1 6

5 Min. 2 2 2 2 1 9

2 9. O ut of a possible "10 , " or perfect Apgar score, Perry,

Jr., improved from 6 to 9, in a four - minute period.

30 . The testifying medical experts, Dr . Berto Lopez (live

and by deposition) and Dr. Donald C. Wil lis (by deposition

only) , agree d that these Apgar scores are inconsistent with a

baby who has previous thereto suffered an injury to the brain.

3 1 . Entries by a nurse on a form entitled , "Possible

Problems Typical of Age - Weight Categories," at 10 minutes post -

birth and at 25 minutes post - birth, respectively, read as

follows:

[ 1:00 p.m. ] [ 1:15 p.m. ]

(1300) (1315)

Temperature 98.9 R [ 9 ] 97.5AX [ 10 ]

Pulse 140 140

Respiration Rate 60 52

Respiratory Pattern Unlabored Unlabored

Nasal Flaring None None

Expiratory Grunt None None

Retractions Non e None

Color Pink Pink

Abdomen Normal Normal

Cry Normal Normal

Activity Normal Normal

3 2 . The foregoing nurse assessmen ts did not include oxygen

saturation of the blood, blood pressure, or assessment of

acidosis in the arterial blood gases. If such assessments had

been made at that point and if a cidosis had been found, it would

have been an indicator of an hypoxic event .

3 3 . The foregoing assessment form required that the nurses

watch for asphyxia and meconium aspiration. None of the nurses'

recorded assessments denote asphyxia, mechonium aspiration,

hypoxia , or ischemia. "Hypoxia" denotes a low oxygen level in

the bloo d. "Ischemia" occurs when there is not enough blood

circulating in the body. 1 1 If meconium gets below the baby's

vocal cords and is aspirated into his lungs, there can be oxygen

deprivation, possibly followed by meconium aspiration syndrome.

Dr. Lopez t estified that 10 percent of all babies are born with

meconium, and of those 10 percent, perhaps five percent develop

meconium aspiration syndrome.

3 4 . T he foregoing nurse assessments required by the form

are among the conditions that medical personnel loo k for , in an

effort to determine whether or not a newborn is experiencing

asphyxia, oxygen deprivation, or meconium aspiration syndrome.

A ll of the foregoing recorded signs or symptoms exist ing at 10

minutes of life and 25 minutes of life suggest that Per ry, Jr. ,

had experienced no hypoxia, asphyxia, or meconium aspiration

syndrome up to th ose point s in time and that his transition from

the uterus to the outside world had been successful .

35. No party presented testimony by any medical personnel

present at the labor or delivery , or present during the initial

obstetrician and nurse resuscitation s, already described , which

occurred immediately after delivery.

3 6 . Dr. Berto Lopez fault ed the sufficiency of the

foregoing nurse assessments , maintain ed that t hey fall below

recognized medical record - keeping standards , and are not the

equivalent of a physician's evaluation of the child . T he

" Possible Problems Typical of Age - Weight Categories " form,

itself, provided space for the nurses to periodically make , and

record , new assessments at intervals at least four m ore times ,

but no further nurse assessments were recorded on this form

after 1315 [ 1:15 p.m. ] , on May 7, 2008, and no further medical

records of any kind were generated until 1412 [ 2:12 p.m. ] .

Nonethele ss, Apgar scores and the 10 - minute and 25 - minute post -

delivery nurse observations /assessments ( s ee Finding of Fact 3 1 )

have not been shown to be other than the actual observations of

the medical personnel at the time s stated on them , and the

medical expert s testifying herein have considered those

assessments , as well as the Apgar scores, in rendering their

respective opinions.

3 7 . After Dr. Jackson completed the episiotomy repair, the

family was left alone with the newborn in the LDRP. The baby

was pass ed from woman to woman , each of whom examined and

admired him.

3 8 . Hospital records next show that at 2:12 p.m., Perry,

Jr., suffered a cardiopulmonary event, became apneic (ceased

breathing) , and required intubation, chest compressions, and

administrati on of epinephrine.

3 9 . There is no documentation by any medical personnel of

Perry, Jr.'s , condition between 1:15 p.m. and 2:12 p.m .

40. Also, no party presented testimony by any medical

personnel present during the resuscitative efforts hereafter

desc ribed, which occurred at 2:12 p.m.

41 . Based on the time of Perry, Jr.'s, delivery recorded

by Dr. Jackson ( 12:50 p.m.) Perry, Jr.'s , cardiopulmonary event

at 2:12 p.m. , occurred one hour and 22 minutes after his

delivery at 12:50 p.m. Based on the tim e of the last nurse

assessment as recorded on the "Possible Problems Typical of Age -

Weight Categories" form (1:15 p.m.) , Perry, Jr.'s ,

cardiopulmonary event at 2:12 p.m. , occurred 57 minutes after

the obstetrician and attending nurses had left him in the L DRP

in what Dr. Jackson believed to be " good, stable" condition .

Based on the testimony of the female relatives, the

cardiopulmonary event at 2:12 p.m. , occurred within 20 - 25

minutes of the time Dr. Jackson exit ed the LDRP room.

4 2 . The timing of preci sely when Perry, Jr., became apneic

is in dispute. Despite the foregoing health care professionals'

records s tating the cardiopulmonary event occurred at 2:12 p.m. ,

Perry, Jr.'s, mother, grandmother, and aunt maintain that Perry,

Jr., was continually stru ggling for breath wh ile they were alone

with him in the LDRP and that he ceased breathing within 20 - 25

minutes of Dr. Jackson's exiting the LDRP room. While these

witnesses' testimony as to chronology of events and time elapsed

is consist ent with each oth er's testimony, they all base their

time calculation s on the recollection of the four women

sequentially holding the baby for an estimated 4 - 5 minutes

apiece as they passed him around , and they all concur that they

were not sufficiently alarmed by his brea thing on the day in

question to immediately call for medical assistance .

43 . In challenging the medical personnel's recordation

that the cardiopulmonary event occurred at 2:12 p.m. ,

Petitioners put forth the premise that all notations in the

medical rec ords are misleading , because they had to have been

written down subsequent to the events or con ditions recorded.

For instance, the family believes that 2:12 p.m. , is when the

cardiopulmonary event was recorded/ charted, not when it

occurred. Th is premise , that the medical notations were written

down after the event recorded , is accepted, for what it is

worth, because clearly, medical personnel cannot record events

which have not yet taken place and cannot record them

simultaneous ly with pe rforming the medi cal procedures . However ,

the premise, by itself, does not establish either that the

events recorded in the medical records did not ever occur or

that those events occurred so far in advance of their being

recorded as to prevent the records' content (inclu ding timing)

from being credible.

44 . The accuracy of the family's testimony as to timing is

also diminished by their not being medically trained and their

testifying in retrospect, without any notes made

contemporaneously with the events. Also, a s mig ht be expected ,

in the joy and excitement of holding a new family member, none

of Petitioners' witnesses looked at a watch or clock to time

events, and if the 2:12 p.m. , cardiopulmonary event and

subsequent events occurred somewhat before the times written

down , then all th e events recorded as occurring prior to

Dr. Jackson exiting the LDRP room also must have occurred

somewhat prior to the time stated in the records, so that the

span of time from delivery until Perry, Jr., suffered the

hypoxic event would still be about an hour and 22 minutes post -

deliver y and a bout 5 7 minutes after the delivery team exited the

LDRP room, believing that Perry, Jr., had been stabilized.

4 5 . On the other hand, the consistent testimony of the

mother, grandmother, and aunt tha t after they were alone with

Perry, Jr., he opened his eyes as they admired him; that he

later closed his eyes, stopped breathing , and went limp as the

mother held him the second time; that the grandmother ran ,

carrying him, to the nurse's station for help ; and that it was a

nurse who returned him to the LDRP's crib/warming unit where

resuscitation occurred , is accepted over the small amount of

contrary hearsay contained in Dr. Mohamed's discharge summary

quoted infra at Finding of Fact 5 4 .

4 6 . Concerning Perry, Jr.'s, cardiopulmonary event at

2:12 p.m. , a nurse recorded in the " Health Care Professionals'

Progress Notes , " in pertinent part, as follows:

5/7/08 1412: arrived to labor room 302.

Observed infant on open warmer apneic and

intubation performed p er B. Miller

Dr. Maniscalco progress notes. To newborn

nursery via warmer with PPB en route with

tube. CPR continues ETC 11.5 cm @ lip HR54

. . .

(Ex . C - 103) .

47 . It is also accepted that because of th e run out / run in

period, the note at 2:12 p.m. , may actually show the hypoxic

event as occurring a minute or two later than it actually

occurred, but such a small delay is immaterial , given the rest

of the evidence.

4 8 . Dr. Maniscalco's (surgeon's) progress note at 1455

[ 2:55 p.m. ] , reads, in pertinent part:

5/7/08 1455: Called stat to postpartum

newborn in full arrest. CPR in progress.

Intubated B. Miller . . . No IV access.

Epinephrine/Atropin per ETT. HR 80's [to]

122 palpable pulse. Dr. Azam in. IV

established. Fluid bolus given. Pet. Color

improved but . . . Dr. Azam to place UVC and

assuming patient care.

(Ex . C - 81) .

4 9 . After resuscitating Perry, Jr., at approximately

2:55 p.m., and moving him to t he newborn nursery on mechanical

ventilation , a chest X - ray was taken. Radiologist Billingsley's

report , printed at 1604 [ 4:04 p.m. ] , on May 7, 2008, reads:

INDICATION: Intubated, decreased breath

sounds

COMPARISON: None

FINDINGS: The endotracheal tu be tip is in

the left mainstream bronchus. There is

complete opacification of the right

hemithorax likely due to inefficient

aeration of the right lung. In the left

lung there is patchy parenchymal

opacification which may be due to . . .

meconium aspirat ion in a term infant .

( e mphasis added ) . (Ex . C - 97; see also Ex. C - 99 - 100) .

50 . Repeated X - rays thereafter also diagnosed "meconium

aspiration syndrome . "

51 . Arterial blood gas printouts showed severe acidosis as

follows:

Time pH pCO 2 pO2

1520[ 3:20 p.m. ] 6.549 65.4 152.3

1623[ 4.23 p.m. ] 6.894 30.4 133.9

1755[ 5:55 p.m. ] 7.096 32.5 76.5

52 . At 1754 [ 5:54 p.m. ] , Perry, Jr. , was noted as having

tremors of the lips and facial tremors.

53 . Ahmed Baker Mohamed , M.D., was notified of the

infant's seizure(s) and p henobarbita l was administered at

6:12 p.m.

54 . At 1813 [ 6:13 p.m. ] , Perry, Jr., was air - lifted to

Sacred Heart Hospital's Neonatal Intensive Care Unit (NICU). A

dischar g e summary by Dr. Mohame d reads, in pertinent part:

REASON FOR TRANSFER: Respiratory failure

HISTORY OF PRESENT ILLNESS: This is a

newborn, 1 day old, born in Bay Medical

Hospital on May 7, 2008, as per report

normal vaginal delivery with no reported

complications during pregn ancy or labor.

After one hour from delivery, the baby was

in the mother's room who asked for help

because the baby stopped breathing and

moving. The nurse rushed to the mother's

room and found the baby pale, not moving and

not breathing. The Ambu bag wa s started and

called anesthesia who intubated the baby.

Dr. Azam was called to evaluate the patient.

She ordered epinephrine, IV fluid b olus and

the patient was put on mechanical

ventilation. It was reported that during

the suction, meconium came out in a moderate

amount. The patient was moved to the

nursery on mechanical ventilation. Sacred

Heart neonatal intensive care was called and

arrangements were made to transport the

patient to the neonatal intensive care.

Prenatal labs were unremarkable.

** *

IMPRESSION: A one day newborn with

respiratory failure , rule out sepsis, rule

out aspiration, rule out pneumonia.

( e mphasis added ) . (Ex . C - 73) .

5 5 . Perry, Jr. , stayed at Sacred Heart Hos pital in

Pensacola from May 7, 2008, to Octob er 1, 2008, and w as

subsequently seen in other facilities.

5 6 . On July 2, 2008, and September 10, 2008, Perry, Jr.,

was seen by C. Anthony Hughes, M . D . (pediatric

otolaryngologist). Dr. Hughes diagnosed Perry, Jr. , as having

hepatic encephalopathy, bilateral cortical i njury secondary to

hypoxi c ischemic encephalopathy.

5 7 . O n September 24, 2008, Perry, Jr., was seen by

Kristin Van Hook, M.D., a pediatric pulmonologist, who diagnosed

him at four months of age, with static enceph alopathy and

seizure disorder secondary to arrest shortly after birth from

having suffered a severe anoxic injury at one hour of age.

Coverage u nder the p lan and the statutory presumption .

5 8 . C overage is afforded under the Plan for infants who

suffer a "birth - related neurological injury," which for our

purposes here, is defined as:

. . . injury to the brain . . . of a live

infant . . . caused by oxygen deprivation

. . . occurring in the course of labor,

delivery, or resuscitation in the immediate

postdelivery period in a hospital, which

renders the infant permanently and

substantially mentally and physically

impaired."

See § 766.302(2) , Fla. Stat.

5 9 . Normally, Petitioners, as the proponents of the issue,

would have the burden to demonstrate that Perry, Jr., suffered a

"birth - related neurolo gical injury." See Balino v. Dep ' t of

Health and Rehab . Servs . , 348 So. 2d 349, 350 (Fla. 1st DCA

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

party asserting the affirmative of an issue before an

administrative tribunal."); Galen of Fl a. , Inc. v. Braniff , 696

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

is an affirmative defense."); Tabb v. Fl a. Birth - Related

Neurological Injury Compensation Ass 'n , 880 So. 2d 1253, 1260

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

rested on the health care providers to demonstrate, more likely

than not, that the notice provisions of the Plan were

satisfied.").

60 . H owever, h erein, Petitioners ha ve the benefit of a

stipulation regarding notice issues and also that the st atutory

presumption contained in Section 766.309(1)(a) applies in this

case. For our purposes here, t he presumption reads :

If the claimant has demonstrated, to the

satisfaction of the administrative law

judge, that the infant has sustained a brain

. . . i njury caused by oxygen deprivation

. . . 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 neuro logical

injury as defined in s. 766.302 (2).

61 . The parties have stipulated that, as a matter of law,

Petitioners are entitled to a rebuttable presumption that

Perry, Jr., suffered a birth - related neurological injury, and it

is undisputed herein, that Perry, Jr., suffered an injury to his

brain caused by oxygen deprivation which rendered him

permanently and substantially mentally and physically impaired

and which ultimately resulted in his death. What remains for

determination is whether or not the oxygen deprivation and the

brain injury together occurred "in the course of labor,

delivery, or resuscitation in the immediate postdelivery

period."

62 . NICA suggests that the statutory presumption has been

rebutted, assert ing that the evid e nce demonstrates that the

oxygen deprivation and injury to Perry, Jr.'s , brain and his

subsequent neurologic impairment did not occur during "labor,

delivery, or resuscitation in the immediate postdelivery period

in a hospital" (the statutory period), bec ause both the hypoxic

insult which created the brain injury and the resultant brain

injury itself did not occur until more than an hour after Perry,

Jr. , had been stabilized in the LDRP . NICA claims that both

Perry, Jr.'s , oxygen deprivation and brain injury o ccurred when

Perry, Jr., became apneic an d was intubated, with chest

compressions, and administration of epinephrine at 2:12 p.m.

The likely timing of Perry , Jr.'s , brain injury.

63 . The statutory p eriod is not defined under the Plan.

Similarly, the medical experts herein acknowledged that this

p eriod is not defined within the medical community, but they

agreed that this period would last until the infant was

stabilized.

64 . Dr. Willis testified that although the term

"resuscitation in the immediate post - delivery period" is not

defined under the NICA Plan, the statute, or within the medical

community, it was his opinion that it should be defined as

follows:

[W]hen the baby's born, once the baby is

stabilized and no longer requires medical

attention, care to maintain adequate

oxygenation, to ma intain adequate blood

pressure, when the baby is surviving on its

own without intervention, then, as far as

I'm concerned, the immediate resuscitative

period is over.

(Ex . N - 779) .

65 . Dr. Lopez's definition was not very different. He

testified:

I wou ld imagine the immediate postdelivery

period would be what some doctors and many

organizations call the fourth stage of

labor, which is the period of time after the

complete delivery of the baby until the baby

has been stabilized and is no longer under

obs ervation.

(TR - 129) .

6 6 . Orlando Reg ional Healt h Care Sys tem , Inc. v. Fl orida

B irth - Related Neurological Injury Plan , 997 So. 2d 426 (Fla. 5th

DCA 2008), instructs that the determination of what is

"immediate" is a factual determination upon which medi cal

testimony should guide the Administrative Law Judge.

6 7 . T he medical experts, Dr. W illis and Dr. Lopez, are

agreed that meconium only becomes an issue once the membranes

are ruptured (during labor and delivery) ; the progress of

meconium aspiration s yndrome, if it occurs, is tha t the meconium

is inhaled into the baby's lungs, creating an inability to take

in enough oxygen to permit normal brain function , and eventually

not enough oxygen is let in to sustain life . Dr . Lopez credibly

testified that the alveoli of the lungs swell, cutting off the

oxygen and causing cardiac arrest and oxygen deprivation.

68 . Dr. Willis is a Florida - licensed, board - certified

obstetrician - gynecologist and a maternal - fetal medicine

specialist. In this capacity, he focuses on providing

consultative care to women with h i gh risk pregnancies . He has

not delivered a baby within the last ten years. Because

meconium becomes an issue only after a patient's membranes are

ruptured and the meconium becomes evident, Dr. Willis has n ot

personally dealt with a meconium aspiration even t in at least 10

years, and he was unable to give an opinion within reasonable

medical probability as to whether meconium aspiration syndrome

caused Perry, Jr.'s, hypoxic event and brain injury. However,

he did opine that Perry, Jr.'s, brain injury did not occur

within the statutory period so as to make it compensable under

the NICA Plan.

69 . Dr. Berto Lopez has been a Florida - licensed, board -

certified obstetrician for 23 years. He currently has

privileg es at four hospitals, delivers 30 babies per month , and

is part of a high - risk perinatal transfer tea m at St. Mary's

Hospital, Palm Beach, Florida. As such, it is found that

Dr. Lopez was more qualified than Dr. Willis to address the

issues of this partic ular case.

70 . Dr. Lopez faulted Dr. Jackson's records and failure to

"evaluate" the child and further faulted the hospital's failure

to monitor the child . H e opined summarily that Perry, Jr.'s ,

loss of oxygen was an undiagnosed continuing insult that began

at birth with aspiration of a moderate amount of thick meconium,

and with loss of oxygen continu ing through incomplete immediate

resuscitative efforts in the LDRP, and that the remaining

meconium, some of which was pumped out when Perry, Jr. , was

res uscitated at 2:12 p.m. , had created a sequel a of events ,

including loss of oxygen, brain damage, and full cardiopulmonary

arrest at that time, approximately an hour after birth.

Therefore, he concluded that the postdelivery resuscitative

period extended t hrough the 2:12 p.m. , episode.

71 . However, upon closer questioning r elevant to the issue

of whether Perry, Jr.'s , oxygen deprivation and/or brain injury

occurred within the statutory period of "labor, delivery, or

resuscitation in the immediate postdeliv ery period in a

hospital," Dr. Lopez testified as follows:

[Questions by Mr. Bajalia]

Q: And based on your review of the fetal

monitor strips, you agree that there was no

hypoxic insult or injury to Perry Russell,

Jr.'s brain during labor?

A: That's co rrect. (TR - 145) .

***

Q: . . . Regardless of what you think of

what Dr. Jackson did or didn't do, his

assessment and his determination was that

the baby was in good and stable condition;

you agree with that?

A: That's correct. (TR - 148) .

***

Q: So it's your tes t imony that he [Perry,

Jr.] was never in good and stable condition

at any point in time?

A: I'm not saying that he wasn't stable for

a period of time.

Q: There was a point in time, you're

testifying here today, that he was in fact

stabili zed?

A: He was stable, yes. (TR - 149) .

***

Q: The one - minute Apgar score is

inconsistent with a baby who has suffered an

injury to the brain at that particular point

in time?

A: That's correct.

Q: That one - minute Apgar score is not

indicative of h ypoxia or brain injury?

A: Correct.

Q: Now Perry's five - minute score was

recorded as what?

A: Nine .

Q: And is that normal?

A: Yes. But, it's normal, but the

resuscitation not only included bulb and

suction catheter. That also under oxygen,

this baby has a nine when it's given 80

percent oxygen by -- with something called

blow - by. Blow - by is an open tube of oxygen

that's usually attached to a wall oxygen

dispenser. . . .

***

Q I s the fact that Perry Russell as part of

the initial resuscitativ e efforts received

blow - by oxygen , is that in and of itself

indicative of him sustaining a brain injury

at that particular point in time?

A: No.

Q: Now back to the Apgar score. You

testified his Apgar score at five minutes

was nine?

A: Yes.

Q: And that's normal?

A: Yes.

Q: And Perry's five minute Apga r score is,

in your opinion, in consistent with hypoxi c

[sic] ?

A: Correct .

Q: It's inconsistent with him having

suffered an injury to the brain at that

particular point in time?

A: Correct.

Q : Now, I'm going to show you what's been

marked and identified as Joint Exhibit C,

and it's part of the records you have in

fro nt of you, page 107 of the stipulated

record. Are you familiar with that

document?

A: Yes.

Q: What is it?

A: It is the nurse evaluation form for part

of the postpartum period.

Q: And in fact it's titled possible

problems typical of age/weight categories?

A: That's what it's labeled, yes.

Q: And this appears to be an assessment of

Perry's condition by the nurses char ged with

his care with respect to possible problems

he may b e experiencing; do you agree with

that?

A: Yes.

Q: And one of these problems that is

identified on this record is asphyxia and/or

meconium aspiration?

A: Correct.

Q: Okay. So those are t he things tha t

they're specifically looking fo r in an

effort to determine whether or not Perry

Russell, at these particular points in time,

was experiencing asphyxia, oxygen

deprivation, or meconium aspiration, or

meconium aspiration syndrome; you would

ag ree with that?

A: Yes. (TR - 15 0 - 153) .

***

Q: Okay. And so despite the fact that

Perry received some initial resuscitative

efforts, which you described as suctioning

and some blow - by oxygen, at 13:00, ten

minutes after birth, based on what we've

been through thus far, he seems to be

looking pretty good?

A: Yes. (TR - 155) .

***

Q: Okay. Based on this assessment, at ten

minutes after birth you described I think

Perry Russell in your deposition as a rock

star; do you remember that?

A: Yeah, he's a rock star, looks good.

Q: Appears to be stabilized?

A: Yeah.

Q: On this assessment Perry didn't appear

to be experiencing or suffering from

asphyxia from meconium aspiration; you agree

with that?

A: Correct.

Q: And he doesn't appear to have any

d ifficulty breathing?

A: Correct.

Q: He's apparently breathing on his own?

A: Correct.

Q: He is not in respiratory failure?

A: Correct.

Q: Okay. This assessment is inconsistent

with hypoxia at that particular point in

time?

A: That's -- if we accept this as accurate,

this photograph says at this moment things

are looking great. (TR - 155 - 156) .

***

Q: Based on w hat's documented here, Perry

apparently had no injury to his brain at

this particular point in time?

A: Correct.

Q: At 13:00, b ased on what's documented

there, Perry Russell is in go o d and stable

condition?

A: Yes.

Q: He didn't appear to have any life -

threatening condition at that point in time?

A: Correct.

Q: He appeared -- it appeared that he had

made a safe transition f rom utero life to

life outside the uterus?

A: Yes.

Q: Based on what's documented at 13:00,

there were no active resuscitative measures

being administered to Perry Russell?

A: Correct. (TR - 157) .

***

Q: Now let's talk about the assessment that

was done at 13:15. Perry was born at 12:50.

At 13:15, that's 25 minutes postdelivery?

A: Correct. (TR - 158) .

***

Q: At 25 minutes of life Perry Russell

doesn't appear to be having any difficulty

breathing?

A: Correct.

Q: At 25 minutes of life he's b reathing on

his own?

A: Correct.

Q: At 25 minutes of life he doesn't appear

to be in respiratory distress?

A: Correct.

Q: At 25 minutes of life, based on what's

documented there, this assessment would be

inconsistent with a baby who has experienced

hypoxia?

A: Correct.

Q: It would be inconsistent with a baby

that's acidotic?

A: Correct.

Q: It would be inconsistent with a baby

suffering from asphyxia?

A: Correct.

Q: It's inconsistent with a baby that has

sustained an injury to the brain ?

A: Correct.

Q: At 13:15, 25 minutes after he was born,

it would appear that Perry was in good and

stable condition?

A: Yes.

Q: I t would appear that he had no life -

threatening conditions?

A: Correct .

Q: I t would appear that there were no

activ e resuscitative measures being

administered to Perry Russell at that ti me ?

A: Correct.

Q: And it would appear none were needed?

A: Correct. (TR - 16 0 - 161 ) .

***

Q: Okay. And you told me at the beginning

of this -- of my examination that just

becaus e a baby is experiencing an ongoing

spectrum of oxygen deprivation, that doesn't

mean that he has sustained an injury to the

brain?

A: Not - at certain points in time. It's a

spectrum that may start as okay and then go

- progress to hypoxia and brain da mage.

Q: Exactly, but the mere fact - my point

is, the mere fact that Perry may have been

experiencing a spectrum of oxygen

deprivation, it doesn't mean he has a brain

injury at 13:00?

A: Correct.

Q: It doesn't mean he had a brain injury at

13:15?

A : That's right.

Q: In fact, based on what's documented in

the records and what we know with respect to

what occurred at 14:12 an hour and 20

minutes after birth, that is when he

probably and most likely incurred an injury

to the brain?

A: No.

***

A: It was my opinion it occurred before

that.

Q: Before 14:12 [ 2 :12 p.m.]?

A: Right.

Q: Okay. But you have no idea when?

A: I could not pinpoint it to the exact

minute or time. What we see at 14:12

[2:12 p.m.] is in fact that the baby is in

full c ardiopulmonary arrest, requiring

extensive resuscitation. (TR - 162 - 163 ) .

***

Q: All right. And regardless of whether

you think the nurses could have, should have

done more with respect to their assessments

of Perry Russell at 13:00 and 13:15

[1:00 p.m. and 1:15 p.m.] , it is, in your

opinion, what they documented at 13:00 and

13:15 you would agree would indicate he was

not in respiratory distress?

A: Yes.

Q: Was not having any problems breathing?

A: That's right.

Q: And that he had not suffered a n injury

to his brain at that particular point in

time?

A: Correct. (TR - 165) .

72 . Overall, it is most probable that the oxygen

deprivation that caused Perry, Jr.'s , brain injury did not

happen until the code was called at 2 :12 p.m. , well beyond the

ti me he was stabilized in the LDRP.

73 . Given the proof, it is resolved that, more likely than

not, Perry, Jr. , did not suffer brain injury due to oxygen

deprivation that occurred during labor, delivery, or

resuscitation immediately following delivery. Rat her, it is

mo re likely than not that Perry, Jr. , suffered hypoxic ischemic

brain damage sometime after the statutory period had ended, that

is, after the obstetrician and nurses left him in stable

condition in the LDRP. It is most likely that the damage w as

done when he became apneic and had to be resuscitated about an

hour later . ( See Finding s of Fact 31 and 38 ) . Alternatively,

it is conceivable, but not proven, that Perry, Jr., suffered

oxygen deprivation from some unspecified point after being

stabili zed at 1:15 p.m. , and the oxygen deprivation continued

undetected until he went into cardiac arrest at 2:12 p.m. , but

either way, he did not suffer brain damage during the statutory

period.

CONCLUSIONS OF LAW

74 . The Division of Administrative Hearings h as

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

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

75 . The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providing compens ation, irrespective of fault, for

birth - related neurological inj u ry claims" relating to births

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

76 . The injured infant, her or his personal

representative, parents, dependents, and next of ki n, 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. 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 bi r th - related neurological injury ."

§ 766.305(4), Fla. Stat.

77 . 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 A dministrative L aw J udge to w hom the claim has

been assigned. § 766.305(7), Fla. Stat. If, on the other hand,

NICA disputes the claim, a s it h as in the instant case, the

dispute must be resolved by the assigne d A dministrative L aw

J udge in accordance with the provisions of Chapter 12 0, Florida

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

78 . In discharging this responsibility, the A dministrative

L aw J udge must make the following determination based upon the

available evidence:

(a) Whether the injury claimed is a birth -

rela ted 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 r endered 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) W hether obstetrical services were

delivered by a particip ating physician 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

resus citation in the immediate postdelivery

period in a hospital.

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

A dministrative Law J udge concludes that the "infant has

sustained a birth - related neurological injury and that

obstetrical service s were delivered by a participating physician

at birth." § 766.31 ( 1), Fla. Stat.

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

injury" is defined by Section 766.302(2), Florida Statutes, to

mean:

Injury to the brain or spinal cord of a live

inf ant 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, deliver,

or resuscita tion 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 o r

congenital abnormality.

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

Petitioners and Intervenor to demonstrate that Perry, Jr.,

suffered a "birth - related neurological injury . " § 766.309(1)(a)

Fla. Sta t . See also Balino v. Dep ' t of Health a nd Rehab .

Servs . , 348 So. 2d 349, 350 (Fla. 1st DCA 1997)("[T]he burden of

proof, apart from statute, is on the party asserting the

affirmative of an issue before an administrative tribunal . ").

81. Herein, due to the parties' stipulat ion that the

statut ory presumption of compensability applie s , Respondent NICA

had the burden to rebut the presumption established at Section

766.309(1)(a) , Fl orida Statutes , and quoted at Conclusion of Law

78 .

82. The interpretation of the requirements for

compensation in t he NICA statute is a matter of law, but whether

a particular injury occurred in the course of resuscitation in

the immediate postdelivery period is to be determined on a case -

by - case basis. See Orlando Reg'l Health Care Sys., Inc. v. Fla.

Birth - Related In jury Comp. Plan , supra . Three cases, determined

by three different appellate courts , are instructive in how the

instant case should be determined.

83. Nagy v. Fl orida Birth - Related Neurological Injury

Comp ensation Association , 813 So. 2d 155 (Fla. 4th DCA 2002) ,

was not a resuscitation case but one involving "mechanical

injury . " However, therein, the court stated clearly and

succinctly:

. . . Because the initial injury was to

something other than the baby's brain or

spinal cord, by definition, it is no t a

'birth - related neurological injury' within

section 766.302(2). . . . T he 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

requiremen t that the oxygen deprivation or

mechanical injury to the brain must occur

during labor or delivery.

84. Orlando Reg ional Health Care Sys tem , Inc. v. Fl orida

Birth - Related N eurological Injury Comp ensation Plan , supra ,

involved a resuscitation case in whi ch the Administrative Law

Judge had ruled that while the child had continuous respiratory

support throughout his six days of life, his injury did not

occur during "resuscitation in the immediate postdelivery

period." The court overruled the A dministrative Law Judge on

the issue of law and determine d the meaning of the term

"immediate," within the statutory phrase, "resuscitation in the

immediate postdelivery period . " The court stat ed , in pertinent

part: ". . . [w]hile this Court must determine the meanin g of

the term ' immediate ' in interpreting the phrase ' resuscitation

in the immediate postdelivery period, ' the application of this

definition in determining plan compensability must be applied on

a case - by - case basis. " Additionally, the court stated:

Unde r the Plan, the terms ' resuscitation '

and ' immediate ' are important qualifiers to

determining the compensability of a claim.

However, those terms are not defined by

statutes . When a term is not defined within

a st a tute, a fundamental construction tool

re quires giving a statutory term its ' plain

and ordinary meaning. ' Green v. State , 604

So. 2d 471, 473 (Fla. 1992); Dianderas v.

Fla. Birth - Relat ed Neurological , 973 So. 2d

523, 527 (Fla. 5th DCA 2007). When

necessary, the plain and ordinary meaning

can be ascertained by reference to a

dictionary. Gre en , 604 S o. 2d at 473; see

also L.B. v. State , 700 So. 2d 370, 372

(Fla. 1997) (explaining that ' court may

refer to a dictionary to ascertain the plain

and ordinary meaning ' ). This Court has

previously utilize d references to

dictionaries and medical references to

interpret other provision s of the statute.

See, e.g., Dianderas , 973 So. 2d at 527.

. . . ' [I] mmediate ' is commonly understood

to mean ' [n]ext in line or relation[;] . . .

[o] c curing without delay[;] [o]f or near the

present time[;] . . . [c]lose at hand;

near. ' The American Heritage Dictionary 643

(2d ed. 1985); see Merriam - Webster's

Collegiate Dictionary 578 (10th ed. 2000)

(defining ' immediate ' as ' being next in line

or relation[;] . . . existing without

intervening space or substance[;]. . . being

near at hand[;] . . . occurring, acting, or

accomplished without loss or interval of

time.[;] . . . near or related to the

present ' ) .

***

. . . It is not logical to find that

' immediate ' only means thro ugh the first

resuscitative attempt when [ the child] was

initially revived but no spontaneous

respirations could otherwise be established.

[ The c hild] continued to need resuscitation

without interruption , and that ongoing need

creates a onetime period -- the ' immediate

postdelivery period. '

( Emphasis in the original . Bracketed material substituted for

child's name) .

85. In Orlando Reg ional Health Care Sys tem , Inc. , supra .

The court ruled the injury was compensable where the newborn

required and rec eived immediate and continuous respiratory

support, representing an ongoing, uninterrupted, resuscitative

effort from delivery to arrest. That was not the situation in

Perry, Jr.'s, case.

86. In St. Vincent's Med ical Center, Inc. v. Bennett , 27

So. 3d 65 (Fla. 1st DCA 2009), the court addressed a situation

in which the A dministrative Law Judge had declined to apply the

Section 766.309(1)(a) presumption in favor of NICA and the

intervenors. In reversing the Administrative Law Judge, t he

c ourt considered t hat s hortly after delivery, the child was

placed in a special care nursery where she remained until she

die d , and therefore, the time between the child's delivery by

caesarean section and the events through her death constituted

the "immediate postdelivery period in the hospital." Although

the opinion digressed into issues with regard to application vel

non of the statutory presumption, which issues do not apply

herein, the c ourt concluded that: " It is oxygen deprivation or

mechanical injury which must oc cur during ' labor, delivery, or

resuscitation in the immediate postdelivery period ' under the

statutory scheme. The applicable statutes do not preclude

coverage if neurological dama g e becomes manifest at a later

date. "

87. St . Vincent's also expand e d the "immediate

postdelivery resuscitative period" significantly beyond the

interpretations of the two prior cases. U pon that and several

other points , the St. Vincent's decision is currently before the

Florida Supreme Court , Case No. SC10 - 364.

88. The facts here do not fit the pattern developed in St.

Vincent's , and herein, the presumption was applied and rebutted.

Moreover, the facts herein do not support a finding that Perry ,

Jr.'s , hypoxic ischemic insult occurred before he was pronounced

in "good s table condition" by Dr. Jackson, so they do not

support a finding that the neurological injury occurred during

"labor, delivery, or in the immediate postdelivery resuscitative

period." Moreover, the evidence most strongly suggests that

both the hypoxic in sult and the brain injury occurred

approximately an hour after the " resuscitation in the immediate

postdelivery period" had ended. Sequential resuscitations

outside the statutory period after a period of stability do not

prolong the statutory period.

89. Here, the presumption was rebutted so that the proof

failed to support the conclusion that, more likely than not,

Perry's neurological impairment was the result of an injury

caused by oxygen deprivation occurring in the course of labor,

delivery, or resus citation in the immediate postdelivery period

in the hospital. Indeed, the more compelling proof demonstrated

that the brain injury post - dated the immediate postdelivery

period. Consequently, given the provisions of Section

766.302(2), Perry, Jr., does n ot qualify for coverage under the

Plan. 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

construed to include only those subjects clearly embraced within

its terms."), approved , Fl a. Birth - Related N eurological I njury

Comp . Ass 'n v. McKaughan , 668 So. 2d 974, 979 (F la. 1996) ; Nagy

v. Fla. Birth - Related Neurological Injur y Comp. Ass'n , supra .

90. Where, as here, the Administrative Law Judge

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

related neurological injury . . . she or he [is required to]

enter an order [to such effect] and . . . cause a copy of such

or der 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:

(1) The claim for compensation filed by Latasha Williams

and Perry Russell, Sr. on behalf of , and as parents and natural

guardians of , Perry Russell, Jr., a deceased minor, is dismissed

with prejudice.

(2) Unde r the circumstances, all issues of notice are

moot.

DONE AND ORDERED this 3rd day of December , 2010 , 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 3rd day of December , 2010 .

ENDNOTES

1/ Lata sha Williams is also Latasha Williams Russell .

2/ "M econium " is a dark green mucilaginous material in the

intestine of the full - term fetus, being a mixture of the

secretions of the liver, intestinal glands, and some amniotic

fluid. See Dorland's Illust rated Medical Dictionary page 998

( 28th e d . 1994 ) . "Meconium aspiration syndrome " can occur when

the infant inhales meconium; it is explained more fully in the

body of this Final Order.

3/ Jt. Ex. A is medical r ecor ds from Bryce Vincent Jackson,

M .D. , f or Latasha Williams November 20, 2007 to May 8, 2008,

(Bates 1 - 21); Jt. Ex. B is medical r ecords from Bay M edical

Center for Ms. Williams' labor and delivery r ecords May 7, 2008

to May 8, 2008 , (Bates 22 - 68); Jt. Ex . C is medical r ecords from

Bay Medical C enter for Perry, Jr. , dated May 7, 2008 (Bates 69 -

114) ; Jt. Ex. D is fetal monitor s trips from Bay Medical Center

for Perry, Jr., dated May 7, 2008 (Bates 115 - 155); Jt. Ex. E is

medical records from Sacred Heart Hospital following Perry,

Jr.'s , transfer fr om Bay Medical Center, dated May 7, 2008

(Bates 156 - 320); Jt. Ex. F is medical records from Dr. Peter

Jennings for Perry, Jr., dated October 3, 2008 to October 8,

2008 (Bates 321 - 355); Jt. Ex. G is medical records from Caring

Hearts Pediatric Extended Care for Perry, Jr., dated October 6,

2008 to October 8, 2008 (Bates 356 - 427); Jt. Ex. H is Donald

Willis, M. D .'s report s , dated February 1, 2010 and August 23,

2010 (Bates 428 - 4 30 , 430A ); Jt. Ex. I is Petitioners' Answers to

Respondent's I nterrogatories dated July 29, 2010 (Bates 43 1 -

44 8 ); Jt. Ex. J is Res pondent's Answers to Petitioner s '

Interrogatories dated May 3, 2010 (Bates 449 - 453) ; Jt. Ex. K is

the Deposition Transcript of Latasha Williams, with exhibits 1 -

3, July 29, 2010 (Bates 45 4 - 57 8 ); Jt. Ex. L is the Deposition

Transcript of Patricia Williams, July 29, 2010 (Bates 57 9 - 63 7 );

Jt. Ex. M is the Deposition Transcript of Lakisha McClain, July

29, 2010 (Bates 63 8 - 69 9 ); Jt. Ex. N is the Depos i tion Transcript

of Donald C. Willis, M.D., July 27, 2010, with E x.1 thereto,

(Bates 700 - 807 ); Joint Exhibit O is Bay Medical Center's

Response to Respondent's First Set of Interrogatories dated

August 18, 2010 (Bates 808 - 815 ); Jt. Ex. P is Deposition

Transcript of Berto Lopez, M.D., August 6, 2010, with exhibits

1 - 10 (Bates 816 - 1030 ); Jt. Ex. Q is a copy of the Prehearing

Stipulation; Jt Ex. R is a copy of the Amended Stipulated

Record.

4/ See Joint Prehearing Stipulation for Findings of Fact 1 - 8

and 1 0 - 1 4 . See TR - 31 - 32, for Finding of Fact 9 .

5/ For clarity, m ost universal or military times on documents

have been converted by the undersigned to standard a.m. and p.m.

times in brackets .

6 / NSVD abbreviates "normal spontaneous vaginal delivery".

7 / 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, muscle tone, respiratory effort,

reflex irritability, and color, with each category being

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

maximum score of two. See Dorland's Illustrated Medical

Dictionary page 1497 ( 28th ed. 1994 ) .

8 / "Delivery" means 1. Expulsion or extraction of the child and

the after - birth; see also " labor " . "Vaginal delivery" means

delivery of an infant through the normal openings of the uterus

and vagina. Dorland's Illustrated Medical Dictionary page 438

( 28th ed. 1994 ) .

9 / Presumably, this was a rectal reading. By medical testimony

herein, it was a normal temperature for a newborn.

10 / Presumably, this was an axial (armpit) temperature . By

medical testimony herein, it was a normal temperature for a

newborn.

1 1 / "Hypoxia" is a reduction of oxygen supply to tissue below

physiological levels, despite adequate perfusion of the tissue

by blood. " Ischemia " is a deficiency of bl ood in a part,

usually due to functional constriction or actual obstruction of

a blood vessel. Dorlan d 's Illustrated Medical Dictionary page

812 ( 28th ed. 1994 ) .

COPIES FURNISHED :

(Via Certified Mail)

Kenney Shipley, Executive Director

Florida Birth R elated Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7010 1670 0000 3105 9257)

Grant A. Kuvin, Esquire

Morgan & Morgan, P.A.

20 North Orange Avenue, Suite 1600

Orlando, Flori da 32801

(Certified Mail No. 7010 1670 0000 3105 9264)

M. Mark Bajalia, Esquire

Brennan, Manna & Diamond

800 West Monroe Street

Jacksonville, Florida 32202

(Certified Mail No. 7010 1670 0000 3105 9271)

Brian L. Smith, Esquire

Christopher J. Steinhaus, Esquire

Hill, Adams, Hall & Schieffelin, P.A.

Post Office Box 1090

Winter Park, Florida 32790 - 1090

(Certified Mail No. 7010 1670 0000 3105 9288)

Bryce Vincent Jackson, M.D.

North Florida OB/GYN Center, P.A.

1937 Harrison Avenue

Panama City, Florida 3240 5 - 4543

(Certified Mail No. 7010 1670 0000 3105 9295

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 3105 9301)

Elizabet h 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 3105 9318)

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 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 Ne urological 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.