11-003965N Katrina Northup And Richard Northup, On Behalf Of And As Parents And Natural Guardians Of Everett Luis Northup, A Minor Child vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, April 3, 2013.

Summary: Infant's impairments were due to prematurity.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KATRINA NORTHUP AND RICHARD )

NORTHUP, on behalf of and as )

parents and natural guardians )

of EVERETT LUIS NORTHUP, a )

minor child , )

)

Petitioners , )

)

vs. ) Case No. 11 - 3965N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPEN SATION ASSOCIATION , )

)

Respondent, )

)

and )

)

GALENCARE, INC., d/b/a BRANDON )

REGIONAL HOSPITAL, )

)

Intervenor . )

)

FINAL ORDER

Pursuant to notice, a final hearing was held in this case

on December 13, 2012, by video teleconference in Tampa and

Tallahassee, Florida, before Susan Belyeu Kirkland, an

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner s : Henr y Valenzuela, Esquire

Valenzuela and Stern, P.A.

100 North Tampa Street

AmSouth Building, Suite 2350

Tampa, Florida 33602

For Respondent: Robert J. Grace, Esquire

The Bleakley Bavol Law Firm

15170 North Florida Avenue

Tampa, Florida 33613

For Intervenor: Tracey M. Falkowitz, Esquire

Banker Lopez Gassler, P.A.

501 East Kennedy Boulevard, Suite 1500

Clearwater, Florida 33602

STATEMENT OF THE ISSUE

The issue in this case is whether Everett Luis Northup

sustained a birth - related neurological injury.

PRELIMINARY STATEMENT

On August 4, 2011, Petitioners, Katrina Northup and

Richard Northup, on behalf of and as parents and natural

guardians of Everett Luis Northup (Everett), a minor child,

filed a Petition for Benefits Pursuant to Florida Statute

Section 766.305 et seq. (Petition) with t he Division of

Administrative Hearings (DOAH). Petitioners allege that Everett

"suffered a neurological brain damage as a result of a

combination of prolonged repetitive and persistent head - banging

during labor and multiple vacuum extraction attempts at

d elivery."

The case was originally assigned to Administrative Law

Judge Ella Jane P. Davis, but due to the retirement of

Administrative Law Judge Davis, the case was reassigned to

Administrative Law Judge Susan Belyeu Kirkland.

The Petition alleged that Wa yne S. Blocker , M.D., provided

obstetric services at the birth of Everett , and that Everett was

born at Brandon Regional Hospital in Tampa , Florida. DOAH

served the Birth - Related Neurological Injury Compensation

Association (Association), Dr. Blocker , and Brandon Regional

Hospital with copies of the Petition .

On October 29, 2012, Galencare, Inc., d/b/a Brandon

Regional Hospital filed a Petition for Leave to Intervene by

Galencare, Inc., d/b/a Brandon Regional Hospital. The petition

for leave to intervene was granted by Order dated November 14,

2012. Dr. Brock did not petition to intervene in this

proceeding.

The parties filed a Pre - Hearing Stipulation, in which they

stipulated to certain facts contained in paragraph (e) of the

Pre - Hearing Stipulation. T hose facts have been incorporated

into this Final Order.

At the final hearing, Petitioners called Stephen Tolman

Glass, M.D., and Jeffrey B. Koren, M.D., as expert witnesses.

Respondent did not call any live witnesses, but presented the

deposition testimo ny of Michael Duchowny, M.D., and

Donald Willis, M.D., as its expert witnesses. Intervenor did

not call any witnesses. Petitioners' Exhibits 1 through 17 were

admitted in evidence. Respondent's Exhibits 1 through 3 were

admitted in evidence. Intervenor did not submit any exhibits

for introduction in evidence.

The one - volume Transcript was filed on January 17, 2013.

At the final hearing, the parties agreed to file their proposed

final orders within 20 days of the filing of the Transcript. On

January 25 , 2013, Petitioners filed Petitioners' Unopposed

Motion for Mutual Extension of Time to Submit Proposed Final

Orders, requesting that the time for filing be extended to

March 5, 2013. The motion was granted by Order dated

January 28, 2013.

Petitioners and Respondent filed their proposed final

orders on March 5, 2013. Intervenor did not file a proposed

final order. The proposed final orders have been considered in

the drafting of this Final Order.

FINDINGS OF FACT

1. Katrina Northup (formerly Katrina McG uff) and

Richard Northup are the natural parents of Everett Luis Northup.

2. At all times material to this proceeding,

Katrina Northup was an obstetrical patient of Wayne Blocker,

M.D., and Dr. Blocker was a "participating physician" as defined

in section 766.302(7), Florida Statutes. Dr. Blocker provided

obstetrical services in the course of labor and delivery at the

birth of Everett.

3. Ms. Northup did not experience any significant problems

during her prenatal course. On August 21, 2009, she presente d

to Brandon Regional Hospital, which is a licensed Florida

hospital. She was 34.1 weeks pregnant.

4. Beginning at 8:58 a.m., Ms. Northup was started on

Pitocin. By 2:23 p.m., the baby's station was - 1. At

3:50 p.m., Ms. Northup's membranes ruptured. At 4:41 p.m., the

baby was experiencing increasing fetal tachycardia, and the

mother's efforts at pushing were nonproductive. A decision was

made to use vacuum extraction to facilitate the delivery.

5. Dr. Blocker applied a KIWI vacuum extractor to the

baby's head, but a seal could not be achieved. A soft cup

vacuum extractor was used to deliver the baby's head to the

perineum so that Ms. Northup could push the baby out. Four

pulls, two of which were pop offs, were used. Ms. Northup was

able to push t he baby out after the use of the vacuum extractor.

6. The baby experienced shoulder dystocia during delivery.

This means that there was a delay in descent because the baby's

shoulder was impinged on the mother's pubic bone. The shoulder

dystocia was c orrected using a M a cRoberts maneuver, which is

flexing the mother's hips to give more room in the pelvis. The

shoulder dystocia did not require additional force from the

vacuum extractor.

7 . Everett was born live on August 21, 2009, at 4:45 p.m.

He w eighed 3,875 grams at birth. Everett was large for his

gestational age.

8 . The hospital's admission summary for Everett described

his condition at time of delivery as follows:

Infant was delivered pale, floppy, and with

a poor respiratory effort. Infant was

suctioned PO and nasally and stimulated .

The initial HR was < 100="" but="" exceeded="" 100="">

1 minute of age. Respirations became more

regular and color became ruddy with a rapid

HR. Tone remained poor and there was

bruising of the left arm and ballotable

fluid in the scalp.

9 . After delivery, Everett's mouth, nose and pharynx were

suctioned and he was given blow - by oxygen for two minutes.

10 . Everett's Apgar score at one minute of age was

recorded as seven and, at five minutes of age, was eight. Apg ar

scores are designed to define a baby's responsiveness and cover

five different categories: heart rate, respiration, color,

reflex activity or reflex responsiveness, and muscle tone. Each

of the categories can be scored a zero, a one, or a two.

11 . At one minute of life, Everett's heart rate was

greater than 100 beats per minute; he had a good cry; there was

some flexion of the extremities; he had a grimace; and his body

was pink and extremities were blue. At five minutes of life,

Everett's heart rate was greater than 100 beats per minute ; he

had a good cry ; he had active motion ; he had a cry or active

withdrawal ; and he was blue/pale.

12 . Everett's initial blood gases were recorded as a pH of

7.20, which is considered a mild to moderate metabolic aci dosis.

13 . Everett was admitted to the Neonatal Intensive Care

Unit (NICU). His admission summary describes the findings of

the admission physical examination as follows:

CONDITION: Pink, quiet and responsive.

HEENT: Anterior fontanelle soft, open, and

flat, red reflexes present bilaterally,

subgaleal bleed with ballotable fluid, nares

patent and palate intact.

CARDIAC: Normal sinus rhythm with

tachypnea, weak pulses and poor perfusion,

CRT - 5 seconds, precordium quiet and no

murmur.

Abdomen: Soft and nondistended abdomen,

good bowel sounds, 3 - vessel cord and liver

edge palpable at the costal margin.

GU: Normal male features for gestational

age, testes descended bilaterally and patent

anus.

NEUROLOGIC: Quiet and responsive with fair

muscle tone and r eflexes for age.

SPINE: Neck supple without masses, spine

straight and intact, no sacral dimple noted

and no clavicular fracture palpated

bilaterally.

EXTREMITIES: Symmetrical movements and no

hip clicks.

SKIN: Bruising over left arm.

1 4 . Everett's he art rate was recorded on August 21, 2009,

as 208 at 5:00 p.m., 166 at 5:30 p.m., 172 at 6:00 p.m., and 168

at 8:30 p.m. Blood pressures taken at the same time intervals

were 55/20, 48/20, 45/28, and 70/47.

1 5 . The initial glucose level for Everett was 29 . This

hypoglycemia was corrected with a DIOW bolus of 3 ml/kg.

Everett had a respiratory distress syndrome, which was

attributed to his premature lungs. This syndrome was corrected

with intubation and the use of surfactant. He was intubated for

approx imately nine hours and then placed on room air.

1 6 . On August 27, 2009, Everett was discharged from the

NICU.

1 7 . When Everett was 11 months old, his parents expressed

concerns to his pediatrician that Everett was not meeting his

developmental mileston es. The pediatrician referred Everett to

a pediatric neurology specialist, who prescribed an MRI.

1 8 . The MRI showed a "symmetric increased T2 signal within

the periventricular white matter with associated atrophy of the

corpus callosum, likely related t o leukomalacia secondary to

prematurity." On February 1, 2012, pediatric neurologist,

Francis Filloux, M.D., notes her diagnostic impressions:

1. Cerebral palsy with a spastic diplegia

pattern or possible spastic triplegia, with

the best function in the left upper

extremity.

2. Periventricular leukomalacia, by report

from the prior MRI scan.

3. Associated neurodevelopmental

impairments.

4. History of very mild prematurity.

1 9 . Everett is permanently and substantially mentally and

physically impaired.

20 . Everett did not suffer an injury to the brain during

resuscitation in the immediate post delivery period in a

hospital.

21 . Petitioners retained Jeffrey Koren, M.D., and

Stephen Glass, M.D., as expert witnesses. Respondent retained

Donald Willis, M .D., and Michael Duchowny, M.D., as its expert

witnesses.

22 . Dr. Glass is board - certified in neurology with a

special competence in child neurology, and he is board - certified

in pediatrics. He has been practicing as a pediatric

neurologist for 32 years. Dr. Glass is currently an associate

professor of neurology and pediatrics at the University of

Washington.

23 . Dr. Glass opined that Everett sustained an injury to

the brain caused by mechanical injury, due to the multiple

vacuum extractions which occ urred in the course of labor which

rendered Everett permanently and substantially physically and

mentally impaired. He believes that the injury to the brain

caused by the use of the vacuum extraction device used during

the delivery process caused a reduct ion of blood flow to the

periventricular areas of the brain which caused periventricular

leukomalacia (PVL), which led to cerebral palsy.

2 4 . Dr. Koren is board - certified in gynecology and has

been practicing obstetrics and gynecology for over 30 years. He

opined that the use of the vacuum extraction caused a traumatic

injury to the scalp of Everett causing a subgaleal bleed and a

diminished blood flow to the periventricular areas of the brain,

which caused the PVL.

2 5 . Dr. Willis is fellowship trained i n maternal fetal

medicine and board - certified in obstetrics and gynecology and

maternal fetal medicine. He began in private practice in 1980

and has taught at several universities. Since 2000, he has been

doing consultations in maternal fetal medicine.

2 6 . Dr. Willis is of the opinion that Everett did not

suffer a brain injury which was mechanical or due to oxygen

deprivation during labor and delivery. Based on his readings of

Everett's fetal heart - rate monitor, there was no evidence of

fetal distress . Everett's Apgar scores were normal with a score

of seven at one minute and eight at five minutes. The umbilical

cord pH was not consistent with acidosis or hypoxia that would

be significant enough to cause significant brain injury. The

subgaleal hemat oma caused by the use of the vacuum extractor was

not clinically significant. Everett did not require a

transfusion, and he was not anemic. By the second day of

Everett's life, he had a hematocrit of 53, which is normal for a

newborn.

2 7 . Dr. Duchowny i s a pediatric neurologist who directs

the neurology training program at Miami Children's Hospital. He

is a professor of neurology and pediatrics at the University of

Miami School of Medicine and is a full professor at the Florida

International University School of Medicine. His clinical

practice is based out of Miami Children's Hospital.

Dr. Duchowny is board - certified in pediatrics, neurology with

special qualification in child neurology, and clinical

neurophysiology. He performed an independent medica l

examination of Everett on December 12, 2011.

2 8 . Dr. Duchowny opined that Everett did not suffer a

brain or spinal cord injury caused by oxygen deprivation or

mechanical injury during the course of labor, delivery or

resuscitation in the immediate post delivery period. He

explained the basis for his opinion as follows:

[A]lthough Everett's neurological

problems were substantial in both, the

mental and motor domains, a review of his

medical records did not support the belief

that these abnormalities w ere, in fact,

acquired during the labor or delivery.

Everett was a pre - term infant. He was large

for gestational age, but he was born at 34

weeks gestation, but if you look through the

neonatal course, it's clear that his was

relatively benign.

For e xample, Everett's Apgar scores seven

and eight at one and five minutes of life.

These scores were quite good. His cord

blood gases also were mildly abnormal, but

really very little evidence of any

significant problem. His cord pH was 7.18.

He had a bas e excess of minus 10.3, and

these are mild findings, and consistent with

his overall neonatal course, during which he

actually did very well.

For example, there was no evidence of

overall systemic involvement, apart from

some transient hypoglycemia tha t was

adequately treated, and he did not have

multi - organ system failure, liver

involvement, cardiovascular collapse. He

certainly wasn't comatosed. He was

transiently intubated but did not require a

prolonged course of ventilator support.

Sepsis was suspected, and he was treated

with antibiotics, but ultimately his

cultures were negative, and he went home

without any significant problems or

complications in the newborn period.

Given the fact that his MRI scan of the

brain ultimately revealed dama ge in the form

of periventricular leukomalacia, and

thinning of the corpus callosum, it would

appear that his deficits could not have been

acquired in the course of labor, delivery or

the immediate post - partum period. Rather, I

believe that Everett's brai n injury was

acquired prior to birth, likely as a

consequence of his prematurity.

Had it been acquired during labor and

delivery, I would have expected a much more

severe postnatal course, given the MRI

findings and his neurological examination.

2 9 . The opinions of Dr. Willis and Dr. Duchowny are

credited.

30 . Everett did experience a subgaleal hematoma during the

birthing process. In order for a subgaleal hematoma to cause

brain damage, it would have to be a substantial loss of

circulating blood vo lume which would lead to hypovolemic shock.

Everett did not have hypovolemic shock nor did Everett

experience any seizures. If the subgaleal hematoma had been

clinically significant, Everett would have been given a blood

transfusion. He was not given a blood transfusion and he was

no t anemic . The subgaleal fluid collection was small and easily

reabsorbed.

31 . Both Dr. Glass and Dr. Koren opined that the Apgar

scores were incorrect and should have been substantially lower.

However, their opinions are b ased on the descriptions of Everett

at the time of delivery, which were pale, floppy, and with poor

respiratory effort. At delivery, Everett's heart rate was less

than 100 beats per minute. After he was suctioned and

stimulated, Everett's heart rate was greater than 100 beats per

minute and his color was ruddy. Everett had a difficult birth,

which was reflected in the descriptions of him at delivery.

However, within a minute of delivery he had bounced back and had

a normal Apgar score.

32 . The greater weight of the evidence establishes that

Everett did not suffer an injury to the brain during labor and

delivery due to oxygen deprivation or mechanical injury. More

likely than not the PVL and thinning of the corpus collosum are

findings associated with E verett's prematurity and not a result

either directly or indirectly of the vacuum extraction delivery

and the resultant subgaleal hematoma.

CONCLUSIONS OF LAW

33 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subjec t matter of this

proceeding. §§ 766.301 - 766.316, Fla. Stat. (2012).

3 4 . The NICA Plan was established by the Legislature "for

the purpose of providing compensation, irrespective of fault,

for birth - related neurological injury claims" relating to births

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

3 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 DOAH. §§ 766.302 (3), 766.303(2), and 766.305(1), Fla.

Stat. NICA, which administers the Pl a n, 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 w hether the injury is a

birth - related neurological injury." § 766.305(4), Fla. Stat.

I f 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 awa rd is

approved by the administrative law judge to whom the claim has

been assigned. § 766.305(7), Fla. Stat.

3 6 . In the instant case, Petitioner filed a claim alleging

that Everett did sustain a birth - related neurological injury

that is compensable und er the NICA P lan, and NICA has determined

that the injury is not compensable under the Plan. As the

proponent of the issue of compensability, the burden of proof as

to compensability is upon Petitioners . See Balino v. Dep't of

Health & Rehab. Servs. 348 So. 2d 349, 350 (Fla. 1st DCA 1997).

Therefore, the dispute must be resolved by the assigned

administrative law judge in accordance with the provisions of

chapter 120, Florida Statutes. §§ 766.304, 766.309, and 766.31,

Fla. Stat.

3 7 . In discharging thi s responsibility, the Administrative

Law Judge must make the following determination based upon the

available evidence:

(a) Whether the injury claimed is a birth -

related neurological injury. If the

claimant has demonstrated, to the

satisfaction of the ad ministrative law

judge, that the infant has sustained a brain

or spinal cord injury caused by oxygen

deprivation or mechanical injury and that

the infant was thereby rendered permanently

and substantially mentally and physically

impaired, a rebuttable pres umption shall

arise that the injury is a birth - related

neurological injury as defined in s.

766.303(2).

(b) Whether obstetrical services were

delivered by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate post delivery

period in a hospital; or by a certified

nurse midwife in a teaching hospital

supervised by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate 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 delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

3 8 . The term "birth - related neurological injury" is

defined in section 766.302(2) as follows:

"Birth - related neurological injury" means

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case o f a

multiple gestation, a live infant weighing

at least 2,000 grams at birth caused by

oxygen deprivation or mechanical injury

occurring in the course of labor, delivery,

or resuscitation in the immediate

postdelivery period in a hospital, which

renders th e infant permanently and

substantially mentally and physically

impaired.

3 9 . Based on the evidence presented and the parties'

stipulations, the only issue is to determine whether Everett

sustained an injury to the brain or spinal cord due to a

mechanica l injury or oxygen deprivation during labor or delivery

that resulted in Everett being permanently and substantially

mentally and physically impaired. Everett's PVL, thinning of

the corpus callosum, and cerebral palsy did not result from

oxygen deprivatio n of mechanical injury during labor or

delivery. It most likely is due to Everett's prematurity.

Thus, Petitioners have failed to demonstrate that Everett has a

birth - related neurological injury which would entitle him to

benefits under the Plan.

CONCLUS ION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED:

The claim for compensation filed by Katrina North up and

Richard Northup on behalf of and as parents and natural

guardians of Everett Luis Northup, a minor, is dismissed with

prejudice.

DONE AND ORDERED this 3rd day of April , 2013 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkw ay

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 April , 2013 .

COPIES FURNISHED :

(Via Certified Mail)

Henry Valenzuela, Esqu ire

Valenzuela and Stern, P.A.

100 North Tampa Street

AmSouth Building, Suite 2350

Tampa, Florida 33602

(Certified Mail No. 7012 1010 0001 8357 0015)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7012 1010 0001 8357 0022)

Robert J. Grace, Esquire

The Bleakley Bavol Law Firm

15170 North Florida Avenue

Tampa, Florida 33613

(Certified Mail No. 7012 1010 0001 8357 0039)

Tracy M. Falkowitz, Esquire

Banker Lopez Gassler, P.A.

501 East Kennedy Boulevard, Suite 1500

Clearwater, Florida 33602

(Certified Mail No. 7012 1010 0001 8357 0046)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7012 1010 0001 8357 0053)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Cert ified Mail No. 7012 1010 0001 8357 0060 )

Wayne S. Blocker, M.D.

407 North Parsons Avenue, Suite 1

Brandon, Florida 33510

(Certified Mail No. 7012 1010 0001 8357 0077)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

by appeal to the District Court of Appeal pursuant to section

766.311(1), Florida Statutes. Review proceedings are governed

by the Florida Rules of Appellate Procedure. Such proceedings

are commenced by filing the original notice of ad ministrative

appeal with the agency clerk of the Division of Administrative

Hearings within 30 days of rendition of the order to be

reviewed, and a copy, accompanied by filing fees prescribed by

law, with the clerk of the appropriate District Court of Appe al.

See § 766.311(1), Fla. Stat., and Fla. Birth - Related

Neurological Injury Comp. Ass'n v. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).