14-003466N Jessica And Josh Maloy, On Behalf Of And As Parents And Natural Guardians Of Layton Maloy vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, January 19, 2017.

Summary: There was no apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor or delivery. The child's disabilities are not permanent and substantial as contemplated by the NICA statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JESSICA AND JOSH MALOY, on

behalf of and as parents and

natural guardians of LAYTON

MALOY,

Petitioners,

vs. Case No. 14 - 3466N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent ,

and

WOMEN'S CARE OF FLORIDA, LLC,

JEFFREY L. PURETZ, M.D., AND

LAKELAND REGIONAL MEDICAL

CENTER, INC.,

Intervenors.

_______________________________/

FINAL ORDER

Pursuant to notice, a final hearing was held in this cas e on

October 4, 2016, via video teleconference with sites in Tampa and

Tallahassee, Florida, before Barbara J. Staros, an Administrative

Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioners: Charles T. Moore, Esqui re

Morgan and Morgan, P.A.

One Tampa City Center

201 North Franklin Street, 7th Floor

Tampa, Florida 33602

For Respondent: Brooke M. Gaffney, Esquire

Smith Stout Bigman and Brock, P.A.

444 Seabreeze Boulevard, Suite 900

Daytona Beach, Florida 32118

For Intervenor s WomenÓs Care of Florida, LLC, and Jeffrey L.

Puretz , M.D. :

Justine D. Adamski, Esquire

La Cava & Jacobson, P.A.

Suite 1250

501 East Kennedy Boulevard

Tampa, Florida 33602

For Intervenors Lakeland Regional Me dical Center, Inc. :

Paula J. Lozano, Esquire

Walters Levine & Lozano

1819 Main Street, Suite 1110

Sarasota, Florida 34236

STATEMENT OF THE ISSUE

The issue in this case is whether Layton Maloy suffered an

injury for which compensation should be awarded under the Florida

Birth - Related Neurological Injury Compensation Plan (Plan).

PRELIMINARY STATEMENT

On July 9, 2014, Jessica and Jo sh Maloy, on behalf of and as

parents and natural guardians of Layton Maloy (Layton), a minor,

filed a Petition for Benefits Pursuant to Florida Statute Section

766.301 et seq. (Petition), with DOAH. The Petition alleged that

Layton suffered brain damage as a result of a birth - rela ted

neurological injury, and sought a determination as to

compensability under the Florida Birth - Related Neurological Injury

Compensation Association (NICA) statutes.

The Petition named Jeffrey L. Puretz, M.D., as the physician

who provided obstetric servi ces at LaytonÓs birth at Lakeland

Regional Medical Center , Inc., in Lakeland, Florida, on

September 4, 2012.

DOAH served NICA with a copy of the Petition on July 25,

2014, and served Lakeland Regional Medical Center , Inc., with a

copy of the Petition on J uly 29, 2014. DOAHÓS docket reflects

that a copy of the Petition was mailed to Jeffrey L. Puretz, M.D,

on July 24, 2014.

On September 11, 2014, WomenÓs Care of Florida, LLC , and

Jeffrey L. Puretz, M.D., filed a Petition to Intervene, which was

granted. Lakeland Regional Medical Center , Inc., filed a Petition

for Leave to Intervene on January 13, 2015, which was granted.

On October 16, 2014, NICA filed a response to the Petition,

giving notice that the alleged injury did not "meet the definition

of a 'bi rth - related neurological injury' as defined in section

766.3021(2), Florida Statutes." NICA requested that a hearing be

scheduled to resolve whether the claim was compensable.

Following discovery, an abatement of the case at the request

of the parties, a nd three continuances, a final hearing was

scheduled for October 4, 2016. The case was heard as scheduled.

On September 28, 2016, the parties filed a Pre - hearing Stipulation

in which they agreed to certain facts as set forth in section E of

the Pre - heari ng Stipulation. These facts have been incorporated

into this Final Order.

Petitioners presented the live testimony of Samantha

Lineberger and Petitioner, Jessica Maloy , at the final hearing.

P etitionersÓ E xhibits 1 through 3 and 5 were admitted into

evi dence, including the deposition testimony of Dr. James

Balducci, Dr. Paul Kornberg, and Dr. Ena Andrews. The record was

left open to allow the limited deposition testimony of Dr. Daniel

Adler. Respondent presented the live testimony of Dr. Michael

Duchow ny . RespondentÓs Exhibits 1 through 7 were admitted into

evidence, including the deposition testimony of Dr. Donald Willis,

Dr. Michael Duchowny, Dr. Jay Goldsmith, Dr. Jeffrey Puretz, and

Petitioners. Joint Exhibits 1 through 10 were admitted into

evide nce.

A Transcript of the Final Hearing was filed on October 19,

2016. A transcript of Dr. AdlerÓs deposition was filed on

November 21, 2016 , which is admitted into evidence as PetitionersÓ

Exhibit 6 . On December 8, 2016, Respondent filed a Motion t o

Sustain Objections Made During Testimony of Dr. Adler. No

response was filed to the Motion. The Motion is granted in

part. 1/

Petitioners and Respondent timely filed their Proposed Final

Orders on December 8, 2016, which have been carefully considered

in the preparation of this Final Order.

FINDINGS OF FACT

1. Jessica and Josh Maloy are the natural parents of

Layton Maloy.

2. Layton was born on September 4, 2012, at Lakeland

Regional Medical Center, Inc. (Lakeland Regional) , which is a

hospital loca ted in Lakeland, Florida.

3. Layton was a single gestation and weighed in excess of

2,500 grams at birth.

4. Obstetrical services at LaytonÓs birth were provided by

Dr. Jeffrey L. Puretz, who was a physician participating in the

NICA program.

5. Noti ce of NICA participation was provided to Petitioners

by Dr. Puretz and by Lakeland Regional .

6. Petitioners contend that Layton suffered a birth - related

neurological injury and seek compensation under the NICA Plan.

More specifically, Petitioners contend that Layton suffered a

stroke during labor and delivery, which resulted in a brain

injury, rendering Layton permanently and substantially mentally

and physically impaired. Respondent contends that there was no

event during labor and delivery which result ed in oxygen

deprivation to Layton, and that any medical conditions suffered by

Layton are not birth - related neurological injuries as defined in

section 766.302(2) , Florida Statute s . Respondent further contends

that Layton is not permanently and substanti ally mentally and

physically impaired. Intervenors take no position as to whether

Layton suffered a birth - related neurological injury.

7. Layton was born at approximately 9:22 p.m. , via cesarean

section secondary to non - reassuring fetal heart rate tracin g

following six hours of labor. Following receiving an epidural,

Mrs. Maloy experienced hypotension for which she received two

doses of Ephedrine to raise her blo o d pressure . Following the

second dose of Ephedrine, the babyÓs fetal heart tracing became

n on - reassuring and the mother and babyÓs heart rate became

tachycardic. Mrs. Maloy also received an amnioinfusion during

labor.

8. Layton was born crying, pink and vigorous. LaytonÓs one -

minute Apgar score was 8, and his five - minute Apgar score was 9.

He did not require resuscitation at birth, and was sent to the

regular newborn nursery with Ðroutine NB ordersÑ where he was

noted to be active, awake, with normal rooting and sucking

reflexes. Layton was discharged from the hospital with his mother

on da y two of life.

9. After returning home, Mrs. Maloy noticed what she

believed to be Layton having abnormal movements described as

episodes of arms and/or legs shaking. His two - week old check - up

was normal. However, two or three days after that check - up, she

returned to the pediatricianÓs office where ÐLayton had an episode

in front of Dr. Leviten.Ñ Dr. Levit e n admitted Layton to Lakeland

Regional for evaluation and a neurological consultation. A VEEG

obtained was interpreted to reveal frontal central s pike and wave

on a few occasions from the left hemisphere suspicious for seizure

activity. Layton was subsequently placed on Phenobarbital.

Layton was noted at this time to be clinically very stable , doing

well, eating well, happy and alert, and inter act ive.

10. Layton was transferred to All ChildrenÓs Hospital. Upon

admission, he was noted to be bottle feeding, had normal tone and

no focal deficits. Dr. Ena Andrews, a pediatric neurologist,

first saw Layton on September 26, 2012 , at All ChildrenÓs

H ospital , where she reviewed his medical records from Lakeland

Regional. Her impression included a history of focal seizures and

a finding on MRI that Ðis suspicious for intrauterine stroke.Ñ

She conducted a neurological examination of Layton. There were no

abnormal findings from her neurological examination. She also

reviewed a CT performed at Lakeland Regional that was read as

normal by a radiologist. However, she ordered an MRI to rule out

an intrauterine stroke.

11. The MRI was conducted and Dr. A ndrews reviewed the

results with Mrs. Maloy on September 27, 2012:

IMAGING STUDIES: I reviewed images of the

MRI with mom at the bedside. As suspected,

after reviewing the head CT, there is an area

on the right frontal lobe with hypodensity on

T2 weigh ted images. The area is also

hypodense on diffusion, indicating it is not

an acute ischemic lesion. Ventricles

enlarged on the left compared to the right.

There is also a hypodense area on the right

parietal. Finding appears to be limited to

the white m atter without clear involvement of

the cortex. There is no enhancement.

LABORATORY STUDIES: Phenobarbital level is

22.9 this morning.

IMPRESSION:

1. History of focal seizures, doing well

without seizure recurrence. Phenobarbital is

in low - therapeut ic range.

2. Hypodense lesion in the right frontal and

parietal white matter, unclear etiology.

Given prior investigations at outside

hospital, including blood cultures and CSF

cultures, infection is unlikely. No evidence

of diffusion change to sugges t acute stroke;

however, this does not rule out the

possibility of prenatal stroke. Differential

also includes some other type of inflammatory

lesion with edema.

12. In her deposition which was taken on June 23, 2015, when

Layton was less than 3 years old , Dr. Andrews explained that her

use of the word ÐprenatalÑ referenced a stroke occurring before

birth, and her use of the term Ðacute strokeÑ referenced a stroke

occurring within 14 days of the September 26, 2012 , MRI.

13. Dr. Andrews was asked abo ut the comments she wrote in

her September 27, 201 2 , notes:

Q: So by Ðacute strokeÑ in your

September 27 th note, do you mean no stroke

occurring within 14 days?

A: Yes.

Q: Is that 9/26 MRI?

A: Correct.

Q: Is that your testimony?

A: Yes.

Q: N ow, you have -- you did not -- you did

not diagnose Layton Maloy with having suffered

a stroke during labor and delivery, correct?

A: ThatÓs correct.

Q: Based on your notes here, would you agree

with me that the imaging that you looked at

was suggestiv e potentially for -- or rather

you werenÓt able to rule out a stroke

occurring just before -- sometime before

birth, correct?

A: Correct. I was not able to rule that out.

* * *

Q: So one -- you actually reviewed not only

the MRI that was done on Se ptember 26, 2012,

but you also reviewed the CT scan that was

done prior to that, correct?

A: Yes.

Q: Okay. And when you reviewed the CT scan,

even though the radiologist didnÓt note some

abnormality, you felt that there was a

possible abnormality on t hat CT scan, correct?

A: Correct.

Q: And you felt there was an area on the

right frontal lobe that caused you some

concern, correct?

A: Yes.

Q: And . . . you felt that the area is also

hypodense on diffusion, indicating it is not

an acute ischemic lesion; is that correct?

A: Yes.

Q: And so by that you mean that it wasnÓt an

ischemic event, whether itÓs a stroke or

something else, that caused this lesion

occurring within two weeks of the study being

done, correct?

A: Correct .

Q: And so that a cute ischemic lesion that you

saw on the CT scan and then correlated on the

MRI, that is something that could have

occurred during labor?

Ms. Gaffney: Form

A: Yes.

14. Layton was discharged from All ChildrenÓs Hospital on

September 29, 2012, but Dr. Andrews and another pediatric

neurologist, Dr. Joseph Casadonte, followed up the medical

management of LaytonÓs seizures in their offices beginning on

October 10, 2012. Layton continues to see Dr. Andrews for

management of his seizures, and has had ad ditional brain

diagnostic testing and imaging through the years.

15. A November 28, 2012, brain MRI was read to reveal the

following findings in pertinent part:

Findings:

The previously seen signal abnormality in the

right frontal and right parietal lob es is no

longer identified.

Lateral ventricles and third ventricle are

mildly prominent, more so then on prior

examination. There is persistent asymmetry

with the left lateral ventricle being larger

than the right lateral ventricle. The

subarchachnoid sp aces are increased in size

when compared to prior examination. There is

no mass effect or midline shift. No abnormal

fluid collections are identified.

The pons is decreased in size. The vermis

also appears smaller than expected. It is

also noted that t he corpus callosum is thinned

in appearance.

16. Layton was admitted to St. JosephÓs Hospital in

January 2013, for acute vomiting and rash, with a history of

seizures. Radiology results from an MRI conducted at St. JosephÓs

Hospital revealed the followi ng:

IMPRESSION:

1. Generalized volume loss in the brain with

prominence of the subarachnoid space in the

lateral ventricles.

2. No transependymal fluid migration to

suggest increased intracranial pressure.

3. No intracranial hemorrhage or mass

effect .

17. While at St. JosephÓs Hospital , Layton had an 18 - hour

video EEG monitoring which was normal. He also had a consultation

with Dr. Jose Ferreira. Dr. FerreiraÓs impression included

history of suspected neonatal seizures; mild degree of hypotonia

of unclear significance; suggestion of mild volume loss on MRI

which he believed was borderline; and the possibility of disorders

associated with seizures of continued concern. He noted that the

MRI showed no signs of ischemia or hemorrhage.

18. Dr. And rews attributes LaytonÓs balance and coordination

issues to his mild to moderate developmental delay. Her records

reflect that Layton continues to improve with function overall,

and her testi mony is consistent with her records. Significantly,

Dr. Andrews testified that she has not seen evidence of a mental

impairment, but that he suffers from physical or motor impairment

for which physical therapy was prescribed. She further explained

that some of the factors, e.g., social interactions, language

developm ent, and higher cognitive functions, which she would use

to evaluate any mental impairment cannot be determined until he is

older. She also testified that he is improving from physical

therapy. When asked whether LaytonÓs physical impairments were

perman ent, she answered that she ÐwouldnÓt be able to say whether

his impairment is permanentÑ at this time, as she does not know to

what extent he will continue to make progress and at what point he

may or may not plateau. Layton also has had difficulty feedin g

and is being seen by a gastroenterologist for that.

19. LaytonÓs most recent brain MRI was conducted on

February 9, 2015. The report from the MRI contained the

following:

IMPRESSION:

Continued somewhat slightly dysmorphic

appearance of the brain as discussed in detail

with mildly prominent ventricles, left greater

than right. The findings may suggest some

degree of volume loss, potentially involving

the left basal ganglia and thalamus with

question for decreased white matter volume.

While nonspeci fic, these may be the sequel a of

prior insult.

20. Dr. Andrews agrees with the above impression. She

believes that his epilepsy to be symptomatic from brain

abnormalities that were seen on MRI. However, when specifically

asked whether the seizure disor der that Layton has is consistent

with a perinatal stroke, she responded, Ðhis epilepsy, we believe

to be symptomatic from brain abnormalities that weÓve seen on

MRI.Ñ She did not specifically testify that these brain

abnormalities were consistent with a perinatal s troke.

2 1 . Petitioners retained James Balducci, M.D., to review

LaytonÓs medical records. Dr. Balducci practices in obstetrics

and gynecology and maternal fetal medicine in Arizona. In his

deposition taken on April 13, 2015, Dr. Balducci st ated his

opinion that Layton did sustain a brain injury caused by oxygen

deprivation during labor. Specifically, Dr. Balducci is of the

opinion that Layton suffered oxygen deprivation to his brain

shortly after a second dose of ephedrine was administered to his

mother during labor and delivery, and that this caused Layton to

have a stroke. He reached this opinion by examining the fetal

heart tracings.

2 2 . Dr. Balducci explained the basis for his opinion as

follows:

A: This baby suffered oxygen deprivat ion to

the brain shortly after the second dose of

Ephedrine . So the effects of the Ephedrine

caused a vasoconstriction in the fetal vessels

in the brain, caused an intrapartum stroke to

the babyÓs brain, which was the source and the

cause of this babyÓs n eurologic sequela which

the baby suffers from today.

Q: And is the basis for that opinion,

Dr. Balducci, the fetal heart tracings that

youÓve just gone over with me?

A: Yes. The fact that the baby was

completely reassuring prior to the two doses

of E phedrine, and the fact that the baby

became completely non - reassuring after the

second dose of the Ephedrine, with the

maternal pulse raising up to 140, trying to

get the motherÓs blood pressure up, the

Ephedrine had the effect, in the fetal

physiology, o f causing a fetal stroke in the

kidÓs brain.

Q: And sir, are you able to say within a

reasonable degree of medical probability that

that is diagnosable from these fetal heart

tracings?

A: Yes, maÓam. And the reason is --

Q: And the timing of the -- IÓm sorry. I

didnÓt mean to speak over you.

A: Yes maÓam, because the tracing prior to

the second dose of ephedrine was reassuring,

and the -- the fetal heart rate tracing post

Ephedrine was completely non - reassuring, and

nothing else had changed.

Q: Sir, would you agree with me that you can

have a non - reassuring tracing and still

deliver a viable infant with no hypoxic brain

injury?

A: Yes, maÓam. That happens a lot.

23. Dr. Balducci is of the opinion that a local area of

LaytonÓs brain was de void of oxygen secondary to the

administration of Ephedrine to his mother. According to

Dr. Balducci, the effects of this type of stroke may not show up

until a week or two later so the ba by is not depressed at birth.

24. At the request of Petitioners, Paul Kornberg, M.D.,

reviewed LaytonÓs medical records and performed a medical

examination of Layton. Dr. Kornberg is a specialist in physical

medicine and rehabilitation, specifically pediatric

rehabilitation. He serves as Medical Director for Tampa Gen eral

HospitalÓs Pediatric Rehabilitation Program and works in an

outpatient clinic. His practice includes treatment of children

with Cerebral Palsy and who have had intrapartum strokes. He

examined Layton and evaluated him on April 7, 2015 , when Layton

w as approximately 2 1/2 years old .

25. Dr. Kornberg believes that Layton is permanently and

substantially neurologically and physically impaired. This

opinion is based on LaytonÓs daily seizures and that, at the time

of his examination, Layton was depend ent on a feeding tube. Based

upon the history he was given, he noted that Layton dragged his

left leg when fatigued.

26. Upon examination, however, Dr. Kornberg found that

LaytonÓs tone and strength appeared to be normal. At the time of

his examination , Layton was walking and putting words together at

the level that would be expected at his age at the time of the

examination . Dr. Kornberg has no opinion as to whether LaytonÓs

impairments are related to oxygen deprivation occurring during

labor and deli very. He noted that there are causes other than an

event during labor and delivery that could cause LaytonÓs symptoms

(e.g., seizures, functional neurologic impairments, sensory

processing issues), including a variety of developmental

abnormalities of the brain.

27. LaytonÓs school records from the P olk County Public

Schools contain an initial Individualized Education Plan (IEP)

which was developed at an IEP meeting on September 1, 2015, just

three days before LaytonÓs third birthday. In the domain of

Curriculum and Learning, Layton scored in the mild developmental

delay range in cognitive development and scored average in

communication development. In the Social Emotional Behavior

domain, Layton scored in the mild developmental delay range in

persona l - social development. In the Independent Functioning

domain, Layton scored in the significant delay range in adaptive

developmental quotient and average in the motor development

quotient. The initial IEP indicates that the educational setting

for Layton would be in an ESE Pre - K classroom. The IEP noted that

he needed a health care plan but did not need assistive technology

devices or strategies and did not need s pecially designed or

adaptive physical education (PE) .

28. A physical therapy (PT) evaluati on was performed by Polk

County Publ ic Schools on November 12, 2015. It reveals that

LaytonÓs ESE teacher reported that, at that time, Layton was able

to go up and down the steps to the portable classroom with one

railing and close supervision; he pedaled a small tricycle on the

playground sidewalk; and he was able to drink a can of Pediasure

from a straw. The physical therapist notes that although a wooden

chair with armrests was available in the classroom, Layton was

sitting in a standard classroom chai r at the time and appears to

have functional balance. He was noted to walk independently

within the classroom and needed verbal cuing to remind him not to

run in the classroom which, apparently, he liked to do. By

observation and teacher report, Layton w as noted to want to run in

the classroom and to need verbal cuing to slow down. Although

observed to be mildly off balance at times, falls appeared to be

rare. He was reported to be able to put away his lunchbox and was

eating well. He was observed walk ing and running on the

playground without falling. Nonetheless, the PT report

recommended that Layton continue to wear his soft helmet for

safety when playing on the playground or transitioning on campus,

due to his history of seizures and falling.

29. LaytonÓs most recent PT report , dated August 30, 2016,

from his school states in pertinent part:

Layton should be watched closely when he is

outdoors to be sure he does not get

overheated. Mother had previously noted that

he had a high incidence of fallin g (greater

than 10x) per day, however by teacher report,

and undersigned therapistÓs observation, his

falls are currently rare. Layton has been

wearing a soft helmet when he is outdoors at

school (on the playground and in the halls).

Layton has been able to walk with the

undersigned PT from his classroom, to the far

end of school and back, with supervision to

handheld assistance. Layton is able to walk

on the yellow lines (with helmet on) with

minimal verbal cuing. He is able to walk at a

good pace, and has only had rare stumbles

(primarily when he stumbled on a doormat, but

did not fall). Layton is able to ascend steps

to the portable reciprocally with one railing,

and is emerging in ascending the steps

reciprocally without using the railing. He is

ab le to descend the steps in a step to

fashion, both with and without the railing.

Layton is able to ascend and descend the ramp

without the railing with verbal cuing to slow

down by teacher report for ascent and

observation of PT for de s cent. By

Mrs. Stam baughÓs report, he is able to ride

the tricycle independently with the helmet on.

She reported that he has not had falls on the

playground.

Within the classroom, Layton does not wear the

helmet. He sits in a wooden toddler chair

with armrests to give so me additional

protection if he should have a seizure while

sitting in his chair in the classroom.

By teacher report, Layton is potty trained,

and uses the standard toilet. She noted that

he wears regular underwear, but still needs

assistance with hygiene . Mrs. Stambaugh

reported that he feeds himself with utensils.

By report, Layton is a car rider in the am and

pm, and does not currently need to negotiate

bus steps. By Mrs. StambaughÓs report, they

go to the field at the front of the school for

fire dr ills, and they hold LaytonÓs hand when

they walk there. Mrs. Stambaugh reported that

Layton only climbs on playground equipment

with direct, close adult supervision.

30. The PT report suggested that Layton continue to wear his

soft helmet when on the pl ayground or walking on campus, that he

shou ld be closely supervised on any playground equipment , and that

he should not get overheated.

31 . His most recent IEP dated September 7, 2016, notes that

Layton loves to dress up as a police officer or fireman, an d loves

to play with Legos and blocks. The IEP reflects that Mrs. Maloy

has Layton on a waiting list for a regular Pre - K program. It also

reflects that he no longer receives G - tube feedings at school

because he is eating well. However, school staff has been trained

to provide G - tube feedings to him in case Layton will not eat or

drink his Pediasure.

32 . Testimony of LaytonÓs parents is consistent with the

mental and physical abilities detailed in the school records.

Mrs. Maloy is able to understand Layton and attend to his needs

when he communicates with her. Although Layton tends to prefer a

certain food rep e ti t i vely for breakfast, lunch , and dinner, he

eats regular food and his G - tube is used as a supplemental feed.

Layton continues to have a sei zure disorder for which he continues

to be followed by Dr. Andrews and continues to take medicine.

Mr. Maloy plays catch with Layton, and takes him to the water

park. Mr. Maloy sometimes feeds Layton food from his own plate

including meats and vegetables .

33 . NICA retained Dr. Donald Willis, a physician who is

board - certified in maternal fetal medicine and obstetrics and

gynecology. Dr. Willis reviewed the medical records related to

LaytonÓs birth to determine whether Layton sustained an injury to

the brain or spinal cord caused by oxygen deprivation or

mechanical injury in the course of labor, delivery, or

resuscitation in the immediate post - delivery period. In a report

dated September 2, 2014, Dr. Willis referenced relevant parts of

LaytonÓs reco rds and stated in pertinent part:

The mother was admitted at 39 weeks in labor

with spontaneous rupture of the membranes.

Amniotic fluid was clear.

The fetal heart rate (FHR) monitor during

labor was reviewed. The FHR had a normal

baseline rate of 130 b pm on admission and

normal heart rate variability. Late and

variable FHR decelerations began about 90

minutes prior to delivery. This pattern was

followed by a period of exaggerated FHR

variability with some improvement in the

overall pattern prior to de livery.

Cesarean section was done for Ðintolerance to

labor.Ñ Birth weight was 3,319 grams (7 lbs

5 ozÓs). The baby was not depressed at

birth. Apgar scores were 9/9. The baby c a me

out crying and required no resuscitation.

The baby was taken to the n ormal newborn

nursery after delivery. Umbilical cord blood

gas was not done.

Newborn hospital course was uneventful. The

baby was discharged home with the mother two

days after delivery.

The baby apparently did well until about two

weeks after birth, w hen some twitching

movements were noted. Seizure activity was

diagnosed. Head MRI at four months of age

showed generalized volume loss.

In summary, Cesarean section was done for a

non - reassuring FHR pattern during labor. The

baby was not depressed at b irth and had a

normal hospital course with discharge home

two days after birth. Medical records

suggest the baby did not suffer a birth

related injury.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

injury to the ba byÓs brain during labor,

delivery or the immediate post delivery

period.

34 . In a deposition on February 24, 2015, Dr. Willis

testified as to typical findings in an infant who suffered oxygen

deprivation. If a stroke is caused by hypoxic injury to the baby

during labor and delivery, then the entire brain is going to be

affected by the hypoxia. ÐI mean, we donÓt see an isolated

stroke in a baby like of one small, little area in the brain due

to hypoxic injuries during labor and delivery.Ñ Normally, ba bies

born with hypoxic brain injury are depressed at birth. LaytonÓs

Apgar score was 9 at one minute and 9 at 5 minutes, and was not

depressed at birth. He noted that the hospital progress notes

stated that the baby came out crying and was vigorous, and went

to the normal nursery. Two days after birth, the hospital notes

stated that the newborn was progressing as expected. And, he

noted that the baby was discharged home after two days, which is

a routine time for discharge. When asked whether the fetal heart

tracing was consistent with an in utero stroke, Dr. Willis

testified that Ðwell I donÓt know that a tracing can tell me if a

baby had a stroke in utero.Ñ

35 . He further explained:

A: I have been reviewing cases for NICA for

14, 15 years, and what I look at is oxygen

deprivation that occurs during labor or

delivery that results in brain injury. And

those babies, as we said, are going to have

problems at birth and be depressed.

I have not considered a stroke that occurs

spontaneously during labor a s a hypoxic event

resulting in brain injury.

Q: Well --

A: I am not the judge. IÓm just -- IÓm just

the doctor thatÓs reviewing the cases here,

but thatÓs how I review them and thatÓs what

-- and thatÓs how I reviewed the NICA case

and thatÓs my inte rpretation of what it means

by oxygen deprivation with brain injury.

Q: Well, I want to go over that again then.

An ischemic stroke occurring in utero during

labor will cause oxygen deprivation to the

part of the brain thatÓs affected by the

ischemia, correct?

A: ThatÓs correct.

Q: Okay. And as you sit here today, youÓre

not familiar with any such pathology, an

intrauterine stroke occurring during labor

not caused by hypoxia?

A: IÓm sure all things can occur, but for

NICA, I read it as I stated. I mean, if you

had a stroke due to the -- that wasnÓt due to

oxygen deprivation, again, where would you

place when that stroke occurred if thereÓs no

event to show you that hereÓs where the

stroke occurred?

I canÓt say that the baby had a stroke during

l abor because an MRI afterwards shows the

baby had brain injury. I donÓt know where

that stroke occurred. The only thing I can

do is look at the fetal heart rate tracing

and the baby after birth and the newborn

course and try to determine if that baby had

oxygen deprivation sufficient enough to cause

brain injury. And thatÓs what IÓve done on

my report.

If baby had a stroke that youÓre talking

about, who knows -- you know, how would you

- - I have no way of telling where or when

that would have occurre d if you have a stroke

that leaves a baby without symptoms, because

all the ones we see due to oxygen

deprivation, those babies are dep ressed at

birth.

36 . When asked whether E phedrine poses a risk of harm to a

baby, he replied Ðno.Ñ When asked whether tachycardia can cause

a stroke, he replied, ÐTachycardia does not cause stroke as far

as IÓm aware.Ñ When asked whether there is any way from

reviewing an MRI to be able to tell when an injury occurred, h e

replied, Ðno.Ñ

37 . Dr. WillisÓ opinion that t here was no apparent

obstetrical event that resulted in loss of oxygen or mechanical

trauma to the babyÓs brain during labor or delivery is credited.

38 . NICA also retained Dr. Michael Duchowny to evaluate

Layton. Dr. Duchowny is board - certified in pedi atrics,

neurology, with special qualifications in child neurology, and in

clinical neurophysiology. He is a senior staff attending at

Nicklaus ChildrenÓs Hospital, and directs the neurology training

program. Dr. Duchowny reviewed LaytonÓs medical records and

performed an independent medical examination on Layton on

January 7, 2015. In a medical report dated January 11, 2015,

Dr. Duchowny expressed the following opinions:

In Summary, LaytonÓs neurological examination

is only significant for mild gener alized

hypotonia with oromotor dysfunction and an

indwelling G - tube. His motor and cognitive

development are both in the 18 - 24 months

range which places him at a mild level of

disability. He is doing well from the social

and behavioral domains with no sp ecific focal

or lateralizing findings of significance.

This examination therefore does not provide

support for the presence of either a

substantial mental or motor impairment.

Review of the medical records reveals that

Layton was born at 39 weeks gestati on at

Lakeland Regional Medical Center. He weighed

3320 grams at birth and had Apgar scores of 8

& 9 at 1 and 5 minutes. He was ultimately

discharged in stable condition on day 3 of

life. As documented by his mother, he was

diagnosed with neonatal seizu res which have

persisted to the present time. Most of his

current issues are related to a chronic

medically resistant seizure disorder. Of

note, Layton has never received pyridoxine,

pyridoxal - 5 - phosphate or biotin.

LaytonÓs MRI scan on January 3, 2013 was

significant for prominent extra - axial spaces

and generalized volume loss. There is no

mention of a right frontal infarct pattern.

I have not personally reviewed the scan.

In view of LaytonÓs overall developmental

progress, I do not believe he should be

considered for inclusion within the NICA

program.

39 . Dr. Duchowny routinely reviews and interprets brain

imaging studies as a daily part of his practice. He explained

that the MRI is the gold standard in terms of diagnosis of

stroke, and that FHR tracings are of no clinical significance in

diagnosing a stroke. Had Layton suffered a stroke during labor

and delivery or at any time, Dr. Duchowny would expect to see

findings of that on the neuroimaging studies performed on

LaytonÓs brain. He did not see any clinical evidence of a stroke

on any of the brain MRIs he reviewed. Dr. Duchowny attributes

LaytonÓs seizure disorder to developmental abnormalities in his

brain which were acquired in utero. He attributes LaytonÓs mild

generalized hypotonia (lo w muscle tone) and oral - motor

dysfunction (which has necessitated a G - tube for supplemental

feeding) to prenatally acquired Cerebral Palsy.

40 . When asked about Dr. Ferr ei raÓs use of the term Ðvolume

lossÑ regarding the January 2013 MRI, Dr. Duchowny di sagrees that

there was volume loss and noted an asymmetry of the ventricles.

ÐIt certainly is not a stroke.Ñ

41 . Regarding his physical examination of Layton,

Dr. Duchowny described LaytonÓs motor and cognitive development

to be in the mild range of del ay. He noted that there were Ðno

local or lateralizing findings as one might expect to see in a

stroke.Ñ He described his findings to be consistent with a

toddler with developmental delay.

42 . Dr. Duchowny described Layton as very sociable, noting

his behavior to be Ð appropriate . Ñ He described Layton as a Ðvery

cute boyÑ who is very interactive and progressing well in the

social and behavioral domains. He noted that while Layton was

poorly coordinated, he could take steps and walked into the

exami nation room. He had a ÐbuttonÑ on the left side of his

abdomen for the G - tube.

43 . He also noted that in reviewing Dr. AndrewsÓ records,

she initially noted Ðsuspicion of perinatal or prenatal strokeÑ

but that notation did not carry throughout her not es over time.

That is, while she considered it, she did not diagnose Layton

with a stroke. This is consistent with Dr. AndrewsÓ testimony.

Moreover, when asked about Dr. CasadonteÓs notation of Ðconcern

for intrauterine stroke , Ñ Dr. Duchowny understands that to mean

prenatally acquired.

44 . When asked if it is medically probable that based on

his records review, his examination of Layton, and his review of

the imaging studies, whether Layton suffered a stroke during

labor and delivery, Dr. Duchowny repli ed, ÐNo, I donÓt believe

so.Ñ Dr. DuchownyÓs opinion in this regard is credited.

45 . Dr. Duchowny wrote a supplemental report dated

September 19, 2016, which addressed LaytonÓs February 9, 2015 , MRI

study. This report was one page in length and reads a s follows:

Pursuant to your request, I reviewed the MR

i maging study on Layton Maloy performed on

February 9, 2015, at All ChildrenÓs Hospital.

A s you know, Layton has been imaged

extensively in the past including head CT

studies on September 24, 2012, Ma rch 7, 2013,

and September 13 , 201 3, brain MR I maging on

Sept. 26, 2012, November 28, 2013 and

February 9, 2015, and head ultrasound on

October 18, 2012.

The brain MR imaging study of February 9, 2015

is the most recent imaging performed to date

and was o btained when Layton was 2 ½ years

old. This study reveals no areas of

abnormality in the cerebral cortex or

subcortical white matter. The deep gray

matter structures (basal ganglia and thalami)

are also normal. The hippocampi demonstrate

no abnormality. The lateral ventricles are

enlarged and dysmorphic in appearance. The

occipital horns are larger than the frontal

horns and evidence a colpocephalic

configuration. There is a ventricular

asymmetry favoring greater enlargement on the

left. The corpus c allosum is borderline thi n .

The posterior fossa contents are abnormal and

reveal ponto - cerebellar hypoplasia and vermian

hypoplasia with compensatory enlargement of

the fourth ventricle.

In summary, these imaging findings are

consistent with prenatally a cquired brain

malformations and provide no evidence for

acquired brain injury due to either intra -

partum mechanical injury or oxygen

deprivation.

46 . In response to Dr. DuchownyÓs one - page supplemental

report, Petitioners requested Dr. Daniel Ad l er revie w the

February 9, 2015, MRI report, as well as his earlier imaging

reports. D r . Ad l er is a pediatric neurologist who practices in

New York City. It is Dr. A d l erÓs opinion that the images from the

February 9, 2015 , MRI report demonstrate a progressive los s of

tissue in the white matter of LaytonÓs brain and are not the

result of a congenital problem. He concludes that the images

reflect brain injury that happened to the fetus due to

intrauterine hypoxia, of a type not manifested by encephalopathy.

47 . At NICA's request, Jay Goldsmith, M.D., reviewed

LaytonÓs medical records and the reports of all diagnostic and

neuroimaging studies performed on Layton, as well as Mrs. MaloyÓs

labor and delivery records. Dr. Goldsmith is a neonatologist who

is b oard - c er tified in Pediatrics and Neonatal - Perinatal Medicine.

He practices neonatology and is a professor of pediatrics at

Tulane University Medical School. He diagnoses stroke s in babies

as part of his clinical practice and has been practicing

neonatology for a pproximately 40 years.

48 . In his deposition which took place on September 26,

2016, Dr. Goldsmith noted that at birth, Layton was a fairly

vigorous baby with good Apgar scores. No abnormal brain

function, or encephalopathy, was noted in the newborn peri od, and

Layton went home with his mother after two days.

49 . Dr. Goldsmith explained:

ThatÓs, probably, the most important thing to

rule out; an intrapartum deprivation of

oxygen; if thereÓs no encephalopathy, for the

most part, thereÓs no injury that occurred

during labor and delivery; the person who is

injured , or a baby who is injured in -- a

fetus who was injured in labor and delivery

will, certainly, in the overwhelming number

of cases, show signs of that injury as a

newborn; and demonstrate it as an

encephalopathy.

The one exception to that is perinatal

arterial stroke; and so thatÓs what,

basically, this case has come down to; Layton

came back at two to three weeks of age with

seizures; had a work - up; and subsequently, I

think, seven brain imaging studies, none of

which showed arterial stroke.

Now, perinatal arterial stroke is a

neuroradiological diagnosis, pure and simple;

you can think about it; you can put it on

your differential diagnosis; but if you donÓt

see a stroke on the images, th ereÓs no

stroke; and, in fact, as this process

evolved, over two and a half years or so, the

MRIs showed that Layton has a developmental,

or genetic, anomaly of his brain that has,

certainly, defined itself on the brain

imaging.

50 . Dr. Goldsmith conside rs MRI to be the gold standard in

diagnosing a stroke, which is consistent with Dr. DuchownyÓs

testimony. He further noted that Layton transitioned well from

intrauterine to extrauterine, and explained that babies injured

in the womb during labor and deli very do not make this transition

well, would not be vigorous at birth, would be acidotic , and may

need resuscitation.

51 . Dr. Goldsmith is also of the opinion that the findings

of the 2015 MRI suggest a developmental anomaly of the brain,

showing that h is brain was slightly dysmorphic with no evidence

of stroke. When asked whether he would expect to see evidence of

a stroke on the MRI findings, he answered, ÐYes; unfortunately,

the brain does not regenerate,Ñ noting that with an ischemic

stroke, that ar ea of the brain will die and will not regenerate.

ÐWe will see a hole in the brain in that area.Ñ

52 . It is Dr. GoldsmithÓs ultimate opinion Ðto an

extraordinary high degree of certaintyÑ that Layton did not

suffer a stroke during labor and delivery, a nd that his injuries

were not a result of a neurological injury caused by oxygen

deprivation that occurred during labor and delivery.

Dr. GoldsmithÓs opinion in this regard is credited.

53 . While Dr. Goldsmith is of the opinion that Layton is

p ermanently and substantially mentally and physically impaired,

he would defer to a neurologist, especially one who has examined

Layton, to make that determination.

54 . The dispute in this case centers on what, more likely

than not, was the primary cause o f LaytonÓs impairments. That

is, did Layton suffer a stroke during his motherÓs labor that

resulted in oxygen deprivation to a specific portion of LaytonÓs

brain which caused his disabilities or is it more likely than not

that they were caused by a prenat ally acquired congenital or

genetic disorder acquired in utero. Secondly, did any such

injury result in Layton becoming permanently and substantially

mentally and physically impaired.

55 . The undersigned finds the testimony of NICAÓs experts

to be comp elling. The greater weight of the evidence establishes

through the opinions of Dr. Willis and Dr. Goldsmith, together

with Dr. Duchowny, that there was not an apparent obstetrical

event that resulted in loss of oxygen to LaytonÓs brain during

labor and de livery that resulted in brain injury .

56 . Moreover, the record evidence does not support a

finding that Layton is permanently and substantially mentally and

physically impaired. His treating physician, Dr. Andrews, noted

LaytonÓs improvements over time and was not of the opinion that

Layton has a mental impairment. Moreover, Dr. KornbergÓs opinion

that Layton is substantially impaired, while deferring to the

pediatric neurologists, was b ased in large part on LaytonÓs

required use of the G - tube for feedi ng. He has clearly improved

in this regard and now uses the G - tube to supplement his eating

and use of Boost or Pediasure. Dr. DuchownyÓs opinion that

LaytonÓs disabilities are in the mild range, and not considered

to be substantial, is consistent with D r. Andrews Ó assessment,

and is credited.

CONCLUSIONS OF LAW

5 7 . The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of this proceeding.

§§ 766.301 - 766.316, Fla. Stat. (2011).

58 . The Plan was established by the Legislature "to provide

compensation on a no - fault basis, for a limited class of

catastrophic injuries that result in unusually high costs for

custodial care and rehabilitation ." § 766.301, Fla. Stat.

(emphasis added). The Plan applies only to a birth - related

neurological injury, which 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 of a multiple

gestation, a live infant weighing at least

2,000 grams at birth caused by oxygen

deprivation or mechanical injury occurring in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospital, which renders the in fant

permanently and substantially mentally and

physically impaired . This definition shall

apply to live births only and shall not

include disability or death caused by genetic

or congenital abnormality . (emphasis added).

59 . The injured infant, her o r 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 Plan, has "45 days f rom 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.

6 0 . If NI CA determines that the injury alleged in a claim is

a compensable birth - related neurological injury, it may award

compensation to the claimant, provided that the award is approved

by the Administrative Law Judge to whom the claim has been

assigned. § 766. 305(7), Fla. Stat. If, on the other hand, NICA

disputes the claim, as it has in the instant case, the dispute

must be resolved by the assigned Administrative Law Judge in

accordance with the provisions of chapter 120, Florida Statutes.

§§ 766.304, 766.30 9, and 766.31, Fla. Stat.

6 1 . In discharging this responsibility, the Administrative

Law Judge must make the following determinations based upon all

available evidence:

(a) Whether the injury claimed is a birth -

related neurological injury. If the clai mant

has demonstrated, to the satisfaction of the

administrative law judge, that the infant has

sustained a brain or spinal cord injury caused

by oxygen deprivation or mechanical injury and

that the infant was thereby rendered

permanently and substantially mentally and

physically impaired, a rebuttable presumption

shall arise that the injury is a birth - related

neurological injury as defined in s.

766.302(2).

(b) Whether obstetrical services were

delivered by a participating physician in the

course of la bor, 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 postdeliv ery 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 participatin g physician at birth."

§ 766.31(1), Fla. Stat.

6 2 . In the instant case, Petitioners filed a claim alleging

Layton did sustain oxygen deprivation resulting in brain injury

rendering him permanently and substantially physically and

mentally impaired. As t he proponent of the issue of

compensability, the burden of proof is upon Petitioners.

§ 766.309(1)(a), Fla. Stat. See also Balino v. Dep't of Health &

Rehab. Servs. , 348 So. 2d 349, 350 (Fla. 1st DCA 1977)("[T]he

burden of proof, apart from statute, is o n the party asserting the

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

63 . The parties have stipulated that Layton was born a live

infant in a hospital licensed in Florida and weighed in excess of

2,500 grams. There is no dispute that th e physician who provided

obstetric services at LaytonÓs birth was a participating physician

in the NICA program. The parties disagree as to whether LaytonÓs

impairments were caused by oxygen deprivation during labor or

whether they were more likely caused by prenatally acquired

abnormalities. This is particularly significant in that the

above - quoted statutory definition of a birth - related neurological

injury expressly excludes those caused by genetic or congenital

abnormalities. § 766.302(2), Fla. Stat.

6 4 . The undersigned finds Dr. WillisÓ expert opinion that

there was no apparent obstetrical event that resulted in loss of

oxygen to LaytonÓs brain during labor or delivery that resulted in

brain injury more compelling than the o pinions of Drs. Balducci

and Adl er. Moreover, while LaytonÓs treating physician,

Dr. Andrews, initially considered that there was a possibility

that Layton suffered an intrauterine stroke, she never made that

diagnosis.

65 . Even if the undersigned were persuaded that Layton

suf fered a stroke during labor that resulted in his disabilities,

it must be established that those disabilities are permanent and

substantial in nature as both are required to establish

compensability. Fla. Birth - Related Neurological Injury Comp.

AssÓn v. D iv. of Admin. Hearings , 686 So. 2d 1349 (Fla. 1997).

While Dr. Goldsmith and Dr. Kornberg testified that they

considered Layton to be permanently and substantially mentally and

physically impaired, the greater weight of the evidence, together

with Dr. Duc hownyÓs opinion, establishes otherwise. That is,

Petitioners established that Layton has certain disabilities.

However, his school and physical therapy records, as well as his

treating physician, reflect that he has improved in several areas,

especially s ince attending school. Additionally, while not

minimizing his disabilities, the evidence does not establish that

these disabilities are Ð substantial Ñ as contemplated by the NICA

statutes. Thus, Layton is not entitled to benefits under the NICA

Plan.

C ONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Jessica and

Josh Maloy, on behalf of and as parents and natural guardians of

Layton Maloy, is dismissed with prejudice.

DONE AND ORDERED this 19th day of January , 2017 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 306 0

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of January , 2017 .

ENDNOTE

1/ Petitioners were permitted to file , after the final hearing,

a deposition of t heir expert, Dr. Daniel Ad l er, for the limited

purpose of addressing Dr. DuchownyÓs supplemental one - page report

dated September 19, 2016, which was written after his deposition ,

and two weeks prior to the scheduled Final Hearing. Any reference

to Dr. A d l erÓs testimony in this Order will be limited to matters

specifically related to Dr. DuchownyÓs supplemental report dated

September 19, 2016.

COPIES FURNISHED:

(via certified mail)

Charles T. Moore, Esquire

Morgan and Morgan, P.A.

One Tampa City Center

201 North Franklin Street, 7th Floor

Tampa, Florida 33602

(eServed)

(Certified Mail No. 7016 0910 0001 7980 9938)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tal lahassee, Florida 32308

(eServed)

(Certified Mail No. 7016 0910 0001 7980 9945)

Brooke M. Gaffney, Esquire

Jeffrey P. Brock, Esquire

Smith Stout Bigman and Brock, P.A.

444 Seabreeze Boulevard, Suite 900

Daytona Beach, Florida 32118

(eServed)

(Certified Mail No. 7016 0910 0001 7981 0002)

Justine D. Adamski, Esquire

La Cava & Jacobson, P.A.

Suite 1250

501 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

(Certified Mail No. 7016 0910 0001 7980 9969)

Paula J. Lozano, Esquire

Walters Levine & Lozano

1 819 Main Street , Suite 1110

Sarasota, Florida 34236

(eServed)

(Certified Mail No. 7016 0910 0001 7980 9976)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Ce rtified Mail No. 7016 0910 0001 7980 9983)

Justin Senior , Interim Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7016 0910 0001 7980 9990)

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 Appell ate Procedure. Such proceedings are

commenced by filing the original notice of administrative appeal

with the a gency c lerk of the Division of Administrative Hearings

within 30 days of rendition of the order to be reviewed, and a

copy, accompanied by filin g fees prescribed by law, with the

clerk of the appropriate District Court of Appeal. 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).