FL: ALJ erred in ruling death not compensable: court ordered compensation under plan.(Hospital Law Decisions of Note)

CASE FACTS: Laura Stever presented to Orlando Regional South Seminole Hospital with complaints of contractions and blood-tinged fluid discharge on October 16, 2004, at 6:00 a.m. At the time, her fetus was at 40 6/7 weeks of gestation. Following admission, Mrs. Stever was given pain medication. Mrs. Stever subsequently developed a fever and the fetal heart rate had risen to more than 170 beats per minute. Mrs. Stever was treated for the fever and fetal tachycardia, the fetal heart rate continued to rise to more than 180 beats per minute with decreasing long-term variability. Dr. Christopher Qulinsey, a "participating physician" under the Florida Birth-Related Neurological Injury Compensation Plan, proceeded with a Caesarean Section. At 12:48 p.m., Harper Dean Stever, weighing over 2500 grams, was delivered. At the time of delivery, there were copious amounts of meconium exuding through the incision at the entrance to the uterine cavity. Harper's heart rate was initially noted at less than 100 beats per minute and he was give free-flow oxygen. However, he was not breathing spontaneously, and his heart rate rapidly slowed to 60, requiring an Ambbu bag and mask, and chest compressions. At 12:50 p.m., with Harper's heart rate still 60 beats per minute and his color noted as bluish, a neonatal code was called. During the code, Harper was intubated, and chest compressions were initiated to establish a sustainable heart rate. His heart rate rose to the 160s and declined to the 140s by the time the code concluded, fifteen minutes after it began. Harper was transferred to the special care nursery where resuscitation efforts continued. Progress notes revealed that while on the ventilator, Harper had oxygen saturations above 95 percent, pale pink color and responses to tactile stimulation. However, due to his acute respiratory failure, it was decided he would be transferred to the neonatal intensive care unit at Arnold Palmer Hospital for Children. Despite the care he received at Palmer, Harper died. Harper's mother, as personal representative of his estate, filed a petition with the Division of Administrative Hearings (DOAH) to determine compensability under the Plan. The DOAH served the Florida Birth-related Neurological Injury Compensation (NICA) with a copy of the petition. NICA required a hearing to resolve the case. After a hearing before an ALJ, the ALJ found the claim was not compensable. Mrs. Stever appealed.

COURT'S OPINION: The District Court of Appeal of Florida reversed the judgment of the ALJ and remanded the case for entry of an order that the claim filed was compensable under the Plan. The court found that the ALJ failed to apply the presumption favoring compensability. Orlando Reg. Health Care Sys. v. Florida Birth Related Neurological, 2008 FL-1103.063 (10/31/2008)--FL

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports. his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law. Who's Who in America and Who's Who in the World.

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