The Issue At issue in this proceeding is whether Adam Joseph Balash, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary matters Evan Balash and Terry Balash are the parents and natural guardians of Adam Joseph Balash (Adam), a minor. Adam was born a live infant on November 5, 1991, at Palms West Hospital, a hospital located in Palm Beach County, Florida, and his birth weight was in excess of 2500 grams. The physicians providing obstetrical services during the birth of Adam were Robert Chaitin, M.D., and Ronald Ackerman, M.D., who were, at all times material hereto, participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Mrs. Balash's antepartum course and Adam's birth Mrs. Balash's antepartum course was without apparent complication until November 5, 1991, when, with the fetus at 37 weeks gestation (estimated date of confinement November 20, 1991), she presented to her obstetrician/gynecologist. At the time, examination was reassuring with fetal movement and a fetal heart rate of 136 beats per minute; however, Mrs. Balash reported decreased fetal movement over the last few days. Consequently, she was referred to Palms West Hospital for a non- stress test (NST). Mrs. Balash presented to Palms West Hospital at or about 2:00 p.m. (1400 hours), November 5, 1991, and was placed on a fetal monitor for the NST at or about 2:04 p.m.3 Fetal heart rate (FHR) baseline was noted at 150 beats per minute and continued at that rate until about 2:25 p.m. when a period of bradycardia was shown to develop, down to approximately 90 beats per minute, and persist for approximately 5 minutes, with a return to baseline.4 Reassuringly, beat-to-beat variability and reactivity to Doppler were present, and no further episodes of bradycardia were noted during the course of Mrs. Balash's labor and delivery.5 Given the prolonged deceleration noted on the NST, Mrs. Balash was admitted to labor and delivery at 2:30 p.m. Vaginal examination revealed the cervix to be at 2-3 centimeters, effacement at 80 percent, and the fetus at station -2,6 with contractions at 1 to 2 minutes. Mrs. Balash complained of abdominal tenderness, and the abdomen palpated firm. No vaginal bleeding was noted. Dr. Chaitin was advised of Mrs. Balash's status, and intravenous (IV) fluids and lab work were ordered. At 3:00 p.m. the FHRs were noted as 140s, without accelerations, and at 3:20 p.m. vaginal examination revealed no change or progress. Dr. Chaitin was updated. At 3:34 p.m. Mrs. Balash was attended by Dr. Chaitin. His examination noted the fetus at station -3; however, dilation remained at 2 centimeters. The uterus was noted to be "rock hard without any relaxation," a presentation consistent with placental abruption. Consequently, Dr. Chaitin ruptured the membranes, yielding bright red amniotic fluid (further evidence of placental abruption).7 Internal fetal monitor was placed, revealing FHRs of 140s, with good variability and no decelerations.8 The fetus was noted to be in frank breech presentation. Given the evidence of fetal stress and probable placental abruption, Dr. Chaitin opted for a stat (immediate) cesarean section. Between 3:40 p.m. and 3:54 p.m., Mrs. Balash was prepared for surgery, anesthesia was started, and she was moved to the operating room. According to the labor and delivery summary, she was in the operating room at 3:55 p.m., the incision was made at 3:56 p.m., and Adam was delivered at 3:57 p.m., November 5, 1991. Pertinent to this case, the operative report reads as follows: . . . The uterus was noted to be rock hard in all quadrants. A low transverse incision was made with a scalpel. The uterine incision was extended bilaterally. The fetal breech was noted to be in frank breech position and with care, the butt was delivered and both arms were reduced appropriately. The fetal head was then removed, the baby was well bulb suctioned, and started crying extremely vigorously. [Infant dried and provided whiffs of oxygen, but no resuscitation required.] Cord was clamped, and neonatology present and baby evaluation was normal. A 6 pound, 12 ounce, baby boy was born with Apgar's 8/9. The cord ph was obtained which was 7.322 [normal]. The placenta was actively delivering, and was found to be 40% abrupted and was sent to pathology for evaluation. . . . The Apgar scores assigned to Adam are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, gag reflex, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute Adam's Apgar score totalled 8, with heart rate, respiratory effort, muscle tone, and gag reflex being graded at 2 each, and color being graded at 0. At five minutes, his Apgar score totalled 9, with heart rate, respiratory effort, muscle tone, and gag reflex being graded at 2 each, and color being graded at 1. Such scores are grossly normal, as were Adam's newborn assessments, and he was admitted to the newborn nursery for routine care. (Petitioners' Exhibit 5, tabs 4 and 8). At approximately one hour of life (5:00 p.m.), Adam was observed to have turned dusky. One hundred percent oxygen via mask was applied, and Adam's color improved. Heart rate and respiratory rate were noted as stable. Adam was subsequently attended by Dr. Lerma Te, who noted nasal flaring, grunting, and retraction. Dr. Te's impression was "respiratory distress" and "rule out sepsis." Blood cultures were ordered, and intravenous Ampicillin and Claforan were started. Adam developed increasing oxygen requirements and at or about 6:40 p.m. he was intubated and assisted ventilation was begun. X-rays revealed "homogenous bilateral extensive ground glass appearance of the air bronchograms." Impression was that "[t]his either represents transient respiratory distress syndrome in the newborn or hyaline membrane disease."9 Given Adam's needs, he was transported to Good Samaritan Hospital, where he was admitted to the neonatal intensive care unit (NICU) at or about 10:25 p.m. Notably, notwithstanding his respiratory problems, Adam's neurological status remained essentially normal throughout his hospital stay. On November 20, 1991, Adam was discharged, in apparent good health, to his mother's care. His course at Good Samaritan Hospital noted no neurological problems, and is summarized on his discharge summary as follows: HISTORY: Mother is a 27 year old gravida 2, para 1, blood type 0 negative. Admitted at 37 weeks gestational age with abruptia placenta. Stat cesarean section was done and the baby was in breech position with Apgar score of eight and nine at one and five minutes respectively. Weight 2920 grams. The baby developed respiratory distress with increasing FI02 requirement. He was intubated and assisted ventilation started. Blood cultures were done. Intravenous Ampicillin and Claforan were started and the baby was transferred to Good Samaritan Hospital from Palm West. PHYSICAL EXAMINATION: Baby's weight 2920 grams, heart rate 156, respiratory rate 60, blood pressure 65/38. Premature 37 week male infant in respiratory distress. Head and Face: Anterior fontanelle flat. Oral cavity: No cleft plate noted. Chest: The baby is on assisted ventilation. Air entry heard both sides. Cardia: Heart sounds normal. Abdomen is soft. Umbilical cord has two vessels. Genitalia: Male. Extremities: No click at the hips. Central nervous system: Tone and reflexes equal on both sides. ASSESSMENT: Premature 37 weeks. Respiratory distress. Maternal complications, abruptia placenta. Cesarean section delivery. Suspected sepsis. Maternal history of herpes. HOSPITAL COURSE: Complete blood count, blood cultures x 7 were done. The baby continued on intravenous Ampicillin, endotracheal tube and cultures were sent for herpes. Umbilical catheter was inserted through the umbilicus about nine centimeters. He was started on Exosurf. The baby remained on assisted ventilation from 11/5 through 11/10/91 and was extubated on 11/10 and placed on Oxy-Hood. The baby was weaned from oxygen to room air by 11/18/91. The baby was also noted to be jaundiced and was started on photo therapy on 11/9/91 and was discontinued on 11/11/91 when the bilirubin declined. Echocardiogram done on 11/7/91 revealed moderate size patent ductus arteriosus and the baby was given Indocin and the patent ductus closed after the Indocin. The baby was on Ampicillin and Claforan for suspected sepsis and this was discontinued after a course of antibiotics of seven days. The baby was started on feedings on 11/18/91 and was advanced and IV's decreased. The baby tolerated adequate amounts of feedings and tolerated feeds well. The baby was discharged home at fifteen days of age when the baby weighed 6 lbs. 7.6 oz., was clinically stable and tolerating feedings well. DISCHARGE DIAGNOSIS: Premature 37 weeks male. Respiratory distress syndrome. Patent ductus arteriosus. Hyperbilirubinemia. Suspected sepsis. DISCHARGE PLAN: To be followed by Dr. Marineau in one week and Dr. Friedman for eye examination on 12/11/91. Brain stem auditory evoke potential examination to be done on 12/5/91 at Good Samaritan Hospital. Cranial ultrasound on 11/6 showed no evidence of [hydrocephalus or] intracranial bleeding. Adam's development Adam's early infancy was apparently unremarkable, and no problems were observed until approximately eight to ten months of age. At that time, developmental delay became evident and the parents reported their concerns to Adam's pediatrician, who referred him for neurologic consult at the Palm Beach Neurological Group.10 Adam was examined by a Dr. Mate, at the Palm Beach Neurological Group, in 1992; however, those observations are not of record. What is of record are the observations of Luis Bello-Espinosa, M.D. (Dr. Bello), another neurologist associated with the Palm Beach Neurological Group, who first examined Adam in April 1994. Dr. Bello describes Adam's presentation as consistent with severe cerebral palsy (profound brain dysfunction), that is characterized by spastic quadriparesis (an abnormal motor development affecting all four extremities) and mental retardation. Here, there is no dispute that Adam's impairments, mental and physical, are permanent and substantial. In an effort to identify the etiology of Adam's dysfunction, he was referred to Paul J. Benke, M.D., for genetic consultation. The results of Dr. Benke's first consultation were reported on November 2, 1993, as follows: DIAGNOSTIC IMPRESSION: Chromosome Anomaly. GENETIC COUNSELING: The developmental delay, now performing at 11-12 months, is probably related to the chromosome anomaly. It could not be determined today whether the neonatal problems played a role. One cell strain, the 20 deletion with 2 normal 7 chromosomes, is probably derivative from the dominant strain with the apparently balanced translocation. This would mean that the translocated #7 broke and lost most of the translocated #20, or far more likely, the whole chromosome was lost, the normal #7 was duplicated, and the 2 #7 chromosomes are derived from 1 parent. Blood was taken today to see if 1 parent is a translocation carrier. A skin biopsy, with a presumably higher proportion of 20 p- cells, would be required to determined (sic) why the translocated 7 was lost. Dr. Benke recommended follow-up studies. The results of Dr. Benke's follow-up studies were reported on October 1, 1994, as follows: This boy . . . [has] a mosaic chromosome abnormality . . . We did a skin biopsy months ago to determine the proportion of cells with a derivative chromosome 20, partial trisomy 7 and deletion 20. Most of the sample (29/30) cells had the balanced 7:20 translocation, with the deriviative (sic) 20 in just 3 percent. This suggests also that the balanced translocation was probably the first genetic lesion. Compounding conclusions of etiology for slow development is that a new balanced translocation leads to slow development and birth defects 7-10 per cent of the time. Also, the derivative 20 chromosome could be responsible since the neurons with this anomaly may function poorly. Also, he had a delay in his C-section of more than one hour when there was a demonstrable disruption of the placenta, associated with attendant neonatal problems. It is tough to say which of the factors is most responsible, but I think that the balanced translocation is the least important. Interestingly, children with chromosome 20 deletion are not particularly dysmorphic, but are delayed, and have some findings similar to those found in Adam. . . . In sum, Dr. Benke's conclusion was that Adam suffered a chromosonal abnormality known as a balanced translocation affecting approximately 3 percent of his cells. This genetic abnormality generally does not lead to any clinical problems; however, in 7 to 10 percent of the cases involving this type of translocation there may be genetic predisposition to decreased neurological development or birth (genetic) defect. The dispute regarding compensability Here, it is not subject to serious debate that the cause of Adam's neurologic impairment is associated with brain dysfunction or anomaly.11 What is at issue is the cause and timing (genesis) of that anomaly (encephalopathy)12 or, more pertinent to these proceedings, whether the proof demonstrates, more likely than not, that Adam's neurologic impairment resulted from an "injury to the brain . . . caused by oxygen deprivation13 . . . occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," as opposed to some other genesis. Section 766.302(2), Florida Statutes. With regard to such issue, Petitioners contend that Adam suffered an hypoxic event, consequent to the stresses of labor (placental abruption and uterine hypertonicity), which caused a microscopic brain injury, and that such injury was the cause of Adam's neurologic impairment. In contrast, Respondent contends the proof is not consistent with hypoxic ischemic injury occurring during the course of childbirth, and, therefore, Adam's disorder must be attributable to some other etiology. Respondent's view of the proof has merit. The genesis of Adam's brain anomaly To address the genesis of Adam's brain anomaly, the parties offered selected medical records relating to Mrs. Balash's antepartum and intrapartum course, as well as for Adam's birth and subsequent development. Portions of those records have been addressed supra, and further salient portions will be addressed infra. The parties also offered the opinions of five physicians as to the likely cause of Adam's birth disorder. The physicians selected by Petitioners were Paul J. Benke, M.D., a board certified clinical and biochemical geneticist; Luis J. Bello, M.D., a board certified neurologist; and, Barry D. Chandler, M.D., a board certified neonatologist. The physicians offered by Respondent were Charles Kalstone, M.D., a board certified obstetrician and gynecologist; and Lance E. Wyble, M.D., a board certified neonatologist. The medical records and other documentary proof, as well as the testimony of the physicians offered by the parties, have been scrutinized. So considered, it must be concluded that the proof does not allow a conclusion to be drawn with any sense of confidence, that, more likely than not, Adam's brain anomaly was associated with an injury caused by oxygen deprivation during labor, delivery, or resuscitation in the immediate post- delivery period, as opposed to some other etiology.14 In reaching the foregoing conclusion, neither the evidence of placental abruption nor fetal stress during labor has been overlooked. However, while the presence of such factors could lead one to assume a connection and attribute Adam's anomaly to hypoxic ischemic encephalopathy, secondary to perinatal asphyxia, an examination of the clinical data and observations suggests that such would be a speculative and unlikely explanation for Adam's presentation. In so concluding, it is observed that Adam's course pre-delivery and post-delivery was inconsistent with hypoxic or ischemic injury having occurred during the course of birth. First, the evidence documenting fetal heart rate during the course of labor and delivery, particularly when compared with Adam's post-delivery presentation, does not support the conclusion that Adam suffered an acute intrapartum event that led to an hypoxic or ischemic injury. Notably, there was only one event of fetal heart rate deceleration and overall the monitoring tape was reassuring. Under such circumstances, it is unlikely that the partial abruption Mrs. Balash suffered adversely affected fetal oxygenation during labor and delivery. Further militating against the conclusion that Adam's anomaly was caused by oxygen deprivation during the course of labor and delivery are the numerous inconsistencies between Adam's presentation and the clinical findings one would expect had he suffered hypoxic ischemic encephalopathy, secondary to perinatal asphyxia, during that period. Notably, had such an event occurred, one would reasonably expect a severely depressed infant on delivery, with an absence of respiratory effort; a depressed cord pH; and the onset of seizure activity during the neonatal period. Here, Adam was alert and active on delivery, with good respiratory effort; his Apgars were normal, as were his newborn assessments; his cord pH was normal; and no seizure activity was noted in the neonatal period. Also of note, within approximately 24 hours of birth, Adam was administered a cranial ultrasound, which proved negative for hemorrhage and edema. Edema is a clinically anticipated consequence of neurological injury, and is anticipated within 6 to 12 hours of the event. Subsequent brain studies (MRIs), at or about 11 and 18 months of age, were also read as normal or, stated differently, failed to reveal global or bilateral injury generally associated with hypoxic ischemic encephalopathy. Finally, had Adam suffered an hypoxic ischemic event during birth, one would reasonably expect damage to multiple organ systems. Included would be the kidneys, bone marrow, the liver, and the heart. Here, Adam's creatine levels and urine output remained normal throughout the neonatal period, indicating that his kidneys were not subjected to an acute hypoxic event. Additionally, Adam evidenced no myocardial injury, and his bone marrow reflected no evidence of lymphocrytosis, which one would anticipate had there been an acute hypoxic event.15 Finally, Adam's first CBC (complete blood count) at Palms West Hospital indicated an extremely elevated level of nucleated red blood cells, which would be consistent with the presence of a chronic injury, as opposed to an acute insult. Given the proof, it cannot be concluded that, more likely than not, Adam's brain disorder and resulting neurologic impairment was associated with a brain injury caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Notably, Adam's presentation at birth and his neonatal course were not consistent with an acutely acquired neurological injury, and it is improbable that he could have experienced an acute injury during labor and delivery without evidencing a single clinical symptom of such damage. Conversely, the existence of a prenatally acquired (predating labor and delivery) brain disorder (whether genetically or otherwise based) would be consistent with Adam's presentation at birth and during the neonatal period.
The Issue Whether Shannon Gillis has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.
Findings Of Fact 1. Shannon Gillis (Shannon) is the natural daughter of Robert Gillis and Josephine Gillis. She was born on January 1, 1991, at Mount Sinai Medical Center, Miami Beach, Florida, and her birth weight was in excess of 2500 grams. 3 2. The physician delivering obstetrical services during the birth of Shannon was Ellen Lebow, D.O., who was, at all times material hereto, a participating physician in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. 3. Shannon Gillis was delivered vaginally, and the extraction was quite difficult. She suffered a fractured right humerus (an arm bone) and a right Erb’s palsy, related directly to an injury to the right brachial plexus she suffered during the course of delivery. Shannon had an orthopedic consultation within the first few days of life, and her arm was casted until six weeks of age. 4. The brachial plexus injury Shannon suffered during the course of delivery was caused by a stretching of the brachial plexus nerve. The brachial plexus nerve network extends from the lower part of the neck and provides nerve distribution to the arm, forearm and hands. The brachial plexus is not, however, a part of the brain or spinal cord and, consequently, an injury to the brachial plexus is not an injury to the brain or spinal cord. Moreover, the physical impairment from which she suffers, while permanent, is not substantial in nature, and Shannon suffers no mental impairment.
Conclusions For Petitioner: Mark Greenberg, Esquire Stephen N. Zack, Esquire Suite 2800, International Place 100 Southeast Second Street Miami, Florida 33131 For Respondent: W. Douglas Moody, Jr., Esquire Taylor, Brion, Buker & Greene Suite 250 225 South Adams Street Tallahassee, Florida 32302-3189 For Intervenor, Scott Lundeen, Esquire Ellen Lebow, George, Hartz, Lundeen, D.O.: Flagg & Fulmer 4800 LeJune Road Coral Gables, Florida 33146 For Intervenor, John D. Kelner, Esquire Mount Sinai 1200 Courthouse Tower Medical Center 44 West Flagler Street of Greater Miami, Florida 33130 Miami, Inc.: For Intervenors, Ilisa Hoffman, Esquire Charles Stephens, Lynn, Klein, Goldsmith, & McNicholas M.D. and Craig One Datran Center, Suite 1500 Woodard, M.D.: 9100 South Dadeland Boulevard Miami, Florida 33156
Other Judicial Opinions A party who is adversely affected by this final order 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 one copy of a notice of appeal with the Agency Clerk Of The Division Of Administrative Hearings and a_ second copy, accompanied by filing fees prescribed by law, with the District Court Of Appeal, First District, or with the District Court Of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 10
The Issue At issue in this proceeding is whether Cassidy Taylor Shiver, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Kellie Dawn Shiver and Robert L. Shiver are the parents and natural guardians of Cassidy Taylor Shiver (Cassidy), a minor. Cassidy was born a live infant on November 5, 1996, at DeSoto Memorial Hospital, a hospital located in Arcadia, Florida, and her birth weight was in excess of 2500 grams. The physician providing obstetrical services during Cassidy's birth was Dumitru-Dan Teodoreseu, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimant demonstrates, more likely than not, that the infant suffered an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, Cassidy's neurologic condition is dispositive of the claim and it is unnecessary to address the timing or cause of her condition. Cassidy's neurologic status On January 7, 1999, following the filing of the claim for compensation, Cassidy was evaluated by Michael Duchowny, M.D., a board-certified pediatric neurologist. Dr. Duchowny chronicled Cassidy's history and the results of his examination as follows: I evaluated Cassidy Shiver on January 7, 1999. Cassidy is a 2 year old girl who comes for an evaluation of developmental problems. Cassidy was accompanied by her mother and maternal grandmother. HISTORY ACCORDING TO THE FAMILY: The family began by explaining that Cassidy's seizures are her main ongoing problem. She had her last seizure several weeks ago and is now taking phenobarbital 20 mg b.i.d. Her seizure onset was at 2 months of age. She has essentially had persistent seizures, except for a 6 month seizure free interval. Each episode lasts approximately 1 to 2 minutes and typically occurs 15 to 20 minutes after falling asleep. Cassidy experiences the rapid onset of tonic and subsequently clonic movements primarily involving the upper extremities. They are associated with loss of consciousness and foaming at the mouth. She has a period of postictal depression before regaining normal baseline status during daytime attacks. Cassidy was allegedly the product of a 32 weeks gestation, born with the birth weight of 5-pounds, 9-ounces. The delivery was by a vacuum extraction and left Cassidy with a large right cephalohematoma. There was a significant collection of blood which ultimately "ruptured". Mrs. Shiver indicated that Cassidy experienced damage to both frontal lobes which was documented on both CT and MRI studies. Despite Cassidy's stormy neonatal course, her growth and development have proceeded reasonably well. She walked at 16 months and said single words at 22 months. She is not yet potty trained. Cassidy is fully immunized, has no known allergies and has never undergone surgery. She sporadically sees physical and occupational therapist, but Mrs. Shiver's [sic] performs the therapies at home. Cassidy has made a remarkable recovery, in that her motor function is essentially within the normal range with the exception of a minor arm asymmetry and with decreased left swing. Cassidy is quite curious and socially engaging. Her vision and hearing are said to be adequate and there has been no deterioration in her overall developmental level. PHYSICAL EXAMINATION today reveals Cassidy to be alert and cooperative. The skin is warm and moist. Her hair is blonde and of normal texture. Cassidy's head circumference measures 50.2 cm which is within standard percentiles. The anterior and posterior fontanelles are closed. There are no significant cranial or facial asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. NEUROLOGICAL EXMINATION reveals Cassidy to be alert, curious and slightly overactive. She does participate in the examination fully and is socially engaging. Cassidy maintains central gaze fixation and demonstrates conjugate following movements. The pupils are 4 mm and react briskly to direct and consentually presented light. There are no fundoscopic abnormalities. The tongue and palate move well. Motor examination reveals symmetric strength, bulk and tone. There are no adventitious movements or evidence of focal weakness. The gait is stable with an arm swing that indeed shows some posturing of the left arm. This is minimal however and does not affect Cassidy's stance or balance. She demonstrates good dexterity with both hands and has a well developed fine motor coordination for age. She uses both hands in a coordinated fashion. The deep tendon reflexes are 2+ and symmetric with flexor plantar responses. There is no evidence of gait, truncal or extremity ataxia. The neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. The sensory examination is deferred. Cassidy did not speak in words or sentences at any time during the evaluation, but tends to verbalize consonants only. In SUMMARY, Cassidy's neurologic examination reveals evidence of an expressive language delay and a minor non-functional asymmetry of upper arm swing on her gait. Otherwise, Cassidy appears to be developing well and is being managed appropriately for her seizure diathesis. In Dr. Duchowny's opinion, which is credited, Cassidy is not currently substantially physically impaired and, notwithstanding any events which may have occurred at birth, is not likely to be so impaired in the future. 1/ (Respondent's Exhibit 1, pages 8, 9, and 11.)
The Issue at issue in this proceeding is whether Marston Weiss, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings 1. Petitioners, Christine Weiss and Eric Weiss, are the parents and natural guardians of Marston Weiss, a minor. Marston was born a live infant on March 17, 1995, at Baptist Medical Center, a hospital located in Jacksonville, Florida, and his birth weight was in excess of 2,500 grams. 2. The physician providing obstetrical services during the birth of Marston was Kay Holmes, M.D., who was at all times material hereto a "participating physician" in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(2), Florida Statutes. Marston's pirth 3. AC approximately 11:45 a.™M., March 17, 1995, Mrs. Weiss (with an estimated date of confinement of April 21, 1995) presented to Baptist Medical Center. History and assessment are reported in the Discharge Summary, 25 follows: [Mrs . Weiss] is 4 36 year old white female, Gravida II, para I, with estimated gestational age of 35 weeks - - > who presented Loe complaining of leaking like urine for approximately three days- She had no history of fever, chills, nausea, vomiting or diarrhea. She did have 4 recent yeast qnfection --- ° The cervix was thought to pe closed. She had positive Nitrazine and positive ferning twice. She had been on PO tocolysis since 33 weeks. past medical history revealed no chronic ‘ jllmesses -- °° Social history was negative. prenatal care revealed she did have some preterm labor and was placed on PO tocolysis at 33 weeks, and she had an amniocentesis for advanced maternal age, which was normal XY. on physical exam she was afebrile, vital signs stable. Lungs were clear. Abdomen was soft, with positive powel sounds. The fundus was nontender. sterile speculum was positive for Nitrazine, positive fern. The cervix was visually closed and thick. Scan revealed vertex, anterior placenta, normal amount of amniotic fluid. Estimated fetal weight was 6 pounds, 6 ounces. The assessment was intrauterine pregnancy at 35 weeks with xuptured membranes for possibly three days. The patient was transferred to labor and delivery. The options were those of an amniocentesis for the gram stain and FLM studies specific for the presence of infection within the amniotic fluid and, given Mrs. Weiss’ presentation on admission to the hospital (as afebrile and having 4 normal white blood count) and on delivery (as febrile, with an increasing white blood count post- partum) it is yeasonable to conclude that the anfection began OF presented following her admission to Baptist Medical Center. 6. on delivery, Marston, who was initially "@usky" in color, was pulb guctioned py the obstetrician and handed-off to an advanced registered nurse practitioner (ARNP) - Marston was” then placed in a warmer, dried, again pulb suctioned, and accorded plow by oxygen. progress notes reveal lots of clear fluid suctioned from poth nares (nostrils) - . 7. By S minutes of age, Marston's color had improved and he was noted as "pink put pale": however, grunting, flaring and retractions were also observed. Notwithstanding, good air exchange was documented. Apgar scores were noted as g8 at one minute and 9 at five minutes - g. The Apgar scores assigned to Marston are @ numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex jrritability, and color, with each category peing assigned 4 score ranging from the lowest score of 9 through a maximum score of 2. AS noted, at one minute, Marston's Apgar score totaled 8, with heart rate, respiratory 4. Mrs. Weiss was received in labor and delivery at 12:50 p.m., where she was examined by Dr. Holmes. Dr. Holmes' assessment was as follows: (Mrs. Weiss] was placed on the monitor and she was noted to have contractions every four to five minutes, which were mild. Exam at that time revealed the cervix to be a loose fingertip, 80 percent and -2. White count was 12.5, hemoglobin was 12.5. [Temperature was 98”, and external fetal monitoring revealed a normal fetal heart rate with good reactivity.] My assessment at this point was that she was at 35 weeks with prolonged ruptured ' membranes, in early labor. She was admitted and started on pitocin augmentation. She was also placed on antibiotics, and beta strep culture was obtained. The beta strep culture , was negative, RPR was nonreactive : 5. Mrs. Weiss' labor progressed steadily, and external fetal monitoring reflected a reassuring fetal heart tone throughout the course of labor. At about 9:34 p.m., dilatation was noted as complete, and at 9:47 p.™., Marston was delivered spontaneously. of note, Mrs. Weiss’ temperature at delivery was recorded at 100.8, and during her post-partum course (at 10:00 a.m., March 18, 1995) Mrs. Weiss' white count was recorded at 16.6. Also of note, pathology diagnosed " fe] xtensive desquamation of the amnionic epithelium with early acute chorioamnionitis [inflammation within the placenta and placental membranes] and funisitis [inflammation within the umbilical cord] ."? Chorioamnionitis and funisitis is a finding highly effort, muscle tone, ana reflex yrritability peing graded at 2 each, and color peing graded at o. At five minutes, Marston's Apgar score totaled 9, with heart rate, respiratory effort, muscle tone, ana reflex qrritability peing graded at 2 each, and color peing graded at 1. 9. Given his prematurity and evident respiratory distress, Marston was transferred to the neonatal sntensive care unit (NICU) at 10:00 p.m., for further observation and management - When received, Marston's lower abdomen and pilateral extremities were noted as pink, put his upper torso as pale. Grunting, flaring and retractions were again noted. Marston was accorded plow by oxygen his nares, mouth and stomach were suctioned; and he was placed under an oxihood. Chest x-ray was ordered and read as follows: cardiac monitor leads and electrodes overlie the chest- there is aiffuse haziness of the lungs. This could possibly represent retained fetal lung fluid, however, aiffuse neonatal pneumonitis should be considered 25 a possibility: No discrete focal anfiltrate jimits. No pony abnormality is seen- IMPRESSION: piffuse haziness of the lungs; possibly representing retained fetal lung fluid, however, aiffuse neonatal pneumonitis should be considered as a possibility as well. 10. Given nis pulmonary problem (aiagnosed as mild anterstitial lung disease) and continued need for supplemental oxygen, Marston remained hospitalized until April 19, 1995, when he was discharged (in "healthy/stable" condition) to the care of his parents. In the interim, there was apparently some concern that his difficulty might be genetically based; however, a chromosome study to rule out Beckwith-Wiedemann syndrome revealed what appeared to be a normal male karyotype. Marston's subsequent development 11. Marston's development following his discharge from Baptist Medical Center was apparently without significant ’ complication until at or about 14 to 16 months of age when his parents became concerned with developmental delays, and sought a consultation with Harry Abrams, M.D., 4 physician poard-certified in pediatric neurology. The results of Dr. Abrams’ initial consultation of July 15, 1996, and a summary of Marston's interviewing history were reported as follows: [Marston] is a pleasant 16 month old youngster in whom the parents have had concerns regarding his language skills as well as his inability to walk. This youngster has in the past been evaluated by Dr. Perszyk at age 1 month, Drs. Nathanson and Schaeffer because of his chronic lung disease as a neonate and most recently by pr. Hunter of ophthalmology. This youngster was born at 35 weeks gestation to a 37 year old mother. It was her second pregnancy. Birth weight was 2.8kg. The prenatal course is notable only for premature rupture of membranes. Fetal movements were good throughout pregnancy. Chromosomal study by amniocentesis revealed 46, XY. Delivery summary from Dr. Cooper He had an newborn rcu. approximate 32 I reviewed his discharge from the newborn TCU. respiratory jn that he nad mild jntexrstitial lung disease: He was sé discharge- There were no complicati When Dr. P there was circumfere ercentile ons. erszyk saw Mar ston at age 1 month a question of Beckwith Weidemann aised by pr. © this was {al v ooper- He did not ery Likely aiagnosis. normal examination and aevelopmental status at i nce was 36cm which was at the 40th . He recommen evaluations. This young of an umbi Dr. Mollit peen very jlinesses, is on not ster has 4 fur that time. The head ded no further ther medical pistory , lical hernia which was removed bY t at age 1 month. otherwise he has nealthy withou injuries oF h outine medicat * * Y concerns hav development . per the pa ilestones appeared essentially normal the child independently - He will n awkward manner but then will in a controlled manner, sit down- There is no clear hand preference noted. He will use 4 steps in a cup and a his shoes The last ¢ spoon appropri and socks. oncern is his t any serious ospitalizations. He ions. * e been the child's rent 's recall, his ately and take off Language - He has no readily iaentifiable words, though he has been having increasing babbling. He will not say momma or dadda ina specific fashion. His receptive skills are relatively preserved in that he seems to understand simple instructions and commands. There has never been a question of deterioration or loss of previously acquired milestones. He has never had any seizures. The child has had no neurodiagnostic studies to this point. However the father does state that he had skull films performed of Marston's head because of a flattened occiput. This was reported as normal . On my examination today the child's weight was 11.9kg (75th percentile), height 84cm (goth percentile), head circumference 44cm (less than the 2nd percentile). The child was very alert and attentive as I watched him play. He would reach for objects with either | hand symmetrically well and bring them to his mouth. He would transfer across the midline easily. The child's muscle bulk was within normal limits. His tone was good. DTRs were prisk at the knees and symmetrical. Ankle reflexes were 2+ and symmetrical. Plantar response was flexor bilaterally. He pulled away appropriately to light tactile stimulation. He displayed reasonable fine motor skills in that he would reach for a small object with either hand displaying a good pincer grasp. While watching him walk he would take several steps if his hands are held. When his hands were let go he would immediately sit. He was able to rise froma sitting position by grabbing on to my hand and pulling himself. His gait was slightly wide based. His toes pointed outward. No toe walking was evident. Cranial nerves II- XII were intact. Red reflex was present pilaterally. Detailed funduscopic examination was deferred. On general examination he had a flattened occiput. There were no other unusual facial 10 was soft w without rashes OF pir nout midiine defects. straight wit In summary: in whom {ther that he is no Language skills microcephaly- porderline t e Hi o mildly cognitive § t had a pro with the pé jmpressio with the longed dis rents disc nm. following: physical therapy ns at Nemo 1. consultatio evaluation and re 2. Follow-up pixrthday- At might be of value. in the interim the call. that ti 12. Marston Wa 1996. The results of that cons of the physical therapy and spe reported as follows: Loe Marston is him for th 16 months with concer walking, impaired exp now this is al s skil ncouraging that his re ndependently and has n conjunct at this point with myself @ tft s next seen by Dr- th marks. 6 month old concerns ng indepe 1dly delayed abnormal range ery good. cussion this 4 u t would speech the ini for an i and Urs commendations - fter his me a neuroimag cher Sg Abrams Atation, u ech therapy co 21 months old. Ju ressive 121 Pp naently. 1s are in th e are any conce parents should as we language His heart The abdomen skin was Spine was youngster yimarily his and he has e It is ceptive and his However, is not yet fternoon ssing the above proceed e rapy tial second ing study rns jive me a on December 16, 11 as the results nsultations, were ly borderline microcephaly. Examination was nonfocal. There was concern that he might be developing a mild static consequence to his compl encephalopathy as 4 ex perinatal course. I recommended formal physical and speech therapy evaluations. Th e speech therapist felt as if the child's expressive language was delayed to an eight to 11-month old level with receptive skills in the 14 to 18 months range. The child just had a physical therapy evaluation and it was fe it as if he was functioning at approximately the 12 to 14- month level. In discussion with the parents over the past four months, Marston has made considerable progress. They state that shortly after my visit with them he began walking independently and this has progressed steadily to the point now where he can currently run and even chase after a soccer ball. They had noted no tendency to toe walk. He will use both of his hands well with a preference to use the right. He will throw a ball and use 4 spoon to feed himself. He will help undress himself. He has been noted to build a tower of up to four cubes. His language has also progressed well and currently he has between 10 to 15 intelligible words. He continues to demonstrate, as always, good comprehension. He gets play therapy in Gymboree and Kindermusic. Recently he passed a second hearing test at the Speech and Hearing Center. On my examination today, his head measures 45 cm, which is just below the 2nd percentile. He was an alert and very happy youngster. He enjoyed playing various toys in the examining room. He displayed age-appropriate fine motor skills with a good pincer grasp. He smiled broadly. He would grab his ears when asked where his ears were. He would throw a tennis ball to his father. His muscle bulk and tone were within normal limits. DTR's at 12 his knees and biceps were 2+ and symmetrical. plantar responses flexor pilaterally. on sensory testing, he pulled away appropriately to light tactile stimulation. He was able to reach for a small wind-up toy with either hand well. His pupils were equal, round and reactive to jight. Red reflex was present pilaterally- Facial movements were symmetrical and strong- In summary this is a 21-month-old youngster who was born one month premature and developed mild interstitial lung disease secondary to his prematurity. At age 16 months he had mild motor and Language delay, put over the past five months has made considerable progress, and at this point appears to be essentially normal for his age- I recommended to the parents that they continue to observe Marston closely and interact with him as much as possible as far as reading him stories and playing with . him . The dispute regarding compensability 13. Here, there is no dispute that Marston suffers neurologic dysfunction, mental and physical. What is at issue is whether the cause (etiology) of such aysfunction is, more Likely than not, attributable to "an injury to the prain.-- caused by oxygen deprivation toe occurring in the course of labor, delivery, Of resuscitation in the immediate post-delivery period," and whether that dysfunction, mental and physical, may reasonably be described as "permanent and substantial," as required for coverage to be afforded under the plan. Section 766.302(2), Florida Statutes. 13 14. With regard to such issues, Petitioners are of the view that Marston's medical history is consistent with a prain injury caused by oxygen deprivation occurring in the course of labor, delivery, Or resuscitation in the immediate post-delivery period which rendered Marston permanently and substantially mentally and physically impaired. In contrast, Respondent is of the view that the proof is not consistent with an acute brain injury caused by oxygen deprivation during or immediately following birth and that, in any event, Marston has not been shown to be permanently ’ and substantially mentally and physically impaired. The etiology and timing of Marston's neurologic dysfunction . 15. To address the etiology and timing of Marston's neurologic dysfunction, the parties offered records relating to Mrs. Weiss' antepartum and intrapartum course, as well as for Marston's birth and subsequent development . Portions of those records have been addressed supra, and further salient portions will be addressed infra. The parties also offered the opinions of a number of physicians to address such issues. 16. The medical records and other proof, including the testimony of the physicians offered by the parties, have been carefully considered. So considered, it must be concluded that Marston's clinical history and neurologic presentation are most consistent with periventricular Leukomalacia (PVL), also known as 14 a __ Neonatal White Matter pisease (NWMD) , the pathological features of which may include aiffuse cerebral white matter injury occasioned by nypoxic-ischemic insult. 17. pertinent to this case, the pathogenesis of PVL is related to several interacting factors present jn this case (including che yulnerability of cerebral white matter of premature newborns, caraio-respiratory disturbance, and maternal intrauterine infect ion-inflammat ton and cytokine release) that are postulated to result in ischemia to the periventricular region and injury to the particularly yulnerable cerebral white matter. Notably, Marston's history post-delivery, with developmental nypogrycemia and progressively jncereasing pase excess levels, provides clinical evidence of anaerobic metabolism, and the Likelihood of pnypoxic- ischemic jnsult .* 18. While the proof supports the conclusion that Marston's neurologic aysfunction is associated with a prain injury caused by oxygen deprivation (nypoxic-ischemic insult), it does not demonstrate (or allow @ conclusion to be drawn with any sense of confidence) that, more Likely than not, such prain injury was caused by oxygen deprivation Loe [which] oceurr [ed] in the course of labor, delivery, or resuscitation in the immediate post-delivery period." Rather, it appears more likely, given the pathogenesis of PVL, as well as Marston's clinical course, any such insult occurred subsequent to the immediate post- 15 a delivery period, and it would be purely speculative to conclude otherwise. 19. ‘In reaching such conclusion, it is observed that Marston's course pre-delivery and post-delivery was inconsistent with acute hypoxic or ischemic injury having occurred during the course of Labor, delivery, Ot resuscitation. First, the evidence document ing fetal heart tone from admission through the period of labor and delivery does not support the conclusion that Marston suffered an acute intrapartum event that led to hypoxic or ischemic injury. To the contrary, fetal monitoring reflected a reassuring fetal heart tone throughout the course of labor, and Marston's delivery was spontaneous and uncomplicated. ‘ 20. Further militating against the conclusion that Marston's impairments resulted from an acute hypoxic or ischemic injury during the course of birth or shortly thereafter are the numerous inconsistencies between Marston's presentation and development , and the clinical findings one would expect had he developed encephalopathy, secondary to acute perinatal asphyxia during that period. For example, Marston's Apgars were within the normal range, and he did not evidence seizure activity or any other neurologic problems in the neonatal course. Notably, it is unlikely that Marston would have experienced an acute event during labor and delivery, OF immediately thereafter, without evidencing clinical symptoms of such damage. 16 sical prese ntation Marston's current mental and phy Pp ling of the claim 21. on for compensat april 12. 2000, ion, Marston wa a physician who holds poard special compe tence in pediat following the s examined by Mi certification i rics, poard cer and poard cert Ei chael Duchowny, M.D., n neurology with tification in pediatrics. ification in c Linical neurophysiology - The results of that exami HISTORY BCCORDING TO DR. Marston is a 5 yea has longstanding p Loe He was - Abrams at 4 year © sugge imaging © Marston has gon language delay, word sentences. Montessori with other © however quit attention an skills. al e incr Marston's health h peen exposed t There has been no milestones - Marston is significan surgery fo t allerg y repair PHYSICAL irocumfer he and P The head ¢C is below t EG studies e on to hnildren. fully jmmuniz EXAMINATION rev nation were reporte x old ri roblems jin his evaluated by f age. vision a sted and were no Ww thoug e is enrolled in re he appa His activi eased and he has a diminished concentra as otherwise b ic or infectiou regression in hi ed and has He has un umbilica ies. of an 1 eals an al old boy. nt 46- ithout 1 ce 48 centile for ag 5 year en er 17 een good. tion and ha d as follows: pr. nd hearing rmal. No poor tion He s not s agents. s no dergone hernia. t, put The inches cutaneous jentigines. .4 cm which er approximating the 50th percentile for age 26 month controls. The neck is supple without masses, thyromegaly or adenopathy. There are no dysmorphic features or neurocutaneous stigmata. The chest is clear and there is no palpable abdominal organomegaly. Peripheral pulses are symmetric and intact. NEUROLOGIC EXAMINATION was difficult to perform due to poor cooperation. Observation revealed Marston to range around the room with a wandering attention span and attention to various toys and inanimate objects. His social interactions seemed limited, although he would smile and attend on occasion. He seemed fascinated with a number of the mechanical toys. There was a paucity of language and the speech sounds were poorly . articulated. There was central gaze fixation with conjugate following movements. A brief fundoscopic examination was unremarkable. The pupils were 3 mm and briskly reacted to direct and consensually presented light. There were no facial asymmetries. There were frequent tongue thrusting movements, but no drooling. Motor examination revealed mild generalized hypotonia in a symmetric distribution. The deep tendon reflexes were 1 to 2+ bilaterally and plantar responses were downgoing. The gait appeared to be stable and there was some overflow posturing of the arms. The sensory and coordination examinations were deferred. The spine was straight without dysraphic features. Neurovascular examination revealed no cervical, cranial or ocular bruits and no temperature or pulse asymmetries In summary, based on such examination, it was Dr. Duchowny's opinion that Marston evidenced developmental deficits in expressive language, attention, behavior, and socialization skills, in addition to a high activity level and microcephaly. 18 It was also pr. puchowny 'S opinion that, given such findings. Marston was at risk for significant cognitive deficit. in contrast, pr. Duchowny observed that Marston evidenced no significant gross motor compromise (he walked well, and could run and jump), and that his gross motor development was most Likely at or nearly at age level. 22. At the final hearing held on February 27, 2001, pr. Weiss also offered his opinion regarding his son's neurologic presentation. That opinion was initially conclusionary in nature, as evidenced by the following question posed by his counsel and Dr. Weiss' response: Qg. Doctor, given your experience and training as 4 medical doctor, given your experience in this case with your review of the medical records, observation of your child, consultations with other clinicians in the field, do you have an opinion within reasonable medical probability as to whether or not Marston was permanently and substantially mentally and physically impaired, if he is as 4 result of this insult, which we've presented to NICA for hearing today? an. .--:t think he is- rhereafter, the following examination ensued by NICA (recross) and petitioners’ counsel (redirect) regarding pr. Weiss’ qualifications to render such an opinion, as well as the factual predicate for his observations: 19 RECROSS EXAMINATION * * * Q. Doctor, ... [y]ou don't hold yourself out as a pediatric neurologist or a pediatrician in the practice of medicine, do you? A. No, I do not. Q. You don't hold yourself out as an obstetrician with respect to the treatment of pregnant women? A. No, I do not. Q. You do not render opinions with respect to care for neonates or young children in the course of your practice? A. I do care for neonates and young children in my practice. Q. With respect to neurological ailments, you do not, do you? A. I do not. Q. And you don't render opinions to anybody with respect to -- in the course of your general medical practice people don’t come to you to evaluate their children or infants to determine whether or not they have impairments, do they? A. No, they do not. * * * Q. And Marston not only can walk but runs and jogs with you? A. That's part of his therapy. He does well, he does okay. Q. Up to two miles a day? 20 A. pivided up to two miles a day- Q. and Marston can throw 4 pall in the air and hit it? A. Yes. he can. Q. Kick a goccer pall? ap. Yes, he can. Q. press nimsel£? a. No, he can't. g. He can manipulate? a. He has ~~ he can manipulate gross things. He has trouble nolding 4 pencil or picking up ' small items. _ Is it documented that he can eat with 4 fork, that he can puild a stack of plocks? ’ aA. it is REDIRECT EXAMINATION * * * Q. Now, poctor, jn follow-UP to these questions, jyet's talk about first the physical. you were asked apout his ability impairments that Marston does have, you mentioned fine motor coordination. p. He has 4 funny gait, you know when he walks he does not walk normally - He has mostly coordination problems. He can throw a pall but airectional problems. He has trouble with fine things, he can't button puttons, he can't zipper zippers: picking up small opjects off the ground and things 1ike chat. 21 Q. I have to ask you this for the record. What has been the duration of these problems? A. The duration of these problems are becoming more apparent as he grows older. As with any evolving child the conventional wisdom is let's wait and see, let's wait and see. Because there is a range of when children acquire certain abilities * * * Q. Commenting on those milestones or those areas, has Marston met or reached the, I guess what we might call normal milestones for physical abilities -- I'm staying on the physical right now -- that would be expected of a child of his age as you have been able to observe them? A. He has reached some and missed others Q. For the record, I asked about duration. These physical problems that he has displayed to you, have those problems in large part been of a duration of six months or more during a continuous period that you have observed? A. Correct Q. .. . Have you noticed mental impairment in your child? A. Yes, I have. Q. Can you give us a prief rundown on the nature of what you have observed in the child? BR. I think that there are several things. First, without a doubt he has attention deficit and has been diagnosed through neuropsychologic testing as having attention deficit disorder 22 Things that a normal five oF six-year old you can ask, you know, he doesn't do simple things. Go get me the pook. Turn off the tv. Certain commands that it just doesn't happen. Letters, numbers, concepts of on . off, before, after, in, out, the concept of colors, he has no concept, red from green, white from plack, yellow from blue. Numbers; is there l, is there 2, is there 3? He has no concept of that, of abstract things that you would expect a five-year-old to know. Q. Speech, have you noticed anything? A. Speech is correlated with cognitive function. His speech is markedly delayed. It is the one universal thing that has tied all of this together over time. If you look at some of the early literature on mental retardation they always study speech. That's one of the first ways you pick up cognitive problems. . I think the speech pathologist's evaluation would be better than mine. Right now, very jimited language to the ability where he has difficulty communicating. He can't come UP to you and ask you a question or interact with you on a conversational pas[ils. Qg. Can you tell us historically when was it that he first began forming one word, in other words, one word utterances? And just so we can save time, one word utterances, three word clusters, sentences, can you just comment on the timing historically? A. Historically, you know, If don't have the records in front of me, and to be honest f would hate to comment on the time, only to tell you to be honest is that they were markedly delayed. Even at the age of 3 years he was still doing one word utterances. He didn't put two words together. He has been in speech therapy since the age of two and a ao 23 half. It is only relatively recently that we've had two word utterances and three word utterances, and very rudimentary sentences. Q. Writing the formation of letters, numbers, words or sentences, can you comment on that? What is your observation? A. Grossly abnormal. We've been working with him, you know, my wife has been working with him for two years. He can hold a pencil, I mean the movement is from the shoulder to write. He can make a T, a big T. He can't really write his name on a piece of paper or do some of the beginning functions of kindergarten or preschool age. Q. How about reading skills, as far as identification of letters, formation of the ability to read words? A. The printed word is grossly abnormal. I can't tell you, I'll be honest, I'ma parent I compare my other children, and he's clearly behind. I see other children that are reading. Whether everybody who enters kindergarten is a reader, I don’t know. THE COURT: They're not. THE WITNESS: Yes, they're not, I would assume. But he's not a reader and that's one of the things that we're working with him on. and that's one of the problems that we see. * * * Q. Behaviorally, have you noticed any problems or disabilities that you have linked with this organic injury to the brain which we've described? A. Attention deficit disorder. Q. Doctor, are there any other, I know it is not an exhaustive list, but are there any other remarkable physical or mental 24 impairments which you have noticed within your child other than the ones you have discussed already with us? A. No. Just that if you look at the literature there are plenty of papers on when this microcephaly is correlated with mental yetardation, that in and of itsel£ is one of the most preeminent findings in cognitive defects. small brains equal mental retardation. I think that is going to be his biggest pexmanent substantial deficit. He won't be able to speak well. And that his intellect will be not of the nature that allows him to do the activities of daily life. That somebody will have to take care of him for the rest of his life. Qo. dust a few other quick questions. Balance, can you comment on ~~ let's go pack to the physical. Have you noticed an impairment in his balance, that has occurred for a period of time for in excess of six to . twelve months for a continuous period of time. A. He has aifficulty with balance. He can't stand on one leg. Q. And are there other activities have you observed, where he has shown aifficulties with his palance? aA. You know, just in play. You know, falling down, things like that. Q. For instance, riding a pike or riding a pike with training wheels, has he exhibited an impairment OF problems with doing those type of things? A. He cannot ride a pike without significant training wheels and help 23. At the conclusion of the final hearing on February 27, 2001, the record was left open to permit Petitioners an 25 opportunity to offer deposition testimony from a physician of their choice to address the issue of permanent and substantial mental and physical impairment . Petitioners elected Harry Abrams, M.D., a poard-certified pediatric neurologist, who had previously examined Marston on July 15, 1996, and December 16, 1996, and who, at Petitioners’ request, reevaluated Marston on March 7, 2001. On deposition (Petitioners' Exhibit 10), Dr. Abrams offered the following observations with regard to his examination of March 7, 2001: DIRECT EXAMINATION * * * Q. Can you describe your exam and findings, please? A. At that time, he was almost six years of age. The concerns were to his development ; specifically his cognitive skills and his fine motor skills. His examination was relevant for the presence of microcephaly, mild hypotonia, low muscle tone, and he had mild impairment in his fine motor skills. Q. You specifically noted a cognitive impairment? A. That was the description based upon the parents’ history that he was having problems with doing what would be routine activities for a five or six year old, such as counting and coloring that he could not do by -- that was by the history ~~ historical. 26 Q. You also noted abnormalities in his fine motor skills? aA. That was mainly historical, put also on examination he did have some mild problems with his fine motor skills as evidenced by Lifting coins off the ground, and just fine motor skills evident on examination. qg. It was your recommendation to have him tested by occupational Therapy? aA. That was one of my recommendations . Q. Was he tested by occupational Therapy? A. I do have an evaluation from March 2and from an occupational therapist, Karen -- I can't read her last writing -~ at Baptist Medical Center at Beaches, Yes: sir. Q. Can you describe what she found? . aA. she describes in her summary that Marston was functioning at approximately a four-year- and-two-month level as it compared to his chronological age of six years. That was her main finding. g. pid she administer 4 specific motor skills test to him? A. She describes administering -- I'll have to spell this for the court reporter ~~ what's called the Bruininks, p-r-u-i-n-i-n-k-s: second word is Oseretsky, o-s-e-r-e-t-s“k-¥, test of motor proficiency: Q. And this is how she came to her conclusions? AR. Yes. g. With your knowledge of Marston and using the report from the pediatric occupational therapist, are you able to conclude within 27 reasonable medical probabilit substantial physical impairme A. I think substantial is a y that he has a nt? subjective term, I'm not sure how that's defined. He is at an age of six functioning from a physical perspective of a four-year-ol d level. I think that is certainly a moderate disability. Q. Well, I don't know how -- due to your exam and what you've found out, is there a substantial mental impairment A. Again, historically he is a cognitive level of about a level, and, yes, that's a sig impairment. Q. Within reasonable medical this mental impairment perman) ? functioning at four-year-old nificant mental probability, is ent? A. Though I can't predict the future with significant problem for the f future. * * * Q. ... Anda follow-up que 100 percent certainty, I think this will be a oreseeable stion with the physical impairment: Is his physical impairment permanent? aA. I think it's -- I hope that as he matures, many of his skills will become much more appropriate for his age. you with absolute certainty t I cannot tell hat he will never be completely pack to normal. Q. so it could be permanent? A. Yes. * * * Q. I don't mean to belabor t want to ask this question alt 28 his point, but I ogether. Within reasonable medical probability, do you pelieve Marston Weiss has a4 substantial mental and physical impairment which is permanent? A. I have problems with the use of substantial not knowing precisely what the, you know, medical, legal definition of that word is. I think he certainly has significant impairments with his fine motor skills and his cognitive skills. Tf think that's the pest I can put it. * * * CROSS EXAMINATION * * * Qg. Now, you also described jn your own words , that Marston had a mild impairment of his fine motor skills based on your examination, or was that primarily pased on history, also? pa. it was both. Q. And pediatric neurologists generally use terms to describe impairment levels as mild, moderate and severe; is that correct? zn. We tend to. g. Do you use those terms in your practice? a. Yes, sir. * * * Qo. --- 38 the rule generally with mild {impairment that rehabilitation and improvement seems to be the more probable course as opposed to deterioration when you're dealing with static encephalopathy? 23 A. There * * * should be no regression, yes, sir. Q. Do you think that essentially, based on your knowl more likel edge and experience, would be the y outcome, that is, improvement? * * * A. In general, patients with mild fine motor skills wil 1 gradually improve as they mature. Most of them become quite normal, but most are very f activities considerab 24. Giving due proof, including the be concluded that, w substantially mental substantially physic reveals that the phy unctional and can perform all their of daily living without le difficulty. regard to the medical records and other physicians offered by the parties, it must hile he may be considered permanently and ly impaired, Marston is not permanently and ally impaired. To the contrary, the proof sicians most knowledgeable in the area (Doctors Abrams and Duchowny) share strikingly similar and consistent opinions regarding the nature of Marston's presentation, and concur that he is not permanently and substantially physically impaired.® Dr. Weiss' observations do not compel a different conclusion.
Conclusions For Petitioner: Joseph J. Slama, Esquire Krupnick, Campbell, Malone, Roselli, Buser, Slama, Hancock, McNelis, Liberman & McKee, P.A. 700 Southeast Third Avenue courthouse Law Plaza, Suite 100 Fort Lauderdale, Florida 33316 For Respondent : w. Douglas Moody, Esquire McFarlain & cassedy, P.A. 215 south Monroe Street, Suite 600 Post Office Box 2174 Tallahassee, Florida 32301
Other Judicial Opinions A party who is adversely affected by this final order 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 one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. 39
The Issue The issue in this case is whether Reshnaya E. Francois suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Plan.
Findings Of Fact Reshnaya E. Francois was born on January 31, 2016, at Broward Health, in Coral Springs, Florida. Reshnaya weighed in excess of 2,500 grams at birth. The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records of Broward Health submitted with the Petition. At all times material, both Broward Health and Dr. Wajid were active members under NICA pursuant to sections 766.302(6) and (7). Reshnaya was delivered by Dr. Wajid, who was a NICA- participating physician, on January 31, 2016. Petitioners contend that Reshnaya suffered a birth- related neurological injury and seek compensation under the Plan. Respondent contends that Reshnaya has not suffered a birth- related neurological injury as defined by section 766.302(2). In order for a claim to be compensable under the Plan, certain statutory requisites must be met. Section 766.309 provides: The Administrative Law Judge shall make the following determinations based upon all available evidence: Whether the injury claimed is a birth- related 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 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 § 766.302(2). Whether obstetrical services were delivered by a participating 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 resuscitation in the immediate postdelivery period in a hospital. How much compensation, if any, is awardable pursuant to § 766.31. If the Administrative Law Judge determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at birth, she or he shall enter an order . . . . The term “birth-related neurological injury” is defined in Section 766.302(2), Florida Statutes, as: . . . 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 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 or congenital abnormality. (Emphasis added). In the instant case, NICA has retained Donald Willis, M.D. (Dr. Willis), as its medical expert specializing in maternal-fetal medicine and pediatric neurology. Upon examination of the pertinent medical records, Dr. Willis opined: The newborn was not depressed. Apgar scores were 8/8. Decreased movement of the right arm was noted. The baby was taken to the Mother Baby Unit and admission exam described the baby as alert and active. The baby had an Erb’s palsy or Brachial Plexus injury of the right arm. Clinical appearance of the baby suggested Down syndrome. Chromosome analysis was done for clinical features suggestive of Down syndrome and this genetic abnormality was confirmed. Chromosome analysis was consistent with 47, XX+21 (Down syndrome). Dr. Willis’s medical Report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: In summary: Delivery was complicated by a mild shoulder dystocia and resulting Erb’s palsy. There was no evidence of injury to the spinal cord. The newborn was not depressed. Apgar scores were 8/9. Chromosome analysis was consistent with Down syndrome. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period. The baby has a genetic or chromosome abnormality, Down syndrome. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis. The opinion of Dr. Willis that Reshnaya did not suffer an obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery, or the immediate post-delivery period is credited. In the instant case, NICA has retained Michael S. Duchowny, M.D. (Dr. Duchowny), as its medical expert in pediatric neurology. Upon examination of the child and the pertinent medical records, Dr. Duchowny opined: In summary, Reshnaya’s examination today reveals findings consistent with Down syndrome including multiple dysmorphic features, hypotonia, and hyporeflexia. She has minimal weakness at the right shoulder girdle and her delayed motor milestones are likely related to her underlying genetic disorder. There are no focal or lateralizing features suggesting a structural brain injury. Dr. Duchowny’s medical report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: Neither the findings on today’s evaluation nor the medical record review indicate that Reshnaya has either a substantial mental or motor impairment acquired in the course of labor or delivery. I believe that her present neurological disability is more likely related to Downs syndrome. For this reason, I am not recommending that Reshnaya be considered for compensation within the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Duchowny. The opinion of Dr. Duchowny that Reshnaya did not suffer a substantial mental or motor impairment acquired in the course of labor or delivery is credited.
Findings Of Fact Testimony was received from the claimant and Dr. Lever, his psychiatrist. The deposition of his orthopedic surgeon, Dr. Terheyden, was received together with the records of his various hospitalizations. The deposition of Donald Jones, Personnel Director, was also received. Generally, the evidence showed that prior to 1967, the claimant had injured his back. The claimant testified that this injury occurred in 1963 on the job. Dr. Lever testified that he first began to treat the claimant in 1967 for a condition he later diagnosed as schizophrenia paranoid type reaction and that he had treated him off and on since 1967 for this condition. Dr. Lever testified and his records state that the claimant's mental condition was caused by the childhood deprivation of affection but that the pain from the 1963 back injury had interfered with the claimant's personal relationships with co-workers and his sexual relations with his wife causing the schizophrenic reaction to manifest itself. The claimant was hospitalized for nine days in 1967 and eighteen days in 1970 for psychiatric treatment. The claimant was able to return to work between hospitalizations under drug therapy prescribed by the doctor. This enabled the claimant to function although with occasional episodes of psychotic reactions caused by personal crises which had resulted in his hospitalizations as indicated. Dr. Lever testified that he had last seen the claimant several days before the hearing. Dr. Terheyden's deposition and records of his hospitalization indicated that the claimant first was treated in 1964 for back problems. This treatment continued until 1967 when surgery was performed on the claimant's back. There was no indication from Dr. Terheyden's records or deposition what caused the initial injury. Dr. Terheyden also treated the claimant for injuries to his back in 1970 and 1971, performing a second operation in 1972 on his back. Dr. Terheyden's deposition indicated that the claimant could not physically perform the duties he had performed for the school board after his last operation. The claimant testified that he had first injured his back in 1963 but that it was not reported to his employer although he had told the tile setter for whom he worked directly. Several days after the initial injury, he went to the doctor and had remained under his treatment until his 1967 operation. The claimant indicated that no report of injury had been filed with the employer because the tile setter for whom he worked had discouraged reporting the injury. However, upon examination on this point, he could not offer any satisfactory reason why the report was not filed or why the tile setter would have discouraged filing the report. The records and deposition of Donald Jones, together with Exhibit 3, which lists the reports of on-the-job injuries indicate that the claimant filed reports of on-the-job injuries in 1961, 1964, 1968, 1969, 1970, and 1971. These records and testimony do not indicate any report filed in 1963. These records indicate that the claimant missed substantial periods of work after the 1970 injury not related to the psychiatric treatment listed above. Based upon the foregoing, the Hearing Officer makes the following findings of fact: The claimant had a back injury prior to 1967 which required surgery in June of 1967. Said injury caused a schizophrenia paranoid type reaction to manifest itself but did not cause the claimant's mental disease. Although the claimant testified that said injury occurred on the job in 1963 but was not reported, this testimony was inconsistent with the reports of injuries on the job in 1961, 1962, and 1964 contained in Exhibit 3. The claimant's failure to report the 1963 injury was not adequately explained by the claimant. Considering the interest of the claimant in the outcome of the case, the lack of any separate evidence to support his testimony, the reports of injury for the years preceding and following, and the inability of the claimant to explain this apparent discrepancy, there is insufficient believable evidence to support a finding that the 1963 injury was job related. Subsequent to the 1967 operation and the treatment for schizophrenia, the claimant returned to work and worked until 1972 rendering useful and efficient service and receiving incremental raises during these years. During the period of 1967 to 1972, the claimant injured his back in January 1970, July 1970, and January 1971, all of which occurred or arose out of the performance of regularly- assigned duties on the job. These injuries necessitated a 1972 operation to claimant's back. Although the claimant had pre-existing physical and mental ailments, it was the 1970 and 1971 injuries and 1972 operation to the claimant which prevented him from performing the duties which he had performed for the school board.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the claimant, Donald M. Hines, receive in- line-of-duty benefits. DONE and ENTERED this 18th day of December, 1975, at Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1975. COPIES FURNISHED: L. Keith Pafford, Esquire Division Attorney Division of Retirement 530 Carlton Building Tallahassee, FL 32304 Donald Feldman, Esquire FELDMAN & ABRAMSON, P.A. 402 Ainsley Building Miami, FL 33132
The Issue The issue in this case is whether Ailani Sanchez suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan).
Findings Of Fact Ailani Sanchez was born a live infant at 5:46 a.m., on October 29, 2015, at Lakeland Regional Medical Center. Ailani was a single gestation, weighing 2,950 grams at birth. Ailani was delivered via cesarean section for suspected abruption/velamentous insertion of cord by Dr. Zollicoffer who was a NICA participating physician on October 29, 2015. Ailani's Apgar scores were 2/4/4. Upon delivery, she was floppy and pale and had no respiratory effort. Pulse oximetry was within target saturations for age and her heart rate remained 100 or greater. She was intubated at seven minutes of age and transferred to the Neonatal Intensive Care Unit (NICU). No seizures were noted. Ailani had increasing spontaneous respiratory effort and whole body cooling was started prior to her transfer to St. Joseph's Hospital NICU on October 29, 2015. Upon admission to St. Joseph's Hospital on October 29, 2015, Ailani was lethargic with decreased reactions to stimuli, but appeared pink and well perfused. Neurologically, she was noted to be improving; she was breathing spontaneously and moving all extremities to stimuli. After a complicated newborn hospital course, Ailani was ultimately discharged from St. Joseph's Hospital on January 6, 2016. At the time of her discharge, she was noted to be feeding by mouth and was overall gaining weight. Prior to her discharge, an EEG on October 30, 2015, showed seizures predominantly on the right side of her brain and generalized brain dysfunction. A brain MRI obtained on November 5, 2015, revealed restricted diffusion related to acute infarction in the right temporal occipital region with laminar necrosis. Additional laminar necrosis in the frontal lobes and insular cortex bilaterally was noted. An EEG on November 16, 2015, was consistent with nonspecific cerebral dysfunction with occasional sharp waves in the temporal parietal regions bilaterally with no evidence of seizures and irregular slow waves with slightly more predominance to the right. Ailani was seen for a newborn visit by her pediatrician, Dr. Bou Salvador, on January 7, 2016. Nutritionally, she was noted to be breast feeding adequately, with supplements with formula. Developmentally, she was noted to have equal movements of all extremities and follow midline. She responded to a bell and was able to lift her head while lying on her stomach. Examination of her spine, extremities, and peripheral pulses were all normal. Neurologically, she was reportedly normal, with normal strength, tone, and reflexes reported. On January 19, 2016, Ailani was evaluated at All Children's Outpatient Care upon referral by St. Joseph's Hospital secondary to hypoxic ischemia. The occupational therapist's impression included decreased bilateral coordination, decreased developmental milestones, decreased gross motor skills, decreased play skills, decreased strength, and fine motor deficits. Skilled therapy was identified to have the potential to improve her functional level in the areas of manipulation. It was recommended that Ailani undergo 30 minutes of occupational therapy once a week for six months. Her prognosis for achieving goals established by her therapist was noted to be excellent. On February 4, 2016, Ailani was evaluated for participation in, and deemed eligible for, the Early Steps Program. On February 18, 2016, Ailani was evaluated by Dr. Qureshi at Kids Neurology. Developmentally, she was noted to smile and coo and focus. It was noted that Ailani had three seizures at the age of one day old, but none since. At this time, she was taking Keppra and Phenobarbital, from which she was being weaned. A sleep deprived EEG, obtained since the last visit, was normal. She was noted to be doing very well neurologically. Her physical examination revealed she was lifting her chest and head with her arms extended. Early head control with bobbing motion was noted. She was noted to say "aah," smile, and follow pass midline. The plan noted at this time was to continue to wean and discontinue Keppra and Phenobarbital. Ailani was again seen by Dr. Bou Salvador on March 4, 2016, for her four-month well visit. Nutritionally, she was noted to be feeding with formula adequately. She had been started on solids for one to two feeds. Developmentally, she was noted to squeal and laugh. She was able to follow 180 degrees. She turned to void and was able to hold her head up 90 degrees while lying on her stomach. She was able to sit with support with her head up. She was able to pull to sit with no head lag. She could bring her hands together and had no persistent fist clenching. Her physical examination was normal. Her neurological examination was also normal, with normal strength, tone, and reflexes reported. Ailani was again seen by Dr. Bou Salvador on May 4, 2016, for her six-month well visit. Nutritionally, she was noted to be breast feeding adequately. Developmentally, she was noted to be social and smiling responsively. Adaptive equal movements of all extremities and the ability to follow midline were noted. She could respond to a bell and was able to lift her head while lying on her stomach. A physical examination was normal. A neurological examination was also normal, with normal strength, tone, and reflexes reported. On May 24, 2016, Ailani returned to Dr. Qureshi at Kids Neurology. It was noted that Ailani had been weaned from her seizure medication and had had no seizures for the last three months. She was noted to be doing very well neurologically. Physically and developmentally, she was noted to have no head lag, to be rolling over, to have her chest up in a prone position, to be trying to crawl, to be lifting her head, and to be sitting briefly unsupported. She was also noted to be leaning forward on her hands, engaging in bounce activity, supporting most of her weight, reaching out and grasping large objects, transferring from hand to hand, babbling, enjoying mirror, and using polysyllable sounds. She was noted to be feeding herself. Dr. Qureshi reported that Ailani was in occupation therapy but that it was on hold since her evaluation was "pretty unremarkable." Ailani was noted to be progressing well for her age and was receiving Early Steps intervention once a week at home. She was given a prescription of Phenobarbital for use only if a seizure occurred. On June 18, 2016, Ailani was seen by Dr. Frances Arrillaga at Pediatric Cardiology Associates for a cardiology consultation secondary to a history of pulmonary hypertension, and an echocardiogram that showed a patent foramen ovale (PFO). Ailani's mother reported that since her discharge from St. Joseph's, she was doing well. Cyanosis, difficulty breathing and unexplained diaphoresis and feeding problems, were denied. An echocardiogram on this date showed a PFO, with otherwise normal anatomy. There were normal right ventricular (RV) pressures, normal left ventricular (LV) size and function. No cardiovascular restrictions were given and she was told to return in one year for further follow up. Ailani was again seen by Dr. Bou Salvador on August 4, 2016, for her nine-month well visit. Nutritionally, she was reported to be feeding adequately. She was feeding 2 to 3 varieties of solid foods with no problems and was starting with a cup for water and juice. Developmentally, she was reported to be playing pat-a-cake and looking for fallen objects. She could bang two cubes in her hand with thumb-finger grasp. She could say "dada" and "mama" and walk while holding on. She was also noted to be crawling and standing momentarily. Her physical and neurological examinations were noted to be normal, with normal strength, tone, and reflexes noted. An August 22, 2016, a progress note from Early Intervention reflects that Ailani was babbling two syllables together, was happy, pulling to a stand and cruising along furniture, and was responding to her name. Attendance at Early Intervention was noted to be consistent and once a week. Ailani was again seen by Dr. Bou Salvador on November 3, 2016, for her 12-month well visit. Nutritionally, she was noted to be eating two to three varieties of solid foods with no problems and was feeding herself finger foods. Developmentally, she was reported to be playing pat-a-cake and drinking from a cup. She was able to bang two cubes held in her hands with thumb-finger grasp. She was saying "mama" and "dada," imitated speech sounds, could say three words other than "mama" and "dada," and understood "no." She was able to walk while holding on, and was reported to stand alone and walk well. A physical examination revealed normal extremities. A neurologic examination was also normal, with normal strength, tone, and reflexes reported. On November 21, 2016, Ailani returned to Dr. Qureshi at Kids Neurology. It was noted that Ailani had been weaned off medications six months earlier and had no seizure activity since. She was noted to be doing very well. It was noted that no therapy was being provided at this time, although she was evaluated for occupational therapy but did not qualify for it. Developmentally, she was noted to be walking with one hand held, rising independently, taking several steps, getting to sitting, pulling to stand, standing for two seconds, saying a few words besides "mama" and "dada," playing ball game, making postural adjustment to dressing, waiving "bye bye," and indicating what she wants. She was noted to have pincer grasp, releasing objects to others when grabbed, and banging two things. Dr. Qureshi noted "she is doing amazing right now." A December 24, 2016, emergency room record (for a cough/choking episode after eating a piece of Dorito) from Florida Hospital Tampa reflects that Ailani had not had seizures since birth, and had been off Keppra and Phenobarbital for almost a year. A physical examination revealed an active, well- developed, and well-nourished child. Neurologically, she was noted to be awake, alert, and interacting with family and staff. She was also noted to be active and playful. An Early Intervention progress note from February 15, 2017, reflects Ailani had age-level play skills, could communicate using vocalizations and some single words, could follow routine directions, and was independent with walking and floor transfers. Good progress was noted to be made, many goals were reported met, and the parents decided to reduce services to one time per month. On January 30, 2017, Ailani was reevaluated for participation in Early Steps. It was noted that Ailani's mother had no concerns at this time. The report notes that Ailani liked the slide, liked to kick the ball, liked to play with her siblings and cousins, and that she is very curious. No hearing or vision concerns were noted. It was reported that many of her goals had been met, and that Ailani was using a variety of vowels and consonants, identifying at least three family members when named, that she was saying a variety of words, and was using a sign for "more food." Ailani was noted to still be eligible for Early Steps secondary to her diagnosis of hypoxic ischemic encephalopathy. Ailani was seen by Dr. Bou Salvador on March 28, 2017, for her 16-month well visit. She was noted to have good eating habits and a good appetite. No mealtime problems were reported, and she was noted to be eating solid foods with no problems. She was noted to have socially appropriate behavior for her age. She was talking well and was able to balance on one foot for five seconds, could throw a ball overhead, and pedal a tricycle. Her orthopedic and neurologic examinations were normal, with normal strength, tone, and reflexes reported. At the request of NICA, Donald C. Willis, M.D., who specializes in obstetrics and gynecology and maternal-fetal medicine, reviewed the medical records included in the Stipulated Record as Joint Exhibits A through G. In his report dated August 2, 2017, which was admitted into evidence without objection, Dr. Willis noted in pertinent part that Ailani's mother was cramping when she presented to the hospital, and was three centimeters dilated with suspected amniotic membranes ruptured. Contractions were noted to be occurring occasionally. Medical records indicated the presence of late decelerations on admission, which progressed to bradycardia, for which an immediate Cesarean section was recommended. Dr. Willis observed that Ailani was depressed at birth with Apgar scores of 2/4/4, and that cord blood gas was abnormal with a pH of only 6.97. He further noted that Ailani was floppy, pale, and had poor perfusion; that bag and mask ventilation was initiated, followed by intubation for continued respiratory distress; that hypotension was present and required IV fluids; that the initial blood count was low; and that Ailani remained acidotic after birth with a pH of 6.7 and a base excess of -27 at 90 minutes after birth. Dr. Willis further noted Ailani's hospital course consistent with her medical records and ultimately opined that “there was an obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery and continuing into the immediate post delivery period. The oxygen deprivation resulted in brain injury.” Dr. Willis was unable to comment about the severity of the injury, however. At the request of NICA, Laufey Y. Sigurdardottir, M.D., who is board certified in neurology and specializing in pediatric neurology, reviewed the medical records included in the Stipulated Record as Joint Exhibits A through G, and performed a thorough examination of Ailani on October 18, 2017. Dr. Sigurdardottir's summary of Ailani's medical history, along with her findings upon a full physical and neurological examination, is documented within her written report, which was admitted into evidence without objection. Dr. Sigurdardottir noted that Ailani was a non-dysmorphic, interactive toddler with normal facial features and apparently intact vision. No abnormalities in Ailani's extremities were noted other than occasional toe walking. Neurologically, Ailani was noted to be interactive, curious, and exhibiting normal joint attention. Ailani exhibited pretend play with a stethoscope, said the word "mom" a few times, pointed to her mouth when asked to do so, enjoyed playing with a tablet computer, shook her head for "no," exhibited understandable words, and exhibited no autistic features. Cranial nerves were intact, facial grimacing was symmetric and normal, and hearing seemed intact. No drooling was noted. Muscle tone was noted to be normal, strength was full and symmetric and deep tendon reflexes were symmetric and within normal limits. Gross and fine motor skills were noted to be within normal limits for age. Overall, Dr. Sigurdardottir determined that despite her initial abnormal neurological examination, and delays in early development, Ailani's current neurologic and developmental functioning is age-appropriate. She went on to opine in relevant part that, Ailani is not found to have substantial delays in motor and mental abilities at this time . . . . In review of available documents, there is evidence of impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation . . . . The prognosis for full motor and mental recovery is excellent and the life expectancy is full In light of evidence presented I believe Ailani does not fulfill criteria of a substantial mental and physical impairment at this time. I do not feel that Ailani should be included in the NICA program. Neither Petitioner nor Intervenor submitted or introduced into evidence any expert reports rebutting the opinions of Dr. Willis and/or Dr. Sigurdardottir.
The Issue At issue in the proceeding is whether Demetrios Robertson, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Petitioner, Carmina Gilliam, is the mother and natural guardian of Demetrios Robertson, a minor. Demetrios was born a live infant on August 4, 1996, at University Medical Center, a hospital located in Jacksonville, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services during the birth of Demetrios was Michael T. Valley, M.D., who, at all times material hereto was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan when the claimant demonstrates, more likely than not, that the infant suffered an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital which renders the infant permanently and substantially mentally and physically impaired." Section 766.302(2), Florida Statutes. Here, the proof failed to demonstrate that Demetrios suffered a permanent and substantial mental and physical impairment. Consequently, it is unnecessary to address whether he suffered an injury to the brain caused by oxygen deprivation or mechanical injury and, if so, whether such injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Demetrios' current mental and physical presentation To address the character of Demetrios' neurologic presentation, Petitioner offered selected medical records relating to Demetrios' birth and subsequent development, as well as the opinions of Demetrios' treating pediatric neurologist, Daniel E. Shanks, M.D. In turn, Respondent offered the opinions of Michael Duchowny, M.D., a pediatric neurologist who examined Demetrios on January 17, 2001. As noted, on January 17, 2001, following the filing of the claim for compensation, Demetrios was examined by Dr. Duchowny. Pertinent to this case, the results of that evaluation were reported as follows: PHYSICAL EXAMINATION reveals Dem[e]trios to be alert, pleasant and cooperative. His weight is 55 pounds and height 32 inches. There is a single cafe-au-lait spot over the left midabdominal region. There are no dysmorphic features and no other cutaneous stigmata. The spine is straight without dysraphism. The head circumference measures 50.4 cm and there are no craniofacial anomalies or asymmetries. The fontanelles are closed. The neck is supple, without masses, thyromegaly or adenopathy and the cardiovascular, respiratory and abdominal examinations are unremarkable. Peripheral pulses are 2+ and symmetric. NEUROLOGICAL EXAMINATION: Dem[e]trios' neurological examination reveals him to be quiet but cooperative. He does have a short attention span but he is easily engaged and tends to complete requests without flinching. His speech output is noticeably diminished and he tends to speak in short phrases with poorly articulated words. He does not know primary or secondary colors and has a limited command of knowing the names of animals. He does identify body parts well. There is no evidence of overactivity. Cranial nerve examination reveals full visual fields to direct confrontation testing and normal ocular fundi. The pupils are 4 mm, react briskly to direct and consensually presented light. The optic disc margins are well- marginated with normal coloring. The tongue and palate move well and there is no drooling. Medical examination reveals mild spasticity of the lower extremities with some tightening of the heel cords. Dem[e]trios barely dorsiflexes the feet past neutrality and he has slight Babinski attitudes of the big toes. In contrast, the tone in the upper extremities is relatively normal. He has trouble with rapid alternating movement sequences and demonstrates mild decomposition. There is no focal weakness or atrophy. Dem[e]trios walks in a single fashion although there is eversion of his feet. The deep tendon reflexes are brisk and 2+ at the knees, brachioradialis and biceps. There are one or two beats or reduplication at the ankles and quite positive Babinski signs. There is no abductor spasticity. His gait is stable but he tends to posture both arms. He has difficulty walking on tip toes or heels. Romberg sign is absent. The neurovascular examination reveals no cervical, cranial, ocular bruits and no temperature or pulse asymmetries. Sensory examination was deferred. IN SUMMARY, Dem[e]trios' neurologic examination reveals evidence of moderate developmental delay, particularly in the area of language functioning. He additionally has evidence of mild lower extremity spasticity indicating a mild spastic diparesis. At a deposition held August 28, 2001, and received in evidence as Respondent's Exhibit 1, Dr. Duchowny expanded on the results of his examination and conclusions regarding the character of Demetrios' presentation, as follows: BY MR. CULPEPPER: * * * Q. . . . What were your conclusions regarding Demetrios' neurological condition? A. Having performed the evaluation and reviewing the medical records, I felt that Demetrios has neither a substantial mental nor motor impairment. Q. . . . Is Demetrios impaired? A. I believe that he does have evidence of impairment, yes. * * * Q. . . . Does Demetrios have a permanent injury? A. Yes, I believe he does. Q. Is he mentally impaired? A. I think he has developmental delay. I am using the term to distinguish it from brain damage. I think his language is behind age level, but will probably progress and continue to improve. Q. I will focus on the context of NICA. How would you quantify the seriousness of Demetrios' mental impairment? A. I would call it mild to moderate. Q. Okay. So you would not consider Demetrios' mental impairment, quote, unquote, "significant" in terms of NICA? A. That's correct. Q. Why not? A. Because he probably functions within a high -- in the high end of kids with disabilities. He basically would be mild to moderately impaired by school standards, and he is not mentally retarded. Q. To follow up, describe what you would consider a, quote, unquote, "significant" mental impairment in terms of the NICA statute? A. Well, he would have to be -- function within the mentally retarded range, and I regard him more as having evidence of language delay. Otherwise, he seems socially intact and he does well. Q. Now I'll turn to Demetrios' physical condition. Is Demetrios suffering from a physical impairment? A. Yes. Q. In the context of NICA, how would you quantify the seriousness of Demetrios' physical impairment? A. I believe he has a mild physical impairment of his legs. Q. Again, in the context of the NICA statute, would you consider Demetrios' physical impairment, quote, unquote, "significant" MR. SCHACK: Let me object to the language and the form of the question. You keep using the word "significant," and I think the language is "substantial." MR. CULPEPPER: I apologize, and thank you for pointing that out. Let me switch the words then. Q. (By Mr. Culpepper) Do you consider his impairment substantial in terms of NICA? A. No. Q. And why not? A. Because in the spectrum of what we see of motor impairment, this is simply not a substantial motor impairment. He would have to be more spastic, more involved with greater compromise of his functionality. Q. And then to clean up my error, going back to mental impairment, would you consider Demetrios' mental impairment "substantial," quote, unquote, in terms of the NICA statute? A. No, I would not. BY MR. SCHACK: * * * * * * Q. . . . When you use the terms mild, moderate, and severe, is that medical terminology? A. Well, it's not a medical dictionary word, but I think it is a modifier that tries to categorize a patient within the scope of disability that we see. Q. Well, Doctor, if this was your patient, would you just describe the neurological findings and the problems the child had rather than trying to modify it by an adjective? A. No. We always modify with an adjective. Q. Okay. A. Apart from NICA, we do that. * * * Q. It appears in this case to me, correct me if I am wrong, that regardless of whether you describe it as mild, moderate, or severe, that Demetrios has some motor difficulties that might impact on his ability to live a normal life. A. You mean lifespan or just life functions? Q. That was a -- life function. A. They might, yes. Q. Okay. He at the present time has lower motor problems, lower extremity motor problems; is that correct? A. Yes. Q. And exactly what is his problem? A. He has spasticity, mild, of his legs. Q. What does that prevent him from doing? A. Being agile, running fast, being a competitive athlete. Q. Okay. Does it give him difficulty walking? A. Yes. Q. Okay. And he can't stand straight? A. Right. Q. All right. Would you say that is a substantial problem for a child such as Demetrios? A. I think he's going to get better with time. I think he's going to be able to do most of the things he wants to do. Q. But at the present time he's unable to do things he wants to do; is that correct? A. I'm sure that's true . . . . Demetrios was last examined by his pediatric neurologist, Dr. Shanks, on October 18, 2001. Dr. Shanks reported the results of that evaluation, as follows: . . . [Demetrios] has always had a tendency to walk up on his toes since he began walking at approximately 14 months of age. It has not progressed over time. He may be a little tighter in the right than the left and he did go through physical therapy during earlier years. * * * On physical examination, height 105 cm (10th to 25th %); weight 22 kg (75th to 90th %); head circumference 51 cm (50th %). Generally, he is a well-appearing, alert youngster who is generally cooperative. There are no cranial or carotid bruits noted. Neck is supple with full range of motion. He has full primary dentition. There are no chest deformities other than a well-healed scar on his left infrascapular region inside. Abdomen is mildly obese. Extremities have full range of motion with the exception of ankles that have slight restriction in dorsiflexion, right slightly more so than the left, and there is a little bit of tightness in hip adductors. There are no asymmetries of his extremities. Back is without midline lesions. He has two hyperpigmented macular lesions, one of his abdomen and one on his back. NEUROLOGIC EXAM: Speech is fluent but mostly just one to two-word utterances. He does follow simple commands readily. Cranial nerves pupils equal, round and reactive to light; discs are sharp with normal appearing vessels. Extraocular movements are full and conjugate. Facial muscle movements full and asymmetric. Hearing is normal to low-level stimulation bilaterally. Palate elevates symmetrically; sternomastoids are strong and tongue is midline. Motor exam shows normal tone with the exception of his distal lower extremities and a possible slight spastic catch in his hip adductors. Upper extremity tone feels relatively normal. Deep tendon reflexes are 2+ in the upper extremities, 3- 4+ lower extremities with crossed adductors. Ankle jerks are 1+ and toes are upgoing bilaterally, more strongly on the right than the left. With gait, he does have a tendency to get up on his toes slightly but is very functionally mobile. Sensory exam is intact to touch, cold and vibration. He has no cerebellar signs or adventitial movements. IMPRESSION: Likely mild spastic diplegia with overall relatively good prognosis for functional capabilities. He also seems to have significant cognitive delays . . . . Considering the proof, it must be resolved that Petitioner has failed to demonstrate, more likely than not, that Demetrios is permanently and substantially mentally and physically impaired.1 Notably, Doctors Duchowny and Shanks share strikingly similar views regarding the characterization of Demetrios' physical presentation, and concur that his physical impairment can best be described as mild. With regard to Demetrios' mental impairment, Dr. Duchowny was of the view that Demetrios was developmentally delayed, but would likely improve, and that his impairment could best be described as mild to moderate. In contrast, Dr. Shank's was of the view that Demetrios "seems to have significant cognative delays"; but did not otherwise characterize Demetrios' impairment. Stated otherwise, Dr. Shank's did not express an opinion as to whether Demetrios' mental impairment could best be described as mild, moderate, or severe, and expressed no opinion as to whether Demetrios' impairment was or was not likely to improve.
