Findings Of Fact Mariah was born on September 13, 2013, at Baptist in Jacksonville, Florida. Respondent retained Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, to review Mariah and her mother’s medical records and opine as to whether there was an injury to Mariah’s brain or spinal cord that occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period due to oxygen deprivation or mechanical injury. Attached to Respondent’s Unopposed Motion for Summary Final Order is the affidavit of Dr. Willis, dated November 22, 2017. In his affidavit, Dr. Willis opines, to a reasonable degree of medical probability, “that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to [Mariah’s] brain or spinal cord occurring in the course of labor, delivery, or resuscitation in the postdelivery period.” Respondent also retained Laufey Y. Sigurdardottir, M.D., a pediatric neurologist, to review Mariah’s medical records, conduct an Independent Medical Examination (IME), and opine as to whether she suffers from a permanent and substantial mental and physical impairment as a result of a birth-related neurological injury. Dr. Sigurdardottir reviewed the available medical records, obtained a full historical account from Mariah’s parents, and conducted an IME of Mariah on September 27, 2017. Dr. Sigurdardottir’s IME report provides, in part, as follows: Summary: Patient is a 4-year-old girl with history of NICU admission after birth via C section. No clear evidence of neonatal encephalopathy, normal cord blood gas and Apgars. She has congenital ocular deformity with colobomas and a global developmental delay to include autistic features. Her pattern of delays in not typical for that seen after a hypoxic ischemic injury and MRI brain was normal. Result as to question 1: Mariah is found to have substantial delays in mental abilities but mild delays in motor abilities. Result as to question 2: In review of available documents, her impairment is not typical of a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury? [sic] No clear evidence is reviewed that suggests a hypoxic ischemic even during labor or delivery. Result as to question 3: The prognosis for full motor and mental recovery is poor and the life expectancy is normal. In light of evidence presented I believe Mariah does not fulfill criteria of a substantial mental and physical impairment at this time. I do not feel that Mariah should be included in the NICA program. . . . Respondent’s Unopposed Motion for Summary Final Order also relies upon the attached affidavit of Dr. Sigurdardottir. In her affidavit, Dr. Sigurdardottir affirms the statements and opinions contained in her IME report, and opines, to a reasonable degree of medical probability, that Mariah did not suffer a birth-related neurological injury. A review of the file reveals no contrary evidence was presented to refute the findings and opinions of Dr. Willis and Dr. Sigurdardottir. Their unrefuted opinions are credited.
The Issue The issues to be determined are: 1) whether Petitioners’ claim for compensation is time-barred pursuant to section 766.313, Florida Statutes (2011); and 2) whether Isai Lopez Martinez, a minor child, has suffered a birth-related neurological injury as defined in section 766.302(2), compensable by the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Isai was born on September 8, 2011, at Manatee Memorial in Bradenton, Florida. His birth certificate, attached to the Petition, states that his birth weight was 6 pounds, 10 ounces. The medical records available for review included the mother’s medical records for labor and delivery, and out-patient office visits and physical therapy records for Isai. Newborn hospital records for the child were not provided. Birth was by Cesarean section at 40 weeks, because the infant was in breech presentation. Fetal heart tracings were not available for review. Apgar scores were 7 and 9, and the placenta pathology was negative for infection. Isai had out-patient evaluations for severe hypotonia (low muscle tone) and developmental delay. MRI results were normal, and although a genetic evaluation was performed, no results were available for review. Dr. Willis is an obstetrician, specializing in meternal-fetal medicine. At NICA’s request, he reviewed the medical records made available to NICA, and opined that based on the available medical records, there was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery, or the immediate postdelivery period. Dr. Willis’s opinion is credited. Although given multiple opportunities to do so, Petitioners have not filed anything to rebut Dr. Willis’s opinion. The Petition was filed on October 15, 2018, more than five years from Isai’s birth.
Other Judicial Opinions Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Zevart Manoyian, M.D. is a licensed physician in the State of Florida, having been issued License No. ME 0003347. Respondent is engaged in the practice of family medicine at 725 Opa Locke Boulevard, Opa Locke, Florida. The Respondent has practiced medicine for the past thirty-eight years. The Respondent treated patient Willie Dawson from October 1981 through May 1984. When interviewed by DPR Investigator Lichtenstein during the initial investigation of this case on October 2, 1986, the Respondent stated that she was treating Dawson for a broken jaw and depression. Based on information contained in hospital records and the Respondent's office records during the period which Dawson was treated by Respondent, the following medical history is disclosed: In 1980, Dawson was hospitalized because of a broken jaw; In 1982, the Respondent diagnosed Dawson as having narcolepsy and began prescribing Preludin. In 1984, Dawson was admitted to the Veteran's Administration Hospital and died due to an "intestinal obstruction." Between December 1983 and September 1984, the Respondent prescribed 180 doses of Preludin and 180 doses of Percodan to Dawson. Narcolepsy is a rare and unusual sleeping disorder and may be treated with Preludin, a Schedule II controlled drug. Percodan, a Schedule II controlled drug, may be prescribed for pain. Percodan could be an appropriate medication to prescribe for lingering pain associated with a previously broken jaw. The Respondent's medical records pertaining to Dawson contained no medical history, given by the patient, allergy history physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x- rays. The Physicians' Desk Reference (PDR) is accepted by physicians as an authoritative reference source of appropriate drug usage indications and contraindications, The PDR is made up of inserts provided by various drug companies and manufacturers and will indicate the limits and limitations of a particular drug. Although the POP is accepted by physicians as an authoritative reference source, physicians recognize that it is merely a guide and that the treating physician must determine the most appropriate and medically justifiable treatment for a given patient. According to the PDR, the appropriate recommended dosage for Percodan is four per day or one every six hours when medically indicated. However, a physician may increase this dosage if the patient has developed a tolerance to the analgesic effects of the drug or when there is severe pain. The appropriate recommended dosage for Preludin is one per day. The PDR advises that the recommended dosage for Preludin not be exceeded. The amounts of Preludin and Percodan given to Dawson were within the dosage and administration recommendations in the PDR. In addition, the choice of drug, and the amount prescribed, could have been indicated to a reasonably prudent physician based on Dawson's medical conditions. The Respondent treated patient Barbara Gaskill from September 1977 through December 1984. When questioned by DPR Investigator Lichtenstein regarding this patient, the Respondent stated that she was treating Gaskill for lower back pain and obesity. Based on information contained in the Respondent's office records during the period which Gaskill was treated by Respondent, the following medical history is disclosed: In 1977, Gaskill hurt her back, suffered an arthritis attack and had a ruptured sciatica; In 1978, Gaskill was experiencing problems sleeping due to her back conditions; In 1980, Gaskill was involved in an automobile accident; In 1982, Gaskill suffered headaches; In March 1983, Gaskill had an infected tooth in her right jaw; In March 1984, Gaskill injured her back when she tripped and fell; In April 1984, Gaskill suffered from chronic pain in her lower back; Between December 9, 1983, and August 7, 1984, the Respondent prescribed 115 tablets of Tuinal and 102 tablets of Percodan to Gaskill. Tuinal is a Schedule II controlled drug used to help induce sleep. The recommended dosage in the PDR for Tuinal is one per day. Tuinal and Percodan, in the amounts prescribed, could be appropriate drugs with which to treat pain and sleeping problems arising from medical problems such as those with which Gaskill suffered between December 9, 1983 and August 7, 1984. The dosages of Percodan and Tuinal which Respondent prescribed to Gaskill were within the recommended limitations established for those drugs in the PDR. The Respondent's medical records pertaining to Gaskill contained no medical history given by the patient, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x- rays. The Respondent treated Linda Godfrey from November 1980 through July 1984. When questioned by DPR Investigator Lichtenstein regarding this patient, the Respondent stated that she was treating Gaskill for severe pain. The Respondent stated she knew that Godfrey was addicted to the medication but that she continued to prescribe the medication to alleviate the pain. Based on information contained in hospital records and the Respondent's office records during the period Godfrey was treated by Respondent, the following medical history is disclosed: In 1980, Godfrey was diagnosed as having congenital cerebral palsy and multiple sclerosis. On the same visit, the Respondent noticed that Godfrey had an abscess on her left buttock; In March of 1981, Godfrey was involved in an automobile accident; In August of 1981, Godfrey passed a kidney stone and went to the hospital; In August and September of 1983, Respondent noted that Godfrey was experiencing severe pain "all over"; In April of 1984 Godfrey had an infected ulcer; In June of 1984, Godfrey was admitted to the hospital by the Respondent. The Respondent noted that the patient had a drug addiction, which the patient denied. During Godfrey's hospital stay, the Respondent did not allow her to have visitors because Godfrey was overheard requesting a friend to bring drugs to her in the hospital. Godfrey admitted to snorting cocaine while in the hospital. On June 4, 1984, Godfrey was discharged to North Miami General Hospital in order to be cared for in the drug and detoxification unit. The diagnosis at that time was acute gastritis and drug dependence. On June 3, 1984, the Respondent noted that Godfrey was scheduled for a psychiatric consultation with another physician; In July of 1984, Godfrey was readmitted to the hospital because she fell down a flight of steps and injured her right knee and twisted her lower back. Between December 26, 1983, and July 8, 1984, the Respondent prescribed 10 doses of Percocet, 12 doses of Nembutal, and 377 doses of Perdocan to Godfrey. Percocet is a Schedule II controlled drug which is used in the treatment of pain. Percodan and Percocet are similar except that Percocet has a Tylenol base and Percodan has an aspirin derivative. The PDR's recommended dosages and limitations are the same for Percodan and Percocet. Nembutal is a short-acting or medium-acting barbiturate and is used to help induce sleep. The recommended dosage in the PDR for Nembutal is one per day. Percodan, Prococet and Nembutal, in the amounts prescribed, could be appropriate drugs with which to treat pain and associated sleeping problems arising from medical conditions such as those with which Godfrey suffered between December 26, 1983 and July 8, 1984. The dosages of Percodan, Prococet and Nembutal which Respondent prescribed to Godfrey were within the recommended limitations established for those drugs in the PDR. Respondent's medical records pertaining to Godfrey contain no medical history given by the patient, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Martha Guc from January of 1977 through September of 1984. When questioned by DPR Investigator Lichtenstein regarding her treatment of this patient, the Respondent stated that she was treating Guc for severe back pain. Based on information contained in hospital records and the Respondent's office records during the period which Guc was treated by Respondent, the following medical history is disclosed: In January of 1979 Guc was involved in a serious automobile accident and also suffered from scoliosis. Guc was experiencing cramps in her spine and was unable to sleep as a result of her back pain; In the automobile accident of January 1979, Guc received extensive injuries, including multiple abrasions and lacerations, a broken arm and multiple contusions in her sternum and knee. Plastic surgery was required to repair the facial lacerations and her arm was placed in a cast. In December of 1979, Guc experienced pain in her back and left knee; In 1980, Guc continued to experience back pain; In 1983, Guc was involved in an automobile accident and her head hit the windshield; From March to June 1984, Guc continued to experience back pain; Between January 20, 1984, and August 27, 1984, the Respondent prescribed 580 doses of Percodan to Guc. Percodan, in the amount prescribed, could be an appropriate drug with which to treat pain arising from medical problems and conditions such as those with which Guc suffered between January 20, 1984 and August 27, 1984. The dosages of Percodan which Respondent prescribed to Guc were within the recommended limitations established for that drug in the PDR. The Respondent's medical records pertaining to Guc did not show any medical history, allergy history, physical examination or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Delores Jones from January of 1969 through October of 1984. When questioned by DPR Investigator Lichtenstein regarding this patient, the Respondent stated that she was treating Jones for back pain. The Respondent stated that she knew that Jones was addicted to narcotics but that the medication was required to relieve the symptoms of pain. Based on information contained in hospital records and the Respondent's office records during the periods which Jones was treated by Respondent, the following medical history is disclosed: In 1969, Jones experienced severe back pain; In 1970, Jones suffered from acute gastritis; In 1974, Jones again experienced severe back pain; In May of 1974, Jones was involved in an automobile accident and injured her back; Additionally, Jones suffered from a hernia, stenosis of the spine and a duodenal ulcer. Between December 1, 1983, and August 28, 1984, the Respondent prescribed 1200 doses of Percocet to Jones. The Respondent was aware that Jones was becoming addicted to narcotics and referred Jones to a Doctor Baldry in Coral Gables for treatment. The Respondent stated that she was not aware if Jones ever followed her referral. Percocet, in the amount prescribed, could be an appropriate drug with which to treat pain associated with medical problems such as those with which Jones suffered between December 1, 1983 and August 28, 1984. The dosages of Percocet which Respondent prescribed to Jones were within the recommended limitations established for that drug in the PDR. The Respondent's medical records pertaining to Jones did not show any medical history, allergy history, physical examinations or the result thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Cheryl LeBlanc from December of 1983 through October of 1984. When questioned by DPR Investigator Lichtenstein regarding her treatment of this patient, the Respondent stated that Ms. LeBlanc was being treated for pains in the left hip and bursitis. Based on information contained in hospital records and the Respondent's office records during the period in which LeBlanc was treated by Respondent, the following medical history is disclosed: In December of 1983, LeBlanc was diagnosed as having bursitis. Respondent noted that LeBlanc had pains in her left hip and down the posterior portion of her left leg; On January 6, 1984, the Respondent noted that LeBlanc had bursitis in the left hip; In July of 1984, Respondent noted that LeBlanc had a problem with a lymph node; In September of 1984, the Respondent noted that LeBlanc suffered from chronic pain; (f) Prior to being treated by the Respondent, LeBlanc was admitted to North Shore Medical Center in October of 1983 for treatment of infertility and irregular periods. In October of 1983, LeBlanc had a D&C and salpingogram. In November of 1983, she was readmitted to North Shore Medical Center for tubal reconstruction. Between December 13, 1983, and August 2, 1984, the Respondent prescribed 90 doses of Percodan to LeBlanc. Percodan, in the amount prescribed, could be an appropriate drug with which to treat pain arising from medical problems such as those with which LeBlanc suffered between December 13, 1983 and August 2, 1984. The dosages of Percodan which Respondent prescribed to LeBlanc were within the recommended limitations established in the PDR. Respondent's medical records pertaining to LeBlanc did not show any patient medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Gerald LeBlanc, husband of Cheryl LeBlanc, from October of 1983 to October of 1984. When questioned by DPR Investigator Lichtenstein regarding this patient, the Respondent stated that Mr. LeBlanc suffered from severe bursitis in the shoulder and upper back pain. Based on information contained in the Respondent's office records during the period in which LeBlanc was treated by Respondent, the following medical history is disclosed: On October 7, 1983, LeBlanc was treated for muscle spasms in his back; shoulder; On November 9, 1983, LeBlanc was treated for acute bursitis in his On December 6, 1983, Respondent noted that she intended to wait one month and if LeBlanc's shoulder was not better, she was going to have it x- rayed; On December 26, 1983, Respondent noted that LeBlanc's shoulder was still very sore and that he had difficulty working in the cold; On February 17, 1984, the Respondent noted that LeBlanc still had bursitis in his left shoulder; On March 16, 1984, the Respondent indicated that LeBlanc still had bursitis; On April 25, 1984, and September 17, 1984, Respondent noted that LeBlanc was still experiencing severe pain in his shoulder; On October 8, 1984, Respondent noted that LeBlanc refused Tylenol #3, because he stated that it made him sick and nauseous. Between December 1983 to July 9, 1984, the Respondent prescribed 405 doses of Percodan to LeBlanc. Percodan, in the amount prescribed, could be an appropriate drug with which to treat pain associated with medical problems such as those with which LeBlanc suffered between December 1983 and July 9, 1984. The dosages of Percodan which Respondent prescribed to LeBlanc were within the recommended limitations established for those drugs in the PDR. Respondent's medical records pertaining to LeBlanc did not show any medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Betty Mitchell from November of 1981 to August of 1984. When questioned. By DPR Investigator Lichtenstein regarding this patient, Respondent stated that Mitchell suffered from chronic pain. The Respondent stated that Mitchell was drug dependent, but not addicted. Based on the information contained in the Respondent's office records during the period in which Mitchell was treated by Respondent, the following medical history is disclosed: In 1982, Mitchell was shot in her left buttock; On July 21, 1982, Respondent noted that the bullet was still lodged in Mitchell's buttock and that Mitchell had a drainage tube in her abdomen; pain; On September 7, 1982, Mitchell suffered from pelvis and mouth On January 14, 1983, the Respondent noted that Mitchell suffered from pain in the buttocks and back; On April 6, 1984, Respondent noted that Mitchell had pain in her back near her buttock area; On August 7, 1984, Respondent noted that Mitchell was still experiencing back pain; On April 18, 1983, Respondent noted that Mitchell was experiencing pain. Between December 23, 1983, and August 24, 1984, Respondent prescribed 180 doses of Percodan to Mitchell. Respondent was aware that Mitchell was becoming dependent on Percodan. Percodan, in the amount prescribed, could be an appropriate drug with which to treat pain associated with medical problems such as those with which Mitchell suffered between December 23, 1983 and August 24, 1984. The dosages of Percodan which Respondent prescribed to Mitchell were within the recommended limitations established for that drug in the PDR. Respondent treated patient Rhona Molin from September of 1981 to October of 1984. When questioned by Investigator Lichtenstein regarding this patient, the Respondent stated that Molin was being treated "for nervousness and being very high strung." Based on information contained in the Respondent's office records during the period which Molin was treated by Respondent, the following medical history is disclosed: In 1981, Molin suffered from colitis and stomach pain; In 1981, Respondent noted that Molin had bursitis in her right shoulder; In 1982, Molin suffered from right arm pain; On March 16, 1984, Respondent noted sporadic stomach pain; On June 1, 1984, Respondent noted that Molin was nervous and experiencing severe stomach pain; On August 28, 1984, Respondent diagnosed Molin as having colitis. Between December 21, 1983 and August 28, 1984, the Respondent prescribed 300 doses of Tuinal to Molin. Tuinal, in the amount prescribed, could be an appropriate drug with which to treat sleeping problems arising from the medical conditions with which Molin suffered between December 1983 and August 1984. The dosages of Tuinal which Respondent prescribed to Molin were within the recommended limitations established in the PDR. The Respondent's medical records pertaining to Molin do not show any patient medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient John Skilles from May of 1981 through October of 1984. When questioned by Investigator Lichtenstein regarding this patient, the Respondent stated that Skilles was being treated for severe pain and bursitis in both shoulders. The Respondent further stated that Skilles was provided two prescriptions for fifty (50) doses of Percodan on the same date because he could not afford to have a prescription for one hundred (100) Percodan filled at one time. Based on information contained in hospital records and the Respondent's office records during the period in which Skilles was treated by Respondent, the following medical history is disclosed: Respondent noted on May 25, 1981, that Skilles was shot five or six times in an accident at Camp Pendelton while he was in the military. Respondent noted that his upper body was full of lead shot; On September 14, 1981, the Respondent noted that Skilles was experiencing pain in both shoulders; On December 7, 1981, the Respondent indicated that Skilles was still experiencing shoulder pain; On August 30, 1982, Respondent noted that Skilles was in an automobile accident and injured the left side of his chest; On October 1, 1982, Respondent noted that Skilles was still experiencing shoulder and chest pain; On June 3, 1983, the Respondent noted that Skilles had pain in both shoulders and was unable to work (Skilles was a painter); On September 6, 1983, the Respondent noted that Skilles was experiencing severe pain in his shoulder. On December 28, 1983, Respondent noted chest pain, and on February 17, 1984, and March 26, 1984, it was noted that Skilles was still experiencing chest pain; On June 13, 1984, the Respondent noted that Skilles had bursitis in both shoulders and was suffering from insomnia; On October 1, 1984, the Respondent noted that Skilles suffered from severe pain in the shoulder and chest. Between August 11, 1983, and September 1, 1984, the Respondent prescribed 90 doses of Tuinal and 600 doses of Percodan to Skilles. Tuinal and Percodan, in the amounts prescribed, could be appropriate drugs with which to treat pain and sleeping problems arising from medical conditions such as those with which Skilles suffered between August 1983 and September 1984. Respondent's medical records pertaining to Skilles do not show any medical history, allergy history, physical examinations or the results thereof, laboratory tests or the results thereof, or x-rays. The Respondent treated patient June Sweeney between February of 1980 and August of 1984. When questioned by Investigator Lichtenstein regarding this patient, Respondent stated that she was treating Sweeney for nervousness and insomnia. Based on information contained in Respondent's office records during the period in which Sweeney was treated by Respondent, the following medical history is disclosed: In 1980, Sweeney was having difficulty sleeping and was experiencing back pain; In 1982, Sweeney was involved in an automobile accident and experienced more back pain; In 1982, Sweeney experienced severe back pain. In August of 1984 Sweeney returned to Respondent's office complaining of pain and insomnia. On August 9, 1984, the Respondent prescribed 30 doses of Percodan and 30 doses of Tuinal to Sweeney. Percodan and Tuinal, in the amounts prescribed, could be appropriate drugs with which to treat pain and sleeping problems arising from medical conditions such as those with which Sweeney suffered. The dosages and Percodan and Tuinal which Respondent prescribed to Sweeney were within the recommended limitations as established for those drugs in the PDR. The Respondent's medical records pertaining to Sweeney did not show any patient medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Mike Sweeney from April of 1979 to October of 1984. When questioned by Investigator Lichtenstein regarding this patient, Respondent stated that she was treating Mr. Sweeney for "various things, including back pain and insomnia." Based on information contained in hospital records and the Respondent's office records during the period in which Sweeney was treated by the Respondent, the following medical history is disclosed: Prior to being seen by Respondent, Sweeney had surgery on his left buttock in 1978. On March 12, 1979, Sweeney fell and injured his back; In May of 1979, Sweeney was beaten up and his left eye was swollen; In 1980, the Respondent noted that Sweeney was still experiencing back pain; On May 11, 1981, the Respondent noted that Sweeney was still experiencing back pain and was experiencing difficulty sleeping as well; On August 4, 1981, Respondent again noted that Sweeney was still experiencing back pain; Between December 1983 and September 1984, Respondent prescribed 240 doses of Tuinal and 48 doses of Percodan to Mike Sweeney. On one occasion, the Respondent prescribed two thirty-dose prescriptions of Percodan to Sweeney on the same day. The Respondent stated that it was cheaper to prescribe multiple prescriptions of thirty doses than one prescription for sixty. Tuinal and Percodan, in the amounts prescribed could be appropriate drugs with which to treat pain and sleeping problems associated with medical conditions such as those with which Mike Sweeney suffered between December 1983 and September 1984. The dosages of Percodan and Tuinal which Respondent prescribed to Sweeney were within the recommended limitations established for those drugs in the PDR. The Respondent treated patient Ivan Weithorn from November of 1970 through September of 1984. When questioned by Investigator Lichtenstein regarding this patient, the Respondent stated that she treated Weithorn for back and shoulder pain and insomnia. Based on information contained in the Respondent's office records during the period in which Weithorn was treated by Respondent, the following medical history is disclosed: In 1977, Respondent recorded that Weithorn had dental work done and a root Canal was done along with oral surgery; In 1978, Respondent noted that Weithorn had pain in his right elbow; In 1982, the Respondent noted that Weithorn fell and hit a table; In August 1983, the Respondent noted that Weithorn had an abscess on his left forearm and in December 1983 noted that he had an infected finger on his left hand; On February 3, 1984, Respondent noted that the patient had sustained a puncture wound in his upper lip. Between December 9, 1983, and August 27, 1984, the Respondent prescribed 360 doses of Tuinal and 600 doses of Percodan to Weithorn. Tuinal and Percodan, in the amounts prescribed, could be appropriate drugs with which to treat pain and sleeping problems arising from medical conditions such as those with which Weithorn suffered between December 1983 and August 1984. The dosages of Percodan which Respondent prescribed to Weithorn were within the recommended limitations established for that drug in the PDR. The dosages of Tunial which Respondent prescribed to Weithorn slightly exceeded the recommended dosage contained in the PDR. The FOR recommends one Tuinal per day. In this instance, 360 Tuinal were prescribed over a 300-day period. It may be appropriate for a physician in the exercise of his or her professional judgment, to slightly exceed the recommended dosage of a particular drug if the patient has developed a tolerance to the effects of the substance. Respondent's medical records pertaining to Weithorn do not show any patient medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, or x-rays. All of the Respondent's medical records were stored in a plastic shoe- box like container and were maintained on 3 X 5 index cards. The use of small file-type index cards for the maintenance of a physician's office medical records was prevalent about 20 to 25 years ago. Today, most physician's written medical records are maintained in standard size folders and include laboratory tests, examination results, hospital records, discharge summaries and letters from consulting physicians. Although Respondent sometimes indicated a diagnosis on an initial visit, she rarely noted the diagnosis, objective findings or subjective symptoms of the patients on return visits. On some occasions, a subjective complaint such as "pain" was the only symptom recorded. Extensively within the Respondent's medical records upon a return visit of a patient, nothing was recorded except a prescription, the number of doses and the office charge. Occasionally, a blood pressure or temperature reading was recorded by Respondent. Except for the prescription of pain and sleep-inducing medication, the Respondent's written medical records for the patients described herein failed to demonstrate or indicate the Respondent's overall treatment plan for the patients. In order to justify a course of medical treatment which includes the long term use of Schedule II controlled substances, good medical practice requires that a physician's written patient medical records contain subjective findings (i.e. complaint, onset, duration and severity), a patient history and objective, physical findings made by the physician and/or confirmed and disclosed through laboratory tests or x-rays. The medical records maintained by Respondent on the patients described herein contained only anecdotal information about the patients and contained only scant subjective and objective findings, contained no medical histories and no laboratory results or x-rays. The records maintained by Respondent during the periods when Schedule II controlled drugs were prescribed to the patients herein were inadequate and demonstrated a failure to provide medical care at the minimum level of skill and care required of a reasonably prudent physician under similar conditions. Episodic treatment or care is defined as treatment of symptoms or problems as they present themselves in a patient without any consideration of the root causes of the symptoms, the long term affects the problem may have on the patient, and no consideration of a viable treatment plan. Episodic treatment is considered very poor quality medical care and is a type of treatment which is below the standard of care which is recognized by reasonably prudent physicians as being acceptable. This type of treatment is especially unacceptable when provided to a patient on a long term basis. The patients described herein had medical conditions which could have caused moderate to moderately severe pain and/or sleep disorders. Moderate to moderately severe pain may be defined as pain that interferes with a person's ability to lead a normal life and to perform the daily activities of living which they would normally perform. Chronic pain patients present a difficult challenge to the treating physician because pain is not usually a directly measurable disability. Some patients require greater or lesser amounts of pain medication to relieve a similar amount of pain than do other patients. It may be appropriate and ethical for a physician to prescribe a Schedule II controlled drug to relieve a patient's pain even though the patient may have developed a tolerance to or dependence on the substance. In each instance described herein, the Respondent prescribed the medication in question in a good faith effort to either relieve pain or induce sleep in the patients that she was treating. There was no evidence that any of the drugs prescribed to the patients discussed herein were ever resold on the streets or used by anyone other than the patients for whom they were prescribed. Doctors Handwerker and Frazier testified on behalf of the Petitioner. Neither Dr. Handwerker nor Dr. Frazier examined any of the fifteen patients described herein nor had they reviewed or seen any of the patient hospital records. The Respondent has privileges at the North Shore Hospital in Miami and enjoys an excellent reputation among her fellow physicians as a person of good character and as a dedicated provider of medical treatment. In addition, the Respondent is known among her colleagues as a physician that devotes a substantial portion of her time treating indigent patients. The Respondent cooperated fully with DPR Investigator Lichtenstein during the initial investigation of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and a consideration of the aggravating and mitigating factors delineated in Rule 21M- 20.01, F.A.C. it is, RECOMMENDED that a Final Order be entered assessing a $2,000 administrative fine. It is further recommended that Respondent's license to practice medicine in the State of Florida be placed on probation for a period of three (3) years under the following terms and conditions: Respondent shall make semi-annual appearances before the board. Respondent shall not use, dispense, administer, or prescribe Schedule II controlled substances, except in a hospital setting. Respondent shall successfully complete fifty (50) hours annually of Category I Continuing Medical Education. The primary subject matter of each course taken must involve Pharmacology, General Medicine and/or Medical Record- Keeping. DONE and ORDERED this 17th day of December, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0995 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Partially adopted in Findings of Fact 2, 3 and 8. Matters not contained therein are rejected as subordinate and/or unnecessary. Rejected as unnecessary. At the final hearing, the Petitioner was allowed to amend the Administrative Complaint to reflect that Mary Dukes received zero (0) doses of Percodan. Thus, any findings regarding the prescribing of Percodan to patient Mary Dukes is unnecessary. Adopted in Findings of Fact 11 and 13. Adopted in Findings of Fact 18 and 20. Rejected as subordinate. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 34. Adopted in Findings of Fact 32 and 35. Adopted in Findings of Fact 38 and 40. Adopted in Findings of Fact 43 and 45. Adopted in Findings of Fact 47 and 49. Adopted in Findings of Fact 53 and 55. At the final hearing the Petitioner was allowed to amend the complaint to reflect that zero (0) doses of Percodan were prescribed to patient James Sams. The Petitioner stated that it was determined by Investigator Lichtenstein after viewing the signature of the Respondent and those upon the prescriptions acquired from the various pharmacies that all prescriptions for patient Sams were forgeries. There- fore, Findings of Fact involving prescriptions to patient James Sams are unnecessary. Partially adopted in Findings of Fact 58 and 60. Matters not contained therein are rejected as unnecessary. Adopted in Findings of Fact 63 and 65. Adopted in Findings of Fact 69 and 71. Adopted in Findings of Fact 74 and 76. Rejected as subordinate and unnecessary. Adopted in Finding of Fact 83. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Addressed in the Procedural Background section. Rejected as a recitation of testimony. Rejected as subordinate and/or unnecessary. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 84. Partially adopted in Finding of Fact 7. Matters not contained therein are rejected as subordinate and/or a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 83. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Adopted in Finding of Fact 85. Adopted in Finding of Fact 85. Rejected as a recitation of testimony. Adopted in Finding of Fact 86. Adopted in Findings of Fact 85 and 86. Rejected as a recitation of testimony. Addressed in Procedural Background section. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Adopted in Finding of Fact 82. Addressed in Procedural Background section. Partially adopted in Finding of Fact 86. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 82. Matters not contained therein are rejected as subordinate. Rejected as a recitation of testimony. Adopted in Finding of Fact 86. Rejected as a recitation of testimony. Addressed in Procedural Background section. Rejected as a recitation of testimony. Addressed in Procedural Background section. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Adopted in Finding of Fact 86. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 7 and 8. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as a recitation of testimony. Rejected as subordinate and unnecessary. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony and/or subordinate. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 37. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 86. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 86. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 86. Matters not contained therein are rejected as a recitation of testimony. Adopted in Findings of Fact 68 and 86. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 79 and 86. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Findings of Fact 85 and 86. Matters not contained therein are rejected as a recitation of testimony. Adopted in Finding of Fact 85. Adopted in Finding of Fact 86. Rulings on Proposed Findings of Fact Submitted by the Respondent (The Respondent's Findings of Fact were un-numbered. For the purpose of this Appendix, each paragraph in the Findings of Fact submitted by the Respondent was assigned a number in chronological order beginning with Paragraph Number 1.) Adopted in Finding of Fact 1. Addressed in Conclusions of Law Section. Addressed in Procedural Background section. Partially adopted in Findings of Fact 9 and 87. Matters not contained therein are rejected as not supported by the weight of the evidence. Rejected as argument end/or subordinate. Rejected as argument and/or subordinate. Adopted in substance in Findings of Fact 2, 3, 4, 5, 6, 8, 9 and 10. Rejected as unnecessary. Adopted in substance in Findings of Fact 11, 12, 13, 14, 15 and 16. Adopted in substance in Findings of Fact 18, 19, 20, 21, 22, 23 and 24. Adopted in Finding of Fact 19. Adopted in Finding of Fact 19. Adopted in substance in Findings of Fact 20, 21, 22, 23 and 24. Adopted in substance in Findings of Fact 26 and 27. Adopted in Finding of Fact 27. Adopted in substance in Findings of Fact 27, 28, 29 and 30. Adopted in substance in Findings of Fact 32 and 33. Adopted in substance in Findings of Fact 34, 35 and 36. Adopted in substance in Findings of Fact 38 and 39. Adopted in substance in Finding of Fact 39. Partially adopted in Findings of Fact 40 and 41. Matters not contained therein are rejected as misleading. Adopted in substance in Findings of Fact 43 and 44. Adopted in substance in Finding of Fact 44. Partially adopted in Finding of Fact 46. Matters not contained therein are rejected as misleading. Adopted in substance in Findings of Fact 47 and 48. Adopted in substance in Finding of Fact 48. Partially adopted in Findings of Fact 49, 51 and 52. Matters not contained therein are rejected as mis- leading. Adopted in substance in Findings of Fact 53 and 54. Partially adopted in Findings of Fact 55 and 56. Matters not contained therein are rejected as mis- leading. Rejected as unnecessary. Rejected as unnecessary. Adopted in substance in Findings of Fact 58 and 59. Adopted in substance in Finding of Fact 59. Adopted in substance in Findings of Fact 60 and 61. Adopted in substance in Findings of Fact 63 and 64. 36. Adopted in substance in Findings of Fact 65, 66 and 67. Adopted in substance in Findings of Fact 69 and 70. Adopted in substance in Findings of Fact 71, 72 and 73. Adopted in substance in Findings of Fact 74 and 75. Adopted in substance in Findings of Fact 76, 77 and 78. Rejected as a recitation of testimony and/or subordinate. Rejected as argument. Rejected as a recitation of testimony. Rejected as argument. Adopted in substance in Finding of Fact 88. Partially addressed in Procedural Background section. Matters not contained therein are rejected as recitation of testimony. Adopted in Finding of Fact 5. 48. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 16. Rejected as argument and/or a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as unnecessary. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 88. Matters not contained therein are rejected as a recitation of testimony. Adopted in substance in Finding of Fact 89. Partially addressed in Procedural Background section. Matters not contained therein are rejected as subordinate. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 6 and 10. Matters not contained therein are rejected as a recitation of testimony. Adopted in substance in Finding of Fact 5. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 23. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as argument and/or a recitation of testimony. Partially adopted in Finding of Fact 82. Matters not contained therein are rejected as subordinate. Addressed in Procedural Background section. Rejected as subordinate. Partially adopted in Finding of Fact 87. Matters not contained therein are rejected as a recitation of testimony. Adopted in substance in Finding of Fact 8. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially addressed in Procedural Background section. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially addressed in Procedural Background section. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 87 and 88. Matters not contained therein are rejected as argument and/or a recitation of testimony. Rejected as argument. Partially adopted in Finding of Fact 81. Matters not contained therein are rejected as argument. Partially adopted in Finding of Fact 90. Matters not contained therein are rejected as subordinate. COPIES FURNISHED: David F. Bryant, Esquire 1107 E. Jackson Street Suite 104 Tampa, Florida 33602 Michael I. Schwartz, Esquire 119 North Monroe Street Tallahassee, Florida 32301 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue At issue in this proceeding is whether Jackeline Casco, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Petitioners, Luis Casco and Maria Casco, are the parents and natural guardians of Jackeline Casco (Jackeline), a minor. Jackeline was born a live infant on June 3, 2000, at Holy Cross Hospital, a hospital located in Fort Lauderdale, Broward County, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Jackeline was William Joyner, 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(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimants demonstrate, 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." Jackeline's presentation On March 29, 2001, following the filing of the claim for compensation, Jackeline was examined by Michael S. Duchowny, M.D., a board-certified pediatric neurologist associated with Miami Children's Hospital, Miami, Florida. Dr. Duchowny reported the results of that neurologic evaluation, as follows: HISTORY ACCORDING TO THE FAMILY: Jackeline was accompanied by her mother who began by explaining that Jackeline's major problem is with regards to her left arm. She noted that Jackeline had problems with her left arm "since birth" and that she had acquired a left clavicular fracture at delivery. The birth took place at Holy Cross Hospital after 38 weeks gestation. Jackeline weighed 9 pounds, 7 ounces and was a difficult delivery. She was moved from the regular nursery to the special care nursery because of a heart murmur, but this turned out to be inconsequential. Jackeline subsequently was referred for reconstructive surgery and had this performed three weeks ago. Dr. John Grossman did transplantations of the sural nerves. The cast came off one week ago. Mrs. Casco had not yet seen return of neurologic functioning in Jackeline. Jackeline otherwise enjoys good health and has been developing nicely. She rolled over at four months and sat at five months. She is described as being quite socially interactive and attentive. There are no problems with regards to her hearing or vision and her feeding, swallowing and sleep patterns are normal. Jackeline's immunizations have been administered on time. Apart from the brachial plexus reconstruction, she has had no other surgeries. She has an allergy to amoxicillin and sulfa drugs. She also has a vesicle ureteral reflux which was diagnosed after she presented with recurrent urinary tract infections. She now takes Primsol daily. The FAMILY HISTORY reveals the father to be 32 and the mother to be 29 years old. Jackeline has a 2-year-old sister who is healthy. There are two half brothers, ages 4 and 2 and two half sisters, ages 8 and 6. No family members have degenerative illnesses, mental retardation or cerebral palsy. PHYSICAL EXAMINATION reveals an alert, socially responsive 9-month-old infant. The weight is 19 pounds. Head circumference measures 44.1 cm, which approximates at the 50th percentile for age. The fontanelles are both opened and flat and there are no cranial or facial anomalies or asymmetries. Jackeline has no dysmorphic features or evidence of spinal dysraphism. The neck is supple without masses, thyromegaly or adenopathy and the cardiovascular, respiratory and abdominal examinations are unremarkable. Jackeline does have a grade 2/6 innocent ejection systolic murmur. There are healed scars over both posterior calves and left lateral neck. Jackeline's NEUROLOGICAL EXAMINATION reveals her to be quite socially attentive. She displays a great deal of preverbal babbling and has a pleasant disposition. She is appropriately fearful. There is good central gaze fixation and conjugate following movements. The pupils are 3 mm and briskly reactive. The iris pigment is symmetric and normal. The funduscopic examination discloses no significant findings. There are no facial asymmetries and the tongue moves well. The uvula is midline. There is no drooling. Motor examination reveals an asymmetry of movement of the upper extremities, where there is active movement on the right, but this is much less developed on the left where Jackeline rarely grasps an object unless it is placed in close proximity to her hands. She does have individual finger movements and has movement of the hands, but her proximal limb movement, especially the shoulder girdle, shows a relative absence of movement. There is an asymmetric slope to the shoulder indicating deltoid atrophy. There are no frank fasciculations. Jackeline's proximal muscle strength is judge at 1+ where her distal strength is 4+. The deep tendon reflexes are asymmetric as well being 2+ at the right biceps and brachial radialis and 1+ at the right triceps. These same reflexes on the left are not elicited. The knee jerks are 2+. Jackeline is able to sit with good balance and has well developed head control. There are no pathologic reflexes. The Moro response is asymmetric with diminished left arm movement. Jackeline grasps objects by coming across the midline with her right hand. The sensory examination is differed, although Jackeline's withdrawal to stimulation seemed less pronounced with the left upper extremity. In contrast, Jackeline's lower extremities muscle strength, bulk and tone are normal and the reflexes are likewise unremarkable. The neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Jackeline's examination discloses no significant neurologic abnormalities apart from her left upper extremity. Her examination is consistent with a left Erb's palsy and status post brachial plexus reconstruction, but does not have a significant return of functioning at this point. In contrast, Jackeline's mental status would appear to be normal and her motor development has been proceeding satisfactorily. An Erb's palsy, such as that evidenced by Jackeline, is a weakness of an upper extremity due to damage of the nerve roots of the upper brachial plexus,1 and does not involve the brain or spinal cord.2 Moreover, Jackeline's mental or cognitive status has been described as essentially normal. Consequently, while Jackeline may have suffered a mechanical injury, permanent in nature (to her right brachial plexus) during the course of birth, she does not (for reasons appearing more fully in the Conclusions of Law) qualify for coverage under the Plan.
The Issue The issues are whether Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, and, if so, what penalty, if any, should be imposed.
Findings Of Fact 1. Stipulated Facts Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30 and Chapters 455 and 458, Florida Statutes. Respondent is a licensed physician in Florida holding license number ME 0009772. Respondent's last known address is 9430 Turkey Lake Road, Orlando, Florida 32819-8015. Respondent is Board certified in orthopedic surgery. Respondent provided medical treatment to two male patients between 1990 and 1991. Patient 1 was treated from approximately April 29, 1991, through August 12, 1991. At the time, Patient 1 was approximately 34 years old. Patient 2 was treated from approximately May 14, 1990, through June 20, 1991. Patient 2 was approximately 29 years old. Patient 1 Patient 1 had a history of hip dislocation with aseptic necrosis, chronic back and leg pain, and foot numbness associated with degenerative disc disease and lumbar stenosis. Lumbar stenosis is compression of the spine. Spine compression was particularly significant between the fifth lumbar and first sacral vertebrae. Prior to April 29, 1991, Patient 1's treatment was conservative and nonsurgical. On April 29, 1991, Patient 1 presented to Respondent to explore alternative therapy. Patient 1 complained of pain and numbness in his back, hip, and legs. Respondent diagnosed Patient 1 with lumbar spinal stenosis and possible disc herniation. Respondent recommended a myelogram. A myelogram was performed on May 13, 1991. The myelogram confirmed Respondent's diagnosis of lumbar spinal stenosis and possible disc herniation. The myelogram revealed a disc defect on the right side of L5-S1 as well as severe spinal and lateral recess stenosis. On June 11, 1991, Respondent performed a laminectomy on Patient 1, an L5-S1 disc excision, and an internal spinal stabilization using Harrington rods attached with lamina hooks. Use of lamina hooks resulted in the compression of Patient 1's underlying neural tissue. Compression of the underlying neural tissue caused Patient 1 to suffer perineal numbness. Respondent's medical records of June 17, 1991, show that Respondent knew Patient 1's perineal numbness was a result of compression of the sacral nerve root at L5-S1. On June 17, 1991, Respondent again performed surgery on Patient 1. Respondent replaced the lamina hooks with alar hooks. Respondent also replaced and adjusted the tension of the Harrington rods. On August 1, 1991, Patient 1 was admitted to Sandlake/Orlando Regional Medical Center ("ORMC") for surgical removal of the implanted hooks and Harrington rods. Respondent surgically removed the Harrington rods and attachment hooks. On August 12, 1991, Respondent's medical records showed that Patient 1 suffered from persistent numbness of the sacral nerve root areas. The area of numbness included the perineum, scrotum, and penis. Respondent did not perform an L5-S1 bone fusion during any surgery. Patient 2 On May 14, 1990, Patient 2 presented to the Emergency Room ("ER") at ORMC with primary complaints of back and right leg pain. The ER physician diagnosed Patient 2 with a herniated nucleus pulposus at L4-L5. The nucleus pulposus is the soft central portion of the intervertebral disc. Respondent admitted Patient 2 on May 14, 1990, and treated him with intravenous muscle relaxants. On May 15, 1990, a computerized axial tomography ("CAT") scan revealed a bulging, herniating disc at L4-L5. On May 17, 1990, Respondent discharged Patient 2 with instructions regarding back care and an exercise program. On August 24, 1990, Patient 2 presented to Respondent with recurrent disabling sciatic pain. A magnetic resonance imaging ("MRI") scan was performed on August 28, 1990. The MRI revealed a prominent disc bulging at L4-L5 with material intruding into the spinal cord. On September 7, 1990, Respondent performed a lumbar laminectomy and disc excision at L4-L5. Respondent discharged Patient 2 on September 12, 1990. On December 11, 1990, Patient 2 presented to Respondent with recurrent back and right leg pain. Respondent prescribed analgesics including Soma with codeine and Naprosyn. On January 14, 1991, Patient 2 presented to Respondent with back and right leg pain. Patient 2 underwent a CAT scan to determine if recurrent disc herniation was present. The CAT scan failed to indicate any obvious asymmetric changes which would confirm Respondent's diagnosis of recurrent disc herniation. On January 21, 1991, Respondent performed a decompressive laminectomy on Patient 2. Respondent's operative report for January 21, 1991, indicates that Respondent found no evidence of a herniated disc. On February 26, 1991, Patient 2 presented to Respondent with complaints of recurrent leg and back pain. Respondent referred Patient 2 to Dr. William Bradford for treatment utilizing epidural blocks. On April 16, 1991, Patient 2 again presented to Respondent. Respondent placed Patient 2 in a molded, fiberglass body jacket. Back and leg pain subsided while Patient 2 wore the fiberglass jacket. On May 14, 1991, Respondent performed surgical stabilization of the lower lumbar spine utilizing Harrington rods. On June 17, 1991, Patient 2 presented to Respondent with persistent numbness of the perineal area as well as bowel and bladder incontinence. Respondent determined that the numbness and incontinence were caused by sacral nerve root irritation associated with the Harrington rod hooks. Respondent surgically adjusted the Harrington rods on June 20, 1991. Respondent did not perform vertebral bone fusion during any surgery. 2. Standard Of Care Respondent failed to practice medicine in his treatment of Patient 1 with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Respondent improperly seated lamina hooks in Patient 1. As a result, Patient 1 suffered compression of underlying neural tissue. Respondent improperly used Harrington rods and hooks to achieve transient spinal decompression without performing essential vertebral bone fusion. Use of Harrington rods in the lumbar spine is an obsolete technology. It is fraught with dangers. Among other things, it eliminates the lordosis, or natural spinal curvature. Respondent failed to practice medicine in his treatment of Patient 2 with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Respondent performed numerous surgeries on Patient 2 when CAT scans and other examinations failed to confirm recurrent disc herniation. In addition, Respondent failed to perform essential vertebral bone fusion on Patient 2. 3. Proximate Cause And Severity Of Injury Respondent's failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances was the proximate cause for permanent neurological damage to Patient's 1 and 2. Both patients suffered sacral nerve root paralysis. Sacral nerve roots feed functions in the pelvis, bladder bowel, and sphincter. Both patients suffered permanent incontinency, including loss of bladder and bowel function. Each patient requires a colostomy and must wear diapers. Patient 1 has suffered sexual dysfunction in that he has lost the sensation necessary for a natural erection. The neurologic injuries to Patients 1 and 2 are major and permanent. Nothing can restore the functional loss suffered by either patient.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding Respondent guilty of violating Section 458.331(1)(t) in his treatment of Patients 1 and 2, imposing an administrative fine of $7,500, and restricting Respondent's practice as follows: Respondent shall not perform any spinal surgery on patients unless and until Respondent appears before the Board of Medicine and demonstrates to the satisfaction of the Board that he is able to do so with skill and safety; and The Board of Medicine may place other reasonable conditions on Respondent's practice of orthopedic surgery at such time as the restriction in the preceding paragraph is lifted. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of October, 1994. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3966 Petitioner's Proposed Findings of Fact 1. -39. Accepted as stipulated fact 40.-41. Rejected as recited testimony Accepted in substance Rejected as recited testimony Accepted in substance 45.-51. Rejected as recited testimony Respondent's Proposed Findings of Fact Respondent stipulated to Petitioner's proposed findings of fact, paragraphs 1- 39. Respondent's only additional proposed finding of fact is unnumbered and is rejected as not supported by persuasive evidence. COPIES FURNISHED: Dr. Marm Harris, Executive Director Department of Business and Professional Regulation Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harold D. Lewis, Esquire Agency For Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Kenneth J. Metzger, Esquire Agency For Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack L. Gresham, M. D. 9430 Turkey Lake Road Orlando, Florida 32819-8015
The Issue The issue presented for decision in this case is whether Respondent should be subjected to discipline for the violations of Chapter 458, Florida Statutes, alleged in the Administrative Complaint issued by Petitioner on June 24, 2001.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner is the state agency charged with regulating the practice of medicine in the State of Florida, pursuant to Section 20.43, Florida Statutes, and Chapters 456 and 458, Florida Statutes. Pursuant to Section 20.43(3), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, and prosecutorial services required by the Division of Medical Quality Assurance, councils, or boards. At all times relevant to this proceeding, Respondent was a licensed physician in the State of Florida, having been issued license no. ME 0071241. At the time of Patient M. S.’s treatment, Respondent practiced orthopedic medicine in Florida. Respondent is currently employed as an orthopedic surgeon in Pennsylvania and as an assistant professor at the Medical Center of Penn State University. He no longer practices medicine in Florida. On February 11, 1998, Patient M. S., a 41-year-old male, was involved in a motor vehicle accident. He was transported by ambulance to Lee Memorial Hospital in Fort Myers, where he was evaluated by the emergency room physician. Respondent was consulted as the orthopedist on call for the emergency room that evening. When Respondent arrived at the emergency room, Patient M. S. was lying on a stretcher with his lower left leg in provisional traction as applied by the emergency medical technicians at the scene of the accident. Patient M. S. spoke only Spanish, so Respondent had to rely on an interpreter to communicate with him. Respondent observed that the left lower leg was shortened and completely externally rotated, consistent with a comminuted distal femur fracture. A "comminuted" fracture is a fracture in which there are multiple breaks in the bone, with several fragments. Respondent testified that upon touch, Patient M. S.'s leg was like "a bag of marbles." The patient’s right leg was not fractured but had a six-centimeter deep laceration over the shin that went down to the bone. There was a less than one-centimeter superficial wound over the left distal, anterior thigh, caused by a spike of bone fragment that had pierced the skin from within. This wound was leaking bloody, fatty material. Bones contain adipose, or fatty, tissue. A fracture of the bone can result in communication of that fatty tissue with the open wound, meaning there is direct contact of the fracture site to the outside of the body. X-rays confirmed Respondent's observation of a comminuted distal femur fracture. Respondent diagnosed Patient M. S. with a large wound to the right leg and "left complex intra-articular femur fracture, grade I open." A "grade I" open fracture, according to the Gustilo and Anderson system for grading open fractures, is a relatively clean wound with a skin fracture of less than one centimeter (cm). Respondent described the femur fracture as one of the worst he had ever seen, with multiple bone fragments and a considerable degree of trauma to the muscle surrounding the fracture. Respondent and both expert witnesses agreed that a fracture of this nature is highly susceptible to infection. Respondent irrigated the right lower leg wound with a Betadine and sterile saline solution, then debrided and closed the wound in the emergency room. "Betadine" is a trade name for povidone-iodine, a topical antiseptic microbicide. Intravenous antibiotics were administered to prevent infection of this deep wound. Respondent then treated the fracture in Patient M. S.’s left lower leg by taking it out of the temporary traction applied by the EMTs, placing a skeletal traction pin in the proximal tibia and transferring the patient to a hospital bed, where he was placed in balanced skeletal traction. As to the small wound on the left leg, Respondent's contemporaneous notes indicate only that it was dressed with Betadine-soaked gauze. The discharge summary for Patient M. S. states that the left leg wound was "irrigated and dressed." Respondent testified that he cleaned and dressed the wound, but did not irrigate it on February 11. Respondent's testimony on this point is credited. The complexity of the fracture to Patient M. S.’s left lower leg and the hospital’s operating room schedule required that the surgery be done on February 14, 1998. Patient M. S. remained in traction in the hospital during this pre-operative period. On February 14, 1998, Respondent conducted orthopedic reconstructive surgery to repair the complex fracture of Patient M. S.’s left lower leg. Respondent attached medial and lateral plates and screws and performed a bone graft. The surgery lasted approximately eight hours. At the conclusion of the surgery, the incisions were dressed and Patient M. S.’s left leg was wrapped in a bulky sterile dressing. Deep drains were placed in the knee and thigh during wound closure to prevent the formation of a deep hematoma, which can be a medium for infection. The nurse's assessment for February 16, 1998, notes a small amount of bloody drainage from the auto collection drainage device. Patient M. S. was running a temperature of 100.1ºF. The nurse's assessment for February 17, 1998, notes a large amount of bloody drainage from the auto collection device on two separate occasions. Subsequently, the assessment notes a "slight odor" from the dressing on Patient M. S.'s left leg surgical incision site. On February 18, 1998, Patient M. S. had a temperature of 102ºF, with an elevated white blood cell count. Respondent evaluated Patient M. S. and observed that the dressing on the left leg was "damp/green tinged" and had a "foul odor of Pseudomonas." Respondent lowered the dressing and found it to be "saturated and green." Respondent concluded that the dressing had been colonized from without by Pseudomonas bacteria, and ordered intravenous tobramycin as a precaution to prevent the bacteria from colonizing to the wound. On both February 17 and 18, there was serosanguineous drainage from the surgical incision on Patient M. S.'s left leg. On February 19, 1998, Patient M. S. ran a temperature of 102.1ºF. Respondent discharged Patient M. S. on February 20, 1998. At that time the patient fulfilled all appropriate discharge criteria. His fever had subsided to a normal temperature and his hemoglobin was stable. Patient M. S. was given discharge instructions by Respondent in writing as well as orally in Spanish. Respondent prescribed the oral antibiotics Keflex and Cipro for two weeks as a further precaution against infection. Patient M. S. was scheduled for a follow-up visit with Respondent on March 4, 1998. Patient M. S. was instructed to call Respondent if he experienced increased pain, numbness or tingling, a fever of 101ºF or higher, tenderness or pain in his calves, or excessive swelling, redness, or drainage. On or about February 26, 1998, Patient M. S. presented to St. Joseph’s Hospital in Tampa with apparent pain plus pus drainage from the surgical incision site on his left leg. He was diagnosed with methicillin resistant Staphylococcus aureus, Enterobacter, and Pseudomonas in his left leg. On or about March 2, 1998, Patient M. S. underwent an above the knee amputation of his left leg due to complications from infection in the leg. Subsequent to discharging Patient M. S. from Lee Memorial Hospital on February 20, 1998, Respondent received no notice of further problems with Patient M. S.’s leg until receiving notice of this action against him. Patient M. S. did not contact Respondent after complications began to develop. St. Joseph's Hospital in Tampa did not contact or consult with Respondent after Patient M. S. presented there. Respondent's first knowledge of any complications from the surgery came when he received notice of this proceeding against his license. Two issues are presented by the course of treatment described above. The first issue is whether Respondent acted within the standard of care by cleaning and dressing the less than one cm open fracture in the emergency room, or whether Respondent should have performed an irrigation and debridement of that wound in the operating room. Respondent is a board certified orthopedic surgeon with a great deal of experience in trauma. This was one of the worst femur fractures he had ever seen. His priorities on the night of February 11 were to acutely address the severe cut on Patient M. S.'s right shin, and to pull the left leg to length prior to surgery. The small left leg wound was "very clean," and in hindsight Respondent questioned whether he should even have classified it as a Grade I open fracture. He cleaned the wound, placed a Betadine dressing on it, then followed "routine procedure" by prescribing prophylactic antibiotics. The agency's expert, Dr. Steven Lancaster, also is a Board-certified orthopedic surgeon who routinely undertakes trauma cases in his practice. Based on the testimony of Dr. Lancaster the standard of care requires urgent irrigation and debridement of all open fractures, and this standard is prescribed by both the American Board of Orthopedic Surgeons and the American Academy of Orthopedic Surgeons. Irrigation involves cleaning an area with saline solution. Debridement involves the trimming of contaminated or devitalized tissue, the removal of foreign material from wounds, and the cleaning of bone and muscle tissue. Dr. Lancaster stated that, absent a life-threatening condition, it is necessary to perform the irrigation and debridement of an open fracture as soon as possible. Patient M. S. faced no life-threatening condition. According to Dr. Lancaster, the urgency is due to the fact that bacteria have already been introduced into the wound at the time of injury. If more than twelve hours pass, the bacteria have colonized, and the wound is more properly considered infected than merely contaminated. Dr. Lancaster testified that the small size of the wound did not change the urgency of performing the irrigation and debridement; microscopic bacteria are as capable of entering a small wound as a large one. Respondent's expert, Dr. Edward Sweetser, is also a board certified orthopedic surgeon with trauma experience, though the majority of his practice is in general orthopedics. Dr. Sweetser testified that he would not have debrided the small left leg wound in the emergency room, and that the standard of care would not require debridement. He noted that it was a very small laceration, that it appeared to be a puncture from within, and that it did not appear to be contaminated. Dr. Sweetser believed that cleaning and covering the wound with Betadine-soaked gauze was sufficient to keep bacteria out of the wound, and that the ordering of an intravenous antibiotic was entirely appropriate for treatment of any open wound. It is found that the agency established by clear and convincing evidence that the standard of care required urgent irrigation and debridement of the small left leg wound. Dr. Lancaster persuasively testified that such observations as the small size of the wound or that the wound appeared "very clean" to the naked eye did not affect the potential for bacterial infection. Respondent offered no rebuttal to Dr. Lancaster's testimony that urgent irrigation and debridement of open fractures is the standard prescribed by the American Board of Orthopedic Surgeons and the American Academy of Orthopedic Surgeons. The agency failed to establish by clear and convincing evidence that Respondent's failure to perform the irrigation and debridement of the left leg wound was the cause of the subsequent infection. All of the testifying orthopedists agreed that an injury such as that suffered by Patient M. S. is highly susceptible to infection from multiple possible sources. Dr. Sweetser persuasively opined that the likely main cause of the infection was the severity of the injury, both to the bone and the soft tissue, and the extended length and extensive exposure of the surgical procedure. The second issue is whether Respondent acted within the standard of care subsequent to the surgery by treating Patient M. S. with prophylactic antibiotics, or whether Respondent should have pursued the more aggressive course of reopening the left leg wound for purposes of taking a deep tissue culture to determine the presence of infection. Respondent did not suspect an inside infection of Patient M. S.'s wound. He knew that an injury of this nature carries a high incidence of infection, and believed that prophylactic antibiotics sufficiently allayed that threat. When he changed the dressing on February 18, Respondent noted serous drainage, which he termed normal given the amount of trauma and the extremely large exposure required to perform the surgery. Respondent also noted the green tinge on the outside of the dressing. When the drainage soaks through to the outside of the dressing, it is not unusual for the outside of the dressing to become colonized by Pseudomonas bacteria, which are abundant in the hospital setting. He had no indication or suspicion that the infection was within the wound. The wound looked "very good," with no redness or purulence, intact with only serous drainage. Respondent put a clean dressing on the wound and, as a precaution due to the outside colonization, ordered tobramycin in addition to the intravenous antibiotics Patient M. S. was already receiving. Respondent noted the fever and elevated white blood cell count, but also noted that Patient M. S. was afebrile with a stable hemoglobin when he was released from the hospital. Fever is common in post-surgical patients for reasons other than infection. The most common cause is the release of pyrogens by soft tissue trauma. Another common cause of fever is atelectasis, small areas of collapse in the lung resembling pneumonia. Patient M. S. received multiple transfusions, which can cause fever due to the body's immune response. In some instances, antibiotics themselves can cause a fever. Respondent testified that, after spending eight hours in surgery, he would have "done anything" to save Patient M. S.'s leg. If he had suspected an inside infection, he would have taken the patient back into the operating room, reopened the wound, and obtained a deep culture. Dr. Lancaster testified that Respondent fell below the standard of care by discharging Patient M. S. "with a febrile condition and, potentially, with an infected leg." Dr. Lancaster believed that the fever and elevated blood count required an explanation, and that Patient M. S. should not have been discharged until some effort was made to identify whether there was an infection. Dr. Lancaster's opinion is of questionable value because Patient M. S. was not running a fever and showed a stable hemoglobin on the date of discharge. Dr. Lancaster did not directly address how the patient's apparent stability on February 20 might affect his opinion. Dr. Lancaster acknowledged that post-surgery fever is common and not necessarily indicative of an infection. Dr. Sweetser's credible testimony is that, "based on reasonable medical probability," Patient M. S.'s discharge on February 20 did not violate the standard of medical care. He based his opinion on the facts that the patient had no fever, no increasing swelling in the wound, no redness, no purulent drainage, and no increase in pain. Nothing in the medical record provided a reasonable basis for Respondent to reopen the wound, and that reopening the wound delays healing and itself heightens the risk of infection. It is found that the Agency failed to establish by clear and convincing evidence that the standard of care required reopening the left leg wound for purposes of taking a deep tissue culture to determine the presence of infection. The objective facts in the medical record make it reasonable that Respondent did not suspect infection in the wound on Patient M. S.’s left leg. Therefore, his failure to obtain a wound culture or to consult with an infectious disease specialist was not outside the standard of care required of him in this case. Both experts agreed that the chances of saving Patient M. S.'s leg would have been better if Respondent had been consulted when the patient presented at St. Joseph's Hospital in Tampa. The Agency's expert, Dr. Lancaster, stated that when a patient has a complication, it is better practice for the operating surgeon to treat it. Dr. Sweetser testified that the operating surgeon possesses information for which the written notes and x-rays cannot substitute.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health, Board of Medicine, enter a final order finding that Respondent violated Section 458.331(1)(t), Florida Statutes, and imposing the following penalty: a reprimand, 10 hours of Continuing Medical Education in orthopedic medicine to be completed within 12 months of the final order, and payment of an administrative fine in the amount of $250.00. DONE AND ENTERED this 4th day of February, 2002, in Tallahassee, Leon County, Florida. __________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2002. COPIES FURNISHED: Kim M. Kluck, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Bruce M. Stanley, Esquire Henderson, Franklin, Starnes & Holt, P.A. Post Office Box 280 Fort Myers, Florida 33902 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact On December 13, 2018, Petitioner filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. for benefits pursuant to sections 766.301-766.316, Florida Statutes, otherwise known as the Plan. The baby was born on April 1, 2018, at Winnie Palmer Hospital for Women and Babies (Hospital). The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records the Hospital submitted with the Petition. In the instant case, NICA has retained Donald C. Willis, M.D. as its medical expert specializing in maternal- fetal medicine. Upon examination of the pertinent medical records, Dr. Willis opined: There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the baby's brain or spinal cord during labor, delivery or the immediate post-delivery period. Dr. Willis’s medical report dated February 25, 2019, (which reviews additional medical records), are attached to his Affidavit, with the Affidavit being attached to the motion as Exhibit “1”. His Affidavit reflects his ultimate opinion that: The baby suffered cerebral infarction, which appear to have occurred after the period of stabilization during the immediate post delivery period. Medical records do not suggest the cerebral infarction occurred during labor, delivery or the immediate post delivery period. As such, it is my ultimate opinion that there was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the baby's brain or spinal cord during labor, delivery or the immediate post-delivery period. In the instant case, NICA has retained Michael S. Duchowny, M.D. as its medical expert in pediatric neurology. Upon examination of the child and the pertinent medical records, Dr. Duchowny opined: I reviewed medical records which document Elias's birth at 37 weeks' gestation at Winnie Palmer Hospital. The pregnancy was complicated by pre-eclampsia, asthma, GERD and obesity. The mother had a fever to 101 degrees at time of delivery and was diagnosed with chorioamnionitis. Elias was born vaginally with a birth weight of 5 pounds 10 ounces (2547 grams). Apgar scores were 8 and 9 at 1 and 5 minutes. Elias was admitted to the NICU and found to have a blood glucose of 35. His NICU stay was further complicated by apnea and desaturation that raised concerns for seizures; he was started on Keppra, Elias was never intubated or mechanically ventilated and was maintained on room air. An MRI scan of the brain on DOL #2 revealed multiple ischemic infarcts involving the left lateral temporal lobe, left posterior thalamus and left hippocampal formation. There was adjacent extra-axial hemorrhage over the left temporal lobe. The findings were felt to most likely represent areas of venous infarction. Dr. Duchowny’s medical report is attached to his Affidavit, with the Affidavit being attached to the motion as Exhibit “2”. His Report reflects his ultimate opinion that: A consideration of the findings from today's evaluation and record review lead me to recommend that Elias not be considered for compensation within the NICA program. He has normal motor functions and his stroke was likely acquired prenatally. There is no evidence of either mechanical injury or oxygen deprivation in the course of labor, delivery or the immediate post-delivery period. The Affidavits of Dr. Willis and Dr. Duchowny are the only evidence of record relating to the issue of whether the subject claim is compensable as defined by the statute. As noted, Petitioner did not file a response to the motion, nor submit countervailing affidavits. The Petition, along with the Affidavits attached to the motion, establish that there are no genuine issues of material fact regarding the compensability of this claim.
