The Issue The issues presented in this cause are: (1) Whether or not the Petitioner, Terri Taylor weighed at least 2500 grams at birth; (2) Whether or not the Petitioner, Terri Taylor, suffered a brain or spinal cord injury resulting from oxygen deprivation or mechanical injury during labor, delivery or resuscitation in the immediate post-delivery period in a hospital; (3) Whether such injury resulted in a permanent and substantial mental and physical impairment to Petitioner Terri Taylor; and, (4) Whether or not obstetrical services were delivered by a participating physician in the course of labor, delivery or resuscitation in the immediate post- delivery period in a hospital.
Findings Of Fact That Terri Taylor, a minor, was born to Latrina Taylor on February 1, 1991, at Baptist Medical Center, 800 Prudential Drive, Jacksonville, Florida 32207. That the physician delivering obstetrical services during the birth of Terri Taylor was H. Wade Barnes, Jr., M.D., who at all times material to this cause was a "participating physician" with the Florida Birth-Related Neurological Injury Compensation Plan. That the estimated fetal weight of Terri Taylor at birth was in excess of 2500 grams. That Terri Taylor was neurologically evaluated on June 24, 1992 at the Miami Children's Hospital by Michael S. Duchowny, M.D. That Dr. Duchowny, a board certified pediatric neurologist, concluded that Terri Taylor suffered from a substantial neurological deficit involving spasticity in all four limbs, cortical blindness, microcephaly, and a complete lack of expressive language skills. That the neurological deficits experienced by Terri Taylor were not the result of oxygen deprivation or mechanical injury suffered during labor, delivery, or resuscitation in the immediate post-delivery period. Instead, the evidence of record indicates that the organic brain damage suffered by Terri Taylor is a result of a prenatally acquired infection which caused irreversible brain damage in a pattern consistent with such a process. Specifically, a neuroimaging study (MRI) demonstrated the existence of cystic encephalomalacia represented by multiple cystic cavities throughout the brain with fibrotic bands around the cavities. This is a pattern of brain damage consistent with a prenatally acquired infection. Based upon the foregoing medical evidence, Dr. Duchowny concluded that Terri Taylor suffered from a prenatally acquired infection which resulted in extensive cystic encephalomalacia as evidenced in the neuroimaging studies. Therefore, Dr. Duchowny concluded that Terri Taylor did not suffer from a birth-related neurological injury as defined at Section 766.302(2) Florida Statutes. His findings are accepted.
Findings Of Fact Kathaileen F. Arbulu was born on April 27, 2013, at Osceola Regional Medical Center in Kissimmee, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Kathaileen. In a report dated March 9, 2016, Dr. Willis described his findings in pertinent part as follows: The mother was admitted to the hospital at 38 weeks for induction of labor due to preeclampsia and a history of Gestational Diabetes. Fetal heart rate (FHR) monitor tracing during labor did not suggest fetal distress. Seizure activity occurred during the induction. Eclampsia was diagnosed and intravenous MgSO4 started for management. Cesarean section was done due to Eclampsia. The delivery was stated to be uncomplicated. Amniotic fluid was clear. There was a loose nucal cord. Birth weight was 4,210 grams or 9 lbs 4 oz’s. The baby was not depressed. Apgar scores were 8/8. The infant cried spontaneously at delivery. No resuscitation was required. The baby was given blow-by oxygen for two- minutes and then transferred to the nursery. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. A review of the file reveals that no contrary evidence was presented to dispute Dr. Willis’ finding that Kathaileen’s injuries were not the result of oxygen deprivation or mechanical injury during labor, delivery, or the immediate post-delivery period. Dr. Willis’ opinion is credited.
The Issue At issue is whether Frisline Jeanise Victor, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Marie J. Desir is the natural mother and guardian of Frisline Jeanise Victor, a minor. Frisline was born a live infant on September 7, 1999, at Jackson Memorial Hospital, a hospital located in Miami, Florida, and her birth weight was 3,625 grams (8 pounds, 0 ounces). The physician providing obstetrical services at Frisline's birth was Jerry Gilles, 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 for infants who suffer a "birth-related neurological injury," defined as 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 postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. In this case, it is undisputed that Frisline is permanently and substantially mentally and physically impaired. What remains to resolve is whether her impairments resulted from an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation." Frisline's birth and immediate postnatal course At or about 12:50 p.m., September 7, 1999, Ms. Desir, with an estimated delivery date of September 19, 1999, and the fetus at 38+ weeks gestation, presented to Jackson Memorial Hospital, in early labor. At the time, Ms. Desir's membranes were noted as intact, and vaginal examination revealed the cervix at 4 centimeters dilation, effacement at 50 percent, and the fetus out of the pelvis. Uterine contractions were noted as moderate, at a frequency of 5-6 minutes, and external fetal monitoring revealed a reassuring fetal heart rate, with a baseline in the 140-beat per minute range. Maternal history during pregnancy was significant for two hospitalizations secondary to uncontrolled diabetes. Ms. Desir was admitted, and examination revealed the baby to be approximately 4,082 grams (9 pounds). Consequently, given the suspected macrosomia (great bodily mass) of the baby, and a history of a previous infant weighing 5,300 grams (11 pounds, 11 ounces), with severe shoulder dystocia, and a borderline pelvis, it was resolved to proceed with an elective cesarean section. Ms. Desir underwent a low segment transverse cesarean section, without complication, and Frisline was delivered at 8:30 p.m. At delivery, Frisline cried immediately; showed good heart rate, respiratory effort, muscle tone, reflex irritability, and color; and did not require oxygen or resuscitation. Apgar scores were normal, and noted as 9, 9, and 9 at one, five, and ten minutes, respectively.2 Frisline was transferred to the neonatal intermediate unit for monitoring secondary to a history of maternal diabetes mellitus (DM) and insulin dependence. Admission physical was grossly normal, she remained clinically stable (with blood glucose within normal limits), and, but for a "very soft" heart murmur noted on September 8, 1999, her transition was unremarkable. Frisline was scheduled for discharge on September 10, 1999; however, due to maternal complications, she was transferred to the newborn nursery and held pending her mother's improvement. Maternal complications noted in Ms. Desir's Discharge Summary were as follows: . . . INITIALLY PATIENT WAS AFEBRILE WITH VITAL SIGNS STABLE. SUBSEQUENTLY THE PATIENT STARTED DEVELOPING TEMPERATURE SPIKES TO 102.6. EXAMINATION REVEALED POSITIVE UTERINE TENDERNESS WITH FOUL- SMELLING LOCHIA. THE PATIENT WAS DIAGNOSED WITH ENDOMYOMETRITIS ["inflammation of the muscular substance, or myometrium, of the uterus"3] AND STARTED ON GENTAMYCIN AND CLINDAMYCIN. THE PATIENT CONTINUED TO SPIKE AT 48 HOURS OF ANTIBIOTICS AND WAS STARTED ON AMPICILLIN. DURING THIS TIME, THE PATIENT DEVELOPED SOME NAUSEA AND VOMITING PROBABLY SUSPECTED SECONDARY TO POSTOPERATIVE ILEUS. NASOGASTRIC TUBE WAS NOT PLACED AS CLINICALLY PATIENT APPEARED TO BE IMPROVING WITH ADDITION OF THIRD ANTIBIOTIC. ON POSTOPERATIVE DAY SIX, THE PATIENT WITH RESOLVED ENDOMETRITIS, AFEBRILE FOR GREATER THAN 30 HOURS, TOLERATING A REGULAR DIET . . . . Therefore, on September 13, 1999, postoperative day six, Ms. Desir was discharged; however, given intervening complications, Frisline was not discharged until September 15, 1999. Notably, following her transfer to the newborn nursery on September 10, 1999, Frisline's course was unremarkable until at or about 1:30 p.m., September 12, 1999, when she appeared "jittery" and evidenced "intermittent grunting," and at 2:00 p.m., she was transferred to the neonatal intermediate care unit for observation and further management. At the time of transfer, labs were ordered, including complete blood count (CBC) and blood culture (BC), to rule out sepsis. Following admission to the neonatal intermediate unit, Frisline's examination was unremarkable, with no grunting noted, and her condition stable. Labs, including CBC and BC were unremarkable, as were follow-up labs on September 13, 1999, and Frisline was discharged on September 15, 1999. Discharge physical examination was grossly normal, but for a faint heart murmur. The cause and timing of Frisline's neurologic examination Petitioner offered no proof to address the cause and timing of Frisline's neurologic impairments. In contrast, NICA offered the medical records related to Frisline's birth and immediate postnatal course (Respondent's Exhibits 1 and 2), discussed supra; the deposition and report of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine (Respondent's Exhibits 3 and 5). Dr. Willis reviewed the medical records related to Frisline's birth and immediate postnatal course, and was of the opinion that the records failed to reveal any evidence of trauma or oxygen deprivation during labor, delivery, or the immediate postdelivery period, to support a conclusion that Frisline suffered "birth-related neurological injury." NICA also offered a report by Michael Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital (Respondent's Exhibit 4) who, following examination of Frisline, was of the opinion that her neurologic examination revealed a severe degree of mental and motor impairment.4 Notably, the medical records do not reveal an etiology for Frisline's neurologic impairment; Petitioner offered no competent medical evidence to support a conclusion that, more like than not, Frisline suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period that resulted in her neurologic impairment; and the expert opinion of Dr. Willis is consistent with the medical records and otherwise uncontroverted. Consequently, it must be resolved that the proof fails to demonstrate that Frisline suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period that resulted in her neurologic impairment. (See Wausau Insurance Company v. Tillman, 765 So. 2d 123 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obliged to present expert medical evidence establishing that causal connection."); Ackley v. General Parcel Service, 646 So. 2d 242 (Fla. 1st DCA 1995)(determining cause of psychiatric illness is essentially a medical question, requiring expert medical evidence); Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation.").
Findings Of Fact On September 26, 2014, at 11:43 a.m., Lila Natour gave birth to a baby boy named Ziad Ahmad at Mount Sinai Medical Center. A certified copy of Ziad’s medical records, including the NICU Discharge Summary, was attached as Exhibit A to the Motion for Final Summary Order. The medical records obtained from Mount Sinai Medical Center lists Ziad’s weight at birth as 2,149 grams. The only evidence of record are the limited medical records, which identify Ziad’s birth weight as four pounds, 11.8 ounces, or 2,149 grams. Petitioners, who bear the burden of proof, have submitted nothing to refute a determination that Ziad’s birth weight was below the 2,500 grams required for eligibility for a single gestation, under the definition of birth-related neurological injury as defined in section 766.302(2).
Findings Of Fact Nina Udenze was born on April 19, 2013, at Memorial Hospital in Jacksonville, Florida. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Nina's medical records. In medical reports dated February 8 and March 12, 2016, Dr. Willis made the following findings and expressed the following opinion: I have reviewed the medical records, pages 1-505 for the above individual. The mother, . . . was a 34 year old G3 P2002 with a twin pregnancy. Nina was the B twins [sic]. The mother had a history of two prior Cesarean deliveries. * * * Repeat Cesarean section was done in early labor. Fetus B (Nina Udenze) was in a transverse lie. The baby was converted to breech and delivered. Birth weight was 2,152 grams (4 lbs 11 oz’s). Apgar scores were 6/9. The baby initially had a poor respiratory effort and required bag and mask ventilation for 45 seconds with good response. Apgar score was 9 by five minutes. The baby was taken to the NICU. The operative note indicated cord blood gases were done for both babies. However, only one cord blood gas result was seen in the available records (page 298). It was not labeled A or B and was apparently a venous sample. The pH was normal at 7.31 with a BE of -5. Hospital discharge was on DOL 4. The baby failed the newborn hearing test. Placental pathology was normal. There does not appear to be a birth related hypoxic brain injury based on available, but medical records are limited. No head imaging studies were available. It would be helpful if we could get the cord blood gas for fetus B. Thank you for allowing me to review this case. I will be available to review any additional records if they become available. Specifically, any head imaging studies and the cord blood gas for fetus B would be helpful. * * * Additional medical records were reviewed for the above individual, which included two MRI studies. The first MRI was done at about 8 months of age. A posterior fossa cyst was identified as well as findings suggestive of cerebral volume loss. MRI of the spine on the same day showed scoliosis. A follow-up MRI was done at about 2 ½ years of age, again identified the posterior fossa arachnoid cyst and also described partial absence of the Falx. It is also my understanding a cord blood gas for this child was not done at birth. The cord blood gas in the medical records was for the twin sibling. The additional medical records do not change the opinion given in the previous letter dated 02/08/2016. There does not appear to be a birth related hypoxic brain injury or mechanical trauma resulting in brain or spinal cord injury. In an affidavit dated April 1, 2016, Dr. Willis reaffirmed his ultimate opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period. Dr. Willis was deposed on May 26, 2016, wherein he testified in pertinent part as follows: Q. Okay. Do the records show that any mechanical devices such as forceps or vacuum extractions was used in the delivery? A. No. Q. You also note that her apgar scores were six and nine. Could you explain what an apgar score is? A. Yes. The apgar scores are given to the babies for a couple of reasons. The apgar score, the first apgar score is at one minute. And apgar scores can be anywhere from zero to ten. And the apgar score at one minute tells you how much resuscitation the baby requires at time of birth. An apgar score of seven or above would be considered normal. An apgar score below seven would be considered low. The one- minute apgar score is six. So, it was slightly lower than expected. However, by five minutes, the apgar score was nine, which would be a very good score showing that the baby transitioned well after birth. Babies that have significant oxygen deprivations during time of delivery, usually it takes a longer time for them to transition and recover. The baby seemed to recover fairly quickly. Q. Had there been oxygen deprivation at the time of delivery, what types of symptoms would you expect to see? A. Babies that have significant oxygen deprivation during the birthing process will be depressed and require resuscitation. They usually have respiratory distress. So, they’ll need some type of oxygen bag, mask ventilation, intubation. And then they will go to the neonatal intensive care nursery at -- which sometimes they will often have abnormalities in many of their different organ systems. For instance, seizure disorders are very common after brain injury at time of birth. You can also have renal failure, elevated liver function studies, blood clotting abnormalities. So, babies that have significant oxygen deprivation at birth will usually have some combination of these problems in the nursery. A baby that goes to the nursery and has a relatively benign newborn course in the nursery would not be consistent with significant oxygen deprivation during labor or delivery. Q. And in Nina’s case, what did the records indicate regarding her newborn course? A. The newborn course looked pretty uncomplicated. In fact, the newborn records pretty much just show normal newborn care, no significant problems in the newborn period. And the baby was discharged home on the third day of life. So, no prolonged hospital stay. * * * Q. All right. And based on your second letter dated March 2016, which is Exhibit 3, your final opinion was that there does not appear to be a birth-related hypoxic injury or mechanical trauma resulting in brain or spinal cord injury. Is that still your opinion today? A. That’s correct. Q. During your review of the medical records, did you find that Nina Udenze suffered oxygen deprivation occurring in the course of labor/delivery or resuscitation in the immediate postdelivery period that would have resulted in brain injury? A. No. Q. During review of the medical records, did you find that Nina Udenze suffered a mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period that would have resulted in brain injury or injury to her spinal cord? A. No. Q. And have your opinions today been rendered within a reasonable degree of medical certainty? A. Yes. Dr. Willis' opinion that there was no apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery and continuing into the immediate post-delivery period, is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate Nina. Dr. Duchowny reviewed Nina's medical records and performed an independent medical examination on her on February 3, 2016. In an affidavit dated April 4, 2016, Dr. Duchowny made the following findings and summarized his evaluation as follows: It is my opinion that: In SUMMARY, Nina's neurological examination reveals findings consistent with a substantial mental and motor impairment. Although Nina is walking, her gait is unstable with abnormal motor functioning and hyerreflexia. Her epicanthal folds were acquired prenatally and her unilateral hearing loss is unexplained. She also has microcephaly. A have had an opportunity to review the medical records which were sent on January 28, 2016. They reveal that Nina’s mother went into labor at 36 weeks gestation after experiencing spontaneous rupture of her membranes. Nina and her fraternal twin brother were delivered by urgent cesarean section. The fetal heart rate was stable. Nina was 4 pounds 11 ounces at birth and had 1 and 5 minute Apgar scores of 6 and 9. She required positive pressure ventilation for 45 seconds but then stabilized and did not experience subsequent respiratory complications. There was no evidence of multiorgan system involvement. Nina was discharged from Memorial Hospital Jacksonville on the 5th day of life. The medical records do not include the results of brain imaging studies. Before making a final determination, I would request to review the salient imaging studies. * * * I have now reviewed neuroimaging studies including MR brain imaging. The images do not reveal findings consistent with either an intra-partum hypoxic-ischemic insult or a mechanical injury. It is my opinion that together with the record review and neurological evaluation, the imaging findings confirm that Nina did not suffer from a birth-related neurological injury, and I am therefore not recommending inclusion within the NICA program. Dr. Duchowny's opinion that Nina did not suffer from a birth-related neurological injury is credited. 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 that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord occurring in the immediate post- delivery period. Dr. Willis’ opinion is credited. Dr. Duchowny’s opinion that, although Nina has a substantial mental and motor impairment, she did not suffer from a birth- related neurological injury, is credited.
Findings Of Fact Joshua Clement was born on January 2, 2012, at Holmes Regional Medical Center. He weighed 4,173 grams. Joshua's vaginal birth was complicated by shoulder dystocia. His Apgar scores were 5/9. Bag and mask ventilation was required for less than 30 seconds after birth. Joshua responded to the resuscitation and was taken to the nursery at the hospital. His newborn hospital care was essentially uneventful. Joshua was subsequently diagnosed with Erb's palsy. Donald C. Willis, M.D. (Dr. Willis), reviewed the medical records for Joshua's delivery and opined that "[t]here 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." On February 8, 2012, Michael S. Duchowny, M.D. (Dr. Duchowny), evaluated Joshua. Upon examination of Joshua and the pertinent medical records, Dr. Duchowny opined that: Joshua's neurological examination reveals findings consistent with a diagnosis of mild Erb's palsy affecting primarily the C5/6 and to a lesser degree C7 dermatomes. He has no sensory abnormalities and his motor deficits are mild and will likely improve with time. There were no findings referable to motor impairment arising from damage to the central nervous system and certainly his cognitive abilities are entirely intact. I have reviewed records sent on January 23, 2012. The information supports the mother's history and provides no information to suggest neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury. I therefore do not believe that Joshua should be considered for compensation within the NICA program. He has a mild motor impairment which is the result of forces acting outside of the brain and spinal cord. Furthermore, his mental function is normal for age. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinions of either Dr. Willis or Dr. Duchowny. The opinions of Dr. Willis and Dr. Duchowny that there was no neurologic injury to the brain or spinal cord due to oxygen deprivation or mechanical injury are credited. Additionally, Dr. Duchowny's opinion that Joshua is not mentally impaired is credited.
Findings Of Fact Calise L. Muniz was born on May 2, 2015, at Holmes Regional Medical Center, located in Melbourne, Florida. Calise weighed in excess of 2,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Calise. In a medical report dated January 24, 2017, Dr. Willis opined in pertinent part as follows: In summary, the mother apparently became hypotensive after placement of epidural anesthesia with resulting fetal distress. The baby was depressed at birth. The initial ABG was consistent with metabolic acidosis. Cooling protocol was initiated for HIE. EEG was normal for age. No MRI or CT scan was done during the newborn hospital course. There was an apparent obstetrical event that resulted in loss of oxygen during labor and delivery. However, there was no documentation of actual brain injury. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Calise and to review her medical records. Dr. Sigurdardottir examined Calise on February 1, 2017. In a medical report dated February 1, 2017, Dr. Sigurdardottir summarized her examination of Calise and opined in pertinent part as follows: Summary: Calise is a 21-month-old female who was born via emergency cesarean section after nonreassuring fetal heart rate tracings were noted after a high spinal anesthesia. She had poor Apgars of 2, 4 and 5 after 1, 5 and 10 minutes, and was treated with cooling protocol. She did not have any neonatal seizures and the only neuroimaging available is a head ultrasound on day of life 1 that was normal. On neurologic exam today she is normal, both with her motor skills and cognition and language development. There are no signs of autistic features. Results as to question 1: Calise is not found to have substantial physical or mental impairment at this time. Results as to question 2: In review of available documents, she does have the clinical picture of an acute birth-related hypoxic injury. Results as to question 3: The prognosis for full motor and mental recovery is excellent and her life expectancy is full. In light of the normal cognitive abilities and normal neurologic exam, I do not feel that Calise should be included in the NICA program. If needed, I will be happy to answer additional questions. 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 that while there was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor and delivery, there was no documentation of actual brain injury. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Calise does not have a substantial physical or mental impairment. Dr. Sigurdardottir’s opinion is credited.
Findings Of Fact Andy was born on November 2, 2015, at Tampa General located in Tampa, Florida. Based on the available evidence, Alyssa J. Brown, M.D., was the delivering physician for Andy’s birth. Dr. Brown was a “participating physician” under the Plan at the time Andy was born. See § 766.302(7), Fla. Stat. Upon receiving the Petition, NICA retained Donald Willis, M.D., a board-certified obstetrician/gynecologist specializing in maternal-fetal medicine, as well as Laufey Y. Sigurdardottir, M.D., a pediatric neurologist, to review Andy’s medical condition. NICA sought to determine whether Andy suffered a “birth-related neurological injury” as defined in section 766.302(2). Specifically, NICA requested its medical experts opine whether Andy experienced 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; and, if so, whether this injury rendered Andy permanently and substantially mentally and physically impaired. Dr. Willis reviewed Andy’s medical records and described Andy’s birth as follows: [V]acuum assisted vaginal delivery at term resulted in a newborn with normal Apgar scores and a normal umbilical cord blood gas. [Andy] did not require resuscitation. Dr. Willis then opined: There was no apparent obstetrical event that would have resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. Dr. Sigurdardottir also reviewed Andy’s medical records, as well as conducted an independent medical exam of Andy on May 2, 2018. Dr. Sigurdardottir commented that “Andy is found to have substantial delays in motor and mental abilities. . . . [T]here is no evidence of impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury.” Dr. Sigurdardottir further opined: In light of evidence presented, I believe Andy does fulfill criteria of a substantial mental and physical impairment at this time, but it is likely due to a genetic condition and not to be from birth related injury. I do not feel that Andy should be included in the NICA program. A review of the file reveals no contrary evidence to dispute the findings and opinions of Dr. Willis and Dr. Sigurdardottir. Their opinions are credible and persuasive. Based on the opinions and conclusions of Dr. Willis and Dr. Sigurdardottir, NICA determined that Petitioner’s claim was not compensable. NICA subsequently filed the Unopposed Motion for Summary Final Order asserting that Andy has not suffered a “birth-related neurological injury” as defined by section 766.302(2). Petitioners do not oppose NICA’s motion.
Findings Of Fact Ian Ocasio was born on April 20, 2010, at Winnie Palmer Hospital for Women and Children in Orlando, Florida. Ian weighed 2,749 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Ian. In a medical report dated September 20, 2013, Dr. Willis opined: In summary, the baby was delivered by Cesarean section due to preterm labor and a recent genital herpes outbreak. Herpes cultures from the baby were negative. There was no fetal distress during labor. The baby was not depressed at birth and did not require any resuscitation. Umbilical cord blood gas was not done. Apgar scores were normal. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. A review of the file does not show any contrary opinions, and Petitioners have no objection to the issuance of a summary final order finding that the injury is not compensable under the Plan. The opinion of Dr. Willis that Ian did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or the immediate post- delivery period is credited.
Findings Of Fact Antonia was born on March 14, 2012, at Plantation General Hospital located in Plantation, Florida. Antonia weighed 3,665 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Antonia. In an affidavit dated September 19, 2013, Dr. Willis opined the following: It is my opinion that the pregnancy was complicated by poorly controlled Diabetes with a large-for-gestational age baby and resulting in dystocia at delivery. The baby was depressed at birth, but “rapidly improved.” The baby suffered a brachial plexus injury from the shoulder dystocia, but there was no evidence of brain injury. As such, it is my opinion that delivery was complicated by a shoulder dystocia with resulting brachial plexus injury. However, there was no apparent brain or spinal cord injury from loss of oxygen or mechanical trauma. Michael S. Duchowny, M.D., a pediatric neurologist, was retained by NICA to examine Antonia. Dr. Duchowny examined Antonia on August 28, 2013. In an affidavit dated September 18, 2013, Dr. Duchowny opined as follows: It is my opinion that Antonia’s neurological examination reveals evidence of a complete left brachial plexus palsy involving nerve roots C5 to T1. She thus has both an Erb’s and Klumpke’s paralysis which is judged to be severe. There appears to be little benefit from her previous surgery as she most likely had an avulsive type injury. In contrast, Antonia’s cognitive status and motor ability in her other three extremities are well preserved. I had an opportunity to fully review the medical records that were sent on July 25, 2013. The records confirm the family’s history of shoulder dystocia at birth. Antonia’s Apgar scores were 0, 6 & 8 at 1, 5 and 10 minutes. Her brachial plexus palsy was recognized immediately. She was intubated in the delivery room but extubated at 10 minutes of age. Of note, an MRI of Antonia’s brachial plexus performed on June 29, 2012[,] revealed pseudomeningocele formation at the C7 and T1 levels. As such, it is my opinion that Antonia’s brachial plexus palsy places her damage outside the central nervous system as it involves cervical and upper thoracic root segments. Although her injury was likely acquired as a result of mechanical forces during delivery, the location of her impairment is outside the central nervous system (brain and spinal cord). I therefore believe that Antonia should not be considered for compensation with the NICA program. A review of the file does not show any contrary opinions to those of Dr. Willis and Dr. Duchowny. The opinions of Dr. Willis and Dr. Duchowny that Antonia did not suffer a brain or spinal cord injury due to oxygen deprivation or mechanical injury during labor, delivery, and resuscitation during the post- delivery period are credited.
