The Issue At issue in this proceeding is whether Brenay Janelle Jackson, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Petitioners, Bridget Jackson and Horace Jackson, are the parents and natural guardians of Brenay Janelle Jackson (Brenay), a minor. Brenay was born a live infant on January 11, 2002, at Palmetto General Hospital, a hospital located in Hialeah, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Brenay was Ignacio Alfredo Ramirez, 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." Brenay's presentation On August 15, 2002, following the filing of the claim for compensation, Brenay was examined by Michael S. Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. Dr. Duchowny reported the results of that neurology evaluation, as follows: HISTORY ACCORDING TO MR. & MRS. JACKSON: The parents began by explaining that Brenay is seven months old and has a "weak left arm." They indicated that Brenay's arm has been in this condition since birth and has "not improved very much." They believe that Brenay's left arm has limited mobility despite physical therapy provided on a routine basis. She additionally receives direct electrical stimulation to the muscles of the upper extremity. They noted that Brenay's "thumb turns in" and that she "cannot get her palm up." However, there is certainly a dexterity in the hand and she is able to use both hands in a cooperative fashion. There are more problems at the shoulder in that she is unable to raise her left arm as high as the right. Brenay underwent surgical reconstruction of the left brachial plexus three weeks ago. Surgery was performed by Dr. John Grossman and included a transplant of the left sural nerve. The procedure was uncomplicated. Brenay is also followed by Dr. Michael Tidwell in the Orthopedics department at Miami Children's Hospital. Brenay's right arm has full function and there are no problems with regard to her lower extremities. She rolled over at six months and is now sitting on her own. Her head and neck have a slight tilt to the right, but this does not compromise Brenay functionally. Brenay's hearing and vision are said to be adequate and there have been no changes in her appetite. She sleeps through the night. Brenay is on no intercurrent medications. There has been no recent exposure to toxic or infectious agents and no significant postnatal injuries. FAMILY HISTORY: Brenay's mother and father are both 36 years old. Two brothers, ages eight and seven are healthy. No family members have paralysis, mental retardation, epilepsy or developmental delay. PRE and PERINATAL HISTORY: Brenay was born at term at Palmetto General Hospital. She weighed 8-pounds, 15-ounces and was delivered vaginally. She remained in the hospital for two days. The parents stated that she breathed well at birth and did not have postnatal jaundice. Brenay's immunizations have been proceeding on schedule and she has no known drug allergies. Brenay's PHYSICAL EXAMINATION reveals an alert and playful seven month-old, well- developed, well-nourished black female. Brenay weighs 18-pounds. Her skin is warm and moist and there are no neurocataneous stigmata. There are no digital, skeletal, or palmar abnormalities and no dysmorphic features. The cranial contour appears normal and the head circumference measures 43.4 cm, placing Brenay in the 60th percentile for age-matched controls. The anterior and posterior fontanelles are both patent and flat. There are no significant facial asymmetries. Tongue thrusting is noted intermittently and there is some drooling. The head has a very slight tilt to the right side. The neck is supple without masses, thyromegaly or adenopathy, and the cardiovascular, respiratory and abdominal examinations are normal. There are healed linear scars over the left calf and left lower lateral cervical region. Brenay's NEUROLOGIC EXAMINATION reveals an alert infant sitting in her mother's lap. She is extremely engaging and smiles frequently. Brenay makes frequent cooing noises and appears extremely interested in objects and people in her immediate surround. Her cranial nerve examination reveals full visual fields to confrontation testing. The extraocular eye movements are full and conjugate and the pupils are 3 mm and briskly reactive to direct and consensually presented light. There is no ptosis. Fundoscopic examination reveals appropriately demarcated disc margins without pallor and no evidence of retinopathy. The facial movements are symmetric and the tongue moves well. The uvula is midline. Motor examination reveals a functional asymmetry of the upper extremities. Brenay tends to move her right arm much more actively, and in contrast, the left shoulder mobility is diminished. There are no fixed contractures. The shoulder is held in a position of mild internal rotation and adduction. The elbow is flexed and the wrist is pronated. There is full range of motion at the wrist and finger joints and Brenay demonstrates good individual finger dexterity. There were no asymmetries of motor bulk in the forearm compartments, but the arm showed a slightly greater ridging over the lateral surface on the left. There is no asymmetry of the dorsal musculature and the shape and slope of the shoulders appeared symmetric and normal. I was unable to accurately assess sensory function in the upper extremities. The deep tendon reflexes are 2+ at the knees and ankles and 1+ to 2+ in the right biceps and brachial radialis. The right triceps is trace. In contrast, the left biceps and brachial radialis are trace and there is no evidence of a left triceps jerk. Brenay is able to sit with good head control and has a good grasping bilaterally. There are no pathologic reflexes. She stands with support. The NEUROVASCULAR EXAMINATION reveals no cervical, cranial or ocular bruits, and no temperature or pulse asymmetries. Brenay is able to grasp objects with either hand, and she demonstrates reasonably well-developed pincer grasp with both the right and left fingers. She does not yet transfer. IN SUMMARY, Brenay's neurologic examination reveals evidence of a mild left Erb's palsy, affecting the fifth, sixth, and seventh cervical roots. The lower brachial plexus appears preserved, and there are no other neurologic abnormalities. Brenay's Erb's palsy appears to be improving slightly, but it is as yet too early to know how well she will do subsequent to her surgical repair. In contrast, the neurologic examination demonstrates no evidence of mental or motor impairment referable to the central nervous system. An Erb's palsy, such as that evidenced by Brenay, is a weakness of an upper extremity due to damage of the nerve roots of the upper brachial plexus,2 and does not involve the brain or spinal cord.3 Moreover, the impairment Brenay suffers is mild, as opposed to substantial, and there is no evidence of mental impairment. Consequently, while Brenay may have suffered a mechanical injury, permanent in nature (to her left 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.
Findings Of Fact By stipulation filed December 27, 1993, petitioners and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Fla. Stat., a claim was filed on behalf of the above-styled infant against NICA on behalf of GEANCARLO RODRIGUEZ, PATRICIA RODRIGUEZ and GUSTAVO RODRIGUEZ (the "Petitioners") for benefits under Chapter 766.301-766.316 Fla. Stat. That a timely filed Claim for benefits complying with the requirements of Section 766.305, Fla. Stat., was filed by the Petitioners and a timely Notice of Non- Compensability Setting forth that NICA denied the claim was filed on behalf of NICA. That the infant, GEANCARLO RODRIGUEZ, was born at Hialeah Hospital on August 22, 1991, and Hialeah Hospital was a licensed Florida Hospital and the attending physician, Dr. Laida N. Casanova was a participating physician within the meaning of Chapter 766, Fla. Stat. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. Section 766.302(2), Fla. Stat. states that "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 grams at birth 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. The parties agree that GEANCARLO RODRIGUEZ suffers from a right brachial plexus injury. A brachial plexus palsy injury is not an injury to the brain or spinal cord and further, does not result in any mental injury. The parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., including in particular his reports dated April 28, 1993, and November 15, 1993. Copies of these reports have been attached hereto and incorporated herein respectively as Exhibits 1 and 2. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply. Based upon this stipulation, the parties request the hearing officer to rule on Petitioners' claim based upon this Stipulation, and the attached medical records. The neurological examinations of Geancarlo reveal that he suffered a right Erb's palsy directly related to the right brachial plexus injury he received at birth. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury and, further, does not result in mental injury. Moreover, Geancarlo's mental functioning is normal and not impaired due to any birth related complications.
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.
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 Bentley Bragg was born on May 9, 2013, at Winnie Palmer Hospital located in Orlando, Florida. Bentley weighed 4,233 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Bentley. In a medical report dated July 23, 2015, Dr. Willis opined as follows: Delivery was complicated by a shoulder dystocia, resulting in about a one minute delay in delivery. The baby was eventually delivered after extension of an episiotomy and rotation of the posterior arm. Birth weight was 4,233 grams (9 lbs 5 oz’s). This would be large-for-gestational age (LGA). Apgar scores were 3/8. Bag and mask ventilation was given for about 80 seconds. The baby had no movement of the left arm. Left brachial plexus injury was diagnosed. Newborn exam and hospital course were otherwise benign. The baby had significant bruising and was evaluated by Hematology and monitored for bilirubin levels. There were not EEG’s or imaging studies of the brain. In summary, delivery of the LGA baby was complicated by a shoulder dystocia which resulted in a brachial plexus injury. Hospital and medical records did not suggest oxygen deprivation or brain injury. MRI of the cervical spine after hospital discharge was reported as a “normal cervical spine.” There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Bentley and to review his medical records. Dr. Sigurdardottir examined Bentley on September 2, 2015. In a medical report regarding her independent medical examination of Bentley, Dr. Sigurdardottir opined as follows: Overall assessment, here we have a 2-year 4- month-old male with a severe upper brachial plexus injury, which has required muscle and tendon transfer surgery because of an increasing deformity of shoulder and shoulder contraction. He does have fairly sustained functional abilities, although not complete. Bentley also has an expressive language delay that is not felt to relate to his physical brachial plexus injury which definitely is birth related. Mild depression at birth with an Apgar score of 3 did show prompt recovery and a cord pH that was within normal limits. Result as to question 1: The child is found to have a permanent physical impairment, but no obvious mental impairment. His mild expressive language delay does not substantiate a profound mental impairment. * * * Due to the fact that Bentley’s disability only relates to physical impairment and no clear mental impairment related to birth- related neurologic injury can be found, I am not recommending Bentley to be included into the Neurologic Injury Compensation Association (NICA) program and would 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 there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain or spinal cord during labor, delivery or the immediate post-delivery period. Dr. Willis’ opinion is credited. There have been no expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Bentley is not found to have a substantial mental impairment. Dr. Sigurdardottir’s opinion is credited. Moreover, in response to an interrogatory served to Petitioner by NICA, Petitioner acknowledged that she does not contend that Bentley suffers from a permanent and substantial mental impairment.
