The Issue At issue in this proceeding is whether the infant, gacob Tomlian, has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury compensation Plan.
Findings Of Fact Fundamental findings 1. Jacob Tomlian (Jacob) is the natural son of Dora Lee and Kevin James Tomlian. He was born a live infant on May 11, 1991, at Humana Hospital-Bennett n/k/a Westside Regional Medical Center, a hospital located in Broward County, Florida, and his birth weight was in excess of 2500 grams. 2. The physician providing obstetrical services during the birth of Jacob was Mark S. Grenitz, M.D., who was, at all times material hereto, a “participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. The birth of Jacob Tomlian 3. At or about 6:28 a.m., May 11, 1991, Dora Lee Tomlian was admitted to Humana Hospital-Bennett for induction of labor. At the time, Jacob was post-term, with a gestational age of approximately 42 weeks and Mrs. Tomlian’s obstetrician, Mark S. Grenitz, M.D., proposed, the cervix being favorable, to attempt a vaginal birth after a cesarean section (a "VBAC"). 4. Upon admission, a vaginal exam revealed dilation of the cervix at 1-2 centimeters, effacement at 50 percent, and the fetus at station -3. Fetal monitoring was commenced at 7:30 a.m. and continued throughout labor until 4:16 p.m., shortly before Mrs. Tomlian was taken to an operating room for a cesarean section, discussed infra.? During the entire time, as evidenced by the fetal monitor strips, the fetal heart tone was completely normal, with no evidence of fetal compromise or oxygen deprivation. 5. At 7:50 a.m., a second vaginal exam revealed dilation of the cervix at 2 centimeters, effacement at 80 percent and the fetus at station -2. Dr. Grenitz performed an amniotomy (an artificial rupture of the fetal membrane) to induce labor, and a large amount of clear amniotic fluid was observed. Labor ensued, and Mrs. Tomlian slowly progressed through labor until her cervix was dilated to 3 centimeters. Thereafter, labor failed to progress and Dr. Grenitz, diagnosing an arrest in the active phase of labor, proposed to proceed with a cesarean section. 6. At or about 4:20 p.m., Mrs. Tomlian was taken to the operating room, and at 4:44 p.m., Jacob was delivered by cesarean section. During delivery two loops of the nuchal cord were observed around Jacob’s neck, but upon delivery he exhibited a cry and no meconium was present. Jacob's Apgar scores were 7 at one minute and 8 at five minutes. 7. The Apgar scores assigned Jacob are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart. rate, respiratory effort, muscle tone, reflex irritability, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute Jacob’s Apgar score totaled 7, with heart rate, respiratory effort and reflex irritability being graded at 2 each, muscle tone being graded at 1, and color being graded at 0. At five minutes, Jacob's Apgar score totaled 8, with heart rate, respiratory effort and reflex irritability being graded at 2 each, and muscle tone and color being graded at 1 each. Such scores would be characterized by an obstetrician as "normal", and are inconsistent with those that would normally be expected of an infant who developed fetal compromise or hypoxic insult during labor or delivery.? 8. Following delivery, Jacob was administered oxygen by mask for about one minute. Physical examination was essentially normal, with the exception that Jacob was noted to have a large head for his age, equinovarus positioning of both feet and diminished tone (hypotonia/limpness). Consequently, Jacob was admitted to the newborn nursery with the recommendation that he undergo an orthopedic consultation. 9. On May 12, 1991, Jacob had an orthopedic consultation. Upon examination, the physician M.A., Hajianpout, M.D., observed that "[b]loth feet seem to easily go to neutral rotation", diagnosed a mild positional deformity of both feet, concluded that Jacob "will correct without any problem", and proposed a follow-up consult following his discharge. 10. On May 13, 1991, a cranial ultrasound was performed to address the observation that Jacob had a large head for his age at birth. That examination concluded: Through an anterior fontanelle approach, coronal and sagittal views of the neonatal brain were obtained showing the ventricles to be normal in size and configuration. There is no evidence of an intracranial hemorrhage. The echotexture of the brain parenchyma is normal. No masses or deviation of the midline structures was seen. IMPRESSION: NORMAL NEONATAL CRANIAL ULTRASOUND. 11. The remainder of Jacob’s neonatal course was uneventful, and on May 15, 1991, he and his mother were discharged from the hospital. Subsequent. developments 12. Following discharge, Jacob continued to be followed orthopaedically by Dr. Hajianpour. According to his records, Dr. Hajianpour treated Jacob from May 28, 1991 through October 1992. 13. The records basically reveal that Dr. Hajianpour initially diagnosed Jacob with a mild positional deformity and started Jacob with "straight last shoes" with a monthly follow- up. In July 1991, Dr. Hajianpour again diagnosed a mild deformity of both feet, but also observed metatarsus adductus with internal torsion of tibia bilaterally. Accordingly, he switched Jacob to a "Miami brace" to correct the internal tibial torsion. The "Miami brace" was continued through January 1992, at which time it appeared to Dr. Hajianpour that the feet were normal and the internal tibial torsion had resolved. Accordingly, Dr. Hajianpour rejected further use of the "Miami brace", proposed that Jacob use high top sneakers, and that he return in 3 months for a follow-up visit. 14. Dr. Hajianpour continued to follow Jacob for developmental stages (i.e., every 3 months) and Jacob demonstrated a fairly normal developmental pattern until his last evaluation in October 1992. At that time, Dr. Hajianpour noted the return of some tibial torsion. Specifically, the examination revealed: EXAMINATION: Today he comes in. He has started standing and taking a few steps. However, both feet can go to neutral position and even to about 30 degrees of external rotation. He sits with his knees internally rotated. I discussed with the mother that this should not be allowed; and he should sit like an Indian. As far as the feet are concerned, both of them look good. The foot- thigh angle seems to be within normal limits. There is some degree of tibial torsion. However, I think I can still wait for a few more months and see how he does. PLAN: If he continues having a problem, then we will put him in a Miami brace. 15. On January 14, 1993, Jacob’s parents took him to Michael A. Tidwell, M.D., for a second opinion regarding his bilateral foot deformity. After taking a history from the parents, reviewing Dr. Hajianpour’s records, and examining Jacob, Dr. Tidwell concluded: IMPRESSION: 1. Mild postural deformity of both feet. RECOMMENDATIONS : It would appear that the feet have responded well to the treatment Dr. Hajianpour initiated. The current state of development there seems to be some residual postural problems, but nothing that would need be treated. I anticipate the child will continue to walk totally normally and develop at his own rate. At the present time, I do not see any need for orthopedic intervention. 16. On February 2, 1993, following a referral from Jacob's pediatrician, Ivan Fandel, M.p.,4 Jacob was examined by Stuart B. Brown, M.D., a pediatric neurologist. Dr. Brown's report of that examination, dated February 4, 1993, concluded that Jacob "has a spastic diplegia of the lower extremities and is delayed in his speech and language production from an expressive standpoint. His gait is awkward and dynamically spastic."° Dr. Brown did not, however, identify the cause of Jacob’s condition. 17. Finally, Jacob was examined by Michael S. Duchowny, M.D., a pediatric neurologist, on May 17, 1994. Dr. Duchowny concluded that: In summary, Jacob’s neurologic examination reveals evidence of marked motor delay for both axial and appendicular musculature. He demonstrates generalized hypotonia with hyperreflexia and pyramidal signs suggesting that the motor findings are on a central basis. There is also an element of ataxia. Jacob has oromotor problems and an obvious and marked speech delay. I regard Jacob’s neurologic problems to involve both motor and mental status. I believe that they are both quite substantial and in all likelihood are permanent. The postures of the lower extremities are likely to reflect deformity rather than spasticity. Dr. Duchowny, like Dr. Brown, did not address the cause of Jacob’s condition. 18. Based on the proof, the record supports the conclusion that Jacob suffers from a condition that has rendered him permanently and substantially mentally and physically impaired. What remains to be resolved is the genesis of that condition or , more pertinent to these proceedings, whether the proof supports the conclusion that such condition was 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," as required by Section 766.302(2), Florida Statutes. The cause of Jacob's condition 19. As to whether Jacob’s condition was 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," petitioners offered the deposition testimony of Larry Schneck, M.D., a pediatric neurologist. It was Dr. Schneck’s opinion that Jacob suffered a substantial and permanent mental and physical impairment as a consequence of an injury to the brain caused by oxygen deprivation during the course of labor and delivery. Such opinion was, however, rendered as an ultimate conclusion, and no information or insight as to the basis of his conclusions was offered.°® 20. Compared with the opinion of Dr. Schneck, respondent offered the testimony of Charles Kalstone, M.D., an obstetrician and gynecologist.’ It was Dr. Kalstone’s opinion that Jacob did not suffer any oxygen deprivation during the course of labor and delivery and, consequently, he did not suffer any injury through those mechanisms which could account for his current condition. ® 21. As the predicate for his opinion, Dr. Kalstone observed that the fetal heart monitoring was completely normal, with no evidence to suggest there was any fetal compromise or oxygen deprivation; that the infant was delivered by cesarean section, which is associated with less trauma than natural child birth; that upon delivery Jacob’s Apgars were normal and there was no meconium present; and, that Jacob's neonatal course was otherwise atypical for birth trauma or hypoxia because there were no neonatal seizures or evidence of acidosis or renal failure. 22. Here, I accept the testimony and opinions of Dr. Kalstone as being the more credible and substantial as to whether Jacob’s condition can reasonably be attributed to oxygen deprivation during the course of labor or delivery. Indeed, given the relatively uneventful labor and delivery, as well as Jacob’s postnatal presentation, Dr. Kalstone’s opinions are most consistent with the proof in this case.
Conclusions SSSRARANCES For Petitioner: Scott Mm, Newmark, Esq. 1212 Southeast Third Avenue Fort Lauderdale, Florida 33316 For Respondent; W. Douglas Moody, ur., Esq. Bateman Graham 300 Fast Park Avenue Tallahassee, Florida 32301 For Intervenor: Todd S. Payne, Esq. Tripp, Scott, Conklin & smith Post Office Box 14245 Fort Lauderdale, Florida 33302
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules Of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk Of The Division Of Administrative Hearings and a_ second copy, accompanied by filing fees prescribed by law, with the appropriate District Court Of Appeal. See, Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So.2d 299 (Fla. ist DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 18
The Issue At issue in this proceeding is whether Travis Chestnut, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Treena Chestnut and Terrance Chestnut are the parents and natural guardians of Travis Chestnut (Travis), a minor. Travis was born a live infant on July 26, 1994, at University Medical Center, a hospital located in Jacksonville, Florida, and his birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Travis was James Lewis Jones, M.D., who was, at all time material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Mrs. Chestnut's antepartum course and Travis' delivery Prior to Mrs. Chestnut's admission to University Medical Center, her prenatal course had been essentially uncomplicated. Notwithstanding, she was noted at risk because of a prior cesarean section delivery for fetal distress, and when admitted Travis was slightly post-term at 41.5 weeks. At or about 2:00 a.m., July 25, 1994, Mrs. Chestnut was admitted to University Medical Center. At the time, Mrs. Chestnut was noted to be in labor, and vaginal examination revealed the cervix to be at 2 centimeters, effacement at 100 percent, and the fetus at station 0 with vertex presentation. The membranes were noted to be intact, and fetal heart tone was noted at 135 to 145 beats per minute, with good fetal movement. At 8:45 a.m., an epidural was inserted for analgesia, and at 9:05 a.m. Mrs. Chestnut's membranes spontaneously ruptured, with clear fluid noted. Vaginal examination revealed the cervix to be at 2 to 3 centimeters, effacement at 100 percent, and the fetus at station 0. A scalp electrode was placed, and fetal heart tone was noted to continue in the 135 to 145 beat per minute range. Mrs. Chestnut's labor progressed slowly through July 25, 1994. During that period, fetal heart tones evidenced good beat to beat variability (short-term and long-term) with accelerations and occasional variable decelerations. Commencing at or about 2:00 a.m. July 26, 1994, late decelerations were noted, and fetal heart tones began to demonstrate, with increasing intensity and duration, early variable and late decelerations, with rates as low as the 70's, as well as fetal tachycardia. At approximately 2:25 a.m., dilation was noted as complete, and Mrs. Chestnut was instructed to push. At 2:28 a.m. a supplemental dose of epidural analgesia was administered, and at 2:34 a.m. deep variable decelerations were noted and Mrs. Chestnut was taken, via bed, to the delivery room. Mrs. Chestnut was noted in the delivery room at 2:39 a.m., at which time fetal heart rate was recorded in the 90's, and she was prepared for delivery. Mrs. Chestnut continued to push, and fetal heart tone remained in the 90's. Three attempts to deliver the infant by vacuum were attempted and failed. Fetal heart tone dropped to the 80's and a scalp pH performed at 2:54 a.m. was 6.95 (reflective of fetal acidosis). Given the circumstances, an emergency cesarean section was ordered, the incision started at 3:00 a.m., and Travis was delivered at 3:05 a.m. During delivery, difficulty was experienced elevating the infant's head, as he was deep in the pelvis, and a cord prolapse was noted. On delivery, Travis was atonic, with a heart rate of less than 60 and no respiratory effort. He was dried for 10 seconds, then begun on positive pressure ventilation with bag and mask. Heart rate increased to greater than 100 within 10 seconds, and color became pink within 20 seconds. Travis required support until 10 minutes of age, when regular sustained respiratory effort was noted. First gasp occurred between 1 and 2 minutes of age, and was progressively more frequent through 15 minutes of age. Shallow regular respirations began at about 5 minutes of age, and were adequate and sustained by 10 minutes of age. Slight tone was developed in the extremities by 10 minutes, and spontaneous movement of the extremities developed by 12 minutes. Apgars were 4, 5, 7, 7, and 8 at one, two, five, ten, and fifteen minutes, respectively.1 Cord gas at delivery reflected a pH of 6.76. Arterial blood gas at 20 minutes of age on blow by oxygen included a pH of 7.04. Neurologic impression at birth was severe neonatal depression/fetal distress and severe metabolic acidosis. At 20 minutes of life, Travis was transferred to the neonatal intensive care unit (NICU) for further management. At about three-and-one-half hours of age seizures were noted, and phenobarbital was started. Also noted, were lip smacking, eye deviation, spasticity, and hypertonic extremities. CT scan showed left parietal infarct and left post-occipital subdural hematoma. The EEG was markedly abnormal. MRI on August 3, 1994, reflected high signal gyral areas in both parietal and occipital lobes, consistent with cortical injury or hemorrhage. Travis remained in the intensive care unit until August 19, 1994, when he was discharged to the care of his parents. On discharge, he was noted to be doing well clinically, with no reported seizures while on maintenance phenobarbital. Physical examination revealed positive blink and suck, and symmetric motor patterns, although with increased tone. Neurologic impression on discharge was "perinatal encephalopathy - improved[,] neonatal seizures well controlled [and] developmentally at risk." The genesis and timing of Travis' neurologic insult Here, the proof that is pertinent to the nature and timing of Travis' neurologic insult is consistent with a brain- related injury caused by oxygen deprivation occurring in the course of labor, delivery, and the immediate post-delivery period. In this regard, it is observed, inter alia, that Mrs. Chestnut's prenatal course was uneventful; on admission to the hospital, the fetus evidenced reassuring fetal heart tones and fetal movement; only after protracted labor did the fetus begin to evidence multiple variable decelerations; prior to delivery, Travis suffered a period of prolonged bradycardia; prior to and following delivery, Travis was severely acidotic; upon delivery, Travis evidenced profound neurologic depression; and, following delivery, Travis developed seizure activity. Consequently, the proof supports the conclusion, more likely than not, that Travis suffered an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital." Section 766.302(2), Florida Statutes. Having resolved the genesis and timing of Travis' neurologic insult, it remains to resolve its significance or, stated differently, whether the proof supports the conclusion that Travis' injury rendered him "permanently and substantially mentally and physically impaired," as required by Sections 766.302(2) and 766.309(1), Florida Statutes. The significance of Travis' neurologic impairment The proof offered by Petitioners to quantify the significance of Travis' impairment was less than compelling. In this regard, it is observed that Petitioners offered the affidavit of Stuart C. Edelberg, M.D., (Petitioners' Exhibit 2), an apparent expert in obstetrics and gynecology, who opined, based on his record review, that Travis' "impairment is permanent and substantial, both mentally and physically." Notably, Dr. Edelberg was not shown to have examined Travis, and his affidavit is hearsay, subject to the limitations imposed by Section 120.57(1)(c), Florida Statutes (1996 Supp.). Compared to the proof offered by Petitioners, Respondent offered the testimony, through deposition, of Michael Duchowny, M.D., an expert in pediatric neurology. (Respondent's Exhibit 1.) Dr. Duchowny examined Travis on July 16, 1996, and on January 24, 1997. Dr. Duchowny's examinations revealed that Travis did suffer some impairment of motor function, as evidenced by increased muscle tone, increased deep tendon reflexes, and diminished fine motor coordination; however, he walked independently and without support in a stable fashion. As for his cognitive abilities, Dr. Duchowny did observe expressive disfluency, but Travis' receptive skills were good, he could communicate non-verbally, and mental functioning was in the normal or near normal range. It was Dr. Duchowny's opinion that, although Travis does suffer some permanent mental and physical impairment, it is not substantial and, based on improvements observed between the examinations of July 16, 1996, and January 24, 1997, further improvement is most likely. Dr. Duchowny's observations and opinions are most consistent with the records offered into evidence (Petitioners' Exhibit 1), and are credited.2 Based on the proof, it cannot be concluded that Travis' injury has rendered him permanently and substantially mentally and physically impaired. Rather, the competent and persuasive proof is to the contrary.
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.
