The Issue At issue in this proceeding is whether Kallie Morgan Luten, 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 Cheryl and Richard Luten are the parents and natural guardians of Kallie Morgan Luten (Kallie), a minor. Kallie was born a live infant on June 15, 1993, at Tallahassee Memorial Regional Medical Center (Tallahassee Memorial), a hospital located in Tallahassee, Leon County, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Kallie was Jana M. Bures-Forsthoefel, 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. Here, the proof is uncontroverted that Kallie suffered an injury to her brain caused by oxygen deprivation, secondary to a fetomaternal transfusion, also referred to as a fetal-maternal transfusion or hemorrhage in these proceedings (a transplacental passage (loss) of fetal blood into the circulation of the mother), which rendered her permanently and substantially mentally and physically impaired. What is at issue is the timing of such event or, stated differently, whether such event and Kallie's ensuing injury occurred during "the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital," as advocated by petitioners, or whether the fetomaternal transfusion and injury predated such events, as advocated by respondent. 1/ Mrs. Luten's Antepartum Course and Kallie's Delivery At the time of Kallie's conception, Mrs. Luten was 23 years of age, and without prior pregnancy. Her estimated date of confinement was established as July 10, 1993, and the progress of her pregnancy was essentially normal until June 14, 1993. On June 14, 1993, with Kallie at 36 weeks gestation, Mrs. Luten reported for work, as usual, by 8:30 A.M. At or about 10:00 A.M. Mrs. Luten experienced a sharp pain in her left side, and approximately thirty minutes later began to experience irregular contractions. Around 1:00 P.M., Mrs. Luten began to notice decreased fetal movement. Although "uncomfortable throughout the day," Mrs. Luten remained at her place of employment until 4:30 P.M., when she returned to her home. Following her husband's arrival, at a time not apparent from the record, the Lutens telephoned the offices of her obstetrician, Dr. Jana Bures-Forsthoefel (Dr. Forsthoefel). 2/ Dr. Forsthoefel returned the call in the early evening, at which time she was advised of the pain Mrs. Luten had been experiencing in the "left upper quadrant," the decreased fetal movement, and the contractions she had experienced during the course of the day. As a consequence, Dr. Forsthoefel asked Mrs. Luten to come to the hospital for further monitoring. Mrs. Luten was admitted to the antenatal testing unit at Tallahassee Memorial Regional Medical Center at approximately 7:30 P.M. Physical examination revealed the cervix to be long, closed, and thick and the fetus out of the pelvis with vertex presentation. In sum, a non-labor cervix. The membranes were intact, and there was no evidence of amniotic fluid. At approximately 7:45 P.M., Mrs. Luten was placed on an external fetal monitor. 3/ At the time, fetal heart tone was noted to be between 130 and 145 beats per minute, a normal range; however, the heart rate pattern was nonreactive (without accelerations), an abnormal circumstance. Notably, such nonreactive pattern was not reassuring for fetal well-being, could reflect fetal compromise, and persisted throughout the evening. At approximately 8:30 P.M., Mrs. Luten evidenced a large contraction, with a late deceleration of the fetal heart rate to 110 beats per minute for 80 seconds. Mrs. Luten was repositioned to her side, with the recovery of fetal heart rate to base line. Further uterine irritability was noted, but without further decelerations. An IV was started for dehydration, and Mrs. Luten's pain in the left upper quadrant was noted to resolve within an hour of her admission. Because of the late deceleration and nonreactive pattern, Mrs. Luten was ordered to remain at the hospital overnight for observation and long term monitoring. At the time, the physician's plan was to discharge Mrs. Luten in the morning if the baby did well during the night and, if not, to proceed with further studies. Among the possibilities was an amniocentesis to assess the maturity of the infant's lungs, with delivery if stable. At approximately 9:40 P.M., Mrs. Luten had another spontaneous contraction with a late deceleration to 100 beats per minute lasting 140 seconds. Mrs. Luten was again repositioned. At approximately 10:00 P.M. a deceleration unassociated with a contraction was noted to 95 beats per minute and lasting 120 seconds. Thereafter, monitoring evidenced continued uterine irritability and small contractions without deceleration. There were, however, no regular contractions or other objective evidence of labor, and there was not such evidence at any time during the course of monitoring. Mrs. Luten was transferred from the antenatal testing unit to the labor and delivery suite later in the evening, and at approximately 1:00 A.M., June 15, 1993, she was given Nembutal for sleep. Approximately 30 minutes later the fetal heart tones were noted to have diminished to 110 to 120 beats per minute, a normal reaction following the Nembutal, and no unusual activity was noted until approximately 2:40 A.M. At that time, a spontaneous contraction was noted, with a late deceleration which recovered. A few minutes later the fetal heart rate began to slowly drop, unassociated with any uterine activity, and by approximately 2:55 A.M. the fetal heart rate was at 80 to 90 beats per minute. The drop in fetal heart rate was unresolved by positioning, hydration and oxygenation, and at approximately 3:10 A.M. Dr. Forsthoefel was called. Dr. Forsthoefel arrived at the hospital at approximately 3:20 A.M., and a fetal heart rate of 80 to 90 beats per minute was confirmed. Fetal activity was noted, and Dr. Forsthoefel elected to do an emergency cesarean section for prolonged bradycardia. Mrs. Luten was taken to the operating room, and a low transverse cesarean section was performed. On entry into the uterus, there was no cord problem identified and the amniotic fluid was clear. Kallie was delivered at 3:36 A.M. and handed off to the attending neonatologist (Dr. Gary Cater) after cord clamping. Cord blood was obtained which appeared thin and watery. There was no blood in the uterine cavity, and examination of the placenta showed it to be posterior and intact, with no evidence of abruption. The placenta was manually removed, with no blood clot noted posteriorly. There was no abnormal bleeding noted at the time of delivery, and no obvious cause of fetal distress could be identified. The cervix was noted to be long, closed and thick, as it had been on Mrs. Luten's admission to the hospital. At delivery, Kallie was pale, flaccid and without spontaneous movement, and her heart rate was around 30 or 40 beats per minute. Demonstrated Apgars were 1 at one minute, 2 at five minutes, 2 at ten minutes, and 3 at fifteen minutes. Kallie was promptly intubated and bagged with 100 percent oxygen. Because of her pallor and lack of perfusion, an umbilical venous catheter was placed and epinephrine and Plasmanate (a volume expander to increase the blood volume of the infant so there is adequate volume to circulate through the body to transport oxygen) was administered. By about 5 minutes of age, Kallie's heart rate was greater than 100, and she was taking an occasional gasp. At 15 to 20 minutes of life, Kallie was transported to the neonatal intensive care unit (NICU) where she was placed on a ventilator, IVs were placed, and a transfusion started. Upon transfusion, she started to improve, both by appearance and by activity; however, a few hours later her condition suddenly deteriorated and required substantially increased ventilator settings. Over the next couple of days, Kallie's respiratory status gradually improved, and she was ultimately weaned off the ventilator and extubated on June 18, 1993. Kallie had two crainal ultrasounds, one on June 15, 1993, and the other on June 21, 1993, which were normal. An EEG of November 5, 1993, evidenced "[n]o significant abnormalities for age"; however, an MRI brain scan of the same date revealed: There are prominent CSF spaces bilaterally including the region of the inner hemispheric fissures. White matter maturation appears normal for age. The lateral ventricles are slightly prominent. No evidence of mass effect or intracranial hemorrhage. The brain stem appears normal. IMPRESSION: Prominent CSF spaces bilate- rally. Mild prominence to the lateral ventricles. At approximately 6 months of age, Kallie developed infantile spasms/seizures, which were confirmed by EEG of January 6, 1994. The proof is uncontroverted, as evidenced by the consensus of opinion of the physicians who testified and the objective evidence accorded by testing of the maternal blood following Kallie's delivery, that the injury to Kallie's brain, evidenced by the MRI brain scan of November 5, 1993, was occasioned by an acute anoxic event, secondary to a significant fetal to maternal bleed (a fetomaternal transfusion). 4/ The proof is likewise uncontroverted that the injury to Kallie's brain has rendered her permanently and substantially mentally and physically impaired. 5/ Consequently, resolution of this claim resolves itself to whether the proof supports the conclusion that the fetomaternal transfusion, and Kallie's consequent injury, occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period, as advocated by petitioners, or prior to such events, as advocated by respondent. 6/ The Timing of Kallie's Insult In resolving the issue relating to the timing of Kallie's insult, it is first observed that the proof is compelling that upon admission to Tallahassee Memorial on June 14, 1993, Mrs. Luten was not in labor, and did not at any time thereafter go into labor, as that term is commonly understood and as that term is used in the Plan. Notably, when Mrs. Luten was physically examined on admission the cervix was long, closed and thick (a non-labor cervix) and the fetus was out of the pelvis. Moreover, following admission Mrs. Luten was continuously monitored until the cesarian section, without evidence of regular contractions. Finally, upon delivery the cervix was examined and noted as still long, closed and thick. Such objective findings are inconsistent with labor, and the absence of labor was clearly noted by Mrs. Luten's attending physician. 7/ While not in labor, such observation does not compel the conclusion that Kallie's injury is not covered by the Plan. Indeed, apart from injuries "occurring in the course of labor," the Plan also covers injuries "occuring in the course of . . . delivery or resuscitation in the immediate post-delivery period." Consequently, if it can be shown that the fetomaternal transfusion occurred during the later period, Kallie's injury would be covered by the Plan. 8/ In further resolving the issues relating to the timing of Kallie's insult, the records in this case have been painstakingly reviewed on numerous occasions, including the observations and opinions of the physician experts offered on behalf of petitioners and those offered on behalf of respondent. Having closely evaluated the physicians' observations and opinions, it is concluded that the opinions of the physicians offered by respondent, that Kallie's insult most likely predated her mother's admission to the hospital, are most consistent with the objective proof of record, and therefore most credible. The opinions offered on behalf of petitioners are less than persuasive given such considerations, and are therefore rejected in large measure. 9/ In concluding that the proof demonstrates, more likely than not, that Kallie's injury predated her mother's admission on June 14, 1993, it is first observed that upon admission Kallie's presentation was consistent with fetal compromise. In this regard, the proof demonstrates that decreased fetal movement had been observed prior to admission, and that upon admission Kallie's heart rate pattern was nonreactive, without accelerations, and that pattern continued until delivery. An absence of accelerations, especially over an extended period as experienced in the instant case, is an ominous sign for fetal well being, and when viewed with the decreased fetal movement and decelerations evidenced during the course of admission is consistent with prior hypoxic insult. 10/ The absence of accelerations of fetal heart rate during the term of Mrs. Luten's admission is also objective evidence that the fetal maternal transfusion/hemorrhage occurred prior to admission. In this regard, it is noted that the initial reaction of the fetus to hemorrhage or acute blood loss is an acceleration in fetal heart rate, which was totally absent during the course of admission in this case. 11/ Further objective evidence of fetal insult prior to admission is the absence of any apparent cause, at delivery, to explain the ominous character of Kallie's presentation upon her mother's admission except acute fetomaternal hemorrhage. In this regard, it is noted that upon delivery the amniotic fluid was clear, no blood was observed in the uterine cavity, the placenta was intact and without blood clot and, despite scrutiny, the physician could not identify any obvious sign to account for Kallie's fetal distress. Subsequently, Kallie was noted to have suffered a fetomaternal transfusion, which unquestionably accounted for her hypoxic brain injury. Such is the only identified event that could reasonably account for the character of Kallie's presentation upon her mother's admission to the hospital. Finally, proof was offered, through the opinions of Lance Wyele, M.D. neonatologist, that Kallie's clinical course was consistent with that of an infant beyond an acute injury phase. 12/ In that regard, Dr. Wyele observed that following delivery, the damaged organs were not demonstrating physiologic and pathophysiologic findings that one would see in the acute post-injury period, but were showing a much later pattern. Moreover, he observed that certain patterns one would expect to note following an acute insult were absent. Among the sequelae absent were hyper-alertness with weakness, as well as seizures in the initial 12 to 24 hours following delivery, and the absence of any evidence of cerebral edema within 24 to 72 hours of delivery. Consequently, Dr. Wyele opined that the fetomaternal transfusion, and Kallie's substantial brain injury, occurred at least 48 hours prior to delivery, and did not coincide with the fetal bradycardia which precipitated her delivery. Dr. Wyele's observations and opinions are consistent with the objective proof of record, are credible, and are accepted.
Findings Of Fact Stephanie was born at St. Joseph’s on June 7, 2014. She was a child born of single gestation. NICA retained Donald C. Willis, M.D., as a medical expert specializing in maternal-fetal medicine. NICA has submitted his expert report dated August 17, 2019, and affidavit dated August 23, 2019, as Exhibit 1 in support of its Motion. According to Dr. Willis’s expert report, hypertension was noted at Ms. Garriga’s office visit at 36 weeks, but at that time, there was no indication of fetal distress. Labor was induced at 37 weeks for gestational hypertension. Fetal heart rate tracings were reported to be category 1, which indicates no fetal distress. Dr. Willis’s report states that delivery was by spontaneous vaginal birth, with a birth weight of 2,430 grams. Stephanie was depressed at birth, and although she had a “good heart rate,” there was no respiratory effort. Evaluation in the NICU showed overall decreased activity and poor muscle tone. Her chest x-ray revealed streaky infiltrates, consistent with retained lung fluid. Stephanie’s newborn hospital stay was complicated by poor feeding due to a very weak gag reflex, and g-tube feedings were required, with eventual fundoplication performed. Dr. Willis’s report also indicates that an evaluation was performed because of her poor muscle tone, and the neurological evaluation did not identify an etiology for the issue. Other tests were also normal. Dr. Willis’s ultimate opinion is that 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. He also noted that Stephanie’s birth- weight was below the threshold for eligibility for NICA compensation. Dr. Willis’s opinion is credited. Stephanie was also examined by Michael S. Duchowny, M.D., a pediatric neurologist. Dr. Duchowny’s August 14, 2019, expert report and August 26, 2019, affidavit were submitted as Exhibit 2 in support of NICA’s Motion. Dr. Duchowny’s IME occurred when Stephanie was five years old. Upon examination, she could not swallow, sit alone, crawl, or walk. Cognitively, Stephanie speaks well and has achieved age-appropriate speech, and Dr. Duchowny’s neurologic evaluation indicates, Neurologic evaluation reveals a sociable cooperative fully fluent 5-year-old girl. Stephanie was brought to the office in a wheelchair. She is socially interactive and answers questions with accurate verbal content. She correctly identified letters and knew primary and secondary colors. She told me her first and last names. Her speech sounds are fluent and reasonably well articulated, and she maintains an age- appropriate stream of attention. Dr. Duchowny summarized his opinion, which is credited, in his affidavit, stating: In summary, Stephanie’s general physical and neurological examinations reveal profound hypotonia and hypo-reflexia with preserved cognitive status. She is diagnosed with myasthenia gravis (along with her sister), immunodeficiency syndrome neuromuscular scoliosis and bilateral hip dislocations. . . . I reviewed the medical records sent on August 12, 2019. Stephanie was born at 37 weeks’ gestation following a pregnancy complicated by hypertension. She was born floppy with no respiratory effort, but following responded favorably to positive pressure ventilation. Apgar scores were 2, 5, and 6 at 1, 5, and 10 minutes; a venous cord pH was 7.35 with a base excess of -5.6. Severe hypotonia was noted at birth leading to early gastrostomy placement and evaluation into potential genetic causes. A neonatal MR imaging study was read as normal, while a second study at age 4 months revealed delayed myelination.[1/] Based on the record review, clinical diagnoses and the results of the IME, it is my opinion that Stephanie did not suffer an injury to the brain or spinal cord due to oxygen deprivation or mechanical injury in the course of labor, delivery or resuscitation in the immediate postdelivery period which rendered her permanently and substantially mentally and physically impaired. Based on the evidence presented in support of the Motion, Stephanie is not eligible for compensation under the Plan because her birth weight does not meet the criteria established by statute for a birth-related neurological injury. Based upon the evidence presented in support of the Motion, Stephanie has substantial physical impairments. However, the evidence does not indicate that these impairments are caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital. Finally, no evidence presented demonstrates that Stephanie suffers from any mental impairment. Petitioner has presented no evidence in response to the Motion to rebut the opinions of Dr. Willis and Dr. Duchowny as detailed in their affidavits and expert reports.
The Issue At issue in this proceeding is whether Bradley John Thomas, 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 Bradley John Thomas (Bradley) is the natural son of Scott G. Thomas and Mary E. Thomas. He was born a live infant on July 8, 1989, at Baptist Hospital, a hospital located in Pensacola, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Bradley was Bo H. Bagenholm, 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 Bradley Thomas At or about 2:10 a.m., July 8, 1989, Mary Thomas was admitted to a labor room at Baptist Hospital. At the time, Mrs. Thomas was in active labor, having experienced a spontaneous rupture of the membranes with the emission of clear amniotic fluid at approximately 1:30 a.m., and Bradley was slightly post- term with a gestational age of approximately 41 weeks. Otherwise, Mrs. Thomas' pregnancy had been without complication. External fetal heart monitoring was commenced at approximately 2:15 a.m. and indicated a good base line with fetal heart tone between 125 and 140 beats per minute. From 2:30 a.m. to 2:45 a.m., the fetal heart tone was 120 to 150 beats per minute, from 2:45 a.m. to 3:00 a.m., the fetal heart tone was 115 to 145 beats per minute, and from 3:00 a.m. to 3:15 a.m., the fetal heart tone was 110 to 120 beats per minute with occasional acceleration to 160. In all, for such period, the fetal heart rate was normal, and no cause for concern. 4/ At approximately 3:15 a.m., Mrs. Thomas was removed from the monitor, provided a urine sample, and was given an enema, with good results. At 4:01 a.m., the fetal heart monitor was reapplied, and the nurse conducted a vaginal exam, at which point Mrs. Thomas was found to be 3 cm dilated. When the vaginal exam occurred, the fetal heart tone was recorded to be 120 to 130 beats per minute, with a reflex acceleration to 160 and deceleration to 60 following stimulation of the infant. Such heart rate was normal, and the reflex not unusual or ominous given the fetal heart tone recovery to the normal base line rate. 5/ Following the 4:01 a.m. vaginal examination, the fetal heart base line continued in the 120 to 160 or normal base line range until 12:14 p.m. when the fetal monitor was removed and the mother was taken to the delivery room via bed. During that period, an occasional acceleration and variable decelerations were noted, but such were not unusual or ominous given there was no persistent tachycardia or persistent decelerations. Indeed, the data recorded was consistent with the baby's reaction to examination, contractions or umbilical cord compression, and evidenced no fetal compromise. 6/ At 10:19 a.m., following an earlier epidural replacement, Dr. Bagenholm examined Mrs. Thomas and found the epidural effective and her cervical dilatation at rim. At 11:28 a.m., the nurse conducted a vaginal exam, found the mother's cervical dilation complete, and instructed her on pushing. At 12:00 p.m. (noon) the baby was noted to be at the +1/+2 station, at 12:07 p.m. to be at the +2 station, and at 12:14 p.m., the monitor was removed and the mother taken to the delivery room. Upon admission to the delivery room, the fetus continued to be monitored by doppler and evidenced fetal heart tones of 130-140 beats per minute. At 1:33 p.m., with the assistance of fundal pressure occasioned by the mother's reduced expulsion efforts, Bradley was delivered. When delivered, no meconium was present and Bradley presented with Apgar scores of 8 at one minute and 10 at five minutes. These scores 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 Bradley's Apgar score totaled 8, with heart rate, respiratory effort, muscle tone and reflex irritability being graded 2 each and color being graded 0. At five minutes, Bradley's Apgar score totalled 10, with all categories being graded at 2 each. Bradley's Apgar scores are reflective of a healthy, vigorous infant. Indeed, on presentation, Bradley evidenced all the signs of a healthy newborn, with spontaneous respiration, a strong cry, no visible signs of trauma, good heart rate and good muscle tone. At or about 2:30 p.m., following routine suctioning and administration of oxygen, Bradley was admitted to the newborn nursery. Upon admission, Bradley's physical assessment revealed, inter alia, moderate molding of the head, not unusual in an infant delivered vaginally; soft and flat fontanelle, evidencing no intercranial pressure such as one might associate with a significant bleed; strong reflexes; a pink color; and, an alert and active infant. Bradley's first twenty-five hours of life were essentially uneventful, and he evidenced the normal signs of a healthy infant including the presence of soft and flat fontanelle, at least as late as 8:00 a.m., July 9, 1989. Bradley roomed-in with his mother from 10:30 a.m. to 2:30 p.m., July 9, 1989, when he was returned to the nursery, and during that time he reflected the signs of a healthy baby. 7/ Upon his return to the nursery at 2:30 p.m., Bradley was observed to be "gaggy" and "spit up." Shortly thereafter, at approximately 2:45 p.m., Bradley suddenly turned cyanotic, facial and trunk. The nurse promptly turned Bradley over, stimulated him, and Bradley responded with a "lusty cry" and "pinked up"; however, it was noted that he had a "fixed stare" and "does not blink to threat." At 4:30 p.m., another cyanotic episode was noted and, thereafter, evidence of seizure activity appeared. Dr. Jenkins, Bradley's pediatrician, ordered a blood culture to rule out infection and at 5:15 p.m. he performed a lumbar puncture, which evidenced bloody spinal fluid. Arrangements were made to transfer Bradley to the neonatal intensive care unit at Sacred Heart Hospital, and at 7:28 p.m., Bradley left Baptist Hospital with the transport team. At Sacred Heart Hospital, a physical examination of Bradley revealed that his fontanelle were full and, thereafter, he was diagnosed to have suffered a grade IV intraventricular hemorrhage, which evidenced at approximately his twenty-fifth hour of life. That hemorrhage caused profound injury to Bradley's brain, which has rendered him "permanently and substantially mentally and physically impaired," as that term is used in Section 766.302(2), Florida Statutes. The cause of Bradley's grade IV intraventricular hemorrhage Given the foregoing, resolution of this claim resolves itself to an identification of the genesis of Bradley's grade IV intraventricular hemorrhage or, stated otherwise, whether the proof demonstrated, more likely than not, that the hemorrhage, which resulted in injury to Bradley's brain and the ensuing neurological injuries, resulted from "oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post deliver period." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. 8/ Considering the proof, for the reasons that follow, it must be concluded that petitioners have failed to demonstrate, by the requisite standard, that the injury to Bradley's brain was the consequence of "oxygen deprivation or mechanical injury" and therefore failed to demonstrate that Bradley suffered a "birth-related neurological injury," as defined by law. Sections 766.302(2), Florida Statutes. Here, the proof is compelling that a grade IV intraventricular hemorrhage in a term infant, such as Bradley, is a rare occurrence, and that its cause is often not definable. Indeed, among the physicians who testified, there is apparent agreement that approximately 25 percent of grade IV intraventricular hemorrhages have identifiable causes such as sepsis, a blood disorder, an AV malformation, genetic disorder or an identifiable prenatal event; that approximately 50 percent are related to oxygen depravation or trauma in the intrapartum period; and, that approximately 25 percent can be attributed to no known cause. As for Bradley, when Mrs. Thomas was admitted to the labor and delivery room, he was assessed to be a viable fetus with no evident signs of stress. Indeed, Mrs. Thomas' pregnancy was without complications, and any prenatal events or other known causes of a grade IV intraventricular hemorrhage, such as sepsis, a genetic disorder, a blood disorder or an AV malformation have been examined and rejected as an identifiable cause of Bradley's hemorrhage. As for the labor and delivery of Bradley, the proof demonstrates that it was essentially normal and that there was no obstetrical incident or identifiable event during labor and delivery that would evidence that Bradley had suffered a hypoxic insult or mechanical injury. Indeed, Bradley, although large, was not large for his gestational age, given the use of an epidural there was no prolonged labor, there was no cephalopelvic disproportion, no untoward molding of the head, no use of forceps or vacuum extraction in delivery, and the use of fundal pressure was appropriate and not shown to be excessive. Upon delivery, no meconium was present, no apparent cranial injuries were observed, and Bradley presented as a vigorous infant with normal Apgars. In summary, there was no identifiable incident during the course of labor or delivery, or thereafter during Bradley's first twenty-five hours of life, evidencing oxygen deprivation, mechanical injury, or other insult, that would account for the hemorrhage he suffered at approximately his twenty-fifth hour of life. Indeed, the neonatologist, Dr. Dworsky, and neurologist, Dr. Miller, who offered testimony on behalf of petitioners, acknowledged that the labor and delivery of Bradley was fairly normal with no identifiable problems that would account for the hemorrhage. Moreover, Dr. Miller concluded that in the 50 percent of hemorrhages attributable to birth trauma, the literature suggests clear evidence at birth of compromise to the infant. Notwithstanding, there being no other traumatic event known, they theorize that Bradley failed to tolerate the stress associated with labor and delivery and that, through the mechanism of changes in venous or arterial blood pressure occasioned by variable decelerations caused by compression of the umbilical cord and from compression of the head associated with delivery, Bradley suffered an insult to the intracranial blood vessels which ultimately manifested as a grade IV intraventricular hemorrhage In their opinion, such insult was the product of oxygen deprivation and trauma associated with the stress of labor and delivery. 9/ The opinions of Doctors Dworsky and Miller regarding the probable cause of Bradley's hemorrhage are rejected as unpersuasive. Such opinions are largely speculative, being based on the assumption that the birth process was the only known traumatic event in Bradley's life, ignore that percentage of cases in which it is acknowledged that the cause of hemorrhage can never be known, and are not supported by any objective evidence of trauma or oxygen deprivation of record. Indeed, given the relatively uneventful labor and delivery, as well as Bradley's vigor at birth, the opinion of Dr. Duchowny that "this baby fits into the group of term infants with an intraventricular hemorrhage for which no cause is ever identified" is most credible and is, therefore, accepted.10
Findings Of Fact Robert Charles Crump was born on August 15, 2009, at Baptist South Hospital located in Jacksonville, Florida. Charlie weighed 2,505 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Charlie, to determine whether an injury occurred 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 medical report dated September 17, 2014, Dr. Willis described his findings in part as follows: In summary, the mother presented at 34 weeks with premature rupture of the membranes in early labor. Variable HFR [sic] decelerations developed during the last two hours prior to delivery. Cesarean section was done for the non-reassuring FHR pattern. The newborn was depressed. The newborn hospital course was complicated by respiratory depression, hypotension and one episode of apnea. Although the baby was discharged home with a normal exam, MRI at 16 months of age was done for evaluation of a weak left hand and found a prior cerebral stroke. It is likely the baby suffered some degree of oxygen deprivation during labor, delivery and/or in the immediate post resuscitation period. However, it is less clear that any oxygen deprivation during this time period resulted in brain injury. No head imaging studies were done during the newborn hospital course. The child did suffer a stroke, which was documented at 16 months of age by MRI. There was an apparent obstetrical event that likely resulted in some degree of oxygen loss to the baby’s brain during labor, delivery and continued into the immediate post delivery period. Without imaging studies during the newborn hospital course, I am unable to determine if this oxygen deprivation resulted in the child’s brain injury (stroke). Pediatric Neurology evaluation would be helpful in this determination. Dr. Willis reaffirmed his opinion in an affidavit dated March 8, 2016. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Charlie and to review his medical records. Dr. Duchowny examined Charlie on November 5, 2014. In a medical report dated November 5, 2014, Dr. Duchowny opined as follows: In summary, Charlie’s general physical and neurological examinations reveal a mild left hemiparesis, notable mainly for asymmetry of movement. His muscle tone is well-preserved and he has full range of movement bilaterally with the exception of full left supination. Charlie is functioning cognitively at age level. He has done remarkably well in his therapies. I reviewed the medical records sent on October 14, 2014. They document Charlie’s birth at 34 weeks gestation at Baptist Medical Center South in Jacksonville following premature rupture of membranes productive of blood-tinged amniotic fluid. Charlie was born by emergent Caesarian section for arrest of descent and presented limp, apneic and cyanotic. Apgar scores were 2 and 7 at 1 and 5 minutes. He was resuscitated via bag and mask and breathed spontaneously at just over 2 minutes. His NICU stay was complicated by apnea and bradycardia which resolved fully and transient respiratory depression. Charlie was never intubated or mechanically ventilated and was maintained on room air from August 17th until discharge on August 24th. No neonatal brain imaging was performed. MRI scan of the brain on February 8, 2011 revealed an old ischemic infarct involving the anterior limb of the right internal capsule. The remainder of the brain was normal. A consideration of the findings from today’s evaluation and record review lead me to recommend that Charlie not be considered for compensation within the NICA program. He has normal mental functioning and a mild motor deficit. Furthermore, his stroke was likely acquired prenatally, and there is no evidence of either mechanical injury or oxygen deprivation in the course of labor, delivery or the immediate post-delivery period. Dr. Duchowny reaffirmed his opinions in an affidavit dated February 24, 2016. 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 an apparent obstetrical event that likely resulted in some degree of oxygen loss to the baby's brain during labor, delivery or the immediate post- delivery period. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that Charlie has normal mental functioning and a mild motor deficit, and that his stroke was likely acquired prenatally. Dr. Duchowny’s opinion is credited.
The Issue At issue in this proceeding is whether Morgan Wilson, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Petitioners, Tracie Wilson and James Ray Wilson, are the natural parents and guardians of Morgan Wilson. Morgan was born a live infant on December 12, 2000, at Baptist Medical Center, a hospital located in Jacksonville, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Morgan's birth was Martin Garcia, 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. Morgan's birth At or about 7:29 a.m., December 12, 2000, Mrs. Wilson (with an estimated date of delivery of December 23, 2000, and the fetus at 38 3/7 weeks gestation) presented to Baptist Medical Center, in labor. At the time, Mrs. Wilson's membranes were noted as intact, and mild to moderate uterine contractions were noted at a frequency of 2-4 minutes. Fetal monitoring revealed a reassuring fetal heart rate, with a baseline of 150-160 beats per minute, and the presence of fetal movement. At 9:45 a.m., Mrs. Wilson's membranes were artificially ruptured, with meconium stained amniotic fluid noted. At the time, vaginal examination revealed the cervix at 4 centimeters, effacement complete, and the fetus at 0 station. Mrs. Wilson's labor progressed, and at 7:29 p.m., Morgan was delivered, with vacuum assistance. According to the Admission Summary, Morgan was suctioned on the perineum, and, before she could be moved to the warmer, the "[c]ord clamp loosened with small amount of blood loss prior to reclamping." The Admission Summary further reveals that Morgan was "floppy and required bag mask ventilation x3 minutes, then blowby oxygen for 3 minutes." Apgar scores were noted as 1 and 8, at one and five minutes,2 and umbilical cord pH was reported as normal (7.28). Morgan was transferred to the neonatal intensive care unit (NICU) for "eval[uation] after blood loss." There, her blood count (with a hematocrit of 46 percent) was reported as normal or, stated otherwise, without evidence of a clinically significant blood loss due to the loosening of the clamp. Following two hours of observation, Morgan was transferred to the normal newborn nursery; however, at 4:20 p.m., December 13, 2000, she was readmitted to the neonatal intensive care unit. The reason for admission was stated in the Admission Summary, as follows: . . . Indications for transfer included 38 week WF with renal vein thrombosis and left middle cerebral artery stroke. Neonatology consulted midafternoon today secondary to hematuria. On exam, Dr. Cuevas noted asymmetry of pupils, with right more dilated and less responsive then left. Also noted to have torticollis, preferring to keep head turned to left. Also noted to have palpable mass in left abdomen. Renal ultrasound revealed renal vein thrombosis. HUS showed some echogenecity so Head CT done revealing left middle cerebral artery stroke. Hct this am 41. Baby then admitted to NICU for further care. Neurology and hematology consulted as well as nephrology. Impressions on admission included: possible coaguloathy; left middle cerebral artery stroke; renal vein thrombosis; and torticollis. Morgan remained at Baptist Medical Center until December 29, 2000, when she was discharged to her parents' care. Morgan's Discharge Summary noted the following active diagnoses: possible coagulopathy; anemia; left middle cerebral artery stroke; renal vein thrombosis; and torticollis. 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 . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, indisputably, the record demonstrates that Morgan suffered an injury to the brain (following a stroke in the territory of the left middle cerebral artery, likely due to arterial occlusion or superior saggital sinus thrombosis). What is disputed, is whether the proof demonstrates, more likely than not, that such injury occurred "in the course of labor, delivery, or resuscitation," and whether any such injury rendered Morgan "permanently and substantially mentally and physically impaired." The timing of, and the neurologic consequences that followed, Morgan's brain injury To address whether Morgan's brain injury occurred "in the course of labor, delivery, or resuscitation," and whether such injury rendered Morgan "permanently and substantially mentally and physically impaired," Petitioners offered medical records relating to Mrs. Wilson's antepartum course, as well as those associated with Morgan's birth and subsequent development. Additionally, Mrs. Wilson testified on her own behalf, and Respondent offered the deposition testimony of Dr. Donald Willis, a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine, and Dr. Michael Duchowny, a physician board-certified in pediatrics, neurology with special competence in child neurology, electroencephalography, and neurophysiology.3 As for the timing of Morgan's injury, it was Dr. Willis' opinion that the medical records did not reveal any obstetrical event that would account for Morgan's injury. In so concluding, Dr. Willis noted that fetal monitoring (which began on admission and continued until 7:28 p.m., one minute prior to delivery) did not reveal evidence of fetal compromise or a clinically significant event that would account for Morgan's injury, that Morgan's 5-minute Apgar score was normal, her umbilical cord pH was normal, and her hematocrit on initial admission to the neonatal intensive care unit was normal. Consequently, Dr. Willis concluded that Morgan's injury did not occur during labor, delivery, or resuscitation. Also speaking to the timing of Morgan's injury was Dr. Duchowny who, based on his review of the medical records, shared Dr. Willis' opinion that there was no evident problem during labor and delivery, and further opined that Morgan's injury likely occurred prior to labor. In concluding that Morgan's injury likely predated the onset of labor, Dr. Duchowny noted that Morgan's CT scan on the day after birth clearly revealed a stroke in the territory of the left middle cerebral artery, and that it would take at least 72 hours for a stroke to be revealed so clearly on a CT scan. Apart from the timing of Morgan's brain injury, Dr. Duchowny also expressed his opinions, based on his examination of November 6, 2001, regarding the neurologic consequences that followed Morgan's injury. Dr. Duchowny reported the results of Morgan's neurology evaluation, as follows: PHYSICAL EXAMINATION reveals an alert, well developed and well nourished 10 1/2 month old white female. The skin is warm and moist. There are no cutaneous stigmata or dysmorphic features. The hair is light blonde, fine and of normal texture. Morgan weighs 18-pounds, 10-ounces. Her head circumference measures 45.6 cm, which is at the 60th percentile for age matched controls. There are no dysraphic features. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. NEUROLOGIC EXAMINATION reveals an alert infant who is socially oriented. She has good central gaze fixation, conjugate following and normal ocular fundi. The pupils are 3 mm and react briskly to direct and consensually presented light. There is blink to threat from both directions. There are no facial asymmetries. The tongue and palate move well, and there is no drooling. Motor examination reveals an obvious asymmetry of posturing and movement. The left side is positioned normally and tends to grasp for objects. The right upper and lower extremity have diminished movement in comparison to the left and there is a tendency for the left hand to cross the midline for all manual tasks. She will not grasp for an offered cube with her right hand. In contrast, the left hand will grasp for a cube and display the beginnings of individual finger movements. The thumb on the right hand is fisted. The muscle, bulk and tone appears symmetric. Deep tendon reflexes are 2+ at the biceps and knees. Both plantare responses are mildly extensor. On pull-to-sit there is an asymmetry of the upper extremity, with relatively greater pull on the left side. The neck tone is good. There are no adventitious movements. Sensory examination is intact to withdrawal of all extremities to touch. The neurovascular examination via the anterior fontanelle is unremarkable. In SUMMARY, Morgan's neurologic examination reveals a mild to moderate motor asymmetry of the right side affecting primarily upper extremity, but with some lower extremity involvement as well. In contrast, Morgan's cognitive status appeared well preserved for age and she is certainly developing on schedule with regard to her linguistic milestones. I suspect that Morgan's motor function will continue to improve, as she is working actively in therapy. In sum, it was Dr. Duchowny's opinion that Morgan evidenced neither a permanent and substantial physical impairment nor a permanent and substantial mental impairment. In contrast to the proof offered by Respondent, Petitioners offered the lay testimony of Mrs. Wilson, which was legally insufficient to support a finding regarding the timing of Morgan's brain injury, and which failed to support a conclusion that Morgan was permanently and substantially mentally and physically impaired. See, e.g., Vero Beach Care Center v. Ricks, 476 So. 2d 262, 264 (Fla. 1st DCA 1985)("[L]ay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observable.") Consequently, since the opinions of Dr. Willis and Dr. Duchowny are logical, and consistent with the medical records, it must be resolved that, more likely than not, Morgan's brain injury did not occur "in the course of labor, delivery, or resuscitation," and that Morgan's injury did not render her "permanently and substantially mentally and physically impaired." 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 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.
