The Issue The issue is whether Respondent is guilty of performing wrong-site surgery or performing a procedure without the patient's consent and, if so, what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been licensed as a physician in the state of Florida. His license number is ME 85786. Respondent is Board-certified in anesthesiology and pain management by the American Board of Anesthesiology. Respondent has not previously been disciplined by the Board of Medicine. Patient K. D. suffered a back injury in November 1998. Following a laminectomy, Patient K. D. continued to suffer from chronic low-back pain. She visited Respondent's pain management clinic for pain relief and has been quite satisfied with the treatment that she has received from Respondent. On February 14, 2003, one of Respondent's partners performed a right-side lumbar rhizotomy by pulsed radiofrequency. The purpose of this procedure is to relieve or eliminate pain in the lower back. When performed by pulsed radiofrequency, the rhizotomy would probably not have been successful if the patient still experiences pain two weeks after the procedure. Two weeks later, on February 28, Patient K. D. presented for a left-side lumbar rhizotomy, which Respondent was to perform. Immediately prior to the surgery on February 28, while Patient K. D. was in pre-op, Respondent performed a physical examination and observed that Patient K. D. indicated pain on the right side. In response to questioning, Patient K. D. confirmed that her right side was more painful than her left side. Respondent said that he would therefore perform a right-side lumbar rhizotomy. Patient K. D. did not disagree or object, but consented to the procedure--in the presence of two nurses, as well as Respondent. Immediately after their pre-op discussion, Patient K. D. was administered Versed, which produces an effect of amnesia. To some extent, this drug may cause some retrograde amnesia, so that Patient K. D. might not recall events immediately preceding the administration of the drug, such as her physical examination and conversation with Respondent in pre-op. Respondent performed a right-side lumbar rhizotomy without incident. However, immediately after the procedure, Patient K. D. said that she also suffered left-side pain and questioned why Respondent had performed the procedure on her right side. When Patient K. D. complained that transportation problems would make it hard for her to re-schedule a left-side procedure, Respondent performed a left-side procedure, on the same day, and he completed this procedure also without incident. Prior to the February 14 and 28 procedures, Patient K. D. signed consent forms. The consent form for the February 14 procedure identifies a right-side procedure, and the consent form (actually, there are two identical forms) for the February 28 procedure identifies a left-side procedure. The forms state: It has been explained to me that during the course of an operation, unforeseen conditions may be revealed that necessitate an extensive exchange or change of the original procedure or different procedures, and I therefore authorize and require my physician or surgeon . . . to perform such surgical procedures as are necessary and desirable in the exercise of his and/or their professional judgement. . . . Petitioner's expert witness opined that a change in location, even under the above-described circumstances, "should" have been documented on a consent form, but later conceded that this is not strictly necessary. On cross-examination, Petitioner's expert witness admitted that a patient may give informed consent verbally or by conduct. Petitioner's expert witness properly discredited Respondent's theory that he had some form of ongoing consent because the forms bore no expiration date. However, to the limited extent that Petitioner's expert witness implied a requirement for written informed consent, his opinion is unsupported by Florida law, as set forth below. In contrast to Petitioner's expert witness, Respondent's expert witness did not equivocate on the issue of the required form of informed consent. Relying largely on the testimony of Patient K. D., Respondent's expert witness testified that Respondent had obtained the informed consent of Patient K. D. to perform a second right-side procedure. Aside from the obvious advantages of a written informed consent, Respondent's expert witness convincingly testified that informed consent is a state of mind, not a signature on a piece of paper, and, by this standard, which is consistent with Florida law, as set forth below, Respondent had Patient K. D.'s informed consent to perform a second right-side procedure on February 28 and thus had been duly authorized to do so.
Recommendation It is RECOMMENDED that Petitioner dismiss the Administrative Complaint, as amended, against Respondent. DONE AND ENTERED this 21st day of November, 2005, in Tallahassee, Leon County, Florida. S _ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2005. COPIES FURNISHED: Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Irving Levine Assistant General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Dennis A. Vandenberg Peterson Bernard 1550 Southern Boulevard West Palm Beach, Florida 33406
The Issue At issue in this proceeding is whether Michael Aaron Saul, 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 Lisa L. Saul and Craig Saul are the parents and natural guardians of Michael Aaron Saul (Michael), a minor. Michael was born a live infant on May 5, 1997, at Leesburg Regional Medical Center, hospital located in Leesburg, Florida and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Michael was Shivakumar S. Hanubal, 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. Also present at some point during the course of Michael's birth was Manuel Alvarado, M.D., who was also, at the time, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (the 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 claimant demonstrates, 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." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, Michael's neurologic presentation is dispositive of the claim. Michael's neurologic status On January 6, 2000, following the filing of the claim for compensation, Michael was examined by Michael Duchowny, M.D., a board-certified pediatric neurologist. The results of Dr. Duchowny's examination were reported as follows: HISTORY ACCORDING TO MRS. SAUL: Michael's mother began by explaining that Michael is a 2 1/2 year old boy who has a left Erb's palsy [damage to the upper brachial plexus]. She attributes his weakness to complications of a large birth weight and shoulder dystocia. He was delivered at Leesburg Regional Medical Center after a 9 1/2 hour labor. His birth weight was 10-pounds, 7- ounces and he remained in the nursery for 6 days for an evaluation of the upper extremity weakness. Michael has gone on to have significant problems with the left Erb's palsy. He ultimately had serial nerve graphs performed at ages 3 months and 21 months. Michael also has had a muscle transplant. The first procedure was felt to be successful, but there was no benefit from the second. He continues to be disabled, in that he postures his arm and hands. He can not fully supinate the left hand. Michael had cognitive testing at age 1 1/2 years at Shan's Hospital. This apparently revealed "mild cognitive delays". Michael has a history of breath-holding spells and has been worked up with a CT scan which apparently was normal. He is scheduled to have an EEG and cardiogram. Michael receives speech, physical and occupational therapy on a weekly basis. Michael's health is otherwise intact. He is an active boy who is on no medications and is not being followed for other chronic intercurrent illnesses. Michael walked at the usual time. He apparently is quite verbal with a good lexicon and an ability to speak in full sentences. He is not yet toilet trained. Michael is fully immunized and has no known allergies. FAMILY HISTORY: The father is 30; the mother is a 31 year old, gravida 10, para 3, AB7. Two brothers ages 8 and 4 are both healthy. There are no other family members with brachial plexus problems. There is a history of epilepsy in the mother as a child. No family members have neurodegenerative illnesses, mental retardation or cerebral palsy. PHYSICAL EXAMINATION reveals an alert, cooperative and socially appropriate 3 1/2 year old boy. The skin is warm and moist. There are no neurocutaneous stigmata. The hair is blonde and of normal texture. There are no cranial or facial anomalies or asymmetries. The pigmentation of the iris is symmetric. The tongue movements are full and symmetric. The uvula is midline. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. Michael's NEUROLOGIC EXAMINATION reveals him to have fluent speech and an age appropriate stream of attention. He has good central gaze fixation with conjugate following movements and the ocular fundi are normal. The pupils are 3 mm and briskly reactive to direct and consensually presented light. There is no ptosis and no evidence of myosis. No skin anhidrosis is noted. The motor examination is significant for evidence of a left Erb's palsy with internal rotation, flexion and adduction of the left shoulder with some flexion at the left elbow and wrist and slight ulnar deviation of the hands. Michael does have good individual finger dexterity in both hands, although he tends to prefer the right. He can oppose the thumb and first finger of both hands. Michael can not fully supinate the left hand and clearly has a right hand preference. He is unable to fully elevate the left shoulder and there is mild scapular winging. The deep tendon reflexes are diminished in the left upper extremities and at the biceps, brachial radialis and triceps jerks where they are literally absent in comparison to 1+ on the right. The knee jerks are 2+ and the ankle jerks are 2+ with flexor plantar responses. His station and gait are age appropriate with symmetric arm swing. He is able to hold his hands in a steady fashion and his rapid alternating movement sequences are age appropriate. Neurovascular examination reveals no cervical, cranial or ocular bruits and there are no temperature or pulse asymmetries. The sensory examination is deferred. In SUMMARY, Michael's neurologic examination reveals evidence of a left Erb's palsy with 2 serial nerve graphs. I should also mention that he has long linear scars in the posterior aspects of both legs in the sites of nerve graph donation. Otherwise his neurologic examination is unremarkable. He has no focal or lateralizing features to suggest structural brain damage. A brachial plexus injury, such as that suffered by Michael during the course of his birth, is not, anatomically, a brain or spinal cord injury, and does not affect his mental status, which Doctor Duchowny observed to be essentially normal. Moreover, no other physical impairments of neurological origin were observed. Consequently, while Michael has been shown to have suffered a permanent injury (to his left brachial plexus) during the course of birth, it is Dr. Duchowny's opinion, which is credited, that such injury is not related to the brain or spinal cord and, moreover, that he has not been rendered permanently and substantially mentally and physically impaired.
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.
The Issue The issues to be determined are whether Eliana Ricketts (Eliana) suffered a birth-related neurological injury; and, if so, whether that injury renders the infant permanently and substantially mentally and physically impaired, as provided by section 766.302(2), Florida Statutes (2016).
Findings Of Fact Eliana was born on September 16, 2017, at Baptist Hospital, a licensed hospital in Jacksonville, Florida. Eliana was a child born of a single gestation, weighing 3,595 grams. NICA retained Donald C. Willis, M.D., an obstetrician specializing in maternal-fetal medicine, to review the medical records of Eliana and her mother, Michelle Ricketts. NICA asked Dr. Willis to provide an opinion as to whether there was a brain or spinal cord injury to Eliana, due to either oxygen deprivation or mechanical injury that occurred in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital. Dr. Willis authored a report to NICA on February 20, 2018, which is incorporated into his affidavit dated March 7, 2019. In his report, Dr. Willis stated in part: The mother, Michelle Ricketts [had] . . . no significant prenatal problems. She was admitted to the hospital at term in labor. Her cervix was dilated 4 cms on admission. The fetal heart rate (FHR) monitor tracing during labor was available for review. The baseline heart rate was normal at 140 bpm with normal variability. A decrease in FHR variability developed about 3 hours prior to delivery. Variable FHR decelerations started about 30 minutes prior to delivery. Cervical dilation was complete. Vacuum extractor was applied to assist vaginal delivery due to FHR decelerations and maternal fatigue. Delivery of the fetal head occurred after three pulls with one pop-off. Delivery was then complicated by a shoulder dystocia, lasting 4 minute 40 seconds. Birth weight was 3,595 grams. The newborn was depressed with Apgar scores of 3/5. Umbilical cord blood gas was not done. There was no respiratory effort at birth. Intubation was required and the baby transferred to the NICU. Chest X-Ray showed no infiltrates. Hypoxic ischemic encephalopathy (HIE) was suspected and head cooling protocol initiated. There was a large subgaleal hematoma. The scalp was boggy with swelling behind the ears. The subgaleal hemorrhage resulted in anemia with a Hct of 27% to 28%. Blood transfusion was required. DIC was also present. The platelet count dropped to 84,000 with fibrinogen levels of 166 to 110 and prolonged PT and PTT. Cryoprecipitate and platelet transfusions were given. Seizures began shortly after birth. Arterial blood gas (ABG) at one hour after birth had a pH of 7.23 and a base excess of -17. ABG 4 hours later had a pH of only 7.14 and a base excess remaining at -17. The initial EEG was abnormal, confirming seizure activity. Follow-up EEG on DOL [day of life] 3 was consistent with diffuse cerebral dysfunction. MRI on DOL 5 showed extensive bilateral infarctions, consistent with “significant anoxic injury” and extensive scalp swelling. * * * There was an obstetrical event that resulted in loss of oxygen to the baby’s brain during delivery and continuing into the immediate post delivery period. The oxygen deprivation resulted in brain injury. I am not able to comment about the severity of the injury. Eliana’s medical records were also reviewed by Laufey Sigurdardottir, M.D., a board-certified pediatric neurologist at Nemours Children’s Hospital. Dr. Sigurdardottir examined Eliana when she was just short of seven months old. Included in the records she reviewed were records of a neurological follow-up at four months with another neurologist, which state in part: [Four] month old girl with history of HIE and subsequent seizures that have since resolved. Overall, Eliana has tolerated Phenobarbital without side effects. Her most recent EEG (12/5/17) was normal. She has not had any clinical events concerning for seizures. She is currently on track with milestones (tracking, rolling, cooing, etc.) and physical exam is notable for the absence of any focal features and normal tone. She previously tested out of ‘Early Steps’ as there were no motor concerns from that perspective. As a result of her own examination of the infant, Dr. Sigurdardottir found Eliana upon examination to be alert, interactive, with what appeared to be normal development. She also found that she had a strong grasp with both hands bilaterally, and had normal response on vertical and horizontal suspension. She stated in summary: Patient is a 6 month old with history of Brachial plexus injury during complicated vaginal delivery as well as hypoxic ischemic event, resulting in a moderate to severe hypoxic ischemic encephalopathy. She had refractory neonatal seizures, evidence of acute ischemic injury on brain MRI and abnormal neurological exam in neonatal period. She has developed acquired microcephaly but has made remarkable neurologic recovery and is close to being age appropriate for her motor milestones at this time. Dr. Sigurdardottir opined that while Eliana did suffer a neurological injury to the brain due to oxygen deprivation during labor and delivery, she did not find permanent and substantial delays in motor and mental abilities, and, at the time of the examination, did not fulfill the criteria of having permanent and substantial mental and physical impairment. The opinions of Drs. Willis and Sigurdardottir, which are unrebutted, are credited. It is found that Eliana suffered from oxygen deprivation during delivery and into the immediate postdelivery period, which caused a brain injury. While Dr. Willis determined that there was a brain injury at birth, he did not comment on the severity of the injury. Dr. Sigurdardottir, however, opined, and it is found, that the injury did not result in a permanent and substantial physical and mental impairment.
Findings Of Fact Jamal White was born on August 19, 2010, at St. Joseph Women and Children's Hospital in Tampa, Florida. Jamal weighed 3,530 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Jamal and his mother. In an affidavit dated February 22, 2013, Dr. Willis opined the following within a reasonable degree of medical probability: In summary, delivery was complicated by a shoulder dystocia. Cord blood pH was within normal limits with pH of 7.08. The baby suffered a brachial plexus injury. Hospital course was otherwise normal. Labor was complicated by a shoulder dystocia that resulted in a difficult delivery and a brachial plexus injury. However, the shoulder dystocia did not result in brain injury. There is no obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery, or the immediate postdelivery period. Jamal was examined and evaluated by Raymond J. Fernandez, M.D. (Dr. Fernandez), on May 30, 2012. In an affidavit dated February 25, 2013, Dr. Fernandez found the following on his examination of Jamal: Jamal has mild weakness of his left arm, but in spite of this, he has good use of the arm, proximally and distally. The left arm weakness was due to a mechanical injury of his left brachial plexus during delivery that was complicated by shoulder dystocia. There was no evidence for substantial and permanent mental and physical impairment due to brain or spinal cord injury due to lack of oxygen or mechanical trauma. A review of the file does not show any contrary opinion, and Petitioner has no objection to the issuance of a summary final order finding that the injury is not compensable under Plan. The opinion of Dr. Willis that Jamal did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate postdelivery period is credited. The opinion of Dr. Fernandez that Jamal does not have a substantial and permanent mental and physical impairment due to lack of oxygen or mechanical trauma is credited.
Findings Of Fact The decedent, James C. Daniels, was employed as a fire fighter with the Village of Miami Shores, Florida, in April of 1972. The Miami Shores Fire Department was subsequently assimilated by Metropolitan Dade County, Florida, and at the time of the decedent's death on July 20, 1976, he was employed by Dade County as a fire fighter/emergency medical technician. On November 4, 1975, the decedent received a physical examination which showed no evidence of heart disease, and an electrocardiogram, the results of which were within "normal" limits. The decedent had no history of heart disease or circulatory problems, did not drink, and began smoking only in 1974 or 975. At the time of his death, the decedent's customary work routine involved 24 hours on duty, from 7:00 a.m. to 7:00 a.m., followed by 48 hours off duty. The decedent's duties included answering emergency calls along with his partner in a rescue vehicle. These calls included such incidences as automobile accidents, fires, violent crimes involving injuries to persons, and various and sundry other emergency situations. Upon answering an emergency call, the decedent was required by his job to carry heavy equipment, sometimes weighing as much as 80 pounds, to the place where the injured person was located. On occasion, the decedent would transport injured persons from the scene to local hospitals. At the time of his death, the decedent appeared outwardly to be in good physical condition. In fact, he engaged in a regular program of physical exercise. During the approximately two months prior to his death, the decedent participated in a busy work schedule which often included numerous rescues, in addition to false alarms and other drills required of his unit. In fact, only four days prior to his death, the decedent and his partner during one twenty- four hour shift, were involved in 13 rescues and one building fire. During that day, the decedent worked for 24 straight hours, apparently without sleep. On July 19, 1976, at 7:00 a.m., the decedent began his last work shift prior to his death. During that day, the decedent's unit participated in two rescues and two drills. That evening, several of decedent's fellow workers noticed that he looked "bad", "tired" or "drawn out". During the night, decedent was observed getting out of bed from three to five times, and holding his left arm, left side or armpit. At 7:00 a.m. on July 20, 1976, the decedent went off duty and returned home. Upon returning home, he ate breakfast, and later washed down a new brick fireplace at his home. After showering, resting and eating a lunch, he joined several other men near his home whom he had agreed to help in pouring cement for some new construction. The decedent mentioned pains in his neck and shoulder to these men before the truck carrying the cement arrived. The decedent mentioned that he had been under a lot of tension and pressure as a result of the busy work schedule at the fire station. When the cement truck arrived, cement was poured into several wheelbarrows and several of the men, including the decedent, pushed the wheelbarrows to the rear of the structure on which they were working. It appears that the decedent pushed approximately four wheelbarrow loads of cement weighing about 75 pounds each to the rear of the structure. Approximately one-half hour elapsed during the time that the decedent was engaged in this activity. Soon thereafter, the decedent was observed to collapse and fall to the ground. He was given emergency medical treatment and transported to Palmetto General Hospital, where he was pronounced dead at 5:24 p.m. on July 20, 1976. An autopsy was performed on the deceased on July 21, 1976 by Dr. Peter L. Lardizabal, the Assistant Medical Examiner for Dade County, Florida. In pertinent part, the autopsy showed moderate arteriosclerosis of the aorta, and severe occlusive arteriosclerosis of the proximal third of the anterior descending coronary artery in which the lumen, or opening, through which the blood passes through the artery was hardly discernible. The remaining coronary arteries appeared unaffected by the arteriosclerosis. The decedent's certificate of death, which was also signed by Dr. Lardizabal, listed the immediate cause of death as acute myocardial infarction due to severe occlusive arteriosclerosis of the left coronary artery. Dr. Lardizabal performed the autopsy examination of the decedent by "gross" observation, that is, without the benefit of microscopic analysis. However, microscopic slides were made during the course of the autopsy which were subsequently examined by other physicians whose testimony is contained in the record of this proceeding. Findings contained in the autopsy report, together with an evaluation of the aforementioned microscopic slides, establish that the myocardial infarction suffered by the decedent occurred at least 24 hours, and possible as many as 48 hours, prior to the decedent's death. This conclusion is based upon the existence of heart muscle necrosis, or tissue death, which would not have been discernible had the decedent died immediately following a coronary occlusion. In fact, for a myocardial infarction to he "grossly" observable at autopsy, that is, without the benefit of microscopic examination, it appears from the record that such an infarction would have to occur a substantial period of time prior to the death of the remainder of the body. Otherwise, the actual necrosis of heart muscle tissue would not be susceptible to observation with the naked eye. Although it appears probable from the evidence that the decedent went into a type of cardiac arrhythmia called ventricular fibrillation which led to his death, the actual proximate cause of his death was the underlying myocardial infarction, which in turn was a result of arteriosclerosis which had virtually shut off the supply of blood to the affected area of his heart. Although the causes of arteriosclerosis are not presently known to A medical science, it appears clear from the record that acute myocardial infarctions can be caused by emotional or physical stress, and that the decedent's myocardial infarction was, in fact, caused by the stress and strain of his job as a fire fighter and emergency medical technician. In fact, it appears from the medical testimony in this proceeding that the decedent was having a heart attack which led to the myocardial infarction on the night of July 19, 1976, or in the early morning hours of July 20, 1976, while he was still on duty. It further appears that, although physical exertion, such as the pushing of the wheelbarrow loads of cement by the decedent, might act as a "triggering mechanism" for ventricular fibrillation, the decedent's activities on the afternoon of July 20, 1976, had very little to do with his death. The type of lesion present in the decedent's heart, which had occurred as much as 48 hours prior to his death, was of such magnitude that he would likely have died regardless of the type of physical activity in which he engaged on July 20, 1976. Petitioner, Dolores A. Daniels, is the surviving spouse of James C. Daniels.
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.
