The Issue Whether Eman Mustafa, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether the hospital and the participating physician gave the patient notice, as contemplated by Section 766.316, Florida Statutes, or whether any failure to give notice was excused because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, or the giving of notice was not practicable.
Findings Of Fact Stipulated facts Shiren Mustafa and Nehad Mustafa are the natural parents and guardians of Eman Mustafa, a minor. Eman was born a live infant on February 22, 2002, at University Community Hospital, a hospital located in Tampa, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Eman's birth was Caryn L. Bray, 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. Eman's birth and immediate postnatal course At or about 8:00 p.m., February 21, 2002, Mrs. Mustafa, with an estimated delivery date of February 15, 2002, and the fetus at 40 6/7 weeks' gestation, was admitted to University Community Hospital, for induction of labor, and proposed vaginal birth, after prior cesarean section (VBAC). At the time, Mrs. Mustafa's membranes were intact; irregular contractions were noted; vaginal examination revealed the cervix closed, effacement at 60-70 percent, and the fetus at station -2; and fetal monitoring revealed a reassuring fetal heart rate, with a baseline in the 130-beat per minute range. At 9:00 p.m., Cervidil was placed to soften the cervix overnight, and by 7:15 a.m., February 22, 2002, vaginal examination revealed the cervix at 1-2 centimeters dilation, effacement at 90 percent, and the fetus at station -1. Cervidil was removed; at 7:40 a.m., the membranes spontaneously ruptured, with clear fluid noted; and Pitocin was started to augment labor. Fetal monitoring contained to reveal a reassuring fetal heart rate. Mrs. Mustafa's labor rapidly progressed and by 8:30 a.m., vaginal examination revealed the cervix at 5 centimeters,3 effacement complete and the fetus at station 0, and by 9:30 a.m., vaginal examination revealed complete dilation and effacement, and the fetus at station +2. Late decelerations were also noted at 9:30 a.m., but fetal heart rate was otherwise reassuring. Dr. Bray was paged at 9:32 a.m., and returned the page at 9:39 a.m. At the time, Dr. Bray was notified of Mrs. Mustafa's status and requested that the patient start pushing. However, due to the low station of the fetus, staff requested Dr. Bray's presence for pushing, and Dr. Bray stated she would be bedside in approximately 10 minutes. Thereafter, at 9:58 a.m., further decels were noted, and Pitocin was stopped. At 9:59 a.m., Dr. Bray was noted at bedside, oxygen was applied, fluid bolus started, and fetal heart rate decels to 60 beats per minute were documented. Thereafter, at 10:03 a.m., Mrs. Mustafa was pushing, complaining of pain when abdomen palpated, and fetal heart rate in the 50-beat per minute range was noted. Then, at 10:07 a.m., fetal heart rate in the 50s was noted, with brief accelerations to the 110-beat per minute range, and Dr. Bray requested a Kiwi vacuum. At 10:09 a.m., Kiwi vacuum-assisted delivery, with patient pushing, proved unsuccessful, and fetal heart rate was noted in the 110-beat per minute range, with deceleration back to the 60-beat per minute range. At 10:11 a.m., Dr. Bray requested fundal pressure, with patient pushing, but again Kiwi vacuum-assisted delivery was unsuccessful, despite three attempts. Medela vacuum was called for and at 10:17 a.m., two attempts at delivery with the Medela vacuum and fundal pressure proved unsuccessful. Then, at 10:19 a.m., with fetal heart rate remaining in the 60-beat per minute range, a stat cesarean section was called for non-reassuring fetal heart rate and suspected uterine rupture. At 10:22 a.m., Mrs. Mustafa was taken to the operating room, where she was admitted at 10:25 a.m.; surgery started at 10:30 a.m., at which time uterine rupture was confirmed; and Eman was delivered at 10:32 a.m., with Apgar scores of 1, 3, and 6, at one, five, and ten minutes respectively.4 According to the medical records, Eman required resuscitation at birth, with tracheal intubation, IPPV, and cardiac massage, and was then transferred to the neonatal intensive care unit (NICA), where she developed spontaneous respirations, and within two to three hours was weaned from the ventilator. Eman's subsequent newborn course was without incident or evidence of residual effects of birth trauma, and she was discharged with her mother on February 25, 2002. Eman's Discharge Summary included the following observations: PHYSICAL EXAMINATION: A term female infant, weight 3329 grams, length 51 cm, and hip circumference 32 cm. Temperature 97.3, heart rate 158, respiratory rate 62, blood pressure 51/48. HEENT: Normocephalic. Eyes examined at discharge: Pupils were reactive and the red reflex seen. No nasal flaring. Neck supple. Lungs: No retractions. Good air entry. Heart regular rate and rhythm. No murmur. Abdomen soft, no masses, three-vessel cord. Genitalia: Female. Extremities: Moving all limbs, hips stable. No rashes. Neurological: Good tone. INITIAL IMPRESSION: Term female infant. Perinatal depression. Maternal uterine rupture. Respiratory distress. At once (STAT) cesarean section. INITIAL TREATMENT: NICU admission. Pulse oximetry monitoring. Conventional mechanical ventilation. Nothing by mouth. Intravenous fluids. Sepsis workup. Antibiotics. Chest x-ray. PROGRESS: Respiratory: The infant was extubated and weaned to room air within approximately two to three hours of admission. Initial chest x-ray was not significant. Rule out sepsis: The infant was treated with antibiotics; namely, ampicillin and gentamicin for 48 hours. These were discontinued when the cultures remained negative. Fluids and electrolytes: On admission, the infant was given early intravenous fluids, approximately 24 to 48 hours enteral feeds were begun and increased progressively. At the present time the infant is breastfeeding only. She is voiding well, passing stools. Neurological: The infant has good tone and good reflexes, no clonus, and appears to be neurologically normal. SUMMARY: This is a term female infant who was delivered after having maternal uterine rupture. The infant did require neonatal resuscitation but recovered very quickly. At the present time the infant is doing well and feeding well. FINAL DIAGNOSIS: Term female infant. Cesarean section. Perinatal depression. Rule out sepsis. Respiratory distress. Eman's subsequent development Eman's early development was apparently without significant concern until approximately 19 months of age, when she was referred by her pediatrician (Issaam Albanna, M.D.) to Jose Ferreira, M.D., a physician board-certified in neurophysiology and neurology with special qualification in child neurology, for evaluation concerning "some gait disturbance with falling and some coordination problems." Pertinent to this case, Dr. Ferreira reported the results of his initial evaluation of October 6, 2003, as follows: I had the pleasure of seeing Eman for initial evaluation today accompanied by her mother and aunt. The main concern is some gait disturbance with falling and some coordination problems. They report that she started walking somewhat late at 14-15 months and was doing better initially and then seems to be falling more frequently recently and will walk on her toes at times. There is also some deficits with the coordination where she seems to be "clumsy" at times, hands "clinched" frequently and her muscles "give out" on her apparently more frequently then expected for age. She has been developing speech with about 5 words at this point. She tends to drool frequently She is potty training currently as she starts to talk with 5-6 words vocabulary . . . . PAST MEDICAL HISTORY: She was born at full term pregnancy. Birth weight was 7 lb 8 ounces. There was some traumatic delivery as she describes it with uterine rupture and labor requiring a stat cesarean section. She went home with her mother. There was no other problems noted initially. * * * GENERAL PHYSICAL EXAMINATION: HC: 45 cm (5th percentile) WT: 23 lb HR: 90 and regular. HEENT: Unremarkable. Normocephalic. . . . The extremities have full range of motion with no edema, deformities or joint tenderness. The midline back shows no midline defects and no point tenderness to percussion. The skin shows no neurocutaneous findings of significance and there was no dysmorphic features. NEUROLOGICAL EXAMINATION: Shows she was alert. She was initially showing significant stranger anxiety and then was more comfortable with the examiner as the interview took place. She was able to follow some simple commands from her mother. She did not say any words during the examination. The cranial nerve examination revealed full extraocular movements and visual fields full to confrontation. The pupils were equal and reactive. The funduscopic exam showed bilateral red reflex. The face is symmetric and the tongue midline with no fasciculations. There was some degree of drooling noted. Her motor exam shows she had no focal weakness. There is no significant increased resistance to pass of motion other than possibly the right upper extremities. She tended to maintain her hands fisted with some cortical thumbs at times specially when she walked. The gait shows she was somewhat stooped forward to a mild degree but otherwise wide based appropriate for age. She tended to fall occasionally. There was no asymmetry of the use of her extremities otherwise except that she tended to hold the right arm more flexed and the right hand more frequently closed and pronated. The deep tendon reflexes showed 2+. There is no sustained ankle clonus. The plantar responses were extensor bilaterally. Gait and coordination showed there was no tremors and no ataxia [failure of musculature coordination]5 of significance other than the tendency to fall which was somewhat limited coordination. The plantar responses were extensor bilaterally. IMPRESSION: 1. Gait disturbance associated with a mild degree of incoordination with her age with some mild upper motor neuron dysfunction signs as described above in the neurological examination. * * * RECOMMENDATIONS: She will have an MRI of the brain without contrast. She will have a metabolic screening including serum amino acids, ammonia levels, thyroid functions studies, total carnitine levels, ammonia and lactate and CPK levels. She will be seen for follow up here in approximately one and a half to two months or earlier if there is any acute changes. Physical and occupational therapy may be recommended at this point . . . . (Petitioners' Exhibit 2). Eman was reevaluated by Dr. Ferreira on December 15, 2003, and he reported the results of that visit, as follows: I had the pleasure of seeing Eman for follow up today accompanied by her parents. As you know, she has a history of difficulties with her gait and some developmental delay and coordination difficulties. She had an MRI of the brain, which was normal with the exception of some sinusitis. She also had a metabolic screen and had elevated T4[,] and T3 and TSH was normal. She continues having difficulties with her gait and coordination. She has had some drooling at times. Her speech has been somewhat delayed and she has approximately 10-15 word vocabulary but difficult to understand and does not show any signs to suggest regression. She has been sleeping and eating well. * * * HEENT: Unremarkable. . . . The extremities had full range of motion and no edema. NEUROLOGICAL EXAMINATION: She was alert and friendly. She was cooperative. Cranial nerve exam revealed full extraocular movements and visual fields grossly full to confrontation. The pupils are equal and reactive. The funduscopic exam shows bilateral red reflex. The face is symmetric and the tongue was midline with no fasciculations. The motor exams shows she had some difficulties with fine motor coordination. She did not have a good pincer grasp and she tended to keep her hands mostly in a pronated position and somewhat flexed at the elbow and especially when she walked. Her muscle tone was minimally increased in all extremities. Deep tendon reflexes were 2+/2+. The plantar responses were extensor bilaterally. Her gait was minimally spastic with a slightly wide base. She tended to walk somewhat stood forward to a mild degree. When she was sitting she also had some mild degree of truncal ataxia. IMPRESSION: History of developmental disorder with mild speech and language delay as well as some drooling. Mild degree of spasticity with gait disturbance. There is history of sinusitis. RECOMMENDATIONS: As her MRI did not show any intracranial pathology an EEG will be done to evaluate for any encephalopathic changes. She was referred to occupational, speech and physical therapy. The thyroid function (T4 was mildly elevated) will be repeated. She will be seen for follow up here in three to four months or earlier if there is any acute changes . . . . (Petitioners' Exhibit 2). Eman was last evaluated by Dr. Ferreira on February 11, 2004, and he reported the results of that visit, as follows: I had the pleasure of seeing Eman for follow up today accompanied by her parents for a history of gait disturbance with some developmental delay and coordination difficulties. She had an EEG done today which showed a mild abnormality with the right occipital rhythm being slightly lower voltage than the left. The EEG was otherwise normal. She is now in physical, occupational and speech therapy. This just started so it is difficult to say whether or not improvement has been noted. Her parents feel however that she has improved. She is learning new words and her parents feel that she is steadily showing improvement. She is falling still but is moving around better than she has previously. They also feel her drooling has improved. She is eating and sleeping well and they have no new concerns today. * * * HEENT: Unremarkable. . . . Extremities had full range of motion. NEUROLOGICAL EXAMINATION: She is awake and alert. She is very cooperative and friendly. She was speaking at times and was smiling. Cranial nerve and motor exams were unchanged from the last evaluation. Her pincer grasp was still not as good as expected for her age and she tended to keep her hands pronated when walking. Her muscle tone was still mildly increased. Deep tendon reflexes were 2+ and she was walking with a slightly wide based gait for age. She was sitting without assistance for short periods of time today but continued with a mild degree of truncal ataxia. RECOMMENDATIONS: The thyroid panel will be repeated as it was requested at the last visit but unable to be completed.[6] She will continue in the therapies . . . . (Petitioners' Exhibit 2). According to Dr. Ferreira, as of the last time he saw Eman (February 11, 2004) she was still showing some neurologic deficits, which he described as a mild degree of spasticity (increased muscle tone), with gait disturbance; mild upper motor dysfunction, with a less than age-appropriate pincer grasp and tendency to pronate her hands when walking; and a mild speech and language delay. (See Dr. Ferreira's reports of December 15, 2003, and February 11, 2004, supra, and Petitioners' Exhibit 2, pages 15-21, 28-32, and 42). As for permanency, Dr. Ferreira declined (given the limited contact he had with Eman) to offer an opinion regarding the significance of any dysfunction that might persist. Moreover, Dr. Ferreira, who was not familiar with Eman's birth records or those medical records that predated his evaluation of October 6, 2003, offered no opinion, within a reasonable degree of medical certainty, as to the likely etiology of Eman's neurologic defects (i.e., whether they resulted from brain injury caused by oxygen deprivation or mechanical injury occurring during labor delivery or resuscitation, or another etiology) or whether Eman suffered any mental impairment. Subsequent neurologic evaluations On February 23, 2005, Eman was, at NICA's request, evaluated by Michael Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital. Dr. Duchowny reported the results of his evaluation, as follows: PRE-AND PERINATAL HISTORY: Eman was born in Tampa at University Hospital after a full term gestation. Her birth weight was 7 pounds 9 ounces, and she remained in the nursery for three days. Eman walked at eighteen months and said single words at two years. She is just beginning toilet training. She is fully immunized and has no known allergies. She has never undergone surgery and has not been hospitalized after birth. PHYSICAL EXAMINATION reveals an alert, well- developed and well-nourished, cooperative 3- year-old girl. Eman weighs 36 pounds and is 45 inches tall. The skin is warm and moist. There are no neurocutaneous stigmata . . . The spine is straight. The head circumference measures 45.8 centimeters, which is below the 3rd percentile for age. There are no cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular examination is unremarkable, and the lung fields are clear. There is no palpable abdominal organomegaly. Peripheral pulses are 2+ and symmetric. Eman's NEUROLOGIC EXAMINATION reveals her to be socially interactive and cooperative. She has a good attention span and is quite inquisitive. She smiles frequently. She is able to understand commands and completes them very clearly. She is quite interactive playing games. She knows body parts. She is behaviorally intact. Cranial nerve examinations reveal full visual fields to confrontation testing. The pupils are 3mm and briskly reactive to direct and consensually presented light. There are full and conjugate extraocular movements. Funduscopic examination is unremarkable with well-defined optic disc margins. There are no significant facial asymmetries. The tongue movements are poorly coordinated. Drooling is noted intermittently. Motor examination reveals static hypotonia with a mild increase in tone in all extremities. There are no contractures and there is full range of motion in all joints. The gait is complex with the left heel being slightly elevated with a mild degree of circumduction at the hips and internal rotation at the ankles. Deep tendon reflexes are 1+ in the upper extremities, 3+ at the knees, and 1+ at the ankles. Plantar responses are downgoing. Sensory examination is intact to withdrawal of all extremities to stimulation. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. (Petitioners' Exhibit 3). Based on his neurologic evaluation and review of the medical records, Dr. Duchowny was of the opinion that Eman's impairments were most likely developmentally based (the product of atypical brain development), as opposed to birth trauma (brain injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation). In so concluding, Dr. Duchowny noted that following delivery, Eman's hospital course was inconsistent with traumatic brain damage (there being an absence of significant prolonged respiratory depression, an absence of systemic organ involvement, and an absence of seizure activity), and her MRI scan of November 13, 2003, was normal. Dr. Duchowny also noted that Eman's presentation on February 23, 2005, with a pattern of immature muscle control and expressive language delay, was typical of children with developmental disabilities, as opposed to disabilities associated with birth trauma. Finally, Dr. Duchowny was of the opinion that Eman's expressive language delay was mild to moderate, and her motor disability was moderate, as opposed to substantial, and that her condition was likely to improve with time. (Petitioners' Exhibit 4; Respondent's Exhibit 1). Subsequently, on March 11, 2005, Eman was, at University Community Hospital's request, evaluated by S. Parrish Winesett, M.D. a physician board-certified in pediatrics and neurology with special qualification in child neurology. Dr. Winesett reported the results of his evaluation, as follows: PHYSICAL EXAMINATION: General: Shows a young lady who is alert, who is quite interactive. She smiles easily. She has no obvious dysmorphic features. She has normally placed eyes, ears, nose, philtrum and mouth. Her mental status is that she said single words during my exam. I did not really hear her say sentences. She was rather quiet for the most part. She seemed to follow directions well. Cranial nerve exam showed her pupils were equal and responsive to light. She seemed to have full visual fields. Her extraocular eye movements were intact. Range of motion in all directions was full. Face was symmetrical with good facial movements in both the upper and lower face. Tongue was midline without any fasiculations. Palate raised symmetrically. She shrugged her shoulders will. Motor exam seemed to show that she was strong in all four extremities. I could not get her to fully resist me and give her full effort in trying to resist me, but she did seem to be fairly strong in what resistance I could elicit. She does not seem to have any obvious atrophy of the muscles. She seemed to have normal tone and bulk. In particular, I did not detect any asymmetry of tone nor did I detect any hypertonia. Reflexes in the upper extremities were normal in the biceps, brachial radialis and triceps. In the lower extremities, she did not have any pathologic increase in reflexes, but her patella and ankle reflexes were brisk. Her motor coordination showed that in reaching with both hands, she seemed to be somewhat jerky and has a very slow approach in reaching for my tape measure. She did not seem to be particularly adept at pushing the buttons and pulling the tape as I would expect a child of three to be. She seemed to be very slow. Finger tapping also seemed to be slow and somewhat labored. She did not diminish her amplitude as she tapped. Sensation was not extensively tested, but she did seem to acknowledge being touched in all four extremities in a normal fashion. Her gait was clearly abnormal. Her hands while sitting never showed any adduction of the thumbs within the palms. When she walked, she immediately assumed a posture in which she pulled her arms close to her side, bent her elbows and brought her thumbs within her palm. This was seen each time she started to walk. She did not circumduct her legs but instead seemed to drag her lower extremities and have an almost slapping motion of her feet as she pulled her legs forward. She did not particularly scissor while she was walking. She did not space out her gait while she was walking. * * * Review of the medical records provided to me of both the child, as well as the mother . . . showed the following. The child was born on February 22, 2002 as the product of a 41 week pregnancy. There was an attempted vaginal birth after previous C-section. At approximately 10:02, the fetal heart rate was noticed to be decelerating. The obstetrician was called at that time. The child had heart deceleration during this period that was noted in the nurses notes to be down in the 50's and noted in the physician's notes to be in the 70's. The child was then taken to the operating room where the child was born at approximately 10:32. The child, at that time, was handed over to the neonatal resuscitation team who started resuscitation effort and gave the child Apgar scores of 1, 3 and 6 at 1, 5 and 10 minutes. The patient had been intubated by the 3rd Apgar score. The child was taken back to the NICU where at 10:45, a blood gas was performed which showed a pH of 7.31, a PC02 of 22 and a base excess of -18. The child recovered quite quickly and was extubated in approximately two hours. Review of the operating notes showed that there was reported 200 to 300 cc of blood in the uterus and that there was a uterine rupture noted by the physicians at the operation. The child was discharged from the NICU on February 25, 2002 with the neurological exam reported to be normal. The child has subsequently been seen by Dr. Jose Ferriera for the same complaints that they presented to me with. He has done an MRI which was read as normal by the Tampa Children's Hospital radiologist. Thyroid function tests were ordered and showed a mild elevation of T4. . . . A speech therapy evaluation including the Rossetti Infant Toddler Language Scale showed that she scored at the 15 month range at the age of 23 months for her speech skills. There was apparently some splintering of the scoring but mostly within the 15 to 18 month range. An auditory comprehension subtest, she scores at 23 months which is normal. She is also noted to have some oral motor speech difficulties. Physical and occupational therapy evaluations were reviewed but not as significantly to the data. IMPRESSION: Eman is a young lady who is presenting with predominantly problems in gait disturbance, as well as speech problems. Many of her speech problems could be related to problems in the coordination of her speech. There is a mild increase in reflexes in the lower extremities; however, it does not appear to be a significant degree of hypertonia. Overall, this child appears to have predominant problems with dyscoordination. This is not a typical presentation for a neonatal hypoxic ischemic encephalopathy syndrome. In addition, the fact that the child recovered so quickly and was extubated within two hours and was discharged within two days makes it highly unlikely that the hypoxia suffered at birth is the cause of the neurologic syndrome. (Petitioners' Exhibit 3). Based on his neurologic evaluation and review of the medical records, Dr. Winesett was of the opinion that, while of unknown etiology, it was unlikely Eman's neurologic problems were related to birth trauma. Dr. Winesett also described Eman's motor difficulties as moderate, as opposed to substantial, and offered no opinion regarding her cognitive function. (Petitioner's Exhibit 3, pages 18, 19, 22-26, and 36). 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 postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired."7 § 766.302(2), Fla. Stat. See also §§ 766.309(1) and 766.31(1), Fla. Stat. The etiology and significance of Eman's impairments Here, among the physicians who have examined Eman, and who were particularly qualified to address the etiology and significance of her impairments, none concluded that Eman's impairments most likely resulted from brain injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitating in the immediate postdelivery period in the hospital, or that Eman was permanently and substantially mentally and physically impaired. See, e.g., Wausau Insurance Company v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because of the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obliged to present expert medical evidence establishing that causal connection."); Ackley v. General Parcel Service, 646 So. 2d 242 (Fla. 1st DCA 1995)(determining cause of psychiatric illness is essentially a medical question, requiring expert medical evidence); Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation."). Therefore, the proof fails to support the conclusion that Eman suffered a "birth-related neurological injury," as required for coverage under the Plan. The notice provisions of the Plan Given that Eman did not suffer an injury compensable under the Plan, it is unnecessary to address whether the healthcare providers complied with the notice provisions of the Plan. See, e.g., Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997)("[A]s a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, healthcare providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery."); O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("We recognize that lack of proper notice does not affect a claimant's ability to obtain compensation from the Plan. However, a healthprovider who disputes a plaintiff's assertion of inadequate notice is raising the issue of whether a claim can only be compensated under the plan.").
The Issue At issue in this proceeding is whether Caren Prieto, 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 Petitioners, Lissette Emilia Reyes and Juan Carlos Prieto, are the parents and natural guardians of Caren Prieto, a minor. Caren, also known as Karen, was born a live infant on November 18, 2000, at Hialeah Hospital, a hospital located in Hialeah, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Caren's birth was Ramon Hechavarria, 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. Caren's birth At or about 9:20 p.m., November 18, 2000, Ms. Reyes (with an estimated date of delivery of December 7, 2000, and the fetus at 37 weeks gestation) presented to Hialeah Hospital in labor. At the time, Ms. Reyes reported her membranes had ruptured at 8:30 p.m., with clear fluid noted, and provided a medical history that included two previous cesareans and requested a repeat cesarean section. Initial vaginal examination revealed the cervix at 4-5 centimeters dilation, effacement at 60 percent, and the fetus at station -3, with clear amniotic fluid observed. Uterine contractions were noted at a frequency of 2-3 minutes, and fetal heart rate was reassuring at 125-145 beats per minute, with accelerations. At 9:30 p.m., Dr. Hechavarria was notified of Ms. Reyes' status, and a repeat cesarean section was scheduled for later that evening. In the interim, fetal heart rate continued to be reassuring.1 According to the records, Ms. Reyes was in the operating at 11:30 p.m., anesthesia began at 11:40 p.m., surgery began at 11:45 p.m., and Caren was delivered, without difficulty, at 11:57 p.m. On delivery, Caren was bulb-suctioned, stimulated and accorded blowby oxygen. Otherwise no intervention was required. Initial newborn assessment noted no apparent abnormalities, and Apgar scores were recorded as 9 at one minute and 9 at five minutes. The Apgar scores assigned to Caren are a numeric 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 and five minutes, Caren's Apgar score totaled 9, with heart rate, respiratory effort, muscle tone, and reflex irritability being graded at 2 each, and color being graded at 1. Such scores are considered normal, and inconsistent with recent hypoxic insult or trauma. Following the initial newborn assessment, Caren was transported to the newborn nursery, where she remained until approximately 7:25 a.m., November 20, 2000, when she was transferred to the neonatal intensive care unit (NICU) for septic workup. At the time, some fever was detected and a positive c- reactive protein (CRP) test was returned, consistent with, but not diagnostic of, the presence of an infectious process.2 Blood culture was ordered, and Caren was started on a regime of antibiotics (Ampicillin and Gentamycin). Following admission to the neonatal intensive care unit, Caren evidenced no distress until 7:05 a.m., November 21, 2000, when "what appeared to be a mild tremor . . . for about five seconds" was noted. Thereafter, at 11:00 a.m., Caren was noted to have a "jerking movement [and] twitching of [right] arm," and at 12:00 (noon), during the course of an electroencephalogram (EEG) "twitching of [the right] leg" was noted. In response, Caren was given a loading dose of Phenobarbital, and a head ultrasound was ordered. The results of the EEG were abnormal. Impression was: ABNORMAL STUDY DUE TO THE PRESENCE OF FREQUENT INTERICTAL EPILEPTIFORM ACTIVITY AS WELL AS INTERMITTENT BRIEF SEIZURE ACTIVITY THAT APPEARED PREDOMINANTLY ON THE LEFT . . . . The head ultrasound was also abnormal, and revealed a "left intraventricular and right caudate hemorrhage." At 5:30 p.m., November 21, 2000, Caren was transferred to Jackson Memorial Hospital (JMH) and remained at that facility until discharged to her mother's care on January 3, 2001. Caren's subsequent development On September 4, 2001, following the filing of the subject claim, Caren was examined by Dr. Michael Duchowny, a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. Dr. Duchowny reported the results of his neurology evaluation, as well as the history he obtained from the parents, as follows: HISTORY ACCORDING TO MR. AND MRS. PRIETO: The mother began by explaining that Karen is 10 months old, but has a significant delay. She has just begun rolling over and is unable to sit up on her own. She attends the rehabilitation program at Jackson Memorial Hospital here in Miami and receives physical therapy twice weekly. Mrs. Prieto indicated that Karen was "born normal". In the first week of life she was noted to have evidence of bulging fontanelle and hydrocephalus was diagnosed. A right ventricular peroneal shunt was performed and it is still in place and functional. Her head circumferences have been followed at Jackson Memorial Hospital by Dr. Isidro Lopez, Karen's pediatrician. Karen experienced a flurry of seizures in the first week of life. She was placed on phenobarbitol and remains on 4 cc b.i.d. She has had no further seizures. Mrs. Prieto has also noted that Karen's "right eye turns in" and she feel[s] that her "left arm is weak". Her thumb was fisted in the past, but has opened up at this point. Karen's vision and hearing are said to be normal and her feeding has been quite stable. She sleeps through the night. There has been no recent exposure to toxic or infectious agents. * * * PHYSICAL EXAMINATION today reveals an alert, pleasant and socially responsive 10-month-old infant who sits on her mother's lap. The skin is warm and moist. There is a right asymmetry with the right eye appearing smaller than the left. There are no other dysmorphic features and no evidence of dysraphism. The right VP shunt is palpated and appears normal. Her head circumference measures 40.6 cm and the anterior and posterior fontanelles are both patient and flat. The neck is supple without masses, thyromegaly or adenopathy and the cardiovascular, respiratory and abdominal examinations are normal. There are no neurocutaneous stigmata. NEUROLOGICAL EXAMINATION reveals evidence of a child with significant motor delay. Karen can roll over in both directions, but clearly lacks the ability to sit on her own. She has generalized hypotonia with bilateral hyperreflexia and extensor plantar responses. Her head control is poor. The tonic neck response is present and not obligate in both directions. Moro response is absent. There is no force grasping or sucking responses and I saw no evidence of fisting of the thumbs. There are no adventitious movements, focal weakness or atrophy. At the same time, Karen does have an asymmetry of movement where by she moves the right arm more than the left. There is full range of movement on the left however. The cranial nerves examination reveals no visual fields to confrontation testing. There is an alternating isotropia, more prominent on the right. Pupils are 3 mm and briskly reactive to direct and conceptually presented light. There are no funduscopic abnormalities. Sensory examination is intact to withdrawal of all extremities to touch. The neurovascular examination is unremarkable. Karen has no[ ] evidence of sitting balance and has poor head control. In SUMMARY, Karen's neurologic examination is significant for marked motor developmental delay with an asymmetry of movement. She additionally has hydrocephalus which is stable and has an alternating isotropia which is being followed by Ophthalmology. Her seizures are no longer a clinical problem and I suspect that her medications will be withdrawn in the near term. An EEG would be appropriate. As for Caren's mental development, Dr. Duchowny expressed his views as follows: . . . It is very hard to assess her mental development at age 10 months. You know, I think that her mental development is difficult to assess, but I didn't find evidence of a severe mental impairment in that she was aware and socially responsive. Here, the only proof of record regarding Caren's mental development are the observations and opinions expressed by Dr. Duchowny. Consequently, while it may be fairly resolved that Caren has suffered a significant or substantial motor impairment, there is no proof of record to support a conclusion that she is substantially mentally impaired. The cause and timing of Caren's neurologic insult To address the issue of whether Caren's impairments were associated with 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," as required for coverage under the Plan, Petitioners offered selected medical records relating to Caren's birth and subsequent development, and Respondent offered the deposition testimony of Dr. Duchowny, whose qualifications were previously noted, and the deposition testimony of Dr. Donald Willis, a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine. As for the cause and timing of Caren's impairments, it was Dr. Duchowny's opinion, based on the results of his neurologic examination and review of the medical records, that Caren's impairments were caused by the intercranial hemorrhage she suffered after birth, and are not related to the birth process. More particularly, Dr. Duchowny expressed his views, as follows: Q. Did you form any opinions as to the etiology of her physical and mental impairment? A. Yes, I did. I thought that her impairment[s] were due to the intercranial hemorrhage, the hydrocephalus that she developed after birth. Q. Did you form an opinion -- you indicated after birth. Did you have a more specific indication of the timing of the hydrocephalus and the hemorrhage? Indication as to time. A. Review of the records suggest that the hemorrhage probably occurred on the third day of life. Q. What in the medical records indicated to you that it was the third day in life? A. Her post-natal course was essentially uncomplicated until the third day of life when she developed seizures. At that time, an ultrasound revealed the evidence of hemorrhage and she had a left intraventricular hemorrhage and also a hemorrhage on the right side as well. This was, from a timing standpoint suggest[s] to me that that was when -- the seizures would suggest to me that was the timing of the hemorrhage, since there had been no abnormalities prior to that time. Q. In your review of the medical records, did you specifically look at the records pertaining to Karen's birth itself? A. Yes, I did. Yes. Q. And what were your opinions as to her delivery course? A. I thought there was no problem[ ] that I could detect either during labor[,] delivery and even in the immediate post-natal period. Things actually were quite stable. And I don't think that there is any indication from the medical records that she had any serious problem ongoing at that point. Q. What is your opinion as to Karen's condition, her prognosis and their relationship to your understanding of the NICA statute as far as whether or not they were birth-related injuries? A. . . . I think that the timing of the acquisition of her neurological impairment is most constant with events after birth. And that the intra partum period, during labor and delivery were, in fact, not relevant to Karen's neurologic problems. Q. . . . [If there were an injury during labor and delivery], how would you expect that to manifest itself . . . [at birth]? * * * A. I think there would be evidence that the newborn had sustained some injury and that would include items such as depressed Apgar scores, absence of respiration requiring intubation, immediate seizures. Evidence of systemic damage such as cardiac, liver or kidney damage, shock, dissimilar intravascular coagulation, I think would be some of the things that I would look for to indicate that there had been a significant problem during labor and delivery. Q. And in your review of the medical records, did you find any of the things that you have just mentioned? No. No, I didn't. As for Dr. Willis, he was also of the opinion that the medical records revealed no evidence of oxygen deprivation or other trauma associated with Caren's birth. The medical records, as well as the testimony of the physicians and Ms. Reyes, have been carefully considered. So considered, it must be concluded that the proof failed to demonstrate, more likely than not, that any impairment Caren suffers was occasioned by 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.
The Issue Whether birth-related neurological injuries which result in death during the neonatal period2 are covered by the Florida Birth-Related Neurological Injury Compensation Plan (Plan) and, if so, whether Nicholas Erwin Schur, a deceased minor, otherwise qualifies for coverage under the Plan. Whether the notice requirements of the Plan were satisfied. Whether the Division of Administrative Hearings has the exclusive jurisdiction to resolve or, alternatively, must preliminarily resolve, whether there is "clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property" before a claimant may elect (under the provisions of Section 766.303(2), Florida Statutes) to reject Plan coverage and pursue such a civil suit. What effect, if any, the claimants' settlement with the birthing hospital has on the availability of benefits under the Plan. Whether the participating physician's corporate employers have standing to participate in this proceeding.
Findings Of Fact Fundamental findings Petitioners, Nicholas J. Schur and Lisa Schur, are the parents and natural guardians of Nicholas Erwin Schur (Nicholas), a deceased minor, and co-personal representatives of their deceased son's estate. Nicholas was born September 20, 1998, at Baptist Medical Center of the Beaches, Inc. (Baptist Medical Center), a hospital located in Jacksonville Beach, Duval County, Florida, and his birth weight exceeded 2,500 grams. Nicholas died on September 24, 1998, during the neonatal period at Baptist Medical Center.4 The physician providing obstetrical services during Nicholas' birth was Marijane Q. Boyd, M.D., who was at all times material hereto a "participating physician" in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(2), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . 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, NICA has concluded, and the parties have stipulated, that Nicholas suffered a "birth-related neurological injury," as defined by the Plan. Consequently, since obstetrical services were provided by a "participating physician" at birth, NICA is of the view that, under the provisions of the Plan, the claim is compensable. NICA's conclusion is grossly consistent with the proof and is, therefore, approved.5 Notice of Plan participation While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity by contending that the participating physician who delivered obstetrical services at birth (Dr. Marijane Boyd) failed to comply with the notice provisions of the Plan. As for Baptist Medical Center, the parties have stipulated that it provided timely pre-delivery notice as envisioned by the Plan. Consequently, it is only necessary to resolve whether, as alleged by the health care providers, the notice provisions of the Plan were satisfied by or on behalf of Dr. Boyd. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624 (Fla. 5th DCA 2000), and University of Miami v. M.A., 26 Fla. L. Weekly D1473a (Fla. 3d DCA June 13, 2001). Pertinent to the notice issue, the proof demonstrates that on or about January 27, 1998, Mrs. Schur sought prenatal care from her existing provider, Cleveland W. Randolph, Jr., M.D., a physician who, together with Samuel A. Christian, M.D., maintained an office for the practice of obstetrics and gynecology (OB/GYN) known as North Florida Obstetrical & Gynecological Associates, P.A., Beaches-Division I, at 1375 Roberts Drive, Suite 205, Jacksonville Beach, Florida. At the time, Drs. Randolph and Christian, like approximately 40 other obstetricians practicing in the Jacksonville area, were employees/shareholders of North Florida Obstetrical & Gynecological Associates, P.A. Notably, all obstetricians employed by North Florida Obstetrical & Gynecological Associates, P.A., were "participating physicians" in the Plan. Consistent with that relationship, Mrs. Schur was offered and accepted a "Contract for Obstetrical Services" (on January 27, 1998) which identified North Florida Obstetrical & Gynecological Associates, P.A., as the entity through which Dr. Randolph would be providing obstetrical and post partum care. That agreement provided, inter alia, as follows: North Florida Obstetrical & Gynecological Associates, P.A., provides total obstetrical and post partum care. This includes a physical examination and prenatal care, delivery of the infant and post partum care. Prenatal care includes all office visits and routine lab evaluation related to the pregnancy. Post partum care includes care for problems relating to the pregnancy or delivery and routine examinations, following the delivery up to 12 weeks. North Florida Obstetrical & Gynecological Associates, P.A., agrees to provide availability of a licensed obstetrician on call 24 hours a day in case of emergency. The agreement further established a fee schedule for basic comprehensive obstetrical care, cesarean section, and other obstetrical services. On March 15, 1998, Dr. Randolph notified Mrs. Schur, as well as his other obstetrical patients, that he would no longer deliver babies, and that his "partner, Dr. Sam Christian," would provide that service. Thereafter, on March 23, 1998, Mrs. Schur had a prenatal visit with Dr. Christian (to decide whether she would accept him as her obstetrician) and decided not to continue her care with Dr. Christian (due to his increased patient load). Effective May 19, 1998, Mrs. Schur elected to transfer her obstetrical and post partum care to the offices of Drs. Rebecca Moorhead, Patricia Schroeder, and Marijane Q. Boyd, another small group practice affiliated with North Florida Obstetrical & Gynecological Associates, P.A. That office, known as North Florida Obstetrical & Gynecological Associates, P.A., Beaches-Division II, was located in a professional office building adjacent to the building occupied by Doctors Randolph and Christian. While the group practice of Drs. Moorhead, Schroeder, and Boyd was affiliated with North Florida Obstetrical & Gynecological Associates, P.A. (North Florida), and they held themselves out to the public as North Florida Obstetrical & Gynecological Associates, P.A., Beaches-Division II, as discussed more fully infra, the principles structured their business relationship through two separate professional associations. Regarding those associations, the proof demonstrated that Doctors Moorhead and Schroeder were employees of North Florida and Dr. Boyd was an employee (the sole employee) of Beaches Obstetrical and Gynecological Practice, Inc. (Beaches OB/GYN).6 Under the terms of a Management Services Agreement, effective August 1, 1997, North Florida (Drs. Moorhead and Schroeder/Beaches-Division II) and Beaches OB/GYN (Dr. Boyd) outlined the manner in which the group practice of Drs. Moorhead, Schroeder, and Boyd would be conducted, as well as how expenses and revenues would be shared. As structured, North Florida agreed to provide billing, administrative and other support services for Beaches OB/GYN (Dr. Boyd) and Beaches OB/GYN agreed that Dr. Boyd would provide her professional services. As compensation for North Florida's services, Beaches OB/GYN agreed to pay what was essentially one-third of the direct operating expenses incurred by North Florida in the operation of the group practice. As for revenue sharing, the agreement contemplated that North Florida and Beaches OB/GYN would receive a share of professional fees received based on the actual professional services provided by North Florida physicians (Drs. Moorhead and Schroeder) and Beaches OB/GYN's provider (Dr. Boyd). While Drs. Moorhead, Schroeder, and Boyd elected to structure their group practice through two professional associations, they otherwise did business as, and held themselves out to the public as, North Florida Obstetrical & Gynecological Associates, P.A., Beaches-Division II. Notably, the signage on the front door so identified their practice, followed by the names of Drs. Moorhead, Schroeder, and Boyd; and, all paperwork of note likewise identified their practice as North Florida Obstetrical & Gynecological Associates, P.A., Beaches-Division II. Indeed, Mrs. Schur was, at the time, unaware of any entity known as Beaches Obstetrical and Gynecological Practice, Inc.7 Finally, with regard to the manner in which the group practiced, the proof demonstrated that Drs. Moorhead, Schroeder, and Boyd, like many group practices, shared patients, with each patient (including Mrs. Schur) rotating her prenatal care through all three physicians, and shared calls, with each physician on call every third day and every third weekend. With such an arrangement, it was strictly a matter of chance which of the physicians (Drs. Moorhead, Schroeder, or Boyd), all of whom were participating physicians in the Plan, would deliver a patient's child. Regarding the notice issue, it is resolved that Mrs. Schur was provided timely notice that the physicians associated with North Florida Obstetrical & Gynecological Associates, P.A., were participating physicians in the Plan, together with notice as to the limited no-fault alternative for birth-related neurological injuries provided by the Plan. Such conclusion is based on the more credible proof which demonstrates that on June 15, 1998, when Mrs. Schur presented to the offices of Drs. Moorhead, Schoder, and Boyd, that they had an established routine whereby on a patient's first office visit she would be provided the notice contemplated by Section 766.316, Florida Statutes. Here, consistent with that routine, the proof demonstrates that on such date, when she presented for her first office visit, Mrs. Schur was given a form titled NOTICE TO OBSTETRIC PATIENT, which provided: I have been furnished information by North Florida Obstetrics & Gynecology Associates, P.A. prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that North Florida Obstetrics & Gynecology Associates, P.A. is a participating practice in that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery or resuscitation. For specifics on the program, I understand I can contact the Florida Birth Related Neurological Injury Compensation Association (NICA), Barnett Bank Building, 315 South Calhoun Street, Suite 312, Tallahassee, Florida 32301, (904) 488-8191. I further acknowledge that I have received a copy of the brochure prepared by NICA. Dated this day of , 19 . Signature (NAME OF PATIENT) Social Security No.: Attest: (Nurse or Physician) Date: Rather than sign the form, Mrs. Schur wrote across it the words "received at Dr. Randolph's." At hearing, Mrs. Schur testified that, although she does not recall the incident, the best explanation she could offer for writing "received at Dr. Randolph's" instead of signing the form was that "someone would have had to tell me to do that . . . [since] I would not have known to write that on there." Such explanation is logical and credible; however, having accepted the explanation for why the entry was made, instead of signing the form, does not detract from the strong inference to be drawn from the entry. Indeed, having written the words "received at Dr. Randolph's" across the form is compelling evidence that, at the time, Mrs. Schur had a clear recollection that, during the period she was under the care of Dr. Randolph, she received notice that the physicians associated with North Florida Obstetrical & Gynecological Associates, P.A., were participating physicians in the Plan, as well as a copy of the NICA brochure that described the NICA program.8 As further evidence that notice was given, it is observed that established routine at the offices of Drs. Moorhead, Schoder, and Boyd also mandated that when notice was given an item titled "NICA ", and contained within a checklist (titled Plans/Education) on a patient's prenatal record, receive a "?" in the space following the acronym NICA. Notably, at or about the same time Mrs. Schur wrote across the notice "received at Dr. Randolph's" the space following the acronym NICA was annotated to read "? c Dr. Randolph." Given Mrs. Schur's entry on the notice form ("received at Dr. Randolph's"), as well as the established routine, it is reasonable to conclude that such annotation was intended to reflect that Mrs. Schur had received NICA notice when she was a patient of Dr. Randolph.9 While the proof demonstrated that Mrs. Schur received notice, as contemplated by Section 766.316, Florida Statutes, that the physicians associated with North Florida Obstetrical & Gynecological Associates, Inc., were participants in the Plan, it likewise demonstrated that no separate notice was provided that Dr. Boyd, either individually or as an employee of Beaches Obstetrical & Gynecological Practice, Inc., was a participant in the Plan. However, for reasons discussed in the Conclusions of Law which follow, such failure was harmless. The settlement agreement with Baptist Medical Center On June 20, 2001, Nicholas J. Schur and Lisa S. Schur, individually and as Personal Representatives of the Estate of Nicholas Erwin Schur (Claimants) and Baptist Medical Center of the Beaches, Inc., formally resolved all claims or potential claims of the Claimants against Baptist Medical Center and North Florida Obstetrical & Gynecological Associates, P.A., including those matters relating to the pending civil action in the Circuit Court, Duval County, Florida, Case No. 00-01458-CA, Division CV- C; however, the Claimants reserved all claims they had against Marijane Q. Boyd and Beaches Obstetrical and Gynecological Practice, Inc. As consideration for that settlement, the Claimants received the sum of $87,500 and the release and discharge of all claims Baptist Medical Center had against the Claimants arising from the care provided to Nicholas or Mrs. Schur.
The Issue At issue is whether Joshua P. Hammon, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Joshua P. Hammon (Joshua) is the natural son of Jacqueline L. Blalock. He was born a live infant on March 24, 1992, at Tampa General Hospital, a hospital located in Tampa, Hillsborough County, Florida, and his birth weight was in excess of 2,500 grams. Joshua was delivered by a resident physician of Tampa General Hospital, with Michael Parsons, M.D., attending and supervising. Dr. Parsons was, at all times material hereto, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. During the course of labor, delivery or resuscitation in the immediate post-delivery period in the hospital, Joshua received an injury to the brain caused by oxygen deprivation and mechanical injury. At issue here is whether such injury rendered Joshua permanently and substantially mentally and physically impaired. Addressing first the issue of mental impairment, the proof demonstrates that the insult Joshua received to his brain at birth did impact his mental abilities, and contributed to a delay in his cognitive development. The effect of such insult has, however, resolved over time, and in the opinion of Michael S. Duchowny, M. D., a pediatric neurologist associated with Miami Children's Hospital, whose opinion is credited, Joshua does not currently suffer a permanent and substantial mental impairment, and his subsequent mental development will be normal or near normal. Having resolved that Joshua's injury did not result in permanent and substantial mental impairment, it is not necessary to address the degree of physical impairment, if any, Joshua suffered as a consequent of the brain injury he sustained at birth.
The Issue At issue in the proceeding is whether Clayton Kenneth Hunter Cochran (Hunter), a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Jean Ann Cochran and Clayton Leon Cochran, are the parents and natural guardians of Clayton Kenneth Hunter Cochran (Hunter). Hunter was born a live infant on June 12, 1997, at Orlando Regional Health Care System, Inc., d/b/a South Seminole Hospital, a hospital located in Longwood, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Hunter was John V. Parker, 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(2), Florida Statutes. Pertinent to this case, coverage is afforded under the Plan, when the claimants demonstrate, more likely than not, that the infant suffered an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, Hunter's mental and physical presentation are dispositive of the claim and it is unnecessary to address the cause or timing of any injury he may have suffered. To address Hunter's current physical and mental status, Petitioners offered the opinions of Michael S. Duchowny, M.D., a pediatric neurologist, as well as the results of Hunter's recent occupational therapy evaluations by the Easter Seal Program of Volusia and Flagler Counties. Notably, Dr. Duchowny examined Hunter on March 20, 2000, and reported the results of his neurological evaluation as follows: NEUROLOGIC EXAMINATION reveals Hunter to be alert and socially oriented. He tends toward non-fluency, but can communicate some thoughts in words. Hunter has a speech articulation defect. He can talk in phrases and short sentences. There is good central gaze fixation with conjugate following movements. The pupils are 3 mm and briskly reactive. There are no fundoscopic findings and no significant facial asymmetries. The tongue and palate move well without drooling. Motor examination reveals symmetric strength, bulk and tone. There are no adventitious movements, focal weakness or atrophy. The outstretched hands are markedly postured. His gait is stable and reasonably narrow based. The deep tendon reflexes are 2+ and symmetric. The plantar responses are downgoing. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. The sensory and cerebellar examinations are deferred. In SUMMARY, Hunter presents as a 2 1/2 year old boy with an expressive language delay and speech dysfluency. In contrast, he has mild fine motor incoordination, but his examination is otherwise non-focal. I have not as yet had an opportunity to review Hunter's records and will issue a final report once the review process is complete. Subsequently, Dr. Duchowny had an opportunity to review the medical records, and on April 11, 2000, reported his conclusions as follows: A review of medical records and the medical evaluation of Clayton "Hunter" Cochran leads me to believe that he does not have significant neurologic impairment. His neurologic examination reveals evidence of an expressive language delay and some fine motor incoordination. Both of these findings are developmentally based and indicate acquisition in utero, long before the onset of labor and delivery. These findings are mild and there certainly is no evidence of substantial mental or motor impairment. Furthermore, Hunter's developmental delay would be expected to improve over time and therefore is not permanent. Dr. Duchowny's deposition testimony and the results of recent occupational therapy evaluations by the Easter Seal Program are consistent with the opinions heretofore expressed by Dr. Duchowny. Consequently, it must be resolved that the proof failed to demonstrate that Hunter was "permanently and substantially mentally and physically impaired," as required for coverage under the Plan.
The Issue At issue in the proceeding is whether Taylor Michelle Kielb, 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 Petitioners, Trisha Kielb nee Trisha Peck and David Kielb, are the parents and natural guardians of Taylor Michelle Kielb, a minor. Taylor was born a live infant on June 7, 1997, at Memorial Hospital West, a hospital located in Broward County, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Taylor was Nigel Spier, M.D., who was at all times material hereto a "participating physician" in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(2), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimants demonstrate, more likely than not, that the infant suffered an "injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Section 766.302(2), Florida Statutes. Here, the proof demonstrates, more likely than not, that Taylor's neurologic impairment was not associated with any intrapartum injury, hypoxic or traumatic in nature, but is related to an autonomic nervous system dysfunction (also called dysautonomia and Riley- Day syndrome) of otherwise unclear etiology. Consequently, it is unnecessary to otherwise address the cause or timing of her anomaly, or whether Taylor has been rendered permanently and substantially mentally and physically impaired. The cause of Taylor's neurologic dysfunction In reaching the conclusion that Taylor suffers a dysautonomia unassociated with any intrapartum injury, the medical records relating to Mrs. Kielb's antepartum and intrapartum course, as well as for Taylor's birth and subsequent development have been carefully considered (Petitioners' Exhibit 1). Also considered was the testimony of Jaime L. Baquero, M.D., a pediatric neurologist who was called upon to examine Taylor and render his opinion regarding the etiology of Taylor's neurologic impairment. (Respondent's Exhibit 1). Pertinent to this case, Dr. Baquero examined Taylor on December 1, 2000, and reported the results of that consultation as follows: I had the opportunity to examine Taylor, after reviewing the medical history regarding neurologic difficulties she has been experiencing since the neonatal period. These included provoked, as well as unprovoked episodes of breath-holding which have been difficult to manage, as well as diffuse hypotonia, manifested by poor muscle tone, developmental delay, gastroesophageal reflux and noisy breathing (early stridor) without a clear etiology. She was evaluated by neurology early on, after presenting with episodes of breath holding since the first day of life. An extensive work-up was undertaken at the time, including brain CT (normal), routine EEG was once normal and once with "right posterior temporal sharps." Video-eeg telemetry monitoring studies done later were normal. EKG and cardiac echocardiography, polysomnography and a comprehensive neurometabolic panel. Ph-probe demonstrated reflux and EKG's and Holter monitoring showed bradycardia, sinus arrest and ideoventricular rhythm. MRI at age 3 weeks was interpreted as "No intrinsic brain abnormality. Extra-axial collections vs. subdurals over the right parietal vertex and behind both cerebellar hemispheres." Of interest, is the fact that, while Taylor appears to have relative insensitivity to pain, she seems to have periods of marked sensitivity to stimulation of the skin. In addition, she has had episodes of abdominal distention and transient episodes of skin discoloration. In 1997, Taylor was seen by Dr. Axelrod who is a specialist in Disorders of the autonomic nervous system. PAST MEDICAL HISTORY: Taylor was born to 25 year old via C-section with breech presentation due to fetal intolerance to labor and non-reassuring fetal heart monitoring, with membranes ruptured 3 1/2 hours prior to delivery. The baby required respiratory support for less than two days, following 100% oxygen with bag and mask. Thin, non-particulate meconium stained amniotic fluid was noted. Apgar scores were 4, 6 and 9 [sic] at one, five and ten minutes respectively. Birth weight was 3.1 kg. Initial blood gas revealed a Ph of 7.21, PC02 51, PO2 of 41 (cord) and a base deficit of -7. Narcan and sodium bicarbonate were given. Antibiotic were given until all cultures, including CSF, were negative. CSF PCR for Herpes Virus was negative, as was the neonatal screening for inborn errors of metabolism. Poor feeding and sucking were noted. Episodes of desaturation with both cyanotic and pallid breath-holding spells were seen frequently, and over time remained refractory to medical treatment. Developmental history reveals that at present she walked 26 mos. and alternates feet when going up and down stairs with assistance. She can't ride a tricycle, she can stack more than five blocks, scribbles but cannot copy a circle. She assists in dressing and undressing. She has difficulty with textured foods and eats mainly baby food. She is not toilet trained. Yet. She uses pronouns, waves bye-bye and follows commands. She knows primary colors and has good eye contact. * * * PHYSICAL EXAMINATION: She is alert, in no acute distress with stable vital signs. There were no dysmorphic features or neurocutaneous signs. There is no organomegaly or audible murmurs. There is upper airway congestion. Head circumference measures 50 cm. Cranial nerves are intact. Motor examination reveals generalized hypotonia with symmetric loss of muscle mass. No fasciculations. There is exaggerated lordosis as posture is assessed. We could not elicit deep tendon reflexes. No fixed spinal deformity is seen. There are no involuntary movements or nystagmus. There is no clonus, persistence of early developmental reflexes and plantar responses were absent. IMPRESSION: Based on a careful review of history and clinical examination and given the lack of cerebral edema on a brain CT obtained within 72 hours, absence of significant acidemia on cord blood gas, five minute apgar above 5, along with signs of autonomic dysfunction, arreflexia, apnea, intermittent cardiac dysrhythmia, relative insensitivity to pain despite apparent episodes of marked tactile hypersensitivity, the presence of poor coordination, hypotonia and breech presentation (present in 23% of babies with dysautonomia vs. 3% normal prevalence); We conclude that Taylor's clinical syndrome is not associated with intrapartum injury but rather associated to autonomic nervous system dysfunction of unclear etiology. Dr. Baquero's opinion is grossly consistent with the proof and is credited.
Findings Of Fact By stipulation filed December 2, 1993, petitioners and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Florida Statutes, a claim was filed on behalf of the above-styled infant against the Florida Birth-Related Neurological Injury Compensation Association (the "Association") on behalf of Jasmin Soto, Violeta Rodriguez and Luis Soto (the "Petitioners") for benefits under Chapter 766.301-766.316 (F.S.) 1988. That a timely filed claim for benefits complying with the requirements of F.S. 766.305 was filed by the Petitioners and a timely denial was filed on behalf of the Association. That the infant, Jasmin Soto, was born at Baptist Hospital on September 29, 1990, and that the said hospital was a licensed Florida Hospital and the attending physician was a participating physician within the meaning of Chapter 766, Florida Statutes. That the Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. That Section 766.302(2), Florida Statutes, states that "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post- delivery in a hospital, which renders the infant permanently and substantially, mentally and physically impaired. The parties agree that Jasmin Soto suffers from a right brachial plexus injury. That the parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., who appears on behalf of the Respondents and Leon I. Charash, M.D., who appears on behalf of the Petitioner. While Dr. Charash has not been deposed, Dr. Duchowny has been deposed and his deposition is submitted as part of this Stipulation. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further Stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply. Based upon this stipulation, the parties request the hearing officer to rule on Petitioner's claim based upon this Stipulation, the attached medical records and the deposition of Dr. Duchowny. The neurological examinations of Jasmin reveal that she suffered from a "mild" to "moderate" right Erb's palsy related directly to the right brachial plexus injury she received at birth. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury. Moreover, Jasmin's mental functioning is normal and not impaired due to any birth- related complications.
