The Issue The issue in this case is whether Ailani Sanchez suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan).
Findings Of Fact Ailani Sanchez was born a live infant at 5:46 a.m., on October 29, 2015, at Lakeland Regional Medical Center. Ailani was a single gestation, weighing 2,950 grams at birth. Ailani was delivered via cesarean section for suspected abruption/velamentous insertion of cord by Dr. Zollicoffer who was a NICA participating physician on October 29, 2015. Ailani's Apgar scores were 2/4/4. Upon delivery, she was floppy and pale and had no respiratory effort. Pulse oximetry was within target saturations for age and her heart rate remained 100 or greater. She was intubated at seven minutes of age and transferred to the Neonatal Intensive Care Unit (NICU). No seizures were noted. Ailani had increasing spontaneous respiratory effort and whole body cooling was started prior to her transfer to St. Joseph's Hospital NICU on October 29, 2015. Upon admission to St. Joseph's Hospital on October 29, 2015, Ailani was lethargic with decreased reactions to stimuli, but appeared pink and well perfused. Neurologically, she was noted to be improving; she was breathing spontaneously and moving all extremities to stimuli. After a complicated newborn hospital course, Ailani was ultimately discharged from St. Joseph's Hospital on January 6, 2016. At the time of her discharge, she was noted to be feeding by mouth and was overall gaining weight. Prior to her discharge, an EEG on October 30, 2015, showed seizures predominantly on the right side of her brain and generalized brain dysfunction. A brain MRI obtained on November 5, 2015, revealed restricted diffusion related to acute infarction in the right temporal occipital region with laminar necrosis. Additional laminar necrosis in the frontal lobes and insular cortex bilaterally was noted. An EEG on November 16, 2015, was consistent with nonspecific cerebral dysfunction with occasional sharp waves in the temporal parietal regions bilaterally with no evidence of seizures and irregular slow waves with slightly more predominance to the right. Ailani was seen for a newborn visit by her pediatrician, Dr. Bou Salvador, on January 7, 2016. Nutritionally, she was noted to be breast feeding adequately, with supplements with formula. Developmentally, she was noted to have equal movements of all extremities and follow midline. She responded to a bell and was able to lift her head while lying on her stomach. Examination of her spine, extremities, and peripheral pulses were all normal. Neurologically, she was reportedly normal, with normal strength, tone, and reflexes reported. On January 19, 2016, Ailani was evaluated at All Children's Outpatient Care upon referral by St. Joseph's Hospital secondary to hypoxic ischemia. The occupational therapist's impression included decreased bilateral coordination, decreased developmental milestones, decreased gross motor skills, decreased play skills, decreased strength, and fine motor deficits. Skilled therapy was identified to have the potential to improve her functional level in the areas of manipulation. It was recommended that Ailani undergo 30 minutes of occupational therapy once a week for six months. Her prognosis for achieving goals established by her therapist was noted to be excellent. On February 4, 2016, Ailani was evaluated for participation in, and deemed eligible for, the Early Steps Program. On February 18, 2016, Ailani was evaluated by Dr. Qureshi at Kids Neurology. Developmentally, she was noted to smile and coo and focus. It was noted that Ailani had three seizures at the age of one day old, but none since. At this time, she was taking Keppra and Phenobarbital, from which she was being weaned. A sleep deprived EEG, obtained since the last visit, was normal. She was noted to be doing very well neurologically. Her physical examination revealed she was lifting her chest and head with her arms extended. Early head control with bobbing motion was noted. She was noted to say "aah," smile, and follow pass midline. The plan noted at this time was to continue to wean and discontinue Keppra and Phenobarbital. Ailani was again seen by Dr. Bou Salvador on March 4, 2016, for her four-month well visit. Nutritionally, she was noted to be feeding with formula adequately. She had been started on solids for one to two feeds. Developmentally, she was noted to squeal and laugh. She was able to follow 180 degrees. She turned to void and was able to hold her head up 90 degrees while lying on her stomach. She was able to sit with support with her head up. She was able to pull to sit with no head lag. She could bring her hands together and had no persistent fist clenching. Her physical examination was normal. Her neurological examination was also normal, with normal strength, tone, and reflexes reported. Ailani was again seen by Dr. Bou Salvador on May 4, 2016, for her six-month well visit. Nutritionally, she was noted to be breast feeding adequately. Developmentally, she was noted to be social and smiling responsively. Adaptive equal movements of all extremities and the ability to follow midline were noted. She could respond to a bell and was able to lift her head while lying on her stomach. A physical examination was normal. A neurological examination was also normal, with normal strength, tone, and reflexes reported. On May 24, 2016, Ailani returned to Dr. Qureshi at Kids Neurology. It was noted that Ailani had been weaned from her seizure medication and had had no seizures for the last three months. She was noted to be doing very well neurologically. Physically and developmentally, she was noted to have no head lag, to be rolling over, to have her chest up in a prone position, to be trying to crawl, to be lifting her head, and to be sitting briefly unsupported. She was also noted to be leaning forward on her hands, engaging in bounce activity, supporting most of her weight, reaching out and grasping large objects, transferring from hand to hand, babbling, enjoying mirror, and using polysyllable sounds. She was noted to be feeding herself. Dr. Qureshi reported that Ailani was in occupation therapy but that it was on hold since her evaluation was "pretty unremarkable." Ailani was noted to be progressing well for her age and was receiving Early Steps intervention once a week at home. She was given a prescription of Phenobarbital for use only if a seizure occurred. On June 18, 2016, Ailani was seen by Dr. Frances Arrillaga at Pediatric Cardiology Associates for a cardiology consultation secondary to a history of pulmonary hypertension, and an echocardiogram that showed a patent foramen ovale (PFO). Ailani's mother reported that since her discharge from St. Joseph's, she was doing well. Cyanosis, difficulty breathing and unexplained diaphoresis and feeding problems, were denied. An echocardiogram on this date showed a PFO, with otherwise normal anatomy. There were normal right ventricular (RV) pressures, normal left ventricular (LV) size and function. No cardiovascular restrictions were given and she was told to return in one year for further follow up. Ailani was again seen by Dr. Bou Salvador on August 4, 2016, for her nine-month well visit. Nutritionally, she was reported to be feeding adequately. She was feeding 2 to 3 varieties of solid foods with no problems and was starting with a cup for water and juice. Developmentally, she was reported to be playing pat-a-cake and looking for fallen objects. She could bang two cubes in her hand with thumb-finger grasp. She could say "dada" and "mama" and walk while holding on. She was also noted to be crawling and standing momentarily. Her physical and neurological examinations were noted to be normal, with normal strength, tone, and reflexes noted. An August 22, 2016, a progress note from Early Intervention reflects that Ailani was babbling two syllables together, was happy, pulling to a stand and cruising along furniture, and was responding to her name. Attendance at Early Intervention was noted to be consistent and once a week. Ailani was again seen by Dr. Bou Salvador on November 3, 2016, for her 12-month well visit. Nutritionally, she was noted to be eating two to three varieties of solid foods with no problems and was feeding herself finger foods. Developmentally, she was reported to be playing pat-a-cake and drinking from a cup. She was able to bang two cubes held in her hands with thumb-finger grasp. She was saying "mama" and "dada," imitated speech sounds, could say three words other than "mama" and "dada," and understood "no." She was able to walk while holding on, and was reported to stand alone and walk well. A physical examination revealed normal extremities. A neurologic examination was also normal, with normal strength, tone, and reflexes reported. On November 21, 2016, Ailani returned to Dr. Qureshi at Kids Neurology. It was noted that Ailani had been weaned off medications six months earlier and had no seizure activity since. She was noted to be doing very well. It was noted that no therapy was being provided at this time, although she was evaluated for occupational therapy but did not qualify for it. Developmentally, she was noted to be walking with one hand held, rising independently, taking several steps, getting to sitting, pulling to stand, standing for two seconds, saying a few words besides "mama" and "dada," playing ball game, making postural adjustment to dressing, waiving "bye bye," and indicating what she wants. She was noted to have pincer grasp, releasing objects to others when grabbed, and banging two things. Dr. Qureshi noted "she is doing amazing right now." A December 24, 2016, emergency room record (for a cough/choking episode after eating a piece of Dorito) from Florida Hospital Tampa reflects that Ailani had not had seizures since birth, and had been off Keppra and Phenobarbital for almost a year. A physical examination revealed an active, well- developed, and well-nourished child. Neurologically, she was noted to be awake, alert, and interacting with family and staff. She was also noted to be active and playful. An Early Intervention progress note from February 15, 2017, reflects Ailani had age-level play skills, could communicate using vocalizations and some single words, could follow routine directions, and was independent with walking and floor transfers. Good progress was noted to be made, many goals were reported met, and the parents decided to reduce services to one time per month. On January 30, 2017, Ailani was reevaluated for participation in Early Steps. It was noted that Ailani's mother had no concerns at this time. The report notes that Ailani liked the slide, liked to kick the ball, liked to play with her siblings and cousins, and that she is very curious. No hearing or vision concerns were noted. It was reported that many of her goals had been met, and that Ailani was using a variety of vowels and consonants, identifying at least three family members when named, that she was saying a variety of words, and was using a sign for "more food." Ailani was noted to still be eligible for Early Steps secondary to her diagnosis of hypoxic ischemic encephalopathy. Ailani was seen by Dr. Bou Salvador on March 28, 2017, for her 16-month well visit. She was noted to have good eating habits and a good appetite. No mealtime problems were reported, and she was noted to be eating solid foods with no problems. She was noted to have socially appropriate behavior for her age. She was talking well and was able to balance on one foot for five seconds, could throw a ball overhead, and pedal a tricycle. Her orthopedic and neurologic examinations were normal, with normal strength, tone, and reflexes reported. At the request of NICA, Donald C. Willis, M.D., who specializes in obstetrics and gynecology and maternal-fetal medicine, reviewed the medical records included in the Stipulated Record as Joint Exhibits A through G. In his report dated August 2, 2017, which was admitted into evidence without objection, Dr. Willis noted in pertinent part that Ailani's mother was cramping when she presented to the hospital, and was three centimeters dilated with suspected amniotic membranes ruptured. Contractions were noted to be occurring occasionally. Medical records indicated the presence of late decelerations on admission, which progressed to bradycardia, for which an immediate Cesarean section was recommended. Dr. Willis observed that Ailani was depressed at birth with Apgar scores of 2/4/4, and that cord blood gas was abnormal with a pH of only 6.97. He further noted that Ailani was floppy, pale, and had poor perfusion; that bag and mask ventilation was initiated, followed by intubation for continued respiratory distress; that hypotension was present and required IV fluids; that the initial blood count was low; and that Ailani remained acidotic after birth with a pH of 6.7 and a base excess of -27 at 90 minutes after birth. Dr. Willis further noted Ailani's hospital course consistent with her medical records and ultimately opined that “there was an obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery and continuing into the immediate post delivery period. The oxygen deprivation resulted in brain injury.” Dr. Willis was unable to comment about the severity of the injury, however. At the request of NICA, Laufey Y. Sigurdardottir, M.D., who is board certified in neurology and specializing in pediatric neurology, reviewed the medical records included in the Stipulated Record as Joint Exhibits A through G, and performed a thorough examination of Ailani on October 18, 2017. Dr. Sigurdardottir's summary of Ailani's medical history, along with her findings upon a full physical and neurological examination, is documented within her written report, which was admitted into evidence without objection. Dr. Sigurdardottir noted that Ailani was a non-dysmorphic, interactive toddler with normal facial features and apparently intact vision. No abnormalities in Ailani's extremities were noted other than occasional toe walking. Neurologically, Ailani was noted to be interactive, curious, and exhibiting normal joint attention. Ailani exhibited pretend play with a stethoscope, said the word "mom" a few times, pointed to her mouth when asked to do so, enjoyed playing with a tablet computer, shook her head for "no," exhibited understandable words, and exhibited no autistic features. Cranial nerves were intact, facial grimacing was symmetric and normal, and hearing seemed intact. No drooling was noted. Muscle tone was noted to be normal, strength was full and symmetric and deep tendon reflexes were symmetric and within normal limits. Gross and fine motor skills were noted to be within normal limits for age. Overall, Dr. Sigurdardottir determined that despite her initial abnormal neurological examination, and delays in early development, Ailani's current neurologic and developmental functioning is age-appropriate. She went on to opine in relevant part that, Ailani is not found to have substantial delays in motor and mental abilities at this time . . . . In review of available documents, there is evidence of impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation . . . . The prognosis for full motor and mental recovery is excellent and the life expectancy is full In light of evidence presented I believe Ailani does not fulfill criteria of a substantial mental and physical impairment at this time. I do not feel that Ailani should be included in the NICA program. Neither Petitioner nor Intervenor submitted or introduced into evidence any expert reports rebutting the opinions of Dr. Willis and/or Dr. Sigurdardottir.
The Issue At issue in the proceeding is whether Shayla Adame, 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 Petitioner, Sheila Adame, is the mother and natural guardian of Shayla Adame, a minor. Shayla was born a live infant on April 1, 1996, at University Medical Center, a hospital located in Jacksonville, Florida, and her birth weight exceeded 2,500 grams. The physicians providing obstetrical services during the birth of Shayla included Drs. Pierce, Murray, and Sanchez, who were at all times material hereto "participating physician[s]" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Sections 766.302(7) and 766.314(4)(c), Florida Statutes. Ms. Adame's antenatal course and Shayla's birth Ms. Adame's antepartum course was without any apparent prenatal complication of significance; however, on November 17, 1995, at 17 weeks and 6 days gestation, the fetus was noted in a breech presentation (presentation of the buttocks of the fetus to the cervix), with placenta anterior, a condition that would persist through the course of Ms. Adame's pregnancy.1 Given the breech presentation, an external cephalic version (a manipulation of the fetal body applied through the abdominal wall of the mother to convert a breech presentation to a head presentation), referred to as an ECV in the medical records, was attempted on two occasions. The first procedure occurred on March 22, 1996, at 37 weeks gestation, and despite three attempts proved unsuccessful. The second procedure occurred on March 29, 1996, and, with one attempt, likewise proved unsuccessful. The progress notes of that attempt reveal the following: . . . ECV attempted but buttocks (presenting part) engaged and unable to elevate to perform ECV . . . [Patient] desires TOL [Trial of Labor]. CT pelvimetry [measurement of the dimensions and capacity of the pelvis to assess clinical adequacy] ordered for 4/1/06 . . . . At the time, the cervix was noted as closed and thick. At 7:35 a.m., March 31, 1996, Ms. Adame telephoned University Medical Center, the entity that provided her antenatal care, and reported that she had "[s]tarted vag[inal] bleeding last night more than spotting, less than period. Bright Red." Shortly thereafter, at 7:45 a.m., the duty nurse returned Ms. Adame's telephone call, and was informed by Ms. Adame that she was now having contractions. In response, the duty nurse told Ms. Adame to come to the hospital immediately if she experienced any more evidence of bleeding, if she experienced decreased fetal movement or no fetal movement in 2 hours, or if she experienced regular uterine contractions for 2 to 3 hours of 30 seconds duration, with 6 or more an hour. Approximately 4 1/2 hours later, at 12:15 p.m., March 31, 1996, Ms. Adame presented at University Medical Center complaining of vaginal bleeding and lower abdominal pain (described as "cramps"). External fetal monitor (EFM) and tocograph (TOCO), an instrument for measuring uterine contractions, were applied. At the time, fetal monitoring revealed a fetal heart rate of 140 to 150 beats per minute, positive long term variability and no decelerations. TOCO revealed no evidence of contractions. Vaginal examination showed the cervix at 1 centimeter dilatation, effacement at 50 percent, and the fetus high posterior. Assessment was term breach, latent labor, and the plan was to proceed with the CT pelvimetry previously scheduled for April 1, 1996. At 2:00 p.m., Ms. Adame was discharged home, with labor precautions. A little less than 6 hours later, at 7:42 p.m., March 31, 1996, Ms. Adame (with an estimated date of delivery of April 13, 1996) again presented at University Medical Center, this time complaining of spontaneous rupture of membranes (SROM) at 7:00 p.m., with "green fluid" (meconium stained fluid), and some uterine contractions. EFM and TOCO were applied, and revealed a stable fetal heart rate and positive uterine contractions. Subsequent vaginal examination revealed the cervix at 2 centimeters dilatation, effacement complete, and the fetus at station-1, with a moderate amount of "green fluid pouring from the os [ostium uteri]". CT pelvimetry revealed a clinically adequate pelvis and it was resolved to proceed with a vaginal breech delivery. Ms. Adame's labor progressed steadily until at or about 10:30 a.m., April 1, 1996, when dilatation and effacement were noted as complete, and the fetus at station +2. In the interim, fetal monitoring was reassuring, although there were occasional declarations noted and an increase in the fetal heart tone base line to 160-190 beats per minute (described in the records as protracted accelerations or persistent fetal tachycardia) associated with a slow rise in maternal temperature, which was noted to peak at 100.6 degrees Fahrenheit at 8:31 a.m., April 1, 1996. Given the elevation in temperature, blood cultures were ordered, and Ms. Adame was accorded ampicillin and gentamycin. Ms. Adame's second stage of labor was not prolonged, extending from approximately 10:30 a.m., until 11:36 a.m., when Shayla was delivered. As for the delivery, the delivery summary describes a delivery which, albeit a breech vaginal delivery, was easy and without incident. The summary further reflects that on delivery of the infant's head she was Delee suctioned, while the cord was clamped and cut, and accorded free flow oxygen. Following delivery, Shayla was handed off to the pediatrician, who noted that upon presentation Shayla was cyanotic with poor respiratory effort; however, following suctioning, stimulation, and positive pressure ventilation (PPV) for 15 seconds Shayla turned pink and cried spontaneously. Apgar scores were recorded as 3 at one minute and 8 at five minutes. The Apgar scores assigned to Shayla are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex/irritability, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute Shayla's Apgar score totaled 3, with heart rate, respiratory effort, and reflex/irritability being graded at 1 each, and muscle tone and color being graded at 0. At five minutes, Shayla's Apgar score totaled 8, with heart rate, respiratory effort, and reflex/irritability being graded at 2 each, and muscle tone and color being graded at 1 each. Notably, while Shayla's one-minute Apgar was below normal, such occurrence is not uncommon with a breech delivery, and her five-minute Apgar score, which is most predictive of neurologic outcome, was normal. Shayla was admitted to the newborn nursery at 12:00 (noon). Admission assessment and physical were essentially normal. Generally, she was described as pink, active, and with good cry; respiration as regular and unlabored; mouth with good suck and no cleft; spine straight with no apparent abnormality; and neurologic examination revealed good symmetrical muscle tone, positive suck, and positive moro. Notwithstanding, Shayla was noted with poor feeding by the third day of admission, with persistent hypotonia and occasional irritability and arching. Shayla's course in the newborn nursery from date of admission (April 1, 1996) to date of discharge (April 29, 1996) is reasonably summarized in her resume, as follows: ADMISSION DIAGNOSES: Term female appropriate for gestational age 38 weeks. BO isommunization. Rule out sepsis. Feeding difficulties. Breech delivery. Floppy infant. DISCHARGE DIAGNOSES: Term female appropriate for gestational age. BO isoimmunization. Ruled out sepsis. Feeding difficulties improved. Breech delivery. Floppy infant, etiology unknown yet. PROCEDURES: 1. Lumbar puncture. Head CT scan. Video swallow test. EEG. HISTORY: This is a 38 weeks' AGA infant born from 18-year-old gravida 2, para 0-0-1-0 white female with prenatal care at Clinic C with 0 positive blood, hepatitis B surface antigen negative, HIV negative, RPR nonreactive, rubella immune, mother who has been positive for Chlamydia on 9/22/95 which later on became negative, several times UTI with Proteus mirabilis which was treated during pregnancy, otherwise unremarkable pregnancy. Breech presentation with less fetal movement according to mom. Rupture of membranes about 16 hours prior to delivery. Mom had chorioamnionitis, temperature of 100.6. She received antibiotics prior to delivery . . . . [Baby was born by SVD] Apgars reported at 3 and 8 secondary to hypotonia, low respiratory effort and color. Mom denied drugs, alcohol or cigarette smoking during pregnancy. Mother had one elective abortion at 9 weeks of pregnancy in 1994 with different father. Father is a black male who has not been involved after pregnancy. HOSPITAL COURSE: Baby had poor p.o. feeding on the third day of admission noticed, not improving her tone and mostly floppy with occasional irritability and arching. With initial prolonged rupture of membranes and mother's known history of chorio, blood cultures, CBC, urine and CIE were done, and the patient was started on antibiotics, ampicillin and gentamicin. On the third day due to poor feeds LP was done too, and continued antibiotics until 72 hours of negative cultures. The infant continued to be floppy with generalized hypotonia and occasional arching especially neck and back accompanied with opisthotonos and extension of extremities with irritability and inconsolable. This problem continued during the past 28 days of newborn nursery. Her hypotonia did not progress, and at the same time did not improve or improved a little bit. Her irritability and arching to some extent decreased. These days she is most of the time resting with less irritability but the problem of hypotonicity and lethargy continued. Problem #1. Fluids/electrolytes/nutrition: On the first three days of life she continued with the regular care with p.o. feeding. Initially it was decided by mom to breast- feed but since she was not eating enough or not sucking enough continued with bottle feeding, namely Enfamil with Iron, but on the third day it was noticed that she was not taking enough or not sucking enough, and at the same time was getting easily tired. It was decided to continue with p.o. and at the same time NG feeding but her feeding pattern did not improve and most of the time she was dependent on NG feeding due to decreased or insufficient sucking reflex and swallowing problem. Speech therapy was consulted. Video swallow was done which showed incoordination of the muscle, and at the same time although there was no frank aspiration but was high risk for aspiration. Continued NG feeding most of the time and with OT and physical therapy with speech therapy daily arrangement this problem somehow resolved. Accordingly, it has been about a week that the patient is eating by p.o. without any need for NG. The last video swallow which was done about a week ago, namely on 4/24 showed improved swallowing mechanism but still is at risk for aspiration. No aspiration was noticed during this test. Accordingly, she is taking about 75 cc Enfamil with Iron and rice cereal is added to it . . . for thickening and decreased risk for aspiration. Problem #2. Floppy baby, hypotonia, occasional arching and irritability: The patient was born with breech presentation with history of prenatal decreased fetal movement with Apgars of 3 and 8. She continued to be hypotonic which was not improving and occasional arching which was significant. Initially sepsis was ruled out including lumbar puncture done which was normal and antibiotics were discontinued based on negative cultures. CT scan of the head was done which was normal. Neurology consult was done from Nemours Children's Clinic. Dr. Shank followed this patient. Their impression was hypotonia that appeared to be prenatal due to breech presentation and decreased fetal movement. Dr. Shanks suspected that it is central due to fair muscular strength, but at the same time it was complicated by absence of deep tendon reflex. [Dr. Shank observed that the differential diagnosis was extensive (chromosome, metabolic, syndromic mostly likely)]. He suggested to do chromosomal workup, metabolic, and other syndromes which can cause the same hypotonia and his recommendation was followed. High resolution chromotrope was normal. Basic chemistry including sodium, potassium, calcium, phosphate, magnesium, liver function tests, and CPK were normal. Serum blood test was normal. Serum very long chain fatty acid was done which is followed by genetics, the result of the test is mentioned below. Urine metabolic screening was done too. Thyroid function was normal which was recommended also by neurology. EEG was done on 4/16/96. The patient had episodes of suspicious lip smacking. To rule out possibility of seizure EEG was done the same day which was normal. Ophthalmology consult was done on 4/10/96 to rule out possibly of some metabolic abnormalities, infectious, or other finding by routine lens evaluation. Ophthalmology examination was entirely normal at this time. The patient was also followed by DEI (developmental early intervention) and also by OT, PT and ST on the basis of p.r.n. Genetics: The patient was seen today by Dr. Perszyk from Nemours Children's Clinic after having all the metabolic screening and results from plasma amino acid, urine amino acid, urine organic acid and other tests . . . [At the time, Dr. Persyk's differential diagnosis included mitochodrial disease, lactic acidosis, or congenital myopathy (central core disease).] Problem #3. Social: Mom is an 18-year-old white female. Father is black but has not been involved. There is no history of any genetic abnormality, muscular disease, neurologic abnormality or seizures in the family on the maternal side. We do not know anything about the father's side. Mom had prenatal care . . . [at University Medical Center, Clinic C]. PHYSICAL EXAMINATION ON ADMISSION: Weight 2,915 g which is equal to 25-50th percentile, height 45.7 cm equal to 10th percentile, head circumference 34.5 cm equal to 75th percentile. On admission vital signs were stable. Pulse 150, respiratory rate 48, blood pressure 58/30. Generally she was described as pink and active without any facial dysmorphism. Eyes with red reflex without discharge. Ears no tags, no sinus, no external abnormality. Mouth without any cleft. Neurological exam has been described as symmetric muscle tone and active. PHYSICAL EXAMINATION ON DISCHARGE (DAY #28): Weight 3,181 g. She has been responsive to touch, pain, stimuli, but still has arching movements and opisthotonos but to a lesser extent. HEENT showed anterior fontanelle open and flat. Head circumference 36.5 cm. Positive red reflex. Pupils equal, round and reactive to light, but at this time is not focusing which is expected. Lungs clear to auscultation bilaterally. Cardiovascular with rate and rhythm regular without murmurs. Good peripheral pulses. Abdomen soft, no mass, no hepatosplenomegaly. Liver edge is palpable about 1.5 to 2 cm below right costal margin and it is soft. Genitourinary without any hip click. Extremities with generalized hypotonia but is moving with pain and stimuli. Neurological exam showed generalized hypotonia. She cannot move her head at all. She has some flexion of extremity but is purposeless. Mild grasp reflex. No deep tendon reflex. No clonus. Has good sucking reflexes but there is no rooting reflex. No Moro reflex. SIGNIFICANT LABORATORY FINDINGS: Baby is B positive, Coombs' positive. Mom is 0 positive. Blood culture negative. Chloric metabolites negative. Group B Strep urine negative. CSF result showed glucose of 38, protein 58, with 3 white blood cells. CSF culture negative. Total bilirubin increased to maximum 7.3 with direct of 0.2. Chem-20 was done on 4/11/96 which showed glucose of 45, sodium 134, potassium 4.1, chloride 99, BUN 6, creatinine 0.6, calcium 10, phosphorus 7.1, total protein 6.2, albumin 4, total bilirubin 2.1, SGOT 22.7, alkaline phosphatase 190, SGPT 14, triglycerides 154, uric acid 3.2, LDH 439, cholesterol 101, anion gap 12. Hematocrit 43.4, white blood cells 11.3. T4 16, TSH 1.97, CK 313. All of the above has been in normal range. Repeated Chem-20 on 4/15/96 showed glucose of 63, chemistry within normal limits, total protein 5.4, albumin 3.5, liver function tests within normal limits, hematocrit 46, LDH 306, cholesterol 91, anion gap 9, magnesium 2. Ammonia showed 41 and CK 193. Lactic acid 2.6. UA showed normal with pH of 6.5, with no ketones. Urine CMV was negative. [Her] stool pH was 7, no reduce in substance. IgM was done on 4/24/96 which was 30.6 and IgG was 832 which was within normal limits. PKU was normal. Galactosemia normal. Hemoglobin electrophoresis normal and 17-hydroxy was 27.2 which is within normal limits. A very long chain fatty acid showed mildly elevated on 4/26 which is 0.034. Creatinine was normal, free creatinine was normal too. Amino acid panel was done. A copy of the result is sent to genetics, Dr. Perszyk, and also a copy of the urine amino acid and urine organic acid - at this time not significant finding. Chest x-ray was done which was normal. IMPRESSION: In summary, this is a floppy child who was born at 38 weeks of gestation with AGA with history of breech presentation with no genetics or prenatal complication. Her floppiness did not progress, at the same time it did not improve significantly either. Metabolic screening was done which at this time is not significant and needs to be followed up with other clinical findings. Neurological abnormality could not be ruled out at this time and needs to be followed up by neurology. Her p.o. feeding improved. This patient never had any life-threatening event during the 28 days in newborn nursery. She has never been on any monitors. She is still at risk for aspiration, and we instructed the parent about the feeding; they are CPR trained. VNA nursing, OT, PT and speech therapy are following the case. Primary care doctor, Dr. Cedres, is aware of the situation, and the plan is to follow closely by genetics, neurology and primary care physician for further workup. FOLLOWUP: 1. Dr. Cedres . . . . He is the primary care physician . . . . Dr. Perszyk, Nemours Children's Clinic, Division of Genetics, in two weeks . . . . Dr. Shanks, Nemours Children's Clinic, Division of Neurology, for the followup of the patient's neurological evaluation, improvement or drugs. 4. EIP (early intervention program) for followup for occupational, physical and speech therapy . . . . Shayla's subsequent development Following her discharge from University Medical Center, the medical records reveal that Shayla was followed at Nemours Children's Clinic at least through July 28, 1998. There, Shayla was under the care of, among others, Daniel E. Shanks, M.D., a pediatric neurologist, and Anthony Perszyk, M.D., a pediatric geneticist, both of whom had consulted on her care at University Medical Center. Such continuum of care was initially directed toward establishing an etiology that would explain her hypotonia, manifest at birth (described as congenital) and failure to thrive (poor feeding), but later came to include a more complex symptomatology (including discoordination of movement, gastroesophageal reflux, developmental delay (motor and cognitive), absence of deep tendon reflexes, indifference to pain, and absence of tears) that slowly manifested. Over time, Shayla underwent extensive diagnostic evaluations, including genetic, metabolic, structural, and infectious disease testing, which failed to reveal any abnormality to explain her presentation, and on August 4, 1997, Dr. Shanks summarized his thoughts, as follows: IMPRESSION: Presumed static encephalopathy of unclear etiology in a youngster who has a number of somewhat unusual features for a typical cerebral palsy. Though she has central hypotonia, she is developing some increased tone distally but has reflexes that I cannot elicit. She seems to have a decrease in her sensory responsivity. The possibility of a congenital neuropathy in addition to her encephalopathy is raised. Additionally, concerns regarding possible high cord lesion cannot be excluded. Consequently, Dr. Shanks recommended that they obtain "a C-spine and brain MRI, as well as nerve conduction studies." The spinal MRI did not reveal any abnormality. The brain MRI, taken September 5, 1997, was read, as follows: Minimal squaring of the frontal horns can be defined with prominent ventricular system involving the lateral, third as well as fourth ventricles. Minimal increase in extraaxial fluid can also be demonstrated. These findings are nonspecific. The lateral ventricles are slightly asymmetric, more so on the right. These findings are nonspecific. A focal signal or structural abnormality cannot be demonstrated. The myelination pattern is within normal limits. Minimal increase in CSF volume can be seen in the posterior fossa, the finding should represent a giant cisterna magnum. Incidental finding of abnormal increase in T2 signal intensity in the ethmoid, as well as maxillary sinuses. Correlation with clinical findings would be helpful. The results of the MRI brain scan are consistent with periventricular leukomalacia (PVL) which, as an isolated finding, is nonspecific or, stated otherwise, not diagnostic. Of note, PVL, which demonstrates as "a tiny bit of scarring in the infant's ventricles," may be seen in infants who have suffered ischemic brain disease, as well as in normal term and pre-term infants. (Respondent's Exhibit 1, pages 26 and 27). More helpful to establishing an etiology for Shayla's neurologic presentation, the nerve conduction studies, performed November 19, 1997, demonstrated abnormalities consistent with a severe sensory neuropathy, likely the group HSAN (hereditary, sensory and autonomic neuropathy), also referred to as congenital sensorimotor neuropathy during the course of this proceeding. To confirm such impression, Dr. Shanks ordered a seral nerve biopsy, which was performed in January 1998, and unequivocally identified the presence of a neuropathic process, characterized by severe loss of myelinated fibers. On March 13, 1998, at the request of Dr. Shanks, Shayla was seen by David Hammond, M.D., Director of Neuromuscular and MDA Clinics, Nemours Children's Clinic. The results of that consultation were reported, as follows: I saw Shayla in consultation in neurology clinic at Nemours today as requested by her regular neurologist, Dr. Shanks. History was obtained from Shayla's mother and grandmother. CHIEF COMPLAINT: 23-month old with developmental delay and truncal hypotonia, etc. INTERIM HISTORY OF PRESENT ILLNESS: Very slow if any developmental advances. She is not yet sitting. Her language skills are behind for age although there has been no apparent plateau or regression. Family has noted unexplained fevers. Additionally, an apparent insensitivity to pain persists. The parents have noted no significant abnormalities in terms of sweating, lacrimation, GI changes or pallor or skin mottling. REVIEW OF SYSTEMS, MEDICAL HISTORY, FAMILY HISTORY, SOCIAL/DEVELOPMENTAL HISTORY: Data as detailed in Dr. Shanks' notes on 8/4/97 and previous. No family history of neuropathy. GENERAL EXAMINATION, HIGHER INTEGRATIVE FUNCTIONS, CRANIAL NERVES, SENSORY, MOTOR, REFLEXES, COORDINATION, GAIT: Data as detailed in Dr. Shanks' letter of 8/4/97 and previous except/with height 79.8 cm, weight 10 kg, head circumference 46.5 cm. She is irritable but appears otherwise appropriate in terms of her social interaction when calm. No expressive language detected in the course of the examination. She does appear to respond well to simple directions from parent or grandparent. Truncal tone is decreased. Her lower extremity tone which was felt to be increasing on previous exams is difficult to evaluate because of her resistance to examination today. Areflexia. No response to noxious stimuli. No tears are noted when she is irritable and crying. Cardiac exam shows no apparent murmurs and a regular rhythm with a rate (while irritable) of 120. Abdominal examination is benign. No tongue fasciculations. She has vigorous movements of each of the four extremities as she resists examination. She is unable to sit or stand independently. DATA REVIEWED: MRI of brain (9/97) minimal squaring of the frontal horns with prominent ventricular system involving lateral third as well as fourth ventricle. Minimal increase in extra-axial fluid. Posterior fossa findings suggestive of a giant cisterna magna. Nerve conduction EMG (11/97) compatible with electrophysiologically severe sensory neuropathy. R1 blink reflexes were not elicitable. Sensory nerve action potentials are absent throughout. Motor conduction studies normal. Sural nerve biopsy (1/98) severe decrease in density of myelinated fibers which is diffuse. An unequivocal neuropathic process is present characterized by severe loss of myelinated fibers. Consider congenital neuropathy. Other available medical records as summarized above. ASSESSMENT: Child with a number of problems. 1. Indifference to pain, truncal hypotonia, gross motor delay and areflexia. The clinical constellation and the laboratory data are consistent with the diagnosis of hereditary, sensory and autonomic neuropathy (HSAN). HSAN Type IV is generally distinguished from HSAN Type II based on the presence of more significant cognitive involvement and more severe anhydrosis. Given the history suggestive of language and cognitive delay and the history of unexplained fevers, HSAN Type IV appears somewhat more likely diagnosis in this case than HSAN Type II. 2. Suggestion of possible autonomic involvement related to #1 in terms of her unexplained fevers. Would also recommend screening for cardiac arrhythmia with an EKG. 3. At risk unrecognized trauma skin ulcerations, etc. related to her HSAN. 4. Cognitive delay, changes on MRI scan as outlined above, changes in tone which have been noted in the past. Question of possible encephalopathic components unrelated to her HSAN. Would defer to Dr. Shanks in term of further evaluation and recommendations in this regard. According to the medical records, Shayla's last consultation with Dr. Shanks was June 8, 1998, "for followup of her hereditary sensory autonomic neuropathy type IV most likely." Dr. Shanks' notes of that visit do not speak to an encephalopathic component unrelated to Shayla's HSAN, but conclude with his "Impression: Encephalopathy associated with hereditary sensory autonomic neuropathy."2 On May 22, 2000, Thayla was examined by Michael S. Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital. The results of that neurologic evaluation were reported by Dr. Duchowny, as follows: I evaluated Shayla Adame on May 22, 2000. Shayla is a four year old developmentally delayed girl who is brought for an evaluation of development problems. HISTORY ACCORDING TO MRS. ADAME: Mrs. Adame began by explaining that Shayla has been diagnosed with hereditary sensory and autonomic neuropathy type . . . [IV]. In this regard she has a congenital absence of sensitivity to pain in conjunction with other abnormalities. Her lack of pain perception has caused her to scratch her eyes and she has already required a right eye corneal transplant due to trauma. This has been accentuated by Shayla's inability to generate tears and she appears to lack the ability to generate secretions in a generalized sense. The diagnosis of this rare disorder was made at Nemours Children's Clinic at age 2 years when Shayla had a seral nerve biopsy. The results are not available today. Shayla is developmentally delayed with regard to her language and tends to speak in single words, but occasionally puts several together to talk in phrases or sentences. Her hearing is said to be intact. She drools frequently and has been diagnosed with "cerebral palsy". She has a scoliosis and is fitted with a brace, but this is not present today. Shayla has suffered from intermittent muscle spasms and has had a total of 2 or 3 febrile seizures lifelong. She was hospitalized in March of this year for pneumonia and was sent home on cardiac monitoring. Shayla required a G-tube which was placed at a year of age. This was withdrawn at age 2 years and she is now able to sustain herself through oral intake. She had neuroimaging studies as a infant which apparently were normal. Shayla presently takes artificial tears, but is on no other medications. She receives various therapies which have been beneficial. There is a history of unexplained fever which appears to be related to environmental temperatures and she has had temperatures as high as 106 degrees. Shayla has pervasive absence of sweating and apparently is scheduled for a sweat test in the near term. She has also had tongue biting episodes with the right lateral border of her tongue sustaining a significant injury. FAMILY HISTORY: Shayla is an only child. Her father[']s whereabouts are unknown. There is no family history of sensory or motor neuropathy and no history of any neurodegenerative illnesses. PRE- AND PERINATAL HISTORY: Shayla was born at term by frank breech presentation at University Hospital. Her birth weight was 6- pounds, 6-ounces. She remained in the hospital for a total of 29 days. Shayla is not walking, although she can pull to a stand. Toilet training is "in process." * * * PHYSICAL EXAMINATION reveals an alert small child, but in proportion. Her weight is 27- pounds and height 27-inches. The head circumference measures 48.4 cm and the fontanelles are closed. There are no cranial asymmetries. Shayla has a large area of depigmentation on her right posterior lateral buttock region. There is an asymmetry of her eye with a skin tag linking the upper and lower lids on the right lateral aspect of her eye where she had the corneal transplant. A small traumatic cataract is noted in the left eye as well. There are thick callouses over the knees from crawling. She has multiple ulcerations of her toes and fingers where she has picked at sores to the point of thick soft tissue overgrowth. Shayla has only a few teeth and several stainless steel replacement caps. Multiple gingival abscissa are noted. There is a scoliosis convexed to the left. The cardiovascular, respiratory and abdominal examinations are normal. The healed G-tube scar is noted. The limbs appear warm and there are full and bounding periphereal pulses. NEUROLOGIC EXAMINATION reveals Shayla to have delayed language development. She speaks primarily in 1 or 2 word phrases with thick dysarthric speech that frequently required interpretation. Drooling is remarkably prominent. There is central gaze fixation with conjugate following movements. The pupils are 3 mm and react sluggishly to light. I was unable to visualize the fundi of either eye due to opachification. Shayla can clearly see objects in all visual spheres and tracks actively. There is no facial asymmetry. The tongue is moist and appears to be papillated with several traumatic lacerations on the lateral grooves. Motor examination reveals symmetric strength and bulk. The tone is slightly diminished throughout. There is generalized areflexia of both upper and lower extremities. Sensory examination reveals absence of withdrawal to painful pinching of all extremities. She does appear to feel however, although pain is not specifically perceived. Shayla sits with a stable balance and without head titubation, but can not stand without support. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Shayla's neurologic examination is consistent with type IV hereditary sensory and autonomic neuropathy, a rare disorder that is often associated with mental retardation. This disorder is likely to be genetic in origin, although direct linkage has not been established. The cause (etiology) and timing of Shayla's neurologic dysfunction To address the cause and timing of Shayla's neurologic dysfunction, the parties offered the medical records relating to Ms. Adame's antepartum and intrapartum course, as well as those associated with Shayla's birth and subsequent development. Portions of those records have been discussed supra, and further salient portions will be addressed infra. Additionally, Petitioner offered the deposition testimony of Paul R. Summers, M.D., an expert in obstetrics and gynecology, and Respondent offered the deposition testimony of Michael S. Duchowny, M.D., an expert in pediatric neurology, and Charles Kalstone, M.D., an expert in obstetrics and gynecology. The medical records and the testimony of the physicians offered by the parties have been carefully considered. So considered, it must be concluded that Shayla's neurologic dysfunction resulted from a Type IV hereditary, sensory and autonomic neuropathy (a congenital sensorimotor neuropathy) unassociated with any intrapartum injury, hypoxic or traumatic in nature.3 In reaching such conclusion, the evidence regarding the bleed Ms. Adame suffered the evening of March 30, 1996 (which Dr. Summers alone opined evidenced a partial placental abruption, with resultant hypoxic brain injury and serious neurologic damage) has not been overlooked; however, it is also noted that when Ms. Adame presented at University Medical Center at 12:15 p.m., and later at 7:42 p.m., March 31, 1996, fetal heart monitoring was reassuring for fetal wellbeing, and that monitoring throughout the course of labor evidenced no significant abnormalities. Moreover, Ms. Adame's labor was essentially normal, the second stage of labor was not protracted, and Shayla's delivery, including her head, was without apparent delay or other difficulty. Further, it is noted that on delivery, Shayla presented with hypotonia, a cord pH of 7.182 and a base excess of -4.5 (a result inconsistent with significant deficit in oxygenation), a normal five-minute Apgar, and no evidence of seizure activity in the immediate postnatal period. Finally, it is noted that by presentation, development, and a seral nerve biopsy, it has been demonstrated that Shayla's neurologic presentation is consistent with a Type IV hereditary, sensory and autonomic neuropathy, as opposed to any intrapartum injury. In sum, as observed by Drs. Duchowny and Kalstone, whose testimony is most consistent with the medical records and the observation of Shayla's treating physicians, the record does not evidence an acute event during labor and delivery as the cause of Shayla's neurologic impairment.4
The Issue At issue in this proceeding is whether Oscar Roberto Nunez Cano, 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 Ana Isabel Cano and Roberto Nunez are the parents and natural guardians of Oscar Roberto Nunez Cano (Oscar), a minor. Oscar was born a live infant on February 20, 1997, at Jackson Memorial Hospital, a hospital located in Miami, Dade County, Florida, and his birth weight was in excess of 2500 grams. The physicians providing obstetrical services during the birth of Oscar were, at all times material hereto, participating physicians 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 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." Oscar's presentation On June 23, 1999, following the filing of the claim for compensation, Oscar was examined by Michael Duchowny, M.D., a pediatric neurologist. Dr. Duchowny's evaluation revealed the following: HISTORY ACCORDING TO MRS. CANO-NUNEZ . . . Mrs. Cano-Nunez began by explaining that Oscar's major problem is that he has 'no movement in his left arm'. This has been a problem since birth when he presented with a weakness of the left upper extremity. Oscar was the product of a term gestation born at Jackson memorial Hospital with a birth weight of 10-pounds. The mother indicated that he was 'to [sic] big when delivering' and the delivery 'caused his left arm tendons to be damaged'. Oscar ultimately remained in the Newborn Intensive Care Unit for a total of 21 days. Mrs. Cano-Nunez feels that Oscar was left with essentially a functionless left arm. He was seen by several physicians, but ultimately was referred to Dr. John Grossman who did neural graphing in August of 1998. The surgery resulted in 'some recovery of function, but he still is limited'. The left hand serves principally as a helper with his right hand performing the majority of motoric tasks. Oscar otherwise enjoys good health. He is on no intercurrent medications and there has been no exposure to toxic or infectious agents. His milestones have been delayed in that he did not walk until 1 1/2, but he spoke in words at a year. He is not yet toilet trained. His immunization schedule is up to date and he has no known allergies. * * * PHYSICAL EXAMINATION reveals Oscar to be an alert, socially integrated and cooperative 2 1/2 year old boy. The weight is 36-pounds. His head circumference measures 51.4 cm and the fontanelles are closed. There are no digital, skeletal or palmar abnormalities and no significant dysmorphic features. The spine is straight without dysraphism. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. There is a healed scar over the left supraclavicular area and further scaring of the left posterior leg where a serial nerve was taken for graphing. Both scars demonstrate keloid formation. NEUROLOGICAL EXAMINATION reveals Oscar to maintain fluent speech. His cranial nerve examination reveals full visual fields to confrontation testing and normal ocular fundi. The pupils are 3 mm and react briskly to direct and consensually presented light. There is blink to threat from both directions. The tongue and palate move well. There are no significant facial asymmetries with the exception of the left palpebral fissure which appeals slightly widened. There is no heterochromia irides and no obvious ptosis or anhydrosis on the left. Motor examination reveals symmetric strength, bulk and tone of three extremities with the left continuing to demonstrate prominent weakness. There is 1-2/5 weakness of the musculature of the proximal shoulder girdles with 3-4/5 strength more distally. Left scapular winging is noted and there is a loss of muscle bulk over the deltoid region, as well as the musculature of the mesial scapular border. Oscar is unable to elevate his shoulder above 20 degrees below neutrality. He has 'Porter's Tip' sign of the hand. Grasping is performed primarily with the right hand and he often crosses the midline. He can not grasp independently with the left. In contrast, the right upper extremity and lower extremities have normal strength, bulk and tone and the deep tendon reflexes are 2+. The deep tendon reflexes in the left upper extremity are trace/absent throughout. Station and gait are age appropriate with the expected diminished arm swing on the left. Sensory examination is deferred. In SUMMARY, Oscar's neurologic examination reveals evidence of a significant left upper extremity monoparesis. In contrast, the remainder of his neurologic examination is normal and his speech is progressing satisfactorily. I believe his cognitive status is normal. The future prognosis of left upper extremity function is guarded, as he has not responded well to surgery. The injury Oscar suffered to his left upper extremity (a brachial plexus injury) during the course of delivery is not, anatomically, a brain or spinal cord injury, and does not affect his mental abilities. Moreover, apart from the brachial plexus injury, Oscar was not shown to suffer any other injury during the course of his birth. Consequently, the proof fails to demonstrate that Oscar suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during the course of labor or delivery that rendered him permanently and substantially mentally and physically impaired.
The Issue At issue in this proceeding is whether Brenay Janelle Jackson, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Petitioners, Bridget Jackson and Horace Jackson, are the parents and natural guardians of Brenay Janelle Jackson (Brenay), a minor. Brenay was born a live infant on January 11, 2002, at Palmetto General Hospital, a hospital located in Hialeah, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Brenay was Ignacio Alfredo Ramirez, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimants demonstrate, more likely than not, that the infant suffered an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Brenay's presentation On August 15, 2002, following the filing of the claim for compensation, Brenay was examined by Michael S. Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. Dr. Duchowny reported the results of that neurology evaluation, as follows: HISTORY ACCORDING TO MR. & MRS. JACKSON: The parents began by explaining that Brenay is seven months old and has a "weak left arm." They indicated that Brenay's arm has been in this condition since birth and has "not improved very much." They believe that Brenay's left arm has limited mobility despite physical therapy provided on a routine basis. She additionally receives direct electrical stimulation to the muscles of the upper extremity. They noted that Brenay's "thumb turns in" and that she "cannot get her palm up." However, there is certainly a dexterity in the hand and she is able to use both hands in a cooperative fashion. There are more problems at the shoulder in that she is unable to raise her left arm as high as the right. Brenay underwent surgical reconstruction of the left brachial plexus three weeks ago. Surgery was performed by Dr. John Grossman and included a transplant of the left sural nerve. The procedure was uncomplicated. Brenay is also followed by Dr. Michael Tidwell in the Orthopedics department at Miami Children's Hospital. Brenay's right arm has full function and there are no problems with regard to her lower extremities. She rolled over at six months and is now sitting on her own. Her head and neck have a slight tilt to the right, but this does not compromise Brenay functionally. Brenay's hearing and vision are said to be adequate and there have been no changes in her appetite. She sleeps through the night. Brenay is on no intercurrent medications. There has been no recent exposure to toxic or infectious agents and no significant postnatal injuries. FAMILY HISTORY: Brenay's mother and father are both 36 years old. Two brothers, ages eight and seven are healthy. No family members have paralysis, mental retardation, epilepsy or developmental delay. PRE and PERINATAL HISTORY: Brenay was born at term at Palmetto General Hospital. She weighed 8-pounds, 15-ounces and was delivered vaginally. She remained in the hospital for two days. The parents stated that she breathed well at birth and did not have postnatal jaundice. Brenay's immunizations have been proceeding on schedule and she has no known drug allergies. Brenay's PHYSICAL EXAMINATION reveals an alert and playful seven month-old, well- developed, well-nourished black female. Brenay weighs 18-pounds. Her skin is warm and moist and there are no neurocataneous stigmata. There are no digital, skeletal, or palmar abnormalities and no dysmorphic features. The cranial contour appears normal and the head circumference measures 43.4 cm, placing Brenay in the 60th percentile for age-matched controls. The anterior and posterior fontanelles are both patent and flat. There are no significant facial asymmetries. Tongue thrusting is noted intermittently and there is some drooling. The head has a very slight tilt to the right side. The neck is supple without masses, thyromegaly or adenopathy, and the cardiovascular, respiratory and abdominal examinations are normal. There are healed linear scars over the left calf and left lower lateral cervical region. Brenay's NEUROLOGIC EXAMINATION reveals an alert infant sitting in her mother's lap. She is extremely engaging and smiles frequently. Brenay makes frequent cooing noises and appears extremely interested in objects and people in her immediate surround. Her cranial nerve examination reveals full visual fields to confrontation testing. The extraocular eye movements are full and conjugate and the pupils are 3 mm and briskly reactive to direct and consensually presented light. There is no ptosis. Fundoscopic examination reveals appropriately demarcated disc margins without pallor and no evidence of retinopathy. The facial movements are symmetric and the tongue moves well. The uvula is midline. Motor examination reveals a functional asymmetry of the upper extremities. Brenay tends to move her right arm much more actively, and in contrast, the left shoulder mobility is diminished. There are no fixed contractures. The shoulder is held in a position of mild internal rotation and adduction. The elbow is flexed and the wrist is pronated. There is full range of motion at the wrist and finger joints and Brenay demonstrates good individual finger dexterity. There were no asymmetries of motor bulk in the forearm compartments, but the arm showed a slightly greater ridging over the lateral surface on the left. There is no asymmetry of the dorsal musculature and the shape and slope of the shoulders appeared symmetric and normal. I was unable to accurately assess sensory function in the upper extremities. The deep tendon reflexes are 2+ at the knees and ankles and 1+ to 2+ in the right biceps and brachial radialis. The right triceps is trace. In contrast, the left biceps and brachial radialis are trace and there is no evidence of a left triceps jerk. Brenay is able to sit with good head control and has a good grasping bilaterally. There are no pathologic reflexes. She stands with support. The NEUROVASCULAR EXAMINATION reveals no cervical, cranial or ocular bruits, and no temperature or pulse asymmetries. Brenay is able to grasp objects with either hand, and she demonstrates reasonably well-developed pincer grasp with both the right and left fingers. She does not yet transfer. IN SUMMARY, Brenay's neurologic examination reveals evidence of a mild left Erb's palsy, affecting the fifth, sixth, and seventh cervical roots. The lower brachial plexus appears preserved, and there are no other neurologic abnormalities. Brenay's Erb's palsy appears to be improving slightly, but it is as yet too early to know how well she will do subsequent to her surgical repair. In contrast, the neurologic examination demonstrates no evidence of mental or motor impairment referable to the central nervous system. An Erb's palsy, such as that evidenced by Brenay, is a weakness of an upper extremity due to damage of the nerve roots of the upper brachial plexus,2 and does not involve the brain or spinal cord.3 Moreover, the impairment Brenay suffers is mild, as opposed to substantial, and there is no evidence of mental impairment. Consequently, while Brenay may have suffered a mechanical injury, permanent in nature (to her left brachial plexus) during the course of birth, she does not (for reasons appearing more fully in the Conclusions of Law) qualify for coverage under the Plan.
The Issue At issue in the proceeding is whether Demetrios Robertson, 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 Petitioner, Carmina Gilliam, is the mother and natural guardian of Demetrios Robertson, a minor. Demetrios was born a live infant on August 4, 1996, at University Medical Center, a hospital located in Jacksonville, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services during the birth of Demetrios was Michael T. Valley, 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. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan when the claimant demonstrates, more likely than not, that the infant suffered an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital which renders the infant permanently and substantially mentally and physically impaired." Section 766.302(2), Florida Statutes. Here, the proof failed to demonstrate that Demetrios suffered a permanent and substantial mental and physical impairment. Consequently, it is unnecessary to address whether he suffered an injury to the brain caused by oxygen deprivation or mechanical injury and, if so, whether such injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Demetrios' current mental and physical presentation To address the character of Demetrios' neurologic presentation, Petitioner offered selected medical records relating to Demetrios' birth and subsequent development, as well as the opinions of Demetrios' treating pediatric neurologist, Daniel E. Shanks, M.D. In turn, Respondent offered the opinions of Michael Duchowny, M.D., a pediatric neurologist who examined Demetrios on January 17, 2001. As noted, on January 17, 2001, following the filing of the claim for compensation, Demetrios was examined by Dr. Duchowny. Pertinent to this case, the results of that evaluation were reported as follows: PHYSICAL EXAMINATION reveals Dem[e]trios to be alert, pleasant and cooperative. His weight is 55 pounds and height 32 inches. There is a single cafe-au-lait spot over the left midabdominal region. There are no dysmorphic features and no other cutaneous stigmata. The spine is straight without dysraphism. The head circumference measures 50.4 cm and there are no craniofacial anomalies or asymmetries. The fontanelles are closed. The neck is supple, without masses, thyromegaly or adenopathy and the cardiovascular, respiratory and abdominal examinations are unremarkable. Peripheral pulses are 2+ and symmetric. NEUROLOGICAL EXAMINATION: Dem[e]trios' neurological examination reveals him to be quiet but cooperative. He does have a short attention span but he is easily engaged and tends to complete requests without flinching. His speech output is noticeably diminished and he tends to speak in short phrases with poorly articulated words. He does not know primary or secondary colors and has a limited command of knowing the names of animals. He does identify body parts well. There is no evidence of overactivity. Cranial nerve examination reveals full visual fields to direct confrontation testing and normal ocular fundi. The pupils are 4 mm, react briskly to direct and consensually presented light. The optic disc margins are well- marginated with normal coloring. The tongue and palate move well and there is no drooling. Medical examination reveals mild spasticity of the lower extremities with some tightening of the heel cords. Dem[e]trios barely dorsiflexes the feet past neutrality and he has slight Babinski attitudes of the big toes. In contrast, the tone in the upper extremities is relatively normal. He has trouble with rapid alternating movement sequences and demonstrates mild decomposition. There is no focal weakness or atrophy. Dem[e]trios walks in a single fashion although there is eversion of his feet. The deep tendon reflexes are brisk and 2+ at the knees, brachioradialis and biceps. There are one or two beats or reduplication at the ankles and quite positive Babinski signs. There is no abductor spasticity. His gait is stable but he tends to posture both arms. He has difficulty walking on tip toes or heels. Romberg sign is absent. The neurovascular examination reveals no cervical, cranial, ocular bruits and no temperature or pulse asymmetries. Sensory examination was deferred. IN SUMMARY, Dem[e]trios' neurologic examination reveals evidence of moderate developmental delay, particularly in the area of language functioning. He additionally has evidence of mild lower extremity spasticity indicating a mild spastic diparesis. At a deposition held August 28, 2001, and received in evidence as Respondent's Exhibit 1, Dr. Duchowny expanded on the results of his examination and conclusions regarding the character of Demetrios' presentation, as follows: BY MR. CULPEPPER: * * * Q. . . . What were your conclusions regarding Demetrios' neurological condition? A. Having performed the evaluation and reviewing the medical records, I felt that Demetrios has neither a substantial mental nor motor impairment. Q. . . . Is Demetrios impaired? A. I believe that he does have evidence of impairment, yes. * * * Q. . . . Does Demetrios have a permanent injury? A. Yes, I believe he does. Q. Is he mentally impaired? A. I think he has developmental delay. I am using the term to distinguish it from brain damage. I think his language is behind age level, but will probably progress and continue to improve. Q. I will focus on the context of NICA. How would you quantify the seriousness of Demetrios' mental impairment? A. I would call it mild to moderate. Q. Okay. So you would not consider Demetrios' mental impairment, quote, unquote, "significant" in terms of NICA? A. That's correct. Q. Why not? A. Because he probably functions within a high -- in the high end of kids with disabilities. He basically would be mild to moderately impaired by school standards, and he is not mentally retarded. Q. To follow up, describe what you would consider a, quote, unquote, "significant" mental impairment in terms of the NICA statute? A. Well, he would have to be -- function within the mentally retarded range, and I regard him more as having evidence of language delay. Otherwise, he seems socially intact and he does well. Q. Now I'll turn to Demetrios' physical condition. Is Demetrios suffering from a physical impairment? A. Yes. Q. In the context of NICA, how would you quantify the seriousness of Demetrios' physical impairment? A. I believe he has a mild physical impairment of his legs. Q. Again, in the context of the NICA statute, would you consider Demetrios' physical impairment, quote, unquote, "significant" MR. SCHACK: Let me object to the language and the form of the question. You keep using the word "significant," and I think the language is "substantial." MR. CULPEPPER: I apologize, and thank you for pointing that out. Let me switch the words then. Q. (By Mr. Culpepper) Do you consider his impairment substantial in terms of NICA? A. No. Q. And why not? A. Because in the spectrum of what we see of motor impairment, this is simply not a substantial motor impairment. He would have to be more spastic, more involved with greater compromise of his functionality. Q. And then to clean up my error, going back to mental impairment, would you consider Demetrios' mental impairment "substantial," quote, unquote, in terms of the NICA statute? A. No, I would not. BY MR. SCHACK: * * * * * * Q. . . . When you use the terms mild, moderate, and severe, is that medical terminology? A. Well, it's not a medical dictionary word, but I think it is a modifier that tries to categorize a patient within the scope of disability that we see. Q. Well, Doctor, if this was your patient, would you just describe the neurological findings and the problems the child had rather than trying to modify it by an adjective? A. No. We always modify with an adjective. Q. Okay. A. Apart from NICA, we do that. * * * Q. It appears in this case to me, correct me if I am wrong, that regardless of whether you describe it as mild, moderate, or severe, that Demetrios has some motor difficulties that might impact on his ability to live a normal life. A. You mean lifespan or just life functions? Q. That was a -- life function. A. They might, yes. Q. Okay. He at the present time has lower motor problems, lower extremity motor problems; is that correct? A. Yes. Q. And exactly what is his problem? A. He has spasticity, mild, of his legs. Q. What does that prevent him from doing? A. Being agile, running fast, being a competitive athlete. Q. Okay. Does it give him difficulty walking? A. Yes. Q. Okay. And he can't stand straight? A. Right. Q. All right. Would you say that is a substantial problem for a child such as Demetrios? A. I think he's going to get better with time. I think he's going to be able to do most of the things he wants to do. Q. But at the present time he's unable to do things he wants to do; is that correct? A. I'm sure that's true . . . . Demetrios was last examined by his pediatric neurologist, Dr. Shanks, on October 18, 2001. Dr. Shanks reported the results of that evaluation, as follows: . . . [Demetrios] has always had a tendency to walk up on his toes since he began walking at approximately 14 months of age. It has not progressed over time. He may be a little tighter in the right than the left and he did go through physical therapy during earlier years. * * * On physical examination, height 105 cm (10th to 25th %); weight 22 kg (75th to 90th %); head circumference 51 cm (50th %). Generally, he is a well-appearing, alert youngster who is generally cooperative. There are no cranial or carotid bruits noted. Neck is supple with full range of motion. He has full primary dentition. There are no chest deformities other than a well-healed scar on his left infrascapular region inside. Abdomen is mildly obese. Extremities have full range of motion with the exception of ankles that have slight restriction in dorsiflexion, right slightly more so than the left, and there is a little bit of tightness in hip adductors. There are no asymmetries of his extremities. Back is without midline lesions. He has two hyperpigmented macular lesions, one of his abdomen and one on his back. NEUROLOGIC EXAM: Speech is fluent but mostly just one to two-word utterances. He does follow simple commands readily. Cranial nerves pupils equal, round and reactive to light; discs are sharp with normal appearing vessels. Extraocular movements are full and conjugate. Facial muscle movements full and asymmetric. Hearing is normal to low-level stimulation bilaterally. Palate elevates symmetrically; sternomastoids are strong and tongue is midline. Motor exam shows normal tone with the exception of his distal lower extremities and a possible slight spastic catch in his hip adductors. Upper extremity tone feels relatively normal. Deep tendon reflexes are 2+ in the upper extremities, 3- 4+ lower extremities with crossed adductors. Ankle jerks are 1+ and toes are upgoing bilaterally, more strongly on the right than the left. With gait, he does have a tendency to get up on his toes slightly but is very functionally mobile. Sensory exam is intact to touch, cold and vibration. He has no cerebellar signs or adventitial movements. IMPRESSION: Likely mild spastic diplegia with overall relatively good prognosis for functional capabilities. He also seems to have significant cognitive delays . . . . Considering the proof, it must be resolved that Petitioner has failed to demonstrate, more likely than not, that Demetrios is permanently and substantially mentally and physically impaired.1 Notably, Doctors Duchowny and Shanks share strikingly similar views regarding the characterization of Demetrios' physical presentation, and concur that his physical impairment can best be described as mild. With regard to Demetrios' mental impairment, Dr. Duchowny was of the view that Demetrios was developmentally delayed, but would likely improve, and that his impairment could best be described as mild to moderate. In contrast, Dr. Shank's was of the view that Demetrios "seems to have significant cognative delays"; but did not otherwise characterize Demetrios' impairment. Stated otherwise, Dr. Shank's did not express an opinion as to whether Demetrios' mental impairment could best be described as mild, moderate, or severe, and expressed no opinion as to whether Demetrios' impairment was or was not likely to improve.
The Issue Whether Ashley Villarreal has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.
Findings Of Fact Preliminary matters Ashley Villarreal (Ashley) is the natural daughter of Roy Villarreal and Carmen Luna. She was born a live infant on January 2, 1989, at Bethesda Memorial Hospital in Palm Beach County, Florida, and her birth weight was 3090 grams. The physician delivering obstetrical services during the birth of Ashley was Allen Dinnerstein, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. The birth of Ashley Villarreal At or about 4:15 p.m., January 2, 1989, Carmen Luna was admitted to Bethesda Memorial Hospital. At the time, Carmen Luna was in active labor, and Ashley was post term with a gestational age of 41 weeks. Otherwise, Carmen Luna's pregnancy had been without complication. External fetal monitoring was commenced at 4:50 p.m. and indicated that the fetal heart tone was sporadically within the 60 beat per minute level, with a slow return to baseline; a level sufficient to indicate occasional fetal bradycardia and fetal distress. 1/ This situation evidenced a need for surgical intervention, and at 5:20 p.m. Carmen Luna was taken to the operating room. Anesthesia commenced at 5:25 p.m., a cesarean section surgical procedure was commenced at 5:39 p.m., and Ashley was delivered at 5:44 p.m. The operative report reflects that the following occurred during the course of the procedure: . . . a transverse incision was made into the uterus releasing meconium stained fluid. The vertex was delivered and the baby suctioned with DeLee. A loop of cord over the neck was removed and the baby then delivered completely continually being suctioned as the cord was double clamped and severed and the infant given to the neonatologist for care . . . . The delivery records likewise reflect that Ashley had a blue appearance at delivery, the presence of meconium staining, and the following resuscitation measures: "Stimulation," "Bulb Suction," "DeLee Suction," "Mech Suction" and "Whiffs Oz." When delivered, Ashley presented Apgar scores of 6 at one minute and 8 at five minutes. These scores are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of the 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, Ashley's Apgar score totaled 6, with respiratory effort and reflex irritability being graded at 2 each, heart rate and muscle tone being graded at 1 each, and color being graded at 0. At 5 minutes, Ashley's Apgar score totaled 8, with heart rate, respiratory effort and reflex irritability being graded at 2 each, and muscle tone and color at 1 each. Such total scores could be characterized by an obstetrician as "good." Pertinent to this case, color, heart rate and respiratory effort are primarily related to the cardiovascular system, and color is the least significant indicator of an infant's brain or neurological status at birth. The categories of reflex irritability and muscle tone are, however, neurological assessments, which offer the greatest insight into the neurological condition of an infant at birth. Ashley's Apgar scores relative to those categories which reflect neurological status at birth were collectively a total of 3 out of a possible 4 at both 1 and 5 minutes. Under the circumstances, Ashley's Apgar scores, either globally or discretely, fail to reflect a hypoxic event at birth. At 6:00 p.m., following delivery, Ashley was admitted to the neonatal intensive care unit due to respiratory distress, possibly secondary to meconium aspiration. Ashley was accorded extra oxygen, via oxygen hood, for two days, and her meconium aspiration was successfully treated with antibiotics. During her admission, no clinical observations were noted that one would typically expect in a child undergoing hypoxic encephalopathy, and no neurological consult was ordered. 2/ On January 7, 1989, Ashley was discharged as an apparently well baby. Subsequent developments On July 29, 1989, Ashley was seen by M. Arenstein, D.O., for a "well baby visit," and no abnormalities were noted; however, on September 6, 1989, Ashley was again seen by Dr. Arenstein at which time the parents expressed their concern regarding Ashley "not sitting up, crawling, etc." Consequently, Dr. Arenstein referred Ashley for a pediatric consult with Jeffrey Perelman, M.D. Ashley was seen by Dr. Perelman on September 19, 1989, and he diagnosed her as developmentally delayed, and ultimately referred her to David Ross, M.D., for a neurological evaluation. Dr. Ross saw Ashley on July 2, 1990, and concluded: The patient has some mild facial dysmorphism with developmental delay in all fields associated with an abnormal neurologic exam with persistence of postural reflexes and hyperreflexia. The spectrum of findings is consistent with mental retardation of a mild to moderate degree probably due to cerebral palsy. 3/ Dr. Ross' ultimate diagnosis was mental retardation, and he recommended that Ashley have a full evaluation, including "an image of the brain either with CT scan or MRI (an EEG, torch titers, chromosome analysis)." Ashley was referred in August 1990, for a CT brain scan and an EEG. The CT scan is a neuroimaging study which can identify structural brain abnormalities occasioned by an hypoxic insult, as well as other causes. The EEG is a device used to detect abnormalities of the electrical currents of the brain such as seizure activity, which is often a manifestation of hypoxic insult at birth, and the death of neuronal cells. Here, both the CT scan and EEG were within normal limits. Ashley continued to be treated by Dr. Perelman through June 1991; however, on August 14, 1991, she came under the care of Miguel Simo, M.D., another pediatrician, because the parents were apparently dissatisfied with Dr. Perelman. Upon examination, Dr. Simo diagnosed Ashley as developmentally delayed, and referred her to Laszlo Mate', M.D., a physician practicing child neurology, for evaluation. Dr. Mate' examined Ashley on August 29, 1991, and observed: . . . a small, dysmorphic female in no apparent distress. Her head circumference is 47 cm which is in the 25th percentile. She doesn't have any neurocutaneous abnormalities. Her palmer creases are somewhat abnormal, but not of simian nature. Her fingers are slightly abnormal, extra long, and she seems to have a proximal displacement of both thumbs. Her ears are malformed with very small earlobes. The ears are somewhat posterior rotated and low set. Her eyes are almond shape but in view of her Indian heritage, that's probably normal. Both parents seem to have similar shaped eyes. The child has a somewhat prominent nose. The mouth is somewhat fishmouth in character and she has fairly shallow temporal area. She doesn't have any eyelashes on her lower eyelid. Dr. Mate's impression was: This is a markedly abnormal child with a developmental quotient in the 30's. She's currently is 30 months old and she functions around a 9-10 month level. She has multiple minor malformations which made the diagnosis of cerebral palsy somewhat unlikely. I suspect we are dealing with some prenatal etiology, either genetic or pregnancy related. 4/ Dr. Simo also referred Ashley for an MRI of the brain. An MRI, as with a CT scan, is a neuroimaging study which can identify structural abnormalities occasioned by hypoxic insult, as well as other causes. The MRI, performed September 20, 1991, was abnormal, evidencing "poor and decreased white matter myelinization extending to the frontal, occipital, and parietal cortex and decrease in white matter content in the centrum semiovale." Such damage could be reflective of birth asphyxia, developmental immaturity of the brain, or a myriad of other causes. Finally, Dr. Simo referred Ashley to Oscar Febles, M.D., a physician practicing genetics. Dr. Febles examined Ashley on November 1, 1991, and rendered a diagnosis of "psychomotor retardation of unknown etiology." Concluding, Dr. Febles observed: The clinical findings in this patient are not diagnostic of a particular genetic syndrome . . . In conclusion, this patient presents a clinical picture characterized by psychomotor retardation that cannot be diagnosed on the clinical findings and/or testing done. The fact that she presents diffuse demyelinization on the MRI would favor the diagnosis of cerebral palsy and/or a CNS degenerative disease. It is my recommendation that an MRI be repeated in approximately 6 months to see if the demyelinization process of the cortex previously seen is progressive or static. If found to be progressive it would indicate a CNS degenerative disease (e.g. leukodystrophies) and if static the diagnosis of cerebral palsy is most likely. In addition, it is also recommended . . . Genetic re-evaluation in 1 year. Whether, consistent with Dr. Febles' recommendation, an MRI was repeated or Ashley had a subsequent genetic re- evaluation does not appear of record. Notably, however, while Ashley was genetically tested and found to have a normal karyotype, such test does not rule out the preponderance of genetic disorders which manifest themselves in microscopic point mutations within a chromosome as opposed to total chromosomal malformation. The medical experts at hearing As to whether Ashley had sustained permanent and substantial mental and physical impairment as a result of an injury to her brain resulting from oxygen deprivation during the course of labor, delivery or resuscitation in the immediate post-delivery period, petitioners offered the testimony of Dr. David Ross, who, although a board certified neurologist, does not regularly treat neonates. Dr. Ross examined Ashley on July 2, 1990, and March 2, 1994. It was Dr. Ross' opinion that Ashley suffered a substantial and permanent mental and physical impairment as a consequence of oxygen deprivation during the course of labor and delivery. Compared with the opinion of Dr. Ross, the respondent offered the testimony of Dr. Michael Duchowny. Dr. Duchowny is a child neurologist who is board certified in pediatrics, neurology with special competence in child neurology and clinical neurophysiology. Dr. Duchowny is associated with the department of neurology at Miami Children's Hospital and routinely treats neonates suspected of having suffered a hypoxic event at birth. Dr. Duchowny examined Ashley on September 21, 1992, as well as observed her at hearing, and was familiar, as was Dr. Ross, with the pertinent medical records. It was Dr. Duchowny's opinion that Ashley was substantially and permanently mentally impaired, but that her physical impairment could best be described as mild to moderate. As to causation, it was Dr. Duchowny's opinion that the cause (etiology) of Ashley's mental and physical impairment (neurologic syndrome) was a developmental problem of in utero (prenatal) or genetic origin, and that any fetal distress she may have suffered at birth was not substantial and did not contribute to her condition. [Tr. 97] Here, I accept the testimony and opinion of Dr. Duchowny as being the more credible and substantial as to whether Ashley sustained a substantial and permanent mental and physical impairment, and the cause of such dysfunction. Dr. Duchowny's opinions are credible, supported by the observations of other physicians as heretofore noted, and are most consistent with conclusions to be drawn or inferences raised by the medical records received into evidence.
The Issue The issue in this case is whether Reshnaya E. Francois suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Plan.
Findings Of Fact Reshnaya E. Francois was born on January 31, 2016, at Broward Health, in Coral Springs, Florida. Reshnaya weighed in excess of 2,500 grams at birth. The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records of Broward Health submitted with the Petition. At all times material, both Broward Health and Dr. Wajid were active members under NICA pursuant to sections 766.302(6) and (7). Reshnaya was delivered by Dr. Wajid, who was a NICA- participating physician, on January 31, 2016. Petitioners contend that Reshnaya suffered a birth- related neurological injury and seek compensation under the Plan. Respondent contends that Reshnaya has not suffered a birth- related neurological injury as defined by section 766.302(2). In order for a claim to be compensable under the Plan, certain statutory requisites must be met. Section 766.309 provides: The Administrative Law Judge shall make the following determinations based upon all available evidence: Whether the injury claimed is a birth- related neurological injury. If the claimant has demonstrated, to the satisfaction of the Administrative Law Judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in § 766.302(2). Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital. How much compensation, if any, is awardable pursuant to § 766.31. If the Administrative Law Judge determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at birth, she or he shall enter an order . . . . The term “birth-related neurological injury” is defined in Section 766.302(2), Florida Statutes, as: . . . injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth 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. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality. (Emphasis added). In the instant case, NICA has retained Donald Willis, M.D. (Dr. Willis), as its medical expert specializing in maternal-fetal medicine and pediatric neurology. Upon examination of the pertinent medical records, Dr. Willis opined: The newborn was not depressed. Apgar scores were 8/8. Decreased movement of the right arm was noted. The baby was taken to the Mother Baby Unit and admission exam described the baby as alert and active. The baby had an Erb’s palsy or Brachial Plexus injury of the right arm. Clinical appearance of the baby suggested Down syndrome. Chromosome analysis was done for clinical features suggestive of Down syndrome and this genetic abnormality was confirmed. Chromosome analysis was consistent with 47, XX+21 (Down syndrome). Dr. Willis’s medical Report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: In summary: Delivery was complicated by a mild shoulder dystocia and resulting Erb’s palsy. There was no evidence of injury to the spinal cord. The newborn was not depressed. Apgar scores were 8/9. Chromosome analysis was consistent with Down syndrome. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period. The baby has a genetic or chromosome abnormality, Down syndrome. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis. The opinion of Dr. Willis that Reshnaya did not suffer an obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery, or the immediate post-delivery period is credited. In the instant case, NICA has retained Michael S. Duchowny, M.D. (Dr. Duchowny), as its medical expert in pediatric neurology. Upon examination of the child and the pertinent medical records, Dr. Duchowny opined: In summary, Reshnaya’s examination today reveals findings consistent with Down syndrome including multiple dysmorphic features, hypotonia, and hyporeflexia. She has minimal weakness at the right shoulder girdle and her delayed motor milestones are likely related to her underlying genetic disorder. There are no focal or lateralizing features suggesting a structural brain injury. Dr. Duchowny’s medical report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: Neither the findings on today’s evaluation nor the medical record review indicate that Reshnaya has either a substantial mental or motor impairment acquired in the course of labor or delivery. I believe that her present neurological disability is more likely related to Downs syndrome. For this reason, I am not recommending that Reshnaya be considered for compensation within the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Duchowny. The opinion of Dr. Duchowny that Reshnaya did not suffer a substantial mental or motor impairment acquired in the course of labor or delivery is credited.
