Findings Of Fact Jayden was born on September 20, 2011, at Jackson North Medical Center. The subject Petition was filed on June 25, 2018, which is more than five years after Jayden’s birth. Dr. Vaunrance Benjamin was the physician providing obstetric services and who was present at Jayden’s birth. Attached to Respondent’s Motion is the affidavit of Respondent’s Record’s Custodian, Tim Daughtry. Mr. Daughtry attests in his affidavit that, in 2011, Dr. Benjamin did not pay the five thousand dollar ($5,000.00) assessment prescribed in section 766.314(4)(c), Florida Statutes, required for participation in the Plan. Mr. Daughtry’s affidavit further provides that Respondent has no records to suggest that Dr. Benjamin is otherwise exempt from payment. To the contrary, Dr. Benjamin paid the two hundred fifty dollar ($250.00) assessment required by section 766.314(4)(b)1. for non- participating, non-exempt licensed physicians. Dr. Benjamin was not a participating physician in the Plan at the time of Jayden’s birth.
Findings Of Fact Mia Rodriguez was born on September 29, 2008, at Jackson South Community Hospital in Miami, Florida. Mia weighed 3,230 grams at birth. Donald Willis, M.D. (Dr. Willis), an obstetrician specializing in maternal-fetal medicine, was requested by NICA to review the medical records for Mia. In an affidavit dated August 24, 2012, Dr. Willis described his findings as follows: [L]abor was complicated by infection, chorioamnionitis. Fetal heart rate monitoring during labor did not suggest any significant fetal distress. The baby was not depressed at birth. Apgar scores were 9/9. Newborn hospital course was uneventful. Within one year of age the child demonstrated neurologic abnormalities and was diagnosed with cerebral palsy. MRI showed a porencephalic cyst. This child has clinical and MRI evidence of brain injury. However, review of the medical records does not suggest the brain injury was the result of oxygen deprivation or mechanical trauma during labor, delivery of [sic] the immediate post-delivery period. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during delivery or the immediate post delivery period. In his affidavit, Dr. Willis summarized his opinion as follows: [I]t is my opinion that there was no oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post- delivery in the Hospital. Further, in that there was no oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediately post-delivery period in the Hospital, then accordingly, there was no causal event which would have rendered MIA RODRIGUEZ permanently and substantially mentally and physically impaired as a result of same. NICA retained Michael S. Duchowny, a pediatric neurologist, to examine Mia and to review the medical records of Mia and her mother, Ms. Calderon, to determine whether Mia suffers from an injury which rendered her permanently and substantially mentally and physically impaired and whether such injury is consistent with an injury caused by oxygen deprivation or mechanical injury occurring during the course of labor, delivery, or the immediate post-delivery period in the hospital. In an affidavit dated August 27, 2012, Dr. Duchowny stated: I evaluated MIA RODRIGUEZ on July 25, 2012. . . . In SUMMARY, Mia's neurological examination is significant for a mild to moderate left spastic hemiparesis affecting the arm greater than the leg. There is no evidence of a visual field deficit and her higher cognitive function is assessed at age level. The medical records sent on June 19, 2012 revel that the mother was febrile in labor and diagnosed with chorioamnionitis. She was placed on triple intravenous antibiotics at Jackson South Hospital. Apgar scores were 9 and 9 at 1 and 5 minutes and there was no evidence of postnatal complication. Placental pathology reveals findings consistent with a 3rd trimester placenta but findings consistent with chorioamnionitis were not reported. I do not believe that Mia should be considered for compensation within the NICA statute. She has normal mental functions for age and there are no findings from her history to suggest that hemiparesis was a consequence of either mechanical injury or oxygen deprivation in the course of labor or delivery. More likely, Mia's hemiparesis is due to a right porencephalic cyst which was likely acquired due to cerebrovascular accident in utero prior to the onset of labor. As such, it is my opinion that MIA RODRIGUEZ'S left hemiparesis is not due to oxygen deprivation or mechanical injury occurring during the course of labor, delivery or the immediate post-delivery period in the hospital during the birth of MIA RODRIGUEZ. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinions of Dr. Willis and Dr. Duchowny. The opinions of Dr. Willis and Dr. Duchowny that Mia did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or immediate post-delivery period are credited.
The Issue At issue in this proceeding is whether Tony Howarth, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Initial observations As observed in the preliminary statement, neither petitioners nor anyone on their behalf appeared at hearing, and no proof was offered to support their claim. Ordinarily, such failing would be dispositive of the case; however, notwithstanding petitioners' failure of proof, respondent elected to offer into evidence the medical records filed with DOAH on June 26, 1996, which relate to the birth of Tony Howarth (Tony) as well as the opinion of Charles Kalstone, M.D., a board certified obstetrician, to affirmatively resolve the issue as to whether Tony had suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. Mrs. Howarth's antepartum course and Tony's birth The records reflect that Mrs. Howarth was a 28-year-old gavida 5, para 3, aborthion 2, female, whose antepartum course was relatively uncomplicated. On September 5, 1995, with an estimated date of confinement of November 7, 1995, Mrs. Howarth was seen by her obstetrician, and no problems were noted. Routine ultrasound on September 20, 1995, was likewise unremarkable, and revealed good growth with normal amniotic fluid volume. On October 5, 1995, Mrs. Howarth presented at the offices of her obstetrician for a routine appointment. At the time, her physician was unable to obtain an adequate fetal heart tone, and ultrasound reflected a fetal heart rate of 50 to 60 beats per minute. Consequently, emergency medical services (911) was called, and Mrs. Howarth was transported to Bayfront Medical Center, St. Petersburg, Florida, for immediate evaluation. Mrs. Howarth arrived at Bayfront Medical Center at or about 11:30 a.m., October 5, 1995, and, while still on the ambulance stretcher, examination with ultrasound revealed an absence of any fetal heart rate. Consequently, an emergency cesarean section was proposed. Mrs. Howarth was immediately transported to the operating room on the stretcher, where she was admitted at 11:33 a.m., and placed on the operating room table. At the time, a sonogram was placed on her abdomen, which revealed a vertex- presenting fetus with no visible heart rate. Once general endotracheal anesthesia was induced, the initial incision was made. When entered, the uterine cavity delivered clear amniotic fluid, and Tony was delivered at 11:39 a.m. There was no evidence of nuchal cord or prolapsed cord. Tony present with Apgars of 0 at one minute, 3 at five minutes, and 3 at ten minutes, with a cord pH of 7.10. Tony underwent immediate resuscitation by the neonatal intensive care unit specialist and, following resuscitation, was transferred to the neonatal intensive care unit at All Children's Hospital where, following the discontinuance of life support, he expired on October 6, 1995. Tony's injury and its timing Here, the proof demonstrates that Tony suffered severe bradycardia, resulting in severe hypoxic encephalopathy, which ultimately culminated in his death when life-support was discontinued. However, the proof further demonstrates that the severe oxygen deprivation he suffered, and resultant injury to his brain at 35 weeks gestation, occurred without the onset or presence of labor and prior to Mrs. Howarth's presentation to her obstetrician's offices on October 5, 1995. Consequently, the injury Tony received to his brain, caused by oxygen deprivation, did not occur "in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital," as required for coverage under the Plan. Section 766.302(2), Florida Statutes.
The Issue At issue is whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the hospital.
Findings Of Fact Fundamental findings Jackson Joseph Fischler (Jackson) is the legally adopted son of Kenneth J. and Laura P. Fischler. He was born a live infant on June 1, 1992, at Memorial Hospital West, a hospital located in Pembroke Pines, Florida, and his birth weight was in excess of 2,500 grams. During the course of labor, delivery or resuscitation in the immediate post-delivery period in the hospital, Jackson sustained an injury to the brain or spinal cord caused by oxygen deprivation and/or mechanical injury which rendered him permanently and substantially mentally and physically impaired. As a consequence of the foregoing, the sole issue to be resolved in deciding whether this claim should be accepted for compensation is whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital, as required by Subsections 766.309(1)(b) and 766.31(1), Florida Statutes. The birth of Jackson Joseph Fischler At or about 7:09 p.m., June 1, 1992, the Pembroke Pines Fire Department, Emergency Medical Services (EMS), arrived at the residence of Shirley George, Jackson's birth mother, in response to a 911 call. At the time, Ms. George reported that she was at term, with a caesarean section scheduled 5 days hence for a breach presentation and that her "water may have broken." Subsequent medical records reflect a spontaneous rupture of the membrane at 7:00 p.m. When examined by EMS, Ms. George was experiencing contractions approximately 2 minutes apart, lasting 30-40 seconds. EMS transported Ms. George to Memorial Hospital West, where she was admitted through the emergency room at approximately 7:15 p.m., in labor. Ms. George was then taken to an examination room, and the labor and delivery unit was requested to provide a nurse to examine her. At or about 7:17 p.m., a labor and delivery nurse performed a pelvic examination of Ms. George and immediately diagnosed a prolapse of the umbilical cord, and a fetal heart rate of approximately 60 beats per minute. A prolapsed umbilical cord is a obstetrical emergency, which in the instant case required prompt surgical intervention to address fetal distress. Consequently, Ms. George was immediately rushed to the operating room for an emergency caesarean section. At the time, the on-call obstetrician, Robert Klein, M.D., was at Hollywood Memorial East, where he had been called for surgery. Therefore, shortly after 7:17 p.m., Dr. Klein was advised by telephone of the emergency involving Ms. George, and was requested to come to Memorial Hospital to attend to the situtation. Consequently, according to Dr. Klein, he "unscrubbed the patient of mine at Hollywood Memorial East . . . and in my greens I drove to Memorial Hospital West." Following notice to Dr. Klein and prior to his arrival at Memorial Hospital West, an overhead page was made for any obstetrician or surgeon in house to call the operating room, and 2-3 minutes later a blue alert to the operating room was called. The emergency room physician responded to the blue alert. Upon arrival in the operating room, he was apparently advised that the fetal heart rate was in the 40 beat per minute range and was asked if he could perform a caesarean section. The emergency room physician, not being qualified to perform the operation, declined, and Rudy Zepeda, M.D., the house physician, who was also present, agreed to perform the caesarean section "to save the baby's life." At this point in the factual narrative it is worth observing, considering the central issue in this case, that Dr. Zepeda, an unlicensed house physician, was not, at anytime material to this case, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Conversely, Dr. Klein, the on-call obstetrician, albeit not in attendance at the time, was a "participating physician" in the Plan. In the operating room, Ms. George was on the table at 7:23 p.m., anesthesia was started at 7:25 p.m., and Dr. Zepeda commenced the operation at 7:38 p.m. Jackson was delivered at 7:48 p.m., and the placenta at 7:49 p.m. Upon delivery, Dr. Zepeda handed Jackson to Dr. McIntyre, the on-call neonatologist, and he was immediately intubated and bagged with 100 percent oxygen, with good response in heart rate and color only, and first gasp was noted at 7 minutes. Apgar scores were 2 at one minute, 3 at 5 minutes, and 4 at 10 minutes, and at or about 8:00 p.m. Jackson was transferred to the neonatal intensive care unit (ICU) with positive ventilator support. Following Dr. Zepeda's delivery of Jackson and the placenta, but before Jackson's transfer to the neonatal ICU, Dr. Klein entered the operating room. Observing the situation, Dr. Klein reportedly asked Dr. Zepeda to finish the case on his own, but Dr. Zepeda "told him to scrub in." Dr. Klein was noted to have entered the operative field at 7:55 p.m., at which time he observed "the uterus was closed in the first layer," which would be the first step in the procedure after delivery of the placenta, and he proceeded to complete the operation. According to his operative report, Dr. Klein provided, inter alia, the following services incident to the caesarean section: . . . UPON ENTERING THE OPERATIVE FIELD THE UTERUS WAS [observed to have been] CLOSED IN THE FIRST LAYER AND I USED NUMBER 0 CHROMIC TO CLOSE THE SECOND LAYER. IT WAS VERY DIFFICULT TO FIND THE BLADDER FLAP WHICH WAS NOT CREATED UPON ENTRY TO THE UTERUS. TWO VIALS OF METHYLENE BLUE WERE INJECTED INTRAVENOUS BY THE ANESTHESIOLOGIST. APPROXIMATELY TEN MINUTES LATER METHYLENE BLUE DYE WAS NOTED IN THE FOLEY BAG. UPON CLOSURE OF THE UTERUS THE OVARIES AND TUBES WERE FOUND TO BE WITHIN NORMAL LIMITS. THE PERITONEUM WAS NOT CLOSED BUT APPROXIMATED. THE MUSCLE WAS CLOSED IN THREE SEGMENTS CREATING NORMAL LOOKING MUSCLE, APPROXIMATING LONGITUDINAL AND VERTICAL INCISION OF THE MUSCLE WHICH WAS DONE UNDER EMERGENCY CONDITIONS BY THE SURGICAL RESIDENT. THERE WAS MODERATE AMOUNT OF BLEEDING, HOWEVER, THIS WAS CONTROLLED WITH THE BOVIE AND THREE PIECES OF SURGICEL WERE PLACED OVER THE MUSCLE ABOVE THE FASCIA. THE FASCIA THEN WAS CLOSED WITH NUMBER 0 VICRYL IN A CONTINUOUS INTERLOCKING FASHION IN TWO SEGMENTS. SUBCUTANEOUS TISSUE WAS IRRIGATED. HEMODYNAMICALLY THE PATIENT WAS UNDER GOOD CONTROL AND THERE WAS NO EVIDENCE OF LOW PRESSURE DURING THE SURGERY. SHE WAS GIVEN FLUIDS AND PITOCIN 20 UNITS AND FULL LITER OF HALF NORMAL SALINE. SHE WAS ALSO GIVEN TWO GRAMS OF MEFOXIN BY THE ANESTHESIOLOGIST THE SKIN WAS APPROXIMATED AND CLOSED WITH STAPLES. COVERED WITH TELFA, 4X4, STERILE TAPE. THE URINE OUTPUT WAS ADEQUATE MIXED WITH METHYLENE BLUE. ROUTINE POSTOP ORDERS WERE WRITTEN IN THE CHART. The services Dr. Klein provided Ms. George, albeit post-delivery, were an integral part of the caesarean section delivery procedure, and were unquestionably obstetrical services. 1/ Moreover, such services were provided, at least in part, while Jackson was being resuscitated in the immediate post- delivery period. 2/ 16 As heretofore noted, Jackson was transferred to the neonatal ICU, with positive ventilator support, at or about 8:00 p.m. Upon arrival in the ICU, Jackson was placed on a respirator ("Baby Bird" mechanical ventilator support), with initial settings being an IMV of 50, pressure of 22/4 and 100 percent oxygen. Jackson's first movement, which consisted of some flexion of the extremities, was noted at or about 30 minutes of life, and there was some associated twitching of the lower jaw, which was thought to represent seizure activity. At or about 10:30 p.m., June 1, 1992, Jackson was discharged from Memorial Hospital West and transported to the neonatal ICU at Hollywood Memorial East. At the time he was on stable ventilator settings, and his seizures were under control with phenobarbital. Diagnosis on discharge was perinatal asphyxia secondary to prolapsed cord, and seizure disorder. Jackson remained at Memorial Hospital until discharged on June 23, 1992. At the time, examination revealed "slight increased tone, intermittent arching of back and retracting of head, cortical thumbs bilaterally with excessive fisting, brisk DTR's bilaterally, moro present, . . . and oral thrush." An MRI of June 6, 1992, "showed abnormal brain signal in each parietal lobe and decreased white matter signal in the basal gaglion, brain stem, mid brain and cerebellar hemispheres, possible watershed ischemia." Following maturation, neurologic examination revealed evidence of four limb spasticity with double hemiparesis, marked expressive language and motor delay. Severe swallowing and sucking difficulties necessitated gastrostomy placement.
Findings Of Fact Riley Baughman was born on September 8, 2008, at South Seminole Hospital in Longwood, Florida. Riley weighed 3,425 grams at birth. NICA requested Donald Willis, M.D., to review the medical records of Riley. In a letter to NICA dated January 17, 2014, Dr. Willis stated the following based on his review of the medical records: I have reviewed the medical records for the above individual [Riley]. The mother, Stacy Baughman [sic] was a 34 year old having her first child. She was evaluated for advanced maternal age with negative screening tests and normal appearing fetus by ultrasound. Hypertension developed close to term. Labor was induced at 39 weeks due to hypertension. Cervical dilation was 3 cms on admission. Fetal heart rate monitor tracing during labor was not available for review. Vaginal delivery was apparently uncomplicated. Birth weight was 3,425 grams (7 lbs 8 oz’s). The baby was not depressed at birth. Apgar scores were 8/9. No resuscitation was required. The newborn hospital course was uncomplicated. Discharge from the hospital occurred on DOL 2. Subsequently, the child was diagnosed with cerebral palsy and mild developmental delay. Seizures were suspected at 4 years of age. EEG was negative for seizure activity. In summary, labor was induced at term for maternal hypertension. Spontaneous vaginal delivery was achieved without difficulty. The newborn was not depressed and had a normal hospital course with discharge home on DOL 2. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor, delivery or the immediate post delivery period. Michael Duchowny, M.D. (Dr. Duchowny), was requested by NICA to do an independent medical examination of Riley. Dr. Duchowny examined Riley on December 18, 2013. Based on his examination, Dr. Duchowny opined the following: Riley’s general, physical and neurological examinations are only abnormal with respect to both gross and fine motor coordination and hypotonia. She also has a speech articulation disturbance. In contrast, her cognitive skills are at age level and there are no true restrictions on her motor activity apart from her incoordination. Although the set of medical records is incomplete and I have not had an opportunity to formerly evaluate her MR imaging studies, Riley’s examination does not reveal either a permanent mental or motor impairment. I further believe that her impairments were acquired prenatally and unlikely to result from either mechanical injury or oxygen deprivation in the course of labor or delivery. For the above reasons, I do not believe that Riley should be considered for compensation in the NICA program. A review of the file does not show any contrary opinion that Petitioners’ claim is not compensable under Plan. The opinion of Dr. Willis that Riley did not sustain a mechanical injury or oxygen deprivation during labor, delivery, or resuscitation in the immediate post delivery period is credited. Dr. Duchowny’s opinion that Riley does not have either a permanent mental or motor impairment is credited. Respondent has represented that neither Petitioners nor Intervenors object to the granting of the motion.
Findings Of Fact Delaney Knill was born on April 10, 2009, at TMH in Tallahassee, Florida. She weighed 3,744 grams at birth. Delaney was delivered by Cesarean section by Dr. George. April Knill was diagnosed with uterine rupture, which resulted in a loss of oxygen to Delaney's brain during labor, delivery, and continuing into the immediate post delivery period. The oxygen deprivation was severe, resulting in brain death. Delaney was pronounced dead on April 14, 2009. At the time of Delaney's birth, Dr. George was employed by Azalea and was a participating physician as that term is defined in section 766.302. Dr. George and Azalea provided notice required by section 766.316 on August 28, 2008. TMH provided notice as required by section 766.316 on April 1, 2009.
Findings Of Fact Aurora Jones was born on September 2, 2010, at Osceola Regional Medical Center in Kissimmee, Florida. Aurora weighed 7 pounds and six ounces (3,345 grams) at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Aurora. In a medical report dated December 4, 2012, Dr. Willis opined: In summary, the mother was admitted in labor at 41 weeks. Vaginal delivery was accomplished without apparent difficulty. The baby was not depressed at birth. However, excessive oral sections were noted at time of delivery. A cranial nerve dysfunction was subsequently diagnosed, which resulted in poor swallowing and excess oral sections. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during delivery or the immediate post delivery period. NICA engaged Michael S. Duchowny, M.D., a Florida board-certified pediatric neurologist to review the medical records of Aurora, to conduct an examination of Aurora, and to render an opinion whether a birth-related neurological injury occurred. In a report dated March 27, 2013, Dr. Duchowny opined: The combined evidence from the record review and physical examination do not suggest that Aurora has a substantial mental impairment. Furthermore, there is no evidence of either mechanical injury or oxygen deprivation in the course of labor, delivery or the postdelivery period. Rather, it is more likely that Aurora has primary neuromuscular disorder, either congenital myopathy or dystrophy or a genetic disorder producing prominent motor involvement. She has never had a muscle biopsy which might be useful in ascertaining a diagnosis. I, therefore, do not recommend Aurora for inclusion in the NICA program. A review of the file does not show any contrary opinions, and Petitioner has no objection to the issuance of a summary final order finding that the injury is not compensable under the Plan. The opinions of Dr. Willis and Dr. Duchowny that Aurora did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period are credited. Dr. Duchowny's opinion that Aurora does not have a permanent and substantial mental impairment is credited.
