Findings Of Fact Elizabeth was born on November 26, 2011, at North Shore Medical Center. The subject Petition was filed on June 21, 2018, which is more than five years after Elizabeth’s birth. Dr. Mark Spence was the physician providing obstetric services and who was present at Elizabeth’s birth. Attached to Respondent’s Motion is the affidavit of Respondent’s Records Custodian, Tim Daughtry. Mr. Daughtry attests in his affidavit that, in 2011, Dr. Spence 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. Spence is otherwise exempt from payment. To the contrary, Dr. Spence 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. Spence was not a participating physician in the Plan at the time of Elizabeth’s birth.
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.
The Issue At issue is whether Brianna Victoria Barbalace, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact As observed in the Preliminary Statement, neither Petitioner nor anyone on her behalf appeared at hearing, and no proof was offered to support her claim. Contrasted with the dearth of proof offered by Petitioner, NICA offered the testimony of Donald C. Willis, M.D., a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine. NICA also offered medical records related to Brianna's birth, immediate postnatal course, and subsequent development. It was Dr. Willis' opinion that the medical records related to Brianna's birth and immediate postnatal course failed to support a conclusion that Brianna suffered an injury to her brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or the immediate postdelivery period. In so concluding, Dr. Willis noted that the fetal monitoring strips failed to reveal any evidence of fetal distress during labor; a spontaneous vaginal delivery was done without difficulty; Apgar scores were normal (8 and 9, at one and five minutes, respectively); resuscitation was not required; the birth records revealed no evidence of trauma; and Brianna's stay in the newborn nursery was uncomplicated. The opinions of Dr. Willis are rationally based, supported by the record, and credible. Consequently, it must be resolved that, more likely than not, Brianna's current neurologic condition (which reveals evidence of developmental delay and hypotonia), is unrelated to events that occurred during the course of birth, and it is unnecessary to resolve whether Brianna is permanently and substantially mentally and physically impaired.
Findings Of Fact Jinger-Anne Nobles was born on February 14, 2011, at Leesburg Regional Medical Center located in Leesburg, Florida. Jinger-Anne weighed in excess of 2,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Jinger-Anne. In a medical report dated July 14, 2014, Dr. Willis opined as follows: I have reviewed the medical records for the above individual. The mother, Katherine Johnson, was a 26 year old G4 P2 with no significant prenatal problems. The mother presented to the hospital in early labor at 38 weeks gestational age. Antibiotics were given during labor for a positive vaginal culture for Group B Streptococcus. Amniotic membranes were ruptured with clear fluid. Fetal heart rate (FHR) monitor tracing during labor was reviewed. Baseline heart rate was 135 bpm with normal variability. There was no fetal distress during labor. Spontaneous vaginal delivery was uncomplicated. Birth weight was 2,890 grams. Apgar scores were 8/9. The newborn was not depressed. No resuscitation was required. The baby was taken to the nursery and stated to be in stable condition. Newborn hospital course was uncomplicated. The baby was re-admitted to the hospital twice during the first two weeks after birth. The first was two days after newborn hospital discharge. This admission was for elevated bilirubin level. The second was for choking and vomiting with possible cyanosis. No etiology was discovered and the baby was discharged home. In summary, the baby was delivered at term by spontaneous and uncomplicated vaginal birth. There was no fetal distress during labor. The newborn was not depressed and had a normal hospital course. 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. Dr. Willis reaffirmed his opinion in an affidavit dated December 29, 2014. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Jinger-Anne and to review her medical records. Dr. Duchowny examined Jinger-Anne on October 1, 2014. In an affidavit dated December 22, 2014, regarding his independent medical examination of Jinger-Anne, Dr. Duchowny opined as follows: In summary, Jinger-Anne’s examination reveals findings consistent with a substantial mental and motor impairment. She evidences spastic quadriparesis, microcephaly, cortical visual impairment, optic nerve atrophy, no evidence of receptive or expressive language development, and generalized hyperreflexia. I have had an opportunity to review medical records sent on May 21, 2014. They document the pre and perinatal history and provide evidence of hyperbilirubinemia, but only to a level of 15. Jinger-Anne’s mother had presented to the hospital in early labor and had artificial rupture of membranes. Her mother had a postpartum tubal ligation. Jinger-Anne’s Apgar scores were 8 and 9 at 1 and 5 minutes and her birth weight was 6 pounds 6 ounces. Cord blood gases were not drawn and apart from hyperbilirubinemia, her postnatal course was uncomplicated. Her readmission on February 18 documented a rapid rise in bilirubin, reaching a peak level of 15.4. She was also diagnosed with an acute life-threatening event which after evaluation was believed to be caused by gastro esophageal reflux. I have not yet received either of the MRI scans. Although Jinger-Anne’s course would be extremely atypical of kernicterus as most affected individuals have normal cognitive status and present with findings consistent with athetotic cerebral palsy, I believe it is prudent to review the MR images in this case before making a final recommendation with regard to consideration for acceptance into the NICA program. ADDENDUM: I have reviewed the brain MR images obtained on July 8, 2011. The study reveals no significant abnormalities. Of note, the basal ganglia and thalami are normal. The study findings support my initial impression that Jinger-Anne’s neurological problems did not result from hyperbilirubinemia, mechanical injury or oxygen deprivation acquired in the course of labor, delivery or the immediate post- delivery period. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was 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. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that although Jinger-Anne’s examination reveals findings consistent with a substantial mental and motor impairment, her neurological problems did not result from hyperbilirubinemia, mechanical injury or oxygen deprivation acquired in the course of labor, delivery or the immediate post-delivery period. Dr. Duchowny’s opinion is credited.
Findings Of Fact Princess was born on April 27, 2018, at St. Mary’s Medical Center in West Palm Beach, Florida. Princess was a single gestation and her weight at birth exceeded 2500 grams. As set forth in greater detail below, the unrefuted evidence establishes that Princess did not sustain a “birth-related neurological injury,” as defined by section 766.302(2). Donald Willis, M.D., a board certified obstetrician specializing in maternal-fetal medicine, was retained by Respondent to review the pertinent medical records of Ms. Saulsberry and Princess and opine as to whether Princess sustained an injury to her brain or spinal cord caused by oxygen deprivation or mechanical injury that occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital. On November 22, 2019, Dr. Willis authored a report that included his findings and opinions. The report provides, in pertinent part, as follows: I have reviewed the medical records, pages 1-1,361, regarding [Princess Smith]. The mother was a 30 year old G4 P3003 with “scant” prenatal care. Medical history was positive [f]or Hypertension, Gestational Diabetes and a drug screen positive for THC. Two prior deliveries were by Cesarean section. She presented to the hospital at 38 6/7 weeks gestational age with uterine contractions and bleeding. Cervical dilation was 3 cm at 70% effaced. Placenta abruption was suspected and repeat Cesarean section was done. Operative not [sic] describes presence of blood clots in the uterine cavity, consistent with placental abruption. Birth weight was 3,095 grams. The newborn was not depressed. Apgar scores were 9/9. No resuscitation was required. Newborn hospital course was benign. The baby was breastfeeding shortly after birth. The child was in Foster Care at some point after birth. Physical Therapy appointments were made for uncoordinated movement, avoiding movement on the left side. At 7-months of age, Developmental delay was noted. In summary, the mother presented at term with placental abruption in labor. Repeat Cesarean section resulted in delivery of a newborn with Apgar scores of 9/9. No resuscitation was required after birth. Newborn hospital course was benign. There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery or the immediate post-delivery period. In his affidavit dated October 2, 2020, Dr. Willis affirmed that the statements and opinions contained in the above-quoted report were true and correct and all within a reasonable degree of medical probability. The undisputed findings and opinions of Dr. Willis are credited. The undersigned finds that Princess did not sustain 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 rendered her permanently and substantially mentally and physically impaired.
Findings Of Fact The Petition named Dr. Castellon as the physician providing obstetric services at Jayden's birth on October 2, 2010. Attached to the motion is an affidavit of NICA's custodian of records, Tim Daughtry, attesting to the following, which has not been refuted: One of my official duties as Custodian of Records is to maintain NICA's official records relative to the status of physicians as participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan who have timely paid the Five Thousand Dollar ($5,000) assessment prescribed in Section 766.314(4)(c), Florida Statutes, and the status of physicians who may be exempt from payment of the Five Thousand Dollar ($5,000) assessment pursuant to Section 766.314(4)(c), Florida Statutes. I maintain NICA's official records with respect to the payment of the Two Hundred Fifty Dollar ($250.00) assessment required by Section 766.314(4)(b)1., Florida Statutes, by all non-participating, non- exempt physicians. * * * As payments of the requisite assessments are received, NICA compiles data in the "NICA CARES" database for each physician. The "NICA CARES physician payment history/report" attached hereto for Dr. Celestino Castellon indicates that in the year 2010, the year in which Dr. Castellon participated in the delivery of Jayden Dewayne Norris, as indicated in the Petitioners' Petition for Benefits, Dr. Castellon did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth-Related Neurological Injury Compensation Plan. Further, it is NICA's policy that if a physician falls within the exemption from payment of the Five Thousand Dollar ($5,000) assessment due to their status as a resident physician, assistant resident physician or intern as provided in Section 766.314(4)(c), Florida Statutes, annual documentation as to such exempt status is required to be provided to NICA. NICA has no records with respect to Dr. Castellon in relation to an exempt status for the year 2010. To the contrary, the attached "NICA CARES physician payment history/report" shows that in 2010, Dr. Castellon paid the Two Hundred and Fifty Dollar ($250) assessment required by Section 766.314(4)(b)1., Florida Statutes, for non- participating, non-exempt physicians. The NICA CARES statement attached to the affidavit of Mr. Daughtry supports the representations made in the affidavit. Petitioners have not offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. Castellon was not a participating physician in the Plan at the time of Jayden's birth. In her response to the Order to Show Cause, Ms. Louis did not dispute that Dr. Castellon did not participate in the Plan in 2010, but argued that his non-participating status should not be a bar to finding that the claim is compensable. Dr. Castellon was not a participating physician at the time of Jayden's birth on October 2, 2010.
Findings Of Fact Christopher Charles Campbell (Christopher) was the natural son of Barbara Denard and David Campbell. He was born a live infant on January 21, 1994, 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 Christopher were two residents of Jackson Memorial Hospital who were directly supervised by Salih Yasin, M.D. Dr. Yasin was, at all times material hereto, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. During the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital, Christopher received an injury to the brain caused by oxygen deprivation and mechanical injury which rendered him permanently and substantially mentally and physically impaired. Subsequently, on February 3, 1994, while still a resident at Jackson Memorial Hospital, Christopher died. The immediate cause of death was the severe perinatal asphyxia he had suffered. Given that Christopher has been shown to have suffered a "birth-related neurological injury," and that obstetrical services were delivered by a "participating physician" at birth, petitioners are entitled to an award of compensation pursuant to Section 766.31, Florida Statutes. In this regard, the parties have stipulated to a lump sum award of Seventy-six thousand dollars ($76,000.00), of which Barbara Denard will receive Fifty- seven thousand dollars ($57,000.00) and David Campbell will receive the sum of Nineteen thousand dollars ($19,000.00), and reasonable expenses incurred in connection with the filing of the claim, including reasonable attorney's fees, in the sum of Ten thousand dollars ($10,000.00). Such sums are reasonable and are hereby approved.
Findings Of Fact Ryan was born on September 4, 2015, at Central Florida Regional Hospital, in Sanford, Florida. The physician providing obstetric services and who was present at Ryan’s birth was Dr. David Teitelbaum. At the time of Ryan’s birth, Dr. Teitelbaum was a NICA participating physician. Respondent retained Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, to review Ryan’s medical records and opine as to whether there was an injury to his brain or spinal cord that occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period due to oxygen deprivation or mechanical injury. In a report dated April 5, 2018, Dr. Willis concluded the following: In summary, labor was complicated by a non- reassuring FHR pattern requiring emergency Cesarean section delivery. The baby was depressed at birth with Apgar scores of 2/2/4. Resuscitation included chest compressions for 2 minutes, intubation and intravenous fluid bolus. Cooling protocol was initiated. The newborn hospital course was complicated by multi-system organ failures, including respiratory distress, hypotension, coagulopathy and elevated liver function studies. Despite the clinical findings of birth related hypoxia, only the initial EEG showed mild encephalopathy, which normalized. No abnormalities were reported on brain MRI’s after birth and at 6 months of age. There was a clinically apparent obstetrical event that resulted in oxygen deprivation during labor, delivery and continuing into the immediate post-delivery period. The oxygen deprivation would have been expected to result in some degree of brain injury. Attached to Respondent’s Unopposed Motion for Summary Final Order is the affidavit of Dr. Willis, dated June 27, 2018. In his affidavit, Dr. Willis opines, based on his education, training, and experience, and within a reasonable degree of medical probability, that there was a clinically apparent obstetrical event that resulted in oxygen deprivation during labor, delivery, and continuing into the post-delivery period. Respondent also retained Laufey Y. Sigurdardottir, M.D., a pediatric neurologist, to review Ryan’s medical records, conduct an Independent Medical Examination (IME), and opine as to whether he suffers from a permanent and substantial mental and physical impairment as a result of a birth-related neurological injury. Dr. Sigurdardottir reviewed the available medical records, obtained a full historical account from Ryan’s father and family members, and conducted an IME of Ryan on November 22, 2017. Dr. Sigurdardottir’s IME report provides, in part, as follows: Summary: Patient is a 2-year-old male with history of being born via an emergency C- section after normal uncomplicated pregnancy. Apgar scores were low: 2 whole body cooling was performed at Florida Hospital at 1 minute, 2 at 5 minutes, 4 at 10 minutes and 6 at 15 minutes. And patient had neurologic sequelae including a cognitive impairment autistic features. Despite having early motor delays, he is currently ambulatory. Result as to question 1: Ryan is found to have substantial delays in mental abilities but mild delays in motor abilities at this time. Result as to question 2: 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. Result as to question 3: The prognosis for full motor recovery is good but mental recovery is unlikely and need for vast therapies to improve his language development and decrease autistic features is needed. His life expectancy is excellent. In light of evidence presented, I believe Ryan does not fulfill criteria of both substantial and mental and physical impairments at this time. I do not feel that Ryan should be included in the NICA program for that reason. Respondent’s Unopposed Motion for Summary Final Order also relies upon the attached affidavit of Dr. Sigurdardottir, dated June 25, 2018. In her affidavit, she opines, based upon her education, training and experience, and to a reasonable degree of medical probability, that Ryan “has substantial delays in mental abilities,” however, “he has only mild delays in motor abilities.” A review of the file reveals no contrary evidence was presented to refute the findings and opinions of Dr. Willis and Dr. Sigurdardottir. Their unrefuted opinions are credited.
