The Issue At issue is whether Skylar Evans, a minor, has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Skylar Evans (Skylar) is the natural son of petitioners, Reid Evans and Andrea M. Evans. He was born a live infant on January 7, 1994, at HCA Gulf Coast Hospital, a hospital located in Panama City, Bay County, Florida, and his birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Skylar was Mahmood Mohammad, 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. Skylar's neurologic condition Pertinent to the resolution of the subject claim, the proof demonstrates that Skylar currently exhibits no evidence of a gait disturbance or abnormalities of the upper extremities, and his movement dexterity is age appropriate. Indeed, in the opinion of Michael Duchowny, M.D., a pediatric neurologist, whose opinion is credited, Skylar is developmentally normal from a physical standpoint, and clearly does not suffer a substantial or permanent physical impairment.
The Issue At issue in the proceeding is whether Clayton Kenneth Hunter Cochran (Hunter), a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Jean Ann Cochran and Clayton Leon Cochran, are the parents and natural guardians of Clayton Kenneth Hunter Cochran (Hunter). Hunter was born a live infant on June 12, 1997, at Orlando Regional Health Care System, Inc., d/b/a South Seminole Hospital, a hospital located in Longwood, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Hunter was John V. Parker, M.D., who was at all times material hereto a "participating physician" in the Florida Birth- Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(2), Florida Statutes. Pertinent to this case, coverage is afforded under the Plan, when the claimants demonstrate, more likely than not, that the infant suffered an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, Hunter's mental and physical presentation are dispositive of the claim and it is unnecessary to address the cause or timing of any injury he may have suffered. To address Hunter's current physical and mental status, Petitioners offered the opinions of Michael S. Duchowny, M.D., a pediatric neurologist, as well as the results of Hunter's recent occupational therapy evaluations by the Easter Seal Program of Volusia and Flagler Counties. Notably, Dr. Duchowny examined Hunter on March 20, 2000, and reported the results of his neurological evaluation as follows: NEUROLOGIC EXAMINATION reveals Hunter to be alert and socially oriented. He tends toward non-fluency, but can communicate some thoughts in words. Hunter has a speech articulation defect. He can talk in phrases and short sentences. There is good central gaze fixation with conjugate following movements. The pupils are 3 mm and briskly reactive. There are no fundoscopic findings and no significant facial asymmetries. The tongue and palate move well without drooling. Motor examination reveals symmetric strength, bulk and tone. There are no adventitious movements, focal weakness or atrophy. The outstretched hands are markedly postured. His gait is stable and reasonably narrow based. The deep tendon reflexes are 2+ and symmetric. The plantar responses are downgoing. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. The sensory and cerebellar examinations are deferred. In SUMMARY, Hunter presents as a 2 1/2 year old boy with an expressive language delay and speech dysfluency. In contrast, he has mild fine motor incoordination, but his examination is otherwise non-focal. I have not as yet had an opportunity to review Hunter's records and will issue a final report once the review process is complete. Subsequently, Dr. Duchowny had an opportunity to review the medical records, and on April 11, 2000, reported his conclusions as follows: A review of medical records and the medical evaluation of Clayton "Hunter" Cochran leads me to believe that he does not have significant neurologic impairment. His neurologic examination reveals evidence of an expressive language delay and some fine motor incoordination. Both of these findings are developmentally based and indicate acquisition in utero, long before the onset of labor and delivery. These findings are mild and there certainly is no evidence of substantial mental or motor impairment. Furthermore, Hunter's developmental delay would be expected to improve over time and therefore is not permanent. Dr. Duchowny's deposition testimony and the results of recent occupational therapy evaluations by the Easter Seal Program are consistent with the opinions heretofore expressed by Dr. Duchowny. Consequently, it must be resolved that the proof failed to demonstrate that Hunter was "permanently and substantially mentally and physically impaired," as required for coverage under the Plan.
The Issue Whether Nathan Eric Powell 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 Nathan Eric Powell (Nathan) is the natural son of Paulette Schwab-Powell and Norman Powell. He was born a live infant on September 23, 1993, at North Florida Regional Medical Center, a hospital located in Gainesville, Alachua County, Florida, and his birth weight was in excess of 2,500 grams. The physicians providing obstetrical services during the birth of Nathan were Eduardo Marichal, M.D. and Gregory Bailey, M.D. NICA concedes that Eduardo Marichal, M.D., was a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. 2/ Nathan's birth and injury Paulette Schwab-Powell (Mrs. Powell) was admitted to North Florida Regional Medical Center at or about 6:30 p.m., September 22, 1993, in active labor. At the time, Mrs. Powell was slightly post-term, with an estimated date of delivery of September 11, 1993, and her prenatal course had been essentially uncomplicated. Mrs. Powell continued to have regular uterine contractions and at 10:25 p.m. her membranes were artificially ruptured, with clear fluid noted. Mrs. Powell continued progressing, and became completed dialated at 4:30 a.m., September 23, 1993. Thereafter, at or about 6:15 a.m. pushing was started, with assistance of a vacuum extractor. At 7:45 a.m., due to arrest of descent due to cephalopelvic disproportion, vacuum extraction was abandoned and the decision was made to proceed with a cesarean section. Mrs. Powell was taken to the operating room where a cesarean section was performed, and Nathan was delivered at 8:27 a.m. Upon delivery, Nathan required resuscitation, and his Apgar scores were 2 at one minute and 8 at five minutes. Within twenty-four hours of birth, Nathan developed intermittent tremors in the left leg, which were categorized as suspected seizures, and on September 24, 1993, he was transferred to the NICU II unit at Shands Teaching Hospital in Gainesville, Florida. Upon admission to Shands, Nathan evidenced a seizure and was placed on phenobarbital, later changed to Tegretol, to control his seizures. An EEG revealed seizures activity suggestive of diffuse cerebral dysfunction, and a CT scan revealed a bilateral subarachnoid hemorrhage, with fracture of the parietal bone. Nathan was initially hypertonic with poor suck, but showed gradual improvement until by September 28, 1993, he was able to take full feedings and was weaned off oxygen. On September 29, 1993, Nathan was discharged to the care of his parents, with maintenance Tegretol for seizure control. On November 24, 1993, Nathan was evaluated at the Pediatric Neurology Clinic. At the time, it was reported that Nathan continued on Tegretol and had not experienced any further seizures since those experienced immediately after his admission to Shands on September 24, 1993. A follow-up MRI was performed which showed resolving hemorrhage and no evidence of an ongoing fracture. On examination, Nathan evidenced good developmental milestones. The exam further revealed: . . . In terms of developmental milestones, Nathan has good head control for age. He has turned over one time. He recognizes mom's voice and smiles. On exam he has a height of 58.5 cm., weight of 5.48 kg., head circumference of 39.5 cm., temperature 37.2, pulse 164, respiratory rate of 28. On HEENT the patient's anterior fontanel is soft, flat, bilateral breath sounds are clear to auscultation. Heart rate is regular, no murmurs auscultated. Abdominal exam is benign for hepatosplenomegaly. No birth marks are detected. Specifically on neurologic the patient is awake, alert, easily rooting well. Cranial nerve exam reveals PERRLA, positive red reflex on funduscopic exam, tracking well. In terms of facial movement, there seems to be an asymmetry with a weekness on the left. It was difficult to assess forehead involvement as the baby neither cried nor smiled throughout the exam. It appears to effect [sic] his lower face as well as his left eyelid and mom adds that when he sleeps his left eye does not close spontaneously at times. Motor exam reveals normal tone. Reflexes were easy to elicit and approximately 5-10 beats of clonus was noted bilaterally with upgoing toes. Sensory is grossly intact. Cerebellar is appro- priate for age. As a consequence, it was concluded to continue Nathan on Tegretol, without further increase in dosage, and gradually wean him off the medicine as he gained weight, with the aim of discontinuing Tegretol by six months of age. On January 20, 1995, Nathan was evaluated by Michael Duchowny, M.D., at Miami Children's Hospital, in Miami, Dade County, Florida. Dr. Duchowny is board certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. On examination, Dr. Duchowny found and reported the following observations: GROWTH AND DEVELOPMENT: Nathan rolled over at 5 months, sat at 7 months and stood at 9 months, he walked at a year and is not yet toilet trained. PHYSICAL EXAMINATION: Reveals Nathan to be an alert, pleasant and cooperative infant. His weight is 24 lbs and height a 34 inches, his skin is warm and moist and no neurocutaneous stigmata, the head circumference measures 48.1 cm. which is in standard percentiles, neck is supple with out masses, thyromegaly or adenopathy and the cardiovascular, respiratory and abdominal examinations are normal. There are no digital, skeletal or palmar abnormalities. Nathan's NEUROLOGICAL EXAMINATION: Reveals him to be alert and cooperative, he maintains an age appropriate stream of attention and cooperative fully with the examination. He has a good level of curiosity. Nathan did not speak but babble quite melodically throughout the interview. Nathan maintain a good central gaze fixation and congenically follows quite well. There is blink to threat in both directions, the funduscopic examination are unremarkable the pubils [sic] are 4 ml and react briskly to direct and consensually presented light. There are no nasolabial asymmetries and the tongue and palate move well, the gag reflex is appropriate active. Motor examination reveals generalized diminution in muscle tone. Motor examination reveals generalized diminution in muscle tone. This is present in a symmetric fashion in all extremities and there is increase range of motion at all joints. I detected no evidence . . . of spasticity or hypotonia and Nathan additionally demonstrate full use of all limbs. He grasp for offered objects with either hand and transferred readily. There is good fine motor movement and thumb finger opposition bilaterally. The deep tendon reflexes were slightly brisk being 2-3+ with both plantar responses being down ongoing. Station and gait revealed the stability in normal stands but a slight truncal ataxia while walking, however, Nathan turn crisply and did not fall. Sensory examination was deferred. Neurovascular examination reveal cervical cranial and ocular bruit and no temperature or pulse asymmetries. In SUMMARY, Nathan neurological examination in detail reveals only mild delays in motor and speech function. I regard the lateralized motor syndrome to be fully resolved. The foregoing findings of Dr. Duchowny are consistent with the other evidence of record which reveals that the consequences of the injury Nathan suffered at birth have, over time, continued to improve. Consequently, the opinion of Dr. Duchowny that Nathan does not suffer a permanent and substantial physical impairment or a permanent and substantial mental impairment is credited.
Findings Of Fact Gianna was born on August 20, 2017, at Traditions Hospital, located in St. Lucie County, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Gianna. In a medical report dated February 29, 2020, Dr. Willis summarized his findings and opined, in pertinent part, as follows: In summary, labor at term was complicated by an abnormal FHR tracing that required Cesarean section delivery. Umbilical cord blood gas pH of 7.04 would seem consistent [with] the FHR pattern prior to delivery. Although there was some acidosis at birth, cord pH and base excess were not substantial enough to likely result in significant brain injury. This would be consistent with Apgar scores of 9/9, suggesting no significant birth related depression or hypoxia. Head enlargement was noted at birth and head ultrasound within two hours of birth showed dilated ventricles, consistent with hydrocephaly. These findings were confirmed by subsequent MRI. It is most likely the brain injury occurred at some time in the prenatal period and not birth related. As stated above, the baby’s brain injury does not appear to be the result of oxygen deprivation or trauma during the birth process or immediate post delivery period. NICA retained Luis E. Bello-Espinosa, M.D. (Dr. Bello), a medical expert specializing in pediatric neurology, to examine Gianna and to review her medical records. Dr. Bello examined Gianna on February 25, 2020. In a medical report dated February 25, 2020, Dr. Bello summarized his examination of Gianna and opined, in pertinent part, as follows: Gianna is a 2 1/2 year old girl born at term via C- section noticed at immediately after birth to have severe megalencephaly, and clinical signs of severe increased intracranial pressure. An urgent head ultrasound demonstrated bilateral ventriculomegaly, right intraventricular hemorrhage, and suspicion of agenesis of the corpus callosum. MRI of brain at Miami Children’s hospital done on day 1 of life showed severe enlargement of the third and lateral ventricles. Transependymal flow of cerebrospinal fluid was seen around the lateral ventricles being worse in the left cerebral hemisphere and extending to a greater degree in the left occipital and parietal lobes. Extensive intraventicular hemorrhage is seen with large clot identified in the right later ventricle. Her subsequent course required 7-VP shunt related surgeries at Miami Children’s hospital but since she was discharged at 7-month of age she had not had any seizures [or] other neurological related events. Gianna’s neurological examination today revealed she still has enlarged head, as well as left sided hemiparesis with upper motor neuron signs, in addition to cognitive dysfunction and stereotypic behavior as seen in children with autism. She has a VP shunt in place, but no longer evidence of decompensated intracranial pressure. * * * In reviewing all the available documents, the evolution of her symptoms, the birth findings, the acute brain ultrasound and acute brain MRI changes, it is evident that Gianna clinical findings are the result of a prenatal condition, are not due to a birth injury, and not due to oxygen deprivation of the brain at birth. * * * Considering the clinical presentation, I do feel that there is no evidence to recommend Gianna is included in 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. Willis that it is unlikely that any significant oxygen deprivation occurred prior to the birth of Gianna. Dr. Willis’s opinion is credited. There are no expert opinions filed that are contrary to Dr. Bello’s opinion that Gianna should not be considered for inclusion in the NICA program. Dr. Bello’s opinion is credited. Petitioner, despite attending the April 23, 2020, telephonic status conference, and agreeing to the April 29, 2020, Joint Response to Scheduling Order, which states, in part, that “NICA is of the opinion that the issues can be resolved by Motion for Summary Final Order, which it intends to file in the near future[,]” has failed to respond to the Motion or the undersigned’s Order to Show Cause.
The Issue Whether Brittany C. Story 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 Brittany C. Story is the natural daughter of Constella Story. She was born on January 10, 1990, at Broward General Medical Center, Broward County, Florida, and her birth weight was in excess of 2500 grams. Brittany was delivered by George Edouard, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan. The claim for benefits under the Florida Birth- Related Neurological Injury Compensation Plan filed on behalf of Brittany contends that she "suffered a neurological impairment to wit: Erb's Palsy to the left upper extremity at the time of birth." To support such contention, petitioner offered the testimony of Melvin Grossman, M.D., a board certified neurologist, who opined that Brittany suffered a left brachial plexus palsy, an Erb's palsy, and that the injury to the left brachial plexus that resulted in such palsy most likely occurred during the course of delivery. It was, however, Dr. Grossman's opinion that Brittany's mental functioning was age appropriate and not substantially impaired, and that the physical impairment she suffers (left Erb's palsy) is the consequence of an injury to her left brachial plexus, which is not a brain or spinal cord injury. Juxtaposed with the proof offered on behalf of petitioner, respondent offered the testimony of Michael Duchowny, M.D., who is board certified in pediatrics, neurology with special emphasis in child neurology, and clinical neurophysiology. It was Dr. Duchowny's opinion that the condition from which Brittany suffers was not caused in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital but, rather, was a consequence of congenital deformity. Dr. Duchowny concurs, however, that Brittany is not substantially mentally impaired, and that a brachial plexus injury, which can result in an Erb's palsy, is not an injury to the brain or spinal cord. Here, it is not necessary to resolve the conflict in the testimony, as to the cause of Brittany's injury, since the proof is uncontroverted that a brachial plexus injury, the cause of Erb's palsy, is not a brain or spinal cord injury. Moreover, it is uncontroverted that Brittany is not substantially mentally impaired. Under such circumstances, the proof fails to demonstrate that Brittany suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery or resuscitation in the immediate post- delivery period, or that the injury Brittany did suffer rendered her permanently and substantially mentally and physically impaired.
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.
