Findings Of Fact Asher was born on April 20, 2017, at Memorial Hospital located in Pembroke Pines, Florida. Upon receiving the Petition, NICA retained Michael S. Duchowny, M.D., a pediatric neurologist, to review Asher’s case. NICA sought to obtain an opinion whether there was an injury to Asher’s brain or spinal cord at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period, and whether that injury rendered Asher permanently and substantially mentally and physically impaired. Dr. Duchowny reviewed Asher’s medical records, as well as examined Asher on October 10, 2018. Dr. Duchowny opined, within a reasonable degree of medical probability: [I]t is my opinion that ASHER’s neurological examination reveals neurological findings consistent with a mild motor impairment primarily affecting his right upper extremity. In contrast, Asher has preserved cognitive function and social awareness. He evidences slightly decreased muscle tone in the right distal upper and lower extremities and slightly increased deep tendon reflexes. As such, it is my opinion that despite ASHER’s abnormal MR imaging studies at birth which document prominent hemorrhagic infarction in territories supplied by the left middle and posterior cerebral arteries with a smaller region of right middle cerebral artery infarction, and bilateral parieto-occipital areas of increased signal, he has recovered to a point where he no longer evidences either substantive mental or physical impairment. Based upon my evaluation and record review, as ASHER is developing normally, I am not recommending him for acceptance into the NICA program. A review of the records filed in this matter reveals no contrary evidence to dispute the findings and opinion of Dr. Duchowny. His opinion is credible and persuasive. Based on the opinion and conclusion of Dr. Duchowny, NICA determined that Petitioners’ claim was not compensable. NICA subsequently filed the Motion for Partial Summary Final Order asserting that Asher has not suffered a “birth-related neurological injury” as defined by section 766.302(2). Petitioners do not oppose NICA’s motion.
The Issue At issue is whether Chandler Jachimiak, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Charil Rodriguez is the natural mother and guardian of Chandler Jachimiak (Chandler), a minor. Chandler was born a live infant on May 26, 1999, at Baptist Hospital of Miami (Baptist Hospital), a hospital located in Miami, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Chandler's birth was Pablo Delgado, 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 for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. In this case, Petitioner is of the view that Chandler suffered a "birth-related neurological injury," as defined by the Plan. In contrast, NICA is of the view that Chandler did not suffer a "birth-related neurological injury" since the proof failed to support the conclusion that, more likely than not, Chandler's brain injury was "caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital." § 766.302(2), Fla. Stat. Chandler's birth and postnatal course at Baptist Hospital The medical records related to Chandler's birth reveal that at or about 10:25 a.m., May 25, 1999, Ms. Rodriguez, with an estimated delivery date of May 22, 1999, and the fetus at 40+ weeks gestation, was admitted to Baptist Hospital, for induction of labor. At the time, Ms. Rodriguez's temperature was 98.5°F, her membranes were intact, and vaginal examination revealed the cervix at 1 centimeter dilation, effacement at 50 percent, and the fetus at station -3. Following admission, Petocin induction was started, but was discontinued at 9:30 p.m., to allow Ms. Rodriguez to rest overnight. Then, at 8:20 a.m., May 26, 1999, Ms. Rodriguez's membranes were artificially ruptured, with thick meconium noted, and at 8:30 a.m., Petocin induction resumed. Ms. Rodriguez's labor progressed slowly, with complete dilation noted at 8:40 p.m., and Chandler was delivered at 10:10 p.m. Of note, but for a slight increase in heart rate (tachycardia), continuous fetal monitoring was reassuring. Also of note, Ms. Rodriguez's temperature was 101.2°F, at 7:15 p.m., for which she received penicillin, and at delivery her temperature was 99.4°F. At delivery, Chandler was depressed, without respiratory effort and a heart rate in the 60-beat-per-minute range, and he was immediately suctioned, with no evidence of meconium below the cords; mask-bagged for a few seconds, without evidence of respiratory effort; and orally intubated without difficulty, and hand bagged with good response at about one minute. Notably, Chandler's arterial blood gases were within the normal range, and his Apgar scores were recorded as 4, 6, and 9, at one, five, and ten minutes, respectively.2 At 10:28 p.m., following stabilization, Chandler was transported to the special care nursery (SCN) for further observation and management. There, on admission, Chandler's temperature was 100.4°F, and physical examination noted mild respiratory distress, but was otherwise unrevealing. Admitting impressions were newborn depression, suspected meconium aspiration, suspected sepsis,3 and suspected pneumothorax (right). Plan included sepsis workup, antibiotics pending culture results, oxyhood 100 percent for nitrogen washout and chest x-ray. Chandler remained hospitalized until June 26, 1999, when he was discharged to his mother's care. In the interim, Chandler received respiratory support for 2-3 days; antibiotics for suspected sepsis; support due to poor feeding and failure to thrive; and Phenobartital for 10 days, following the onset of seizure activity. Notably, a head ultrasound at 8:33 p.m., May 27, 1999, about two hours after the onset of seizure activity, revealed the following: Bilateral lateral ventricles are small in size, but are felt to be within the normal range. There is no evidence of subependymal or intraventricular hemorrhage. The ventricles are normal in configuration. No periventricular leukomalacia is seen. There is no mass effect of midline shift. There is limited evaluation of the midline structures on this examination. The posterior fossa is intact. IMPRESSION: No evidence of intracranial hemorrhage. A follow-up CT of the brain on May 31, 1999, revealed: CT brain reveals diffuse lucency throughout the hemisphere bilaterally. The basoganglia and cerebellum are somewhat spared. The possibility that this [is] secondary to diffuse ischemic process is difficult to exclude. No evidence of hemorrhage is identified. There is soft tissue swelling over the left parietal and occipital scalp. IMPRESSION: Diffuse lucency throughout the white matter in the hemispheres, bilaterally, suggestive of a edema. This may be secondary to diffuse ischemia. Cerebellar hemispheres and basoganglia are somewhat spared. No evidence of hemorrhage is identified. Follow-up is suggested. And, a brain MRI on June 6, 1999, was read as follows: Magnetic resonance imaging of the brain is compared with prior CT scan dated 05/31/99 Again noted is the presence of extensive abnormalities throughout the white matter in the supratentorial compartment. Now noted is prominent cortical sulci consistent with probable moderate volume loss which was not seen on the previous study. The sulci may have been effaced on the prior examination secondary to brain swelling. There is scalp soft tissue swelling in the right posterofrontal parietal convexity. There is no evidence of mass or hemorrhage. IMPRESSION: Extensive abnormalities throughout the supratentorium and white matter consistent with increased brain water without evidence of associated mass effect. Prominent cortical sulci are noted which may be secondary to loss of volume. There is no evidence of hemorrhage. Serial electroencephalograms (EEGs) on May 27, May 29, June 3, and June 8, 1999, were abnormal and consistent with a mild diffuse encephalopathy and a lowered seizure threshold. Chandler's subsequent development The medical records related to Chandler's subsequent development reflect that on August 6, 1999, Chandler presented at Miami Children's Hospital for a follow-up neurology examination. At the time, a CT scan of the brain revealed "extensive bilateral cerebral encephalomalacia with associated brain atrophy," and "bilateral chronic subdural hematomas, more pronounced on the left." Chandler was admitted for further evaluation, and a brain MRI of August 12, 1999, revealed: There are bilateral chronic subdural hematomas with the left much larger than the right. The left subdural collection extends into the interhemispheric fissure. The findings could be consistent with nonaccidental trauma, and clinical correlation is needed in this regard. There is bilateral cerebral atrophy and multifocal cystic encephalomalacia. There is mass effect upon the left cerebral hemisphere, related to the subdural collection but there is no midline shift. There is generalized ventriculomegaly that appears predominantly related to central atrophy. Chandler was discharged by Miami Children's Hospital on August 30, 1999. Chandler's hospital course was briefly described in his discharge summary, as follows: HOSPITAL COURSE: An ENT consult was placed. A bone survey was shown to be normal. Because of the persistent inspiratory and expiratory stridor, bronchoscopy was done by Pulmonary which showed a laryngomalacia. Tracheostomy tube was placed and the patient was transferred to Pediatric Intensive Care Unit for observation. Post operation day #6, the patient was transferred back from Pediatric Intensive Care Unit to 3 South. A chest xray done on 8/25 showed no significant change in the lung fields as compared to previous xray The patient was also followed by Neurology. The magnetic resonance scan done on 8/12 showed a mass effect of the left cerebral hemisphere with mucocystic encephalomalacia or chronic subarachnoid hemorrhage. Neurology's plan was to repeat CT prior to discharge home . . . . CT scan was done on 8/29/99 which was read as brain atrophy encephalomalacia with decrease in subdural hematoma. As compared to previous film, there was no brain edema . . . . On April 21, 2004, following the filing of the claim in this case, Chandler was examined by Michael Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital. Dr. Duchowny reported the results of his neurology evaluation, as follows: I evaluated Chandler Jachimiak on April 21, 2004. The evaluation was conducted in my office at Miami Children's Hospital with history provided by Chandler's mother.[4] History according to Ms. Jachimiak. The mother began by explaining that Chandler "was in the birth canal too long" when he was born and "had a lack oxygen in his blood." He was delivered at term at Baptist Hospital and remained in the newborn nursery for approximately one month due to poor feeding and failure to thrive. He was discharged in stable condition, but was admitted to Miami Children's Hospital three weeks later when a CT scan of the brain revealed a fluid collection over the convexities. The purpose of admission was to rule out possible child abuse, but Chandler ultimately remained hospitalized for approximately six weeks because of chronic feeding and breathing difficulties. He eventually had a tracheostomy, gastrostomy and Nissan fundoplication performed. The tracheostomy and g-tube were both removed last summer. Apparently, a diagnosis of Pierre-Robin Syndrome was entertained, but was never formally diagnosed. Chandler's growth and development have subsequently been quite slow. He has been followed by Dr. Oscar Papazian and was initially diagnosed with cerebral palsy and spasticity. He received Botox injections to the lower extremities until two years ago. His mother now feels that "he doesn't need it." Chandler is still not speaking. He has no verbal communication. He receives physical, speech and occupational therapy at the Neva King Cooper School. Chandler's social skills and behavior is another area of difficulty. He does not play well with other children and tends to be a loner. He likes playing with his toys. He is easily frustrated and will bite himself or other children. He tends to be "in his own little world" and his mother has noted poor eye contact. He frequently claps his hands repetitively and enjoys listening to music. Chandler's health is otherwise good. He has never had seizures and is on no intercurrent medications. He is scheduled for strabismus surgery in early May. His vision is otherwise intact. His hearing has been screened and is normal. Chandler sleeps through the night and his appetite has been stable, although he continues to be slow to gain weight. * * * FAMILY HISTORY: Chandler's father is absent from the family. His mother is 33 and is healthy. Multiple maternal brothers have learning disabilities and a maternal grandmother suffers from migraines. An 8- year-old sister is healthy. There are no family members with degenerative illnesses, mental retardation, epilepsy or cerebral palsy. PHYSICAL EXAMINATION reveals a small, but appropriately proportioned 4-year-old boy. The skin is warm and moist without cutaneous stigmata. The hair is brown and of normal texture. His weight is 32 pounds and his height is 40 inches. Head circumference measures 44.1 cm, which is well below the second percentile for age. There are no cranial or facial anomalies or asymmetries and the fontanels are closed. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are unremarkable. The healed tracheostomy and gastrostomy sights are noted. Peripheral pulses are 2+ and symmetric. NEUROLOGIC EXAMINATION was difficult to complete because of oppositional and defiant behavior. Chandler was restrained by his mother and intermittently sucked on his left thumb. Frequent tongue protrusions were noted and he drooled intermittently. He did not speak in words at any time during the examination. He could not name body parts or colors. He could not follow simple commands. He frequently waved his hands and clapped them. The two upper incisors are absent due to trauma. Cranial nerve examination reveals bilateral blink to threat. A funduscopic examination could not be performed. The pupils are 3 mm and react briskly to direct and consensually presented light. The extraocular movements demonstrate alternating exotropia. There are no facial asymmetries. The tongue movements are poorly coordinated. The uvula is midline. Motor examination reveals a generalized static hypotonia with a dynamic increase in tone. There is full range of motion in all joints. There are no adventitious movements and no focal weakness or atrophy. The deep tendon reflexes are slightly brisk and 2+ to 3+ bilaterally, but plantar responses are downgoing. Sensory examination is intact to withdrawal of all extremities to stimulation. Coordination could not be performed. The neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Chandler's neurologic examination does not reveal focal or lateralizing features, but does demonstrate significant delays in multiple domains consistent with a pervasive developmental disorder. He is clearly behind with regard to his receptive and expressive language development, but also has short attention span, high activity level, immature social skills with poor eye contact and a behavior disorder. He is also microcephalic and has short stature. I believe that Chandler is at significant risk for fitting within the low functioning autistic spectrum. I have not yet received medical records regarding Chandler's background and will issue a final report once the records have been received and reviewed. The cause and timing of Chandler's brain injury Dr. Duchowny ultimately reviewed Chandler's medical records and, as revealed by his deposition (Respondent's Exhibit 4), was of the opinion, based on that review and his neurologic evaluation, that the most likely cause of Chandler's brain injury was an infection, and that such injury occurred prior the onset of labor, as opposed to having been caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation. Notably, the opinions of Dr. Duchowny are consistent with the record and otherwise uncontroverted. Consequently, it must be resolved that Chandler's brain injury was not caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period, as required for coverage under the Plan. . See Wausau Insurance Company v. Tillman, 765 So. 2d 123 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obliged to present expert medical evidence establishing that causal connection."); Ackley v. General Parcel Service, 646 So. 2d 242 (Fla. 1st DCA 1995)(determining cause of psychiatric illness is essentially a medical question, requiring expert medical evidence); Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation.").
Findings Of Fact Calise L. Muniz was born on May 2, 2015, at Holmes Regional Medical Center, located in Melbourne, Florida. Calise 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 Calise. In a medical report dated January 24, 2017, Dr. Willis opined in pertinent part as follows: In summary, the mother apparently became hypotensive after placement of epidural anesthesia with resulting fetal distress. The baby was depressed at birth. The initial ABG was consistent with metabolic acidosis. Cooling protocol was initiated for HIE. EEG was normal for age. No MRI or CT scan was done during the newborn hospital course. There was an apparent obstetrical event that resulted in loss of oxygen during labor and delivery. However, there was no documentation of actual brain injury. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Calise and to review her medical records. Dr. Sigurdardottir examined Calise on February 1, 2017. In a medical report dated February 1, 2017, Dr. Sigurdardottir summarized her examination of Calise and opined in pertinent part as follows: Summary: Calise is a 21-month-old female who was born via emergency cesarean section after nonreassuring fetal heart rate tracings were noted after a high spinal anesthesia. She had poor Apgars of 2, 4 and 5 after 1, 5 and 10 minutes, and was treated with cooling protocol. She did not have any neonatal seizures and the only neuroimaging available is a head ultrasound on day of life 1 that was normal. On neurologic exam today she is normal, both with her motor skills and cognition and language development. There are no signs of autistic features. Results as to question 1: Calise is not found to have substantial physical or mental impairment at this time. Results as to question 2: In review of available documents, she does have the clinical picture of an acute birth-related hypoxic injury. Results as to question 3: The prognosis for full motor and mental recovery is excellent and her life expectancy is full. In light of the normal cognitive abilities and normal neurologic exam, I do not feel that Calise should be included in the NICA program. If needed, I will be happy to answer additional questions. 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 while there was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor and delivery, there was no documentation of actual brain injury. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Calise does not have a substantial physical or mental impairment. Dr. Sigurdardottir’s opinion is credited.
The Issue At issue is whether Robert Donald Vose, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Dawn Vose is the parent of Robert Donald Vose, a minor. Robert was born a live infant on August 15, 2001, at Baptist Hospital, Pensacola, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Robert's birth was Jill Prafke, M.D., who, at all times material hereto, was a "participating physician" in the Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain or spinal cord . . . 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." § 766.302(2), Fla. Stat. To resolve whether Robert suffered a "birth-related neurological injury," the parties offered the medical records related to Robert's birth and subsequent development (Respondent's Exhibit 3), as well as the opinions of Donald C. Willis, M.D., a physician who practices maternal-fetal medicine, and Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. (Respondent's Exhibits 1 and 2). With regard to injury, Dr. Willis was of the opinion that Robert suffered a brain injury (a venous sinus thrombosis and choroid plexus hemorrhage) at or around the time of delivery, that resulted in the development of hydrocephalus. However, he offered no opinion regarding the extent or significance of the brain damage. (Respondent's Exhibit 2). In contrast, Dr. Duchowny evaluated Robert on May 4, 2006, and concluded that his "normal neurological status together with a review of the accompanying medical records does not suggest that he has a substantial mental or motor impairment," as required for coverage under the Plan. (Respondent's Exhibit 1). Dr. Duchowny reported the results of his evaluation, and the basis for his opinion, as follows: I had the pleasure of evaluating Bobby Vose on May 4, 2006. Bobby is a 4-year-old, left-handed, prekindergarten student who was brought by his father for evaluation. This was conducted in my office at Miami Children's Hospital. HISTORY ACCORDING TO THE FATHER: Mr. Vose explained that Bobby was brought in order to "verify his abilities for NICA." He believes that Bobby is developing normally and in fact, is above average in several areas. He will be starting kindergarten in September and has done extremely well in his prekindergarten class setting. In fact, his language abilities are above average for age and he is bilingual with approximately 70 words of Spanish. He is a sociable boy who plays well with other children and his motor milestones have progressed normally. He sleeps through the night. His vision and hearing are intact. There has been no regression and no toxic or infectious exposure. Bobby is on no intercurrent medications. Bobby's PAST MEDICAL HISTORY is significant for placement of a ventriculoperitoneal shunt as a newborn. He apparently experienced an intercranial hemorrhage into the right ventricle and had a shunt placed from the anterior horn of the right ventricle into the peritoneal cavity. His shunt has functioned well and there have been no complications or revisions . . . . Otherwise, Bobby enjoys good health. He is not being followed for any chronic illnesses and has not required medical or surgical intervention subsequent to the newborn period. PERINATAL HISTORY: Bobby was born at Baptist Hospital in Pensacola at 37-weeks gestation. There was an attempt at a vaginal delivery but "the head was wedged" and Bobby was ultimately delivered by emergency cesarean section. He weighed 8 pounds and breathed well at birth. He remained in the hospital for approximately 11 days. GROWTH AND DEVELOPMENT: Bobby's father could not recall Bobby's motor or language milestones except to note that all occurred at the normal time. Bobby is fully immunized and has no known drug allergies. He has had a hernia repaired. * * * PHYSICAL EXAMINATION reveals an alert, well- developed, pleasant and cooperative 4-year- old boy. Bobby weighs 38 pounds. The skin is warm and moist. Bobby's head circumference measures 51.9 centimeters, which is within standard percentiles for age. The fontanels are closed. The ventriculoperitoneal shunt reservoir is palpated over the right frontal bone and shunt tubing is noted in the right anterior lateral neck region and across the thorax and abdomen. There is a healed right, upper quadrant abdominal scar. There are no cranial or facial anomalies or asymmetries. No dysmorphic features or cutaneous stigmata are noted. The neck is supple without masses, thyromegaly or adenopathy. The lung fields are clear and the heart sounds are normal. There is no palpable abdominal organomegaly. Peripheral pulses are 2+ and symmetric. NEUROLOGICAL EXAMINATION likewise discloses no significant findings. Bobby is alert, pleasant and cooperative. He answers all questions fluently with a good fund of information and an age appropriate stream of both thought and attention. He cooperated with all aspects of the evaluation. The cranial nerve examination reveals full visual fields to direct confrontation testing and normal ocular fundi. The optic disc margins are clearly demarcated and there is no optic pallor. There are no significant retinal findings. The extraocular movements are full and conjugate. The pupils are 3 mm and react briskly to direct and consensually presented light. There is blink to threat from both directions. The tongue is moist and papillated and moves well in all plains. The uvula is midline. The pharyngeal folds are symmetric. Motor examination reveals symmetric strength, bulk, and tone. There are no adventitious movements and no focal weakness or atrophy. The deep tendon reflexes are 2+ throughout. Plantar responses are downgoing. Station and gait are appropriate for age. The arm swing is symmetric. Sensory examination is intact to withdrawal of all extremities to stimulation. Neurovascular examination reveals no cervical, cranial, or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Bobby's neurological examination in detail reveals no significant focal or lateralizing findings. The ventriculoperitoneal shunt is likely to be nonfunctional at this point. Bobby's normal neurological status together with a review of the accompanying medical records does not suggest that he has a substantial mental or motor impairment. . . . I, therefore, do not believe that he is eligible for compensation under the NICA statute.
Findings Of Fact Dariel Antonio Molina Benitez was born on September 29, 2011, at Baptist Hospital in Miami, Florida. Dariel weighed in excess of 2,500 grams at birth. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Dariel’s medical records. In an affidavit dated October 17, 2016, Dr. Willis made the following findings and expressed the following opinion: In summary, Cesarean section was done for variable FHR decelerations during labor. The baby was not depressed at birth. Apgar scores were 9/9 and the baby stated to be vigorous after birth. The medical records do not suggest a birth related hypoxic event. 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 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 is credited. Respondent retained Michael Duchowny, M.D., (Dr. Duchowny), a pediatric neurologist, to evaluate Dariel. Dr. Duchowny reviewed Dariel’s medical records and performed an independent medical examination on him on September 21, 2016. Dr. Duchowny made the following findings and summarized his evaluation as follows: IN SUMMARY Dariel’s general, physical and neurological examinations today are entirely within normal limits. There are no focal or lateralizing findings to suggest a structural brain injury. I have reviewed medical records for Dariel sent by your office on September 16, 2016. The records are primarily directed at long- term follow up and confirm that Dariel’s overall development has proceeded normally with a slight expressive language delay. An MRI scan of the brain on September 10, 2015, apparently revealed mild generalized cortical atrophy but was otherwise within normal limits. Dariel underwent a genetic workup including a chromosomal microarray that was normal. All other laboratory parameters were similarly within normal limits. An EEG obtained on April 1, 2014 was unremarkable. Given Dariel’s normal mental and physical status, I am not recommending him for compensation within the NICA program. Dr. Duchowny stated his ultimate opinion in an affidavit dated October 18, 2016, in which he opined, “Based on review of the medical records and the neurological evaluation and given Dariel’s normal and physical status, Dariel does not have a substantial and permanent mental or motor impairment, and I am not recommending him for compensation within the NICA program.” Dr. Duchowny’s opinion that Dariel does not have a substantial and permanent mental or motor impairment is credited. 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. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that Dariel does not have a substantial and permanent mental or motor impairment.
