The Issue Whether Alphonso Cato 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 Alphonso Reginald Cato (Alphonso) is the natural son of Deryl L. Cato and Jacqueline Flood McLaughlin. He was born a live infant on March 12, 1989, at Baptist Medical Center in Jacksonville, Duval County, Florida, and his birth weight was in excess of 2500 grams. The physicians providing obstetrical services during the birth of Alphonso were Dr. F. Andre and Dr. Huddleston, who were, at all times material hereto, participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. The neurological examination of Alphonso performed by Michael S. Duchowny, M.D., whose opinions are credited, revealed a prominent spastic diapiresis of the lower extremities which had been ameliorated by dorsal rhizotomy. Alphonso's mental functioning was, however, found to be age appropriate, and he was not found to suffer from any mental impairment. As to the cause of Alphonso's cerebral palsy, the proof is less than compelling that it was suffered as a consequence of any birth-related complications, as opposed to having been acquired prenatally. Moreover, although permanently impaired, the proof fails to support the conclusion that Alphonso's impairment is substantial.
The Issue Whether Roslyn Sue Wells (Roslyn) suffered a “birth-related neurological injury” as defined by section 766.302(2) for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation (NICA) Plan (the Plan).
Findings Of Fact Pursuant to the Joint Pre-hearing Stipulation, the parties agreed to the following facts: Roslyn was delivered on March 24, 2016, at MRMC—a hospital. Roslyn was a single gestation, weighing 3,240 grams at delivery. Dr. Hunt was the delivering physician and was a NICA participating provider at the time of Roslyn’s delivery. MRMC provided notice of NICA participation to Petitioners. Provision of notice of Dr. Hunt’s NICA participation to Petitioners was excused. The undersigned makes the following additional Findings of Fact: Natalie, who was pregnant with Roslyn for approximately 38 weeks, began experiencing contractions at about 11:30 a.m., on March 24, 2016. Natalie arrived at MRMC at 3:30 p.m., that day, and MRMC began fetal heart rate monitoring at 3:32 p.m. At 4:12 p.m., Lisa Roberson, R.N., in the OB Triage notes, noted that “Dr. Hunt covering for Dr. Marquette. Called w/full report. Fhts. w/minimal variability and variables w/every ctx. Reported ctx. Pattern and urine dip. Orders to continue watch pt.” The OB Triage notes indicate, at 4:27 p.m., prolonged accelerations with fetal heart rates down to the “60s” with “occasional rises to the 90s” over 8 minutes. At 4:34 p.m., the OB Triage notes indicate that the fetal heart rate and maternal heart rate “not in sync [:] maternal hr 80s and fhts in 100s.” At 4:36 p.m., Nurse Roberson’s notes indicate “MD called back to inform of fhts continue to decel. MD orders to take pt. to the OR now.” Natalie arrived in the operating room at 4:41 p.m., and Dr. Hunt arrived at 4:45 p.m. The MRMC notes indicate “MD arrived to OR and spoke w/pt. about c/s. Informed MD at that time that the baby’s hr was in the 80- 90s prior to prep.” Dr. Hunt delivered Roslyn, via cesarean section, at 4:54 p.m. Dr. Hunt’s operative report states: The patient is a 30-year-old, gravida 2, para 1 female, admitted at 38 weeks gestation in active labor. She states that contractions became quite strong and she came to the labor room. ON the monitor, she was having mild contractions, but they were at 1 and 2 minute intervals. She had a baseline fetal heart beat of 110. There were no accelerations noted. She was in the labor room short time for monitoring when she had decelerations down to the 60s and had come back up to the 90s. I was called and came in for immediate cesarean section. Just prior to being placed on the operating table, fetal heart tones were 90. The patient had no vaginal bleeding and membranes were intact. The operative report further states, “[a] 6-pound-15-ounce female infant was delivered with Apgars of 0, 0, and 2 at 15 minutes. The baby required immediate resuscitation by the neonatologist.”1 1 “An Apgar score is a numerical expression of the condition of the newborn and reflects the sum total of points gained on an assessment of heart rate, respiratory effort, muscle tone, reflex irritability and color.” Nagy v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 813 So. 2d 155, 156 n.1 (Fla. 4th DCA 2002) (citing Dorland’s Illustrated Medical Dictionary 1498 (27th ed. 1988)). The Neonatologist Transfer Note states, in pertinent part: Baby Girl Wells born via state C/s due to NRFHR – HR in the 50-60s for ~10 minutes. Mother is serology negative. Infant with APGARS 0/0/0/3 at 1,5/10/15 minutes requiring CPR for ~15 minutes. Infant was limp, cyanotic, no respiratory effort, intubated and given manual breaths until 15 minutes and placed on mechanical ventilator. . . . Per OB mother had massive abruption placenta. The Neonatology Delivery/Consult Note reflects the following diagnoses: “term newborn born via c/s for NFEHR”; “hypoxic ischemic encephalopathy”; and “respiratory failure.” The MRMC Delivery Summary reflects that Roslyn was “alive.” The MRMC Admission Orders reflect that Roslyn was “[l]iveborn in hospital by cesarean section (primary).” Following delivery and resuscitation, MRMC’s records reflect Roslyn’s vital signs on March 24, 2016, as follows: blood pressure of 75/35 at 5:12 p.m.; blood pressure of 69/50 at 5:18 p.m.; blood pressure of 69/50, with some spontaneous respirations noted at 5:34 p.m.; blood pressure of 74/32 at 5:36 p.m.; pulse of 124/minute, and with 5-6 spontaneous respirations noted at 6:03 p.m.; a pulse of 120/minute at 6:19 p.m.; and blood pressure of 78/47, and a pulse of 120/minute, at 6:33 p.m. At 6:45 p.m., on March 24, 2016, Roslyn was discharged from MRMC and transferred to Shands Hospital at the University of Florida (Shands) for continued care in its neonatal intensive care unit (NICU). Shands NICU started a cooling protocol for hypoxic ischemic encephalopathy, and also started a video EEG. Roslyn remained on a mechanical ventilator. The neurological examination of Roslyn reflects that she “doesn’t react[] to light by squinting,” has “[w]eak withdraw with some antigravity effort to noxious stimuli seen in all 4 extremities,” and “withdraws to pain equally in all extremities.” Video EEG from overnight revealed multiple seizures, and Phenobarbital was administered. Roslyn remained on a mechanical ventilator through March 28, 2016, at Shands. She received two blood transfusions. A trial of feeding started on day 3 of life that Roslyn did not tolerate. On March 28, 2016, a brain MRI showed global injury to Roslyn’s brain involving the whole cortex and basal ganglia. According to the notes of the treating physician at Shands: After discussing results of the MRI concerning the global injury, along with the signs of hemodynamic instability, and the EEG readings the parents decided to withdraw care. Two attendings supported the decision. Sedative drips were stopped and prn medications were ordered. The patient was extubated at 1800, 3/28/16. Time of death 3/29/16 4:28 a.m., pronounced by [the attending physician]. Testimony of Expert Witnesses2 The parties’ respective experts opined on the critical issue in this matter: whether Roslyn was a “live infant” or “live birth” as contemplated under section 766.302(2) (and would therefore be entitled to compensation under the Plan), or whether she suffered a “fetal death,” which would fall outside of section 766.302(2). The experts relied on Roslyn’s Apgar scores, and also relied on the definitions of “fetal death,” “live birth,” and “stillbirth” found in section 382.002, Florida Statutes, which is the definitional provision of the Vital Statistics chapter of the Florida Statutes, in rendering their opinions. 2 The parties stipulated to the undersigned accepting Dr. Voss and Dr. Willis as medical experts. The undersigned has reviewed the deposition transcripts of both, has considered their credentials, and the bases for their respective opinions, and accepts both as expert witnesses. Section 766.302(2) defines “Birth-related neurological injury” as: [An] injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation, or in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring he course of labor, deliver, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality. (emphasis supplied). Section 382.002(8) defines “fetal death” as: death prior to the complete expulsion or extraction of a product of human conception from its mother if the 20th week of gestation has been reached and death is indicated by the fact that after such expulsion or extraction the fetus does not breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles. Section 382.002(12) defines “live birth” as: The complete expulsion or extraction of a product of human conception from its mother, irrespective of the duration of pregnancy, which, after such expulsion, breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, and definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached. Section 382.002(17) defines “stillbirth” as “[a]n unintended, intrauterine fetal death after a gestational age of not less than 20 completed weeks.” Petitioners’ expert, Dr. Voss, whom they originally retained in the previous medical negligence lawsuit, opined that Roslyn was not born alive, based primarily on her Apgar scores. Dr. Voss stated: This – this child had Apgar scores of zero at one minute; zero at five minutes; zero at ten minutes. And, finally—there’s a discrepancy in the records between the note made by the obstetrician and the note made by the neonatologist; either had a score of two or three. But at one minute, five minutes, and ten minutes, this baby did not have a detectable heartbeat, made no respiratory efforts, and had no movement based on the Apgar scores. Q: But you would agree with me that the Apgar score of either two or three at 15 minutes would indicate signs of life, wouldn’t you? A: After resuscitative efforts, yes. Dr. Voss also opined that the statutory definitions of “live birth,” “fetal death,” and “stillbirth” include the factors that are considered in the assignment of Apgar scores. He further opined that Roslyn showed signs of life sometime between 10 and 15 minutes after extraction, but also that she showed no signs of life prior to that. Dr. Voss testified, “I think this fetus died in utero. I think this was a fetal death.” However, upon further questioning, he clarified his opinion as follows: But—so again, at birth, at the time of extraction, or delivery, or whatever term you want to put to it, this baby had no signs of life. And it’s only—and it occurred temporally enough that these tissues were still viable enough, with the right stimulus, signs of life could be restored through this child. But by the legal definition that is outlined in the statute, I would declare this a stillbirth, and clearly so, unless you want to say that, yes, at 10 to 15 minutes, signs of life—through the right stimulus, signs of life were restored; that the tissues were still viable enough, that with the right stimulus, the signs of life could be restored to the child. Q: Okay. So to be fair … it sounds like—and correct me if I’m wrong—your opinion is that this can be characterized as both a fetal death or stillbirth as well as— A: A live birth. Q: --a live birth, according to your medical definitions set forth in the statute, is that fair? A: Yes, that’s very fair. NICA’s expert, Dr. Willis, opined that Roslyn suffered oxygen deprivation during labor and delivery, resulting in brain injury. Dr. Willis opined that Roslyn’s Apgar scores (either 0/0/0/2 or 0/0/0/3) indicated that Roslyn showed signs of life after extraction from the mother. Dr. Willis further opined that Roslyn was born alive. He further testified: [S]everal things would confirm that. Number one, the child died five—five days after birth, so obviously the child was alive. The definition of live birth is expulsion of a baby that shows signs of life after birth. That can be a heartbeat or voluntary muscle movement or respiratory effort. There’s no time limit on it. So to show signs of life, it doesn’t mean it has to be by a certain time after life. It’s at any time after birth. In order to be considered a stillbirth, or demised at birth, you should remember that the—the diagnosis of death is a permanent diagnosis. So—so you can’t die and then be alive. So to say that a baby is stillborn means the baby is born without a heartbeat and is never resuscitated. Never shows signs of life. So in this case the baby was— obviously lived for several days, so it was alive. Also the records confirm this. On the delivery summary there’s a box that—that states several things about the baby. And on is—it has choices between alive and stillbirth and clearly circled is alive. So that would again confirm that impression, but clearly the baby was a live birth. When questioned on cross-examination whether Roslyn’s receiving a 0 Apgar score upon extraction indicated an intrauterine fetal death, Dr. Willis stated it did not, “because intrauterine fetal demise would be a baby that’s born without a heartbeat and never obtains one.” Dr. Willis later clarified, “[a]t any point after expulsion if there’s a heartbeat or sign of life, it is considered a live birth.” Based on the weight of the credible evidence presented, the evidence established that Roslyn suffered oxygen deprivation during labor, delivery, or resuscitation in the immediate post-delivery period in a hospital (MRMC). Further, Roslyn weighed in excess of 2,500 grams. Additionally, the weight of the credible evidence establishes that Roslyn was, after extraction, a “live infant” and that this was a “live birth,” based on the statutory definitions found in section 382.002, the medical record evidence presented, and the expert testimony of both Dr. Voss and Dr. Willis, and that this was not a “fetal death” or “stillbirth.” The medical record evidence indicates that, between 10 and 15 minutes after extraction, signs of life were present, including a pulse, blood pressure, and spontaneous respirations following resuscitative efforts. Additionally, after the Petitioners made the decision to withdraw mechanical care to Roslyn, and care was withdrawn, Roslyn lived for approximately 10 and one-half hours on her fifth day of life. Further, Dr. Voss and Dr. Willis both testified that Roslyn was a live birth, although Dr. Voss testified that Roslyn was both a live birth and a fetal death/stillbirth. The undersigned credits Dr. Willis’s testimony that “live birth” means a baby that shows signs of life after birth, which is what happened with Roslyn, and that Roslyn suffered a neonatal death. The undersigned does not credit Dr. Voss’s testimony that Roslyn was both a fetal death/stillbirth and a live birth.
Conclusions For Petitioners: T. Patton Youngblood, Jr., Esquire Youngblood Law Firm Suite 800 360 Central Avenue St. Petersburg, Florida 33701-3984 For Respondent: Brooke M. Gaffney, Esquire Smith, Stout, Bigman & Brock, P.A. Suite 900 444 Seabreeze Boulevard Daytona Beach, Florida 32118 For Intervenors: For Intervenor Munroe HMA Hospital, LLC, d/b/a Munroe Regional Medical Center: David O. Doyle, Jr., Esquire Pearson Doyle Mohre & Pastis, LLP Suite 401 485 North Keller Road Orlando, Florida 32751 For Intervenors Seaborn Hunt, M.D., and 17th Street, LLC: M. Suzanne Green, Esquire Bice Cole Law Firm, L.P. 1333 Southeast 25th Loop, Suite 101 Ocala, Florida 34471
Other Judicial Opinions Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).
Findings Of Fact Antonia was born on March 14, 2012, at Plantation General Hospital located in Plantation, Florida. Antonia weighed 3,665 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Antonia. In an affidavit dated September 19, 2013, Dr. Willis opined the following: It is my opinion that the pregnancy was complicated by poorly controlled Diabetes with a large-for-gestational age baby and resulting in dystocia at delivery. The baby was depressed at birth, but “rapidly improved.” The baby suffered a brachial plexus injury from the shoulder dystocia, but there was no evidence of brain injury. As such, it is my opinion that delivery was complicated by a shoulder dystocia with resulting brachial plexus injury. However, there was no apparent brain or spinal cord injury from loss of oxygen or mechanical trauma. Michael S. Duchowny, M.D., a pediatric neurologist, was retained by NICA to examine Antonia. Dr. Duchowny examined Antonia on August 28, 2013. In an affidavit dated September 18, 2013, Dr. Duchowny opined as follows: It is my opinion that Antonia’s neurological examination reveals evidence of a complete left brachial plexus palsy involving nerve roots C5 to T1. She thus has both an Erb’s and Klumpke’s paralysis which is judged to be severe. There appears to be little benefit from her previous surgery as she most likely had an avulsive type injury. In contrast, Antonia’s cognitive status and motor ability in her other three extremities are well preserved. I had an opportunity to fully review the medical records that were sent on July 25, 2013. The records confirm the family’s history of shoulder dystocia at birth. Antonia’s Apgar scores were 0, 6 & 8 at 1, 5 and 10 minutes. Her brachial plexus palsy was recognized immediately. She was intubated in the delivery room but extubated at 10 minutes of age. Of note, an MRI of Antonia’s brachial plexus performed on June 29, 2012[,] revealed pseudomeningocele formation at the C7 and T1 levels. As such, it is my opinion that Antonia’s brachial plexus palsy places her damage outside the central nervous system as it involves cervical and upper thoracic root segments. Although her injury was likely acquired as a result of mechanical forces during delivery, the location of her impairment is outside the central nervous system (brain and spinal cord). I therefore believe that Antonia should not be considered for compensation with the NICA program. A review of the file does not show any contrary opinions to those of Dr. Willis and Dr. Duchowny. The opinions of Dr. Willis and Dr. Duchowny that Antonia did not suffer a brain or spinal cord injury due to oxygen deprivation or mechanical injury during labor, delivery, and resuscitation during the post- delivery period are credited.
The Issue At issue in this proceeding is whether Wilgen Wandique, Jr., a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Wilgen Wandique and Concepcion Wandique, are the parents and natural guardians of Wilgen Wandique, Jr. (Wilgen), a minor. He was born a live infant on August 21, 1996, at Hialeah Hospital, a hospital located in Dade County, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Wilgen was Gustavo Ruiz, 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(7), Florida Statutes. Wilgen's delivery at Hialeah Hospital on August 21, 1996, was apparently difficult due to his large birth weight, and was complicated by a shoulder dystocia. Following delivery, Wilgen was noted having evidence of a mild to moderate compromise of the upper right brachial plexus, an Erb's palsy, which affected the range of motion on the upper right extremity, including the arm, forearm, and hand. Otherwise, Wilgen's presentation was unremarkable, and he evidenced no abnormalities with regard to his mental status and, as hereafter noted, no motor abnormalities of central nervous system origin. A brachial plexus injury, such as that suffered by Wilgen during the course of his birth, is not, anatomically, a brain or spinal cord injury, and does not affect his mental abilities. Moreover, as heretofore noted, apart from the brachial plexus injury, Wilgen was not shown to suffer any other injury during the course of his birth. Consequently, the proof fails to demonstrate that Wilgen suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during the course of labor or delivery, and further fails to demonstrate he is presently permanently and substantially, mentally and physically impaired.
The Issue The issue in this case is whether Reshnaya E. Francois suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Plan.
Findings Of Fact Reshnaya E. Francois was born on January 31, 2016, at Broward Health, in Coral Springs, Florida. Reshnaya weighed in excess of 2,500 grams at birth. The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records of Broward Health submitted with the Petition. At all times material, both Broward Health and Dr. Wajid were active members under NICA pursuant to sections 766.302(6) and (7). Reshnaya was delivered by Dr. Wajid, who was a NICA- participating physician, on January 31, 2016. Petitioners contend that Reshnaya suffered a birth- related neurological injury and seek compensation under the Plan. Respondent contends that Reshnaya has not suffered a birth- related neurological injury as defined by section 766.302(2). In order for a claim to be compensable under the Plan, certain statutory requisites must be met. Section 766.309 provides: The Administrative Law Judge shall make the following determinations based upon all available evidence: Whether the injury claimed is a birth- related neurological injury. If the claimant has demonstrated, to the satisfaction of the Administrative Law Judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in § 766.302(2). Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital. How much compensation, if any, is awardable pursuant to § 766.31. If the Administrative Law Judge determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at birth, she or he shall enter an order . . . . The term “birth-related neurological injury” is defined in Section 766.302(2), Florida Statutes, as: . . . injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality. (Emphasis added). In the instant case, NICA has retained Donald Willis, M.D. (Dr. Willis), as its medical expert specializing in maternal-fetal medicine and pediatric neurology. Upon examination of the pertinent medical records, Dr. Willis opined: The newborn was not depressed. Apgar scores were 8/8. Decreased movement of the right arm was noted. The baby was taken to the Mother Baby Unit and admission exam described the baby as alert and active. The baby had an Erb’s palsy or Brachial Plexus injury of the right arm. Clinical appearance of the baby suggested Down syndrome. Chromosome analysis was done for clinical features suggestive of Down syndrome and this genetic abnormality was confirmed. Chromosome analysis was consistent with 47, XX+21 (Down syndrome). Dr. Willis’s medical Report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: In summary: Delivery was complicated by a mild shoulder dystocia and resulting Erb’s palsy. There was no evidence of injury to the spinal cord. The newborn was not depressed. Apgar scores were 8/9. Chromosome analysis was consistent with Down syndrome. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period. The baby has a genetic or chromosome abnormality, Down syndrome. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis. The opinion of Dr. Willis that Reshnaya did not suffer an obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery, or the immediate post-delivery period is credited. In the instant case, NICA has retained Michael S. Duchowny, M.D. (Dr. Duchowny), as its medical expert in pediatric neurology. Upon examination of the child and the pertinent medical records, Dr. Duchowny opined: In summary, Reshnaya’s examination today reveals findings consistent with Down syndrome including multiple dysmorphic features, hypotonia, and hyporeflexia. She has minimal weakness at the right shoulder girdle and her delayed motor milestones are likely related to her underlying genetic disorder. There are no focal or lateralizing features suggesting a structural brain injury. Dr. Duchowny’s medical report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: Neither the findings on today’s evaluation nor the medical record review indicate that Reshnaya has either a substantial mental or motor impairment acquired in the course of labor or delivery. I believe that her present neurological disability is more likely related to Downs syndrome. For this reason, I am not recommending that Reshnaya be considered for compensation within the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Duchowny. The opinion of Dr. Duchowny that Reshnaya did not suffer a substantial mental or motor impairment acquired in the course of labor or delivery is credited.
The Issue Whether Ashley Villarreal has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.
Findings Of Fact Preliminary matters Ashley Villarreal (Ashley) is the natural daughter of Roy Villarreal and Carmen Luna. She was born a live infant on January 2, 1989, at Bethesda Memorial Hospital in Palm Beach County, Florida, and her birth weight was 3090 grams. The physician delivering obstetrical services during the birth of Ashley was Allen Dinnerstein, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. The birth of Ashley Villarreal At or about 4:15 p.m., January 2, 1989, Carmen Luna was admitted to Bethesda Memorial Hospital. At the time, Carmen Luna was in active labor, and Ashley was post term with a gestational age of 41 weeks. Otherwise, Carmen Luna's pregnancy had been without complication. External fetal monitoring was commenced at 4:50 p.m. and indicated that the fetal heart tone was sporadically within the 60 beat per minute level, with a slow return to baseline; a level sufficient to indicate occasional fetal bradycardia and fetal distress. 1/ This situation evidenced a need for surgical intervention, and at 5:20 p.m. Carmen Luna was taken to the operating room. Anesthesia commenced at 5:25 p.m., a cesarean section surgical procedure was commenced at 5:39 p.m., and Ashley was delivered at 5:44 p.m. The operative report reflects that the following occurred during the course of the procedure: . . . a transverse incision was made into the uterus releasing meconium stained fluid. The vertex was delivered and the baby suctioned with DeLee. A loop of cord over the neck was removed and the baby then delivered completely continually being suctioned as the cord was double clamped and severed and the infant given to the neonatologist for care . . . . The delivery records likewise reflect that Ashley had a blue appearance at delivery, the presence of meconium staining, and the following resuscitation measures: "Stimulation," "Bulb Suction," "DeLee Suction," "Mech Suction" and "Whiffs Oz." When delivered, Ashley presented Apgar scores of 6 at one minute and 8 at five minutes. These scores are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of the heart rate, respiratory effort, muscle tone, reflex irritability, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute, Ashley's Apgar score totaled 6, with respiratory effort and reflex irritability being graded at 2 each, heart rate and muscle tone being graded at 1 each, and color being graded at 0. At 5 minutes, Ashley's Apgar score totaled 8, with heart rate, respiratory effort and reflex irritability being graded at 2 each, and muscle tone and color at 1 each. Such total scores could be characterized by an obstetrician as "good." Pertinent to this case, color, heart rate and respiratory effort are primarily related to the cardiovascular system, and color is the least significant indicator of an infant's brain or neurological status at birth. The categories of reflex irritability and muscle tone are, however, neurological assessments, which offer the greatest insight into the neurological condition of an infant at birth. Ashley's Apgar scores relative to those categories which reflect neurological status at birth were collectively a total of 3 out of a possible 4 at both 1 and 5 minutes. Under the circumstances, Ashley's Apgar scores, either globally or discretely, fail to reflect a hypoxic event at birth. At 6:00 p.m., following delivery, Ashley was admitted to the neonatal intensive care unit due to respiratory distress, possibly secondary to meconium aspiration. Ashley was accorded extra oxygen, via oxygen hood, for two days, and her meconium aspiration was successfully treated with antibiotics. During her admission, no clinical observations were noted that one would typically expect in a child undergoing hypoxic encephalopathy, and no neurological consult was ordered. 2/ On January 7, 1989, Ashley was discharged as an apparently well baby. Subsequent developments On July 29, 1989, Ashley was seen by M. Arenstein, D.O., for a "well baby visit," and no abnormalities were noted; however, on September 6, 1989, Ashley was again seen by Dr. Arenstein at which time the parents expressed their concern regarding Ashley "not sitting up, crawling, etc." Consequently, Dr. Arenstein referred Ashley for a pediatric consult with Jeffrey Perelman, M.D. Ashley was seen by Dr. Perelman on September 19, 1989, and he diagnosed her as developmentally delayed, and ultimately referred her to David Ross, M.D., for a neurological evaluation. Dr. Ross saw Ashley on July 2, 1990, and concluded: The patient has some mild facial dysmorphism with developmental delay in all fields associated with an abnormal neurologic exam with persistence of postural reflexes and hyperreflexia. The spectrum of findings is consistent with mental retardation of a mild to moderate degree probably due to cerebral palsy. 3/ Dr. Ross' ultimate diagnosis was mental retardation, and he recommended that Ashley have a full evaluation, including "an image of the brain either with CT scan or MRI (an EEG, torch titers, chromosome analysis)." Ashley was referred in August 1990, for a CT brain scan and an EEG. The CT scan is a neuroimaging study which can identify structural brain abnormalities occasioned by an hypoxic insult, as well as other causes. The EEG is a device used to detect abnormalities of the electrical currents of the brain such as seizure activity, which is often a manifestation of hypoxic insult at birth, and the death of neuronal cells. Here, both the CT scan and EEG were within normal limits. Ashley continued to be treated by Dr. Perelman through June 1991; however, on August 14, 1991, she came under the care of Miguel Simo, M.D., another pediatrician, because the parents were apparently dissatisfied with Dr. Perelman. Upon examination, Dr. Simo diagnosed Ashley as developmentally delayed, and referred her to Laszlo Mate', M.D., a physician practicing child neurology, for evaluation. Dr. Mate' examined Ashley on August 29, 1991, and observed: . . . a small, dysmorphic female in no apparent distress. Her head circumference is 47 cm which is in the 25th percentile. She doesn't have any neurocutaneous abnormalities. Her palmer creases are somewhat abnormal, but not of simian nature. Her fingers are slightly abnormal, extra long, and she seems to have a proximal displacement of both thumbs. Her ears are malformed with very small earlobes. The ears are somewhat posterior rotated and low set. Her eyes are almond shape but in view of her Indian heritage, that's probably normal. Both parents seem to have similar shaped eyes. The child has a somewhat prominent nose. The mouth is somewhat fishmouth in character and she has fairly shallow temporal area. She doesn't have any eyelashes on her lower eyelid. Dr. Mate's impression was: This is a markedly abnormal child with a developmental quotient in the 30's. She's currently is 30 months old and she functions around a 9-10 month level. She has multiple minor malformations which made the diagnosis of cerebral palsy somewhat unlikely. I suspect we are dealing with some prenatal etiology, either genetic or pregnancy related. 4/ Dr. Simo also referred Ashley for an MRI of the brain. An MRI, as with a CT scan, is a neuroimaging study which can identify structural abnormalities occasioned by hypoxic insult, as well as other causes. The MRI, performed September 20, 1991, was abnormal, evidencing "poor and decreased white matter myelinization extending to the frontal, occipital, and parietal cortex and decrease in white matter content in the centrum semiovale." Such damage could be reflective of birth asphyxia, developmental immaturity of the brain, or a myriad of other causes. Finally, Dr. Simo referred Ashley to Oscar Febles, M.D., a physician practicing genetics. Dr. Febles examined Ashley on November 1, 1991, and rendered a diagnosis of "psychomotor retardation of unknown etiology." Concluding, Dr. Febles observed: The clinical findings in this patient are not diagnostic of a particular genetic syndrome . . . In conclusion, this patient presents a clinical picture characterized by psychomotor retardation that cannot be diagnosed on the clinical findings and/or testing done. The fact that she presents diffuse demyelinization on the MRI would favor the diagnosis of cerebral palsy and/or a CNS degenerative disease. It is my recommendation that an MRI be repeated in approximately 6 months to see if the demyelinization process of the cortex previously seen is progressive or static. If found to be progressive it would indicate a CNS degenerative disease (e.g. leukodystrophies) and if static the diagnosis of cerebral palsy is most likely. In addition, it is also recommended . . . Genetic re-evaluation in 1 year. Whether, consistent with Dr. Febles' recommendation, an MRI was repeated or Ashley had a subsequent genetic re- evaluation does not appear of record. Notably, however, while Ashley was genetically tested and found to have a normal karyotype, such test does not rule out the preponderance of genetic disorders which manifest themselves in microscopic point mutations within a chromosome as opposed to total chromosomal malformation. The medical experts at hearing As to whether Ashley had sustained permanent and substantial mental and physical impairment as a result of an injury to her brain resulting from oxygen deprivation during the course of labor, delivery or resuscitation in the immediate post-delivery period, petitioners offered the testimony of Dr. David Ross, who, although a board certified neurologist, does not regularly treat neonates. Dr. Ross examined Ashley on July 2, 1990, and March 2, 1994. It was Dr. Ross' opinion that Ashley suffered a substantial and permanent mental and physical impairment as a consequence of oxygen deprivation during the course of labor and delivery. Compared with the opinion of Dr. Ross, the respondent offered the testimony of Dr. Michael Duchowny. Dr. Duchowny is a child neurologist who is board certified in pediatrics, neurology with special competence in child neurology and clinical neurophysiology. Dr. Duchowny is associated with the department of neurology at Miami Children's Hospital and routinely treats neonates suspected of having suffered a hypoxic event at birth. Dr. Duchowny examined Ashley on September 21, 1992, as well as observed her at hearing, and was familiar, as was Dr. Ross, with the pertinent medical records. It was Dr. Duchowny's opinion that Ashley was substantially and permanently mentally impaired, but that her physical impairment could best be described as mild to moderate. As to causation, it was Dr. Duchowny's opinion that the cause (etiology) of Ashley's mental and physical impairment (neurologic syndrome) was a developmental problem of in utero (prenatal) or genetic origin, and that any fetal distress she may have suffered at birth was not substantial and did not contribute to her condition. [Tr. 97] Here, I accept the testimony and opinion of Dr. Duchowny as being the more credible and substantial as to whether Ashley sustained a substantial and permanent mental and physical impairment, and the cause of such dysfunction. Dr. Duchowny's opinions are credible, supported by the observations of other physicians as heretofore noted, and are most consistent with conclusions to be drawn or inferences raised by the medical records received into evidence.
