Findings Of Fact Maliyah Jones was born on May 28, 2013, at North Florida Regional Medical Center located in Gainesville, Florida. Maliyah weighed 3,870 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Maliyah. In a medical report dated September 15, 2015, Dr. Willis opined as follows: In summary, delivery was complicated by a shoulder dystocia, which resulted in an Erb’s palsy. Although depressed at birth, the baby had a good response to resuscitation (bag and mask ventilation) with an Apgar score of 9 at five minutes. The baby’s condition was stated to be stable on admission to the NICU. The newborn hospital course was complicated only by the Erb’s palsy. Discharge was on DOL 2. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Maliyah and to review her medical records. Dr. Sigurdardottir examined Maliyah on October 28, 2015. In a medical report regarding her independent medical examination of Maliyah, Dr. Sigurdardottir opined as follows: Summary: Maliyah is a 2-1/2 year-old born at term after an uncomplicated pregnancy with shoulder dystocia resulting in a near complete Erb’s palsy. She has required 2 surgical procedures and does have significant disability as per the Mallet scale and is likely to need more surgical procedures to enhance her functional abilities in her right upper extremity. She is, however, functioning well from a cognitive level and her gross motor skills are otherwise intact. In review of the medical records available, it seems clear that her right brachial plexopathy did occur at birth due to mechanical injury. In light of her favorable cognitive and language development our findings are the following: Result as to question 1: The patient is found to have a permanent physical impairment, but to have none or mild delays in language development. She is therefore not found to have a substantial mental and physical impairment at this time. * * * In light of the above-mentioned details, Maliyah’s restricted motor disability and near normal cognitive development, I do not recommend Maliyah to be included into the Neurologic Injury Compensation Association Program and would be happy to answer additional questions or review further medical records. In light of her favorable mental and developmental state it is doubtful that additional records would alter the outcome of our review. She is not felt to have a substantial mental impairment at this time. 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 or spinal cord during labor, delivery or the immediate post-delivery period. Dr. Willis’ opinion is credited. There are no contrary expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Maliyah is not found to have a substantial mental impairment at this time. Dr. Sigurdardottir’s opinion is credited.
The Issue Whether Emmanuel Jared Marinez, a deceased minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, the amount and manner of payment of the parental award, the death benefit, the amount owing for attorney's fees and costs, and the amount owing for past expenses.
Findings Of Fact Findings related to compensability Magaly N. Marinez is the natural mother of Emmanuel Jared Marinez, a deceased minor. Emmanuel was born a live infant on December 26, 2001, at Orlando Regional South Seminole Hospital, a hospital located in Longwood, Florida, and his birth weight exceeded 2,500 grams. Emmanuel expired January 6, 2002, following removal from life support. The physician providing obstetrical services at Emmanuel's birth was Stephen Phillips, 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.1 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 . . . 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. Here, the parties have stipulated, and the proof is otherwise compelling, that Emmanuel suffered a severe brain injury caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital that rendered him permanently and substantially mentally and physically impaired and which, following removal from life support, resulted in death. Consequently, the proof demonstrates that Emmanuel suffered a "birth-related neurological injury" and, since obstetrical services were provided by a participating physician at birth, the claim is compensable. §§ 766.309(1) and 766.31(1), Fla. Stat. Findings related to the award Where, as here, it has been resolved that a claim qualifies for coverage under the Plan, the administrative law judge is required to make a determination of how much compensation should be awarded. § 766.31(1), Fla. Stat. Pertinent to this case, Section 766.31 provides for an award providing compensation for the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, family residential or custodial care, professional residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel. However, such expenses shall not include: Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. * * * 1. Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum. Death benefit for the infant in an amount of $10,000. Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge . . . . At hearing, the parties agreed that Petitioner receive a parental award of $100,000.00, to be paid in lump sum; a death benefit for the infant of $10,000.00; an award of $10,500.00 for attorney's fees ($10,000.00) and other expenses ($500.00) incurred in connection with the filing of the claim; and no award for past expenses, since any such expenses have been paid by a collateral source. Such agreement is reasonable, and is approved.
Findings Of Fact Amy Nicole Alvarez was born on June 16, 2010, at Jackson South Community Hospital in Miami, Florida. Michael S. Duchowny, M.D. (Dr. Duchowny), was requested by NICA to do an independent medical examination of Amy and to review her medical records. Dr. Duchowny examined Amy on July 2, 2014. In an affidavit dated September 22, 2014, Dr. Duchowny reported his findings and gave the following opinion: In summary, Amy’s neurological examination today reveals mild right spastic hemiparesis, speech dysarthria and a complex visual agnosia. She additionally evidences microcephaly. Although I am concerned about Amy’s overall cognitive development due to her microcephaly, she appears to be progressing satisfactory and is making progress with respect to verbal communication both in the receptive and expressive domains. Her visual impairment is likely to be centrally-based. I had an opportunity to review Amy’s medical records. It contained information that is consistent with Amy’s overall history but I have not reviewed Amy’s brain MRI scans. However, in view of Amy’s relatively good mental development and only mild degree of motor impairment, I would not recommend inclusion within the NICA program. As such, it is my opinion that AMY NICOLE ALVAREZ is not permanently and substantially mentally impaired nor is she permanently and substantially physically impaired due to oxygen deprivation or mechanical injury occurring during the course of labor, delivery or the immediate post-delivery period in the hospital during the birth of AMY NICOLE ALVAREZ. (Emphasis in original.) A review of the file does not show any contrary opinion, nor was any potential contrary expert disclosed during the telephone hearing on the Motions for Summary Final Order. The opinion of Dr. Duchowny that Amy does not have a permanent and substantial mental or physical impairment is credited.
The Issue The issue in this case is whether Daquan T. Smith, Jr. (Daquan) suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan).
Findings Of Fact Daquan was born on November 22, 2015, at Florida Hospital, 601 East Altamonte Drive, Altamonte Springs, Florida. The pregnancy, labor, and delivery of his mother, Verdale T. Robinson, were managed by employees of Florida Hospital and Dr. Norma Waite. At all times material, both Florida Hospital and Dr. Waite were active members under NICA pursuant to sections 766.302(6) and (7). Daquan was born a live infant on November 22, 2015. Daquan was a single gestation, weighing 2,730 grams at birth. Daquan was delivered by Dr. Waite, who was a NICA participating physician on November 22, 2015. Petitioners contend that Daquan suffered a birth- related neurological injury and seek compensation under the NICA Plan. Respondent contends that Daquan has not suffered a birth- related neurological injury as defined by section 766.302(2). The medical records reviewed by Dr. Willis reflect that Daquan’s mother was admitted to the hospital at 36 6/7 weeks gestational age with vomiting, pain, and blood in the urine. She was started on antibiotics for a suspected UTI and observed. Her blood pressure began to elevate, and she was transferred to Florida Hospital for high-risk consultation. Labor was induced for suspected preeclampsia. The fetal heart rate (FHR) monitor during labor was reviewed. The initial FHR pattern showed a normal baseline rate and normal FHR variability. Variable decelerations with decreased variability developed about 30 minutes prior to delivery. Daquan’s delivery was by spontaneous vaginal birth. Daquan was initially depressed with Apgar scores 5/7/9. At birth, there was no respiratory effort, but heart rate was stated to be good. Bag and Mask ventilation was started without improvement. Daquan required intubation for respiratory distress and quickly improved, allowing extubation to nasal CPAP. Daquan started crying and his muscle tone improved. At this point Daquan was transferred to the NICU. The initial blood gas was a venous gas done about 15 minutes after birth and the pH level was 7.23, with a normal base excess. The initial arterial blood gas was done 90 minutes after birth, again with a normal pH level of 7.4. Apnea and bradycardia occurred with onset of seizure activity about 14 hours after birth. Oxygen desaturations were in the ‘70s. Bag and mask ventilation was required for a short period of time, followed by nasal oxygen. Phenobarb was started to control seizure activity. Daquan’s EEG readings were abnormal, confirming seizure activity. Head Ultrasound was normal. CT scan on DOL 2 showed minimal acute intraventricular hemorrhage and a subdural hemorrhage. MRI at seven weeks showed evidence of brain injury with volume loss. At the request of NICA, Dr. Willis, who is board- certified in obstetrics and gynecology and maternal-fetal medicine, reviewed the medical records relating to Daquan’s birth. In his report dated June 21, 2017, Dr. Willis opined that, [t]here was no apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery or the immediate post delivery period. At the request of NICA, Laufey Y. Sigurdardottir, M.D., who is board-certified in neurology, reviewed Daquan’s medical records and performed an independent medical examination of Daquan on May 17, 2017. Dr. Sigurdardottir opined, in pertinent part, that: Daquan is a 17 month old with history of neonatal seizures, after induced labor for maternal hypertension and pyelonephritis. No evidence of acute hypoxic episode during active labor and blood gas within hour after birth did not indicate significant asphyxia. MRI performed at 6 weeks of age does have some findings consistent with hypoxic ischemic injury but timing is hard to determine as being within active labor and delivery. Patient has delays in his development but as he is able to walk unassisted (short distances) at 17 months and is using gestures for yes and no, I do not feel that he has established permanent substantial motor and mental disability at this time. Result of question 1 [Does the child suffer from a permanent and substantial mental and physical impairment?]: Daquan is found to have delays in motor and language development but is making progress and is walking independently at this time therefore a permanent and substantial physical and mental impairment cannot be determined at this juncture. Result of question 2 [If so, was such an impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury? If so, is injury felt to be labor and birth related?]: In review of available documents, although having respiratory distress shortly after birth, there is no clear acute hypoxic event during labor and/or delivery, and fetal heart rate strips were benign. Laboratory tests were not indicative of an acute hypoxic injury. Neonatal seizures were seen but this does not give us a clear timeframe for timing of injury. Result as to question 3 [What is the prognosis and estimate of life expectancy?]: The prognosis for full motor and mental recovery is guarded but his life expectancy is full. Dr. Sigurdardottir's Affidavit reflects her ultimate opinion that "the IME and record review do not support a finding that Daquan suffered a 'birth-related neurological injury.'” Dr. Willis's and Dr. Sigurdardottir's opinions both support a finding that there was no injury to the brain or spinal cord of the infant caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period, which rendered the infant permanently and substantially mentally and physically impaired. Petitioners did not submit or introduce into evidence any expert reports rebutting the opinions of Dr. Willis or Dr. Sigurdardottir.
Findings Of Fact Ryan was born on September 4, 2015, at Central Florida Regional Hospital, in Sanford, Florida. The physician providing obstetric services and who was present at Ryan’s birth was Dr. David Teitelbaum. At the time of Ryan’s birth, Dr. Teitelbaum was a NICA participating physician. Respondent retained Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, to review Ryan’s medical records and opine as to whether there was an injury to his brain or spinal cord that occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period due to oxygen deprivation or mechanical injury. In a report dated April 5, 2018, Dr. Willis concluded the following: In summary, labor was complicated by a non- reassuring FHR pattern requiring emergency Cesarean section delivery. The baby was depressed at birth with Apgar scores of 2/2/4. Resuscitation included chest compressions for 2 minutes, intubation and intravenous fluid bolus. Cooling protocol was initiated. The newborn hospital course was complicated by multi-system organ failures, including respiratory distress, hypotension, coagulopathy and elevated liver function studies. Despite the clinical findings of birth related hypoxia, only the initial EEG showed mild encephalopathy, which normalized. No abnormalities were reported on brain MRI’s after birth and at 6 months of age. There was a clinically apparent obstetrical event that resulted in oxygen deprivation during labor, delivery and continuing into the immediate post-delivery period. The oxygen deprivation would have been expected to result in some degree of brain injury. Attached to Respondent’s Unopposed Motion for Summary Final Order is the affidavit of Dr. Willis, dated June 27, 2018. In his affidavit, Dr. Willis opines, based on his education, training, and experience, and within a reasonable degree of medical probability, that there was a clinically apparent obstetrical event that resulted in oxygen deprivation during labor, delivery, and continuing into the post-delivery period. Respondent also retained Laufey Y. Sigurdardottir, M.D., a pediatric neurologist, to review Ryan’s medical records, conduct an Independent Medical Examination (IME), and opine as to whether he suffers from a permanent and substantial mental and physical impairment as a result of a birth-related neurological injury. Dr. Sigurdardottir reviewed the available medical records, obtained a full historical account from Ryan’s father and family members, and conducted an IME of Ryan on November 22, 2017. Dr. Sigurdardottir’s IME report provides, in part, as follows: Summary: Patient is a 2-year-old male with history of being born via an emergency C- section after normal uncomplicated pregnancy. Apgar scores were low: 2 whole body cooling was performed at Florida Hospital at 1 minute, 2 at 5 minutes, 4 at 10 minutes and 6 at 15 minutes. And patient had neurologic sequelae including a cognitive impairment autistic features. Despite having early motor delays, he is currently ambulatory. Result as to question 1: Ryan is found to have substantial delays in mental abilities but mild delays in motor abilities at this time. Result as to question 2: In review of available documents there is evidence of impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation. Result as to question 3: The prognosis for full motor recovery is good but mental recovery is unlikely and need for vast therapies to improve his language development and decrease autistic features is needed. His life expectancy is excellent. In light of evidence presented, I believe Ryan does not fulfill criteria of both substantial and mental and physical impairments at this time. I do not feel that Ryan should be included in the NICA program for that reason. Respondent’s Unopposed Motion for Summary Final Order also relies upon the attached affidavit of Dr. Sigurdardottir, dated June 25, 2018. In her affidavit, she opines, based upon her education, training and experience, and to a reasonable degree of medical probability, that Ryan “has substantial delays in mental abilities,” however, “he has only mild delays in motor abilities.” A review of the file reveals no contrary evidence was presented to refute the findings and opinions of Dr. Willis and Dr. Sigurdardottir. Their unrefuted opinions are credited.
