Findings Of Fact Scott was born on September 14, 2019, at Brandon Hospital located in Brandon, Florida. The Petition alleges that Karm Alvarez, M.D., Julia King, D.O., and Camille Christelle Imbo-Nlogo, M.D., provided obstetrical services at Scott’s birth.1 Upon receiving the Petition, NICA retained Donald Willis, M.D., a board-certified obstetrician/gynecologist specializing in maternal-fetal medicine, as well as Luis E. Bello-Espinosa, M.D., a pediatric neurologist, to review Scott’s medical records and condition. NICA sought to determine whether Scott suffered a “birth-related neurological injury” as defined in section 766.302(2). Specifically, NICA requested its medical consultants opine whether Scott experienced an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury which occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period. And, if so, whether this injury rendered Scott permanently and substantially mentally and physically impaired. Dr. Willis reviewed Scott’s medical records and noted that: The mother was admitted to the hospital at 36 weeks for induction of labor due to severe Preeclampsia. * * * The baby was depressed at birth. … The baby was floppy and cyanotic at birth with an initial heart rate < 100 bpm. Bag and mask ventilation was started with good response. The baby was taken to the nursery on oxygen. * * * 1 No evidence was presented to the undersigned regarding whether these doctors were “participating physicians” under the Plan at the time Scott was born. See § 766.302(7), Fla. Stat. Neurologic exam was abnormal after birth and with no improvement and the abnormal [arterial blood gas], cooling protocol was initiate for suspected hypoxic-ischemic encephalopathy (HIE). * * * The newborn hospital course was complicated by respiratory distress, elevated liver functions and mild thrombocytopenia … . Head Ultrasound after birth was normal. Continuous EEG during the initial 4 days of life was reported as normal. MRI on DOL 7 was reported as normal. * * * There was an apparent obstetrical event that resulted in oxygen deprivation during labor, delivery and continuing into the immediate post- delivery period. Fortunately, the oxygen deprivation does not appear to have resulted in brain injury, based on a normal MRI on DOL 7. Dr. Willis concluded, within a reasonable degree of medical probability, that “there was no apparent obstetrical event or mechanical trauma to the brain or spinal cord during labor, delivery, or the immediate post-delivery period.” Dr. Bello-Espinosa agreed with Dr. Willis that Scott did not suffer injuries that qualify for inclusion in the NICA Plan. Dr. Bello-Espinosa reviewed Scott’s medical records, as well as conducted an independent medical examination of Scott on August 28, 2020. Dr. Bello-Espinosa opined, within a reasonable degree of medical probability: Scott is an Eleven and a half month-old boy [with] history of therapeutic cooling for hypoxic-ischemic encephalopathy which occurred at birth. Scott’s comprehensive neurological examination is normal today. There was no evidence of upper or lower motor neuron signs, nor finding to indicate any residual encephalopathy or brain dysfunction. His development and cognitive abilities are appropriate for his age despite his history of perinatal asphyxia. Considering the clinical presentation, I do feel that there is not enough evidence to recommend Scott is included in the NICA program. Dr. Bello-Espinosa concluded that Scott does not suffer from a permanent and substantial mental or physical impairment. Dr. Bello- Espinosa did not find any evidence of neurological injury related to Scott’s birth. Based on the statements from Dr. Willis and Dr. Bello-Espinosa, NICA determined that Petitioners’ claim was not compensable under section 766.302(2). A review of the documents in the record reveals no contrary evidence to dispute the findings and opinions of Dr. Willis and Dr. Bello-Espinosa. Their opinions are credible and persuasive.
Findings Of Fact Petitioners are the parents and legal guardians of Aaliyah. On March 30, 2019, Ms. Harrison gave birth to Aaliyah, a single gestation of 37 weeks, at the Hospital. Aaliyah was delivered by cesarean section and weighed 2,700 grams. Yasmine Kareem, M.D., provided obstetrical services and delivered Aaliyah. The undisputed record evidence consists of affidavits and reports of two physicians: Donald Willis, M.D., a board-certified obstetrician; and Luis Bello-Espinosa, M.D., a board-certified pediatric neurologist who conducted an independent medical examination (“IME”) of Aaliyah. Dr. Willis reviewed the medical records and summarized his opinions about Aaliyah’s delivery and the attendant complications in a report dated January 11, 2021. Dr. Willis noted that Ms. Harrison was admitted to the Hospital due to worsening chronic hypertension at 37 weeks’ gestational labor. After two days of cervical ripening and induction, during which Aaliyah’s fetal heart rate became decelerated, a Cook Balloon was placed to assist cervical dilation. At that point, a prolapsed umbilical cord was noted, and a caesarian section was performed. At birth, Aaliyah was flaccid with no respiratory effort. The Hospital administered bag and mask ventilation for over three minutes. Her APGAR scores were three at one minute, five at five minutes, and nine at ten minutes. Aaliyah was taken to intensive care, placed on a machine for respiratory depression, and underwent body cooling for suspected hypoxic- ischemic encephalopathy (“HIE”). An MRI performed five days after the birth revealed subtle changes suggestive of HIE, though Aaliyah did not suffer multi-organ failure and an EEG performed six days after her birth was normal. Aaliyah was subsequently diagnosed with global developmental delay. Based on the medical records, Dr. Willis opined to a reasonable degree of medical probability that an obstetrical event resulting in oxygen deprivation to the brain likely occurred during the birth, but it was unlikely that such an event caused a brain injury. Dr. Bello-Espinosa reviewed the medical records, conducted an IME on Aaliyah, and summarized his opinions in a report dated February 7, 2021, as to whether Aaliyah suffers from permanent and substantial mental and physical impairment caused by an oxygen deprivation event. Dr. Bello-Espinosa noted that Aaliyah was diagnosed with mild HIE at birth and that an MRI conducted on the fifth day after her birth indicated subtle changes suggestive of hypoxic-ischemic injury. However, Aaliyah’s EEG was normal, she did not suffer neonatal seizures, and her neurological examinations rapidly improved after birth. Dr. Bello-Espinosa conducted an IME on February 5, 2021. Aaliyah’s neurological examination demonstrated developmental language and motor impairments, stereotypic behavior, poor joint attention, and poor play skills for her age. However, Dr. Bello-Espinosa did not find signs of upper or lower motor neuron dysfunction that would suggest cerebral palsy. Based on the medical records and his IME, Dr. Bello-Espinosa opined to a reasonable degree of medical probability that Aaliyah suffers from substantial and permanent mental impairment but only moderate and gradually improving physical impairment, which probably was not permanent. Dr. Bello-Espinosa also opined that Aaliyah’s impairments were not likely due to a brain injury caused by oxygen deprivation during birth and that, instead, an underlying genetic condition should be investigated.
Findings Of Fact Based on all available evidence, the undersigned makes the following findings of fact. Mateo was born on July 10, 2019, at the Hospital located in Orlando, Florida. Petitioner filed the Petition with DOAH on August 28, 2019. DOAH then served a copy of the Petition on NICA on September 17, 2019. In reviewing the claim, NICA obtained medical records regarding Mateo’s birth. The medical records document that Mateo’s weight at birth was 2,365 grams. A review of the medical records submitted in this matter reveals no evidence disputing a finding that Mateo weighed under 2,500 grams at his delivery at the Hospital. Based on the evidence that Mateo weighed less than 2,500 grams at birth, NICA determined that Petitioner’s claim was not compensable. NICA subsequently filed a Motion for Summary Final Order asserting that Mateo did not suffer a “birth-related neurological injury” as defined by section 766.302(2).
Findings Of Fact Melina Antunes was born on August 27, 2015, at Florida Hospital, located in Orlando, Florida. Melina 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 Melina. In a medical report dated December 12, 2016, Dr. Willis summarized his findings and opined in pertinent part as follows: In summary, induction of labor was complicated by a spontaneous uterine rupture. The baby and placenta were expelled into the maternal abdomen. The baby was depressed at birth with low Apgar scores and a cord blood gas consistent with acidosis (pH 6.65). MRI was consistent with HIE. There was an apparent obstetrical event (uterine rupture) that resulted in loss of oxygen to the baby’s brain during labor, delivery, and continuing into the immediate post delivery period. The oxygen deprivation resulted in brain injury. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Melina and to review her medical records. Dr. Sigurdardottir examined Melina on February 15, 2017. In a medical report dated February 15, 2017, Dr. Sigurdardottir summarized her examination of Melina and opined in pertinent part as follows: Summary: Here we have a 17-month-old born after a sudden uterine rupture during active labor. The patient had neurologic depression at birth, significant acidosis with a pH of 6.6 and required active cooling as well as supportive medication for seizures in the neonatal period. She did have well documented injury on MRI but has made a remarkable recovery. Neurologic exam today, has mild abnormalities, but no standardized developmental testing is available for our review. Result as to question 1: Melina is not found to have substantial physical or mental impairment at this time. Results as to question 2: In review of available documents, Melina does have the clinical picture of an acute birth related hypoxic injury with both the clinical features of hypoxic encephalopathy and electrographic and MRI evidence to suggest hypoxic injury. Result as to question 3: The prognosis for full motor and mental recovery currently is excellent and her life expectancy is full. In light of her normal cognitive abilities and near normal neurologic exam, I do not feel that Melina should be included in the NICA program. If needed, I will be happy to answer additional questions or review further documentation of her developmental status. 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 an apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery and the post-delivery period which resulted in brain injury. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Melina does not have a substantial physical or mental impairment. Dr. Sigurdardottir’s opinion is credited.
Findings Of Fact Yancel Peraza was born on April 1, 2009, at Winnie Palmer Hospital in Orlando, Florida. Yancel weighed 3,525 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Yancel. In a medical report dated November 27, 2013, Dr. Willis opined the following: The newborn was not depressed. Apgar scores were 8/9. No cord blood gas was done. No resuscitation was required after birth. The baby had a weak right arm and some mild respiratory distress with grunting and flaring. The respiratory distress resolved shortly after birth. Neurology consultation was obtained at one day of age for evaluation of a weak right arm. Erb’s palsy was suspected. New born hospital course was otherwise uncomplicated. The baby was discharged home two days after birth with Neurology follow-up scheduled for reevaluation of the weak right arm. 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 did have a brachial plexus injury, but no damage to the spinal cord. NICA retained Michael S. Duchowny, M.D., to perform an independent medical examination of Yancel. Dr. Duchowny examined Yancel on September 25, 2013. In a medical report dated September 25, 2013, Dr. Duchowny reported his findings and gave the following opinion: In summary, Yancel’s neurologic examination is significant for a right Erb’s (upper brachial plexus) palsy involving the C5 and C6 dermatomes. He has a preserved individual finger dexterity and fine motor coordination but is mechanically limited by a fixed elbow contracture on the right. In contrast, there are no other significant findings on the neurologic examination. Despite the absence of supplementary medical records, Yancel’s neurological examination today that is consistent with an Erb’s palsy of the upper cervical nerve roots anatomically places his deficit outside the central nervous system (brain and spinal cord). For this reason, I do not believe that Yancel should be considered for compensation within the NICA program. A review of the file does not show any contrary opinion, and Petitioner and Intervenors have no objection to the issuance of a summary final order finding that the injury is not compensable under Plan. The opinion of Dr. Willis that Yancel did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate postdelivery period is credited. The opinion of Dr. Duchowny that Yancel has Erb’s palsy, which is outside the central nervous system, meaning that the injury does not involve the brain or spinal cord, is credited.
Findings Of Fact Adalynn was born on April 24, 2018, at Sarasota Memorial Hospital, located in Sarasota County, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Adalynn. In a medical report dated September 5, 2019, Dr. Willis summarized his findings and opined in pertinent part as follows: In summary, labor was complicated by FHR decelerations requiring Cesarean delivery. Umbilical artery cord pH was 7.12 with a base excess of -7.8, suggesting a significant oxygen deprivation did not occur during labor or delivery. Apgar scores were 3/9. The baby was stabilized in the delivery room on room air and transferred to the MBU. The baby apparently remained stable until about 7 to 12 hours after birth when the baby was noted to be fussy, poor feeding and with increased muscle tone. Seizure activity was noted on the EEG and MRI was consistent with HIE. There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery or the immediate post-delivery period that would have resulted in brain injury. Brain injury did occur as some time after birth, as documented by EEG and MRI. However, medical records do not suggest the brain injury was birth related. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a Board- certified pediatric neurologist, to examine Adalynn and to review her medical records. Dr. Duchowny examined Adalynn on September 24, 2019. In a medical report dated September 27, 2019, Dr. Duchowny summarized his examination of Adalynn and opined in pertinent part as follows: In SUMMARY, Adalynn’s neurological examination reveals global delay. She has four-limb static hypotonia and dynamic hypertonia with spasticity, hyperreflexia, left exotropia, microcephaly, absent communication, pseudobulbar affect and an in- dwelling gastrostomy. There is a history of seizures that are presently controlled on two anti-seizure medication[s]. A review of medical records further reveals that Adalynn was the product of a term pregnancy and delivery by urgent caesarian section. Her Apgar scores were 3 and 9 at 1 and 5 minutes. Venous umbilical cord blood gases were pH of 7.21 and base excess of - 7.4. She did not require resuscitation and was stable on room air. Liver function tests were elevated but there were no other indications of systemic organ involvement. Seizures commenced at 12 hours of age and were treated with phenobarbital and phytoin. Increased lactic acid was noted. Adalynn was noted to be hypertonic at birth. MR imaging performed on April 27th (DOL#3) revealed increased signal in the bi-occiptal regions and cerebral peducles. A subsequent MRI performed on May 3rd demonstrated increased signal in sensorimotor cortex, centrum semiovale, symmetric globus pallidus, putamen and occipital cortex as well as the pons and cerebral peduncles. MR spectroscopy revealed widespread signal increases in hemispheric grey and white matter. Based on the imaging findings, microcephaly, developmental delay and increased lactate, metabolic and genetic studies were undertaken and revealed multiple abnormalities. Although a definitive diagnosis has not yet been obtained, the genetic abnormalities in Adalynn’s mitochondrial genome are the most likely explanation for her neurological disability, imaging and laboratory values and clinical presentation. Based on today’s evaluation and medical record review, I am not recommending that Adalynn be considered for inclusion in the NICA program. On February 14, 2020, Dr. Duchowny provided an addendum to his prior opinion, following the review of additional medical records provided by Petitioners, which included the results of genetic testing. Dr. Duchowny opined that this additional information “further supports the original recommendation that Adalynn should not be considered for inclusion into NICA.” 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 to Adalynn's brain during labor, delivery, and the post-delivery period which resulted in brain injury. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that Adalynn should not be considered for inclusion in the NICA program. Dr. Duchowny’s opinion is credited. Dr. Willis reaffirmed his opinions in an affidavit, dated March 20, 2020. Dr. Duchowny reaffirmed his opinions in an affidavit dated April 17, 2020.
