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 At issue in this proceeding is whether Kallie Morgan Luten, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental Findings Cheryl and Richard Luten are the parents and natural guardians of Kallie Morgan Luten (Kallie), a minor. Kallie was born a live infant on June 15, 1993, at Tallahassee Memorial Regional Medical Center (Tallahassee Memorial), a hospital located in Tallahassee, Leon County, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Kallie was Jana M. Bures-Forsthoefel, M.D., who was, at all time material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Here, the proof is uncontroverted that Kallie suffered an injury to her brain caused by oxygen deprivation, secondary to a fetomaternal transfusion, also referred to as a fetal-maternal transfusion or hemorrhage in these proceedings (a transplacental passage (loss) of fetal blood into the circulation of the mother), which rendered her permanently and substantially mentally and physically impaired. What is at issue is the timing of such event or, stated differently, whether such event and Kallie's ensuing injury occurred during "the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital," as advocated by petitioners, or whether the fetomaternal transfusion and injury predated such events, as advocated by respondent. 1/ Mrs. Luten's Antepartum Course and Kallie's Delivery At the time of Kallie's conception, Mrs. Luten was 23 years of age, and without prior pregnancy. Her estimated date of confinement was established as July 10, 1993, and the progress of her pregnancy was essentially normal until June 14, 1993. On June 14, 1993, with Kallie at 36 weeks gestation, Mrs. Luten reported for work, as usual, by 8:30 A.M. At or about 10:00 A.M. Mrs. Luten experienced a sharp pain in her left side, and approximately thirty minutes later began to experience irregular contractions. Around 1:00 P.M., Mrs. Luten began to notice decreased fetal movement. Although "uncomfortable throughout the day," Mrs. Luten remained at her place of employment until 4:30 P.M., when she returned to her home. Following her husband's arrival, at a time not apparent from the record, the Lutens telephoned the offices of her obstetrician, Dr. Jana Bures-Forsthoefel (Dr. Forsthoefel). 2/ Dr. Forsthoefel returned the call in the early evening, at which time she was advised of the pain Mrs. Luten had been experiencing in the "left upper quadrant," the decreased fetal movement, and the contractions she had experienced during the course of the day. As a consequence, Dr. Forsthoefel asked Mrs. Luten to come to the hospital for further monitoring. Mrs. Luten was admitted to the antenatal testing unit at Tallahassee Memorial Regional Medical Center at approximately 7:30 P.M. Physical examination revealed the cervix to be long, closed, and thick and the fetus out of the pelvis with vertex presentation. In sum, a non-labor cervix. The membranes were intact, and there was no evidence of amniotic fluid. At approximately 7:45 P.M., Mrs. Luten was placed on an external fetal monitor. 3/ At the time, fetal heart tone was noted to be between 130 and 145 beats per minute, a normal range; however, the heart rate pattern was nonreactive (without accelerations), an abnormal circumstance. Notably, such nonreactive pattern was not reassuring for fetal well-being, could reflect fetal compromise, and persisted throughout the evening. At approximately 8:30 P.M., Mrs. Luten evidenced a large contraction, with a late deceleration of the fetal heart rate to 110 beats per minute for 80 seconds. Mrs. Luten was repositioned to her side, with the recovery of fetal heart rate to base line. Further uterine irritability was noted, but without further decelerations. An IV was started for dehydration, and Mrs. Luten's pain in the left upper quadrant was noted to resolve within an hour of her admission. Because of the late deceleration and nonreactive pattern, Mrs. Luten was ordered to remain at the hospital overnight for observation and long term monitoring. At the time, the physician's plan was to discharge Mrs. Luten in the morning if the baby did well during the night and, if not, to proceed with further studies. Among the possibilities was an amniocentesis to assess the maturity of the infant's lungs, with delivery if stable. At approximately 9:40 P.M., Mrs. Luten had another spontaneous contraction with a late deceleration to 100 beats per minute lasting 140 seconds. Mrs. Luten was again repositioned. At approximately 10:00 P.M. a deceleration unassociated with a contraction was noted to 95 beats per minute and lasting 120 seconds. Thereafter, monitoring evidenced continued uterine irritability and small contractions without deceleration. There were, however, no regular contractions or other objective evidence of labor, and there was not such evidence at any time during the course of monitoring. Mrs. Luten was transferred from the antenatal testing unit to the labor and delivery suite later in the evening, and at approximately 1:00 A.M., June 15, 1993, she was given Nembutal for sleep. Approximately 30 minutes later the fetal heart tones were noted to have diminished to 110 to 120 beats per minute, a normal reaction following the Nembutal, and no unusual activity was noted until approximately 2:40 A.M. At that time, a spontaneous contraction was noted, with a late deceleration which recovered. A few minutes later the fetal heart rate began to slowly drop, unassociated with any uterine activity, and by approximately 2:55 A.M. the fetal heart rate was at 80 to 90 beats per minute. The drop in fetal heart rate was unresolved by positioning, hydration and oxygenation, and at approximately 3:10 A.M. Dr. Forsthoefel was called. Dr. Forsthoefel arrived at the hospital at approximately 3:20 A.M., and a fetal heart rate of 80 to 90 beats per minute was confirmed. Fetal activity was noted, and Dr. Forsthoefel elected to do an emergency cesarean section for prolonged bradycardia. Mrs. Luten was taken to the operating room, and a low transverse cesarean section was performed. On entry into the uterus, there was no cord problem identified and the amniotic fluid was clear. Kallie was delivered at 3:36 A.M. and handed off to the attending neonatologist (Dr. Gary Cater) after cord clamping. Cord blood was obtained which appeared thin and watery. There was no blood in the uterine cavity, and examination of the placenta showed it to be posterior and intact, with no evidence of abruption. The placenta was manually removed, with no blood clot noted posteriorly. There was no abnormal bleeding noted at the time of delivery, and no obvious cause of fetal distress could be identified. The cervix was noted to be long, closed and thick, as it had been on Mrs. Luten's admission to the hospital. At delivery, Kallie was pale, flaccid and without spontaneous movement, and her heart rate was around 30 or 40 beats per minute. Demonstrated Apgars were 1 at one minute, 2 at five minutes, 2 at ten minutes, and 3 at fifteen minutes. Kallie was promptly intubated and bagged with 100 percent oxygen. Because of her pallor and lack of perfusion, an umbilical venous catheter was placed and epinephrine and Plasmanate (a volume expander to increase the blood volume of the infant so there is adequate volume to circulate through the body to transport oxygen) was administered. By about 5 minutes of age, Kallie's heart rate was greater than 100, and she was taking an occasional gasp. At 15 to 20 minutes of life, Kallie was transported to the neonatal intensive care unit (NICU) where she was placed on a ventilator, IVs were placed, and a transfusion started. Upon transfusion, she started to improve, both by appearance and by activity; however, a few hours later her condition suddenly deteriorated and required substantially increased ventilator settings. Over the next couple of days, Kallie's respiratory status gradually improved, and she was ultimately weaned off the ventilator and extubated on June 18, 1993. Kallie had two crainal ultrasounds, one on June 15, 1993, and the other on June 21, 1993, which were normal. An EEG of November 5, 1993, evidenced "[n]o significant abnormalities for age"; however, an MRI brain scan of the same date revealed: There are prominent CSF spaces bilaterally including the region of the inner hemispheric fissures. White matter maturation appears normal for age. The lateral ventricles are slightly prominent. No evidence of mass effect or intracranial hemorrhage. The brain stem appears normal. IMPRESSION: Prominent CSF spaces bilate- rally. Mild prominence to the lateral ventricles. At approximately 6 months of age, Kallie developed infantile spasms/seizures, which were confirmed by EEG of January 6, 1994. The proof is uncontroverted, as evidenced by the consensus of opinion of the physicians who testified and the objective evidence accorded by testing of the maternal blood following Kallie's delivery, that the injury to Kallie's brain, evidenced by the MRI brain scan of November 5, 1993, was occasioned by an acute anoxic event, secondary to a significant fetal to maternal bleed (a fetomaternal transfusion). 4/ The proof is likewise uncontroverted that the injury to Kallie's brain has rendered her permanently and substantially mentally and physically impaired. 5/ Consequently, resolution of this claim resolves itself to whether the proof supports the conclusion that the fetomaternal transfusion, and Kallie's consequent injury, occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period, as advocated by petitioners, or prior to such events, as advocated by respondent. 6/ The Timing of Kallie's Insult In resolving the issue relating to the timing of Kallie's insult, it is first observed that the proof is compelling that upon admission to Tallahassee Memorial on June 14, 1993, Mrs. Luten was not in labor, and did not at any time thereafter go into labor, as that term is commonly understood and as that term is used in the Plan. Notably, when Mrs. Luten was physically examined on admission the cervix was long, closed and thick (a non-labor cervix) and the fetus was out of the pelvis. Moreover, following admission Mrs. Luten was continuously monitored until the cesarian section, without evidence of regular contractions. Finally, upon delivery the cervix was examined and noted as still long, closed and thick. Such objective findings are inconsistent with labor, and the absence of labor was clearly noted by Mrs. Luten's attending physician. 7/ While not in labor, such observation does not compel the conclusion that Kallie's injury is not covered by the Plan. Indeed, apart from injuries "occurring in the course of labor," the Plan also covers injuries "occuring in the course of . . . delivery or resuscitation in the immediate post-delivery period." Consequently, if it can be shown that the fetomaternal transfusion occurred during the later period, Kallie's injury would be covered by the Plan. 8/ In further resolving the issues relating to the timing of Kallie's insult, the records in this case have been painstakingly reviewed on numerous occasions, including the observations and opinions of the physician experts offered on behalf of petitioners and those offered on behalf of respondent. Having closely evaluated the physicians' observations and opinions, it is concluded that the opinions of the physicians offered by respondent, that Kallie's insult most likely predated her mother's admission to the hospital, are most consistent with the objective proof of record, and therefore most credible. The opinions offered on behalf of petitioners are less than persuasive given such considerations, and are therefore rejected in large measure. 9/ In concluding that the proof demonstrates, more likely than not, that Kallie's injury predated her mother's admission on June 14, 1993, it is first observed that upon admission Kallie's presentation was consistent with fetal compromise. In this regard, the proof demonstrates that decreased fetal movement had been observed prior to admission, and that upon admission Kallie's heart rate pattern was nonreactive, without accelerations, and that pattern continued until delivery. An absence of accelerations, especially over an extended period as experienced in the instant case, is an ominous sign for fetal well being, and when viewed with the decreased fetal movement and decelerations evidenced during the course of admission is consistent with prior hypoxic insult. 10/ The absence of accelerations of fetal heart rate during the term of Mrs. Luten's admission is also objective evidence that the fetal maternal transfusion/hemorrhage occurred prior to admission. In this regard, it is noted that the initial reaction of the fetus to hemorrhage or acute blood loss is an acceleration in fetal heart rate, which was totally absent during the course of admission in this case. 11/ Further objective evidence of fetal insult prior to admission is the absence of any apparent cause, at delivery, to explain the ominous character of Kallie's presentation upon her mother's admission except acute fetomaternal hemorrhage. In this regard, it is noted that upon delivery the amniotic fluid was clear, no blood was observed in the uterine cavity, the placenta was intact and without blood clot and, despite scrutiny, the physician could not identify any obvious sign to account for Kallie's fetal distress. Subsequently, Kallie was noted to have suffered a fetomaternal transfusion, which unquestionably accounted for her hypoxic brain injury. Such is the only identified event that could reasonably account for the character of Kallie's presentation upon her mother's admission to the hospital. Finally, proof was offered, through the opinions of Lance Wyele, M.D. neonatologist, that Kallie's clinical course was consistent with that of an infant beyond an acute injury phase. 12/ In that regard, Dr. Wyele observed that following delivery, the damaged organs were not demonstrating physiologic and pathophysiologic findings that one would see in the acute post-injury period, but were showing a much later pattern. Moreover, he observed that certain patterns one would expect to note following an acute insult were absent. Among the sequelae absent were hyper-alertness with weakness, as well as seizures in the initial 12 to 24 hours following delivery, and the absence of any evidence of cerebral edema within 24 to 72 hours of delivery. Consequently, Dr. Wyele opined that the fetomaternal transfusion, and Kallie's substantial brain injury, occurred at least 48 hours prior to delivery, and did not coincide with the fetal bradycardia which precipitated her delivery. Dr. Wyele's observations and opinions are consistent with the objective proof of record, are credible, and are accepted.
Findings Of Fact Jacob Baselice was born on July 19, 2010, at Memorial Hospital Miramar located in Miramar, Florida. Jacob weighed 6 pounds 2 ounces at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Jacob. In an affidavit dated December 3, 2014, Dr. Willis described his findings in pertinent part and gave the following opinion: It is my opinion that SHONA BASELICE’s term pregnancy ended with a spontaneous vaginal delivery of a healthy newborn. The newborn was not depressed. Apgar scores were 9/9. No resuscitation was required. The newborn hospital course was uncomplicated. Several months after hospital discharge, the baby was diagnosed with developmental delay and brain injury, documented by MRI. This child has a brain injury, as documented by MRI. However, the injury does not appear to be birth related. Unlike this case, babies with a birth related hypoxic brain injury are generally depressed at birth and have a complicated newborn hospital course. As such, it is my 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. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Jacob and to review his medical records. Dr. Duchowny examined Jacob on October 8, 2014. In a report dated October 14, 2014, Dr. Duchowny opined as follows: In summary, Jacob’s neurological examination reveals findings consistent with global developmental delay and a substantial mental and motor impairment. He evidences spastic quadriparesis, absence of expressive and receptive communication skills, and four limb involvement with hypotonia, dystonic postures and athetoid movement. He has dysmorphic features and unexplained corneal clouding. Jacob’s motor findings are consistent with a diagnosis of ataxic hypotonic cerebral palsy. I had an opportunity to review medical records which were sent on August 21, 2014. They reveal that Jacob’s mother was a carrier for cystic fibrosis and that her alpha- fetoprotein was elevated during pregnancy. Jacob was born after spontaneous rupture of membranes and delivered vaginally. His Apgar scores were 9 & 9 at 1 and 5 minutes and he had a loose double nuchal cord that was easily removed. He was resuscitated easily. His birth weight was 6 pounds 2 ounces. The amniotic fluid was clear. I believe that Jacob’s findings are most consistent with a prenatally acquired syndrome, given his dysmorphic features and corneal clouding. The medical records do not provide evidence to suggest that Jacob’s neurological impairment resulted from either oxygen deprivation or mechanical injury acquired in the course of labor or delivery. It would be useful, however, to review his MRI scans and I would request an opportunity to review them. However, pending any unexpected findings from the MRI review, I believe that Jacob should not be considered for compensation within the NICA program. In an addendum to his report dated November 19, 2014, Dr. Duchowny opined: I reviewed an MRI scan of the brain for Jacob Baselice obtained on August 24, 2011. This study revealed abnormalities consistent with periventricular leukomalacia as well as immature delayed myelination. These findings are consistent with both prenatal and perinatally-acquired brain injury. However, based on the clinical findings, I continue to believe that Jacob’s neurological problems did not result from either mechanical injury or oxygen deprivation at birth. Dr. Duchowny reaffirmed his opinions and conclusions in an affidavit dated December 4, 2014. A review of the file in this case reveals that there have been no 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. Dr. Willis’ opinion is credited. There have been no contrary opinions filed that are contrary to Dr. Duchowny’s opinion that although Jacob has a substantial mental and motor impairment, the medical records and clinical findings do not provide evidence that his neurological injury resulted from either oxygen deprivation or mechanical injury acquired in the course of labor or delivery. Dr. Duchowny’s opinion is credited.
The Issue The issue in this case is whether Ajani Buchanan 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 Ajani Buchanan was born on March 18, 2012, at Memorial Regional Hospital in Hollywood, Florida. Ajani 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 Memorial provided to NICA. At all times material, both Memorial and Dr. McCreath were active members under NICA pursuant to section 766.302(6) and (7). Ajani was delivered by Dr. McCreath, who was a NICA- participating physician, on March 18, 2012. Petitioner contends that Ajani suffered a birth-related neurological injury and seeks compensation under the Plan. Respondent contends that Ajani 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 C. 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: Based on available medical records, there does not appear to be a birth related hypoxic injury. The newborn hospital records confirm that there was no oxygen deprivation to the baby during labor, delivery or the immediate post delivery period. Dr. Willis’ medical report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that “there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period.” 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 Ajani 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 Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), as its medical expert in pediatric neurology. Upon examination of the child and the pertinent medical records, Dr. Sigurdardottir opined: Ajani is a 5-year-old boy with history of an autistic regression at age 18 months and no obvious perinatal injury that can be identified. Result as to question 1 [Does the child suffer from a permanent and substantial mental and physical impairment?]: Ajani is found to have substantial delays in mental abilities with non-verbal moderate to severe autism. His motor capabilities are grossly within normal limits. Result as to question 2 [If so, is 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, there is no evidence of an incident during labor or delivery consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury. Result as to question 3 [What is the prognosis and estimate of life expectancy?]: The prognosis for full motor recovery is excellent and prognosis for mental recovery is poor. The life expectancy is normal. In light of evidence presented I believe Ajani does not fulfill criteria of a substantial mental and physical impairment to be included in the NICA program. . . . Dr. Sigurdardottir’s medical report is attached to her Affidavit. Her Affidavit reflects her ultimate opinion that “the IME and record review do not support a finding that Ajani suffered a ‘birth-related neurological injury.’” 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. Sigurdardottir. The opinion of Dr. Sigurdardottir that Ajani did not suffer a substantial mental or physical impairment acquired in the course of labor or delivery is credited.
