Findings Of Fact On December 13, 2018, Petitioner filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. for benefits pursuant to sections 766.301-766.316, Florida Statutes, otherwise known as the Plan. The baby was born on April 1, 2018, at Winnie Palmer Hospital for Women and Babies (Hospital). The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records the Hospital submitted with the Petition. In the instant case, NICA has retained Donald C. Willis, M.D. as its medical expert specializing in maternal- fetal medicine. Upon examination of the pertinent medical records, Dr. Willis opined: There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the baby's brain or spinal cord during labor, delivery or the immediate post-delivery period. Dr. Willis’s medical report dated February 25, 2019, (which reviews additional medical records), are attached to his Affidavit, with the Affidavit being attached to the motion as Exhibit “1”. His Affidavit reflects his ultimate opinion that: The baby suffered cerebral infarction, which appear to have occurred after the period of stabilization during the immediate post delivery period. Medical records do not suggest the cerebral infarction occurred during labor, delivery or the immediate post delivery period. As such, it is my ultimate opinion that there was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the baby's brain or spinal cord during labor, delivery or the immediate post-delivery period. In the instant case, NICA has retained Michael S. Duchowny, M.D. as its medical expert in pediatric neurology. Upon examination of the child and the pertinent medical records, Dr. Duchowny opined: I reviewed medical records which document Elias's birth at 37 weeks' gestation at Winnie Palmer Hospital. The pregnancy was complicated by pre-eclampsia, asthma, GERD and obesity. The mother had a fever to 101 degrees at time of delivery and was diagnosed with chorioamnionitis. Elias was born vaginally with a birth weight of 5 pounds 10 ounces (2547 grams). Apgar scores were 8 and 9 at 1 and 5 minutes. Elias was admitted to the NICU and found to have a blood glucose of 35. His NICU stay was further complicated by apnea and desaturation that raised concerns for seizures; he was started on Keppra, Elias was never intubated or mechanically ventilated and was maintained on room air. An MRI scan of the brain on DOL #2 revealed multiple ischemic infarcts involving the left lateral temporal lobe, left posterior thalamus and left hippocampal formation. There was adjacent extra-axial hemorrhage over the left temporal lobe. The findings were felt to most likely represent areas of venous infarction. Dr. Duchowny’s medical report is attached to his Affidavit, with the Affidavit being attached to the motion as Exhibit “2”. His Report reflects his ultimate opinion that: A consideration of the findings from today's evaluation and record review lead me to recommend that Elias not be considered for compensation within the NICA program. He has normal motor functions and his stroke was likely acquired prenatally. There is no evidence of either mechanical injury or oxygen deprivation in the course of labor, delivery or the immediate post-delivery period. The Affidavits of Dr. Willis and Dr. Duchowny are the only evidence of record relating to the issue of whether the subject claim is compensable as defined by the statute. As noted, Petitioner did not file a response to the motion, nor submit countervailing affidavits. The Petition, along with the Affidavits attached to the motion, establish that there are no genuine issues of material fact regarding the compensability of this claim.
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).
The Issue At issue is whether Tristen Onofry, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Victoria Hill and Keith Onofry are the parents of Tristen Onofry, a minor. Tristen was born a live infant on July 29, 2002, at Tallahassee Memorial Regional Medical Center, Tallahassee, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Tristen's birth was Minal K. Krishnamurphy, M.D., who at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. To resolve whether Tristen suffered a "birth-related neurological injury," the parties offered the medical records related to Tristen's birth and subsequent development (Joint Exhibit 1), and the opinions of Michael Duchowny, M.D., a physician board-certified in pediatrics; neurology, with special competence in child neurology; and clinical neurophysiology (Joint Exhibit 2). Notably, Dr. Duchowny evaluated Tristen on October 6, 2004, and reported the results of his evaluation, as follows: PHYSICAL EXAMINATION reveals an[] alert and cooperative, well developed, well-nourished, 2-year-old, left-handed boy. Tristen weighs 23 pounds and is 32 inches tall. His head circumference measures 46.4 centimeters, placing him at the 10th percentile for age match controls. There are no dysmorphic features and no cranial or facial anomalies . . . [or] asymmetries. There are no neurocutaneous stigmata. The neck is supple without masses, thyromegaly, or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. Tristen's NEUROLOGIC EXAMINATION reveals him to be cooperative but with no speech output. He does know colors by pointing. He does not interact with meaningful speech sounds. He seems to enjoy the examination and actively participated. There are prominent tongue thrusting movements and intermittent drooling. The cranial nerve examination reveals full visual fields to direct confrontation testing. Funduscopic examination reveals sharply demarcated disc margins without optic pallor. There is no retinopathy. Pupils are 3 mm and react briskly to direct and consensually presented light. The extraocular movements are conjugate and full in all planes of gaze. The motor examination reveals a static hypotonia with dynamic hypertonicity most prominent in the lower extremities. At rest, Tristen demonstrates an overly full range of motion at all joints. He will then stiffen with activated movement. There are bilateral AFO's in place. Tristen shows no evidence of stable weightbearing and has poor head control with the head flopping forward. He has a wide based stance and demonstrates truncal ataxia. He is able to grasp objects only with a palmar grasp and has no evidence of developed pincher grasp in either hand. He tends to grasp cubes but cannot transfer and drops them readily. He cannot build a tower of cubes. There are no pathological reflexes. The deep tendon reflexes are 2+ in the upper extremities but 3+ at both knees and 3+ at the ankles. There are bilateral Babinski responses. The spine is straight without dysraphic features. Tristen maintains a plantar grade attitude when held in the vertical position. His shoulder girdle seems to slip through the examiner's hands. Sensory examination is intact to withdrawal of all extremities to stimulation. The neurovascular examination reveals no cervical, cranial, or ocular bruits and no temperature or pulse asymmetries. As for the etiology of Tristen's impairments, it was Dr. Duchowny's opinion, based on the results of his neurologic evaluation of Tristen and review of the medical records, that, while of unknown etiology, Tristen's impairments were most likely developmentally based, and not associated with oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or the immediate postpartum period. In so concluding, Dr. Duchowny observed that the impairments demonstrated by Tristen are consistent with the syndrome of ataxic cerebral palsy, a developmentally-based brain disorder acquired before the onset of labor. Dr. Duchowny was also of the opinion that the medical records did not reveal evidence of a substantial mechanical or hypoxic event having occurred during labor and delivery. As for the significance of Tristen's impairments, it was Dr. Duchowny's opinion that Tristen is permanently and substantially physically impaired. However, mentally, Tristen is not similarly affected or, stated otherwise, he is not permanently and substantially mentally impaired. Notably, Dr. Duchowny's opinions were uncontroverted, grossly consistent with the record, and credible.
The Issue The issues presented in this cause are: (1) Whether or not the Petitioner, Terri Taylor weighed at least 2500 grams at birth; (2) Whether or not the Petitioner, Terri Taylor, suffered a brain or spinal cord injury resulting from oxygen deprivation or mechanical injury during labor, delivery or resuscitation in the immediate post-delivery period in a hospital; (3) Whether such injury resulted in a permanent and substantial mental and physical impairment to Petitioner Terri Taylor; and, (4) Whether or not obstetrical services were delivered by a participating physician in the course of labor, delivery or resuscitation in the immediate post- delivery period in a hospital.
Findings Of Fact That Terri Taylor, a minor, was born to Latrina Taylor on February 1, 1991, at Baptist Medical Center, 800 Prudential Drive, Jacksonville, Florida 32207. That the physician delivering obstetrical services during the birth of Terri Taylor was H. Wade Barnes, Jr., M.D., who at all times material to this cause was a "participating physician" with the Florida Birth-Related Neurological Injury Compensation Plan. That the estimated fetal weight of Terri Taylor at birth was in excess of 2500 grams. That Terri Taylor was neurologically evaluated on June 24, 1992 at the Miami Children's Hospital by Michael S. Duchowny, M.D. That Dr. Duchowny, a board certified pediatric neurologist, concluded that Terri Taylor suffered from a substantial neurological deficit involving spasticity in all four limbs, cortical blindness, microcephaly, and a complete lack of expressive language skills. That the neurological deficits experienced by Terri Taylor were not the result of oxygen deprivation or mechanical injury suffered during labor, delivery, or resuscitation in the immediate post-delivery period. Instead, the evidence of record indicates that the organic brain damage suffered by Terri Taylor is a result of a prenatally acquired infection which caused irreversible brain damage in a pattern consistent with such a process. Specifically, a neuroimaging study (MRI) demonstrated the existence of cystic encephalomalacia represented by multiple cystic cavities throughout the brain with fibrotic bands around the cavities. This is a pattern of brain damage consistent with a prenatally acquired infection. Based upon the foregoing medical evidence, Dr. Duchowny concluded that Terri Taylor suffered from a prenatally acquired infection which resulted in extensive cystic encephalomalacia as evidenced in the neuroimaging studies. Therefore, Dr. Duchowny concluded that Terri Taylor did not suffer from a birth-related neurological injury as defined at Section 766.302(2) Florida Statutes. His findings are accepted.
The Issue At issue in this proceeding is whether Oscar Roberto Nunez Cano, 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 Ana Isabel Cano and Roberto Nunez are the parents and natural guardians of Oscar Roberto Nunez Cano (Oscar), a minor. Oscar was born a live infant on February 20, 1997, at Jackson Memorial Hospital, a hospital located in Miami, Dade County, Florida, and his birth weight was in excess of 2500 grams. The physicians providing obstetrical services during the birth of Oscar were, at all times material hereto, participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimants demonstrate, more likely than not, that the infant suffered an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Oscar's presentation On June 23, 1999, following the filing of the claim for compensation, Oscar was examined by Michael Duchowny, M.D., a pediatric neurologist. Dr. Duchowny's evaluation revealed the following: HISTORY ACCORDING TO MRS. CANO-NUNEZ . . . Mrs. Cano-Nunez began by explaining that Oscar's major problem is that he has 'no movement in his left arm'. This has been a problem since birth when he presented with a weakness of the left upper extremity. Oscar was the product of a term gestation born at Jackson memorial Hospital with a birth weight of 10-pounds. The mother indicated that he was 'to [sic] big when delivering' and the delivery 'caused his left arm tendons to be damaged'. Oscar ultimately remained in the Newborn Intensive Care Unit for a total of 21 days. Mrs. Cano-Nunez feels that Oscar was left with essentially a functionless left arm. He was seen by several physicians, but ultimately was referred to Dr. John Grossman who did neural graphing in August of 1998. The surgery resulted in 'some recovery of function, but he still is limited'. The left hand serves principally as a helper with his right hand performing the majority of motoric tasks. Oscar otherwise enjoys good health. He is on no intercurrent medications and there has been no exposure to toxic or infectious agents. His milestones have been delayed in that he did not walk until 1 1/2, but he spoke in words at a year. He is not yet toilet trained. His immunization schedule is up to date and he has no known allergies. * * * PHYSICAL EXAMINATION reveals Oscar to be an alert, socially integrated and cooperative 2 1/2 year old boy. The weight is 36-pounds. His head circumference measures 51.4 cm and the fontanelles are closed. There are no digital, skeletal or palmar abnormalities and no significant dysmorphic features. The spine is straight without dysraphism. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. There is a healed scar over the left supraclavicular area and further scaring of the left posterior leg where a serial nerve was taken for graphing. Both scars demonstrate keloid formation. NEUROLOGICAL EXAMINATION reveals Oscar to maintain fluent speech. His cranial nerve examination reveals full visual fields to confrontation testing and normal ocular fundi. The pupils are 3 mm and react briskly to direct and consensually presented light. There is blink to threat from both directions. The tongue and palate move well. There are no significant facial asymmetries with the exception of the left palpebral fissure which appeals slightly widened. There is no heterochromia irides and no obvious ptosis or anhydrosis on the left. Motor examination reveals symmetric strength, bulk and tone of three extremities with the left continuing to demonstrate prominent weakness. There is 1-2/5 weakness of the musculature of the proximal shoulder girdles with 3-4/5 strength more distally. Left scapular winging is noted and there is a loss of muscle bulk over the deltoid region, as well as the musculature of the mesial scapular border. Oscar is unable to elevate his shoulder above 20 degrees below neutrality. He has 'Porter's Tip' sign of the hand. Grasping is performed primarily with the right hand and he often crosses the midline. He can not grasp independently with the left. In contrast, the right upper extremity and lower extremities have normal strength, bulk and tone and the deep tendon reflexes are 2+. The deep tendon reflexes in the left upper extremity are trace/absent throughout. Station and gait are age appropriate with the expected diminished arm swing on the left. Sensory examination is deferred. In SUMMARY, Oscar's neurologic examination reveals evidence of a significant left upper extremity monoparesis. In contrast, the remainder of his neurologic examination is normal and his speech is progressing satisfactorily. I believe his cognitive status is normal. The future prognosis of left upper extremity function is guarded, as he has not responded well to surgery. The injury Oscar suffered to his left upper extremity (a brachial plexus injury) during the course of delivery is not, anatomically, a brain or spinal cord injury, and does not affect his mental abilities. Moreover, apart from the brachial plexus injury, Oscar was not shown to suffer any other injury during the course of his birth. Consequently, the proof fails to demonstrate that Oscar suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during the course of labor or delivery that rendered him permanently and substantially mentally and physically impaired.
The Issue At issue in this proceeding is whether Hawke Carter, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact As observed in the preliminary statement, neither Petitioner nor anyone on her behalf appeared at hearing, and no proof was offered to support her claim. Contrasted with the dearth of proof offered by Petitioner, Respondent offered the opinions of Michael S. Duchowny, M.D., a physician board-certified in pediatric neurology, and Charles Kalstone, M.D., a physician board- certified in obstetrics and gynecology. It was Dr. Duchowny's opinion, based on his neurological evaluation of Hawke on July 26, 2000 (at 2 1/2 years of age) and his review of the medical records regarding Hawke's birth, as well as the opinion of Dr. Kalstone, based on his review of the medical records, that Hawke's current neurological condition (which reveals evidence of severe motor and cognitive deficits) did not result from oxygen deprivation, mechanical trauma or any other event occurring during the course of labor, delivery, or resuscitation in the immediate post-delivery period. Rather, it was their opinion that Hawke's disabilities are developmentally based and associated with a congenital syndrome, genetic in origin. Given Hawke's immediate perinatal history, which evidences an uncomplicated labor, delivery, and immediate post-partum period, as well as evidence of congenital heart disease, a diagnose of DiGeorge syndrome (confirmed by positive FISH analysis) and dysmorphic (malformed) features, the opinions of Doctors Duchowny and Kalstone are rationally based and supported by the record. Consequently, their opinions are credited, and it must be resolved that Hawkes' disability is associated with genetic or congenital abnormality, and is not related to any event which may have occurred during the course of his birth.
The Issue At issue is whether Robert Donald Vose, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Dawn Vose is the parent of Robert Donald Vose, a minor. Robert was born a live infant on August 15, 2001, at Baptist Hospital, Pensacola, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Robert's birth was Jill Prafke, M.D., who, at all times material hereto, was a "participating physician" in the Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant, permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. To resolve whether Robert suffered a "birth-related neurological injury," the parties offered the medical records related to Robert's birth and subsequent development (Respondent's Exhibit 3), as well as the opinions of Donald C. Willis, M.D., a physician who practices maternal-fetal medicine, and Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. (Respondent's Exhibits 1 and 2). With regard to injury, Dr. Willis was of the opinion that Robert suffered a brain injury (a venous sinus thrombosis and choroid plexus hemorrhage) at or around the time of delivery, that resulted in the development of hydrocephalus. However, he offered no opinion regarding the extent or significance of the brain damage. (Respondent's Exhibit 2). In contrast, Dr. Duchowny evaluated Robert on May 4, 2006, and concluded that his "normal neurological status together with a review of the accompanying medical records does not suggest that he has a substantial mental or motor impairment," as required for coverage under the Plan. (Respondent's Exhibit 1). Dr. Duchowny reported the results of his evaluation, and the basis for his opinion, as follows: I had the pleasure of evaluating Bobby Vose on May 4, 2006. Bobby is a 4-year-old, left-handed, prekindergarten student who was brought by his father for evaluation. This was conducted in my office at Miami Children's Hospital. HISTORY ACCORDING TO THE FATHER: Mr. Vose explained that Bobby was brought in order to "verify his abilities for NICA." He believes that Bobby is developing normally and in fact, is above average in several areas. He will be starting kindergarten in September and has done extremely well in his prekindergarten class setting. In fact, his language abilities are above average for age and he is bilingual with approximately 70 words of Spanish. He is a sociable boy who plays well with other children and his motor milestones have progressed normally. He sleeps through the night. His vision and hearing are intact. There has been no regression and no toxic or infectious exposure. Bobby is on no intercurrent medications. Bobby's PAST MEDICAL HISTORY is significant for placement of a ventriculoperitoneal shunt as a newborn. He apparently experienced an intercranial hemorrhage into the right ventricle and had a shunt placed from the anterior horn of the right ventricle into the peritoneal cavity. His shunt has functioned well and there have been no complications or revisions . . . . Otherwise, Bobby enjoys good health. He is not being followed for any chronic illnesses and has not required medical or surgical intervention subsequent to the newborn period. PERINATAL HISTORY: Bobby was born at Baptist Hospital in Pensacola at 37-weeks gestation. There was an attempt at a vaginal delivery but "the head was wedged" and Bobby was ultimately delivered by emergency cesarean section. He weighed 8 pounds and breathed well at birth. He remained in the hospital for approximately 11 days. GROWTH AND DEVELOPMENT: Bobby's father could not recall Bobby's motor or language milestones except to note that all occurred at the normal time. Bobby is fully immunized and has no known drug allergies. He has had a hernia repaired. * * * PHYSICAL EXAMINATION reveals an alert, well- developed, pleasant and cooperative 4-year- old boy. Bobby weighs 38 pounds. The skin is warm and moist. Bobby's head circumference measures 51.9 centimeters, which is within standard percentiles for age. The fontanels are closed. The ventriculoperitoneal shunt reservoir is palpated over the right frontal bone and shunt tubing is noted in the right anterior lateral neck region and across the thorax and abdomen. There is a healed right, upper quadrant abdominal scar. There are no cranial or facial anomalies or asymmetries. No dysmorphic features or cutaneous stigmata are noted. The neck is supple without masses, thyromegaly or adenopathy. The lung fields are clear and the heart sounds are normal. There is no palpable abdominal organomegaly. Peripheral pulses are 2+ and symmetric. NEUROLOGICAL EXAMINATION likewise discloses no significant findings. Bobby is alert, pleasant and cooperative. He answers all questions fluently with a good fund of information and an age appropriate stream of both thought and attention. He cooperated with all aspects of the evaluation. The cranial nerve examination reveals full visual fields to direct confrontation testing and normal ocular fundi. The optic disc margins are clearly demarcated and there is no optic pallor. There are no significant retinal findings. The extraocular movements are full and conjugate. The pupils are 3 mm and react briskly to direct and consensually presented light. There is blink to threat from both directions. The tongue is moist and papillated and moves well in all plains. The uvula is midline. The pharyngeal folds are symmetric. Motor examination reveals symmetric strength, bulk, and tone. There are no adventitious movements and no focal weakness or atrophy. The deep tendon reflexes are 2+ throughout. Plantar responses are downgoing. Station and gait are appropriate for age. The arm swing is symmetric. Sensory examination is intact to withdrawal of all extremities to stimulation. Neurovascular examination reveals no cervical, cranial, or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Bobby's neurological examination in detail reveals no significant focal or lateralizing findings. The ventriculoperitoneal shunt is likely to be nonfunctional at this point. Bobby's normal neurological status together with a review of the accompanying medical records does not suggest that he has a substantial mental or motor impairment. . . . I, therefore, do not believe that he is eligible for compensation under the NICA statute.
