Findings Of Fact Gianna was born on August 20, 2017, at Traditions Hospital, located in St. Lucie County, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Gianna. In a medical report dated February 29, 2020, Dr. Willis summarized his findings and opined, in pertinent part, as follows: In summary, labor at term was complicated by an abnormal FHR tracing that required Cesarean section delivery. Umbilical cord blood gas pH of 7.04 would seem consistent [with] the FHR pattern prior to delivery. Although there was some acidosis at birth, cord pH and base excess were not substantial enough to likely result in significant brain injury. This would be consistent with Apgar scores of 9/9, suggesting no significant birth related depression or hypoxia. Head enlargement was noted at birth and head ultrasound within two hours of birth showed dilated ventricles, consistent with hydrocephaly. These findings were confirmed by subsequent MRI. It is most likely the brain injury occurred at some time in the prenatal period and not birth related. As stated above, the baby’s brain injury does not appear to be the result of oxygen deprivation or trauma during the birth process or immediate post delivery period. NICA retained Luis E. Bello-Espinosa, M.D. (Dr. Bello), a medical expert specializing in pediatric neurology, to examine Gianna and to review her medical records. Dr. Bello examined Gianna on February 25, 2020. In a medical report dated February 25, 2020, Dr. Bello summarized his examination of Gianna and opined, in pertinent part, as follows: Gianna is a 2 1/2 year old girl born at term via C- section noticed at immediately after birth to have severe megalencephaly, and clinical signs of severe increased intracranial pressure. An urgent head ultrasound demonstrated bilateral ventriculomegaly, right intraventricular hemorrhage, and suspicion of agenesis of the corpus callosum. MRI of brain at Miami Children’s hospital done on day 1 of life showed severe enlargement of the third and lateral ventricles. Transependymal flow of cerebrospinal fluid was seen around the lateral ventricles being worse in the left cerebral hemisphere and extending to a greater degree in the left occipital and parietal lobes. Extensive intraventicular hemorrhage is seen with large clot identified in the right later ventricle. Her subsequent course required 7-VP shunt related surgeries at Miami Children’s hospital but since she was discharged at 7-month of age she had not had any seizures [or] other neurological related events. Gianna’s neurological examination today revealed she still has enlarged head, as well as left sided hemiparesis with upper motor neuron signs, in addition to cognitive dysfunction and stereotypic behavior as seen in children with autism. She has a VP shunt in place, but no longer evidence of decompensated intracranial pressure. * * * In reviewing all the available documents, the evolution of her symptoms, the birth findings, the acute brain ultrasound and acute brain MRI changes, it is evident that Gianna clinical findings are the result of a prenatal condition, are not due to a birth injury, and not due to oxygen deprivation of the brain at birth. * * * Considering the clinical presentation, I do feel that there is no evidence to recommend Gianna is included in the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that it is unlikely that any significant oxygen deprivation occurred prior to the birth of Gianna. Dr. Willis’s opinion is credited. There are no expert opinions filed that are contrary to Dr. Bello’s opinion that Gianna should not be considered for inclusion in the NICA program. Dr. Bello’s opinion is credited. Petitioner, despite attending the April 23, 2020, telephonic status conference, and agreeing to the April 29, 2020, Joint Response to Scheduling Order, which states, in part, that “NICA is of the opinion that the issues can be resolved by Motion for Summary Final Order, which it intends to file in the near future[,]” has failed to respond to the Motion or the undersigned’s Order to Show Cause.
