Findings Of Fact Petitioners are the parents and natural guardians of Yahsir. On April 8, 2019, Ms. Mallory gave birth to Yahsir, a single gestation of 39 weeks, at the Hospital. Yahsir was delivered by cesarean section and weighed 3,786 grams at birth. Ted Robertson, M.D., and Megan Bagwell, M.D., provided obstetrical services and delivered Yahsir. The undisputed evidence in the record consists of signed reports of two physicians—Donald Willis, M.D., an obstetrician, and Michael Duchowny, M.D., a pediatric neurologist who conducted a remote evaluation of Yahsir. Dr. Willis reviewed the medical records and summarized his opinions about Yahsir’s delivery in a report, dated October 9, 2020. According to Dr. Willis, Ms. Mallory suffered from elevated blood pressure at 34 weeks gestational age and was diagnosed with preeclampsia after a brief hospital evaluation. As a result of the preeclampsia, she was admitted to the Hospital on April 7, 2020, for induction of labor at 39 weeks. Yahsir was delivered the next morning by cesarean section due to a non- reassuring fetal heart rate pattern and suspected placental abruption. Yahsir was depressed at birth with APGAR scores of two at one minute, five at five minutes, and eight at ten minutes. Yahsir’s heart rate was less than 60 bpm at birth. Positive pressure ventilation was initiated without the need for chest compression and bag and mask ventilation continued for three minutes. Oxygen was weaned and Yahsir was transferred to the NICU. Yahsir arrived in the NICU with an oxygen saturation of 95 percent on room air and no further respiratory distress occurred before his discharge. The medical records noted that Yahsir was “without clinical encephalopathy.” No seizure activity occurred during his stay in the Hospital. At Yahsir’s pediatric follow up appointment at four days old, he was noted as having a bilateral upper extremity tremor. Neurological evaluation was scheduled and, at five months old, Yahsir was diagnosed with spastic cerebral palsy. An MRI conducted at seven months was normal. Based on the medical records, Dr. Willis opined that Yahsir’s neurologic issues do not appear to be birth related. Although the labor was complicated by a non-reassuring fetal heart rate pattern, Yahsir was initially depressed at birth with low APGAR scores, and was later diagnosed with cerebral palsy, Dr. Willis noted that Yahsir suffered no multi-system organ failures or seizure activity at the Hospital and had a normal MRI finding at seven months old. Dr. Duchowny reviewed the medical records, conducted a virtual neurological evaluation by Zoom on October 30, 2020, and summarized his opinions in a report, dated November 6, 2020, as to whether Yahsir suffers from permanent and substantial mental and physical impairment caused by an oxygen deprivation event. Yahsir was 18 months old at the time of the evaluation. He was previously diagnosed with cerebral palsy and leg tightness has been his major issue. He began physical therapy at four months old and began walking independently at eight months old. He can run, climb stairs, and has no motor regression. He can use both hands cooperatively and has no required medical treatment for spasticity. His previous MRI findings were normal. Yahsir’s communication is delayed. He did not say any words until about 12 to 13 months old and only seems to repeat what he hears, but he understands spoken language without difficulty. Yahsir’s speech sounds are unclear, but his hearing and vision are good. He has no significant feeding issues and has gained weight steadily. Yahsir has significant sleep issues and he is prone to temper tantrums, but his overall health is otherwise stable. He attends daycare five days per week. Dr. Duchowny found Yahsir to be an alert, well-developed, and well- nourished infant. Although Yahsir showed mild speech delay, Dr. Duchowny believed that would improve with speech therapy. Based on the medical records and evaluation, Dr. Duchowny did not believe that Yahsir has a substantial mental or physical impairment.
The Issue At issue is weather Tyler Anthony Carter, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Victoria Knight Carter and Roy Carter are the natural parents of Tyler Anthony Carter, a minor. Tyler was born a live infant on February 7, 2005, at North Shore Medical Center, a licensed hospital located in Miami, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were delivered at Tyler's birth by Ramon Hechavarria, 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. Here, the proof demonstrated that Tyler's delivery was complicated by a shoulder dystocia, which caused a brachial plexus injury, that resulted in a weakness (an Erb's palsy) in the left upper extremity. Otherwise, Tyler was not shown to suffer any injury at birth. To address the nature and significance of Tyler's injury, NICA offered the testimony of Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology.1 (Respondent's Exhibit 1, deposition of Dr. Duchowny). Dr. Duchowny evaluated Tyler on October 17, 2007, and reported the results of his physical and neurological evaluation, as follows: PHYSICAL EXAMINATION reveals an alert, cooperative 2 1/2-year-old, well-developed and well-nourished toddler. Tyler[] weighs 29 pounds. His skin is warm and moist. There are no dysmorphic features or neurocutaneous stigmata. Head circumference measures 49.2 centimeters, which is within standard percentiles for age. The fontanels are closed. There are no cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory, and abdominal examinations are unremarkable. Tyler's NEUROLOGICAL EXAMINATION reveals an alert and sociable toddler. His speech is fluent and appropriately articulated. He maintains an age appropriate stream of attention. His social skills are appropriately developed for age. Cranial nerve examination is unremarkable. The extraocular movements are fully conjugate in all planes and the pupils are 3 mm and briskly reactive to direct and consensually presented light. A brief funduscopic examination is unremarkable. There are no significant facial asymmetries. The uvula is midline and the pharyngeal folds are symmetric. The tongue is moist and papillated. Motor examination reveals an asymmetry of the upper extremities. There is slightly diminished muscle bulk in the distal left upper extremity. Tyler is unable to raise the left arm past neutrality. He tends to posture the left arm with flexion at the elbow and wrist. Tyler cannot fully supinate the left hand. He can build a tower with using either hand and has bimanual dexterity. However, he demonstrates a consistent right hand preference. There are no fixed contractures. The deep tendon reflexes are 2+ in the lower extremities and the right upper extremity but 1+ at the [left] biceps. The 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. In SUMMARY, Tyler's neurological examination reveals a mild left Erb's palsy, which was likely acquired during delivery due to traction on the brachial plexus. In contrast, there are no abnormalities referable to the right upper extremity or the lower extremities. Tyler's mental functioning is appropriate for age level. (Joint Exhibit 1, Report of Dr. Duchowny, dated October 17, 2007; Respondent's Exhibit 1, pp. 15 and 16). An Erb's palsy, as evidenced by Tyler, is a weakness of an upper extremity due to damage to the nerve roots of the left brachial plexus, a peripheral nerve injury, and does not represent an injury to the brain or spinal cord (the central nervous system). (Respondent's Exhibit 1, pp. 10 and 11).2 Moreover, the physical impairment Tyler suffers is mild, as opposed to substantial, and there is no compelling evidence of mental impairment, much less substantial mental impairment. (Respondent's Exhibit 1, pp. 8-10). Ackley v. General Parcel Service, 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The determination of the cause of a non-observable medical condition, such as a psychiatric illness, is essentially a medical question."); Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation."). Consequently, while Tyler may have suffered a mechanical injury, permanent in nature (to his left brachial plexus) during the course of birth, he does not qualify for coverage under the Plan.
Findings Of Fact By stipulation filed December 2, 1993, petitioners and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Florida Statutes, a claim was filed on behalf of the above-styled infant against the Florida Birth-Related Neurological Injury Compensation Association (the "Association") on behalf of Andres Romero, Bertha Romero and Alberto Romero (the "Petitioners") for benefits under Chapter 766.301-766.316 (F.S.) 1988. That a timely filed claim for benefits complying with the requirements of F.S. 766.305 was filed by the Petitioners and a timely denial was filed on behalf of the Association. That the infant, Andres Romero, was born at Baptist Hospital [sic] [medical reports and records reflect South Miami Hospital] on July 22, 1991, and that the said hospital was a licensed Florida Hospital and the attending physician was a participating physician within the meaning of Chapter 766, Florida Statutes. That the Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. That Section 766.302(2), Florida Statutes, states that "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post- delivery in a hospital, which renders the infant permanently and substantially, mentally and physically impaired. The parties agree that Andres Romero suffers from a right brachial plexus injury. That the parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., who appears on behalf of the Respondents and Leon I. Charash, M.D., who appears on behalf of the Petitioner. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further Stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply. Based upon this stipulation, the parties request the hearing officer to rule on Petitioner's claim based upon this Stipulation, the attached medical records and the deposition of Dr. Duchowny. The neurological examinations of Andres reveal that he suffered from a "mild" to "moderate" right Erb's palsy related directly to the right brachial plexus injury he received at birth. A brachial plexus injury, the cause of Erb's palsy, is not, however, a spinal cord injury. Moreover, Andres's mental functioning is normal and not impaired due to any birth-related complications.
The Issue At issue in the proceeding is whether Daniel Sicard, 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 Petitioners nor anyone on their behalf appeared at hearing, and no proof was offered to support their claim. Respondent, in light of such failure, declined the opportunity to offer any evidence. Consequently, there being no proof, it cannot be factually resolved whether Daniel Sicard, a minor, suffered a "birth-related neurological injury" as alleged in the claim for benefits.
