Findings Of Fact Noble was born on May 4, 2017, at Bayfront Health St. Petersburg. Noble was a single gestation, weighing over 2,500 grams at birth. With respect to Noble’s birth, obstetrical services were provided by Prashanti Logeswaran, M.D., a NICA participating physician, in the course of labor, delivery, or resuscitation in the immediate post-delivery period. NICA retained Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, to review Noble’s medical records and opine as to whether there was an injury to his brain or spinal cord that occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period due to oxygen deprivation or mechanical injury. In his report dated June 18, 2018, Dr. Willis set forth the following: In summary, what appeared to be an uneventful vaginal birth resulted in newborn depression with Apgar scores of 3/4/6. Bag and mask ventilation was required at birth, followed by CPAP in the nursery. ABG at one hour after birth was consistent with acidosis. The pH was 7.18 with a base excess of -11. Seizure activity developed within the first 24 hours after birth and was confirmed by EEG. MRI on DOL 3 had findings consistent with ischemic brain injury. There was no apparent obstetrical event that resulted in oxygen deprivation during labor and delivery, but oxygen deprivation did occur in the post-delivery period. The oxygen deprivation resulted in brain injury. Dr. Willis affirms in his affidavit, dated September 4, 2018, the above-quoted opinion based upon his education, training, experience, and to a reasonable degree of medical probability. NICA also retained Laufey Y. Sigurdardottir, M.D., a pediatric neurologist, to review Noble’s medical records, conduct an Independent Medical Examination (IME), and opine as to whether he suffers from a permanent and substantial mental and physical impairment as a result of a birth-related neurological injury. Dr. Sigurdardottir reviewed the available medical records, obtained information regarding Noble’s developmental trajectory from Petitioners, and conducted an IME of Noble on May 23, 2018. Dr. Sigurdardottir’s affidavit, attached to NICA’s Motion, provides in pertinent part, as follows: Based upon my education, training and experience, it is my professional opinion, within a reasonable degree of medical probability that although there is evidence of impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury, he has made an excellent recovery and has minimal delays in development at this time. He has no delays in mental abilities. A review of the file reveals that no contrary evidence was presented to refute the findings and opinions of Dr. Willis and Dr. Sigurdardottir. Their unrefuted opinions are credited.
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.
