The Issue At issue in this proceeding is whether Bradley John Thomas, 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 Bradley John Thomas (Bradley) is the natural son of Scott G. Thomas and Mary E. Thomas. He was born a live infant on July 8, 1989, at Baptist Hospital, a hospital located in Pensacola, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Bradley was Bo H. Bagenholm, 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. The birth of Bradley Thomas At or about 2:10 a.m., July 8, 1989, Mary Thomas was admitted to a labor room at Baptist Hospital. At the time, Mrs. Thomas was in active labor, having experienced a spontaneous rupture of the membranes with the emission of clear amniotic fluid at approximately 1:30 a.m., and Bradley was slightly post- term with a gestational age of approximately 41 weeks. Otherwise, Mrs. Thomas' pregnancy had been without complication. External fetal heart monitoring was commenced at approximately 2:15 a.m. and indicated a good base line with fetal heart tone between 125 and 140 beats per minute. From 2:30 a.m. to 2:45 a.m., the fetal heart tone was 120 to 150 beats per minute, from 2:45 a.m. to 3:00 a.m., the fetal heart tone was 115 to 145 beats per minute, and from 3:00 a.m. to 3:15 a.m., the fetal heart tone was 110 to 120 beats per minute with occasional acceleration to 160. In all, for such period, the fetal heart rate was normal, and no cause for concern. 4/ At approximately 3:15 a.m., Mrs. Thomas was removed from the monitor, provided a urine sample, and was given an enema, with good results. At 4:01 a.m., the fetal heart monitor was reapplied, and the nurse conducted a vaginal exam, at which point Mrs. Thomas was found to be 3 cm dilated. When the vaginal exam occurred, the fetal heart tone was recorded to be 120 to 130 beats per minute, with a reflex acceleration to 160 and deceleration to 60 following stimulation of the infant. Such heart rate was normal, and the reflex not unusual or ominous given the fetal heart tone recovery to the normal base line rate. 5/ Following the 4:01 a.m. vaginal examination, the fetal heart base line continued in the 120 to 160 or normal base line range until 12:14 p.m. when the fetal monitor was removed and the mother was taken to the delivery room via bed. During that period, an occasional acceleration and variable decelerations were noted, but such were not unusual or ominous given there was no persistent tachycardia or persistent decelerations. Indeed, the data recorded was consistent with the baby's reaction to examination, contractions or umbilical cord compression, and evidenced no fetal compromise. 6/ At 10:19 a.m., following an earlier epidural replacement, Dr. Bagenholm examined Mrs. Thomas and found the epidural effective and her cervical dilatation at rim. At 11:28 a.m., the nurse conducted a vaginal exam, found the mother's cervical dilation complete, and instructed her on pushing. At 12:00 p.m. (noon) the baby was noted to be at the +1/+2 station, at 12:07 p.m. to be at the +2 station, and at 12:14 p.m., the monitor was removed and the mother taken to the delivery room. Upon admission to the delivery room, the fetus continued to be monitored by doppler and evidenced fetal heart tones of 130-140 beats per minute. At 1:33 p.m., with the assistance of fundal pressure occasioned by the mother's reduced expulsion efforts, Bradley was delivered. When delivered, no meconium was present and Bradley presented with Apgar scores of 8 at one minute and 10 at five minutes. These scores are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute Bradley's Apgar score totaled 8, with heart rate, respiratory effort, muscle tone and reflex irritability being graded 2 each and color being graded 0. At five minutes, Bradley's Apgar score totalled 10, with all categories being graded at 2 each. Bradley's Apgar scores are reflective of a healthy, vigorous infant. Indeed, on presentation, Bradley evidenced all the signs of a healthy newborn, with spontaneous respiration, a strong cry, no visible signs of trauma, good heart rate and good muscle tone. At or about 2:30 p.m., following routine suctioning and administration of oxygen, Bradley was admitted to the newborn nursery. Upon admission, Bradley's physical assessment revealed, inter alia, moderate molding of the head, not unusual in an infant delivered vaginally; soft and flat fontanelle, evidencing no intercranial pressure such as one might associate with a significant bleed; strong reflexes; a pink color; and, an alert and active infant. Bradley's first twenty-five hours of life were essentially uneventful, and he evidenced the normal signs of a healthy infant including the presence of soft and flat fontanelle, at least as late as 8:00 a.m., July 9, 1989. Bradley roomed-in with his mother from 10:30 a.m. to 2:30 p.m., July 9, 1989, when he was returned to the nursery, and during that time he reflected the signs of a healthy baby. 7/ Upon his return to the nursery at 2:30 p.m., Bradley was observed to be "gaggy" and "spit up." Shortly thereafter, at approximately 2:45 p.m., Bradley suddenly turned cyanotic, facial and trunk. The nurse promptly turned Bradley over, stimulated him, and Bradley responded with a "lusty cry" and "pinked up"; however, it was noted that he had a "fixed stare" and "does not blink to threat." At 4:30 p.m., another cyanotic episode was noted and, thereafter, evidence of seizure activity appeared. Dr. Jenkins, Bradley's pediatrician, ordered a blood culture to rule out infection and at 5:15 p.m. he performed a lumbar puncture, which evidenced bloody spinal fluid. Arrangements were made to transfer Bradley to the neonatal intensive care unit at Sacred Heart Hospital, and at 7:28 p.m., Bradley left Baptist Hospital with the transport team. At Sacred Heart Hospital, a physical examination of Bradley revealed that his fontanelle were full and, thereafter, he was diagnosed to have suffered a grade IV intraventricular hemorrhage, which evidenced at approximately his twenty-fifth hour of life. That hemorrhage caused profound injury to Bradley's brain, which has rendered him "permanently and substantially mentally and physically impaired," as that term is used in Section 766.302(2), Florida Statutes. The cause of Bradley's grade IV intraventricular hemorrhage Given the foregoing, resolution of this claim resolves itself to an identification of the genesis of Bradley's grade IV intraventricular hemorrhage or, stated otherwise, whether the proof demonstrated, more likely than not, that the hemorrhage, which resulted in injury to Bradley's brain and the ensuing neurological injuries, resulted from "oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post deliver period." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. 8/ Considering the proof, for the reasons that follow, it must be concluded that petitioners have failed to demonstrate, by the requisite standard, that the injury to Bradley's brain was the consequence of "oxygen deprivation or mechanical injury" and therefore failed to demonstrate that Bradley suffered a "birth-related neurological injury," as defined by law. Sections 766.302(2), Florida Statutes. Here, the proof is compelling that a grade IV intraventricular hemorrhage in a term infant, such as Bradley, is a rare occurrence, and that its cause is often not definable. Indeed, among the physicians who testified, there is apparent agreement that approximately 25 percent of grade IV intraventricular hemorrhages have identifiable causes such as sepsis, a blood disorder, an AV malformation, genetic disorder or an identifiable prenatal event; that approximately 50 percent are related to oxygen depravation or trauma in the intrapartum period; and, that approximately 25 percent can be attributed to no known cause. As for Bradley, when Mrs. Thomas was admitted to the labor and delivery room, he was assessed to be a viable fetus with no evident signs of stress. Indeed, Mrs. Thomas' pregnancy was without complications, and any prenatal events or other known causes of a grade IV intraventricular hemorrhage, such as sepsis, a genetic disorder, a blood disorder or an AV malformation have been examined and rejected as an identifiable cause of Bradley's hemorrhage. As for the labor and delivery of Bradley, the proof demonstrates that it was essentially normal and that there was no obstetrical incident or identifiable event during labor and delivery that would evidence that Bradley had suffered a hypoxic insult or mechanical injury. Indeed, Bradley, although large, was not large for his gestational age, given the use of an epidural there was no prolonged labor, there was no cephalopelvic disproportion, no untoward molding of the head, no use of forceps or vacuum extraction in delivery, and the use of fundal pressure was appropriate and not shown to be excessive. Upon delivery, no meconium was present, no apparent cranial injuries were observed, and Bradley presented as a vigorous infant with normal Apgars. In summary, there was no identifiable incident during the course of labor or delivery, or thereafter during Bradley's first twenty-five hours of life, evidencing oxygen deprivation, mechanical injury, or other insult, that would account for the hemorrhage he suffered at approximately his twenty-fifth hour of life. Indeed, the neonatologist, Dr. Dworsky, and neurologist, Dr. Miller, who offered testimony on behalf of petitioners, acknowledged that the labor and delivery of Bradley was fairly normal with no identifiable problems that would account for the hemorrhage. Moreover, Dr. Miller concluded that in the 50 percent of hemorrhages attributable to birth trauma, the literature suggests clear evidence at birth of compromise to the infant. Notwithstanding, there being no other traumatic event known, they theorize that Bradley failed to tolerate the stress associated with labor and delivery and that, through the mechanism of changes in venous or arterial blood pressure occasioned by variable decelerations caused by compression of the umbilical cord and from compression of the head associated with delivery, Bradley suffered an insult to the intracranial blood vessels which ultimately manifested as a grade IV intraventricular hemorrhage In their opinion, such insult was the product of oxygen deprivation and trauma associated with the stress of labor and delivery. 9/ The opinions of Doctors Dworsky and Miller regarding the probable cause of Bradley's hemorrhage are rejected as unpersuasive. Such opinions are largely speculative, being based on the assumption that the birth process was the only known traumatic event in Bradley's life, ignore that percentage of cases in which it is acknowledged that the cause of hemorrhage can never be known, and are not supported by any objective evidence of trauma or oxygen deprivation of record. Indeed, given the relatively uneventful labor and delivery, as well as Bradley's vigor at birth, the opinion of Dr. Duchowny that "this baby fits into the group of term infants with an intraventricular hemorrhage for which no cause is ever identified" is most credible and is, therefore, accepted.10
Findings Of Fact Kaden Lenard McWhite was born on March 17, 2011, at Sacred Heart Hospital in Pensacola, Florida. He weighed 3,715 grams at birth. NICA requested Michael S. Duchowny, M.D. (Dr. Duchowny), a certified pediatric neurologist, to review the medical records for Kaden and to conduct an independent medical examination of Kaden. Dr. Duchowny examined Kaden on January 18, 2012. In a report dated January 23, 2012, Dr. Duchowny summarized Kaden's medical history as follows: Kaden is 10 months old and was born at term at Sacred Heart Hospital, Pensacola, Florida. He suffered severe meconium aspiration syndrome and was evacuated to Shands Hospital on the lst day of life. Kaden was placed on the cooling protocol for 72 hours; ECMO was planned but ultimately was not initiated as his pulmonary function improved. However, Kaden's course was compromised by hypertension and shock with DIC. Hypoglycemia was treated with D-10 boluses. Prior to transfer, Kaden received a packed red blood cell transfusion, fresh frozen plasma and cryoprecipate at Sacred Heart. He was documented to have both cardiac and renal dysfunction. Kaden remained hospitalized in the Newborn Intensive Care Unit for approximately one month. Upon discharge, he was clinically stable and on no medications. Kaden has done remarkably well since coming home. He has not had additional medical complications and his milestones have all been acquired on time. In fact, Kaden sat at six months and now at age 10 months is beginning to stand without support. He is enrolled in the Early Steps program essentially to monitor his progress and ascertain that he is reaching his milestones. The only supervening problem is that Kaden tends to be a head banger and a rocker. He will both bang his head against the wall and will hit his head repetitively. These behaviors occur when he does not get his way. Otherwise, there are no complaints. His vision and hearing are good and his appetite is stable. He had gained weight steadily. He sleeps through the night on most occasions but may awaken for a bottle. There have been no developmental regression and no weakness. He has never experienced seizures. Dr. Duchowny opined that Kaden does not have a substantial and permanent physical and mental injury. He summarized his findings as follows: In summary, Kaden's neurological examination in detail reveals no significant focal or lateralizing findings and is entirely normal. Given his stormy neonatal course, Kaden's outcome is truly remarkable. In retrospect, the cooling protocol may have played a decisive role in Kaden's remarkable recovery. Given his current normal neurological status, I believe that he would not be eligible for compensation within the NICA program. His future prognosis is excellent. 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. Duchowny. The opinion of Dr. Duchowny that Kaden is not substantially and permanently mentally and physically impaired is credited.
Findings Of Fact D’Taveus Drummond was born on September 3, 2010, at Heart of Florida Regional Medical Center located in Davenport, Florida. D’Taveus weighed more than 2,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for D’Taveus to determine whether an injury occurred 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 medical report dated May 12, 2015, Dr. Willis described his findings in part as follows: Spontaneous vaginal delivery was complicated by a shoulder dystocia. Birth weight was 3,766 grams or 8 lbs 5 oz’s. The baby was depressed at birth, but responded quickly to resuscitation. There was no respiratory effort at birth. Apgar score at one minute was 5. Bag and mask ventilation was given for one minute and an injection of narcan was given to reverse the respiratory depression effects of narcotics given during labor. The baby responded to resuscitation efforts and the Apgar score was 8 by five minutes. The baby did not move the right arm after birth. Erb’s palsy was diagnosed. Otherwise, the newborn hospital course was uncomplicated and the baby was discharged home with the mother two days after birth. MRI of the spine at 4 months of age identified a traumatic neuroma of the right, but no abnormalities of the cervical spine. MRI of the brain was normal. Nerve graph was done at about 6 months of age. Neurology evaluation at that time stated the child was developmentally on target at 6 months of age. In summary, delivery was complicated by a shoulder dystocia and resulting brachial plexus injury. The baby did not have problems related to birth hypoxia. Newborn course was complicated only by the brachial plexus injury. There was no apparent 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. Dr. Willis reaffirmed his opinion in an affidavit dated December 11, 2015. NICA retained Laufey Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine D’Taveus and to review his medical records. Dr. Sigurdardottir examined D’Taveus on November 4, 2015. In an affidavit dated February 19, 2016, Dr. Sigurdardottir opined as follows: Summary: Here we have a 5-year 1-month old boy with known shoulder dystocia leading to right bracial plexopathy which occurred at birth. He has required multiple procedures to address his traumatic neuromas as well as increase his functional ability but yet has significant disability in the functional abilities of his right upper extremity. There is no history given or relayed to us regarding his mental abilities, but on observation during his visit, he is noted to be verbal and have no clear major mental impairment. Result as to question 1: The patient is found to have mild or no mental impairment. * * * In light of the above-mentioned details including his normal or near normal mental capacity and limited motor disability to his upper extremity, I do not recommend D’Taveus to be included into the Neurologic Injury Compensation Association (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 there was no apparent 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. Dr. Willis’ opinion is credited. There are no contrary expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that D’Taveus has mild or no mental impairment with normal to near normal mental capacity. Dr. Sigurdardottir’s opinion is credited.
Findings Of Fact Bella B. Diaz was born on July 31, 2013, at Baptist Hospital located in Miami, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Bella. In a report dated November 2, 2016, Dr. Willis described his findings in pertinent part as follows: Cesarean section was done for post-dates with unfavorable cervix and decreased FHR variability. Birth weight was 3,385 grams. Amniotic fluid was clear. The newborn was not depressed. Apgar scores were 9/9. Pediatric evaluation at delivery stated the “baby came out vigorously crying.” No resuscitation was required. The baby was taken to the normal nursery. The initial meconium drug screen was positive for cannabinoids, but repeat testing the following day was negative. Chest X-ray suggested an enlarged heart, but ECHO was essentially normal. The baby was transferred to the NICU about 3 hours after birth due to clinically evident Jaundice. Neurologic exam was normal. The baby did not have any respiratory distress. ABO blood type incompatibility was diagnosed as the cause of Jaundice and managed with phototherapy. The baby was noted to have poor feeding and neurologic evaluation initiated. EEG was done on the day after birth and was abnormal, consistent with diffuse encephalopathy. The abnormal EEG findings were felt to be only due to immaturity and expected to improve. Follow-up EEG at 1 month of age was normal, but EEG at 16 months of age was again abnormal with findings suggestive of global cortical dysfunction. MRI at one month of age was normal. Follow up MRI at 6 months of age was essentially normal with “delayed myelination for the age of the patient.” No structural defects were seen. An extensive Genetic evaluation was negative. Chromosome analysis showed a pericentric inversion of chromosome #9, which is considered a normal variation. Microarray was negative. Evaluation at 19 months of age described a child that was unable to walk or stand unassisted and with global developmental delay. No obvious cause was identified. In summary, labor was induced for post-dates. There was no change in the cervix after overnight cervidil induction. Primary Cesarean section delivery was done the following morning. The newborn was not depressed. Apgar scores were 9/9. The baby was “active and responsive” at birth. No resuscitation was required. The baby was taken to the normal newborn nursery. Shortly after delivery the baby was transferred to the NICU for clinically apparent Jaundice. Poor feeding lead to further evaluation, including MRI, which was normal. Genetic evaluation was negative. 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 reaffirmed his opinion in an affidavit dated December 12, 2016. A review of the file reveals that no contrary evidence was presented to dispute Dr. Willis’ finding that there was no apparent obstetric event that resulted in oxygen deprivation or mechanical trauma during labor, delivery, or the immediate post- delivery period. Dr. Willis’ opinion is credited.
Findings Of Fact Jinger-Anne Nobles was born on February 14, 2011, at Leesburg Regional Medical Center located in Leesburg, Florida. Jinger-Anne weighed in excess of 2,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Jinger-Anne. In a medical report dated July 14, 2014, Dr. Willis opined as follows: I have reviewed the medical records for the above individual. The mother, Katherine Johnson, was a 26 year old G4 P2 with no significant prenatal problems. The mother presented to the hospital in early labor at 38 weeks gestational age. Antibiotics were given during labor for a positive vaginal culture for Group B Streptococcus. Amniotic membranes were ruptured with clear fluid. Fetal heart rate (FHR) monitor tracing during labor was reviewed. Baseline heart rate was 135 bpm with normal variability. There was no fetal distress during labor. Spontaneous vaginal delivery was uncomplicated. Birth weight was 2,890 grams. Apgar scores were 8/9. The newborn was not depressed. No resuscitation was required. The baby was taken to the nursery and stated to be in stable condition. Newborn hospital course was uncomplicated. The baby was re-admitted to the hospital twice during the first two weeks after birth. The first was two days after newborn hospital discharge. This admission was for elevated bilirubin level. The second was for choking and vomiting with possible cyanosis. No etiology was discovered and the baby was discharged home. In summary, the baby was delivered at term by spontaneous and uncomplicated vaginal birth. There was no fetal distress during labor. The newborn was not depressed and had a normal hospital course. 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 reaffirmed his opinion in an affidavit dated December 29, 2014. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Jinger-Anne and to review her medical records. Dr. Duchowny examined Jinger-Anne on October 1, 2014. In an affidavit dated December 22, 2014, regarding his independent medical examination of Jinger-Anne, Dr. Duchowny opined as follows: In summary, Jinger-Anne’s examination reveals findings consistent with a substantial mental and motor impairment. She evidences spastic quadriparesis, microcephaly, cortical visual impairment, optic nerve atrophy, no evidence of receptive or expressive language development, and generalized hyperreflexia. I have had an opportunity to review medical records sent on May 21, 2014. They document the pre and perinatal history and provide evidence of hyperbilirubinemia, but only to a level of 15. Jinger-Anne’s mother had presented to the hospital in early labor and had artificial rupture of membranes. Her mother had a postpartum tubal ligation. Jinger-Anne’s Apgar scores were 8 and 9 at 1 and 5 minutes and her birth weight was 6 pounds 6 ounces. Cord blood gases were not drawn and apart from hyperbilirubinemia, her postnatal course was uncomplicated. Her readmission on February 18 documented a rapid rise in bilirubin, reaching a peak level of 15.4. She was also diagnosed with an acute life-threatening event which after evaluation was believed to be caused by gastro esophageal reflux. I have not yet received either of the MRI scans. Although Jinger-Anne’s course would be extremely atypical of kernicterus as most affected individuals have normal cognitive status and present with findings consistent with athetotic cerebral palsy, I believe it is prudent to review the MR images in this case before making a final recommendation with regard to consideration for acceptance into the NICA program. ADDENDUM: I have reviewed the brain MR images obtained on July 8, 2011. The study reveals no significant abnormalities. Of note, the basal ganglia and thalami are normal. The study findings support my initial impression that Jinger-Anne’s neurological problems did not result from hyperbilirubinemia, mechanical injury or oxygen deprivation acquired in the course of labor, delivery or the immediate post- delivery 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 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 are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that although Jinger-Anne’s examination reveals findings consistent with a substantial mental and motor impairment, her neurological problems did not result from hyperbilirubinemia, mechanical injury or oxygen deprivation acquired in the course of labor, delivery or the immediate post-delivery period. Dr. Duchowny’s opinion is credited.
Findings Of Fact Stephanie was born at St. Joseph’s on June 7, 2014. She was a child born of single gestation. NICA retained Donald C. Willis, M.D., as a medical expert specializing in maternal-fetal medicine. NICA has submitted his expert report dated August 17, 2019, and affidavit dated August 23, 2019, as Exhibit 1 in support of its Motion. According to Dr. Willis’s expert report, hypertension was noted at Ms. Garriga’s office visit at 36 weeks, but at that time, there was no indication of fetal distress. Labor was induced at 37 weeks for gestational hypertension. Fetal heart rate tracings were reported to be category 1, which indicates no fetal distress. Dr. Willis’s report states that delivery was by spontaneous vaginal birth, with a birth weight of 2,430 grams. Stephanie was depressed at birth, and although she had a “good heart rate,” there was no respiratory effort. Evaluation in the NICU showed overall decreased activity and poor muscle tone. Her chest x-ray revealed streaky infiltrates, consistent with retained lung fluid. Stephanie’s newborn hospital stay was complicated by poor feeding due to a very weak gag reflex, and g-tube feedings were required, with eventual fundoplication performed. Dr. Willis’s report also indicates that an evaluation was performed because of her poor muscle tone, and the neurological evaluation did not identify an etiology for the issue. Other tests were also normal. Dr. Willis’s ultimate opinion is that there was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery, or the immediate postdelivery period. He also noted that Stephanie’s birth- weight was below the threshold for eligibility for NICA compensation. Dr. Willis’s opinion is credited. Stephanie was also examined by Michael S. Duchowny, M.D., a pediatric neurologist. Dr. Duchowny’s August 14, 2019, expert report and August 26, 2019, affidavit were submitted as Exhibit 2 in support of NICA’s Motion. Dr. Duchowny’s IME occurred when Stephanie was five years old. Upon examination, she could not swallow, sit alone, crawl, or walk. Cognitively, Stephanie speaks well and has achieved age-appropriate speech, and Dr. Duchowny’s neurologic evaluation indicates, Neurologic evaluation reveals a sociable cooperative fully fluent 5-year-old girl. Stephanie was brought to the office in a wheelchair. She is socially interactive and answers questions with accurate verbal content. She correctly identified letters and knew primary and secondary colors. She told me her first and last names. Her speech sounds are fluent and reasonably well articulated, and she maintains an age- appropriate stream of attention. Dr. Duchowny summarized his opinion, which is credited, in his affidavit, stating: In summary, Stephanie’s general physical and neurological examinations reveal profound hypotonia and hypo-reflexia with preserved cognitive status. She is diagnosed with myasthenia gravis (along with her sister), immunodeficiency syndrome neuromuscular scoliosis and bilateral hip dislocations. . . . I reviewed the medical records sent on August 12, 2019. Stephanie was born at 37 weeks’ gestation following a pregnancy complicated by hypertension. She was born floppy with no respiratory effort, but following responded favorably to positive pressure ventilation. Apgar scores were 2, 5, and 6 at 1, 5, and 10 minutes; a venous cord pH was 7.35 with a base excess of -5.6. Severe hypotonia was noted at birth leading to early gastrostomy placement and evaluation into potential genetic causes. A neonatal MR imaging study was read as normal, while a second study at age 4 months revealed delayed myelination.[1/] Based on the record review, clinical diagnoses and the results of the IME, it is my opinion that Stephanie did not suffer an injury to the brain or spinal cord due to oxygen deprivation or mechanical injury in the course of labor, delivery or resuscitation in the immediate postdelivery period which rendered her permanently and substantially mentally and physically impaired. Based on the evidence presented in support of the Motion, Stephanie is not eligible for compensation under the Plan because her birth weight does not meet the criteria established by statute for a birth-related neurological injury. Based upon the evidence presented in support of the Motion, Stephanie has substantial physical impairments. However, the evidence does not indicate that these impairments are caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital. Finally, no evidence presented demonstrates that Stephanie suffers from any mental impairment. Petitioner has presented no evidence in response to the Motion to rebut the opinions of Dr. Willis and Dr. Duchowny as detailed in their affidavits and expert reports.
Findings Of Fact On July 13, 2011, a "Petition Under Protest" styled "Milvia Najera and Marvin Chavarria, on behalf of and as parents and natural guardians of Marvin Chavarria, a minor v. Florida Birth-Related Neurological Injury Compensation Association," was filed with the Division of Administrative Hearings (DOAH). Pertinent to the pending motions are the allegations of paragraphs 3, 4, 5, 6, and 7 of the petition: * * * Name and Address of Physician The physicians providing obstetrical services who were present at the birth are Resident Lucia Gaitan, M.D. and Attending Samir N. Beydoun, M.D. . . . Description of Disability It is alleged that Marvin Chavarria currently suffers from developmental delay. Time and Place of Birth Jackson Memorial Hospital,[2/] 1611 N.W. 12th Avenue, Miami, FL 33136 on February 5, 2005. Time and Place of Injury Jackson Memorial Hospital, 1611 N.W. 12th Avenue, Miami, FL 33136 on February 5, 2005. Statement of the Facts This claim is not compensable under NICA as Marvin Chavarria's injury does not meet the definition of a birth-related neurological injury as defined in Florida Statute 766.302(2). The reasons for non- compensability are as follows: The child does not have substantial physical and mental impairments as defined by Florida Statutes 766.302(2). * * * The Petition does not allege a lack of notice by the healthcare providers.3/ DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on July 5, 2011; served Dr. Beydoun and Jackson Memorial Hospital, respectively, on July 16, 2011; and served Dr. Gaitan on or about July 21, 2011. Upon appropriate petition and an August 16, 2011 Order, Samir Beydoun, M.D., was granted Intervenor status. On October 13, 2011, after one extension of time in which to do so, NICA filed its response required by section 766.305(4), titled "Notice of Non-Compensability and Request for Evidentiary Hearing." On October 24, 2011, Respondent NICA filed its Motion for Summary Final Order, with supporting affidavits. The thrust of Respondent's motion is that the petition for benefits was filed with DOAH on July 13, 2011, which is more than five years past the birth of the child, Marvin Chavarria, who was born on February 5, 2005. The motion states, "Accordingly, the claim is barred as a matter of law, and cannot qualify for an Award under the NICA Plan. . . . Notwithstanding, the issue of compensability must be addressed." Respondent also submitted, with its Motion for Summary Final Order, two medical affidavits to the effect that the claim is not compensable. On October 24, 2011, Petitioners filed a Notice of Joinder in Respondent's Motion for Summary Final Order. On October 27, 2011, Intervenor Samir Beydoun, M.D., filed a Response in Opposition to Respondent's Motion for Summary Final Order. On October 26, 2011, Intervenor Samir Beydoun, M.D., also filed a Motion for Summary Final Order, asserting that the Administrative Law Judge has jurisdiction to enter a summary final order solely determining that Petitioners' claim is barred by section 766.313, the statute of limitations for NICA claims. On October 28, 2011, Petitioners filed a Response and Objection to Intervenor's [Beydoun's] Motion for Summary Final Order, to which Response and Objection, Intervenor Beydoun filed an unauthorized Reply, on November 8, 2011. By Order of November 18, 2011, a pending Petition to Intervene, filed on October 24, 2011, by Public Health Trust of Miami was granted,4/ and, in an abundance of caution, this new Intervenor was given until November 30, 2011, to file a response to the two pending motions for summary final order. Public Health Trust of Miami filed no timely response(s), but joined in Dr. Beydoun's Motion by an untimely and unauthorized "Notice of Joinder" filed December 13, 2011; a Response Opposing [NICA's] Motion for Summary Final Order, filed December 13, 2011; and an "Amended" Motion for Summary Final Order filed December 14, 2011. All of the pleadings have been considered. NICA's Motion for Summary Final Order alleged that the claim against NICA is barred by the statute of limitations for NICA claims.5/ The birth certificate, which was filed with the Petition, confirms Marvin's date of birth as alleged in the Petition as February 5, 2005. No party has asserted otherwise. There also is no dispute that the Petition (claim) was filed on July 13, 2011. Therefore, there can be no reasonable debate that the NICA claim was filed more than five years beyond Marvin's birth date, and so, the claim is barred as a matter of law, and cannot qualify for an award under the NICA Plan. NICA's Motion for Summary Final Order further alleged that Marvin's claim is not compensable because he did not suffer a "birth-related neurological injury" as defined in section 766.302(2), first, because there was no apparent 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 postdelivery period, and secondly, because Marvin does not suffer from a substantial motor (physical) impairment, both of which are elements of the definition of a compensable injury, at section 766.302(2). (See Conclusion of Law 32). Attached to NICA's Motion for Summary Final Order was an affidavit by Donald C. Willis, M.D., a board-certified obstetrician with special competence in maternal-fetal medicine. Dr. Willis rendered the following opinion within a reasonable degree of medical probability: * * * In summary, baby was delivered with some mild respiratory distress that required bag and mask ventilation for about 30 seconds. Arterial blood gas was normal. The respiratory distress resolved without the need for intubation or mechanical ventilation. A tight Nuchal cord was present at birth, but did not result in oxygen deprivation. 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. As such, it is my opinion that there was no oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post- delivery [sic] in the Hospital that resulted in loss of oxygen or mechanical trauma to the baby's brain or spinal cord. Accordingly, there was no causal event which would have rendered MARVIN CHAVARRIA permanently and substantially mentally and physically impaired as a result of same. (emphasis added). Also attached to NICA's Motion for Summary Final Order was the affidavit of Michael S. Duchowny, M.D., a board- certified pediatric neurologist, who rendered the following opinion within a reasonable degree of medical probability: * * * The Florida Birth-Related Neurological Injury Compensation Association retained me as its expert in pediatric neurology in the above-styled matter to examine the minor child, MARVIN CHAVARRIA, and review the medical records from both MARVIN CHAVARRIA and his mother, MILVIA NOTERA. [sic] The purpose of my review of the medical records and evaluation of MARVIN CHAVARRIA was to determine whether he suffers from an injury which rendered him permanently and substantially mentally and physically impaired, and whether such injury is consistent with an injury caused by oxygen deprivation or mechanical injury occurring during the course of labor, delivery, or the immediate post-delivery period in the hospital. I evaluated MARVIN CHAVARRIA on October 5, 2011. A true and accurate copy of my Evaluation and Opinion is attached hereto as Exhibit 1. . . . My Opinion is reflected in my Report and is as follows: In SUMMARY, Marvin's neurological examination today reveals findings consistent with autism and pervasive developmental disorder (PDD). He has severe social and behavioral problems and also manifests expressive language delay, generalized hypotonia and has a history of a sleep disorder. There are no focal or lateralizing findings noted. I reviewed medical records that were sent on August 16, 2011. The records do not contain information that points to either an hypoxic event or mechanical injury in the course of labor or delivery. Marvin was born at term at Jackson Memorial Hospital and had Apgar scores of 9, 9 and 9 at 1, 5 and 10 minutes. Although he did have a tight nuchal cord, it was removed immediately. The postnatal course was unremarkable. Marvin's diagnostic studies further confirm that his neurological disabilities are developmentally based and likely the result of problems in brain maturation which began in utero. The physical examination today provides additional confirmation that Marvin does not suffer from a substantial motor impairment. For the above reasons, I do not believe that Marvin should be considered for compensation under the NICA statute. [6/] (emphasis added). Intervenor Beydoun's Response to NICA's Motion for Summary Final Order urges the granting of NICA's motion to the extent the claim is barred by the statute of limitations, but also urges denial of NICA's motion "because the ALJ cannot reach the question of compensability where, as here, the claim is barred by the statute of limitations.7/ Intervenor Beydoun has also filed a Motion for Summary Final Order asserting the same arguments in favor of dismissal under the statute of limitations and against dismissal upon grounds of non-compensability, because, he argues, once the statute has run, the Administrative Law Judge is without jurisdiction to determine either compensability or notice. Intervenor Public Health Trust has joined in Dr. Beydoun's Motion for Summary Final Order, and filed a Response to Motion for Summary Judgment and an Amended [sic] Motion for Summary Final Order.8/ Petitioners joined in NICA's Motion for Summary Final Order and oppose Intervenor Beydoun's Motion for Summary Final Order. It may be assumed they also oppose the Public Health Trust's late-filed items. Despite both Intervenors' opposition upon the issue of the Administrative Law Judge's jurisdiction to enter a summary final order regarding compensability where the statute of limitations for the filing of a NICA claim has run, no one has posed a challenge concerning the sufficiency of NICA's Motion for Summary Final Order's factual allegations or supporting affidavits. Given the record and the medical affidavits, there is no genuine issue of material fact that Marvin, the child named in the Petition, did not suffer a birth-related neurological injury as defined in section 766.302(2). Accordingly, NICA's Motion for Summary Final Order is, for reasons appearing more fully in the Conclusions of Law, well- founded.9/
The Issue At issue in the proceeding is whether Roger Demetrick, 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 Amy Demetrick is the mother and natural guardian of Roger Demetrick, a minor. Roger was born a live infant on January 19, 1997, at St. Vincent's Medical Center, a hospital located in Jacksonville, Florida, and his birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Roger was Timothy Michael Phelan, M.D., who was at all times material hereto a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(2), Florida Statutes. Roger's birth and subsequent development Mrs. Demetrick presented at St. Vincent's Medical Center the morning of January 19, 1997, in active labor. Apart from being pre-term, with the fetus at 36 weeks gestational age, Mrs. Demetrick's prenatal course was uncomplicated, and on admission fetal heart rate was noted within normal limits. Mrs. Demetrick's labor progressed steadily, and external fetal monitoring reflected a normal fetal heart rate throughout the course of labor. At about 10:44 a.m., spontaneous rupture of the membranes occurred, with clear amniotic fluid noted, and at 12:42 p.m., Roger was delivered by vaginal vertex presentation without difficulty, with clear amniotic fluid again noted. At delivery, Roger was noted to be somewhat poorly perfused, and was accorded blow-by oxygen for several minutes. Otherwise, no abnormalities were noted. Apgar scores were 8 at one minute and 9 at five minutes. The Apgar scores assigned to Roger are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute, Roger's Apgar score totaled 8, with heart rate, respiratory effort, muscle tone, and reflex irritability being graded at 2 each, and color being graded at 0. At five minutes, Roger's Apgar score totaled 9, with heart rate, respiratory effort, muscle tone, and reflex irritability again being graded at 2 each, and color being graded at 1. Such scores may reasonably be described as normal. Following delivery, Roger was transferred to the special care nursery. His course post-delivery is summarized by his attending physician, Arthur J. Vaughn, M.D., as follows: . . . The infant was brought to the special care nursery at St. Vincent's Medical Center and had intermittent tachypnea, pale appearance and arterial blood gases were obtained from the right radial artery. The arterial blood gases on room air revealed pH 7.29, PCO2 42, PO2 72 and a -7.2 base deficit. The infant was kept in the special care nursery and developed progressive tachypnea and retractions and repeat arterial blood gases revealed pH 7.21, PCO2 56, PO2 141 and a -7.4 base deficit. The infant was placed on hypo C-PAP and a right posterior tibial peripheral arterial line was placed by Dr. Carzoli. The infant improved on the C- PAP and the course and baby's chest x-rays were consistent with retained fetal lung fluid. The infant was able to be weaned off hypo C-PAP and off oxygen in approximately twenty-four hours. The infant then had a course consistent with a premature growing infant. The infant had intravenous antibiotics started at the time of the respiratory distress and work up was essentially negative and these antibiotics were discontinued at seventy-two hours. The infant developed some mild jaundice with a peak bilirubin level of 14.5. This jaundice resolved without treatment. The infant otherwise has been normal. He did have some problems with poor suck, swallow coordination and did require some initial nasogastric supplementation but the infant over the past several days has been taking p.o. and breast feeds well, not requiring any nasogastric feeds. The infant has continued to gain weight and keep down a normal temperature and is thus ready for discharge. The infant did have mild anemia evidenced on his hematocrit yesterday. The hematocrit was 34. The infant is to be started on Fer-In-Sol. Roger was discharged to his mother's care on January 28, 1997. Physical examination on discharge revealed: . . . a well developed, well nourished active mildly pale white male in no acute distress. HEENT - negative. Lungs - clear to percussion and auscultation in no distress. Heart - regular rate and rhythm without murmurs. Normal pulses. Abdomen - benign. No masses, organomegaly or tenderness. The abdomen is soft and nondistended. Genitourinary - normal male, recent circumcision with no active bleeding. Hips are normal without hip clicks. Neurologic - intact. Discharge diagnosis was as follows: Prematurity at thirty-three [sic] weeks. Respiratory distress - retained fetal lung fluid. Jaundice related to prematurity. Anemia - related to prematurity. Observation - sepsis. Diet - breast on demand, supplement as needed with formula. Roger was first seen by Henry Abram, M.D., his current neurologist, on June 25, 1998, at 1 1/2 years of age. Dr. Abram described the results of his examination and Roger's development following his discharge from St. Vincent's Medical Center as follows: This youngster has a complex medical history. He was born to a 27-year-old mother and was the 5 lb, 14 oz product of a 36 week gestation. The pregnancy was complicated by a viral illness at 28 weeks of gestation concurrent with weight loss, severe vomiting and diarrhea. At that time, there were some significant stresses with her marriage. Delivery was at St. Vincent's Hospital here in Jacksonville. Delivery was vaginal. Apgar scores were reported to be 8 and 9. The child had a 9-day stay in the nursery and for two days he was apparently mechanically ventilated. There were no reported neurological concerns. Developmental issues arose at approximately 6-7 months, when he was not developing normally. The mother initially admits to being in denial with these concerns, attributing the delay to his minimal prematurity. At approximately a year of age, he was referred to a developmentalist at Mercer University in Macon, when he was felt to be severely delayed. The issue of seizures came to attention in April of this year when he had an approximate 30-second generalized episode of stiffening and eye rolling. This resulted in a child neurology consultation with Dr. Janas, who was doing an outreach clinic from Atlanta in Macon. Her history is excellent and is present for my review today. She obtained a history of probably infantile spasms since early infancy. The mother is uncertain of when the movements began, but believes it was approximately 6-9 months of age. These spasms consisted of clusters seen throughout the day. The child would drop his head and shoulders forward, and his arms would come in to his chest. She initially attributed these to abdominal cramping, and it was only when the child had a prolonged seizure that these past episodes became highlighted. An EEG performed in April was felt to be hypsarrhythmic. Dr. Janas' notes clearly document significant global delay. She noted diffuse hypotonia on examination. The child's work-up at that time included an MRI scan of the brain. By report, this is felt to reveal prior ischemic injury to the right cerebral hemisphere. The child's metabolic evaluation reported a "normal" CBC, SMA-25, thyroid function tests and carnitine studies. Further studies reported to be performed included serum amino acids, urine for organic acids, urine for metabolic screen, serum lactate and chromosomes. The results of these studies are not available to me today. The child was begun on Phenobarbital in late April because of the spasms. However, within a week a diffuse "measles-like" rash developed. This medication was discontinued and the child was begun on Klonopin, and currently is on a dose of 1/2 tablet (0.5 mg tablets) given b.i.d. Initially this medication appeared to improve his seizures, however, for the past several weeks the spasms persisted daily. The child had an EEG performed at Nemours on 6/23/98. This was felt to be abnormal because of diffuse disorganization and slowing, as well as independent right and left hemisphere epileptiform discharges. * * * PHYSICAL EXAMINATION: Weight 12 kg. Head circumference 47 cm (30th percentile). The child was alert in appearance, but obviously markedly delayed. He was nonverbal and had few purposeful movements. Prominent fisting of the left arm was noted with increased tone noted in that extremity. Overall, his muscle tone appeared diminished, particularly in the lower extremities, however, DTR's were 2+ and symmetrical with a predominantly flexor plantar response. Withdrawal to light tactile stimulation was brisk and symmetrical. Cranial nerves II-XII appeared intact. Eye movements were full and conjugate. Pupils were equal and reactive to light. Brief glimpses of the fundi were unremarkable. The tongue was midline. GENERAL EXAM: HEENT: There were no cranial bruits. There were no dysmorphic features. CHEST: Clear. HEART: Regular rhythm without murmurs. ABDOMEN: Soft without organomegaly. SKIN: Without significant markings or rashes. In summary, this is a complex history in this 18-month-old youngster in whom there are many concerns. First, I agree that the child is severely and globally delayed, and there is a left spastic hemiparesis evident on exam. This is consistent with the MRI findings. It appears that the child did have a perinatal1 infarct, the etiology of which is, at this time, unclear. The child continues to have, by maternal description, infantile spasms. This has likely been a problem for at least the past year, and currently is unresponsive to Klonopin. I had a lengthy discussion with the mother discussing my concerns and recommendations. We discussed predominantly various anticonvulsant choices for the child's spasms. At this time, these are predominantly the three medication options: ACTH, Valproic acid, and Topiramate . . . . After a lengthy discussion . . . with the above options, the following recommendations were discussed and agreed upon: . . . [b]egin a trial of Topiramate [,] [r]eturn in one month's time for follow-up . . . [,] [and] continue with current OT, PT and ST. . . . It is my hope that Topiramate will abate the current infantile spasms, and be an effective long-term anticonvulsant for this youngster. I anticipate that he will continue to have severe delay and seizures and the need for special therapies will be a life-long concern. Roger's seizure disorder (epilepsy) has proven intractable, and he is currently described by Dr. Abram as a child with severe static encephalopathy and profound developmental delay. In Dr. Abram's opinion, Roger is permanently and substantially mentally and physically impaired secondary to a brain injury. As for the etiology of that injury, Dr. Abram has offered no opinion of record. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimant demonstrates, more likely than not, that the infant suffered an "injury to the brain . . . 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."2 Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, NICA does not dispute that, as observed by Dr. Abram, Roger is permanently and substantially mentally and physically impaired secondary to a brain injury. What is at issue is whether the injury Roger suffered was "caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period." As to that issue, it must be resolved, as contended by NICA, that the record fails to demonstrate with the requisite degree of certainty that Roger's injury is related to oxygen deprivation or any other event that occurred during labor, delivery, or resuscitation in the immediate post-delivery period. The cause and timing of Roger's brain injury To address the cause and timing of Roger's injury, the parties offered selected records relating to Mrs. Demetrick's antepartum and intrapartum course, as well as for Roger's birth and subsequent development. The parties also offered the opinions of two physicians by deposition (Dr. Michael S. Duchowny, a physician board-certified in neurology with special competence in child neurology, and Dr. Charles Kalstone, a physician board-certified in obstetrics), as well as the observation of Mrs. Demetrick and Christine Hambelton. The medical records and other proof have been carefully considered. So considered, it must be resolved that the proof fails to demonstrate, more likely than not, that Roger's injury was associated with oxygen deprivation or other traumatic event occurring during the course of labor, delivery, or resuscitation in the immediate post-delivery period. In so concluding, it has not been overlooked that Dr. Abram was of the opinion that Roger's injury was the apparent result of a "perinatal infarct" or, as stated elsewhere in the records, the result of a "perinatal vascular accident ('strokes')." However, as heretofore noted, the perinatal period, which is not otherwise defined of record, is commonly understood to pertain to "the period shortly before and after birth; variously defined as beginning with completion of the twentieth to twenty-eighth week of gestation and ending 7 to 28 days after birth."3 Notably, Dr. Abram did not further refine the period during which he was of the opinion Roger's injury occurred (i.e., as having occurred during labor, delivery, or resuscitation in the immediate post- delivery period) or offer any explanation as to the cause of his injury. Contrasted with the paucity of proof offered by Petitioner to establish the cause and timing of Roger's injury, NICA offered the opinions of Doctors Duchowny and Kalstone who were of the view that there was no clinical evidence of any hypoxic or traumatic event having occurred during the course of Roger's birth consistent with brain injury and, consequently, that the injury he suffered was, most likely, acquired prior to the onset of labor. In so concluding, these physicians observed that Mrs. Demetrick's labor and delivery were uncomplicated; fetal monitoring (up to 2 minutes of delivery) was normal and showed no evidence of fetal distress; that on delivery Roger's Apgars were normal and he required no special assistance other than blow by oxygen; that his blood gases within an hour of delivery were normal; and there were no post-delivery complications to suggest Roger had suffered any injury to his brain during the course of labor, delivery or resuscitation in the immediate post-delivery period. Such opinions are grossly consistent with the record, are founded on a logical premise, and are accepted as credible and persuasive.
The Issue At issue in this proceeding is whether Blane Earl Pearson, Jr., 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 Petitioners, Blane Earl Pearson and Janet Pearson, are the parents and natural guardians of Blane Earl Pearson, Jr., a minor. Blane was born a live infant on October 5, 1998, at Shands at AHG (Alachua General Hospital), a hospital located in Gainesville, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Blane's birth was Bradley Williams, 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 under the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . 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." Sections 766.302(2) and 766.301(1)(a), Florida Statutes. Here, the parties have stipulated, and the proof otherwise demonstrates, that Blane is permanently and substantially mentally and physically impaired. What remains to resolve is whether Blane's impairment is related to an injury to the brain caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the hospital. Blane's birth At or about 6:30 a.m., October 5, 1998, Mrs. Pearson (with an estimated date of delivery of October 10, 1998, and the fetus at 39+ weeks gestation) presented to Alachua General Hospital for induction of labor. At the time, Mrs. Pearson's membranes were noted as intact, and no contractions or vaginal bleeding were observed. External fetal monitoring, which began at 6:41 a.m., revealed a reassuring fetal heart rate. Pitocin drip was started at 7:59 a.m., and by 9:19 a.m., Mrs. Pearson was experiencing irregular contractions. In the interim, external fetal monitoring revealed a reassuring fetal heart rate (in the 130 beat per minute range), with good reactivity and variability.3 Mrs. Pearson's labor progressed steadily, and at or about 11:50 a.m., vaginal examination revealed the cervix at 3 centimeters dilation, effacement at 80 percent, and the fetus at station -1. At that time, the membranes were artificially ruptured, with clear fluid noted, and Dr. Williams authorized an epidural anesthesia.4 Mrs. Pearson's labor continued to progress steadily, and at 1:04 p.m., with the cervix at 10 centimeters dilation, effacement at 100 percent, and the fetus at station +1, Dr. Williams was called and advised that Mrs. Pearson was "complete and wanting to push." Dr. Williams announced he was "on his way," arrived in the labor and delivery room at 1:18 p.m., and at 1:20 p.m., Blane was delivered spontaneously, without incident. On delivery, Blane was bulb-suctioned, accorded blowby oxygen, dried, and moved to a radiant warmer. Initial newborn assessment noted no apparent abnormalities. Apgar scores were recorded as 8 at one minute and 9 at five minutes. The Apgar scores assigned to Blane are a numeric expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute, Blane's Apgar score totaled 8, with heart rate, respiratory effort, muscle tone, and reflex irritability being graded at 2 each, and color being graded at 0. At five minutes, Blane's Apgar score totaled 9, with heart rate, respiratory effort, muscle tone, and reflex irritability again being graded at 2 each, and color now being graded at 1. Such score is considered good, and inconsistent with recent hypoxic insult or trauma. Following the initial newborn assessment, Blane was examined by Karen Dees, an advanced registered nurse practitioner (ARNP). On examination, Ms. Dees noted Blane as "active," and her physical examination as "unremarkable" or stated otherwise, within normal limits (WNL). Ms. Dees completed her examination at or about 1:45 p.m., and executed the standard orders for Blane's admission to the newborn nursery. Blane transitioned for a brief period with his mother in the labor and delivery room and was then transferred to the newborn nursery, where he apparently did well until 5:20 p.m., when he was noted with tachypnea (at a respiratory rate of 68), slight nasal flaring, and respirations that appeared irregular. Questionable circumoral cyanosis was noted, with quick return to pink. Blane was transported to the neonatal intensive care unit (NICU) for evaluation by NICU staff. At the time, he again evidenced circumoral cyanosis, as well as an apneic episode, and was provided blowby oxygen and stimulation, with quick return to pink. Blane was admitted to NICU (for further management and observation), and placed on monitors and under an oxyhood. Labs were ordered (BC, ABG, and CBC with differential), and antibiotics (ampicillen and gentamicin) were prescribed for suspected sepsis. During the late afternoon and early evening, Blane was noted with several more apneic episodes, followed by tachypnea. And, at 8:00 p.m., Blane was noted to exhibit extensioned extremities, hypotonia, weak grasp, and deep to shallow irregular non-labored respirations. At 9:00 p.m., Blane experienced a long apneic spell requiring stimulation. No obvious seizure activity was noted, but his eyes deviated to the left. The impression was apnea of unknown etiology, respiratory distress of unknown etiology, and possibly intraventricular hemorrhage (IVH), seizures, and hypocalcemia. The Plan was to continue antibiotics and to perform a cranial ultrasound (to rule out a bleed). The cranial ultrasound was done at 11:00 p.m., and read as follows: HISTORY: Apneic spells and possible seizure activity. Evaluation for intracranial hemorrhage in a full term, newborn infant. FINDINGS: The intracranial, supratentorial structures are well delineated and exhibit no apparent hemorrhage or mass effect. The ventricles are not enlarged. The posterior fossa structures are seen best sagittally and appear unremarkable. IMPRESSION: NO HEMORRHAGE IDENTIFIED During the ultrasound, Blane had another apneic episode, requiring ambu bagging. At 1:00 a.m., October 6, 1998, Blane was given phenobarbital for suspected seizure activity, and at 1:30 a.m., he was intubated and placed on a ventilator because of multiple apneic episodes. Later that morning, at or about 9:00 a.m., Blane was transferred to Shands Hospital at the University of Florida (Shands Hospital), a level 3 neonatal intensive care facility, where he remained until October 17, 1998, when he was discharged to his mother's care. While admitted to Shands Hospital, Blane underwent a number of studies to identify the cause of his difficulties (seizures/apnea). Among those studies was an EEG, as well as CT of the head, done on October 6, 1998. The EEG was read, as follows: IMPRESSION: This is an abnormal EEG because of the presence of sharp waves seen over the frontocentral and temporal regions. This is consistent with but not diagnostic of a seizure disorder. In addition, positive sharp waves are also noted over both temporal regions. This is consistent with a diagnosis of intraventricular hemorrhage or periventricular leukomalacia. The CT of the head was reported, as follows: The peripheral cortical areas in the ACA and MCA distributions bilaterally have markedly decreased attenuation and loss of cortical sulci. These changes are most pronounced on the right. There is no evidence for intracranial hemorrhage. There is no evidence of herniation at this time. The basal ganglia, thalamus, and cerebellum are intact. IMPRESSION: The peripheral cortical territories in the ACA and MCA artery distributions bilaterally have decreased attenuation and loss of cortical sulci. These changes are most pronounced on the right and are compatible with an anoxic brain injury. A head UMR study was obtained on October 7, 1998, and compared with the CT exam of October 6, 1998. The results were reported, as follows: FINDINGS: Cerebral M.R. study was obtained 10/7/98 and compared to the 10/6/98 CT exam. There is diffuse cytogenic edema which is comparable on the two studies and is not evolved. The edema corresponds to lateral cortical areas on the right side in the middle cerebral artery zone and involves the anterior suprasylvian, the anterior infrasylvian and basal ganglion region on the left side. This also appears to be involving much of the middle cerebral artery zone on the left side. The remainder of the brain has less edema or no edema. The T1-weighted images are hyperintense in the basal ganglion region on the right side, indicative of coagulative necrosis in blood products, but not distinct hematoma. The findings are compatible with perfusion defects in the middle cerebral artery zones bilaterally. They do not appear to correspond to areas of cortex to suggest trauma since the patient is recently delivered. The remainder of the examination is unremarkable. There is no midline shift or downward herniation. IMPRESSION: Evidence of diffuse cytogenic edema in the middle cerebral artery zones bilaterally as described above. Etiology is not apparent. Regarding the results of the scan, the attending neonatologist noted "CT scan . . . grossly abnormal -- [consistent with] . . . diffuse hypoxic/ischemic insult, of recent timing, although it is not possible to pin down the exact timing." Finally, at 7:57 a.m., October 15, 1998, Blane had a final CT of the head to reassess his cerebral edema. That exam was reported, as follows: COMPARISON: Continuous axial CT images were obtained of the brain. Those dated 10/15/98 are directly compared to prior dated 10/6/98. FINDINGS: Again seen is ischemic encephalopathy. Multiple vascular territories show areas of ischemia/infarct. The ischemic core now contains blood products and radiographic appearance consistent with coagulative necrosis. No hematoma is seen. When compared to prior images there is decreased edema with now visualization of the lateral ventricles. Decreased mass effect when compared to prior images is seen. IMPRESSION: Known ischemic encephalopathy with blood products now seen in the ischemic core. Decreased edema. Less mass effect. The cause and timing of Blane's brain injury To address the issue of whether Blane's brain injury was "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," as required for coverage under the Plan, Petitioners offered medical records relating to Mrs. Pearson's antepartum and intrapartum course, as well as Blane's birth and subsequent development. (Petitioners' Exhibits 1 and 2). Portions of those records have been addressed supra, and other salient portions of those records will be addressed infra. Additionally, Petitioner Janet Pearson testified on her own behalf, and offered the testimony of Janet Luna (Mrs. Pearson's mother) and the deposition testimony of Laura Law (Mrs. Pearson's sister). Respondent offered the deposition testimony of Dr. Michael Duchowny, a physician board- certified in pediatric neurology, and Dr. Charles Kalstone, a physician board-certified in obstetrics and gynecology. As for the cause and timing of Blane's brain injury, it was Dr. Duchowny's opinion that the injury Blane suffered was, more likely than not, intrauterine acquired, and attributable to events which occurred prior to labor and delivery. In so concluding, Dr. Duchowny observed that contrary to what one would expect if Blane had suffered a recent neurological injury, his Apgar scores were good, his arterial blood gases were normal, and he required no assistance other than blowby oxygen. It was also Dr. Duchowny's opinion that Blane's brain injury was not caused by oxygen deprivation or mechanical injury. (Respondent's Exhibit 1, pages 25 and 26). As for the cause of Blane's injury, it was Dr. Duchowny's opinion that it was most likely associated with a stroke or series of strokes suffered late in term. (Respondent's Exhibit 1, pages 23 and 24). For similar reasons, Dr. Kalstone, like Dr. Duchowny, was of the opinion, based on his review of the medical records, including the fetal monitor strips, that Blane's presentation (during labor and delivery) was not consistent with a brain injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation. As for the cause, as well as the timing of Blane's injury, Dr. Kalstone deferred to others, such as a pediatric neurologist, who were more suited to address that issue. (Respondent's Exhibit 2, page 14). Petitioners did not offer any expert testimony to support their view that Blane's brain injury was occasioned by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post- delivery period in the hospital. Petitioners did, however, offer the testimony of Petitioner Janet Pearson, Janet Luna and Laura Law on two matters: the actions of the nursing staff, which they perceived to be an effort to forestall Blane's delivery; and their opinions regarding Blane's condition on delivery. These matters, Petitioners believe, were not considered by Respondent's experts (because they were not contained within the medical records), and they contend such matters compel the conclusion that Blane's injury was occasioned by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. With regard to the first matter, Petitioner Janet Pearson and her witnesses testified that a nurse gloved-up, placed her hand inside Mrs. Pearson's vagina, and placed her hand on Blane's head to forestall delivery until the doctor could arrive. Petitioners suggest the nurse's act was improper and may have resulted in injury to Blane; however, they offered no competent proof to support such contention. Indeed, the only testimony on the matter was given by Doctors Kalstone and Duchowny who observed that, under the circumstances of this case, the nurse's action was unlikely to have caused any injury to Blane. In this regard, Dr. Kalstone, responding to questions by counsel for Petitioners observed: Q. Let me ask you, Doctor, hypothetically, assuming that at sometime during the labor that Blane was manipulated by one or more nurses in such a fashion as to push his head back into or farther up the birth canal, assuming that type of manipulation, is that the type of motor force that could cause an injury? * * * If the nurses were trying to hold the baby in, so to speak, then I wouldn't expect it would cause significant damage like this baby has. The kinds of damage that that thing, that that kind of action can cause, although I've never seen it, would be if there was like intracranial hemorrhage that caused the problem, that is actual trauma, and its hard to traumatize a baby's head by pushing it back up, but that would be one mechanism, that if you caused an intracranial hemorrhage, so to speak, and I didn't see any evidence of that in the record, in the CT scan. There was nothing suspicious in the baby's records that I could tell that that was a brain hemorrhage, but that would be one possible mechanism that one at least would look for. And the other would be if that in some way can cause an oxygen deprivation, which I've never seen it . . . [do] that, again, I haven't seen this done that often, sometimes we intentionally push a baby's head up when the cord prolapses to keep them off the cord. There's a decrease in the fetal heart sometimes by reflex when you push on the baby's head, but it usually wouldn't cause brain damage or significant problem, and if it did, I would expect it, that the baby would come out in poor condition if this occurred right before the doctor arrived, but this baby was born with an APGAR of 8 and 9 at one and five minutes, which were normal, so I would think that if there was anything that the nurses did that caused the oxygen deprivation, that, first of all, I would think that would be unlikely that it would cause that, just what they could be able to do with their hands. And second of all, I would think it wouldn't have been the kind of thing that would have damaged the baby and then the baby came out without showing signs of being asphyxiated. [Respondent's Exhibit 2, pages 15-17]. Dr. Duchowny's opinions on the matter were strikingly similar to those of Dr. Kalstone. (Respondent's Exhibit 1, pages 20-22, 24, and 32). With regard to the second matter, Mrs. Pearson and her witnesses testified as to their observations regarding Blane's condition on delivery, which they contend supports an Apgar score substantially lower than the score recorded at birth.5 Petitioners also suggest that the Apgar scores recorded by the nurse were most likely inflated because of a "certain self- interest motive . . . , if, and in the event, that they indeed were pushing him back in, holding him, . . . to wait for the doctor to get there." (Petitioners' proposed final order, paragraph 28). Consequently, since Respondent's experts relied on the Apgar scores of record in rendering their opinions, Petitioners suggest their opinions should be rejected, and a conclusion drawn that Blane's injury was caused by oxygen deprivation that occurred during the course of labor, delivery, or resuscitation. Petitioners' contention is rejected. In rejecting Petitioners' contention, it is initially observed that, where, as here, there was no showing that the nursing staff acted improperly, or that their actions could reasonably cause injury to the infant, there was no compelling reason for fabrication. Moreover, following delivery, Blane was also examined by Ms. Dees, who discerned no apparent abnormality, and Blane's course in the newborn nursery did not raise any concern until approximately 4 hours of age. Under such circumstances, it is doubtful that Blane's initial Apgar scores were inflated by the nursing staff at delivery. Additionally, it is observed that, while Petitioners offered testimony which, if credited, might warrant a reassessment of Blane's Apgar scores, they failed to offer any expert testimony or other competent proof as to what that score would be. Consequently, any reassessment of Blane's Apgar scores would be founded on speculation. Finally, it is observed that the opinions of Doctors Duchowny and Kalstone were not predicted simply on Blane's Apgar scores. Rather, their opinion that Blane's injury was not caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation, was also premised on evidence which demonstrated that Blane's arterial blood gases were normal, he required no assistance at birth other than blowby oxygen, and the fetal monitor strips failed to reveal any event consistent with fetal compromise. Accordingly, it must be concluded that the proof failed to demonstrate that Blane suffered a "birth-related neurological injury" since the proof failed to demonstrate that, more likely than not, his impairments were associated with a brain or spinal cord injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital.
