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.
Findings Of Fact Koby was born on January 10, 2020, at Tampa General Hospital, in Tampa, Florida. Koby was a single gestation and his weight at birth exceeded 2,500 grams. Obstetrical services were delivered by a participating physician, Dr. Louis, in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, Tampa General Hospital. As set forth in greater detail below, the unrefuted evidence establishes that Koby did not sustain a “birth-related neurological injury,” as defined by section 766.302(2). Donald Willis, M.D., a board-certified obstetrician specializing in maternal-fetal medicine, was retained by Respondent to review the pertinent medical records of Ms. Crowley and Koby and opine as to whether Koby sustained an injury to his brain or spinal cord caused by oxygen deprivation or mechanical injury that occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital. In his report, dated October 19, 2020, Dr. Willis summarized his findings and opinions as follows: In summary, pregnancy was complicated by a known fetal congenital birth defect, Omphalocele. Delivery by repeat Cesarean section was done in early labor with rupture of the membranes. The baby was depressed at birth with cord blood pH of 6.74 and base excess of -21. Despite the acidosis at birth, MRI on DOL 7 was normal. There was some degree of oxygen deprivation at birth, as documented by the cord blood pH of 6.4. However, MRI on DOL 7 was normal, suggesting the oxygen deprivation did not result in identifiable brain injury. Based on available medical records, it does not appear the child suffered a birth related brain injury. In his supporting affidavit, Dr. Willis opines, to a reasonable degree of medical probability, that while Koby suffered some degree of oxygen deprivation at birth, it does not appear the child suffered a birth related brain injury. Respondent also retained Luis E. Bello-Espinosa, a pediatric neurologist, to review the medical records of Ms. Crowley and Koby, and to conduct an Independent Medical Examination (IME) of Koby. The purpose of his review and IME was to determine whether Koby suffered from a permanent and substantial mental and physical impairment as a result of an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery, or resuscitation in the immediate post- delivery period. Dr. Bello-Espinosa reviewed the pertinent medical records and, on December 11, 2020, conducted the IME. In his report, prepared the same day as the examination, he summarized his findings and opinions as follows: Koby is an eleven month and three-week-old by ex- 35 week premature born via C-section with clear amniotic fluid after PROM. At birth, he was diagnosed with an omphalocele. A diagnosis of moderate hypoxic encephalopathy was made given his initial Apgar score, arterial blood gases, and neurological examination. Therapeutic hypothermia was implemented despite his neonatal age, given his clinical presentation. During his NICU stay, he did not have acute electroclinical or electrographic seizures. An MRI of the brain obtained on day 7th of life was normal. Since birth, he has benefited from PT and OT. His comprehensive neurological examination today is normal. Dr. Bello-Espinosa opined that Koby does not suffer from a substantial and permanent mental and physical impairment. Additionally, he opined that Koby did not acquire an injury to the brain or spinal cord during labor, delivery, or the immediate post-delivery period. Accordingly, he did not recommend Koby be considered for inclusion in the Plan. Dr. Bello-Espinosa confirms those opinions in his supporting affidavit. The undisputed and unopposed findings and opinions of Drs. Willis and Bello-Espinosa are credited. The undersigned finds that Koby did not sustain an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which rendered him permanently and substantially mentally and physical impaired.
Findings Of Fact Paula was born on July 27, 2012, at Baptist in Miami, Florida. Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, was retained by NICA to review the medical records of Paula, and her mother, Giselle Quiroga, to opine whether an injury occurred in the course of labor, delivery or resuscitation in the immediate postdelivery period at Baptist due to oxygen deprivation or mechanical injury. Dr. Willis reviewed the medical records and in a report dated September 29, 2017, Dr. Willis described his findings, in pertinent part, as follows: In summary, primary Cesarean section was done for fetal macrosomia. There was no identifiable fetal distress prior to delivery. The baby was not depressed at birth with Apgar scores of 9/9. No resuscitation was required at birth. The newborn hospital course was uncomplicated. Developmental delay was suspected during childhood. MRI at about 2-years of age was consistent with brain injury. Cerebral palsy was diagnosed. There was no obstetrical event that resulted in loss of oxygen or trauma to the baby’s brain during labor, delivery and the immediate post delivery period. Attached to Respondent’s Motion is the affidavit of Dr. Willis, dated September 18, 2017. In his affidavit, Dr. Willis affirms his August 29, 2017, report and maintains that there was no obstetrical event that resulted in loss of oxygen or trauma to Paula’s brain during labor, delivery or the immediate postdelivery period. A review of the file reveals that no contrary evidence was presented to dispute Dr. Willis’ findings and opinions. Dr. Willis’ opinion is credited.
The Issue Whether the injury claimed is a birth-related neurological injury and whether obstetrical services were delivered by a participating physician in the course of labor, delivery or resuscitation in the immediate postdelivery period in the hospital.1
Findings Of Fact Petitioners, Rock Pollock, Sr., and Shawna M. Pollock, are Rock Pollock, Jr.'s (Rock, Jr.'s), natural parents. At all times material, Shawna M. Pollock was an obstetric patient of Intervenor, Deanna Doyle-Vallery, M.D., and Deanna Doyle-Vallery, M.D., was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. (Plan) At all times material, Amy Martin, M.D., also was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes, and she provided obstetrical services "in the course of labor, delivery and resuscitation in the immediate postdelivery period in a hospital," as related to this case. Rock, Jr., was born on November 2, 2006. At birth, Rock, Jr., weighed in excess of 2,500 grams. Rock, Jr., was born at Sarasota Memorial Hospital. Sarasota Memorial Hospital is a licensed Florida Hospital located in Sarasota, Florida.9 It is owned and operated by Intervenor Sarasota County Public Hospital District. Coverage is afforded by 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 postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. On November 1, 2006, Rock, Jr.,'s mother, Shawna M. Pollock, who was in the forty-second week of pregnancy (beyond term), was admitted to Sarasota Memorial Hospital. She had received prenatal care from Dr. Doyle-Vallery and Corcoran, Easterling & Doyle-Vallery, LTD, a predecessor corporation to Gulf Coast Obstetrics and Gynecology, LTD, with which entity Drs. Doyle-Vallery and Martin were associated. At 6:50 p.m., on November 1, 2006, Mrs. Pollock was examined, and her cervix was found to be two centimeters dilated and thick. Dr. Amy Martin ordered Cervadil and Pitocin and signed the obstetrical record. Sarasota Memorial Hospital's progress notes indicate that Mrs. Pollock had previously suffered two miscarriages, but that this pregnancy had been uneventful with ASA therapy. At 8:00 a.m., on November 2, 2006, Rock, Jr.,'s fetal heart rate was noted to be stable; contractions were occurring every 2-3 minutes; and Certified Nurse Midwife Laura Danner, made a progress note that the plan of care would be continued. On November 2, 2006, both the Pitocin and Cervadil were administered. Entries were made on the progress notes by Certified Nurse Midwife Danner at 9:45 a.m., 10:30 a.m., and 12:05 p.m., that the fetal heart rate monitoring was stable; contractions were occurring every 2 to 3 or 2 to 4 minutes; and that, upon consultation with Dr. Amy Martin, the plan of care would be continued. At 1:30 p.m., Certified Nurse Midwife Danner wrote in the progress notes that Mrs. Pollock had been instructed on how and when to push and that Rock, Jr.,'s fetal heart rate was still stable. At 2:00 p.m., the fetal heart rate continued to be stable, and Mrs. Pollock was in labor, pushing every 2-3 contractions, with Pitocin continuing to be administered. Contractions were occurring every 1-1/2 to 2-1/2 minutes. Once again, Nurse Danner noted a continuation of the plan of care. Nurse Danner's progress notes indicate that at 2:30 p.m., there was a stable fetal heart rate with moderate to severe variables with recovery to baseline and contractions every 1-1/2 to 2-1/2 minutes. Mrs. Pollock had stopped pushing; had been in multiple positions; and was currently in the knee- chest position. A possible cesarean section was discussed with Mrs. Pollock in the event labor did not continue to progress. Also discussed was having Mrs. Pollock rest and not push for 30 minutes. The progress notes reflect that Dr. Martin and Nurse Danner consulted and agreed on a plan of care. The progress notes reflect that at 3:00 p.m., November 2, 2006, Mrs. Pollock was complaining of abdominal pain. The fetal heart rate was stable, but there was decrease in the long term variability and severe variables. Contractions were occurring every 1-1/2 to 2-1/2 minutes. Nurse Danner palpated Mrs. Pollock's abdomen, and it was soft between contractions. Because of the non-reassuring fetal heart rate tracing, Nurse Danner again consulted with Dr. Martin, and the decision was made to proceed with a cesarean section. The progress note at that time reflects that Dr. Martin was proceeding to the hospital, so it is assumed that the consultation at that time was by telephone. A note made immediately thereafter at 3:01 p.m., reflects the presence of a fetal bradycardia; that Mrs. Pollock was complaining of severe abdominal pain; and that Mrs. Pollock was being taken to the operating room for a cesarean section. At 3:05 p.m., Mrs. Pollock continued to complain of severe abdominal pain. When her abdomen was palpitated, it was described as "rigid." Rock, Jr.,'s fetal heart rate was decreasing to 40 beats per minute and continuing to decrease to 20 beats per minute. Dr. Martin was again called and was en route to the hospital. Dr. Evelyn Santiago was present at the hospital, and she started a "stat" (immediate) cesarean section. Dr. Santiago performed a primary low cervical transverse cesarean section, and Rock, Jr., was delivered at 3:12 p.m. Thick meconium-stained fluid was noted. Rock, Jr., was in a cephalic, vertex presentation. Upon inspection, Dr. Santiago noted a uterine rupture on the left aspect of the uterus. At 3:24 p.m., Dr. Martin was present and began to assist Dr. Santiago and Certified Nurse Midwife Danner with the cesarean section; Dr. Martin became the primary surgeon for the repair of the uterine incision and uterine rupture. Dr. Martin's operative note states in part: INDICATIONS: The patient is a G4, P1, who was admitted for induction for postdates and did well initially through labor induction. She made it to complete dilation and at that time had reactive fetal heart rate tracing. She began pushing and was noted to have moderate to severe variable decelerations with pushing effort. The patient pushed every other contraction for approximately 1 hour with continued moderate variable decelerations. At this point the patient was turned and allowed to rest for recovery of the infant. The patient with progress to +1 station. [sic] With further pushing the patient continued to have moderate to severe variable decelerations with no further descent and a cesarean section was called. At this point the patient was prepared to be taken to the operating room and she began complaining of severe left lower quadrant and left back pain. This was unable to be controlled with epidural. At this point in time the infant's heart rate dropped into the 60s and then continued down to the 40s. The patient was rushed back to the OR for emergent C-section at this point with fetal heart rate obtained in the OR in the 20s. FINDINGS: Male infant in cephalic presentation. Meconium stained fluid. NICU present at delivery. Apgar's[10] 2, 3, and 3 with weight 8 pounds, 11 ounces. Of note uterus had a large lateral defect with extensive bleeding and area of uterine rupture. Normal ovaries bilaterally. Of note per Dr. Santiago upon entering the peritoneal cavity blood was noted in the abdominal cavity prior to making uterine incision. Rock, Jr., was taken to the neonatal intensive care unit at Sarasota Memorial Hospital and evaluated by Darlene Calhoun, D.O. Spontaneous respirations were noted with some being quite irregular. Dr. Calhoun's impression was: Term male infant at 41 and 2/7 weeks. Perinatal depression. Rule out sepsis. History of methylene tetrahydrofolate reductase deficiency in the mother and questionable factor V Leiden mutation. Respiratory depression. Rule out seizures. Metabolic acidosis. Evaluate for persistent pulmonary hypertension of the newborn. On November 3, 2006, Rock, Jr., was transferred to All Children's Hospital, because of continued seizure activity. Victor McKay, M.D., evaluated Rock, Jr., upon admission. He noted that Rock, Jr., required intubation, had Apgar scores of 2, 3, and 3, and had a cord pH of 6.8. In the Neonatal Intensive Care Unit (NICU), Rock, Jr., was placed on a ventilator, but quickly weaned off. Because of seizure-like activity, a video EEG was ordered, and Rock, Jr., was loaded with Phenobarbital. After evaluating Rock, Jr., Dr. McKay gave an assessment and plan of: Term male infant. Perinatal acidosis. The infant has severe perinatal acidosis with cord pH of 6.8. The acidosis was corrected after birth. The infant has remained on ventilator, is currently weaned down to low ventilator settings and still has CO2 in the 20s. So, the infant will be extubated. The infant has shown no signs of pulmonary hypertension. Neurologically, the infant will be placed on a 24-hour video electroencephalogram. Will continue the Phenobarbital. Obtain a neurology consult with CT scan of the infant. If the CT scan is normal, then the infant may need further imaging at 3-5 days of life. Sepsis. Rule out sepsis. The infant will receive ampicillin and gentamicin pending culture results. Fluid, electrolytes, nutrition. The infant is n.p.o on IV fluids at 60 mL/kg/day. Will follow electrolytes and make adjustments as needed. Maternal methylenetetrahydrofolate reductase.[11] The infant will need further evaluation at a later time. On November 6, 2006, an MRI with and without contrast was performed on Rock, Jr.,'s brain. Radiologist James M. Anderson, M.D., read the films. His findings were as follows: FINDINGS: Sagittal T1, axial diffusion FLAIR T2, coronal FLAIR, coronal T2, coronal 3D T1, axial and coronal postcontrast T1 weighted images were performed. Cerebral and cerebellar volume appear to be normal. In general, the brain appears to be normally formed with no obvious anomalies. T1 weighted images show no migrational disorders. T2 and FLAIR images show no gross areas of hyperintensity. The diffusion images, however, are concerning. There is abnormally restricted diffusion identified in the basal ganglia bilaterally, somewhat asymmetrically, worse on the left than on the right with some asymmetric areas of restricted diffusion extending into the left insula as well as the left occipital and temporal lobes. These findings are suspicious for early infarct or ischemia. Rock, Jr., was discharged from All Children's Hospital on December 12, 2006. The portions of the Discharge Summary for purposes of this case are: DISCHARGE DIAGNOSES: Low Apgar scores. Hypoxic-ischemic encephalopathy. Respiratory distress. Acidosis. Seizure-like behavior. Neonatal encephalopathy. Staphylococcus warneri bacteremia. Severe dysphagia. * * * HISTORY: . . . The estimated gestational age was 41-2/7 weeks. Maternal history included positive MTHFR/positive Leiden mutation determined through genetic counseling . . . The pregnancy was significant for uneventful. The mother took prenatal vitamins, antacids, and aspirin and delivery was significant for fetal bradycardia, low Apgar scoring, and a cord pH of 6.8. Delivery room resuscitation included tactile suctioning, bulb suctioning, deep suctioning, intubation for no respiratory effort. . . . * * * CENTRAL NERVOUS SYSTEM: Phenobarbital was used for questionable seizure-like activity and HIE, and the baby initially had levels into the 40s. At the time of discharge, the December 11, 2006, level was 8.5. Cranial ultrasound was done at birth which was normal. A CT done on day 2 was normal. On November 6, 2006, day 4, an MRI was done showing subtle changes in the basal ganglia on the left occipital temporal lobe with questionable early infarct or ischemia. The region of the pre and post central gyri also have some mild diffuse changes. Followup in 7 to 10 days is recommended. Neurology followed this baby throughout hospitalization. Continuous EEGs were done between November 3, 2006, and November 6, 2006, showing severe, diffuse encephalopathy, multiple cortical and stable areas, and potential for epileptogenicity. On November 9, 2006, there was some improvement in the EEG but there was still noted excessive sharps in the right temporal area. November 27, 2006, was also still abnormal with epileptiform discharger [sic] in the right temporal region, no seizures, but was improved from previously. * * * GENETICS: There were no genetic problems or dysmorphology. On September 10, 2007, when Rock, Jr., was ten months of age, he was evaluated by Dr. Tiffany Day at Shands Hospital at the University of Florida. He presented there for a video EEG and MRI with sedation, to evaluate seizure-like activity. A G-tube had been inserted because he had gastroesophageal reflux. Mr. and Mrs. Pollock described Rock, Jr.,'s seizure activity as jerking movements that had started to become worse four months previously, shortly after Rock, Jr.,'s immunizations. The seizures started to be short in duration, originally just on the left side, affecting the upper extremities bilaterally. Rock, Jr., had been taking Klonopin for the past two to three months, which seemed to significantly reduce the seizures. Other medications included Keppra and Prevacid as well as Valium for hypertonicity. Dr. Day's assessment included the following comment: "This is a 10 month-old Caucasian male with a likely hypoxic eschemic [sic] event at birth as well as a history significant for what sounds like neonatal seizures and gastroesophageal reflux disease." The MRI was performed on September 13, 2007, and the films were read by Ronald Quisling, M.D. His report states:
Findings Of Fact Elissa Delgado was born on September 27, 2010, at Baptist Hospital located in Miami, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Elissa. In a report dated December 12, 2014, Dr. Willis described his findings as follows: The mother was admitted to the hospital at 38 weeks with spontaneous rupture of the membranes. Delivery was by spontaneous vaginal birth. The birth weight of 2,550 grams (5 pounds 9 oz’s) was consistent with the prenatal ultrasound finding of fetal growth delay. This weight is below the 10% for gestational age. The newborn was not depressed. Apgar scores were 9/9. The baby was described as crying and alert after birth. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor and delivery, based on the mother’s hospital records. In an affidavit dated January 7, 2015, Dr. Willis confirmed his opinion as stated in his medical report and opined as follows: It is my opinion that the newborn was not depressed. Apgar scores were 9/9. The baby was described as crying and alert after birth. As such, it is my opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor or delivery, based on the mother’s hospital records. A review of the file in this case reveals that there have been no 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 or delivery, and Petitioners have filed their Petition under Protest, stating that they are not claimants. Dr. Willis’ opinion is credited.
Findings Of Fact Calise L. Muniz was born on May 2, 2015, at Holmes Regional Medical Center, located in Melbourne, Florida. Calise 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 Calise. In a medical report dated January 24, 2017, Dr. Willis opined in pertinent part as follows: In summary, the mother apparently became hypotensive after placement of epidural anesthesia with resulting fetal distress. The baby was depressed at birth. The initial ABG was consistent with metabolic acidosis. Cooling protocol was initiated for HIE. EEG was normal for age. No MRI or CT scan was done during the newborn hospital course. There was an apparent obstetrical event that resulted in loss of oxygen during labor and delivery. However, there was no documentation of actual brain injury. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Calise and to review her medical records. Dr. Sigurdardottir examined Calise on February 1, 2017. In a medical report dated February 1, 2017, Dr. Sigurdardottir summarized her examination of Calise and opined in pertinent part as follows: Summary: Calise is a 21-month-old female who was born via emergency cesarean section after nonreassuring fetal heart rate tracings were noted after a high spinal anesthesia. She had poor Apgars of 2, 4 and 5 after 1, 5 and 10 minutes, and was treated with cooling protocol. She did not have any neonatal seizures and the only neuroimaging available is a head ultrasound on day of life 1 that was normal. On neurologic exam today she is normal, both with her motor skills and cognition and language development. There are no signs of autistic features. Results as to question 1: Calise is not found to have substantial physical or mental impairment at this time. Results as to question 2: In review of available documents, she does have the clinical picture of an acute birth-related hypoxic injury. Results as to question 3: The prognosis for full motor and mental recovery is excellent and her life expectancy is full. In light of the normal cognitive abilities and normal neurologic exam, I do not feel that Calise should be included in the NICA program. If needed, I will be happy to answer additional questions. 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 while there was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor and delivery, there was no documentation of actual brain injury. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Calise does not have a substantial physical or mental impairment. Dr. Sigurdardottir’s opinion is credited.
The Issue The issue in this case is whether Koda Fisher-Douglas (Koda) suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Koda was born a live infant on November 17, 2016, at a hospital, Halifax Medical Center. Koda was a single gestation, weighing over 2,500 grams at birth. With respect to Koda’s birth, obstetrical services were delivered by Dr. Meyers, 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 Koda’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 March 13, 2018, report, Dr. Willis set forth his findings and opinions which have been admitted in this matter, without objection. Said findings and opinions are set forth below in pertinent part: In summary, pregnancy was complicated by poorly controlled Maternal Diabetes. Fetal distress was noted on BPP at 37 weeks, requiring delivery. Delivery was further complicated by hydramnios and maternal obesity. Vacuum extraction and an extended “T” incision in the uterus was required. The baby was depressed at birth with Apgar Scores of 1/2/5. Cord blood gas was consistent with acidosis with a pH of 6.9. The newborn hospital course was complicated by multi- system organ failures. Seizure activity was noted on EEG and MRI was consistent with HIE. Although the mother was not in labor prior to delivery, there was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during delivery and continuing into the immediate post-delivery period. The oxygen deprivation resulted in a brain injury. NICA also retained Laufey Y. Sigurdardottir, M.D., a pediatric neurologist, to review Koda’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 a full historical account from Petitioners, and conducted an IME of Koda on May 31, 2018. In her IME report, Dr. Sigurdardottir set forth her findings and opinions which have been admitted in this matter, without objection. Said findings are set forth below in pertinent part: Pregnancy and Birth Summary: Koda was born at 13:37 on 11/17/2016 at Halifax hospital at 37 weeks gestation to a 33 yr old G5P1 female with insulin dependent diabetes after a high- risk pregnancy via emergent cesarean section for non-reassuring fetal heart rate tracing. There was meconium stained amniotic fluid. There was difficulty delivering fetal head and multiple attempts with vacuum was needed along with needing to extend incision in T. Infant was floppy and non-reactive at birth. The infant was born with Apgar scores of 1 after one minute, 2 after 5 minutes and 5 at 10 minutes. Patient had respiratory distress and required intubation and positive pressure ventilation and cardiac compressions was admitted in critical condition to NICU. Birth weight 3960 gm (LGA), HC 35.5 cm (>75th percentile). Cord gas pH 6.9 and BE -9, lactic acid 9.7. He had a complex NICU course requiring cooling for HIE. He had seizures on rewarming, a congential heart defect (bicuspid ao valve and VSD). MRI on 11/28/2016 was abnormal: “findings consistent with hypoxic ischemic encephalopathy, with acute lesions within the posterior parietal and posterior parietooccipital watershed areas.” There was also increased signal attenuation within the bilaterial lentiform nuclei. Prominent extraaxial spaces were also noted over the bifrontal and bitemporal areas. The magnetic resonance spectroscopy showed “mild reversal of the NAA choline and NAA creatine as well as elevation of lactate peaks.” He had respiratory issues and was intubated for approximately one month. He had G tube placed for aspirations. He was discharged from hospital around age 2 months. * * * Developmental history: Initially he had significant stiffness around the hip and shoulder girdles and mom describes fisting of both hand requiring hand and thumb splints. Koda has no major delays in motor milestones, was walking at 13 months. He knows 15 words and does not use any 2-word phrases. He is social engaged and is always on the go. He is in no therapy. Mom feels he is right sided dominant, both with arm and with leg. He was seen by rehabilitation at UF. He was receiving PT at Speech Works in Daytona for an evaluation, which noted some tightness of shoulders and hips, and that was flatfooted. PT feels he is up to date with gross motor milestones, but problems with hand eye coordination. He has not been evaluated for OT/SLP. Past medical history: He has a known cardiac defect with VSD and a bicuspid aortic valve. This is stable at this time. There was concern for shuddering spells at age one year but EEG was normal. Dr. Sigurdardottir, after conducting her evaluation, provided the following opinions: 1) there is evidence of impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury; 2) Koda is not found to have substantial delays in motor or mental abilities; and 3) that his prognosis for full motor and mental recovery is good and his life expectancy is full. In summary, Dr. Sigurdardottir opined that, “[i]n light of evidence presented I believe Koda does not fulfill criteria of a substantial mental and physical impairment at this time. I do not feel that Koda should be included in the NICA program due to his near age appropriate motor and language development.” No contrary evidence has been submitted to refute the findings and opinion of Drs. Willis and Sigurdardottir. Their unrefuted findings and opinions are credited.
The Issue At issue is whether Frisline Jeanise Victor, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Marie J. Desir is the natural mother and guardian of Frisline Jeanise Victor, a minor. Frisline was born a live infant on September 7, 1999, at Jackson Memorial Hospital, a hospital located in Miami, Florida, and her birth weight was 3,625 grams (8 pounds, 0 ounces). The physician providing obstetrical services at Frisline's birth was Jerry Gilles, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. In this case, it is undisputed that Frisline is permanently and substantially mentally and physically impaired. What remains to resolve is whether her impairments resulted from an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation." Frisline's birth and immediate postnatal course At or about 12:50 p.m., September 7, 1999, Ms. Desir, with an estimated delivery date of September 19, 1999, and the fetus at 38+ weeks gestation, presented to Jackson Memorial Hospital, in early labor. At the time, Ms. Desir's membranes were noted as intact, and vaginal examination revealed the cervix at 4 centimeters dilation, effacement at 50 percent, and the fetus out of the pelvis. Uterine contractions were noted as moderate, at a frequency of 5-6 minutes, and external fetal monitoring revealed a reassuring fetal heart rate, with a baseline in the 140-beat per minute range. Maternal history during pregnancy was significant for two hospitalizations secondary to uncontrolled diabetes. Ms. Desir was admitted, and examination revealed the baby to be approximately 4,082 grams (9 pounds). Consequently, given the suspected macrosomia (great bodily mass) of the baby, and a history of a previous infant weighing 5,300 grams (11 pounds, 11 ounces), with severe shoulder dystocia, and a borderline pelvis, it was resolved to proceed with an elective cesarean section. Ms. Desir underwent a low segment transverse cesarean section, without complication, and Frisline was delivered at 8:30 p.m. At delivery, Frisline cried immediately; showed good heart rate, respiratory effort, muscle tone, reflex irritability, and color; and did not require oxygen or resuscitation. Apgar scores were normal, and noted as 9, 9, and 9 at one, five, and ten minutes, respectively.2 Frisline was transferred to the neonatal intermediate unit for monitoring secondary to a history of maternal diabetes mellitus (DM) and insulin dependence. Admission physical was grossly normal, she remained clinically stable (with blood glucose within normal limits), and, but for a "very soft" heart murmur noted on September 8, 1999, her transition was unremarkable. Frisline was scheduled for discharge on September 10, 1999; however, due to maternal complications, she was transferred to the newborn nursery and held pending her mother's improvement. Maternal complications noted in Ms. Desir's Discharge Summary were as follows: . . . INITIALLY PATIENT WAS AFEBRILE WITH VITAL SIGNS STABLE. SUBSEQUENTLY THE PATIENT STARTED DEVELOPING TEMPERATURE SPIKES TO 102.6. EXAMINATION REVEALED POSITIVE UTERINE TENDERNESS WITH FOUL- SMELLING LOCHIA. THE PATIENT WAS DIAGNOSED WITH ENDOMYOMETRITIS ["inflammation of the muscular substance, or myometrium, of the uterus"3] AND STARTED ON GENTAMYCIN AND CLINDAMYCIN. THE PATIENT CONTINUED TO SPIKE AT 48 HOURS OF ANTIBIOTICS AND WAS STARTED ON AMPICILLIN. DURING THIS TIME, THE PATIENT DEVELOPED SOME NAUSEA AND VOMITING PROBABLY SUSPECTED SECONDARY TO POSTOPERATIVE ILEUS. NASOGASTRIC TUBE WAS NOT PLACED AS CLINICALLY PATIENT APPEARED TO BE IMPROVING WITH ADDITION OF THIRD ANTIBIOTIC. ON POSTOPERATIVE DAY SIX, THE PATIENT WITH RESOLVED ENDOMETRITIS, AFEBRILE FOR GREATER THAN 30 HOURS, TOLERATING A REGULAR DIET . . . . Therefore, on September 13, 1999, postoperative day six, Ms. Desir was discharged; however, given intervening complications, Frisline was not discharged until September 15, 1999. Notably, following her transfer to the newborn nursery on September 10, 1999, Frisline's course was unremarkable until at or about 1:30 p.m., September 12, 1999, when she appeared "jittery" and evidenced "intermittent grunting," and at 2:00 p.m., she was transferred to the neonatal intermediate care unit for observation and further management. At the time of transfer, labs were ordered, including complete blood count (CBC) and blood culture (BC), to rule out sepsis. Following admission to the neonatal intermediate unit, Frisline's examination was unremarkable, with no grunting noted, and her condition stable. Labs, including CBC and BC were unremarkable, as were follow-up labs on September 13, 1999, and Frisline was discharged on September 15, 1999. Discharge physical examination was grossly normal, but for a faint heart murmur. The cause and timing of Frisline's neurologic examination Petitioner offered no proof to address the cause and timing of Frisline's neurologic impairments. In contrast, NICA offered the medical records related to Frisline's birth and immediate postnatal course (Respondent's Exhibits 1 and 2), discussed supra; the deposition and report of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine (Respondent's Exhibits 3 and 5). Dr. Willis reviewed the medical records related to Frisline's birth and immediate postnatal course, and was of the opinion that the records failed to reveal any evidence of trauma or oxygen deprivation during labor, delivery, or the immediate postdelivery period, to support a conclusion that Frisline suffered "birth-related neurological injury." NICA also offered a report by Michael Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital (Respondent's Exhibit 4) who, following examination of Frisline, was of the opinion that her neurologic examination revealed a severe degree of mental and motor impairment.4 Notably, the medical records do not reveal an etiology for Frisline's neurologic impairment; Petitioner offered no competent medical evidence to support a conclusion that, more like than not, Frisline suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period that resulted in her neurologic impairment; and the expert opinion of Dr. Willis is consistent with the medical records and otherwise uncontroverted. Consequently, it must be resolved that the proof fails to demonstrate that Frisline suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period that resulted in her neurologic impairment. (See Wausau Insurance Company v. Tillman, 765 So. 2d 123 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obliged to present expert medical evidence establishing that causal connection."); Ackley v. General Parcel Service, 646 So. 2d 242 (Fla. 1st DCA 1995)(determining cause of psychiatric illness is essentially a medical question, requiring expert medical evidence); 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.").
