The Issue At issue in this proceeding is whether Jonathan Trujillo, 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 Jonathan Trujillo (Jonathan) is the natural son of Odalis Merida and Antonio Trujillo. He was born a live infant on December 31, 1993, at Jackson Memorial Hospital, a teaching hospital located in Miami, Dade County, Florida, and his birth weight was in excess of 2500 grams. The physicians providing obstetrical services during the birth of Jonathan were Doctors Oliva and McGare, resident physicians in an approved training program, who were supervised by Gene Burkett, M.D., a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan (the "Plan"). Consequently, each physician who provided obstetrical services during the birth of Jonathan was a "participating physician" in the Plan. Sections 766.302(7) and 766.314(4)(c), Florida Statutes. The birth of Jonathan Trujillo At or about 5:20 p.m., December 31, 1993, Odalis Merida (Ms. Merida) was admitted to Jackson Memorial Hospital in active labor. Notably, Ms. Merida's prenatal course had been complicated by the development of Class B gestational diabetes, requiring insulin during the course of her pregnancy, and the development of severe preeclampsia, characterized by hypertension. Consequently, Ms. Merida's pregnancy was rated high risk. To address Ms. Merida's diabetes during labor and delivery, she was maintained on drip insulin, and to address her hypertension, she was administered magnesium sulfate. Ms. Merida's condition and the substances administered to address her condition, although apparently necessary and appropriate, were not without risk or side effect to the fetus. Notably, magnesium sulfate is a muscle relaxant which can induce "floppiness" in a new born, as well as respiratory distress. 1/ The presence of maternal diabetes portends the risk of infantile hypoglycemia, which occurred in the instant case. A clinical symptom of hypoglycemia is "floppiness" in the new born, which may be exaggerated when, as here, it is found in conjunction with ploycythemia, discussed infra. Upon admission, Jonathan was at term, with a gestational age of 41 weeks, and fetal heart monitoring, commenced at or about 5:25 p.m., revealed good fetal heart tone. A physical examination at 6:00 p.m. noted the cervix to be at 7 centimeters, effacement complete, and the fetus at station 0. Contractions were regular at 2 minutes, and when the membrane was ruptured clear amniotic fluid was observed. Ms. Merida progressed through labor without incident until approximately 8:45 p.m., following the administration of an epidural anesthesia, when late decelerations of the fetal heart beat with bradycardia were noted, as a consequence of epidural hypertension. More specifically, Ms. Merida's blood pressure was observed to drop from a base line rate of 200/150 to 98/45, and a few late decelerations of the infant's heart rate were observed from a baseline rate of 120 to 130 beats per minute to 80 beats per minute. Ms. Merida was repositioned to her left side, the infant's heart rate promptly recovered, and no further unusual incidents were observed during the course of her labor or delivery. Given the limited duration and isolated nature of the late decelerations and bradycardia, it was the opinion of the physicians who testified in this proceeding that such anomaly did not adversely affect the infant's oxygenation or, stated differently, did not result in a hypoxic/ischemic insult to the infant's brain. Such opinions are credited. At 9:40 p.m., December 31, 1993, Ms. Merida, as she had with her first child, spontaneously delivered Jonathan vaginally, without apparent complication. Notably, Jonathan was vigorous on delivery, breathed spontaneously, did not require resuscitation, and his apgar scores were 9 at one minute, five minutes and ten minutes. In all, Jonathan's presentation was reflective of a healthy, vigorous infant. 2/ Jonathan was admitted to the newborn nursery at 10:00 p.m. Physical assessment upon admission revealed a large infant, at 4040 grams, with a large head (above the 90th percentile), who was crying spontaneously, alert, pink in color, but with a "slight floppiness" in the extremities. Jonathan was noted to breath spontaneously, without flaring or grunting; heart rate was noted at 160 beats per minute, with regular rhythm; fontanel were soft and flat; and reflexes were present. In brief, Jonathan's presentation in the newborn nursery was that of a healthy, vigorous infant, with the only negative observation being a "slight floppiness" in his extremities. Such "floppiness" was, however, more likely than not, related to the magnesium sulfate administered to Ms. Merida during labor and delivery, the hypoglycemia Jonathan was subsequently diagnosed to have acquired, or a combination of the two, and does not detract from the conclusion that Jonathan had no apparent signs of distress at birth. Later in the day, following testing, Jonathan was diagnosed with moderate to severe hypoglycemia, polycythemia, and moderate thrombocytopenia. Such conditions, singularly, or in combination, placed the infant at risk. Hypoglycemia, low blood sugar, may place the infant at risk of seizures and, pertinent to this case, resultant brain hemorrhage. Here, the moderate to severe hypoglycemia that Jonathan suffered was apparently recurrent, although it did resolve over time, and was addressed each time it presented through the administration of glucose. Polycythemia is a disorder whereby the number of red blood cells are abnormally high, making the blood thicker (hyperviscous) than normal. Apparently, brain hemorrhage is often related to decreased blood flow on the venus side of the brain, and where the blood is hyperviscous it could help or contribute to a brain hemorrhage. Here, with a hematocrit of 64, Jonathan's condition met the definition of polycythemia, which is a hematocrit over 60; however, such condition was not, or was not shown to be, significant in the instant case. Thrombocytopenia is a disorder resulting in an abnormally low platelet count which could affect clotting and therefore predispose the infant to bleeding through, among other things, trauma. Here, Jonathan's thrombocytopenia, more likely than not isoimmune thrombocytopenia, was considered moderate, as opposed to severe, and serial testing reported his platelet count as follows for the date and time indicated: DATE TIME 3/ PLATELET COUNT 1/1/94 07:00 Platelet estimate 40,000-80,000 1/2/94 03:47 Platelet estimate 80,000-100,000 1/3/94 07:57 Platelet estimate 40,000-80,000 1/3/94 15:08 Platelet estimate 40,000-80,000 1/4/94 05:04 Platelet count 49,000 1/5/94 06:46 Platelet estimate 40,000-80,000 1/6/94 12:50 Platelet estimate 40,000-80,000 1/8/94 21:12 Platelet count 182,000 1/10/94 03:52 Platelet count 263,000 1/12/94 06:00 Platelet count 357,000 The normal platelet count for newborns, as with adults, is 150,000 to 400,000, and, as may be observed from the serial testing, Jonathan's thrombocytopenia resolved over time. While at risk, Jonathan's neonatal course in the nursery was uneventful until 26 hours of life when he was noted to have suffered a generalized seizure characterized by cyanosis, severe bradycardia (heart beat in the range of 40 beats per minute), and respiratory arrest (apnea), requiring intubation. At or about 1:00 a.m., January 1, 1994, Jonathan was transferred to the neonatal intensive care unit, where he was maintained on positive ventilation until approximately January 6, 1994. Examination, through EEG's and CT and MRI scans of the brain, revealed that Jonathan had suffered an intraventricular hemorrhage, Grade IV, characterized by a massive bleed, with dilation of the ventricles. 4/ Thereafter residual hypodensity of the white matter of the brain was observed, consistent with degeneration of the hemorrhage and, ultimately, hypodensity compatable with evolving encephalomalacia (swelling of the brain.) Subsequently, on February 2, 1994, developing hydrocephalus required the placement of an intraventricular shunt to relieve intracranial pressure. Currently, in the opinions of Dr. Robert Roth and Dr. Michael Duchowny, whose opinions are credited, Jonathan is permanently and substantially mentally and physically impaired. Such impairment is evidenced by, inter alia, cortical blindness, hypotonia and, more likely than not, mental retardation. It is further the opinion of such physicians, which is again credited, that the cause of Jonathan's neurologic impairment is the injury to the brain he suffered as a consequence of the Grade IV intraventricular hemorrhage. Given the foregoing, resolution of this claim resolves itself to an identification of the genesis of Jonathan's Grade IV intraventricular hemorrhage or, stated otherwise, whether the proof demonstrates, more likely than not, that the hemorrhage, which resulted in injury to Jonathan'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-delivery period" in the hospital. Sections 766.302(2) and 766.309(1)(a), Florida Statutes. The cause of Jonathan's Grade IV intraventricular hemorrhage A Grade IV intraventricular hemorrhage in a term infant, such as Jonathan, is a rare occurrence, and its cause frequently cannot be identified. Notwithstanding, Jonathan did suffer such a hemorrhage, and he was shown to suffer from two conditions, isoimmune thrombocytopenia and hypoglycemia, which could offer some explanation for the hemorrhage. Here, petitioner contends that Jonathan, due to his large head, received an injury to his brain occasioned by the "mechanical" forces of labor and delivery, and that such injury resulted in a slow bleed which, because of his thrombocytopenia, progressed over the next 26 hours and ultimately manifested as a generalized seizure characterized by cyanosis, severe bradycardia and respiratory arrest. In support of such contention, petitioner offered the testimony of Robert S. Roth, M.D., a physician board certified in pediatrics and neonatal/perinatal medicine. Pertinent to this case, Dr. Roth observed that infants born with thrombocytopenia are at increased risk of suffering an intraventricular brain hemorrhage if subjected to the trauma occasioned by the mechanical forces of labor and vaginal delivery. In his opinion, Jonathan's medical records reveal a classic case of neonatal brain hemorrhage resulting from the mechanical forces of labor and vaginal delivery that occurred because of Jonathan's large head and thrombocytopenia. Those conditions, affected by the forces of labor and delivery, combined to "start the process of hemorrhage in the brain," resulting in "tissue changes and cell death and vascular pressure changes" over time, and culminating when it progressed to the "centers that control breathing," manifested by apnea or seizure- like activity that led to apnea. Notably, it was Dr. Roth's opinion that it was not Jonathan's large head alone or his thrombocytopenia alone, apparently because of its moderate nature, which occasioned the initial bleed and resulting hemorrhage but, rather, the two conditions acting in consort. There was, however, no injury to Jonathan's scalp or skull noted at delivery, nor any molding of his head consequent to the delivery. It is of further note, in evaluating Dr. Roth's opinion, that he also observed that, had Jonathan been delivered by cesarean section before the onset of labor, he would have had a "lower probability" of having a hemorrhage than had he undergone active labor and vaginal delivery. Such observation clearly implies that factors other than labor and delivery could have operated to induce Jonathan's hemorrhage. Finally, in considering Dr. Roth's opinion of progressive deterioration, it is worthy of note that, apart from the "slight floppiness" observed shortly after birth, Jonathan evidenced no symptoms of neurologic injury until 26 hours of life. As heretofore noted, the "slight floppiness" exhibited by Jonathan was reasonably attributed to the magnesium sulfate administered to Ms. Merida during labor and delivery, the hypoglycemia Jonathan was shown to have developed, or a combination of the two, as opposed to a symptom of neurologic injury. Consequently, there is no objective evidence or symptom, that one would otherwise expect to observe, to support Dr. Roth's opinion of progressive deterioration. Contrasted with the opinions of Dr. Roth, regarding the genesis of Jonathan's hemorrhage, are the opinions offered on behalf of NICA through Michael S. Duchowny, M.D., a physician board certified in pediatric neurology. Dr. Duchowny, although acknowledging that thrombocytopenia offered an increased risk of intraventricular hemorrhage to an infant through the forces of labor and delivery, was of the opinion that Jonathan's hemorrhage at 26 hours of life was a spontaneous event, unrelated to labor and delivery, and that the cause of that hemorrhage could not be identified with any reasonable degree of medical certainty or, stated differently, that any attempt to attribute a cause for Jonathan's hemorrhage was, at best, speculative. 5/ In reaching his conclusion, Dr. Duchowny observed that there was no objective evidence or symptom of trauma or oxygen deprivation at birth, as one would expect had there been a neurologic insult during the course of labor and delivery, and that there was likewise no objective evidence or symptom of neurologic injury over the course of Jonathan's first 26 hours of life, as one would expect to observe were he suffering a progressive disorder, as opined by Dr. Roth. Dr. Duchowny was further of the opinion that, although moderately thrombocytopenic, Jonathan's platelet count was not sufficiently low, a level he described as 20,000 or less, to increase the likelihood that Jonathan would suffer a bleed. Resolving the conflict between the opinions of Doctors Roth and Duchowny is not an easy or lightly undertaken effort. Each physician is eminently qualified and the genuineness of the opinions they expressed is apparent. The seriousness of the resolution is further intensified by the obvious needs of a severely impaired infant; however, while such needs are significant, it cannot be overlooked that where, as here, responsibility for the care of the infant is sought to be imposed on the Plan, the proof must be compelling that, more likely than not, the infant suffered a "birth-related neurological injury" as defined by law. In this case, the proof falls short of meeting such standard. 6/ As heretofore noted, the labor and delivery of Jonathan was essentially normal and there was no obstetrical incident or identifiable event during labor and delivery that would evidence that he had suffered a hypoxic insult, mechanical injury or traumatic event. Indeed, although Jonathan did have a large head (above the 90th percentile), there was no cephalopelvic disproportion noted, no arrest of labor, no protracted labor, and no use of forceps or vacuum extraction in delivery. Upon delivery, no apparent cranial injuries were observed, no molding of the head was noted, and Jonathan 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 Jonathan's first 26 hours of life, evidencing oxygen deprivation, mechanical injury, or other insult, that would account for the hemorrhage he suffered. In reaching the foregoing conclusion, it has not been overlooked that an infant suffering from thrombocytopenia is at increased risk of intraventricular hemorrhage through the forces of labor and delivery. Here, however, it was not suggested or shown that Jonathan's mild thrombocytopenia would, itself, foster a hemorrhage of the nature he suffered, rather petitioner's proof suggested that his large head and thrombocytopenic condition combined, when subjected to the trauma of labor and delivery, to precipitate a bleed that slowly progressed to a Grade IV intraventricular hemorrhage or precipitated a seizure that resulted in such a hemorrhage. Given the nature of the proffer, there being no apparent complication during labor and delivery, no objective sign of head trauma at birth, no symptoms of neurologic insult at birth, and no symptom of neurologic insult over the 26 hours prior to Jonathan's acute compromise, it must be concluded, as suggested by Dr. Duchowny, that any conclusion timing the genesis of Jonathan's hemorrhage to the events of labor and delivery is not supported by reasonable medical probability but is, at best, speculative. Consequently, it must be concluded, that petitioners have failed to demonstrate that Jonathan's hemorrhage was related to trauma, oxygen deprivation or mechanical injury occurring during the course of labor and delivery, as opposed to a spontaneous event, of unknown origin, occurring at Jonathan's twenty-sixth hour of life. 7/
The Issue At issue in this proceeding is whether Thalya Greene, 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 Daniel Greene and Lizbeth Greene, are the parents and natural guardians of Thalya Greene (Thalya), a minor. Thalya was born a live infant on August 27, 1998, at Baptist Medical Center, a hospital located in Jacksonville, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during Thalya's birth was R. William Quinlan, 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(7), Florida Statutes. Thalya's birth At or about 4:35 a.m., August 27, 1998, Mrs. Greene (with an estimated date of confinement of September 19, 1998, and the fetus at 36+ weeks) presented to Baptist Medical Center in early labor. Vaginal examination revealed the membranes to be intact, and the cervix at 3 centimeters dilatation, effacement at 50 percent, and the fetus at station -2. External fetal monitoring applied at 4:37 a.m., reflected a reassuring fetal heart tone, and Mrs. Greene was admitted to labor and delivery at or about 4:40 a.m. Mrs. Greene's labor progressed steadily, and external fetal monitoring reflected a reassuring fetal heart tone throughout the course of labor and delivery. At or about 7:30 a.m., dilatation was noted as complete; at 7:49 a.m., the membranes were artificially ruptured, with clear fluid noted; and at 7:55 a.m. Thalya was delivered spontaneously (cephalic presentation) without incident. On delivery, Thalya was noted as "pale blue" in color, and was bulb suctioned and accorded free flow oxygen; however, she breathed spontaneously, and did not require resuscitation. Initial newborn assessment noted no apparent abnormalities. Apgar scores were recorded as 7 at one minute and 8 at five minutes. The Apgar scores assigned to Thalya 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, Thalya's Apgar score totaled 7, with heart rate, muscle tone, and reflect irritability being graded at 2 each; respiratory effort being graded at 1; and color being graded at 0. At five minutes, Thalya's Apgar score totaled 8, with heart rate, respiratory effort, muscle tone, and reflex irritability being graded at 2 each, and color again being graded at 0. Thalya was admitted to the newborn nursery at or about 8:50 a.m. Assessment on admission was grossly normal. Thalya's status post-delivery was uneventful until 11:30 a.m. (approximately 3 1/2 hours after delivery) when she experienced a choking episode (secondary to spitting up) and turned dusky over the face and chest. In response, Thalya was placed under a radiant warmer, suctioned, and given blow by oxygen (for approximately 3 minutes) until she pinked up. Thereafter, Thalya's course was again uneventful until 1:00 a.m., August 28, 1998, when she again appeared dusky, and was accorded blow by oxygen. At the time, it was noted that the CBC drawn during the first dusky spell was within normal limits and that the blood culture that had been obtained was preliminarily negative. Thereafter, Thalya's course was again without apparent complication until approximately 10:23 p.m., when she "became dusky not associated with feed," and was again suctioned and accorded blow by oxygen. At that time, Thalya was noted as "pink and intermittently tachypneic with rare grunting." Following neurologic consult, Thalya was transferred to the neonatal intensive care unit (NICU) for further observation and management. Thalya was received in the NICU at 10:34 p.m. At the time, she was observed as "warm and pink with grunting noted." EKG leads were applied and revealed a heart rate of 180, respiratory rate of 50, blood pressure of 76/49, and a rectal temperature of 100.3. Examination revealed nystagmus (an involuntary rapid movement of the eyeball) and some jerky movements of her extremities. CBC showed a white blood count of 5,000, and blood culture was ordered. Working diagnosis was "suspected septis" and Thalya was started on ampicillin and gentamicin. At 12:35 a.m., August 29, 1998, Thalya evidenced symptoms of seizure activity, and was loaded with phenobarbital. Spinal tap of August 29, 1998, as well as the results of the blood culture drawn of August 28, 1998, was positive for Group B Streptococcus. An infectious disease consult was obtained and Thalya was managed on antibiotics for three weeks, and maintained on phenobarbital for her seizure activity. CT and MRI of the head on August 29, 1998, were normal; however, a head ultrasound of September 3, 1998, showed minimal intra-axial fluid. Chromosomal studies were normal. Thalya was discharged to her parents' care on September 15, 1998, on phenobarbital and ampicillin. Final diagnosis on discharge included bacterial infection due to Streptococcus, Group B; streptococcal meningitis; and seizures. Thalya's subsequent development Following her discharge from Baptist Medical Center, Thalya was initially followed by Carlos H. Gama, M.D., a pediatric neurologist. Dr. Gama's first neurological examination occurred on November 3, 1998, when Thalya was 2 months of age, and was reported as follows: I had the opportunity of seeing Thalya for a neurological evaluation. The following are my diagnosis and recommendations. Diagnosis: Status post neonatal Group B Streptococcal meningitis. Seizures. Hypotnia. Recommendations: Obtain EEG. Obtain trough Phenobarbital level. Obtain records. Return to this office in one month for reevaluation and further recommendations. Comments: * * * . . . Since discharged from NICU mother reports that Thalya had done well. She is feeding well and thriving. No seizures have been noted. She continues on Phenobarbital, taking 4mls po bid. A blood level was obtained prior to this visit but this result is not available. Mother reports that Thalya has normal awake and sleep cycles. She seems to be moving all extremities spontaneously and symmetrically. There has not been any apneic spells or unusual behaviors suggestive of seizure like activity . . . . The examination today reveals a head circumference is 40.5cm (in the 90th percentile). Her weight is in the 90th percentile and height is in the 50th percentile. The baby is alert. She is able to turn her eyes to light, but does not track the examiner in a 90 degree range. The pupils were equal and reactive. Red reflex was present bilaterally. Facial grimace was symmetric. Suck was appropriate. Strength seems to be grossly unremarkable. Deep tendon reflexes were +2 in the upper extremities, +3 in the lower extremities at the knees and +2 at the ankles. No clonus was seen. Babinski's were present bilaterally. There was evidence of hypotonia of her axial musculature, being approximately moderate in severity. There was also decrease in head control. The patient's moro reflex reveals appropriate abduction of her upper extremities symmetrically. Traction response was decreased. Tone and neck reflex was absent. Palmar and Plantar reflexes were present. Muscle tone was low. The sensory examination to touch seemed to be unremarkable. Spine examination was noncontributory. The patient has no obvious dysmorphic features, organomegalies or skin abnormalities. Anterior fontanel was open and normal tense with no musculatures. Therefore, it is my opinion that Thalya has a history of neonatal Group B Streptococcal meningitis and sepsis associated with seizures. She is now seizure free. Her examination is remarkable for hypotonia, which most likely is on central basis. Therefore, the above recommendations were made. She will be reassessed in one month in this office. The EEG (Electroencephalogram) recommended by Dr. Gama was obtained on November 9, 1998, and read as abnormal. Specifically, the EEG report noted: This EEG is abnormal because of mild background disorganization which was seen bilaterally but more prominently over the right hemisphere, especially in the frontal region. This finding suggest[s] a diffused cerebral dysfunction such as seen in mild encephalopathy. In addition, a structural lesion in the right hemisphere cannot be excluded. Thalya was next seen by Dr. Gama on December 7, 1998. The results of that examination were reported as follows: Diagnosis: Seizure disorder. Stable on Phenobarbital. S/P [status post] Bacterial Group B Streptococcal Meningitis. Hypotonia. Developmental delay. Abnormal EEG. * * * Comments: . . . Thalya continues to be active. She is feeding well and gaining weight properly. She is making more cooing sounds and attempting to roll over, but she has not been successful in this area. Her examination demonstrates that her head circumference is 42cm. She is alert. She follows the examiner. Her pupils are equal and reactive. Face is unremarkable. She does seem to stick her tongue out intermittently. The motor examination demonstrates that she has decrease traction and head control for her age. She also has a tendency to keep her hands fisted, but this is only intermittently. She does not reach for objects yet. She is unable to hold weight in her lower extremities. Muscle tone seems to be slightly decreased in the axial musculature in particular. Therefore, it is my recommendation that we proceed with an MRI of the brain to rule out structural abnormalities of the right hemisphere.1 In addition, we have discussed the treatment with Phenobarbital. This should be continued for at least six months before making any further recommendations . . . She will be reassessed in this office in 1-2 months. Dr. Gama's next neurological examination of Thalya occurred on January 12, 1999, and was reported as follows: Diagnosis: Seizure disorder. Stable on Phenobarbital. S/P bacterial group B streptococcal meningitis. Hypotonia. Improving. Borderline developmental delay. Abnormal EEG * * * Comments: Thalya is doing extremely well. She is getting physical therapy twice a week and making progress. She is more attentive. She follows the examiner in a 180 degree range. She has good social skills. Anterior fontanel is soft. Head circumference is 44cm which is slightly above the 90th percentile, but she has been growing parallel to this with no problems. Cranial nerve examination is unremarkable. Motor examination demonstrates that she is unable to put weight in lower extremities, otherwise, she moves all extremities spontaneously. Deep tendon reflexes were unremarkable. No obvious pathological reflexes were elicited during today's visit. Muscle tone was normal to low. Denver Developmental Screen test reveals that she seems to be appropriate for her age in most of the areas. However, she is unable to roll over but she is showing some attempts to do this. The rest of the examination was noncontributory. Thalya was last seen by Dr. Gama on April 29, 1999, and he reported the results of that follow-up neurological examination as follows: Diagnosis: Seizure disorder. Stable on Phenobarbital. S/P Bacterial Group B Streptococcal Meningitis. Hypotonia. Improved. Comments: Thalya continues to do extremely well, with no recurrent seizures. She is tolerating the medication properly . . . . The patient continues to make progress in her development. The examination today demonstrates that her head circumference is 46.7cm. She is maintaining this in the 90th percentile. She has no obvious focal or lateralizing deficits. Her muscle tone has improved considerably and she is gaining milestones appropriately. She was felt to be at her age level in most of the areas tested . . . . Thalya's subsequent neurologic development was followed by Joseph A. Cimino, M.D., a board-certified pediatric neurologist. Dr. Cimino reported the results of his first neurological examination by October 15, 1999, as follows: DIAGNOSES: 1) GBS meningitis/sepsis. Neonatal seizures. Static encephalopathy with motor and language delay. * * * DEVELOPMENTAL HISTORY: The history is obtained from the parents. The child rolled from front to back at 7 months, back to front at 8 months, sat at 7 to 8 months, crawled at 11 months. She was getting in to sitting at 10 to 11 months, pulled to stand at 12 months, began to cruise at 13 months, is not yet walking independently, says mama but not specifically, does not say dada nor does she wave hi or bye. She began physical therapy at 3 months of age and this was initially twice a week and 1 month ago was decreased to once a week. She is not in speech therapy, although the family states the EIP evaluation at 10 months showed she had a receptive language at 4 months. The concern is that audiological evaluation have shown some missed frequency hearing deficit. * * * PHYSICAL EXAMINATION: The head circumference is 48 1/4 cms which is between the 75th and 98th percentile for chronologic age of 14 months. GENERAL EXAM: On inspection this is a well- nourished, healthy youngster who is alert and attentive. The abdomen was soft and nontender without organomegaly. The cardiovascular exam revealed regular rate and rhythm and no murmurs were appreciated. No cranial bruits are noted. The extremities were normal. The lungs were clear to auscultation. The skin exam was without café au lait spots or hypopigmented macules. The spine was without hair tufts or dimpling. In observing this child crawl and again reaching for objects I did not see any focality, nothing to suggest an old infarction which may be a complication of neonatal bacterial meningitis. In addition a CT scan was reported as negative. NEUROLOGICAL EXAM: The child is very social and attentive with good reciprocal play with a puppet. She smiled quite easily. Although with hands-on evaluation she did become irritable and cried. Assessment of tone was quite difficult. She tracked very nicely with full extraocular movements no ophthalmoparesis or nystagmus. The pupils were equal and reactive to light and facial movements were symmetric. I was not able to get an adequate look at the fundi. Corneal reflexes were intact. With regards to the motor exam, she reached quite nicely for objects without preference. She in fact did crawl well, transitioned into a sitting position but did W sit, usually associated with low muscle tone. With hands-on exam it was very difficult as she was crying and had a lot of active resistance to know exactly the status of her tone. She pulls to stand with a mature pattern with hip flexion. She sat quite nicely with her back straight, able manipulate objects. She did not slip through my grip on vertical suspension. Her deep tendon reflexes were 2/4 and symmetric in both the upper and lower extremities. The sensory exam was grossly intact to pain. IMPRESSION: GBS meningitis/sepsis . . . early onset. Neonatal seizure without recurrence, successfully tapered off of Phenobarbital. Prematurity 36 weeks gestation. Language delay. I think at 13 months adjusted age she should be saying mama and dada specifically, have more jargoning, waving hi and bye, and say several other words in addition to mama and dada which are used specifically. There is clearly risk of hearing deficit given meningitis and the use of Gentamicin and this child needs to be followed closely. History of motor delay. Clearly rolling at 6 months adjusted age is delayed. Sitting at 6 to 7 months adjusted age is normal, the family gave a chronologic age of 7 to 8 months but at 36 weeks gestation it is fair to make a 1 month adjustment which I am assuming they would do at EIP. She began to cruise at 13 months chronologic age which is 1 year. Her adjusted age is now 13 months and clearly walking independently can be normal up to 18 months at the outside limits. She appears to be making nice improvement in this area . . . . Thalya was next seen by Dr. Cimino on May 1, 2000, and most recently on November 10, 2000. Dr. Cimino reported the results of his most recent follow-up examination as follows: DIAGNOSES: 1) GBS meningitis. Neonatal seizures. Prematurity 36 weeks gestation Language delay. CLINICAL HISTORY: This is a 2 year old female seen in follow up on 5/1/2000. At that time she was having episodes of spacing out. We obtained an EEG that was normal for the awake and sleep state. Because of the GBS meningitis and developmental delay we obtained an MRI also done in September that was normal. She underwent a speech evaluation on 6/23/2000 that showed auditory comprehension at 9-12 months, verbal expression at 6-9 months. Impression was overall global delay and she has been in speech therapy twice a week at Brook's Rehab. Her chronologic age at the time of the evaluation was 22 months. At this time she began to walk at 15 months. She says mama and specifically, dada non- specifically. She will repeat words but does not have a lot of spontaneous words. She does wave hi and bye. PHYSICAL EXAMINATION: The head circumference is 50 1/4 cms which is between the 75th and 98th percentile. This continues to grow at the same rate. She is crying and extremely uncooperative. She is very frightened by many of her past appointments. She did track, had full extraocular movements without nystagmus or ophthalmoparesis. Her facial movements do appear sysmetric. Tone is low even with her resisting. She ran to her mother, I did not see any abnormalities. Her gait certainly was not wide based. She seemed to get off the floor well. Her sensory exam was grossly intact to pain. The deep tendon reflexes were difficult due to her withdrawal. IMPRESSION: Status-post Group B strep neonatal meningitis with neonatal seizure without recurrence. Language delay. Most likely reflecting sequela of the meningitis. There is a good percentage of these children who do have severe deficits. However, the EEG and MRI did not show any abnormalities. There is no slowing of the background activity and no decrease or delay in myelination reported on the MRI. PLAN: . . . Continue speech therapy . . . Reassess in 6 months. The cause of Thalya's neurologic dysfunction Regarding the cause of Thalya's neurological dysfunction, the proof is compelling that during labor and delivery Mrs. Greene was vaginally infected with Group B Streptococcal (GBS), that during delivery the infection was transmitted to Thalya, and that over the next 24 to 48 hours the infection process rapidly progressed causing meningitis and the resultant brain injury. Consequently, it may be said that Thalya's neurologic dysfunction is associated with a brain injury caused by meningitis (an inflammation of the membranes that envelop the brain and spinal cord), secondary to a GBS infection acquired during the birthing process (most likely subsequent to rupture of the membranes and during the course of delivery). The dispute regarding compensability As a touchstone to resolving the dispute regarding compensability, it is worthy of note that the Plan establishes a no-fault administrative system that provides compensation for an infant who suffers a narrowly defined "birth-related neurological injury." Under the Plan, a "birth-related neurological injury" is defined as: [I]njury to the brain or spinal cord of a live infant weighing at least 2,500 grams at birth 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. Section 766.302(2), Florida Statutes. Here, there is no serious dispute that Thalya is neurologically impaired or that such impairment is attributable to a brain injury caused by the infection process discussed infra. Rather, what is at issue is whether the cause of Thalya's brain injury and the nature of her impairment fit the narrowly defined term "birth-related neurological injury." In this regard, it is Intervenor's view that Thalya's brain injury (occasioned by an infectious process) may reasonably be described as having been "caused by mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," and that such injury rendered her "permanently and substantially mentally and physically impaired." Conversely, Petitioners and Respondent are of the view that that the cause of Thalya's brain injury was not a "mechanical injury," and that she was not rendered "permanently and substantially mentally and physically impaired." Of the two, Petitioners' and Respondent's view is by far the more compelling. The nature and timing of Thalya's injury To address the nature and timing of Thalya's injury, the parties offered the opinions of three physicians: Charles Kalstone, M.D., a physician board-certified in obstetrics and gynecology; Joseph Cimino, M.D., a physician board-certified in pediatric neurology; and James Perry, M.D., a Fellow of the American Academy of Neurology. (Joint Exhibits 2-4). Notably, these physicians shared strikingly similar views, and were of the opinion that Thalya's brain injury was caused by infection induced meningitis, a process distinguishable from an injury caused by oxygen deprivation or mechanical injury. Stated otherwise, the physicians were of the opinion that Thalya's injury could not reasonably be described as having been caused by oxygen deprivation or mechanical injury.2 Given the plain and ordinary meaning of the words used in the term "mechanical injury" (as physical harm or damage caused by machinery, tools, or physical forces), their conclusion was most reasonable.3 Consequently, it is resolved that Thalya's brain injury was not caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Thalya's current mental and physical presentation At hearing, the only authoritative proof offered with regard to Thalya's current mental and physical presentation was the testimony of Dr. Cimino, Thalya's pediatric neurologist. It was Dr. Cimino's opinion that while Thalya may evidence substantial cognitive impairment, she does not evidence substantial physical impairment. Such opinions are grossly consistent with the record and are credited.
Findings Of Fact On December 13, 2018, Petitioner filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. for benefits pursuant to sections 766.301-766.316, Florida Statutes, otherwise known as the Plan. The baby was born on April 1, 2018, at Winnie Palmer Hospital for Women and Babies (Hospital). The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records the Hospital submitted with the Petition. In the instant case, NICA has retained Donald C. Willis, M.D. as its medical expert specializing in maternal- fetal medicine. Upon examination of the pertinent medical records, Dr. Willis opined: There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the baby's brain or spinal cord during labor, delivery or the immediate post-delivery period. Dr. Willis’s medical report dated February 25, 2019, (which reviews additional medical records), are attached to his Affidavit, with the Affidavit being attached to the motion as Exhibit “1”. His Affidavit reflects his ultimate opinion that: The baby suffered cerebral infarction, which appear to have occurred after the period of stabilization during the immediate post delivery period. Medical records do not suggest the cerebral infarction occurred during labor, delivery or the immediate post delivery period. As such, it is my ultimate opinion that there was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the baby's brain or spinal cord during labor, delivery or the immediate post-delivery period. In the instant case, NICA has retained Michael S. Duchowny, M.D. as its medical expert in pediatric neurology. Upon examination of the child and the pertinent medical records, Dr. Duchowny opined: I reviewed medical records which document Elias's birth at 37 weeks' gestation at Winnie Palmer Hospital. The pregnancy was complicated by pre-eclampsia, asthma, GERD and obesity. The mother had a fever to 101 degrees at time of delivery and was diagnosed with chorioamnionitis. Elias was born vaginally with a birth weight of 5 pounds 10 ounces (2547 grams). Apgar scores were 8 and 9 at 1 and 5 minutes. Elias was admitted to the NICU and found to have a blood glucose of 35. His NICU stay was further complicated by apnea and desaturation that raised concerns for seizures; he was started on Keppra, Elias was never intubated or mechanically ventilated and was maintained on room air. An MRI scan of the brain on DOL #2 revealed multiple ischemic infarcts involving the left lateral temporal lobe, left posterior thalamus and left hippocampal formation. There was adjacent extra-axial hemorrhage over the left temporal lobe. The findings were felt to most likely represent areas of venous infarction. Dr. Duchowny’s medical report is attached to his Affidavit, with the Affidavit being attached to the motion as Exhibit “2”. His Report reflects his ultimate opinion that: A consideration of the findings from today's evaluation and record review lead me to recommend that Elias not be considered for compensation within the NICA program. He has normal motor functions and his stroke was likely acquired prenatally. There is no evidence of either mechanical injury or oxygen deprivation in the course of labor, delivery or the immediate post-delivery period. The Affidavits of Dr. Willis and Dr. Duchowny are the only evidence of record relating to the issue of whether the subject claim is compensable as defined by the statute. As noted, Petitioner did not file a response to the motion, nor submit countervailing affidavits. The Petition, along with the Affidavits attached to the motion, establish that there are no genuine issues of material fact regarding the compensability of this claim.
Other Judicial Opinions Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).
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 At issue is whether Tristen Onofry, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Victoria Hill and Keith Onofry are the parents of Tristen Onofry, a minor. Tristen was born a live infant on July 29, 2002, at Tallahassee Memorial Regional Medical Center, Tallahassee, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Tristen's birth was Minal K. Krishnamurphy, 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. To resolve whether Tristen suffered a "birth-related neurological injury," the parties offered the medical records related to Tristen's birth and subsequent development (Joint Exhibit 1), and the opinions of Michael Duchowny, M.D., a physician board-certified in pediatrics; neurology, with special competence in child neurology; and clinical neurophysiology (Joint Exhibit 2). Notably, Dr. Duchowny evaluated Tristen on October 6, 2004, and reported the results of his evaluation, as follows: PHYSICAL EXAMINATION reveals an[] alert and cooperative, well developed, well-nourished, 2-year-old, left-handed boy. Tristen weighs 23 pounds and is 32 inches tall. His head circumference measures 46.4 centimeters, placing him at the 10th percentile for age match controls. There are no dysmorphic features and no cranial or facial anomalies . . . [or] asymmetries. There are no neurocutaneous stigmata. The neck is supple without masses, thyromegaly, or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. Tristen's NEUROLOGIC EXAMINATION reveals him to be cooperative but with no speech output. He does know colors by pointing. He does not interact with meaningful speech sounds. He seems to enjoy the examination and actively participated. There are prominent tongue thrusting movements and intermittent drooling. The cranial nerve examination reveals full visual fields to direct confrontation testing. Funduscopic examination reveals sharply demarcated disc margins without optic pallor. There is no retinopathy. Pupils are 3 mm and react briskly to direct and consensually presented light. The extraocular movements are conjugate and full in all planes of gaze. The motor examination reveals a static hypotonia with dynamic hypertonicity most prominent in the lower extremities. At rest, Tristen demonstrates an overly full range of motion at all joints. He will then stiffen with activated movement. There are bilateral AFO's in place. Tristen shows no evidence of stable weightbearing and has poor head control with the head flopping forward. He has a wide based stance and demonstrates truncal ataxia. He is able to grasp objects only with a palmar grasp and has no evidence of developed pincher grasp in either hand. He tends to grasp cubes but cannot transfer and drops them readily. He cannot build a tower of cubes. There are no pathological reflexes. The deep tendon reflexes are 2+ in the upper extremities but 3+ at both knees and 3+ at the ankles. There are bilateral Babinski responses. The spine is straight without dysraphic features. Tristen maintains a plantar grade attitude when held in the vertical position. His shoulder girdle seems to slip through the examiner's hands. Sensory examination is intact to withdrawal of all extremities to stimulation. The neurovascular examination reveals no cervical, cranial, or ocular bruits and no temperature or pulse asymmetries. As for the etiology of Tristen's impairments, it was Dr. Duchowny's opinion, based on the results of his neurologic evaluation of Tristen and review of the medical records, that, while of unknown etiology, Tristen's impairments were most likely developmentally based, and not associated with oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or the immediate postpartum period. In so concluding, Dr. Duchowny observed that the impairments demonstrated by Tristen are consistent with the syndrome of ataxic cerebral palsy, a developmentally-based brain disorder acquired before the onset of labor. Dr. Duchowny was also of the opinion that the medical records did not reveal evidence of a substantial mechanical or hypoxic event having occurred during labor and delivery. As for the significance of Tristen's impairments, it was Dr. Duchowny's opinion that Tristen is permanently and substantially physically impaired. However, mentally, Tristen is not similarly affected or, stated otherwise, he is not permanently and substantially mentally impaired. Notably, Dr. Duchowny's opinions were uncontroverted, grossly consistent with the record, and credible.
Findings Of Fact Uzziah Walker was born on November 23, 2012, at Sacred Heart Hospital located in Pensacola, Florida. Uzziah 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 Uzziah. In an affidavit dated May 24, 2015, Dr. Willis described his findings in pertinent part as follows: In summary, there was no apparent fetal distress during labor. Spontaneous vaginal delivery resulted in a large subgaleal hemorrhage with blood loss and poor perfusion. The baby was not hypoxic at birth. Cord blood gas was normal (pH 7.25). However, blood loss from the scalp hemorrhage and poor perfusion resulted in intraventricular hemorrhage during the immediate post delivery period. There was an apparent obstetrical event that resulted in scalp hemorrhage and poor perfusion with loss of oxygen to the baby’s brain during the immediate post delivery period. The poor perfusion resulted in brain injury. I am unable to comment about the severity of the brain injury. NICA retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Uzziah and to review his medical records. Dr. Duchowny examined Uzziah on March 11, 2015. In an affidavit dated May 29, 2015, Dr. Duchowny opined in pertinent part as follows: Review of medical records and imaging studies sent on February 4 and 6, 2015 was performed. They detail Uzziah’s birth at Baptist Hospital Health System in Pensacola with a forceps assisted delivery after a rapid decent. Uzziah evidenced tachycardia and some retractions at the time of delivery but his Apgar scores were 7 and 8. He was observed to have a subgaleal hematoma; a CT scan of the brain on November 23 revealed a large soft tissue hematoma and a small collection of subdural blood over the right cerebellar tent with a small amount of right ventricular hemorrhage. Of note, there was no cerebral edema or ventricular compression. No skull fractures were noted despite bilateral subgaleal hematomas. The neonatal course was otherwise uncomplicated. In summary, Uzziah’s neurological examination today reveals normal findings. He does not exhibit either mental or physical impairment and his overall development has caught up and is proceeding in an age appropriate fashion. I believe that Uzziah’s perinatal hematomas were resorbed without residual brain injury and his future prognosis is excellent. I explained to his family that Uzziah is doing very well and that his future is favorable from a prognostic standpoint. Given Uzziah’s normal neurological status today, I am not recommending compensation with the NICA program. 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 an apparent obstetrical event that resulted in scalp hemorrhage and poor perfusion with loss of oxygen to the baby's brain during the immediate post-delivery period, and that the poor perfusion resulted in brain injury. Dr. Willis’ opinion is credited. There are no opinions filed that are contrary to Dr. Duchowny’s opinion that Uzziah’s overall development is proceeding in an age appropriate fashion and does not exhibit either mental or physical impairment. Dr. Duchowny’s opinion is credited.
