Findings Of Fact Dream was born on February 14, 2018, at Winnie Palmer Hospital, located in Orange County, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Dream. In a medical report dated October 8, 2019, Dr. Willis summarized his findings and opined, in pertinent part, as follows: In summary, labor was induced at about 33 weeks for preclampsia. FHR tracing during labor did not suggest any significant fetal distress. Delivery was by Cesarean section. Umbilical cord blood gas pH was within normal limits at 7.12. There was no seizure activity noted after delivery. No EEG or head imaging studies were done during the newborn hospital course. The child suffered brain injury at some time prior to the MRI at 11 months of age, which was consistent with encephalmalacia. However, the brain injury does not appear to be birth related. There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, deliver or the immediate post-delivery period. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a Board- certified pediatric neurologist, to examine Dream and to review his medical records. Dr. Duchowny examined Dream on November 26, 2019. In a medical report dated November 27, 2019, Dr. Duchowny summarized his examination of Dream and opined, in pertinent part, as follows: In summary, Dream’s evaluation reveals findings consistent with a substantial mental and motor impairment. The evidences spasticity and hyperreflexia of all extremities, a profound delay in motor milestones and absence of meaningful communication. He also has oromotor dysfunction and a borderline right exotropia. Review of medical records forwarded on November 12, 2019 reveal that Dream was the 2900 gram product of a 34 week gestation complicated by insulin-dependent gestational diabetes, polyhydramnios, pregnancy-induced hypertension and pre-eclampsia. He was delivered by Caesarian section because of worsening pre- eclampsia and non-reassuring fetal heart tones. Dream was a large-for-gestational-age neonate and had Apgar scores of 6 and 7 at one and five minutes. His neonatal course was prolonged although he remained on CPAP for only one day. A brain MR imaging performed on January 14, 2019 (age one month) revealed bilateral multifocal cystic periventricular leukomalacia. Given Dream’s relatively stable intrapartum and postnatal care, I would like to review Dream’s brain imaging before making a final recommendation regarding acceptance to the NICA program. On February 14, 2020, Dr. Duchowny provided an addendum to his neurological evaluation of Dream, following the review of brain imaging studies. Dr. Duchowny and Dr. Willis conferred regarding Dream’s medical records and current neurological status as well. In his February 14, 2020, addendum, Dr. Duchowny opined: It is our combined opinion that the findings on re- review do not support the presumption that Dream’s severe neurological outcome and MR imaging abnormalities were acquired in the course of labor, delivery or the immediate post-natal period as a result of either oxygen deprivation or mechanical injury. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen to Dream’s brain during labor, delivery, and the post-delivery period, which resulted in brain injury. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that Dream should not be considered for inclusion in the NICA program. Dr. Duchowny’s opinion is credited. Dr. Willis reaffirmed his opinion in an affidavit dated April 17, 2020. Dr. Duchowny reaffirmed his opinion in an affidavit dated April 17, 2020.
Findings Of Fact On February 24, 2017, Petitioners filed a Petition for Benefits Pursuant to Florida Statute Section 766.301, et seq. The child, Rosabella Wilson, was stillborn on April 29, 2016, at Gulf Coast Medical Center after the mother was transferred there from Jackson in Marianna, Florida. The circumstances of Rosabella’s labor and delivery are reflected in the medical records submitted by Petitioners along with the Petition. In order for a claim to be compensable under the Plan, the requisites set forth in section 766.309 must be met. NICA retained Donald C. Willis, M.D. (Dr. Willis), as its medical expert specializing in maternal-fetal medicine. Upon examination of the medical records, Dr. Willis opined, in pertinent part: Autopsy stated this was a stillbirth. Neuropathologic diagnosis was Hypoxic Ischemic Encephalopathy (HIE). No birth defects were noted. * * * In summary, the mother was a poorly controlled Diabetic, admitted at 38 weeks gestational age for labor induction. An abnormal FHR tracing developed during labor and resulted in fetal demise. There was an obstetrical event that resulted in loss of oxygen to the baby's brain during labor which resulted in brain injury as diagnosed by Autopsy. Severity of the brain injury could not be determined. This was apparently not a live birth. Further, in the Petition, Petitioners indicate that the child is deceased and that a birth certificate was never issued. See Petition, paras. 12 and 13. The autopsy report reviewed by Dr. Willis was included in the medical records provided by Petitioners with the Petition and indicates that the child was stillborn. Thus, the face of the Petition, the autopsy report, and Dr. Willis' affidavit establish that the child was stillborn and was not a live birth.
