The Issue The issue in this case is whether Reshnaya E. Francois suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Plan.
Findings Of Fact Reshnaya E. Francois was born on January 31, 2016, at Broward Health, in Coral Springs, Florida. Reshnaya weighed in excess of 2,500 grams at birth. The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records of Broward Health submitted with the Petition. At all times material, both Broward Health and Dr. Wajid were active members under NICA pursuant to sections 766.302(6) and (7). Reshnaya was delivered by Dr. Wajid, who was a NICA- participating physician, on January 31, 2016. Petitioners contend that Reshnaya suffered a birth- related neurological injury and seek compensation under the Plan. Respondent contends that Reshnaya has not suffered a birth- related neurological injury as defined by section 766.302(2). In order for a claim to be compensable under the Plan, certain statutory requisites must be met. Section 766.309 provides: The Administrative Law Judge shall make the following determinations based upon all available evidence: Whether the injury claimed is a birth- related neurological injury. If the claimant has demonstrated, to the satisfaction of the Administrative Law Judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in § 766.302(2). Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital. How much compensation, if any, is awardable pursuant to § 766.31. If the Administrative Law Judge determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at birth, she or he shall enter an order . . . . The term “birth-related neurological injury” is defined in Section 766.302(2), Florida Statutes, as: . . . injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth 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. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality. (Emphasis added). In the instant case, NICA has retained Donald Willis, M.D. (Dr. Willis), as its medical expert specializing in maternal-fetal medicine and pediatric neurology. Upon examination of the pertinent medical records, Dr. Willis opined: The newborn was not depressed. Apgar scores were 8/8. Decreased movement of the right arm was noted. The baby was taken to the Mother Baby Unit and admission exam described the baby as alert and active. The baby had an Erb’s palsy or Brachial Plexus injury of the right arm. Clinical appearance of the baby suggested Down syndrome. Chromosome analysis was done for clinical features suggestive of Down syndrome and this genetic abnormality was confirmed. Chromosome analysis was consistent with 47, XX+21 (Down syndrome). Dr. Willis’s medical Report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: In summary: Delivery was complicated by a mild shoulder dystocia and resulting Erb’s palsy. There was no evidence of injury to the spinal cord. The newborn was not depressed. Apgar scores were 8/9. Chromosome analysis was consistent with Down syndrome. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period. The baby has a genetic or chromosome abnormality, Down syndrome. 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. The opinion of Dr. Willis that Reshnaya did not suffer an obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery, or the immediate post-delivery period is credited. In the instant case, NICA has retained Michael S. Duchowny, M.D. (Dr. Duchowny), as its medical expert in pediatric neurology. Upon examination of the child and the pertinent medical records, Dr. Duchowny opined: In summary, Reshnaya’s examination today reveals findings consistent with Down syndrome including multiple dysmorphic features, hypotonia, and hyporeflexia. She has minimal weakness at the right shoulder girdle and her delayed motor milestones are likely related to her underlying genetic disorder. There are no focal or lateralizing features suggesting a structural brain injury. Dr. Duchowny’s medical report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: Neither the findings on today’s evaluation nor the medical record review indicate that Reshnaya has either a substantial mental or motor impairment acquired in the course of labor or delivery. I believe that her present neurological disability is more likely related to Downs syndrome. For this reason, I am not recommending that Reshnaya be considered for compensation within the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Duchowny. The opinion of Dr. Duchowny that Reshnaya did not suffer a substantial mental or motor impairment acquired in the course of labor or delivery is credited.
Findings Of Fact Melina Antunes was born on August 27, 2015, at Florida Hospital, located in Orlando, Florida. Melina 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 Melina. In a medical report dated December 12, 2016, Dr. Willis summarized his findings and opined in pertinent part as follows: In summary, induction of labor was complicated by a spontaneous uterine rupture. The baby and placenta were expelled into the maternal abdomen. The baby was depressed at birth with low Apgar scores and a cord blood gas consistent with acidosis (pH 6.65). MRI was consistent with HIE. There was an apparent obstetrical event (uterine rupture) that resulted in loss of oxygen to the baby’s brain during labor, delivery, and continuing into the immediate post delivery period. The oxygen deprivation resulted in brain injury. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Melina and to review her medical records. Dr. Sigurdardottir examined Melina on February 15, 2017. In a medical report dated February 15, 2017, Dr. Sigurdardottir summarized her examination of Melina and opined in pertinent part as follows: Summary: Here we have a 17-month-old born after a sudden uterine rupture during active labor. The patient had neurologic depression at birth, significant acidosis with a pH of 6.6 and required active cooling as well as supportive medication for seizures in the neonatal period. She did have well documented injury on MRI but has made a remarkable recovery. Neurologic exam today, has mild abnormalities, but no standardized developmental testing is available for our review. Result as to question 1: Melina is not found to have substantial physical or mental impairment at this time. Results as to question 2: In review of available documents, Melina does have the clinical picture of an acute birth related hypoxic injury with both the clinical features of hypoxic encephalopathy and electrographic and MRI evidence to suggest hypoxic injury. Result as to question 3: The prognosis for full motor and mental recovery currently is excellent and her life expectancy is full. In light of her normal cognitive abilities and near normal neurologic exam, I do not feel that Melina should be included in the NICA program. If needed, I will be happy to answer additional questions or review further documentation of her developmental status. 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 an apparent obstetrical event that resulted in loss of oxygen to the baby'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. Sigurdardottir’s opinion that Melina does not have a substantial physical or mental impairment. Dr. Sigurdardottir’s opinion is credited.
Findings Of Fact Jamerious was born on January 1, 2014, at Winnie Palmer Hospital in Orlando, Florida. Attached to Respondent’s Motion for Summary Final Order is a certification of medical records from Dean Richey, Registered Health Information Administrator for Orlando Health, Inc., d/b/a Winnie Palmer Hospital. Said certification avers that the copies of the records attached to the certificate are true and accurate copies of the original records from Winnie Palmer Hospital related to Jamerious and Petitioner Terrese Franklin. The Discharge Summary from Winnie Palmer Hospital, dated February 14, 2014, documents that Jamerious’s birth weight was 1,152 grams. A Coding Summary from Winnie Palmer Hospital, concerning Petitioner Terrese Franklin, dated February 19, 2014, documents “Neonate bwt 1000-1249g w resp dist synd/oth maj resp or maj anom.” A review of the file reveals that no contrary evidence was presented to dispute the medical records from Winnie Palmer Hospital showing that Jamerious’s birth weight was less than 2,500 grams.
The Issue The issue for determination is whether Kannon Lett (Kannon), the minor child of Jordan Lett and Walter Bivens, has suffered a birth-related neurological injury as that term is defined in section 766.302(2), Florida Statutes (2018), compensable by the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Kannon was born on February 16, 2019, at West Florida Hospital. He was a child born of a single gestation, and weighed nine pounds, seven ounces, or 4,270 grams, at birth. NICA retained Donald C. Willis, M.D., as a medical expert specializing in maternal-fetal medicine. NICA submitted his expert report dated June 15, 2020, with its Response to Petition for Benefits. Dr. Willis concluded that there was an apparent obstetrical event that resulted in oxygen deprivation to the brain during delivery and continuing into the immediate post-delivery period, and that the oxygen deprivation resulted in brain injury. However, Dr. Willis did not provide an opinion as to the severity of the injury. Raj D. Sheth, M.D., conducted an examination of the child on August 12, 2020, and reviewed pertinent medical records related to his birth and subsequent treatment. Dr. Sheth opined that the infant was born with shoulder dystocia and left upper extremity weakness, which are likely to be permanent. However, he is age-appropriate developmentally, and, given that a birth-related neurological injury must result in a substantial mental and physical impairment to be eligible for benefits under the Plan, Dr. Sheth opined that Kannon’s injuries are not compensable. The parties to this proceeding do not dispute the conclusions of Drs. Willis and Sheth. Based on the evidence presented in support of the Motion, Kannon is not eligible for compensation under the Plan because the evidence does not indicate that he suffers substantial mental and physical impairments.
The Issue Whether Jaxon Donald suffered a “birth-related neurological 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 Linette Donald and Jeffrey L. Donald, Jr., are the parents and legal guardians of Jaxon. On September 30, 2017, Ms. Donald gave birth to Jaxon, a single gestation of 38 weeks, at Winnie Palmer Hospital a/k/a Orlando Health, Inc. (“Hospital”). Natalie Munoz-Sievert, M.D., provided obstetrical services and delivered Jaxon. It is undisputed that Dr. Munoz-Sievert was a participating physician in the Plan at the time of the delivery. Jaxon’s delivery, a spontaneous vaginal birth at 38 weeks gestational labor, was not complicated. Jaxon weighed 3,288 grams, was vigorous, and needed no resuscitation. His APGAR scores, which are used to determine if a baby needs resuscitation and if there is a risk of oxygen deprivation, were normal—eight at one minute and nine at five minutes. Scores above seven are considered normal. Jaxon needed no resuscitation after birth. Upon being transferred to the newborn nursery, Jaxon was clinically stable with no particular problems. The Hospital discharged Jaxon home in good condition with an uneventful newborn course at the Hospital. In support of their claim, Petitioners presented the testimony of Ms. Donald and two of her sisters. Petitioners also introduced medical records, including letters from two of Jaxon’s treating physicians. Ms. Donald testified about the labor, delivery, and Jaxon’s medical conditions. Although her prenatal records showed no particular signs of problems during her pregnancy, she explained why she believed Jaxon may have suffered a compensable birth-related neurological injury. Ms. Donald went into labor the evening of September 29, 2017. She went to the Hospital the next morning around 5:00 a.m. She waited in the lobby and an adjacent restroom for almost seven hours because there were no rooms available. During that period of time, she was not hooked up to a fetal monitor. Around 11:58 p.m., the Hospital admitted her and hooked her up to a fetal monitor, which indicated no fetal distress or abnormality. Ms. Donald felt the need to push immediately and, according to her, the nurse held the baby in until the doctor arrived. Ms. Donald delivered Jaxon at 12:42 p.m. Ms. Donald testified that Jaxon was blue after the delivery and that the Hospital placed him under a warmer. She said that the records indicated nasal flaring, which she believed showed respiratory distress. She testified that Jaxon was lethargic, sleepy, and had trouble feeding. Although she did not believe Jaxon was acting normal, the Hospital staff reassured her that he was fine. About 10 days after the delivery, she had to bring Jaxon back to the Hospital because he was not eating. Ultimately, Jaxon had a feeding tube inserted in August 2019. Ms. Donald testified that Jaxon is currently behind developmentally, both physically and emotionally. At about 18 months old, Jaxon underwent an MRI that showed he suffered a hypoxic ischemic event or low oxygen event that affected his brain. She believes the event could have occurred while she labored in the emergency room prior to being admitted and that the Hospital missed it due to a lack of fetal monitoring during that time. Jaxon is in occupational and speech therapy, as he currently only says five words. He also does not regulate his emotions like a normal child. Ms. Donald’s sisters, Ms. Perez and Ms. Rosado, also testified. Both were present at the Hospital and have spent time with Jaxon since his birth. They testified that Jaxon was lethargic at the Hospital, did not move much, and acted abnormally. Ms. Perez noted that Jaxon felt limp when she held him. Both stated that Jaxon is not where he should be developmentally. He has temper tantrums that last hours, cannot differentiate between yes and no, and says few words that only the family can understand. Neither sister believes Jaxon is where he should be developmentally at three years old. Samer Khaznadar, M.D., Jaxon’s pediatrician, prepared a letter indicating that, based on the medical records, Jaxon qualified for NICA benefits because he was diagnosed with Erb’s Paralysis due to a birth injury, has used a feeding tube, was diagnosed with mild cerebral palsy, wears an AFO,2 and is delayed. Dr. Khaznadar did not testify at the hearing, however, so he never expounded upon the medical bases for his statements, whether an oxygen deprivation event may have occurred during labor, delivery, or the 2 The record is silent as to the definition of an AFO. However, it appears to be an “ankle-foot orthosis” or brace “used to control instabilities in the lower limb by maintaining proper alignment and controlling motion. It is most often used with patients suffering from neurological or orthopedic conditions such as stroke, multiple sclerosis, cerebral palsy, fractures, sprains and arthritis.” Scheck & Siress, Plastic Ankle Foot Orthosis (AFO), available at https://www.scheckandsiress.com/patient-information/care-and-use-of-your- device/plastic-afo-ankle-foot-orthosis/ (last visited Sep. 4, 2020). immediate period thereafter, or whether Jaxon’s injuries constitute permanent and substantial mental and physical impairment. Murtuza Kothawala, M.D., Jaxon’s neurologist, also prepared a letter. He initially evaluated Jaxon for left upper extremity weakness in May 2018. When Jaxon was 18 months old in March 2020, he underwent an MRI that showed significant abnormality in his brain. Jaxon was diagnosed with left hemiplegic cerebral palsy, decreased muscle tone, and developmental delay, which are suggestive of a hypoxic low oxygen ischemic injury that might have happened around the perinatal period. However, Dr. Kothawala noted that determining the exact timing of the injury was impossible based only on the MRI report. He also confirmed that the Hospital’s medical records indicated a normal delivery with normal APGAR scores. Dr. Kothawala noted that Jaxon’s diagnoses impact him physically and interfere with his intellectual stamina as well as his ability to stay on task. He confirmed that accommodations would be needed so Jaxon could succeed academically. However, Dr. Kothawala did not opine that Jaxon suffers from permanent and substantial mental and physical impairment. He also did not testify at the hearing so as to explain the issues concerning the timing of the event that caused Jaxon’s injuries or whether they constitute permanent and substantial mental and physical impairment. NICA presented the testimony of two medical experts—Dr. Willis, a board-certified obstetrician, and Dr. Luis-Espinosa, a children’s neurologist who conducted an independent medical examination (“IME”) of Jaxon. After reviewing all of the medical records, Dr. Willis opined to a reasonable degree of medical certainty that Jaxon did not suffer an injury to the spinal cord or brain caused by oxygen deprivation during labor, delivery, or resuscitation in the immediate post-delivery period. Dr. Willis explained that the medical records indicated a normal, uncomplicated delivery and an uneventful newborn course at the Hospital. Jaxon’s fetal heart rate tracings were normal before and during the delivery, there was no indication of fetal distress during labor and delivery, his APGAR scores were normal, and he needed no resuscitation. Dr. Willis acknowledged that the medical records showed that Jaxon had problems with decreased muscle strength in the left arm and that the MRI showed findings that could be related to an oxygen deprivation event and brain injury. He also recognized that the medical records indicated Jaxon suffered from Erb’s Palsy, i.e., an injury to the brachial plexus that commonly occurs when a baby’s neck is stretched during a difficult delivery, but stated both that such an injury is not an injury to the brain or spinal cord itself and that the medical records confirmed an uncomplicated delivery. On cross examination, Petitioners asked whether the records could have missed an oxygen deprivation event while Ms. Donald was not hooked up to a fetal monitor before admission to the Hospital. Dr. Willis did not think so. He explained that, had such an oxygen deprivation event occurred that was sufficient to cause brain or spinal cord injury, the fetal distress would have been evident once the monitor was hooked up. Further, Jaxon’s other organ systems would likely have failed within a day or two of the delivery had such an event occurred, including seizures, respiratory distress requiring use of a ventilator, or renal failure. But, none of that occurred. Petitioners also asked whether Jaxon’s symptoms at birth—i.e., appearing blue and pale, nasal flaring, sleepiness, being floppy or low muscle tone, and difficulty feeding—were signs of an oxygen deprivation event. Dr. Willis explained that being blue and pale at one minute is normal. However, he acknowledged that some of the other symptoms could be evidence of a minor degree of brain injury due to a lesser degree of oxygen deprivation. In that scenario, the baby would not have all of the multi-organ failures he previously described. Dr. Willis testified, however, that such an event, even if it happened, would be outside the realm of NICA because the injury is not significant enough. Dr. Luis-Espinosa conducted an IME on Jaxon in December 2019. Based on his review of the medical records, the MRI report, and the IME, Dr. Luis-Espinosa opined to a reasonable degree of medical certainty that Jaxon most likely suffered a stroke in utero during the second or third trimester. Dr. Luis-Espinosa confirmed that the stroke caused Jaxon to suffer from cerebral palsy or spastic weakness in his left leg and arm. Dr. Luis- Espinosa did not believe that the stroke occurred during labor, delivery, or the immediate period thereafter because there were no clinical signs of stress during the delivery and Jaxon’s evolution post-birth was consistent with a normal, event-free birth. Dr. Luis-Espinosa confirmed that the cerebral palsy from which Jaxon suffers constitutes a permanent and substantial physical impairment. However, Dr. Luis-Espinosa does not believe that the impairment was caused by oxygen deprivation or a mechanical injury to the brain or spinal cord. Dr. Luis-Espinosa also opined to a reasonable degree of medical certainty that Jaxon does not suffer from a permanent and substantial mental impairment. During the IME, Dr. Luis-Espinosa found Jaxon to be cognitively behaving appropriately for his age. On cross examination, Petitioners asked whether Jaxon could have suffered from oxygen deprivation based on his appearing blue at birth and nasal flaring. Dr. Luis-Espinosa testified that Jaxon would have suffered from multi-organ failures had an oxygen deprivation event occurred. And, because oxygen deprivation affects both sides of the brain, Dr. Luis-Espinosa explained that such an event would not typically cause an injury to only one side of the body, such as Jaxon’s left-sided weakness. Dr. Luis-Espinosa acknowledged that his opinion as to mental impairment was only based on Jaxon’s state at the time of the IME. Based on the weight of the credible evidence, the evidence did not establish that Jaxon more likely than not suffered an injury to his brain or spinal cord due to oxygen deprivation or a mechanical injury during labor, delivery, or resuscitation in the immediate post-delivery period, which rendered him permanently and substantially physically and mentally impaired. The medical records indicated an uncomplicated delivery, normal APGAR scores, and no need for resuscitation. Dr. Willis and Dr. Luis- Espinosa opined to a reasonable degree of medical certainty that Jaxon did not suffer an oxygen deprivation event or one that occurred during labor, delivery, or the immediate period thereafter, but instead most likely suffered from a stroke in utero earlier in the pregnancy. They both offered specific, credible reasons to support those opinions. The letters from Jaxon’s treating physicians and Dr. Willis’s testimony on cross examination at best showed that a minor oxygen deprivation event could have occurred during the pre- admission period in the Hospital. However, that is insufficient to prove that such an event more likely than not occurred, particularly given the credible and unrebutted testimony of NICA’s two medical experts. Although it is undisputed that Jaxon suffers from a permanent and substantial physical impairment, the weight of the credible evidence did not establish that he suffers from a permanent and substantial mental impairment or that any impairment was caused by oxygen deprivation or a mechanical injury occurring during the course of labor, delivery, or resuscitation in the immediate post-delivery period. Petitioners’ witnesses offered credible testimony that Jaxon appears to be delayed mentally, does not speak enough for a child who is almost three years old, and does not act accordingly for his age. However, that lay testimony is insufficient to rebut the credible and unrebutted testimony of Dr. Luis-Espinosa that Jaxon showed no signs of mental impairment during the IME and that his physical impairment did not appear to be caused by an oxygen deprivation event.
Findings Of Fact Maliyah Jones was born on May 28, 2013, at North Florida Regional Medical Center located in Gainesville, Florida. Maliyah weighed 3,870 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Maliyah. In a medical report dated September 15, 2015, Dr. Willis opined as follows: In summary, delivery was complicated by a shoulder dystocia, which resulted in an Erb’s palsy. Although depressed at birth, the baby had a good response to resuscitation (bag and mask ventilation) with an Apgar score of 9 at five minutes. The baby’s condition was stated to be stable on admission to the NICU. The newborn hospital course was complicated only by the Erb’s palsy. Discharge was on DOL 2. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Maliyah and to review her medical records. Dr. Sigurdardottir examined Maliyah on October 28, 2015. In a medical report regarding her independent medical examination of Maliyah, Dr. Sigurdardottir opined as follows: Summary: Maliyah is a 2-1/2 year-old born at term after an uncomplicated pregnancy with shoulder dystocia resulting in a near complete Erb’s palsy. She has required 2 surgical procedures and does have significant disability as per the Mallet scale and is likely to need more surgical procedures to enhance her functional abilities in her right upper extremity. She is, however, functioning well from a cognitive level and her gross motor skills are otherwise intact. In review of the medical records available, it seems clear that her right brachial plexopathy did occur at birth due to mechanical injury. In light of her favorable cognitive and language development our findings are the following: Result as to question 1: The patient is found to have a permanent physical impairment, but to have none or mild delays in language development. She is therefore not found to have a substantial mental and physical impairment at this time. * * * In light of the above-mentioned details, Maliyah’s restricted motor disability and near normal cognitive development, I do not recommend Maliyah to be included into the Neurologic Injury Compensation Association Program and would be happy to answer additional questions or review further medical records. In light of her favorable mental and developmental state it is doubtful that additional records would alter the outcome of our review. She is not felt to have a substantial mental impairment at this time. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain or spinal cord during labor, delivery or the immediate post-delivery period. Dr. Willis’ opinion is credited. There are no contrary expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Maliyah is not found to have a substantial mental impairment at this time. Dr. Sigurdardottir’s opinion is credited.
The Issue Whether Intervenor North Broward Hospital District d/b/a Broward Health Coral Springs a/k/a Coral Springs Medical Center (BHCS) satisfied the notice requirements set forth in section 766.316, Florida Statutes.
Findings Of Fact Rhea was born a live infant on August 18, 2017, at BHCS, located in Coral Springs, Florida. At the time of birth, Rhea weighed at least 2500 grams. BHCS is a “hospital,” as defined by section 766.302(6), Florida Statutes. Obstetrical services were delivered by Alison T. Clarke DeSouza, M.D., in the course of the subject labor, delivery, or resuscitation in the immediate post-delivery period in a hospital; BHCS. At the time of Rhea’s birth, Dr. DeSouza was a “participating physician,” as defined in section 766.302(7). Dr. DeSouza satisfied the notice requirements of section 766.316. Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, was retained by Respondent to review the medical records for Rhea and her mother. In his affidavit dated June 16, 2020, Dr. Willis opines to a reasonable degree of medical probability, as follows: There was an apparent obstetrical event that resulted in oxygen deprivation to the brain during labor, delivery and continuing into the immediate post-delivery period. The oxygen deprivation resulted in brain injury. Respondent further retained Luis E. Bello-Espinosa, M.D., a pediatric neurologist. Dr. Bello-Espinosa was retained to review the available medical records and conduct an examination of Rhea to determine whether she suffers from an injury which rendered her permanently and substantially mentally and physically impaired; and whether such injury is consistent with an injury caused by oxygen deprivation or mechanical injury occurring during the course of labor, delivery, or the immediate post-delivery period in the hospital. Dr. Bello-Espinosa conducted the examination on June 12, 2020. In his affidavit dated June 16, 2020, he opines to a reasonable degree of medical probability, in pertinent part, as follows: In summary, Rhea is a 34-month old girl with a history of severe hypoxic-ischemic encephalopathy of birth. She was documented in the NICU to have acute refractory electroclinical and electrographic seizures, as well as MRI of the brain which were all indicative of a neonatal hypoxic-ischemic injury. On her examination, today is evident Rhea has severe neurological sequela. At 34-months of age, she has marked delayed acquisition of language and motor skills with salient signs on her neurological examination. She has mild axial hypotonia, moderate hypertonia in her left arm and both legs, including sustained dystonic posturing of her left hand, extensor posturing of her feet, and inability to walk, all of which are signs indicative of combined athetoid spastic triplegic cerebral palsy. Rhea is found to have substantial mental and physical impairments at this time. Rhea’s mental and physical impairments are permanent. In reviewing all of the available documents, the evolution of her symptoms, the acute brain MRI changes, her acute neonatal electroclinical seizures, it is evident that she had an acute hypoxic event perinatally. The injury is felt to be acquired due to oxygen deprivation of the brain. The injuries are felt to be birth-related. In summary, it is felt that the permanent and substantial mental and physical impairments accrued during the perinatal period of labor and delivery. The undisputed opinions of Dr. Willis and Dr. Bello-Espinosa are credited. Based on their opinions, the undersigned finds that Rhea sustained an injury to the brain caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which rendered Rhea permanently and substantially mentally and physically impaired.
Findings Of Fact Based on all available evidence, the undersigned makes the following findings of fact. Mateo was born on July 10, 2019, at the Hospital located in Orlando, Florida. Petitioner filed the Petition with DOAH on August 28, 2019. DOAH then served a copy of the Petition on NICA on September 17, 2019. In reviewing the claim, NICA obtained medical records regarding Mateo’s birth. The medical records document that Mateo’s weight at birth was 2,365 grams. A review of the medical records submitted in this matter reveals no evidence disputing a finding that Mateo weighed under 2,500 grams at his delivery at the Hospital. Based on the evidence that Mateo weighed less than 2,500 grams at birth, NICA determined that Petitioner’s claim was not compensable. NICA subsequently filed a Motion for Summary Final Order asserting that Mateo did not suffer a “birth-related neurological injury” as defined by section 766.302(2).
Findings Of Fact Bentley Bragg was born on May 9, 2013, at Winnie Palmer Hospital located in Orlando, Florida. Bentley weighed 4,233 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Bentley. In a medical report dated July 23, 2015, Dr. Willis opined as follows: Delivery was complicated by a shoulder dystocia, resulting in about a one minute delay in delivery. The baby was eventually delivered after extension of an episiotomy and rotation of the posterior arm. Birth weight was 4,233 grams (9 lbs 5 oz’s). This would be large-for-gestational age (LGA). Apgar scores were 3/8. Bag and mask ventilation was given for about 80 seconds. The baby had no movement of the left arm. Left brachial plexus injury was diagnosed. Newborn exam and hospital course were otherwise benign. The baby had significant bruising and was evaluated by Hematology and monitored for bilirubin levels. There were not EEG’s or imaging studies of the brain. In summary, delivery of the LGA baby was complicated by a shoulder dystocia which resulted in a brachial plexus injury. Hospital and medical records did not suggest oxygen deprivation or brain injury. MRI of the cervical spine after hospital discharge was reported as a “normal cervical spine.” There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Bentley and to review his medical records. Dr. Sigurdardottir examined Bentley on September 2, 2015. In a medical report regarding her independent medical examination of Bentley, Dr. Sigurdardottir opined as follows: Overall assessment, here we have a 2-year 4- month-old male with a severe upper brachial plexus injury, which has required muscle and tendon transfer surgery because of an increasing deformity of shoulder and shoulder contraction. He does have fairly sustained functional abilities, although not complete. Bentley also has an expressive language delay that is not felt to relate to his physical brachial plexus injury which definitely is birth related. Mild depression at birth with an Apgar score of 3 did show prompt recovery and a cord pH that was within normal limits. Result as to question 1: The child is found to have a permanent physical impairment, but no obvious mental impairment. His mild expressive language delay does not substantiate a profound mental impairment. * * * Due to the fact that Bentley’s disability only relates to physical impairment and no clear mental impairment related to birth- related neurologic injury can be found, I am not recommending Bentley to be included into the Neurologic Injury Compensation Association (NICA) program and would 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 there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain or spinal cord during labor, delivery or the immediate post-delivery period. Dr. Willis’ opinion is credited. There have been no expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Bentley is not found to have a substantial mental impairment. Dr. Sigurdardottir’s opinion is credited. Moreover, in response to an interrogatory served to Petitioner by NICA, Petitioner acknowledged that she does not contend that Bentley suffers from a permanent and substantial mental impairment.
