The Issue The issue in this case is whether Respondent wrongly presumed that Petitioner's father had been "killed in the line of duty," which presumption entitled the surviving spouse of Petitioner's father to receive "in line of duty" death benefits during her lifetime, to the exclusion of the rights of her late husband's children, whom he had named as his primary beneficiaries.
Findings Of Fact On December 14, 2005, Douglas Ulmer, Sr. ("Mr. Ulmer"), died as a result of complications from coronary artery disease and hypertension. At the time of his death, Mr. Ulmer was married to Cynthia Andrews-Ulmer ("Mrs. Ulmer"). His other survivors included two children: a son named Douglas Ulmer, Jr. ("Douglas"), who had been born on July 13, 1991; and a daughter named Kayla Ulmer ("Kayla"), who had been born on October 3, 1983. Mrs. Ulmer was not the mother of either Douglas or Kayla. From February 1993 until his death, Mr. Ulmer had been employed as a fireman in Palm Beach County, Florida. Through that employment, be had become a member of the Florida Retirement System ("FRS"), which is administered by Respondent Department of Management Services, Division of Retirement ("Division"). After having been offered the job as a fireman, Mr. Ulmer had undergone a "post-offer physical" examination. This examination, which had taken place on January 15, 1993, had revealed no evidence of any medical abnormalities; specifically, the physician had found Mr. Ulmer's "heart and vascular system" to be "normal." In October 2004, Mr. Ulmer had experienced chest pain while lifting equipment at work and been taken to the hospital. Thereafter, diagnosed as having heart disease, Mr. Ulmer had gone on disability and never returned to work full time. About one month before his death, Mr. Ulmer had completed a Pension Plan Beneficiary Designation Form in which he had named Douglas and Kayla as his primary beneficiaries for retirement benefits payable under the FRS. After Mr. Ulmer passed away, Mrs. Ulmer submitted an application to the Division for "in line of duty" death benefits, which are available under the FRS to the surviving spouse of a member "killed in the line of duty." In July 2006, the Division gave notice that it intended to approve Mrs. Ulmer's application. For reasons that will soon be made clear, the Division's intended decision deprived Kayla of any benefits under the FRS, and it threatened to deny benefits to Douglas, even though the children's father had named them as his primary beneficiaries. Consequently, Douglas timely requested a hearing to contest the payment of "in line of duty" benefits to his father's widow. (Kayla would later intervene in this proceeding, on the eve of the final hearing.) Sadly, Mrs. Ulmer died suddenly on September 24, 2006, before the dispute over Mr. Ulmer's retirement benefits could be resolved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order: (a) finding that Mr. Ulmer died in the line of duty; (b) awarding Mrs. Ulmer's estate the benefits to which Mrs. Ulmer, as the surviving spouse of a member killed in the line of duty, was entitled under Section 121.091(7)(d)1., Florida Statutes; and (c) providing for the payment of benefits to Douglas Ulmer, Jr., in accordance with Section 121.091(7)(d)2. DONE AND ENTERED this 29th day of January, 2007 in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2007.
The Issue Whether Petitioner, Marilyn Nelson, the surviving spouse of Melton Nelson, is entitled to in-the-line-of-duty death benefits.
Findings Of Fact Petitioner, Marilyn Nelson, is the surviving spouse of Melton Nelson, who died on May 7, 1998. Petitioner and Melton Nelson had been married since June 15, 1997. At the time of his death, Mr. Nelson was employed by Nassau County as the Assistant Road and Bridge Superintendent. He had been so employed for about 3 years. Donald B. Twiggs, M.D., was Mr. Nelson's treating physician. Dr. Twiggs, completed Mr. Nelson's Death Certificate, which states that Mr. Nelson died from cardiopulmonary arrest and coronary artery disease. There was no autopsy to determine the cause of death. During the course of his employment, Mr. Nelson was absent due to colds and other minor illnesses. His absences were not excessive and he had not complained either to his supervisor or to the personnel office of stress on the job. Further, Mr. Nelson did not advise his employer that his job was affecting his health or request accommodations based upon his physical condition. Marilyn Nelson was not aware that Mr. Nelson had heart problems. Mr. Nelson was being treated by Dr. Twiggs for adult onset diabetes, hypertension, and anxiety. As Assistant Road and Bridge Superintendent, Mr. Nelson's job was demanding and he often was on call due to road and bridge repairs. He supervised and assigned crews, but was not required customarily to do physically demanding work. Mr. Nelson was a "laid-back" supervisor who did not confront or correct his staff. He had the backing of management to discipline his subordinates. The employer was satisfied with Mr. Nelson's work performance. There were no confrontations or arguments between Mr. Nelson and his supervisor, and he was never "dressed-down" or threatened with loss of his job. Mr. Nelson reported to work about 7:00 a.m. on May 7, 1998. After a brief conversation with fellow workers and some of his subordinates, he walked back to his truck and collapsed. William Johnson, one of his subordinates, observed that Mr. Nelson "did not look good" and was "kinda red in the face." However, there had been no altercation, argument or confrontation, and Mr. Nelson did not appear upset. The Respondent denied Marilyn Nelson's application for in-line-of-duty (ILOD) death benefits, advising that, although Mr. Nelson suffered a heart attack while on the job, which resulted in his death, the heart attack was not caused by any job-related accident or injury. Marilyn Nelson's claim for death benefits was also denied by Workers' Compensation, which found that the injury was personal in nature and not job related. Marilyn Nelson presented no expert medical testimony to support her claim that Mr. Nelson's death arose out of the performance of his job duties.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Department of Management Services, Division of Retirement holding that Petitioner's application for ILOD death benefits from the account of her late husband, Melton Nelson be denied. DONE AND ENTERED this 7th day of August, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2000. COPIES FURNISHED: Emily Moore, Esquire Division of Retirement Cedar Executive Center, Building D 2639 North Monroe Street Tallahassee, Florida 32399-1560 Gary Baker, Esquire Post Office Box 1177 Callahan, Florida 32011 Ron Poppell, Interim Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Bruce Hoffmann, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact The decedent, James C. Daniels, was employed as a fire fighter with the Village of Miami Shores, Florida, in April of 1972. The Miami Shores Fire Department was subsequently assimilated by Metropolitan Dade County, Florida, and at the time of the decedent's death on July 20, 1976, he was employed by Dade County as a fire fighter/emergency medical technician. On November 4, 1975, the decedent received a physical examination which showed no evidence of heart disease, and an electrocardiogram, the results of which were within "normal" limits. The decedent had no history of heart disease or circulatory problems, did not drink, and began smoking only in 1974 or 975. At the time of his death, the decedent's customary work routine involved 24 hours on duty, from 7:00 a.m. to 7:00 a.m., followed by 48 hours off duty. The decedent's duties included answering emergency calls along with his partner in a rescue vehicle. These calls included such incidences as automobile accidents, fires, violent crimes involving injuries to persons, and various and sundry other emergency situations. Upon answering an emergency call, the decedent was required by his job to carry heavy equipment, sometimes weighing as much as 80 pounds, to the place where the injured person was located. On occasion, the decedent would transport injured persons from the scene to local hospitals. At the time of his death, the decedent appeared outwardly to be in good physical condition. In fact, he engaged in a regular program of physical exercise. During the approximately two months prior to his death, the decedent participated in a busy work schedule which often included numerous rescues, in addition to false alarms and other drills required of his unit. In fact, only four days prior to his death, the decedent and his partner during one twenty- four hour shift, were involved in 13 rescues and one building fire. During that day, the decedent worked for 24 straight hours, apparently without sleep. On July 19, 1976, at 7:00 a.m., the decedent began his last work shift prior to his death. During that day, the decedent's unit participated in two rescues and two drills. That evening, several of decedent's fellow workers noticed that he looked "bad", "tired" or "drawn out". During the night, decedent was observed getting out of bed from three to five times, and holding his left arm, left side or armpit. At 7:00 a.m. on July 20, 1976, the decedent went off duty and returned home. Upon returning home, he ate breakfast, and later washed down a new brick fireplace at his home. After showering, resting and eating a lunch, he joined several other men near his home whom he had agreed to help in pouring cement for some new construction. The decedent mentioned pains in his neck and shoulder to these men before the truck carrying the cement arrived. The decedent mentioned that he had been under a lot of tension and pressure as a result of the busy work schedule at the fire station. When the cement truck arrived, cement was poured into several wheelbarrows and several of the men, including the decedent, pushed the wheelbarrows to the rear of the structure on which they were working. It appears that the decedent pushed approximately four wheelbarrow loads of cement weighing about 75 pounds each to the rear of the structure. Approximately one-half hour elapsed during the time that the decedent was engaged in this activity. Soon thereafter, the decedent was observed to collapse and fall to the ground. He was given emergency medical treatment and transported to Palmetto General Hospital, where he was pronounced dead at 5:24 p.m. on July 20, 1976. An autopsy was performed on the deceased on July 21, 1976 by Dr. Peter L. Lardizabal, the Assistant Medical Examiner for Dade County, Florida. In pertinent part, the autopsy showed moderate arteriosclerosis of the aorta, and severe occlusive arteriosclerosis of the proximal third of the anterior descending coronary artery in which the lumen, or opening, through which the blood passes through the artery was hardly discernible. The remaining coronary arteries appeared unaffected by the arteriosclerosis. The decedent's certificate of death, which was also signed by Dr. Lardizabal, listed the immediate cause of death as acute myocardial infarction due to severe occlusive arteriosclerosis of the left coronary artery. Dr. Lardizabal performed the autopsy examination of the decedent by "gross" observation, that is, without the benefit of microscopic analysis. However, microscopic slides were made during the course of the autopsy which were subsequently examined by other physicians whose testimony is contained in the record of this proceeding. Findings contained in the autopsy report, together with an evaluation of the aforementioned microscopic slides, establish that the myocardial infarction suffered by the decedent occurred at least 24 hours, and possible as many as 48 hours, prior to the decedent's death. This conclusion is based upon the existence of heart muscle necrosis, or tissue death, which would not have been discernible had the decedent died immediately following a coronary occlusion. In fact, for a myocardial infarction to he "grossly" observable at autopsy, that is, without the benefit of microscopic examination, it appears from the record that such an infarction would have to occur a substantial period of time prior to the death of the remainder of the body. Otherwise, the actual necrosis of heart muscle tissue would not be susceptible to observation with the naked eye. Although it appears probable from the evidence that the decedent went into a type of cardiac arrhythmia called ventricular fibrillation which led to his death, the actual proximate cause of his death was the underlying myocardial infarction, which in turn was a result of arteriosclerosis which had virtually shut off the supply of blood to the affected area of his heart. Although the causes of arteriosclerosis are not presently known to A medical science, it appears clear from the record that acute myocardial infarctions can be caused by emotional or physical stress, and that the decedent's myocardial infarction was, in fact, caused by the stress and strain of his job as a fire fighter and emergency medical technician. In fact, it appears from the medical testimony in this proceeding that the decedent was having a heart attack which led to the myocardial infarction on the night of July 19, 1976, or in the early morning hours of July 20, 1976, while he was still on duty. It further appears that, although physical exertion, such as the pushing of the wheelbarrow loads of cement by the decedent, might act as a "triggering mechanism" for ventricular fibrillation, the decedent's activities on the afternoon of July 20, 1976, had very little to do with his death. The type of lesion present in the decedent's heart, which had occurred as much as 48 hours prior to his death, was of such magnitude that he would likely have died regardless of the type of physical activity in which he engaged on July 20, 1976. Petitioner, Dolores A. Daniels, is the surviving spouse of James C. Daniels.
Findings Of Fact Kelia Santiago was born on October 25, 2011, at Tampa General Hospital in Tampa, Florida. She was a single gestation. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Kelia. In a report dated December 11, 2014, Dr. Willis described his findings in pertinent part as follows: Birth weight was reported as 2210 grams and 2201 grams in different sites in the mother’s medical records. Apgar scores were not given. Cord blood pH was normal at 7.29. No records were available from the NICU for review. * * * In summary, there was no fetal distress during labor. Delivery was by repeat Cesarean section with normal blood gas. Birth weight was <2,500 grams. NICU records were not available for review. This baby was born prematurely due to premature rupture of the membranes. Birth weight appears to be less than 2,500 grams. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor or delivery. NICU records were not available, so I have no comment about oxygen deprivation in the post delivery period. Birth weight was <2,500 grams. In an affidavit dated January 7, 2015, Dr. Willis reaffirmed his opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor or delivery, and his review of the medical records revealed that the birth weight was less than 2,500 grams. A review of the file reveals that no contrary evidence was presented to dispute Dr. Willis’ finding that Kelia’s birth weight was less than 2,500 grams, or his opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the brain during labor or delivery. Dr. Willis’ opinion is credited.
The Issue At issue in this proceeding is whether Bradley John Thomas, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Bradley John Thomas (Bradley) is the natural son of Scott G. Thomas and Mary E. Thomas. He was born a live infant on July 8, 1989, at Baptist Hospital, a hospital located in Pensacola, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Bradley was Bo H. Bagenholm, M.D., who was, at all times material hereto, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. The birth of Bradley Thomas At or about 2:10 a.m., July 8, 1989, Mary Thomas was admitted to a labor room at Baptist Hospital. At the time, Mrs. Thomas was in active labor, having experienced a spontaneous rupture of the membranes with the emission of clear amniotic fluid at approximately 1:30 a.m., and Bradley was slightly post- term with a gestational age of approximately 41 weeks. Otherwise, Mrs. Thomas' pregnancy had been without complication. External fetal heart monitoring was commenced at approximately 2:15 a.m. and indicated a good base line with fetal heart tone between 125 and 140 beats per minute. From 2:30 a.m. to 2:45 a.m., the fetal heart tone was 120 to 150 beats per minute, from 2:45 a.m. to 3:00 a.m., the fetal heart tone was 115 to 145 beats per minute, and from 3:00 a.m. to 3:15 a.m., the fetal heart tone was 110 to 120 beats per minute with occasional acceleration to 160. In all, for such period, the fetal heart rate was normal, and no cause for concern. 4/ At approximately 3:15 a.m., Mrs. Thomas was removed from the monitor, provided a urine sample, and was given an enema, with good results. At 4:01 a.m., the fetal heart monitor was reapplied, and the nurse conducted a vaginal exam, at which point Mrs. Thomas was found to be 3 cm dilated. When the vaginal exam occurred, the fetal heart tone was recorded to be 120 to 130 beats per minute, with a reflex acceleration to 160 and deceleration to 60 following stimulation of the infant. Such heart rate was normal, and the reflex not unusual or ominous given the fetal heart tone recovery to the normal base line rate. 5/ Following the 4:01 a.m. vaginal examination, the fetal heart base line continued in the 120 to 160 or normal base line range until 12:14 p.m. when the fetal monitor was removed and the mother was taken to the delivery room via bed. During that period, an occasional acceleration and variable decelerations were noted, but such were not unusual or ominous given there was no persistent tachycardia or persistent decelerations. Indeed, the data recorded was consistent with the baby's reaction to examination, contractions or umbilical cord compression, and evidenced no fetal compromise. 6/ At 10:19 a.m., following an earlier epidural replacement, Dr. Bagenholm examined Mrs. Thomas and found the epidural effective and her cervical dilatation at rim. At 11:28 a.m., the nurse conducted a vaginal exam, found the mother's cervical dilation complete, and instructed her on pushing. At 12:00 p.m. (noon) the baby was noted to be at the +1/+2 station, at 12:07 p.m. to be at the +2 station, and at 12:14 p.m., the monitor was removed and the mother taken to the delivery room. Upon admission to the delivery room, the fetus continued to be monitored by doppler and evidenced fetal heart tones of 130-140 beats per minute. At 1:33 p.m., with the assistance of fundal pressure occasioned by the mother's reduced expulsion efforts, Bradley was delivered. When delivered, no meconium was present and Bradley presented with Apgar scores of 8 at one minute and 10 at five minutes. These scores are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute Bradley's Apgar score totaled 8, with heart rate, respiratory effort, muscle tone and reflex irritability being graded 2 each and color being graded 0. At five minutes, Bradley's Apgar score totalled 10, with all categories being graded at 2 each. Bradley's Apgar scores are reflective of a healthy, vigorous infant. Indeed, on presentation, Bradley evidenced all the signs of a healthy newborn, with spontaneous respiration, a strong cry, no visible signs of trauma, good heart rate and good muscle tone. At or about 2:30 p.m., following routine suctioning and administration of oxygen, Bradley was admitted to the newborn nursery. Upon admission, Bradley's physical assessment revealed, inter alia, moderate molding of the head, not unusual in an infant delivered vaginally; soft and flat fontanelle, evidencing no intercranial pressure such as one might associate with a significant bleed; strong reflexes; a pink color; and, an alert and active infant. Bradley's first twenty-five hours of life were essentially uneventful, and he evidenced the normal signs of a healthy infant including the presence of soft and flat fontanelle, at least as late as 8:00 a.m., July 9, 1989. Bradley roomed-in with his mother from 10:30 a.m. to 2:30 p.m., July 9, 1989, when he was returned to the nursery, and during that time he reflected the signs of a healthy baby. 7/ Upon his return to the nursery at 2:30 p.m., Bradley was observed to be "gaggy" and "spit up." Shortly thereafter, at approximately 2:45 p.m., Bradley suddenly turned cyanotic, facial and trunk. The nurse promptly turned Bradley over, stimulated him, and Bradley responded with a "lusty cry" and "pinked up"; however, it was noted that he had a "fixed stare" and "does not blink to threat." At 4:30 p.m., another cyanotic episode was noted and, thereafter, evidence of seizure activity appeared. Dr. Jenkins, Bradley's pediatrician, ordered a blood culture to rule out infection and at 5:15 p.m. he performed a lumbar puncture, which evidenced bloody spinal fluid. Arrangements were made to transfer Bradley to the neonatal intensive care unit at Sacred Heart Hospital, and at 7:28 p.m., Bradley left Baptist Hospital with the transport team. At Sacred Heart Hospital, a physical examination of Bradley revealed that his fontanelle were full and, thereafter, he was diagnosed to have suffered a grade IV intraventricular hemorrhage, which evidenced at approximately his twenty-fifth hour of life. That hemorrhage caused profound injury to Bradley's brain, which has rendered him "permanently and substantially mentally and physically impaired," as that term is used in Section 766.302(2), Florida Statutes. The cause of Bradley's grade IV intraventricular hemorrhage Given the foregoing, resolution of this claim resolves itself to an identification of the genesis of Bradley's grade IV intraventricular hemorrhage or, stated otherwise, whether the proof demonstrated, more likely than not, that the hemorrhage, which resulted in injury to Bradley's brain and the ensuing neurological injuries, resulted from "oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post deliver period." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. 8/ Considering the proof, for the reasons that follow, it must be concluded that petitioners have failed to demonstrate, by the requisite standard, that the injury to Bradley's brain was the consequence of "oxygen deprivation or mechanical injury" and therefore failed to demonstrate that Bradley suffered a "birth-related neurological injury," as defined by law. Sections 766.302(2), Florida Statutes. Here, the proof is compelling that a grade IV intraventricular hemorrhage in a term infant, such as Bradley, is a rare occurrence, and that its cause is often not definable. Indeed, among the physicians who testified, there is apparent agreement that approximately 25 percent of grade IV intraventricular hemorrhages have identifiable causes such as sepsis, a blood disorder, an AV malformation, genetic disorder or an identifiable prenatal event; that approximately 50 percent are related to oxygen depravation or trauma in the intrapartum period; and, that approximately 25 percent can be attributed to no known cause. As for Bradley, when Mrs. Thomas was admitted to the labor and delivery room, he was assessed to be a viable fetus with no evident signs of stress. Indeed, Mrs. Thomas' pregnancy was without complications, and any prenatal events or other known causes of a grade IV intraventricular hemorrhage, such as sepsis, a genetic disorder, a blood disorder or an AV malformation have been examined and rejected as an identifiable cause of Bradley's hemorrhage. As for the labor and delivery of Bradley, the proof demonstrates that it was essentially normal and that there was no obstetrical incident or identifiable event during labor and delivery that would evidence that Bradley had suffered a hypoxic insult or mechanical injury. Indeed, Bradley, although large, was not large for his gestational age, given the use of an epidural there was no prolonged labor, there was no cephalopelvic disproportion, no untoward molding of the head, no use of forceps or vacuum extraction in delivery, and the use of fundal pressure was appropriate and not shown to be excessive. Upon delivery, no meconium was present, no apparent cranial injuries were observed, and Bradley presented as a vigorous infant with normal Apgars. In summary, there was no identifiable incident during the course of labor or delivery, or thereafter during Bradley's first twenty-five hours of life, evidencing oxygen deprivation, mechanical injury, or other insult, that would account for the hemorrhage he suffered at approximately his twenty-fifth hour of life. Indeed, the neonatologist, Dr. Dworsky, and neurologist, Dr. Miller, who offered testimony on behalf of petitioners, acknowledged that the labor and delivery of Bradley was fairly normal with no identifiable problems that would account for the hemorrhage. Moreover, Dr. Miller concluded that in the 50 percent of hemorrhages attributable to birth trauma, the literature suggests clear evidence at birth of compromise to the infant. Notwithstanding, there being no other traumatic event known, they theorize that Bradley failed to tolerate the stress associated with labor and delivery and that, through the mechanism of changes in venous or arterial blood pressure occasioned by variable decelerations caused by compression of the umbilical cord and from compression of the head associated with delivery, Bradley suffered an insult to the intracranial blood vessels which ultimately manifested as a grade IV intraventricular hemorrhage In their opinion, such insult was the product of oxygen deprivation and trauma associated with the stress of labor and delivery. 9/ The opinions of Doctors Dworsky and Miller regarding the probable cause of Bradley's hemorrhage are rejected as unpersuasive. Such opinions are largely speculative, being based on the assumption that the birth process was the only known traumatic event in Bradley's life, ignore that percentage of cases in which it is acknowledged that the cause of hemorrhage can never be known, and are not supported by any objective evidence of trauma or oxygen deprivation of record. Indeed, given the relatively uneventful labor and delivery, as well as Bradley's vigor at birth, the opinion of Dr. Duchowny that "this baby fits into the group of term infants with an intraventricular hemorrhage for which no cause is ever identified" is most credible and is, therefore, accepted.10
The Issue At issue in this proceeding is whether Travis Chestnut, 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 Treena Chestnut and Terrance Chestnut are the parents and natural guardians of Travis Chestnut (Travis), a minor. Travis was born a live infant on July 26, 1994, at University Medical Center, a hospital located in Jacksonville, Florida, and his birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Travis was James Lewis Jones, M.D., who was, at all time material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Mrs. Chestnut's antepartum course and Travis' delivery Prior to Mrs. Chestnut's admission to University Medical Center, her prenatal course had been essentially uncomplicated. Notwithstanding, she was noted at risk because of a prior cesarean section delivery for fetal distress, and when admitted Travis was slightly post-term at 41.5 weeks. At or about 2:00 a.m., July 25, 1994, Mrs. Chestnut was admitted to University Medical Center. At the time, Mrs. Chestnut was noted to be in labor, and vaginal examination revealed the cervix to be at 2 centimeters, effacement at 100 percent, and the fetus at station 0 with vertex presentation. The membranes were noted to be intact, and fetal heart tone was noted at 135 to 145 beats per minute, with good fetal movement. At 8:45 a.m., an epidural was inserted for analgesia, and at 9:05 a.m. Mrs. Chestnut's membranes spontaneously ruptured, with clear fluid noted. Vaginal examination revealed the cervix to be at 2 to 3 centimeters, effacement at 100 percent, and the fetus at station 0. A scalp electrode was placed, and fetal heart tone was noted to continue in the 135 to 145 beat per minute range. Mrs. Chestnut's labor progressed slowly through July 25, 1994. During that period, fetal heart tones evidenced good beat to beat variability (short-term and long-term) with accelerations and occasional variable decelerations. Commencing at or about 2:00 a.m. July 26, 1994, late decelerations were noted, and fetal heart tones began to demonstrate, with increasing intensity and duration, early variable and late decelerations, with rates as low as the 70's, as well as fetal tachycardia. At approximately 2:25 a.m., dilation was noted as complete, and Mrs. Chestnut was instructed to push. At 2:28 a.m. a supplemental dose of epidural analgesia was administered, and at 2:34 a.m. deep variable decelerations were noted and Mrs. Chestnut was taken, via bed, to the delivery room. Mrs. Chestnut was noted in the delivery room at 2:39 a.m., at which time fetal heart rate was recorded in the 90's, and she was prepared for delivery. Mrs. Chestnut continued to push, and fetal heart tone remained in the 90's. Three attempts to deliver the infant by vacuum were attempted and failed. Fetal heart tone dropped to the 80's and a scalp pH performed at 2:54 a.m. was 6.95 (reflective of fetal acidosis). Given the circumstances, an emergency cesarean section was ordered, the incision started at 3:00 a.m., and Travis was delivered at 3:05 a.m. During delivery, difficulty was experienced elevating the infant's head, as he was deep in the pelvis, and a cord prolapse was noted. On delivery, Travis was atonic, with a heart rate of less than 60 and no respiratory effort. He was dried for 10 seconds, then begun on positive pressure ventilation with bag and mask. Heart rate increased to greater than 100 within 10 seconds, and color became pink within 20 seconds. Travis required support until 10 minutes of age, when regular sustained respiratory effort was noted. First gasp occurred between 1 and 2 minutes of age, and was progressively more frequent through 15 minutes of age. Shallow regular respirations began at about 5 minutes of age, and were adequate and sustained by 10 minutes of age. Slight tone was developed in the extremities by 10 minutes, and spontaneous movement of the extremities developed by 12 minutes. Apgars were 4, 5, 7, 7, and 8 at one, two, five, ten, and fifteen minutes, respectively.1 Cord gas at delivery reflected a pH of 6.76. Arterial blood gas at 20 minutes of age on blow by oxygen included a pH of 7.04. Neurologic impression at birth was severe neonatal depression/fetal distress and severe metabolic acidosis. At 20 minutes of life, Travis was transferred to the neonatal intensive care unit (NICU) for further management. At about three-and-one-half hours of age seizures were noted, and phenobarbital was started. Also noted, were lip smacking, eye deviation, spasticity, and hypertonic extremities. CT scan showed left parietal infarct and left post-occipital subdural hematoma. The EEG was markedly abnormal. MRI on August 3, 1994, reflected high signal gyral areas in both parietal and occipital lobes, consistent with cortical injury or hemorrhage. Travis remained in the intensive care unit until August 19, 1994, when he was discharged to the care of his parents. On discharge, he was noted to be doing well clinically, with no reported seizures while on maintenance phenobarbital. Physical examination revealed positive blink and suck, and symmetric motor patterns, although with increased tone. Neurologic impression on discharge was "perinatal encephalopathy - improved[,] neonatal seizures well controlled [and] developmentally at risk." The genesis and timing of Travis' neurologic insult Here, the proof that is pertinent to the nature and timing of Travis' neurologic insult is consistent with a brain- related injury caused by oxygen deprivation occurring in the course of labor, delivery, and the immediate post-delivery period. In this regard, it is observed, inter alia, that Mrs. Chestnut's prenatal course was uneventful; on admission to the hospital, the fetus evidenced reassuring fetal heart tones and fetal movement; only after protracted labor did the fetus begin to evidence multiple variable decelerations; prior to delivery, Travis suffered a period of prolonged bradycardia; prior to and following delivery, Travis was severely acidotic; upon delivery, Travis evidenced profound neurologic depression; and, following delivery, Travis developed seizure activity. Consequently, the proof supports the conclusion, more likely than not, that Travis suffered 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." Section 766.302(2), Florida Statutes. Having resolved the genesis and timing of Travis' neurologic insult, it remains to resolve its significance or, stated differently, whether the proof supports the conclusion that Travis' injury rendered him "permanently and substantially mentally and physically impaired," as required by Sections 766.302(2) and 766.309(1), Florida Statutes. The significance of Travis' neurologic impairment The proof offered by Petitioners to quantify the significance of Travis' impairment was less than compelling. In this regard, it is observed that Petitioners offered the affidavit of Stuart C. Edelberg, M.D., (Petitioners' Exhibit 2), an apparent expert in obstetrics and gynecology, who opined, based on his record review, that Travis' "impairment is permanent and substantial, both mentally and physically." Notably, Dr. Edelberg was not shown to have examined Travis, and his affidavit is hearsay, subject to the limitations imposed by Section 120.57(1)(c), Florida Statutes (1996 Supp.). Compared to the proof offered by Petitioners, Respondent offered the testimony, through deposition, of Michael Duchowny, M.D., an expert in pediatric neurology. (Respondent's Exhibit 1.) Dr. Duchowny examined Travis on July 16, 1996, and on January 24, 1997. Dr. Duchowny's examinations revealed that Travis did suffer some impairment of motor function, as evidenced by increased muscle tone, increased deep tendon reflexes, and diminished fine motor coordination; however, he walked independently and without support in a stable fashion. As for his cognitive abilities, Dr. Duchowny did observe expressive disfluency, but Travis' receptive skills were good, he could communicate non-verbally, and mental functioning was in the normal or near normal range. It was Dr. Duchowny's opinion that, although Travis does suffer some permanent mental and physical impairment, it is not substantial and, based on improvements observed between the examinations of July 16, 1996, and January 24, 1997, further improvement is most likely. Dr. Duchowny's observations and opinions are most consistent with the records offered into evidence (Petitioners' Exhibit 1), and are credited.2 Based on the proof, it cannot be concluded that Travis' injury has rendered him permanently and substantially mentally and physically impaired. Rather, the competent and persuasive proof is to the contrary.
Findings Of Fact Elian O. Morales Galindo was born on October 27, 2012, at Winnie Palmer Hospital for Women and Babies located in Orlando, Florida. Elian weighed 3,849 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Elian to determine whether an injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital due to oxygen deprivation or mechanical injury. Dr. Willis described his findings as follows in an affidavit dated January 14, 2015: It is my opinion, in summary, spontaneous vaginal delivery was complicated by nuchal cord x2 and avulsion of the cord during reduction for delivery. Despite a normal cord blood pH, the baby was depressed at birth and required bag and mask ventilation for six minutes. The baby recovered quickly and was on room air within 24-hours after delivery. The initial blood gas after birth had a base excess of -12, which is consistent with some degree of acidosis. Head ultrasound was normal. EEG, CT scan and MRI were not done during newborn hospital course. Avulsion of the umbilical cord can occur when a tight nuchal cord is being reduced to allow delivery. The only risk related to cord rupture is neonatal blood loss and resulting hypotension. The baby’s blood counts were normal with a Hematocrit of 47% which would suggest the baby did not have a significant blood loss at time [sic] or cord rupture. This does not appear to be a factor in the outcome. There was an apparent obstetrical event that resulted in some degree of oxygen loss during delivery and continuing into the immediate post-delivery period. This is based primarily on the low Apgar scores and an initial blood gas with a based excess of -12. I am unable to comment about oxygen deprivation during labor without review [sic] the FHR monitor tracing. No imaging studies were done during the newborn hospital course to determine if this oxygen deprivation caused any brain injury. Thereafter, I reviewed the additional medical records, which include the mother’s hospital course during labor and delivery, the fetal heart rate (FHR) tracing during labor and an emergency room visit for the mother at 7 weeks gestational age for nausea. The FHR tracing during labor was reviewed. The baseline FHR on admission was normal at 130 bpm with normal heart rate variability. The FHR monitor tracing does not suggest fetal distress during labor. Accordingly, it is my opinion that there was no obstetrical event that resulted in oxygen deprivation or brain injury to the baby during labor. NICA retained Raymond J. Fernandez, M.D. (Dr. Fernandez), a pediatric neurologist, to examine Elian and to review his medical records. Dr. Fernandez examined Elian on February 11, 2015. In the medical report attached to Respondent’s Supplemental Motion for Summary Final Order, Dr. Fernandez opined as follows: CONCLUSION: There is no evidence for substantial motor or physical impairment. Elian walked on time and gross and fine motor skills are improving at a steady pace based on history and this trend should continue. Expressive speech and receptive language development is delayed, but improving and this trend should continue. While speech and language delay is a predictor of later learning difficulty, he is improving and we do not have convincing evidence, at this time, for substantial mental impairment that will be permanent. There was transient physical depression immediately after birth and there was transient respiratory distress, but he improved within a reasonable period of time. There was no clear evidence for neonatal encephalopathy or multi-organ involvement. Therefore, there is no clear evidence in the record for brain or spinal cord injury during labor, delivery, or the immediate post delivery period of resuscitation. While Dr. Willis and Dr. Fernandez are of the same opinion that an obstetrical event causing oxygen deprivation did not occur during labor, Dr. Willis’ opinion is somewhat at odds with Dr. Fernandez’s opinion regarding whether an obstetrical event occurred that resulted in some degree of oxygen loss during delivery and continuing into the immediate post-delivery period. However, there are no opinions filed contrary to Dr. Fernandez's opinion that there is no evidence of substantial motor or physical impairment or convincing evidence at this time of substantial mental impairment that will be permanent. Dr. Fernandez’s opinion is credited.
Findings Of Fact A’Mayah Whatley was born on May 20, 2016, at St. Petersburg General Hospital in St. Petersburg, Florida. She was a single gestation. NICA attached to its motion a certification of medical records signed by the Custodian of Records from St. Petersburg General Hospital, and a one-page discharge record for A’Mayah. The medical record shows that A’Mayah’s birth weight was less than 2,500 grams. A review of the file reveals that no contrary evidence was presented to dispute the medical record from St. Petersburg General Hospital showing that A’Mayah’s birth weight was less than 2,500 grams.
