Findings Of Fact Robert Charles Crump was born on August 15, 2009, at Baptist South Hospital located in Jacksonville, Florida. Charlie weighed 2,505 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Charlie, to determine whether an injury occurred to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. In a medical report dated September 17, 2014, Dr. Willis described his findings in part as follows: In summary, the mother presented at 34 weeks with premature rupture of the membranes in early labor. Variable HFR [sic] decelerations developed during the last two hours prior to delivery. Cesarean section was done for the non-reassuring FHR pattern. The newborn was depressed. The newborn hospital course was complicated by respiratory depression, hypotension and one episode of apnea. Although the baby was discharged home with a normal exam, MRI at 16 months of age was done for evaluation of a weak left hand and found a prior cerebral stroke. It is likely the baby suffered some degree of oxygen deprivation during labor, delivery and/or in the immediate post resuscitation period. However, it is less clear that any oxygen deprivation during this time period resulted in brain injury. No head imaging studies were done during the newborn hospital course. The child did suffer a stroke, which was documented at 16 months of age by MRI. There was an apparent obstetrical event that likely resulted in some degree of oxygen loss to the baby’s brain during labor, delivery and continued into the immediate post delivery period. Without imaging studies during the newborn hospital course, I am unable to determine if this oxygen deprivation resulted in the child’s brain injury (stroke). Pediatric Neurology evaluation would be helpful in this determination. Dr. Willis reaffirmed his opinion in an affidavit dated March 8, 2016. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Charlie and to review his medical records. Dr. Duchowny examined Charlie on November 5, 2014. In a medical report dated November 5, 2014, Dr. Duchowny opined as follows: In summary, Charlie’s general physical and neurological examinations reveal a mild left hemiparesis, notable mainly for asymmetry of movement. His muscle tone is well-preserved and he has full range of movement bilaterally with the exception of full left supination. Charlie is functioning cognitively at age level. He has done remarkably well in his therapies. I reviewed the medical records sent on October 14, 2014. They document Charlie’s birth at 34 weeks gestation at Baptist Medical Center South in Jacksonville following premature rupture of membranes productive of blood-tinged amniotic fluid. Charlie was born by emergent Caesarian section for arrest of descent and presented limp, apneic and cyanotic. Apgar scores were 2 and 7 at 1 and 5 minutes. He was resuscitated via bag and mask and breathed spontaneously at just over 2 minutes. His NICU stay was complicated by apnea and bradycardia which resolved fully and transient respiratory depression. Charlie was never intubated or mechanically ventilated and was maintained on room air from August 17th until discharge on August 24th. No neonatal brain imaging was performed. MRI scan of the brain on February 8, 2011 revealed an old ischemic infarct involving the anterior limb of the right internal capsule. The remainder of the brain was normal. A consideration of the findings from today’s evaluation and record review lead me to recommend that Charlie not be considered for compensation within the NICA program. He has normal mental functioning and a mild motor deficit. Furthermore, his stroke was likely acquired prenatally, and there is no evidence of either mechanical injury or oxygen deprivation in the course of labor, delivery or the immediate post-delivery period. Dr. Duchowny reaffirmed his opinions in an affidavit dated February 24, 2016. 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 likely resulted in some degree of oxygen loss to the baby's brain during labor, delivery or the immediate post- delivery period. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that Charlie has normal mental functioning and a mild motor deficit, and that his stroke was likely acquired prenatally. Dr. Duchowny’s opinion is credited.
Findings Of Fact Zoe was born on May 21, 2019, at St. Mary’s Medical Center, a hospital, in West Palm Beach, Florida. Zoe was a single gestation and her weight at birth exceeded 2,500 grams. As set forth in greater detail below, the unrefuted evidence establishes that Zoe did not sustain a “birth-related neurological injury,” as defined by section 766.302(2). Donald Willis, M.D., a board-certified obstetrician specializing in maternal-fetal medicine, was retained by Respondent to review the pertinent medical records of Zoya Jones and Zoe and opine as to whether Zoe sustained an injury to her brain or spinal cord caused by oxygen deprivation or mechanical injury that occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital. In his report, dated September 14, 2020, Dr. Willis summarized his findings and opinions as follows: In summary, the mother presented in labor at term. There was no apparent fetal distress during labor. Spontaneous vaginal delivery resulted in a vigorous newborn with Apgar scores of 9/9. Newborn hospital course was complicated only by the somewhat confusing history for syphilis . . . The baby suffered a brain injury at some time remote from the CT scan at 2 months of age. The baby as not depressed at birth and the newborn hospital course was not complicated by multi- system organ failures. The brain injury does not appear to be birth related. * * * There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or in the immediate post delivery period. In his supporting affidavit, Dr. Willis opines, to a reasonable degree of medical probability, 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 in the immediate post-delivery period.” Respondent also retained Michael S. Duchowny, M.D., a pediatric neurologist, to review the medical records of Zoya Jones and Zoe, and to conduct an Independent Medical Examination (IME) of Zoe. The purpose of his review and IME was to determine whether Zoe suffered from a permanent and substantial mental and physical impairment as a result of an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery, or resuscitation in the immediate post- delivery period. Dr. Duchowny reviewed the pertinent medical records and, on October 15, 2020, conducted the IME remotely via Zoom teleconference. In his report, prepared November 6, 2020, he summarized his findings and opinions as follows: In summary, Zoe’s neurological evaluation reveals findings consistent with a substantial mental and motor impairment. She has spastic quadriplegic (double hemiparetic) cerebral palsy, oromotor incoordination, microcephaly, absence of receptive and expressive communication, sensorineural hearing loss in the left ear and pathologic developmental reflexes. Her level of development approximates that of a 3-6 month-old infant. Review of the medical records reveals that Zoe was born at 40 2/7 weeks gestation at St. Mary’s Hospital and weighed 6’12” [sic]. Pregnancy was complicated by several sexually transmitted diseases including a positive RPR that was treated with penicillin but secondarily increased near term. Pregnancy was also complicated by Type 2 HSV genital infection and trichomonas infection treated with metronidazole. Zoe was delivered vaginally with Apgar scores of 9 and 9 at 1 and 5 minutes. Cord blood gases were not requested and there was no evidence of systemic organ dysfunction. Zoe was discharged from the nursery on the third day of life. * * * Based on today’s neurological evaluation and medical records review, I believe that while Zoe’s neurological impairments and permanent and substantial, they were most likely acquired in utero. The records do not provide support for intrapartum oxygen deprivation or mechanical injury, and the brain imaging findings are more consistent with a prenatally-acquired infections process that affected the brain. For these reasons, I am not recommending that consideration be given for Zoe’s inclusion in the NICA program. In his supporting affidavit, Dr. Duchowny opines, to a reasonable degree of medical probability, that Zoe did not suffer an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period which rendered her permanently and substantially mentally and physically impaired. The undisputed and unopposed findings and opinions of Drs. Willis and Duchowny are credited. The undersigned finds that Zoe did not sustain an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which rendered her permanently and substantially mentally and physical impaired.
The Issue At issue in this proceeding is whether Aubreigh Kathryne Delisle, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact As observed in the preliminary statement, neither Petitioners nor anyone on their behalf appeared at hearing, and no proof was offered to support their claim. Contrasted with the dearth of proof offered by Petitioners, Respondent offered the opinions of Michael Duchowny, M.D., a physician board certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. It was Dr. Duchowny's opinion, based on his neurological evaluation of Aubreigh on December 3, 1998 (at 7 years of age) and his review of Aubreigh's medical records, that Aubreigh's current neurological condition did not result from oxygen deprivation or mechanical trauma occurring during the course of labor, delivery, or resuscitation in the immediate post-delivery period. Rather, it was Dr. Duchowny's opinion that Aubreigh's neurological presentation was most consistent with "abnormal brain maturation" or, stated differently, "there was no brain damage whatsoever, but rather her brain was not developing normally." (Transcript, page 9.) Given the proof, it must be resolved that Petitioners have failed to demonstrate that Aubreigh suffered a "birth- related neurological injury" as alleged in the claim for benefits.
The Issue The issue in this case is whether Jacob McGowan (Jacob) suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Jacob was born on July 2, 2015, at Shands at the University of Florida (Shands), Gainesville, Alachua County, Florida. The pregnancy, labor, and delivery of his mother, Christy Gonzalez, were managed by employees of UF Health Physicians and employees of Shands. At all times material, both the hospital and the physicians group were active members under NICA pursuant to sections 766.302(6) and (7). Christy Gonzalez, age 32, presented to Shands on July 1, 2015. This was her second pregnancy. Ms. Gonzalez's prior pregnancy resulted in an emergency cesarean section at 37 weeks after a failed induction/arrest of labor due to gestational hypertension. Based on orders given by OBGYN Georgia Graham, M.D., Christy Gonzalez was admitted to the Labor and Delivery Suite at approximately 12:05 p.m. Ms. Gonzalez was started on Pitocin at 2:47 p.m. for induction/augmentation. Labor progressed slowly over the next approximate 30 hours during which time Ms. Gonzalez continued on Pitocin and exhibited several periods of ongoing and apparent uncontrolled maternal hypertension. Fetal heart monitoring started at 8:13 a.m. on July 1, 2015, and, as labor progressed, the fetal heart rate pattern demonstrated accelerations, and late and early/variable decelerations. The fetal heart rate reached 90 and below at numerous points throughout the day on July 1, 2015, including at 9:34 a.m., 9:54 a.m., 11:04 a.m., 11:10 a.m., 1:05-1:48 p.m. (multiple decelerations), 2:11-2:15 p.m., 2:16-2:18 p.m., 2:31 p.m., and 9:36-9:38 p.m. On July 2, 2015, the fetal heart rate continued to demonstrate accelerations and decelerations with "High FHR" noted at 8:56 p.m. (156/67), as well as 9:15 p.m. and 9:21 p.m. The fetal monitor strips indicate prolonged periods of fetal distress throughout this long period of labor. At approximately 11:00 p.m. on July 2, 2015, Ms. Gonzalez was taken into the operating room for emergency cesarean section due to decreased variability and repetitive decelerations in the fetal heart rate. Jacob was born a live infant at 11:42 p.m. on July 2, 2015. Jacob was a single gestation, weighing 4,366 grams at birth. Jacob was delivered by Dr. Anushka Chelliah, who was a NICA participating physician on July 2, 2015. Petitioner contends that Jacob suffered a birth-related neurological injury and seeks compensation under the NICA Plan. Respondent contends that Jacob has not suffered a birth-related neurological injury as defined by section 766.302(2). Jacob was born via cesarean section secondary to failed induction and vaginal birth after cesarean section, and non- reassuring fetal heart rate tracing and nuchal cord. Jacob was delivered with no respiratory effort and a heart rate less than 60. Post-birth resuscitation included tactile stimulation, intubation, suctioning, and positive pressure ventilation. His Apgar scores were 1 at one minute, 3 at five minutes and 4 at 10 minutes. Physical examination at birth revealed he was pale, had poor tone and negative grasp, and poor moro and suck reflexes. Following color change and rise in his heart rate and increasing oxygen saturations, Jacob was transferred to the neonatal intensive care unit (NICU) for further management. Initial assessment of Jacob included intrapartum fetal asphyxia, chorioamnionitis affecting fetus or newborn, meconium aspiration, injury to scalp secondary to birth trauma, respiratory failure of newborn, and HIE (hypoxic-ischemic encephalopathy) for which HIE protocol for cooling was initiated. Upon arrival to the NICU, Jacob was initially placed on a conventional ventilator with oxygen saturations in the upper 80s. He was quickly transitioned to a high frequency ventilator/oscillator with excellent response. Jacob’s initial blood gas showed good ventilation and medical personnel were able to sequentially wean his amplitude, and he was started on 100-percent oxygen. He was passively cooled until three hours of life when active cooling was started. By 12:46 a.m., physical examination showed a more reassuring neurological examination, although high risk for seizures and neurologic sequelae was noted. Physical examination at four hours of life revealed Jacob was pink, alert, reacting appropriately to stimulation, reactive to light, had a positive suck reflex, gag reflex, mildly increased tone in all extremities, reflexes of 3+ in his lower extremities, 2+ in his upper extremities, slow grasp in feet and brisk grasp in hands. Jacob was discharged from the hospital on August 10, 2015 (day of life 39). His hospital course was complicated by glucose and electrolyte derangements, adrenal hemorrhage, seizures, hypotension, coagulopathy, E coli sepsis with presumed meningitis and poor feeding. The hospital discharge summary reflects that he was actively moving all extremities, had received antibiotics secondary to E coli sepsis and suspect meningitis, was weaned from the ventilator to a continuous positive airway pressure machine (CPAP) at five days of life and had been stable on room air since July 11, 2015, was discharged with 10 mg of phenobarbital every 12 hours, that a physical exam revealed a mildly hypotonic normal male and that he had been on full oral feeding since August 3, 2015, with an appropriate weight gain pattern at discharge. The neurological status section of the hospital discharge summary reflects that Jacob's initial MRI on July 6, 2015, showed evidence of frontal and occipital cortical and subcortical injury globally. A repeat MRI on July 12, 2015, showed improvement in cortical injury with some evidence of injury over the head of the left caudate. He initially had seizure activity on EEG and was loaded with phenobarbital. The last two continuous EEGs on July 11, 2015, and July 16, 2015, however, showed no seizure activity, and the plan was to allow him to outgrow his phenobarbital dose. On August 12, 2015, Jacob presented to his pediatrician for a well child visit. At this time difficulty breast feeding was reported by the mother. The pediatrician noted "no obvious developmental delays or difficulties" and "great tone." Counseling was given on breast feeding and feeding, and orders were given for evaluation and treatment by ophthalmology and occupational therapy. On August 24, 2015, Jacob presented to his pediatrician for sores in his mouth and feeding problems, and fussiness with spit up and vomiting in preceding days. He was on no medications at this time. His physical exam was normal. Neurological exam was also normal with present and normal newborn reflexes noted. "Great weight gain" was noted. Counseling was given concerning gastroesophageal reflux disease (GERD) and feeding. On September 3, 2015, Jacob presented to his pediatrician for a well child visit. At this time, his mother was curious as to whether he needed therapy for motor development. He was noted to be feeding well and complete resolution of his GERD symptoms was noted. Medications at that time included only ranitidine syrup (a stomach acid reducer). All areas of development were noted to be normal for his age and a physical examination, including neurological examination, were also normal. The pediatrician noted in assessment that although the mother reported a diagnosis of brain damage, her concerns regarding motor skills were not apparent, as Jacob was noted to be moving well, trying to roll, could lift his head, and was grasping a rattle in his stroller--all of which were noted to be "very impressive for 2 months." On October 29, 2015, Jacob presented to his pediatrician with complaints of right ear pain and discharge, low-grade fever, tugging at his ear, and fussiness. Medications at this time included only ranitidine syrup. A physical exam was normal with the exception of crusty discharge noted in his ears. He was prescribed antibiotics and ranitidine was refilled. On November 10, 2015, Jacob presented to his pediatrician with complaints of congestion and ear drainage. There were no concerns with Jacob's feeding at this time, and he was noted to eat baby food and use a bottle. Medications at this time included only ranitidine syrup. His physical exam was normal with the exception of erythematous noted in both ears. Antibiotics were prescribed. On November 23, 2015, Jacob presented to his pediatrician for a well child visit. At this time Jacob was taking ranitidine daily for GERD and was in physical therapy/occupational therapy for delayed milestones and trouble sucking. He was noted to be eating solid foods since three months of age, eating baby food, and using a bottle. Ranitidine was refilled. "All areas of development are appropriate for age" was noted. A physical exam was normal. Plans for future care included continued use of ranitidine for GERD, continued therapies for delayed milestones, and a referral to otolaryngology for audiometry. On January 6, 2016, Jacob presented to his pediatrician for a six-month follow-up visit. At this time it was noted that he was getting occupational and physical therapy weekly. It was also noted that he had been diagnosed with hand, foot, and mouth disease and had spots in his throat and discharge from his right ear. The only medication at this time was ranitidine, which was refilled. No concerns with his nutrition were noted. Developmental history testing revealed a “pass” in all areas, except difficulty rolling left to right and sitting alone. Allergic rhinitis symptoms were noted, however, a physical exam was normal. Plans for future care on this visit included referral for a failed hearing screening, continued ranitidine, and continued occupational therapy. At the request of NICA, Donald C. Willis, M.D., who is board-certified in obstetrics and gynecology and maternal-fetal medicine, reviewed the medical records included in the Stipulated Record as Joint Exhibits A through E. In his report dated August 10, 2016, Dr. Willis opined that, [t]here was an apparent obstetrical event 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. I am unable to comment about the severity of the brain injury. At the request of NICA, Laufey Y. Sigurdardottir, M.D., who is board-certified in neurology, reviewed the medical records included in the Stipulated Record as Joint Exhibits A through E, and performed a thorough examination of Jacob on August 31, 2016. Dr. Sigurdardottir's report, dated August 31, 2016, reveals that Jacob's mother gave an "excellent history and timeline of the pregnancy with Jacob, his birth, and aftermath." Jacob's developmental history is reported by Dr. Sigurdardottir to include walking independently between 11 and 12 months of age; speaking five words; and report by mother of some hand tremors when reaching for objects. Jacob is noted to have been weaned from phenobarbital at six months of age and he has had no further seizure activity. Dr. Sigurdardottir's neurological exam revealed a pleasant and interactive boy interested in his surroundings. His motor exam revealed symmetric, normal muscle tone and equal use of both extremities. His gait was symmetric and seemed age appropriate. His reflexes were present and at times slightly increased, but never spread from right to left. Balance and coordination were noted to be difficult to fully assess, but seemed to be within normal limits for his age. He manipulated toys in a conventional manner with no autistic characteristics or repetitive behaviors seen. Dr. Sigurdardottir noted that Jacob had made a remarkable recovery and that there were no obvious abnormalities noted upon neurologic exam. Dr. Sigurdardottir concluded her report with her opinions that, The patient is found to have no substantial physical and/or mental impairment at this time. Jacob did have a neurological injury to the brain due to oxygen deprivation, and his hypoxic ischemic encephalopathy is felt to be birth related. At this time, Jacob's prognosis for life expectancy and full recovery is good. Petitioner did not submit or introduce into evidence any expert reports rebutting the opinions of Dr. Willis or Dr. Sigurdardottir.
