Findings Of Fact Stephanie was born at St. Joseph’s on June 7, 2014. She was a child born of single gestation. NICA retained Donald C. Willis, M.D., as a medical expert specializing in maternal-fetal medicine. NICA has submitted his expert report dated August 17, 2019, and affidavit dated August 23, 2019, as Exhibit 1 in support of its Motion. According to Dr. Willis’s expert report, hypertension was noted at Ms. Garriga’s office visit at 36 weeks, but at that time, there was no indication of fetal distress. Labor was induced at 37 weeks for gestational hypertension. Fetal heart rate tracings were reported to be category 1, which indicates no fetal distress. Dr. Willis’s report states that delivery was by spontaneous vaginal birth, with a birth weight of 2,430 grams. Stephanie was depressed at birth, and although she had a “good heart rate,” there was no respiratory effort. Evaluation in the NICU showed overall decreased activity and poor muscle tone. Her chest x-ray revealed streaky infiltrates, consistent with retained lung fluid. Stephanie’s newborn hospital stay was complicated by poor feeding due to a very weak gag reflex, and g-tube feedings were required, with eventual fundoplication performed. Dr. Willis’s report also indicates that an evaluation was performed because of her poor muscle tone, and the neurological evaluation did not identify an etiology for the issue. Other tests were also normal. Dr. Willis’s ultimate opinion is that there was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery, or the immediate postdelivery period. He also noted that Stephanie’s birth- weight was below the threshold for eligibility for NICA compensation. Dr. Willis’s opinion is credited. Stephanie was also examined by Michael S. Duchowny, M.D., a pediatric neurologist. Dr. Duchowny’s August 14, 2019, expert report and August 26, 2019, affidavit were submitted as Exhibit 2 in support of NICA’s Motion. Dr. Duchowny’s IME occurred when Stephanie was five years old. Upon examination, she could not swallow, sit alone, crawl, or walk. Cognitively, Stephanie speaks well and has achieved age-appropriate speech, and Dr. Duchowny’s neurologic evaluation indicates, Neurologic evaluation reveals a sociable cooperative fully fluent 5-year-old girl. Stephanie was brought to the office in a wheelchair. She is socially interactive and answers questions with accurate verbal content. She correctly identified letters and knew primary and secondary colors. She told me her first and last names. Her speech sounds are fluent and reasonably well articulated, and she maintains an age- appropriate stream of attention. Dr. Duchowny summarized his opinion, which is credited, in his affidavit, stating: In summary, Stephanie’s general physical and neurological examinations reveal profound hypotonia and hypo-reflexia with preserved cognitive status. She is diagnosed with myasthenia gravis (along with her sister), immunodeficiency syndrome neuromuscular scoliosis and bilateral hip dislocations. . . . I reviewed the medical records sent on August 12, 2019. Stephanie was born at 37 weeks’ gestation following a pregnancy complicated by hypertension. She was born floppy with no respiratory effort, but following responded favorably to positive pressure ventilation. Apgar scores were 2, 5, and 6 at 1, 5, and 10 minutes; a venous cord pH was 7.35 with a base excess of -5.6. Severe hypotonia was noted at birth leading to early gastrostomy placement and evaluation into potential genetic causes. A neonatal MR imaging study was read as normal, while a second study at age 4 months revealed delayed myelination.[1/] Based on the record review, clinical diagnoses and the results of the IME, it is my opinion that Stephanie did not suffer an injury to the brain or spinal cord due to oxygen deprivation or mechanical injury in the course of labor, delivery or resuscitation in the immediate postdelivery period which rendered her permanently and substantially mentally and physically impaired. Based on the evidence presented in support of the Motion, Stephanie is not eligible for compensation under the Plan because her birth weight does not meet the criteria established by statute for a birth-related neurological injury. Based upon the evidence presented in support of the Motion, Stephanie has substantial physical impairments. However, the evidence does not indicate that these impairments are caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital. Finally, no evidence presented demonstrates that Stephanie suffers from any mental impairment. Petitioner has presented no evidence in response to the Motion to rebut the opinions of Dr. Willis and Dr. Duchowny as detailed in their affidavits and expert reports.
The Issue At issue in this proceeding is whether Oscar Roberto Nunez Cano, 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 Ana Isabel Cano and Roberto Nunez are the parents and natural guardians of Oscar Roberto Nunez Cano (Oscar), a minor. Oscar was born a live infant on February 20, 1997, at Jackson Memorial Hospital, a hospital located in Miami, Dade County, Florida, and his birth weight was in excess of 2500 grams. The physicians providing obstetrical services during the birth of Oscar were, at all times material hereto, participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimants demonstrate, more likely than not, that the infant suffered 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 renders the infant permanently and substantially mentally and physically impaired." Oscar's presentation On June 23, 1999, following the filing of the claim for compensation, Oscar was examined by Michael Duchowny, M.D., a pediatric neurologist. Dr. Duchowny's evaluation revealed the following: HISTORY ACCORDING TO MRS. CANO-NUNEZ . . . Mrs. Cano-Nunez began by explaining that Oscar's major problem is that he has 'no movement in his left arm'. This has been a problem since birth when he presented with a weakness of the left upper extremity. Oscar was the product of a term gestation born at Jackson memorial Hospital with a birth weight of 10-pounds. The mother indicated that he was 'to [sic] big when delivering' and the delivery 'caused his left arm tendons to be damaged'. Oscar ultimately remained in the Newborn Intensive Care Unit for a total of 21 days. Mrs. Cano-Nunez feels that Oscar was left with essentially a functionless left arm. He was seen by several physicians, but ultimately was referred to Dr. John Grossman who did neural graphing in August of 1998. The surgery resulted in 'some recovery of function, but he still is limited'. The left hand serves principally as a helper with his right hand performing the majority of motoric tasks. Oscar otherwise enjoys good health. He is on no intercurrent medications and there has been no exposure to toxic or infectious agents. His milestones have been delayed in that he did not walk until 1 1/2, but he spoke in words at a year. He is not yet toilet trained. His immunization schedule is up to date and he has no known allergies. * * * PHYSICAL EXAMINATION reveals Oscar to be an alert, socially integrated and cooperative 2 1/2 year old boy. The weight is 36-pounds. His head circumference measures 51.4 cm and the fontanelles are closed. There are no digital, skeletal or palmar abnormalities and no significant dysmorphic features. The spine is straight without dysraphism. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. There is a healed scar over the left supraclavicular area and further scaring of the left posterior leg where a serial nerve was taken for graphing. Both scars demonstrate keloid formation. NEUROLOGICAL EXAMINATION reveals Oscar to maintain fluent speech. His cranial nerve examination reveals full visual fields to confrontation testing and normal ocular fundi. The pupils are 3 mm and react briskly to direct and consensually presented light. There is blink to threat from both directions. The tongue and palate move well. There are no significant facial asymmetries with the exception of the left palpebral fissure which appeals slightly widened. There is no heterochromia irides and no obvious ptosis or anhydrosis on the left. Motor examination reveals symmetric strength, bulk and tone of three extremities with the left continuing to demonstrate prominent weakness. There is 1-2/5 weakness of the musculature of the proximal shoulder girdles with 3-4/5 strength more distally. Left scapular winging is noted and there is a loss of muscle bulk over the deltoid region, as well as the musculature of the mesial scapular border. Oscar is unable to elevate his shoulder above 20 degrees below neutrality. He has 'Porter's Tip' sign of the hand. Grasping is performed primarily with the right hand and he often crosses the midline. He can not grasp independently with the left. In contrast, the right upper extremity and lower extremities have normal strength, bulk and tone and the deep tendon reflexes are 2+. The deep tendon reflexes in the left upper extremity are trace/absent throughout. Station and gait are age appropriate with the expected diminished arm swing on the left. Sensory examination is deferred. In SUMMARY, Oscar's neurologic examination reveals evidence of a significant left upper extremity monoparesis. In contrast, the remainder of his neurologic examination is normal and his speech is progressing satisfactorily. I believe his cognitive status is normal. The future prognosis of left upper extremity function is guarded, as he has not responded well to surgery. The injury Oscar suffered to his left upper extremity (a brachial plexus injury) during the course of delivery is not, anatomically, a brain or spinal cord injury, and does not affect his mental abilities. Moreover, apart from the brachial plexus injury, Oscar was not shown to suffer any other injury during the course of his birth. Consequently, the proof fails to demonstrate that Oscar suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during the course of labor or delivery that rendered him permanently and substantially mentally and physically impaired.
The Issue The issue in this case is whether Madeline Elizabeth Kitchen suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Sarah W. Kitchen and Steven Kitchen are the natural parents of Madeline Elizabeth Kitchen (Madeline), a minor. Madeline was born a live infant at Orange Park Medical Center, a licensed hospital in Orange Park, Florida, on March 9, 2013. Obstetrical services at the time of Madeline’s birth were provided by Sharonn Jones, CNM, ARNP; and her employer, North Florida OB/GYN, LLC. At all material times, Nurse Jones and North Florida OB/GYN were participants in the Florida Birth-Related Neurological Compensation Plan. NICA’s notice is not at issue as to Nurse Jones or North Florida OB/GYN in this proceeding. Madeline weighed in excess of 2,500 grams at birth. Petitioners and Intervenors contend that Madeline suffered a birth-related neurological injury, and Petitioners seek compensation under the NICA Plan. Petitioners and Intervenors take the position that Madeline’s brain injury was caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period, which rendered Madeline permanently and substantially impaired. Respondent contends that Madeline’s injury does not meet the definition of a birth-related neurological injury as defined in section 766.302(2), Florida Statutes. Petitioner Sarah Kitchen was admitted to Orange Park Medical Center on March 9, 2013. Her membranes were artificially ruptured at 12:48 in the afternoon, and her amniotic fluid was clear. There were some fetal heart decelerations during labor. After Mrs. Kitchen pushed for over an hour, vacuum extraction with two pulls was used to assist vaginal delivery. There was meconium stained amniotic fluid requiring intubation and suctioning before first cry. Madeline’s Apgar scores were 4 at one minute, 9 at 5 minutes and 9 at 10 minutes. The cord blood pH was 7.155. Madeline was in the transitional nursery for a period of time but was not admitted to the NICU. She then spent two days in the regular nursery prior to being discharged home. Other than concerns about Madeline’s ability to nurse, there appear to have been no other concerns at discharge. When Madeline was about seven months old, Mrs. Kitchen began to have concerns about Madeline’s progress and discussed her concerns with Madeline’s pediatrician. In July 2014, Madeline was seen by Dr. Harry Abrams, a pediatric neurologist with Nemours Children’s Clinic in Jacksonville. He concurred with the parents’ concerns of motor, as well as language delays. Dr. Abrams recommended an MRI of the brain, referral to Nemours Orthopedics and Nemours GI, as well as the Early Steps Program anticipating the need for speech and physical therapy. He also noted mild microcephaly. Madeline had an MRI of the brain in August 2014, when she was approximately 16 months of age. The MRI revealed “bilateral periventricular hyper intense signal areas with cystic changes with old hemorrhagic products along with the lateral ventricles lining with a thin corpus callosum consistent with periventricular leukomalacia.” Following the results of the MRI, Madeline had a follow- up appointment with Dr. Abrams who reviewed the results with Madeline’s parents and “discussed in detail the usage of the term of ‘cerebral palsy.’” Dr. Abrams’ notes reflect that the importance of early intervention was discussed and noted that the evaluation for the Early Steps Program had already begun. Dr. Abrams again saw Madeline at an appointment in December 2014. His notes reflect that the mother reported ongoing developmental progress, but had expressed frustration at Madeline’s therapies being limited to physical therapy once per month and speech therapy once per week, with no occupational therapy. Dr. Abrams recommended more frequent therapies. At an appointment in June 2015, Dr. Abrams’ notes describe Madeline as a “2-year-old child with mild cerebral palsy who is making good progress.” At the time of Mrs. Kitchen’s deposition on July 1, 2015, Madeline was receiving physical therapy (once a week for 30 minutes), speech therapy for eating (once a week for 60 minutes), and occupational therapy consults on an irregular basis. She is able to feed herself, mostly with her fingers. Madeline did not walk until 18 months of age, but is now walking without having to hold on to anything. Her left leg is the “weaker” leg and is slightly shorter than her right leg. Her left foot turns in. There have been discussions regarding the possibility of a brace for her left leg if it does not correct itself. Her speech is limited to a few words. NICA retained Donald C. Willis, M.D., to review Madeline’s medical records. Dr. Willis made the following findings and expressed the following opinion in a report dated April 20, 2015: I have reviewed the medical records for the above individual. The mother, Sarah Kitchen was a 28 year old G1. Her AFP screen was positive for Down syndrome. She was evaluated by Maternal-Fetal Medicine. Amniocentesis was declined. The abnormal AFP was not a factor in the outcome of this case. The mother was seen for decreased fetal movement three days before delivery. Biophysical profile (BPP) was 8/8 with normal amniotic fluid volume (AFI of 10 cms). Findings suggested the fetus was not in distress. Non-stress test (NST) was done the following day and was reactive, again suggesting the fetus was not in distress. The mother presented to the hospital in labor about two days after the above NST. Her cervix was dilated 4 cms. Amniotic fluid was reported to be clear. Fetal heart rate (FHR) tracing during labor was not available for review, but labor and delivery record reported “meconium stained fluid and decelerations” as complications. Vacuum extractor with two pulls was used to assist vaginal delivery. Birth weight was 3,538 grams (7 lbs 12 oz’s). Apgar scores were 4/9/9. The newborn was intubated for meconium and suctioned. Arterial cord blood gas was within normal limits with a pH of 7.155 and a base excess of -5. Newborn physical gives an overall assessment of normal exam. Newborn hospital course was uneventful. The baby was discharged home on two days after birth. The child was subsequently followed for developmental delay. MRI on 08/04/2014 (about 16 months of age) showed periventricular leukomalacia. In summary, there was not significant oxygen deprivation during labor and delivery and indicated by normal blood gas and normal Apgar score at 5 minutes. The newborn hospital course was uncomplicated. 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. In a follow-up report dated August 13, 2015, Dr. Willis reaffirmed his opinion: I have reviewed the fetal heart rate (FHR) tracing for the above individual. The base line FHR is normal at about 140 bpm on admission and heart rate variability is normal. The FHR monitor tracing does not suggest fetal distress during labor. The normal appearing FHR tracing would be in agreement with my previous medical opinion that the baby did not suffer oxygen deprivation during labor. Dr. Willis’ opinion that 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 is credited. Respondent retained Laufey Y. Sigurdardottir, M.D., to evaluate Madeline. Dr. Sigurdardottir is a pediatric neurologist with the Division of Neurology of Nemours. Dr. Sigurdardottir reviewed Madeline’s medical records and performed an independent medical examination on Madeline on July 29, 2015. Dr. Sigurdardottir made the following findings and summarized her evaluation as follows: MEDICAL HISTORY: Madeline is a 2-year 4-month-old Caucasian female who was born via vaginal delivery at 40 weeks’ gestation after a normal pregnancy. The labor was slightly prolonged, some fetal heart decelerations were noted and the delivery ended with vacuum extraction. There was meconium stained amniotic fluid, requiring intubation and suctioning below vocal cords. The patient was 7 pounds 13 ounces at birth, had diminished respiratory effort at birth and Apgar scores were 4 after 1 minute and 9 after 5 minutes. The patient was briefly tended to in the transitional nursery, but then spent 2 days with mom in the newborn nursery prior to being discharged home, presumed to be in good health. Madeline has been found to have significant delays in both motor and cognitive development. She has been diagnosed with a chronic static encephalopathy including cerebral palsy with left greater than right- sided symptoms, language delay and poor social interaction for age. MRI imaging has shown signs of old intracerebral hemorrhage and cystic periventricular leukomalacia. Due to the severity of Madeline’s delays, her case is being considered for NICA compensation. * * * Labor history: Mom presented on 03/09/13 at 10:10 a.m. and was admitted for labor. The chart documents a total hours in labor as 62 hours and documents stage 1 as 60 hours 15 minutes, stage 2 was 1 hour 54 minutes, and stage 3 as 4 minutes. An epidural anesthesia was used, the fetal heart rate tracing is not provided for our review, but there is documentation of decelerations without further clarification in an inpatient summary from Orange Park Medical Center. Mom reports having push for more than 1 hour and therefore vacuum extraction was used. Some documentation describes forceps attempt, but this cannot be verified on record review. Two vacuum attempts were needed and a third degree perineal laceration was sustained by Madeline’s mother. When Madeline was born, there is no documentation of shoulder dystocia, and she is noted to be blue and have poor respiratory effort. Suctioning was performed below vocal cords due to meconium staining of amniotic fluid. She had Apgar score of 4 at 1 minute. Her Apgar scores quickly improved being 9 after 5 minutes and 9 after 10 minutes with her only lack being in area of color. Arterial cord blood was sent revealing a pH of 7.16 with a pCO2 of 67.8 and pO2 of less than 47%. A venous cord blood was also sent with the pH of 7.24 and a pCO2 of 51. Madeline was 50 cm at birth, 3538 g and a head circumference of 32.5 cm, which places her head circumference to be at the 8th percentile, her length to be at the 34th percentile and her weight at birth to be at the 62nd percentile per the CDC growth curve. The patient was discharged home, presumed to be in good health. Developmental and Medical History: Madeline’s mother reports early feeding difficulties. She recalls her being fairly floppy and that the parents were worried about delayed visual fixation until about 3-4 months of age. Madeline’s mother brought her to her pediatrician around the age of 6 months for complaints of not grabbing toys and not showing interest in rolling over or sitting up. She had an early frenulectomy due to poor sucking and was referred for hip x-rays for poor mobility at the age of 15 months, which was found to be normal. The patient was referred to physical, occupational and speech therapy and was able to walk unassisted around the age of 20 months. The parents feel that her left side is weaker than her right. She seems unsteady, having a broad stance and frequent falling. The parents are also worried about her language development and report her having only 5-6 words (bye-bye, mama, dada, papa and milk) and a few signs at 2 yr 4 months of age. She seems to be very attracted to music and will want to listen to music and dance along. Madeline is not interested in interacting with her peers. She loves to swing on swings and will often just go about the house on her own terms. Her parents do feel that she will turn towards their face if they say her name, but that it has been difficult to get her to repeat words or point to pictures or label items. They do feel that she knows her body parts. Due to concerns for possible cerebral palsy, she was seen by Dr. Abram of Neurology in Nemours Children’s Specialty Care, Jacksonville in July of 2014 at the age of 15 months. A neurologic exam did comment on her head circumference being below the 5th percentile, there being no dysmorphic features and that her neurologic exam did not have obvious asymmetries. An MRI performed at that time showed: Bilateral periventricular hyperintense FLAIR signal areas are seen with a few cystic changes more severe on the right side. Old hemorrhagic products are seen along the lining of the lateral ventricles. Corpus callosum is thin. Findings are consistent with periventricular leukomalacia. Myelination is appropriate for age. Size and configuration of the ventricles and basal cisterns appear normal. There is no evidence of restricted diffusion. No evidence of abnormal intracranial enhancement. The pituitary gland and cervical medullary junction region appears normal. Hippocampi appear normal. Posterior fossa structures including brain stem and cerebellum appear normal. * * * Developmental testing: She has had the following developmental testing performed in August of 2014, PLS-5 language assessment with a comprehension of 87, expressive language of 89 and total score within the low range of normal. The Battelle Developmental Inventory, however, at the age of 17 months paints a different picture with motor skills at 57, self-help and adaptive skills of a standard score 55, social and emotional a standard score of 85, cognitive a standard score of 77 and communication standard score of 61. * * * NEUROLOGIC EXAMINATION: Mental status: Madeline is on the move throughout the visit, going from 1 toy to the next and seems significantly on her own terms for the majority of the visit. She does at times interact with her parents, but little eye contact is noted. She will at times come up to the examiner briefly. She will look towards voice at times. She will follow simple commands such as stop or no. She will accept food from her parents’ hands but not have joint attention during that time. No clear repetitive behavior is noted. No understandable words are heard by the examiner. Cranial nerves: Her pupils are equal, they do react to light. She has conjugate eye movements for the most part, but occasional left eye extropia is noted, especially if she is looking up and to the right. She has symmetric facial features, but seems to keep her mouth open. Her hearing seems intact. Her motor exam reveals diminished axial tone with some tendency for slip through when held in vertical suspension. She has asymmetric tone, mainly in the lower extremities with increased resistance to passive range of motion in the left lower extremity. Her strength seems to be diminished in bilateral lower extremities and she will at times keep her knees and hips slightly flexed during ambulation. Reflexes are slightly brisker in the left lower extremity than the right. This is not noted in upper extremity. She seems to favor her right upper extremity on exam, using that consistently to grab for toys. Balance and coordination: There is significant abnormality with a broad based, slightly ataxic gait and frequent falls. Her intoeing does seem to lead to her tripping over her left foot. She will, however, stand up off the floor without difficulty. There is significant clumsiness with fine motor skills, both on the right and left upper extremity. There is no seizure-like occurrences and no clear tremor, no monoclinic jerking. Overall assessment: Here we have a 2-year 4- month-old female with chronic static encephalopathy manifested by borderline microcephaly, left greater than right sided CP, moderate receptive and expressive language delay and some delays in social interaction and attention. Her language testing from one year ago is outdated and her current language abilities from what can be observed here would result in her total language score below 70. She has motor disability with bilateral hemiplegic symptoms, but overall good functional skills with independent ambulation having been obtained at 20 months. She is also able to feed herself orally and has been relatively physically healthy from birth. On review of the case, there is no evidence of a prenatal vascular events or periods of decreased fetal movements. On review of the labor and delivery records there is little to support a serious ischemic event and her mild depressed 1 minute apgar score alone with arterial cord blood pH being 7.16 does not support such an event. Results of IME: As to question 1: The patient is found to have a permanent but not substantial physical impairment and mental abilities that are delayed but progressing. As to question 2: On review of medical records, there is minimal evidence of substantial birth asphyxia. Although initial Apgar score was 4 there was immediate recovery and the mild decrease in arterial cord blood pH is not below the 7.00 cut off. The neuroimaging findings are consistent with a hypoxic ischemic injury but do not help in the timing of such an injury. As to question 3: At this time, Madeline’s prognosis regarding her motor development are good, with independent ambulation already in place. Her cognitive development seems to be more difficult to prognosticate at this time, but ongoing speech therapy along with further workup of possible autistic characteristics would be indicated. We expect ongoing progress in this area and we estimate her life expectancy as being full. At this time, it seems likely that she will need significant ongoing supportive services, although the need for this lifelong is uncertain at this time. I am therefore not recommending Madeline to be included into the NICA program and would be happy to answer additional questions. Dr. Sigurdardottir’s opinion that Madeline has a permanent, but not substantial, physical impairment and mental abilities that are delayed, but improving, is credited. Dr. Sigurdardottir’s opinion that there is minimal evidence of substantial birth asphyxia “but there is little to support a serious ischemic event and her mild depressed 1 minute apgar score alone with arterial blood pH being 7.16 does not support this event” is credited. The greater weight of the evidence establishes through the opinions of two experts that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical injury to Madeline’s brain during labor, delivery or the post- delivery period. Here, the stipulated record demonstrates, along with Dr. Sigurdardottir’s expert opinion, that Madeline’s physical impairment is permanent, but not substantial, and that mental abilities are delayed, but progressing. While Madeline has some motor and mental deficits, these deficits do not render her permanently and substantially mentally and physically impaired.
The Issue At issue in this proceeding is whether Brenay Janelle Jackson, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Petitioners, Bridget Jackson and Horace Jackson, are the parents and natural guardians of Brenay Janelle Jackson (Brenay), a minor. Brenay was born a live infant on January 11, 2002, at Palmetto General Hospital, a hospital located in Hialeah, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Brenay was Ignacio Alfredo Ramirez, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimants demonstrate, more likely than not, that the infant suffered 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 renders the infant permanently and substantially mentally and physically impaired." Brenay's presentation On August 15, 2002, following the filing of the claim for compensation, Brenay was examined by Michael S. Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. Dr. Duchowny reported the results of that neurology evaluation, as follows: HISTORY ACCORDING TO MR. & MRS. JACKSON: The parents began by explaining that Brenay is seven months old and has a "weak left arm." They indicated that Brenay's arm has been in this condition since birth and has "not improved very much." They believe that Brenay's left arm has limited mobility despite physical therapy provided on a routine basis. She additionally receives direct electrical stimulation to the muscles of the upper extremity. They noted that Brenay's "thumb turns in" and that she "cannot get her palm up." However, there is certainly a dexterity in the hand and she is able to use both hands in a cooperative fashion. There are more problems at the shoulder in that she is unable to raise her left arm as high as the right. Brenay underwent surgical reconstruction of the left brachial plexus three weeks ago. Surgery was performed by Dr. John Grossman and included a transplant of the left sural nerve. The procedure was uncomplicated. Brenay is also followed by Dr. Michael Tidwell in the Orthopedics department at Miami Children's Hospital. Brenay's right arm has full function and there are no problems with regard to her lower extremities. She rolled over at six months and is now sitting on her own. Her head and neck have a slight tilt to the right, but this does not compromise Brenay functionally. Brenay's hearing and vision are said to be adequate and there have been no changes in her appetite. She sleeps through the night. Brenay is on no intercurrent medications. There has been no recent exposure to toxic or infectious agents and no significant postnatal injuries. FAMILY HISTORY: Brenay's mother and father are both 36 years old. Two brothers, ages eight and seven are healthy. No family members have paralysis, mental retardation, epilepsy or developmental delay. PRE and PERINATAL HISTORY: Brenay was born at term at Palmetto General Hospital. She weighed 8-pounds, 15-ounces and was delivered vaginally. She remained in the hospital for two days. The parents stated that she breathed well at birth and did not have postnatal jaundice. Brenay's immunizations have been proceeding on schedule and she has no known drug allergies. Brenay's PHYSICAL EXAMINATION reveals an alert and playful seven month-old, well- developed, well-nourished black female. Brenay weighs 18-pounds. Her skin is warm and moist and there are no neurocataneous stigmata. There are no digital, skeletal, or palmar abnormalities and no dysmorphic features. The cranial contour appears normal and the head circumference measures 43.4 cm, placing Brenay in the 60th percentile for age-matched controls. The anterior and posterior fontanelles are both patent and flat. There are no significant facial asymmetries. Tongue thrusting is noted intermittently and there is some drooling. The head has a very slight tilt to the right side. The neck is supple without masses, thyromegaly or adenopathy, and the cardiovascular, respiratory and abdominal examinations are normal. There are healed linear scars over the left calf and left lower lateral cervical region. Brenay's NEUROLOGIC EXAMINATION reveals an alert infant sitting in her mother's lap. She is extremely engaging and smiles frequently. Brenay makes frequent cooing noises and appears extremely interested in objects and people in her immediate surround. Her cranial nerve examination reveals full visual fields to confrontation testing. The extraocular eye movements are full and conjugate and the pupils are 3 mm and briskly reactive to direct and consensually presented light. There is no ptosis. Fundoscopic examination reveals appropriately demarcated disc margins without pallor and no evidence of retinopathy. The facial movements are symmetric and the tongue moves well. The uvula is midline. Motor examination reveals a functional asymmetry of the upper extremities. Brenay tends to move her right arm much more actively, and in contrast, the left shoulder mobility is diminished. There are no fixed contractures. The shoulder is held in a position of mild internal rotation and adduction. The elbow is flexed and the wrist is pronated. There is full range of motion at the wrist and finger joints and Brenay demonstrates good individual finger dexterity. There were no asymmetries of motor bulk in the forearm compartments, but the arm showed a slightly greater ridging over the lateral surface on the left. There is no asymmetry of the dorsal musculature and the shape and slope of the shoulders appeared symmetric and normal. I was unable to accurately assess sensory function in the upper extremities. The deep tendon reflexes are 2+ at the knees and ankles and 1+ to 2+ in the right biceps and brachial radialis. The right triceps is trace. In contrast, the left biceps and brachial radialis are trace and there is no evidence of a left triceps jerk. Brenay is able to sit with good head control and has a good grasping bilaterally. There are no pathologic reflexes. She stands with support. The NEUROVASCULAR EXAMINATION reveals no cervical, cranial or ocular bruits, and no temperature or pulse asymmetries. Brenay is able to grasp objects with either hand, and she demonstrates reasonably well-developed pincer grasp with both the right and left fingers. She does not yet transfer. IN SUMMARY, Brenay's neurologic examination reveals evidence of a mild left Erb's palsy, affecting the fifth, sixth, and seventh cervical roots. The lower brachial plexus appears preserved, and there are no other neurologic abnormalities. Brenay's Erb's palsy appears to be improving slightly, but it is as yet too early to know how well she will do subsequent to her surgical repair. In contrast, the neurologic examination demonstrates no evidence of mental or motor impairment referable to the central nervous system. An Erb's palsy, such as that evidenced by Brenay, is a weakness of an upper extremity due to damage of the nerve roots of the upper brachial plexus,2 and does not involve the brain or spinal cord.3 Moreover, the impairment Brenay suffers is mild, as opposed to substantial, and there is no evidence of mental impairment. Consequently, while Brenay may have suffered a mechanical injury, permanent in nature (to her left brachial plexus) during the course of birth, she does not (for reasons appearing more fully in the Conclusions of Law) qualify for coverage under the Plan.
Findings Of Fact The parties have stipulated to the following facts. Iyonna Hugley was born on October 14, 2010, at 1950 hours at Wuesthoff Medical Center, Melbourne, Florida. Mark Sargent, M.D., provided obstetrical services during the delivery of Iyonna. Dr. Sargent is a participating physician in the Plan as defined in section 766.302(7). At birth, Iyonna weighed 2,347 grams and was delivered from a single gestation.
The Issue At issue in this proceeding is whether Wilgen Wandique, Jr., a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Wilgen Wandique and Concepcion Wandique, are the parents and natural guardians of Wilgen Wandique, Jr. (Wilgen), a minor. He was born a live infant on August 21, 1996, at Hialeah Hospital, a hospital located in Dade County, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Wilgen was Gustavo Ruiz, 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. Wilgen's delivery at Hialeah Hospital on August 21, 1996, was apparently difficult due to his large birth weight, and was complicated by a shoulder dystocia. Following delivery, Wilgen was noted having evidence of a mild to moderate compromise of the upper right brachial plexus, an Erb's palsy, which affected the range of motion on the upper right extremity, including the arm, forearm, and hand. Otherwise, Wilgen's presentation was unremarkable, and he evidenced no abnormalities with regard to his mental status and, as hereafter noted, no motor abnormalities of central nervous system origin. A brachial plexus injury, such as that suffered by Wilgen during the course of his birth, is not, anatomically, a brain or spinal cord injury, and does not affect his mental abilities. Moreover, as heretofore noted, apart from the brachial plexus injury, Wilgen was not shown to suffer any other injury during the course of his birth. Consequently, the proof fails to demonstrate that Wilgen suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during the course of labor or delivery, and further fails to demonstrate he is presently permanently and substantially, mentally and physically impaired.
