The Issue At issue in this proceeding is whether Hawke Carter, 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 Petitioner nor anyone on her behalf appeared at hearing, and no proof was offered to support her claim. Contrasted with the dearth of proof offered by Petitioner, Respondent offered the opinions of Michael S. Duchowny, M.D., a physician board-certified in pediatric neurology, and Charles Kalstone, M.D., a physician board- certified in obstetrics and gynecology. It was Dr. Duchowny's opinion, based on his neurological evaluation of Hawke on July 26, 2000 (at 2 1/2 years of age) and his review of the medical records regarding Hawke's birth, as well as the opinion of Dr. Kalstone, based on his review of the medical records, that Hawke's current neurological condition (which reveals evidence of severe motor and cognitive deficits) did not result from oxygen deprivation, mechanical trauma or any other event occurring during the course of labor, delivery, or resuscitation in the immediate post-delivery period. Rather, it was their opinion that Hawke's disabilities are developmentally based and associated with a congenital syndrome, genetic in origin. Given Hawke's immediate perinatal history, which evidences an uncomplicated labor, delivery, and immediate post-partum period, as well as evidence of congenital heart disease, a diagnose of DiGeorge syndrome (confirmed by positive FISH analysis) and dysmorphic (malformed) features, the opinions of Doctors Duchowny and Kalstone are rationally based and supported by the record. Consequently, their opinions are credited, and it must be resolved that Hawkes' disability is associated with genetic or congenital abnormality, and is not related to any event which may have occurred during the course of his birth.
The Issue At issue in this proceeding is whether Morgan Wilson, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Petitioners, Tracie Wilson and James Ray Wilson, are the natural parents and guardians of Morgan Wilson. Morgan was born a live infant on December 12, 2000, at Baptist Medical Center, a hospital located in Jacksonville, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Morgan's birth was Martin Garcia, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Morgan's birth At or about 7:29 a.m., December 12, 2000, Mrs. Wilson (with an estimated date of delivery of December 23, 2000, and the fetus at 38 3/7 weeks gestation) presented to Baptist Medical Center, in labor. At the time, Mrs. Wilson's membranes were noted as intact, and mild to moderate uterine contractions were noted at a frequency of 2-4 minutes. Fetal monitoring revealed a reassuring fetal heart rate, with a baseline of 150-160 beats per minute, and the presence of fetal movement. At 9:45 a.m., Mrs. Wilson's membranes were artificially ruptured, with meconium stained amniotic fluid noted. At the time, vaginal examination revealed the cervix at 4 centimeters, effacement complete, and the fetus at 0 station. Mrs. Wilson's labor progressed, and at 7:29 p.m., Morgan was delivered, with vacuum assistance. According to the Admission Summary, Morgan was suctioned on the perineum, and, before she could be moved to the warmer, the "[c]ord clamp loosened with small amount of blood loss prior to reclamping." The Admission Summary further reveals that Morgan was "floppy and required bag mask ventilation x3 minutes, then blowby oxygen for 3 minutes." Apgar scores were noted as 1 and 8, at one and five minutes,2 and umbilical cord pH was reported as normal (7.28). Morgan was transferred to the neonatal intensive care unit (NICU) for "eval[uation] after blood loss." There, her blood count (with a hematocrit of 46 percent) was reported as normal or, stated otherwise, without evidence of a clinically significant blood loss due to the loosening of the clamp. Following two hours of observation, Morgan was transferred to the normal newborn nursery; however, at 4:20 p.m., December 13, 2000, she was readmitted to the neonatal intensive care unit. The reason for admission was stated in the Admission Summary, as follows: . . . Indications for transfer included 38 week WF with renal vein thrombosis and left middle cerebral artery stroke. Neonatology consulted midafternoon today secondary to hematuria. On exam, Dr. Cuevas noted asymmetry of pupils, with right more dilated and less responsive then left. Also noted to have torticollis, preferring to keep head turned to left. Also noted to have palpable mass in left abdomen. Renal ultrasound revealed renal vein thrombosis. HUS showed some echogenecity so Head CT done revealing left middle cerebral artery stroke. Hct this am 41. Baby then admitted to NICU for further care. Neurology and hematology consulted as well as nephrology. Impressions on admission included: possible coaguloathy; left middle cerebral artery stroke; renal vein thrombosis; and torticollis. Morgan remained at Baptist Medical Center until December 29, 2000, when she was discharged to her parents' care. Morgan's Discharge Summary noted the following active diagnoses: possible coagulopathy; anemia; left middle cerebral artery stroke; renal vein thrombosis; and torticollis. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . 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." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, indisputably, the record demonstrates that Morgan suffered an injury to the brain (following a stroke in the territory of the left middle cerebral artery, likely due to arterial occlusion or superior saggital sinus thrombosis). What is disputed, is whether the proof demonstrates, more likely than not, that such injury occurred "in the course of labor, delivery, or resuscitation," and whether any such injury rendered Morgan "permanently and substantially mentally and physically impaired." The timing of, and the neurologic consequences that followed, Morgan's brain injury To address whether Morgan's brain injury occurred "in the course of labor, delivery, or resuscitation," and whether such injury rendered Morgan "permanently and substantially mentally and physically impaired," Petitioners offered medical records relating to Mrs. Wilson's antepartum course, as well as those associated with Morgan's birth and subsequent development. Additionally, Mrs. Wilson testified on her own behalf, and Respondent offered the deposition testimony of Dr. Donald Willis, a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine, and Dr. Michael Duchowny, a physician board-certified in pediatrics, neurology with special competence in child neurology, electroencephalography, and neurophysiology.3 As for the timing of Morgan's injury, it was Dr. Willis' opinion that the medical records did not reveal any obstetrical event that would account for Morgan's injury. In so concluding, Dr. Willis noted that fetal monitoring (which began on admission and continued until 7:28 p.m., one minute prior to delivery) did not reveal evidence of fetal compromise or a clinically significant event that would account for Morgan's injury, that Morgan's 5-minute Apgar score was normal, her umbilical cord pH was normal, and her hematocrit on initial admission to the neonatal intensive care unit was normal. Consequently, Dr. Willis concluded that Morgan's injury did not occur during labor, delivery, or resuscitation. Also speaking to the timing of Morgan's injury was Dr. Duchowny who, based on his review of the medical records, shared Dr. Willis' opinion that there was no evident problem during labor and delivery, and further opined that Morgan's injury likely occurred prior to labor. In concluding that Morgan's injury likely predated the onset of labor, Dr. Duchowny noted that Morgan's CT scan on the day after birth clearly revealed a stroke in the territory of the left middle cerebral artery, and that it would take at least 72 hours for a stroke to be revealed so clearly on a CT scan. Apart from the timing of Morgan's brain injury, Dr. Duchowny also expressed his opinions, based on his examination of November 6, 2001, regarding the neurologic consequences that followed Morgan's injury. Dr. Duchowny reported the results of Morgan's neurology evaluation, as follows: PHYSICAL EXAMINATION reveals an alert, well developed and well nourished 10 1/2 month old white female. The skin is warm and moist. There are no cutaneous stigmata or dysmorphic features. The hair is light blonde, fine and of normal texture. Morgan weighs 18-pounds, 10-ounces. Her head circumference measures 45.6 cm, which is at the 60th percentile for age matched controls. There are no dysraphic features. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. NEUROLOGIC EXAMINATION reveals an alert infant who is socially oriented. She has good central gaze fixation, conjugate following 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. There are no facial asymmetries. The tongue and palate move well, and there is no drooling. Motor examination reveals an obvious asymmetry of posturing and movement. The left side is positioned normally and tends to grasp for objects. The right upper and lower extremity have diminished movement in comparison to the left and there is a tendency for the left hand to cross the midline for all manual tasks. She will not grasp for an offered cube with her right hand. In contrast, the left hand will grasp for a cube and display the beginnings of individual finger movements. The thumb on the right hand is fisted. The muscle, bulk and tone appears symmetric. Deep tendon reflexes are 2+ at the biceps and knees. Both plantare responses are mildly extensor. On pull-to-sit there is an asymmetry of the upper extremity, with relatively greater pull on the left side. The neck tone is good. There are no adventitious movements. Sensory examination is intact to withdrawal of all extremities to touch. The neurovascular examination via the anterior fontanelle is unremarkable. In SUMMARY, Morgan's neurologic examination reveals a mild to moderate motor asymmetry of the right side affecting primarily upper extremity, but with some lower extremity involvement as well. In contrast, Morgan's cognitive status appeared well preserved for age and she is certainly developing on schedule with regard to her linguistic milestones. I suspect that Morgan's motor function will continue to improve, as she is working actively in therapy. In sum, it was Dr. Duchowny's opinion that Morgan evidenced neither a permanent and substantial physical impairment nor a permanent and substantial mental impairment. In contrast to the proof offered by Respondent, Petitioners offered the lay testimony of Mrs. Wilson, which was legally insufficient to support a finding regarding the timing of Morgan's brain injury, and which failed to support a conclusion that Morgan was permanently and substantially mentally and physically impaired. See, e.g., Vero Beach Care Center v. Ricks, 476 So. 2d 262, 264 (Fla. 1st DCA 1985)("[L]ay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observable.") Consequently, since the opinions of Dr. Willis and Dr. Duchowny are logical, and consistent with the medical records, it must be resolved that, more likely than not, Morgan's brain injury did not occur "in the course of labor, delivery, or resuscitation," and that Morgan's injury did not render her "permanently and substantially mentally and physically impaired." Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation.")
The Issue Whether Kayla Bradford has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.
Findings Of Fact The claim 1. Kayla Bradford (Kayla) is the natural daughter of Nicole Bradford. She was born a live infant, on April 17, 1992, at Holy Cross Hospital, in Broward County, Florida, and her birth weight was in excess of 2500 grams. 2. Kayla was delivered by Patrick Callaghan, M.D., an obstetrician, 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. w ~ 3. Kayla‘s delivery at Holy Cross Hospital on April 17, 1992, was difficult. At 9 pounds 13 ounces, Kayla was large for her gestational age of 40 weeks, and with the rupture of the mother’s membranes meconium stained amniotic fluid was obsé@tved. When delivered, Kayla was observed to have the nuchal cord around her neck one time and shoulder dystocia. She was limp, with no spontaneous activity, at delivery, and registered Apgar scores of 0 at one minute, 0 at five minutes, and 4 at ten minutes. Following delivery, Kayla was resuscitated, and transferred to the NICU unit where she remained until April 18, 1992, when she was transported to a level III NICU unit at Broward General Medical Center. 4. Kayla remained at Broward General until discharged on May 1, 1992. While admitted, she continued to receive treatment for seizure activity that was observed following delivery (tonic clonic movement of all extremities, including lip smacking), through the administration of phenobarbital. Such seizure activity has apparently been resolved since, following her discharge, the administration of phenobarbital was discontinued and no subsequent seizure activities have been observed. Moreover, subsequent CAT scans and MRI evaluations noted no abnormalities or brain damage. 5. Based on the proof of record, it is concluded that Kayla was compromised during labor and delivery by a deprivation of oxygen and diminished blood flow to the brain such that she suffered mild to moderate asphyxia. Under the circumstances, the record demonstrates that Kayla sustained an injury to her brain caused by oxygen deprivation during the course of labor, delivery or resuscitation in the immediate post-delivery period. Such injury was not, however, as hereinafter found, shown to render Kayla permanently and substantially mentally and physically impaired. } 6. As to whether Kayla had sustained permanent and substantial mental and physical impairment as a result of any injury to her brain resulting from oxygen deprivation during the course of labor, delivery or resuscitation in the immediate post- delivery period, the petitioners offered the testimony of Dr. David Abramson, a board certified pediatrician. It was Dr. Abramson’s opinion that Kayla Bradford does have, or will develop, a substantial and permanent mental and physical impairment. Dr. Abramson‘’s opinion was based upon his review of the records from Holy Cross Hospital, Broward General Medical Center, and the prenatal records and early neonatal records. Dr. Abramson acknowledged that he had not examined the child, had not spoken with Nicole Bradford, had not spoken with any treating physicians, had not seen any pediatric records of any visit or care received by the child subsequent to her birth at Holy Cross Hospital and hospitalization at Broward General Medical Center, had not reviewed the records of Children’s Medical Services, and had not seen any diagnostic studies conducted on Kayla Bradford subsequent to her birth. 7. Compared with the opinions of Dr. Abramson, the respondent offered the testimony of Dr. Michael Duchowny. Dr. Duchowny is a child neurologist who is board certified in pediatrics, neurology with special competence in child neurology and clinical neurophysiology. Dr. Duchowny reviewed ali of the medical records pertaining to the birth of Kayla Bradford, as well as the medical records and reports of Children’s Medical Services, including records of Kayla Bradford’s visits with Dr. Barnard, Dr. Reinertsen, Dr. Desai, the deposition transcripts of Dr. Barnard and Dr. Reinertsen, as well as the records of Kayla Bradford’s evaluation by the Early Intervention Program of the Easter Seal‘s Society. Further, Dr. Duchowny examined Kayla Bradford on October 28, 1993. 8. It was Dr. Duchowny’s opinion, within a reasonable degree of medical probability, that Kayla Bradford had not sustained substantial and permanent mental and physical impairments. Specifically, Dr. Duchowny observed that Kayla Bradford had not sustained any mental impairment, and therefore, no substantial and permanent mental impairment. It was Dr. Duchowny’s opinion that from a physical standpoint Kayla Bradford had mild motor findings which he believed constituted a physical impairment, although from a strict standpoint he questioned whether it was an actual functional impairment. However, it was his opinion that the mild motor findings did not constitute a substantial and permanent physical impairment. 9. The opinions of Dr. Duchowny are consistent with the observations and opinions of Dr. G. B. Barnard, a board certified pediatrician, who examined Kayla Bradford on November 24, 1992, and of Dr. Jeff Reinertsen, a board certified pediatrician who examined Kayla Bradford on February 2, 1993. 10. I do not accept Dr. Abramson’s opinions on the issue of whether Kayla Bradford has substantial and permanent mental and physical impairments. His opinions on this issue lack credibility based upon the lack of information utilized by him to formulate his opinions. Accordingly, I accept the testimony and opinion of Dr. Michael Duchowny as being the more credible and substantial as to whether or not Kayla Bradford has sustained a substantial and permanent mental and physical impairment. I find Dr. Duchowny’s opinions to be credible. Further, Dr. Duchowny’s opinions are supported by the testimony of Dr. Barnard and Dr. Reinertsen, which I find to be credible, as well as the medical records received into evidence. Procedural matters 11. At no time prior to the delivery of Kayla, was Nicole Bradford provided notice as to the limited no-fault alternative for birth-related neurological injuries afforded by the Florida Birth-Related Neurological Injury Compensation Plan on forms furnished by NICA, or otherwise, including an explanation of her rights and limitations under the plan or that Dr. Callaghan was a participating physician under the plan. 12. At no time during the-pendency of this proceeding did a medical advisory panel, consisting of three qualified physicians as defined by Section 766.308(1), Florida Statutes, as amended by Chapter 93-251, Laws of Florida, review this claim and make a recommendation as to whether the injury for which the claim was filed was a birth-related neurological injury as defined by law. Petitioners did not, however, complain of such failure until the conclusion of their case, and never sought a continuance to compel such review.
Conclusions For Petitioner: Scott M. Newmark, Esquire Sheldon J. Schlesinger, P.A. 1212 Southeast Third Avenue Fort Lauderdale, Florida 33316 For Respondent: David W. Black, Esquire Atkinson, Diner & Stone, P.A. Post Office Drawer 2088 1946 Tyler Street Hollywood, Florida 33022-2088
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review Pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules Of Appellate Procedure. Such Proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk Of The Division of Administrative Hearings and a_ second copy, accompanied by filing fees prescribed by law, with the District Court Of Appeal, First District, or with the District Court Of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 16
