The Issue Whether Cody Smith 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 Cody Smith (Cody) is the natural son of Lisa Smith and Jeffrey Smith. He was born a live infant on May 1, 1991, at Memorial Hospital, in Broward County, Florida, and his birth weight was in excess of 2500 grams. The physicians delivering obstetrical services during the birth of Cody were Sidney Morrison, M.D., and Robert Siudmak, M.D., who were, at all times material hereto, participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Cody's delivery at Memorial Hospital on May 1, 1991, was not without complications. Being post term, with a delivery weight of 10 pounds 3 ounces, Cody's extraction was difficult, and due to a "moderate to severe degree of shoulder dystocia" ("the shoulder was hung up in the birth canal") force was necessary to extract him from the birth canal. As a consequence of such force, trauma to segments of the brachial plexus occurred which induced a left upper extremity Erb's palsy. Today, while improved from his initial condition, Cody's physical impairment, occasioned during the course of delivery, may be described as permanent and substantial; however, a brachial plexus injury, which can result in an Erb's palsy, is not an injury to or a consequence of any injury to the brain or spinal cord. 1/ Moreover, Cody's mental functioning is age appropriate, and he has not been shown to have suffered any mental impairment, much less a substantial mental impairment.
Findings Of Fact Josiah was born on September 9, 2018, at OPMC. Josiah weighed in excess of 2,500 grams at birth. The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records of OPMC submitted with the Claim. In order for a claim to be compensable under the Plan, certain statutory requisites must be met. Section 766.309 provides: The Administrative Law Judge shall make the following determinations based upon all available evidence: Whether the injury claimed is a birth-related neurological injury. If the claimant has demonstrated, to the satisfaction of the Administrative Law Judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in § 766.302(2). Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital. How much compensation, if any, is awardable pursuant to § 766.31. If the Administrative Law Judge determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at birth, she or he shall enter an order . . . . The term “birth-related neurological injury” is defined in Section 766.302(2), Florida Statutes, as: . . . injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality. (emphasis added). In the instant case, NICA has retained Donald Willis, M.D. (Dr. Willis), as its medical expert specializing in maternal-fetal medicine and pediatric neurology. Upon examination of the pertinent medical records, Dr. Willis opined: In summary, the mother presented to the hospital in early labor with a reassuring FHR tracing. While under observation in the hospital, spontaneous rupture of the membranes occurred with resulting fetal bradycardia Stat Cesarean section was done with delivery of a depressed newborn. Cord pH was <6.733 with a base excess of -25. Despite cooling protocol, the newborn hospital course was complicated by multi system organ failures. EEG was noted to be severely abnormal. Head ultrasound on the day of birth showed cerebral edema and MRI on DOL 10 was consistent with HIE The child was subsequently diagnosed with spastic cerebral palsy. Dr. Willis’s medical report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: There 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 not able to comment about the severity of the brain injury. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis. The opinion of Dr. Willis that Josiah did suffer an obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery, and continuing into the immediate post-delivery period, which resulted in brain injury, is credited. Petitioner does not contest this finding. In the instant case, NICA has retained Raj D. Sheth, M.D. (Dr. Sheth), as its medical expert in pediatric neurology. Upon examination of the child and the pertinent medical records, Dr. Sheth opined: In SUMMARY, Josiah's neurological examination reveals evidence of severe neurologic impairment that is likely to be permanent affecting gross motor, fine motor, personal social and language areas. Much of Josiah's neonatal course was detailed in the history of present illness. He was born at 38 weeks gestation with Apgar scores were 1, 4 and 6 at 1, 5 and 10 minutes. He required immediate intubation head cooling developed neonatal seizures that did not persist and has an exam consistent with severe hypoxic ischemic encephalopathy. His initial chemistries and blood gases are as reported above. Dr. Sheth’s medical report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: As of the time of this examination and evaluation Josiah's case indicates that he suffers from both a substantial mental and substantial physical impairments that are permanent. These impairments are consistent with an injury to the brain acquired due to oxygen deprivation occurring during labor and delivery. 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. Sheth. The opinion of Dr. Sheth that Josiah did suffer a substantial mental and motor impairment, due to oxygen deprivation that was acquired in the course of labor and delivery, is credited. Petitioner does not contest this finding.
Findings Of Fact By stipulation filed January 18, 1994, petitioner and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Fla. Stat., a claim was [filed] on behalf of the above-styled infant against NICA on behalf of JORDAN KYLES, DENISE DESIR (the "Petitioners") for benefits under Chapter 766.301-766.316 Fla. Stat. That a timely filed Claim for benefits complying with the requirements of Section 766.305, Fla. Stat., was filed by the Petitioners and a timely Notice of Non- Compensability Setting forth that NICA denied the claim was filed on behalf of NICA. That the infant, JORDAN KYLES was born at Mercy Hospital on November 1, 1990, and Mercy Hospital was a licensed Florida Hospital and the attending physician, Dr. Luis G. Martinez, was a participating physician within the meaning of Chapter 766, Fla. Stat. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. Section 766.302(2), Fla. Stat. states that a "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 grams at birth 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. The parties agree that JORDAN KYLES suffers from a left brachial plexus palsy injury. A brachial plexus palsy injury is not an injury to the brain or spinal cord and further does not result in any mental injury. The parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., including in particular his report dated September 2, 1993. A copy of this report has been attached hereto and incorporated herein as Exhibit 1. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply. Based upon the stipulation, the parties request the hearing officer rule on Petitioners' claim based upon this Stipulation, and the attached medical record. The stipulation and neurological examination of Jordan reveal that he suffered a left brachial plexus palsy injury, and that a brachial plexus palsy injury is not a brain or spinal cord injury and further, does not result in mental injury. Moreover, Jordan's mental functioning is age appropriate and not impaired due to any birth related complications.
