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 Emmanuel Hooks, 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 Petitioner, Brianna Denise Davidson, is the mother and natural guardian of Emmanuel Hooks, a minor. Emmanuel was born a live infant on July 26, 1999, at Gulf Coast Medical Center, a hospital located in Panama City, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Emmanuel's birth was Steven G. Smith, 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. Emmanuel's birth At or about 9:10 p.m., July 25, 1999, Ms. Davidson (with an estimated date of delivery of July 26, 1999, and the fetus at 40 weeks gestation) presented to Gulf Coast Medical Center in labor. Initial vaginal examination revealed the cervix at 2-3 centimeters dilation, effacement as "thin," and the fetus at station -3. External fetal monitoring revealed a reassuring fetal heart rate (of 140-150 beats per minute), with accelerations. Ms. Davidson was continually monitored, and at 11:00 p.m., she was admitted to labor and delivery. At the time, uterine contractions were noted at 3-5 minute intervals, and vaginal examination revealed the cervix at 3 centimeters, effacement at 90 percent, and the fetus at station -3. Ms. Davidson's labor apparently did not progress, and at 2:49 a.m., July 26, 1999, she was started on Pitocin. Thereafter, Ms. Davidson's labor progressed slowly, and at 6:45 a.m., vaginal examination revealed the cervix at 5 centimeters, effacement at 90 percent, and the fetus at station -1. In the interim, external fetal monitoring continued to reveal a reassuring fetal heart rate. Ms. Davidson's labor continued to slowly progress, and by 9:00 a.m., vaginal examination revealed the cervix at 8 centimeters, effacement at 100 percent, and the fetus at station -1. In the interim, at 8:48 a.m., Ms. Davidson's membranes spontaneously ruptured, with clear fluid noted. Thereafter, variable decelerations were noted with each contraction, consistent with umbilical cord compression, and fetal heart base line remained reassuring (in the 140-beat minute range). From 9:00 a.m. to 11:45 a.m., Ms. Davidson's labor failed to progress (with the cervix at 8 centimeters, effacement at 100 percent, and the fetus at station -1), and at 11:45 a.m., Ms. Davidson was transported to the operating room for delivery by caesarean section. Notably, between 9:00 a.m., and 11:45 a.m., while variable decelerations continued, the fetal heart rate base line remained in the 140-beat per minute range, and fetal electrode revealed the presence of short term variability. According to the records, Ms. Davidson was in the operating room at 11:45 a.m., anesthesia started at 11:45 a.m., surgery started at 12:32 p.m., and Emmanuel was delivered at 12:35 p.m. Of note, the "nucal cord x 1" observed during delivery was described as "loose," and fetal heart monitoring in the operating room and immediately prior to the caesarean section revealed a reassuring fetal heart rate. On delivery, Emmanuel was bulb-suctioned, but did not require resuscitation. Initial newborn assessment noted no apparent abnormalities, and Apgar scores were recorded as 8 at one minute and 9 at 5 minutes. The Apgar scores assigned to Emmanuel are a numeric expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex response, and color, with each category being assigned a score ranging from the lowest score of 0 through maximum score of 2. As noted, at one minute, Emmanuel's Apgar score totaled 8, with heart rate, respiratory effort, muscle tone, and reflect response being graded at 2 each, and color being graded a 0. At five minutes, Emmanuel's Apgar score totaled 9, with heart rate, respiratory effort, muscle tone, and reflex response again graded at 2 each, and color now graded at 1. Such scores are considered normal, and inconsistent with recent hypoxic insult or trauma. Following the initial newborn assessment, Emmanuel was transported to the regular nursery, where he remained until he was discharged with his mother on July 29, 1999. Notably, the newborn nursery admission assessment was grossly normal, and there is no evidence of any complication during Emmanuel's stay. Emmanuel's subsequent development On December 10, 2001, following the filing of the subject claim, Emmanuel was examined by Dr. Michael Duchowny, a physician board-certified in pediatrics, neurology with special competence in child neurology, electroencephalography, and clinical neurophysiology. Dr. Duchowny reported the results of his neurology evaluation, as well as the history he obtained from the parents, as follows: HISTORY ACCORDING TO MR. AND MRS. HOOKS: Emmanuel is a 2 1/2 year old boy who the parents indicated suffers from cerebral palsy and brain injury. They began by explaining that Emmanuel suffered brain injury at birth due to a cord being wrapped around his neck. He was delivered by emergency caesarean section. They noted that Emmanuel's MRI has shown periventricular leukomalacia and furnished a copy of the MRI report. Emmanuel's growth and developmental milestones have been slow. He did not rollover until 9 months, nor did he sit until a year of age. He stood at 14 months, walked at 18 months and said his first word at age 2. He now has a lexicon of only one word ("ma-ma"). Emmanuel is not toilet trained. He is described as being extremely active. He does not sit still at anytime during the day and it is difficult to examine him or provide therapy. He attends a wellness center where he receives physical, speech and occupational therapy on a twice weekly basis. Communication is a particular problem area for him. Emmanuel's appetite has also been diminished and he is now "only starting to eat". His mother indicated that Emmanuel suffers from "low muscle tone" and that he drools frequently. She also mentioned that he wakes up frequently at night and is just beginning to sleep more consistently. Emmanuel does not play with other children at school. His activity level and intrusiveness have precluded meaningful peer interactions. The parents are aware that his eye contact is poor. The parents stated that Emmanuel "had seizures", but then went on to explain that 2 EEG's were normal and he was never placed on medication. The events were described as "getting into a trance". He has not had motor convulsions. FAMILY HISTORY: Both parents are healthy. A 4 year brother had no medical problems and there are no family members with degenerative illnesses, mental retardation or cerebral palsy. Emmanuel was born at Gulf Coast Medical after a 39 week gestation. He weighed 8-pounds, 9- ounces at birth and breathed well. He was discharged from the nursery at 3 days of age. Emmanuel is fully immunized, has no significant drug allergies and never been hospitalized or undergone surgery. His vision and hearing are said to be excellent. PHYSICAL EXAMINATION reveals an alert, but extremely active and well developed 2 1/2 year old toddler. Emmanuel weighs 39-pounds. His head circumference measures 50.2 cm and there are no cranial or facial anomalies or asymmetries. Emmanuel's neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. Emmanuel's NEUROLOGIC EXAMINATION is difficult to complete, as he is constantly in motion. The physical examination requires restraint from his father, as he continually tries to touch things and pull items off the desktop and shelves. Emanuel has very poor eye contact and did not communicate in words at anytime during the session. It was difficult for him to follow commands as well, as his attention span constantly shifted. He drooled intermittently. The tongue movements are poorly coordinated. Cranial nerve examination reveals full visual fields to direct confrontation testing. There is blink to threat from either direction. I could not perform a fundoscopic examination. There are no facial asymmetries. Motor examination reveals mild generalized hypotonia with full range of motion. There are no adventitious movements, aside from the high activity level and no evidence of focal weakness or atrophy. Emmanuel's gait is stable, but slightly wide- based and he has generalized hypotonia. The deep tendon reflexes are 2+ bilaterally and plantar responses are in flexion. There is withdrawal of all extremities to touch. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. Cerebellar testing could not be completed due to poor cooperation. In SUMMARY, Emmanuel's neurologic examination is significant for multiple areas of developmental delay. He is extremely overactive and inattentive, and has a significant behavior and communication problem. He additionally demonstrates poor eye contact and has a significant social disability. There are no specific focal or lateralizing findings to suggest a structural brain lesion. The findings on Emmanuel's neurologic examination suggests a diagnosis of a pervasive developmental disorder. Emmanuel fits within the autistic spectrum and this was communicated to the family . . . . The cause and timing of Emmanuel's neurological impairment To address the issue of whether Emmanuel's impairments were associated with 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," as required for coverage under the Plan, Petitioner offered selected medical records relating to Ms. Davidson's antepartum course, as well as those associated with Emmanuel's birth and subsequent development. Additionally, Emmanuel's parents testified on their own behalf, and Respondent offered the deposition testimony of Dr. Duchowny, whose qualifications were previously noted, and the deposition testimony of Dr. Donald Willis, a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine. As for the cause and timing of Emmanuel's impairments, it was Dr. Duchowny's opinion, based on the results of his neurology evaluation and review of the medical records, that Emmanuel's impairments are not related to perinatal asphyxia or trauma. More particularly, Dr. Duchowny expressed his views, as follows: Q. Based on your review of the records and your evaluation of Emmanuel Hooks, can you give us an overview of his condition? A. Yes. I thought that Emmanuel's neurologic examination revealed evidence of developmental neurologic impairment. He was hyperactive and had an attention deficit disorder and additionally had significant behavior, social and communication problems. All of this suggested he had developmental problems in multiple areas, consistent with a diagnosis of pervasive developmental disorder. Many of the children with pervasive developmental disorder go on to develop childhood autism as they get older. * * * Q. In this particular case, do you believe that Emmanuel's condition was acquired during the course of labor-delivery in the immediate post-delivery period? A. No, I do not. Q. What is the basis for that opinion? A. The basis for my opinion is that autism is a developmental disorder which results from unknown factors operating in utero prior to the onset of labor and delivery and is not a recognized complication of birth asphysia or birth trauma. Q. I take it your opinion is that Emmanuel Hooks did not acquire whatever neurological deficits he had as a result of any oxygen deprivation or mechanical injury occurring during labor-delivery or the immediate post- delivery period? A. That's correct. Q. In fact, was there any evidence in the medical records of any oxygen deprivation that occurred during the course of labor- delivery or resuscitation during the immediate post-delivery period? A. No. Q. Was there any evidence of mechanical injury occurring during the course of labor- delivery or the immediate post-delivery resuscitative period? A. No, there was not? Q. In your opinion, were Emmanuel's problems acquired prior to the course of labor- delivery? A. Yes. As for Dr. Willis, he was also of the opinion that the medical records revealed no evidence of oxygen deprivation or other trauma associated with Emmanuel's birth. The medical records, as well as the testimony of the physicians and the parents, have been carefully considered. So considered, it must be concluded that the proof failed to demonstrate that any impairment Emmanuel suffers was occasioned by an injury to the brain or spinal cord injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period.
