Findings Of Fact Delaney Knill was born on April 10, 2009, at TMH in Tallahassee, Florida. She weighed 3,744 grams at birth. Delaney was delivered by Cesarean section by Dr. George. April Knill was diagnosed with uterine rupture, which resulted in a loss of oxygen to Delaney's brain during labor, delivery, and continuing into the immediate post delivery period. The oxygen deprivation was severe, resulting in brain death. Delaney was pronounced dead on April 14, 2009. At the time of Delaney's birth, Dr. George was employed by Azalea and was a participating physician as that term is defined in section 766.302. Dr. George and Azalea provided notice required by section 766.316 on August 28, 2008. TMH provided notice as required by section 766.316 on April 1, 2009.
The Issue At issue in this proceeding is whether Katherine E. Shearl, 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 1. Katherine E. Shearl (Katherine) is the natural daughter of Barbara Jacobs. She was born a live infant on June 25, 1990, at HCA Northwest Regional Hospital, a hospital located in Margate, Broward County, Florida, and her birth weight was in excess of 2500 grams. 2. The physician providing obstetrical services during the birth of Katherine was Jeffrey Schwartz, M.D., who was not, at the time, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Prenatal Care 3. Ms. Jacobs’ prenatal care was provided by Lherisson Domond, M.D., who was, at all times Material hereto, a participating physician in the Plan. 4. Ms. Jacobs fist sought prenatal care from Dr. Domond on March 29, 1990, and saw him on four occasions thereafter prior to June 25, 1990. Her prenatal course was uneventful, and her estimated date of confinement was established as July 2, 1990. 5. On the morning of June 25, 1990, Ms. Jacobs, accompanied by her boyfriend, Richard Shearl, the father of Katherine, drove 3 to Dr. Domond’s office for the purpose of picking up a prescription for a toothache Ms. Jacobs had been suffering. Upon arrival at Dr. Domond’s office Mr. Shearl went inside to pick up the prescription and while he was gone Ms. Jacobs, who was waiting in the car, suddenly experienced profuse vaginal bleeding. 6. Thereafter, Ms. Jacobs entered Dr. Domond’s office, at which time she continued to hemorrhage significantly. Dr. Domond comforted Ms. Jacobs and monitored the baby with a fethoscope, while an emergency call was placed to 911. Ms. Jacobs was not in labor at the time and Dr. Domond did not conduct a pelvic examination or render any specific gynecological or obstetrical services to her because he was of the opinion that she had sustained an abruption of the placenta. 7. Ms. Jacobs was transported by ambulance to HCA Northwest Regional Hospital, the closest facility to Dr. Domond’s office, and Dr. Domond followed. Dr. Domond did not, however, have staff privileges at that hospital and he did not render any medical services to her in the hospital. Significantly, Dr. Domond remained at the nurses’ station, did not enter the delivery room, and did not participate in the delivery or the provision of any medical care for Ms. Jacobs or Katherine while they were patients in the hospital. 8. Upon arrival at the hospital Ms. Jacobs continued to bleed, but her membranes were intact. She was diagnosed with vaginal bleeding, with deceleration of fetal heart rate, and an emergency caesarian section was performed. The physician providing such services, as heretofore noted, was Dr. Jeffrey Schwartz. The post-operative diagnosis reflected vaginal bleeding-decelerations of the fetal heart rate, abruption of the placenta, and nuchal cord X2.
Conclusions For Petitioner: Barbara Jacobs 609 Northeast ist Street Pompano Beach, Florida 33060 For Respondent: David W. Black, Esquire Frank, Effman & Weinberg, P.A. 8000 Peters Road Plantation, Florida 33324
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 appropriate District Court of Appeal. See, Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v, Carreras, 598 So.2d 299 (Fla. 1st DCA 1992). The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. 10
Findings Of Fact Petitioner alleges that Nala was born on May 23, 2019, at Jackson Memorial North Medical Center in Miami, Florida. Petitioner alleges that Dr. Gutierrez was the physician providing obstetric services and who was present at Nala’s birth. Attached to Respondent’s Motion is the affidavit of Tim Daughtry, custodian of records for Respondent. Mr. Daughtry attests in his affidavit that, in 2019, Dr. Gutierrez did not pay the $5,000.00 assessment prescribed in section 766.314(4)(c), Florida Statutes, required for participation in the Plan. Mr. Daughtry’s affidavit further provides that Respondent has no records to suggest that Dr. Gutierrez is otherwise exempt from payment. To the contrary, Dr. Gutierrez paid the $250.00 assessment required by Section 766.314(4)(b)1., for non-participating, non-exempt licensed physicians. Dr. Gutierrez was not a participating physician in the Plan at the time of Nala’s birth.
Findings Of Fact Ashanti Stephens was born on December 27, 2010, at Bayfront Medical Center in St. Petersburg, Florida. Ashanti weighed 3,570 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Ashanti. In an affidavit dated May 1, 2013, Dr. Willis opined that "[t]here 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 the immediate post delivery period." Raymond J. Fernandez, M.D., a pediatric neurologist, was retained by NICA to perform an independent medical examination of Ashanti. He did so on September 18, 2012. In an affidavit dated May 3, 2013, Dr. Fernandez opined the following within a reasonable degree of medical probability: Ashanti's left upper extremity weakness is due to mechanical injury of the left brachial plexus and cervical nerve roots during delivery, but there is no evidence of mental or physical impairment due to brain or spinal cord injury due to oxygen deprivation or mechanical injury. A review of the file does not show any contrary opinions to those of Dr. Willis and Dr. Fernandez, and Petitioner and Intervenors have no objection to the issuance of a summary final order finding that the injury is not compensable under Plan. The opinions of Dr. Willis and Dr. Fernandez that Ashanti did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or the immediate post-delivery period are credited.
Findings Of Fact Railey Brugman was born on May 25, 2010, at Brandon Regional Hospital in Brandon, Florida. Railey weighed in excess of 2,500 grams at birth. Michael S. Duchowny, M.D. (Dr. Duchowny), was retained by NICA to review the medical records of Railey and her mother and to examine Railey, to determine whether Railey suffers from an injury which rendered her permanently and substantially mentally and physically impaired, and whether such injury is consistent with an injury caused by oxygen deprivation or mechanical injury occurring during the course of labor, delivery, or the immediate post-delivery period in a hospital. Dr. Duchowny evaluated Railey on May 14, 2014. In an affidavit dated May 22, 2014, Dr. Duchowny opined as follows: It is my opinion that Railey’s neurological examination reveals evidence of bilateral upper extremity ataxia, right greater than left, and has multiple dysmorphic features. The dysmorphic features are consistent with the clinical impression of KBG syndrome. However, the findings from the evaluation do not reveal either a substantial mental or physical impairment, and in all likelihood, Railey will continue to progress in the future. I reviewed the medical records sent to me on April 15, 2014[,] which document a history of overstimulation by Pitocin during labor accompanied by fetal distress and brachycardia. Railey was subsequently delivered vaginally with vacuum assistance and weighed 2,680 grams at birth. Her Apgar scores were 6 and 9. Seizures began within the first day of life and an MRI scan done shortly after birth revealed bilateral posterior cerebral hemispheric infarctions. Although the cerebral lesions were likely intrapartum complications, Railey has done remarkably well and has well preserved neurological function. As such, based on the foregoing, it is my opinion that Railey should not be considered for compensation within the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to Dr. Duchowny’s opinion that there is no evidence for a substantial and permanent motor or mental impairment. Dr. Duchowny’s opinion is credited.
The Issue This is a proceeding pursuant to Section 440.13(1)(m), Florida Statutes, concerning a determination as to whether a specific surgical procedure is of an experimental, investigative, or research nature.
Findings Of Fact As conceded by Petitioner's counsel in his opening remarks, the substantive issue in this case ("whether the proposed thoroscopic disc removal procedure recommended by Dr. Reuter is experimental, investigative, or of a research nature") has already been decided by a Judge of Compensation Claims in a proceeding to which the Petitioner and the employer/carrier were parties. The decision of the Judge of Compensation Claims was adverse to the Petitioner. The Petitioner appealed that decision. The First District Court of Appeal affirmed the decision of the Judge of Compensation Claims.5
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Agency for Health Care Administration issue a Final Order dismissing the petition in this case on the grounds that the issues raised are moot by reason of the final decision by the Judge of Compensation Claims, and that further litigation of those issues is barred by res judicata or collateral estoppel. DONE AND ENTERED this 1st day of June, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1999.
Findings Of Fact Madison Carlene Benner was born on May 2, 2008, at Mease Countryside Hospital in Safety Harbor, Florida. On November 21, 2008, a complaint for medical malpractice was filed by Diana Lynn Benner, individually, and as parent and natural guardian of Madison Benner, a minor. The complaint alleged that Tampa Bay Women’s Healthcare Alliance, LLP, d/b/a Tampa Bay Women’s Care (Defendant), acting by and through an agent or employee, delivered Madison. The complaint further alleged that Defendant’s agent or employee applied excessive lateral traction “to the fetal head during the dystocia causing and/or substantially contributing to the brachial plexus injury and/or aggravating a pre-existing condition.” Subsequent to the filing of the medical malpractice action a Guardian Ad Litem was appointed. Shortly thereafter, a settlement agreement was entered into between Diana Benner, individually, and as parent and natural guardian of Madison Benner, a minor, and Anjana D. Patel, M.D.; Tampa Bay Women’s Healthcare Alliance, LLP, d/b/a Tampa Bay Women’s Care; Tampa Bay Women’s Healthcare Alliance, LLP, d/b/a Women’s Care Florida; and First Professionals Insurance Company, Inc. The Settlement Agreement and Release states as recitals the following: Recitals Diana Benner was a patient of Defendants. Madison Benner, the minor, was injured by Defendants during her delivery on May 2, 2008 in Pinellas County, Florida. Claimants allege that the minor’s physical and personal injuries arose out of certain alleged negligent acts or omissions by Defendants and have made a claim seeking monetary damages on account of those injuries. The Release extends to all damages which could have been alleged in the Notice of Intent to Initiate Litigation against the Defendants. The Release does not extend to any other person or entity not identified herein. FPIC is the Defendants’ liability insurer and, as such, would be obligated to pay any claim made or judgment obtained against Defendants which is covered by its policy with Defendants. The parties desire to enter into this Settlement Agreement in order to provide for certain payments in full settlement and discharge of all claims which have, or might be made, by reason of the incident described in Recital A above, upon the terms and conditions set forth below. In exchange for the complete release and forever discharge given to the Defendants and insurer, Diana Benner, individually, and as parent and natural guardian of Madison, received $250,000, $80,000 of which was annuitized. The settlement further states: Release and Discharge In consideration of the payments set forth in Section 2 Claimants hereby completely release, and forever discharge, Defendants and Insurer from any and all past, present or future claims, demands, obligations, actions, causes of action, wrongful death claims, rights, damages, costs, losses of services, expenses and compensation of any nature whatsoever, whether based on a tort, contract, or other theory of recovery, which the Claimants may have, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow out of, the incident described in Recital A above, including, without limitation, any and all known or unknown claims for bodily or personal injuries to Claimants or any future wrongful death claim to Claimants’ representatives or heirs, which have resulted or may result from the alleged acts or omissions of the Defendants. On February 12, 2009, Ms. Benner filed a Motion to Approve Settlement. A two-page letter from the Guardian Ad Litem in support of the settlement was also filed. On March 6, 2009, a hearing was held before Circuit Judge Amy Williams, who approved the settlement. Any claims of Madison’s father were extinguished by the settlement. The Guardian Ad Litem was relieved of further responsibilities. The medical malpractice action was voluntarily dismissed on March 16, 2009. At the time of Madison’s birth, Dr. Patel, who was one of the parties settling with Ms. Benner, was a “participating physician” as that term is defined by section 766.302(7). There is no dispute that Dr. Patel delivered Madison, was named in the Petition as the physician providing obstetric services, and was present at the birth of Madison.
