Findings Of Fact Al-Maudi was born on November 20, 2018, at the Hospital located in Port St. Lucie, Florida. A review of the medical records filed in this matter identify the “primary obstetrician” and “obstetrical attendant” as “Zollicoffer.” The records do not name any other physician who participated in the course of labor, delivery, or resuscitation in the postdelivery period for Al-Maudi. To supplement its motion, NICA produced from its official records a payment history which shows that, in 2018, Dr. Charles Zollicoffer did not pay to NICA the annual $5,000 assessment required by physicians who elect to participate in the Plan. See § 766.314(4)(c), Fla. Stat. On the contrary, Dr. Zollicoffer’s payment history reveals that he paid $250 to NICA, which is the specific assessment for physicians who elect not to participate in the Plan. See § 766.314(4)(b)1., Fla. Stat. Further, no evidence was presented demonstrating that Dr. Zollicoffer was exempt from paying the assessment to participate in the Plan in 2018. Therefore, based on the evidence in its records, NICA determined that Petitioner’s claim did not meet the statutory requirements for compensability under the Plan. NICA subsequently filed the Motion for Summary Final Order. Petitioner has not responded in opposition to NICA’s motion or representations.
Findings Of Fact By stipulation filed December 2, 1993, petitioners and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Florida Statutes, a claim was filed on behalf of the above-styled infant against the Florida Birth-Related Neurological Injury Compensation Association (the "Association") on behalf of Andres Romero, Bertha Romero and Alberto Romero (the "Petitioners") for benefits under Chapter 766.301-766.316 (F.S.) 1988. That a timely filed claim for benefits complying with the requirements of F.S. 766.305 was filed by the Petitioners and a timely denial was filed on behalf of the Association. That the infant, Andres Romero, was born at Baptist Hospital [sic] [medical reports and records reflect South Miami Hospital] on July 22, 1991, and that the said hospital was a licensed Florida Hospital and the attending physician was a participating physician within the meaning of Chapter 766, Florida Statutes. That the Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. That Section 766.302(2), Florida Statutes, states that "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 in a hospital, which renders the infant permanently and substantially, mentally and physically impaired. The parties agree that Andres Romero suffers from a right brachial plexus injury. That the parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., who appears on behalf of the Respondents and Leon I. Charash, M.D., who appears on behalf of the Petitioner. 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 this stipulation, the parties request the hearing officer to rule on Petitioner's claim based upon this Stipulation, the attached medical records and the deposition of Dr. Duchowny. The neurological examinations of Andres reveal that he suffered from a "mild" to "moderate" right Erb's palsy related directly to the right brachial plexus injury he received at birth. A brachial plexus injury, the cause of Erb's palsy, is not, however, a spinal cord injury. Moreover, Andres's mental functioning is normal and not impaired due to any birth-related complications.
The Issue Whether Shannon Gillis 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 1. Shannon Gillis (Shannon) is the natural daughter of Robert Gillis and Josephine Gillis. She was born on January 1, 1991, at Mount Sinai Medical Center, Miami Beach, Florida, and her birth weight was in excess of 2500 grams. 3 2. The physician delivering obstetrical services during the birth of Shannon was Ellen Lebow, D.O., 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. 3. Shannon Gillis was delivered vaginally, and the extraction was quite difficult. She suffered a fractured right humerus (an arm bone) and a right Erb’s palsy, related directly to an injury to the right brachial plexus she suffered during the course of delivery. Shannon had an orthopedic consultation within the first few days of life, and her arm was casted until six weeks of age. 4. The brachial plexus injury Shannon suffered during the course of delivery was caused by a stretching of the brachial plexus nerve. The brachial plexus nerve network extends from the lower part of the neck and provides nerve distribution to the arm, forearm and hands. The brachial plexus is not, however, a part of the brain or spinal cord and, consequently, an injury to the brachial plexus is not an injury to the brain or spinal cord. Moreover, the physical impairment from which she suffers, while permanent, is not substantial in nature, and Shannon suffers no mental impairment.
Conclusions For Petitioner: Mark Greenberg, Esquire Stephen N. Zack, Esquire Suite 2800, International Place 100 Southeast Second Street Miami, Florida 33131 For Respondent: W. Douglas Moody, Jr., Esquire Taylor, Brion, Buker & Greene Suite 250 225 South Adams Street Tallahassee, Florida 32302-3189 For Intervenor, Scott Lundeen, Esquire Ellen Lebow, George, Hartz, Lundeen, D.O.: Flagg & Fulmer 4800 LeJune Road Coral Gables, Florida 33146 For Intervenor, John D. Kelner, Esquire Mount Sinai 1200 Courthouse Tower Medical Center 44 West Flagler Street of Greater Miami, Florida 33130 Miami, Inc.: For Intervenors, Ilisa Hoffman, Esquire Charles Stephens, Lynn, Klein, Goldsmith, & McNicholas M.D. and Craig One Datran Center, Suite 1500 Woodard, M.D.: 9100 South Dadeland Boulevard Miami, Florida 33156
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. 10
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.
Findings Of Fact Yancel Peraza was born on April 1, 2009, at Winnie Palmer Hospital in Orlando, Florida. Yancel weighed 3,525 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Yancel. In a medical report dated November 27, 2013, Dr. Willis opined the following: The newborn was not depressed. Apgar scores were 8/9. No cord blood gas was done. No resuscitation was required after birth. The baby had a weak right arm and some mild respiratory distress with grunting and flaring. The respiratory distress resolved shortly after birth. Neurology consultation was obtained at one day of age for evaluation of a weak right arm. Erb’s palsy was suspected. New born hospital course was otherwise uncomplicated. The baby was discharged home two days after birth with Neurology follow-up scheduled for reevaluation of the weak right arm. There 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. The baby did have a brachial plexus injury, but no damage to the spinal cord. NICA retained Michael S. Duchowny, M.D., to perform an independent medical examination of Yancel. Dr. Duchowny examined Yancel on September 25, 2013. In a medical report dated September 25, 2013, Dr. Duchowny reported his findings and gave the following opinion: In summary, Yancel’s neurologic examination is significant for a right Erb’s (upper brachial plexus) palsy involving the C5 and C6 dermatomes. He has a preserved individual finger dexterity and fine motor coordination but is mechanically limited by a fixed elbow contracture on the right. In contrast, there are no other significant findings on the neurologic examination. Despite the absence of supplementary medical records, Yancel’s neurological examination today that is consistent with an Erb’s palsy of the upper cervical nerve roots anatomically places his deficit outside the central nervous system (brain and spinal cord). For this reason, I do not believe that Yancel should be considered for compensation within the NICA program. A review of the file does not show any contrary opinion, 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 opinion of Dr. Willis that Yancel did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate postdelivery period is credited. The opinion of Dr. Duchowny that Yancel has Erb’s palsy, which is outside the central nervous system, meaning that the injury does not involve the brain or spinal cord, is credited.
