The Issue Whether Brianna Renee Joyner, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). Whether the hospital and participating physician provided the patient notice, as contemplated by Section 766.316, Florida Statutes (2005), or whether notice was not required because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes (2005),1 or the giving of notice was not practicable.
Findings Of Fact Stipulated facts Chontee Joyner and David Joyner are the natural parents of Brianna Renee Joyner, a minor. Brianna was born a live infant on February 16, 2006, at Lawnwood Regional Medical Center, a licensed hospital located in Fort Pierce, Florida, and her birth weight exceeded 2,500 grams. Obstetrical services were delivered at Brianna's birth by William B. King, 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. 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 postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired."2 Here, Petitioners and Intervenor took no position on whether Brianna suffered a "birth-related neurological injury." In contrast, NICA was of the view that the record failed to support the conclusion that Brianna's impairments, admittedly substantial, were birth-related. Whether Brianna suffered a "birth-related neurological injury" To address whether Brianna suffered a "birth-related neurological injury," the parties offered a Stipulated Record (Exhibits 1-22), that included the medical records associated with Mrs. Joyner's antepartal course, as well as those associated with Brianna's birth and subsequent development. The parties also offered the deposition testimony of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine, and Raymond Fernandez, M.D., a physician board-certified in pediatrics and neurology with special competence in child neurology, who offered opinions as to the likely etiology of Brianna's impairments. Dr. Fernandez examined Brianna on July 31, 2008, and obtained the following history from Mrs. Joyner: Labor was induced at 39 weeks gestation. Her cervix was 1 cm dilated. She was given Cytotec and Pitocin, and overall duration of labor was 31 hours. Epidural anesthesia was given at 24 hours of labor. Towards the end of the labor, contractions occurred one after the other and she pushed for 2 hours. Vacuum extraction was used, but she was stuck, and she was then extracted manually. Brianna was pale and she did not cry after birth. She was given to Mrs. Joyner for "1 second" and then taken to the nursery because of breathing problems. She was transferred to the NICU because of an apneic spell. Subsequent to discharge she was referred to several specialist[s]. She was found to have a small patent ductus arteriosus that was not felt to be significant. The neurosurgeons found no clinically significant spinal abnormalities. She required PE tubes and tonsillectomy and adenoidectomy because of recurrent ear infections and apneic spells. Hearing is normal. Genetics and neurology have not arrived at a specific diagnosis. She has been enrolled in a developmental therapy program through the Early Steps Program, and has improved slowly, but she remains delayed. Brianna sat straight without support at about 13 months of age. She ambulates by scooting in the sitting position, by pulling with her legs and balancing with her arms. She tries to pull up, but only if offered assistance and encouragement by holding her hands. She reaches for objects, manipulates toys but does not play with them meaningfully, although she likes noisy toys. She rarely puts food in her mouth (Cheerios sometimes). She babbles, but no words are spoken. She does not seem to understand spoken language, but does respond to visual cues. She lifts her arms when a shirt is about to be put on. She plays pat-a-cake, but not consistently. Eye contact is improving. She smiles and is loving with family members, and tends to be anxious in the presence of strangers. She bangs blocks together, but does not stack them. She does not engage in imaginative play. She likes to be read to, and helps turn pages. She watches her younger brother and follows him around the house, and laughs when he does funny things. Physical examination revealed the following: Recent weight was 27 pounds. Head circumference 47.25 cm (approximately 20th percentile). . . . Brianna was alert. She was anxious when approached, and comforted by her mother. She did not babble. No words were spoken. Eye contact was limited. She did not point. Mainly, she sat on her mother's lap and stared about the room and sometimes looked at me. There was no indication that she understood basic verbal requests. She did not point to body parts. She was not interested in toys, and pushed them away when offered. There were no specific dysmorphic features. She has 2 hyperpigmented macular-papular skin markings on her back. One is over the thoracic spine, and the other is to the right of midline. Pupils were equal and briskly reactive to light. Eye movement was full. She tracked visually, but eye contact was limited. Face was symmetric. She swallowed well. Low axial and proximal tone, but normal tone distally in extremities. No obvious weakness noted. She sat independently. She stood and took steps, but only with both hands held by her mother. There was no involuntary movement. Deep tendon reflexes 1+ throughout. Liver and spleen were not enlarged. Funduscopic examination was limited, only able to note normal red reflexes and unable to visualize optic nerves. She inconsistently turned toward sounds and when her name was called. Based on his evaluation of July 31, 2008, as well as his review of the medical records, Dr. Fernandez was of the opinion that Brianna was permanently and substantially mentally and physically impaired. However, with regard to etiology, Dr. Fernandez was of the opinion that Brianna's impairments were, more likely than not, caused by a genetic abnormality, as opposed to a brain injury caused by oxygen deprivation or mechanical injury. In so concluding, Dr. Fernandez observed that the record did not provide evidence of an acute brain injury due to hypoxia or mechanical trauma during labor and delivery. Rather, he noted: There was mild shoulder dystocia but no evidence of upper extremity weakness. There was some medical instability after delivery but no evidence for an acute encephalopathy. Following a single fluid bolus she was then medically stable and began feeding well by the end of day 1. Hypotonia was noted initially and it has persisted without evolution or evidence of spasticity or involuntary movement. The initial brain CT scan [of February 20, 2006] showed no hemorrhage and later brain MRI [of May 18, 2006] was normal. Finally, Dr. Fernandez pointed to the report of Charles Williams, M.D., a geneticist associated with Shands Children's Hospital at the University of Florida, Division of Pediatric Genetics, where Brianna had been seen because of her developmental delay and austic-like features. That report, following chromosome analyses, identified a chromosome deletion, a genetic abnormality, that in Dr. Fernandez's opinion likely explains Brianna's global delay and physical findings. Dr. Willis reviewed the medical records associated with Mrs. Joyner's antepartal course; those associated with Mrs. Joyner's labor and delivery, including the fetal heart rate monitor strips; and those associated with Brianna's newborn course. Based on that evaluation, Dr. Willis was of the opinion that Brianna did not suffer a brain injury caused by oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period. In so concluding, Dr. Willis observed there was no significant fetal distress on the fetal heart monitor during labor; the baby's Apgar scores were normal (8 at one and five minutes); the baby did not require any significant resuscitation at birth (only suctioning and blow-by oxygen); and CT scan of the head on February 20, 2006, was negative, without evidence of hypoxic changes. When, as here, the medical condition is not readily observable, issues of causation are essentially medical questions, requiring expert medical evidence. 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."); Ackley v. General Parcel Service, 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The determination of the cause of a non-observable medical condition, such as a psychiatric illness, is essentially a medical question."); Wausau Insurance Company v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obligated to present expert medical evidence establishing that causal connection."). Here, the opinions of Doctors Fernandez and Willis were not controverted or shown to lack credibility. Consequently, it must be resolved that the cause of Brianna's impairments was most likely a developmentally based genetic abnormality, as opposed to a "birth-related neurological injury." See 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 notice issue Apart from issues related to compensability, Petitioners have sought an opportunity to avoid a claim of Plan immunity in a civil action, by requesting a finding that the notice provisions of the Plan were not satisfied by the participating physician and the hospital. § 766.309(1)(d), Fla. Stat. See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997)["A]s a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery."). Consequently, it is necessary to resolve whether the health care providers complied with the notice provisions of the Plan. § 766.309(1)(d), Fla. Stat.; Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearing, 948 So. 2d 705, 717 (Fla. 2007)("[W]hen the issue of whether notice was adequately provided pursuant to section 766.316 is raised in a NICA claim, we conclude that the ALJ has jurisdiction to determine whether the health care provider complied with the requirements of section 766.316."). The notice provisions of the Plan At all times material hereto, Section 766.316, Florida Statutes (2005), prescribed the notice requirements of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. Section 395.002(9)(b), Florida Statutes (2005), defined "emergency medical condition" to mean: (b) With respect to a pregnant woman: That there is inadequate time to effect safe transfer to another hospital prior to delivery; That a transfer may pose a threat to the health and safety of the patient or fetus; or That there is evidence of the onset and persistence of uterine contractions or rupture of the membranes. The Plan does not define "practicable." However, "practicable" is a commonly understood word that, as defined by Webster's dictionary, means "capable of being done, effected, or performed; feasible." Webster's New Twentieth Century Dictionary, Second Edition (1979). See Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001)("When necessary, the plain and ordinary meaning of words [in a statute] can be ascertained by reference to a dictionary."). Resolution of the notice issue When, as here, the Petitioners dispute that the healthcare providers complied with the notice provisions of the Plan, "the burden rest[s] on the health care providers to demonstrate, more likely than not, that the notice provisions of the Plan were satisfied." Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 880 So. 2d 1253, 1260 (Fla. 1st DCA 2004). Here, the parties' Pre-Hearing Stipulation and Stipulated Record (Exhibits 1-22) provide no such evidence. Consequently, it must be resolved that Lawnwood Regional Medical Center and William B. King, M.D., failed to establish they complied with the notice provisions of the Plan, or that any such failure was excused because the patient presented in an "emergency medical condition" or the giving of notice was otherwise "not practicable."3
Findings Of Fact Lukas was born on December 23, 2017, at Sacred Heart Hospital, located in Escambia County, Florida. Donald Willis, M.D. (Dr. Willis) was requested by NICA to review the medical records for Lukas. In a medical report dated January 14, 2020, Dr. Willis summarized his findings and opined in pertinent part as follows: In summary, labor was induced at 37 weeks due to a prior fetal demise. The newborn was depressed at birth with Apgar scores of 1/6/7. Bag and mask ventilation was required for 2-minutes. The initial blood gas after birth had a base excess of -16. The baby was anemic at birth. Evaluation identified adrenal hemorrhage as the etiology for the anemia. MRI on DOL 9 showed a small subarachnoid hemorrhage. The mother was being treated with Lovenox, an injectable anticoagulant. Lovenox does not cross the placenta and would not be factor in the fetal adrenal or subarachnoid hemorrhage. The adrenal and subarachnoid hemorrhage were more likely related to birth related hypoxia. There was an apparent obstetrical event that resulted in oxygen deprivation to the brain. Based on the cord blood gas pH >7.1, it is unlikely any significant oxygen deprivation occurred prior to birth. However, some degree of oxygen deprivation likely occurred in the immediate post-delivery period, based on the base excess of -16 on the initial blood gas in the nursery and both adrenal and subarachnoid hemorrhages identified by ultrasound. I am unable to comment on the severity of the brain injury. NICA retained Raj D. Sheth, M.D. (Dr. Sheth), a medical expert specializing in maternal-fetal medicine and pediatric neurology, to examine Lukas and to review his medical records. Dr. Sheth examined Lukas on February 18, 2020. In a medical report dated March 8, 2020, Dr. Sheth summarized his examination of Lukas and opined in pertinent part as follows: In SUMMARY, Lucas’s [sic.] neurological examination reveals evidence of behavioral problems, and stereotypic behaviors with expressive language delay concerning for autism spectrum disorder, and generalized axial hypotonia and mild appendicular hypertonia evidenced only in gait, with apparent preserved visual acuity, and a history of epilepsy that started at age 6 months and generalized tonic clonic seizures with a history of 4 fever related seizures. Much of Lucas’s [sic.] neonatal course was detailed in the history of present illness. He was born at 37 weeks gestation. Delivery was vaginal with an epidural. The NICU team was called emergently to labor and delivery patient appeared depressed and unresponsive pale. Positive pressure ventilation for about 2 minutes was undertaken. Spontaneous breaths were established at this time. Heart rate improved within 30 seconds of positive pressure ventilation. By 40 minutes of age the patient was active normal tone had a good gag good suck responsive pupils and normal Moro. Serial neuro exams for the next 24 hours of life were normal. He was not felt to meet criteria for brain cooling. MRI revealed a slight extra-parenchymal hemorrhage in the subarachnoid space without significant intra- parenchymal involvement. While he has seizures they did not develop till he was approximately six months old and he was not noted to have neonatal seizures. His head appears to be growing appropriately with regards to head size. He has not had a genetic evaluation or developmental pediatrics evaluation. As such Lucas [sic.]would not appear to meet NICA specified criteria for compensation under the NICA program. 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 that it is unlikely that any significant oxygen deprivation occurred prior to the birth of Lukas. Dr. Willis’s opinion is credited. There are no expert opinions filed that are contrary to Dr. Sheth’s opinion that Lukas should not be considered for inclusion in the NICA program. Dr. Sheth’s opinion is credited. The Unopposed Motion for Summary Final Order states that “Respondent has conferred with Petitioners’ attorney and is authorized to represent that Petitioner is in agreement and not opposed to this motion.”
The Issue At issue in this proceeding is whether Deanna Renea Brown, 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 Petitioners, Sylvia Trice and Johnny Brown, are the parents and natural guardians of Deanna Renea Brown, a minor. Deanna was born a live infant on April 24, 1996, at Lawnwood Regional Medical Center, a hospital located in Fort Pierce, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Deanna's birth was William Bryan King, 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. Deanna's birth At or about 6:00 a.m., April 24, 1996, Ms. Trice (with an estimated date of delivery of May 8, 1996, and the fetus between 37 and 38 weeks gestation) awoke, while at home in bed, with contractions/cramping and vaginal bleeding. Suspecting a placental abruption, which she had experienced with a previous pregnancy, Ms. Trice immediately telephoned her physician's office and was advised to proceed to the emergency room at Lawnwood Regional Medical Center. Ms. Trice presented at the Lawnwood Regional Medical Center emergency room at approximately 6:25 a.m., April 24, 1996, with the complaint of "bleeding, contractions." Admission assessment noted the membranes intact, the presence of vaginal bleeding, a closed cervix, and a fetal heart rate of 130 beats per minute. The admission notes further reveal that Dr. King was notified of Ms. Trice's evaluation at 7:00 a.m., and that Ms. Trice apparently remained in the emergency room until 8:05 a.m., when, following Dr. King's arrival, she was admitted to a labor room for further evaluation. Regarding that evaluation, the record reveals that extending from approximately 8:05 a.m. to 9:00 a.m., external fetal monitoring was reassuring, with a fetal heart rate baseline of 130 beats per minute, average long term variability, accelerations, and no apparent decelerations. Monitoring further revealed uterine activity at every 3 minutes, with a duration of 50 to 60 seconds, of moderate intensity. The record further reveals that, following admission to the labor room, Dr. King performed a vaginal examination which revealed a moderate amount of bright red blood, with small clots. The examination further revealed that "the cervix was closed, soft, presenting part out of the pelvis." Diagnosis of suspected abruption was made, which was confirmed by ultrasound, and it was resolved to deliver by cesarean section. Ms. Trice was moved to the operating room at or about 9:25 a.m., surgery started at 9:42 a.m., and Deanna was delivered at 9:47 a.m., without apparent difficulty. During the cesarean section, abruption with retroplacental clot was confirmed. On delivery, Deanna evidenced a spontaneous cry, but weak respiratory effort despite a heart rate above 120 beats per minute. Deanna was suctioned and accorded oxygen by bag/mask and blowby, with improved color and muscle tone. Otherwise, no intervention was required. Apgar scores were recorded as 7 at one minute and 8 at five minutes. The Apgar scores assigned to Deanna are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute Deanna's Apgar score totaled 7, with heart rate and reflex irritability being graded at 2 each, and respiratory effort, muscle tone, and color being graded at 1 each. At five minutes, Deanna's Apgar score totaled 8, with heart rate, respiratory effort, and muscle tone being graded at 2 each, and reflex irritability and color being graded at 1 each. Such scores are not consistent with an acute neurologic insult. Following a brief stay in the intermediate nursery, Deanna was transported to the newborn nursery, where she remained until she was discharged with her mother on April 27, 1996. Notably, the newborn nursery admission assessment, at 10:30 a.m., was grossly normal, and there is no evidence of any significant complication during her stay in the hospital. Deanna's subsequent development Deanna's early development was apparently without any significant complication until three to four months of age when she was observed to be nonresponsive to loud sounds, and at or about eleven months of age when evidence of hypotonia was observed and she was seen by Dr. Luis Bello, a physician associated with the Palm Beach Neurology Group. In his report of April 7, 1997, Dr. Bello noted the results of his evaluation, as follows: Deanna was seen in follow-up visit today after she had an MRI. She is an 11-month- old-youngster that I saw at the DEI Clinic in Stuart. The child has evidence of hypotonia. The child is still not able to sit up or walk. She has hypotonia that was assessed to be a sign of underlying brain dysfunction. There has not been history of regression. She had a history of abruptio placentae. On examination today, her head circumference is 46 cm which is close to the 50th percentile. The child did not have dysmorphic features. She still remains with the axial and distal hypotonia. Reflexes remain normal with plantar responses downgoing. I had the chance to review the MRI of the brain today at St. Mary's Hospital. The MRI of the brain demonstrated the presence of poor myelination pattern, especially in both parietal regions. There is also evidence of increased signal in the posterior occipital regions which suggests the presence of a mild degree of leukomalacia. No evidence of ventricular asymmetry was noticed . . . . IMPRESSION: This young [child] remains with history of hypotonia which appears to be secondary to the presence of some degree of leukoencephalopathy associated with poor myelination pattern. Certainly it is consistent with an insult that may be related to the abruptio placentae that has now resulted in delay in the gross and fine motor skills. This is consistent with the presence of static encephalopathy. At the present time it is quite unpredictable, when the child is going to be achieving milestones. Intense PT, occupational therapy, and speech therapy will be needed. The parents have inquired about the possibility of mental retardation and cerebral palsy. Certainly, at the present time it is quite unpredictable because many of the youngsters like this could catch up with normal development with intense therapy. Since September 1997, Deanna has been followed through Children's Medical Services. There, Deanna presented for her initial pediatric screening visit with Dr. Robert Schloegel on September 17, 1997. Dr. Schloegel reported the results of that visit, as follows: . . . This child has been referred by the Community Health Center in Ft. Pierce for evaluation of elevated calcium and phosphate levels in her serum. She has also been recently diagnosed with severe hearing loss. She has been evaluated at the Hear Center in Port St. Lucie as well as having a BAER testing done at St. Mary's this last summer. She is being fitted for hearing aids in the near future. She has also had significant developmental delays. She is a client of the Early Intervention Program and is currently getting occupational and physician therapies. According to the mother, this 16-month-old child is just able to sit up on her own. She cannot crawl, she cannot walk. She does wave and socially interacts, although she does not have any speech development, apparently secondary to severe hearing problem. She has been seen by the neurologist, Dr. Bello, through a recommendation of the Early Intervention Program. An MRI was done that did show delayed maturation of the white matter. No other specific abnormalities. She has had some blood testing including chromosomes done that were apparently normal . . . . PHYSICAL EXAMINATION: . . . . EXTREMITIES: Grossly normal. She had good ROM. There was no spasticity noted. Her reflexes were brisk bilaterally, symmetrical. NEUROLOGIC EXAMINATION: She was able to sit on her own. When placed on her stomach, she could not get up to a crawling position. She did not support her own weight. Again, there was no speech. ASSESSMENT: Developmental delay, mainly gross motor and speech. Apparently severe hearing loss bilaterally . . . . Deanna continued to be followed at Children's Medical Services through physicians associated with the Pediatric Clinic, Endocrine Clinic, Neurology Clinic, Genetic Clinic, Orthopedic Clinic, and ENT Clinic until at least March 2000, and was seen at the Department of Otolaryngology, Shands Health Care, on November 16, 2000, for a cochlear evaluation. Impression during the course of treatment at Children's Medical Services was cerebral palsy, with mild developmental delay, and significant delay in speech development, secondary to severe bilateral deafness. On June 5, 2001, following the filing of the subject claim, Deanna was examined by Dr. Michael Duchowny, a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neuropsychology. Dr. Duchowny reported the results of his neurology evaluation, as follows: PHYSICAL EXAMINATION reveals Deanna to be alert and cooperative. She weighs 48-pounds and is 42 inches tall. The head circumference measures 51.2 cm and the fontanelles are closed. There are no cranial or facial anomalies or asymmetries. The skin is warm and moist without cutaneous stigmata. She has antimongoloid slant to her eyes, but no other dysmorphic features. The spine is straight without dysraphism. Hearing aids are noted in both ears. The neck is supple without masses, thyromegaly or adenopathy and the cardiovascular, respiratory and abdominal examinations are unremarkable. NEUROLOGICAL EXAMINATION reveals Deanna to be alert, pleasant and cooperative. There is an absence of spoken language, but she can communicate with her mother in simple sign language. This appears rudimentary however and she clearly is not communicating at an age appropriate level. She says some words but they lack intonation as one might expect in a hearing impaired child. She has an appropriate attention span for age and is socially interactive and playful. There is good central gaze fixation with conjugate following movements and the pupils are 3 mm and briskly reactive to direct and conceptually presented light. The funduscopic examination discloses well demarcated disc margins without optic pallor. The eye grounds are negative. There are no facial asymmetries. The tongue and palate move well. Motor examination reveals mild generalized hypotonia without atrophy, focal weakness or fasciculations. There are no adventitious movements. The outstretched hands are held in a symmetric fashion with minimal dystonic posturing. She cannot perform rapid alternating movement sequences. The deep tendon reflexes are 2-3+ bilaterally with both plantar responses in flexion. Her gait is stable and appropriately based. She turns well. The sensory examination reveals no obvious sensitivity to touch of any of the extremities. The neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Deanna presents as a 5-year-old ambidextrous girl with minimal dysmorphism, hearing impairment and hearing based speech impediment. She additionally displays further delay in terms of her expressive communication skills and has mild generalized hypotonia. In his deposition testimony (Respondent's Exhibit 1), Dr. Duchowny addressed the findings of his examination and the significance of Deanna's impairments, as follows: Q. Can you . . . give me a brief overview of what your findings were during that medical examination? A. Yes. Deanna . . . is a hearing impaired five-year-old girl who has no spoken language and communicated with her mother in simple sign language. The communication skills via sign appeared to be rudimentary and she said some words but there was a lack of phonic intonation. I thought that her attention span was appropriate for her age; that she was socially interactive and playful, and she had some minimal problems with coordination and posturing, meaning holding her hands in a mannered form. Also that her muscle tone was slightly decreased for her age level, and that she had what is called an antimongoloid slant or a downward slant to her eyes, which is a dysmorphic feature, but essentially that was the sum total of the abnormalities that were noted on the neurological examination on that day. Q. And did you form an opinion as to the degree of the . . . physical difficulties that Deanna has? A. From the physical standpoint I actually thought that Deanna was functioning essentially at age level. She has . . . some mild hypotonia, but really she was able to perform most movements without difficulty, and certainly appears to have a good functionality. * * * Q. And as to the . . . mental damage that Deanna suffered? A. Well, I think the only findings that can be classified as mental would be her communication skills and I think that the type of speech impairment that she displayed is more likely related to her peripheral nerve deficit than it is to any brain injury. * * * Q. Did you form an opinion as to Deanna's . . . future . . . develop[ment] . . . ? A. Yes, I think that Deanna's prognosis is actually quite good. I think she will have normal or very close to normal motor function and might end up being slightly clumsy, but nothing more serious than that. I think she will continue to have speech problems, but as with other hearing impaired individuals, I would anticipate that Deanna would be able to communicate, nonverbally, primarily by signing. The cause and timing of Deanna's impairments To address the issue of whether Deanna'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, Petitioners offered selected medical records relating to Ms. Trice's antepartum course, as well as those associated with Deanna's birth and subsequent development. Additionally, Petitioners testified on their own behalf, and Respondent offered the deposition testimony of Dr. Duchowny, whose qualifications are heretofore 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 Deanna's impairments, it was Dr. Duchowny's opinion that the detriments Deanna suffers are, more likely than not, developmental in nature, and attributable to an event of unknown etiology which occurred prior to labor or delivery. As for Dr. Willis, he was of the opinion that the medical records revealed no evidence of oxygen deprivation or other trauma associated with Deanna's birth and, moreover, that Ms. Trice was not in labor at the time she presented to the hospital or thereafter. Dr. Willis expressed his views, as follows: Q. Before we get to the actual condition of the child at birth and her hospital course, did you form a conclusion as to whether or not Sylvia Trice was in labor, given the medical records that you reviewed? A. I do not feel that she was in labor. The cervix was closed and the presenting part was out of the pelvis, which would suggest that she was not in labor at the time of her presentation or at the time of delivery. Q. Okay. Please continue with your description of the child's hospital course. A. Well, let me go back and get some things in order a little bit. We do not have the actual fetal monitor strip available from this case, but the nurse's notes are available, which describe about 45 minutes of fetal monitoring that was done after admission to the hospital and prior to her Cesarean section delivery, and the nurse's notes describe a normal fetal rate pattern with normal variability and no fetal distress. At birth the baby's weight was 3,145 grams, consistent with 38 weeks. Apgar scores were 7/8. And at the time of Cesarean section, I should mention that the placental abruption was confirmed. The baby did require some blow-by oxygen and five to six breaths with assisted ventilation with the bag and mask. And otherwise, really no resuscitative efforts were required. The baby went to the intermediate nursery for a brief period of observation and then was transferred to the normal newborn nursery and was discharged home with the mother on day three of life. Q. In your review of the medical records, did you find any indication that the child had suffered a hypoxic or ischemic event during labor or delivery? A. No, I did not find evidence of either of those. Q. In your opinion, did the child evidence any traumatic event during labor or delivery? A. No. Q. Would you describe Deanna Brown's delivery to be that of a normal healthy child? That's correct. I would describe it as normal. The Apgar scores were not low. In fact, the baby did so well after birth, actually no blood gases were done or are available in the chart, and the baby went to the normal newborn nursery shortly after delivery, so essentially a normal newborn. Coverage under the Plan Pertinent to this case, coverage is affordable by the Plan for infants who suffer a "birth-related neurological injury," defined as 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 which renders the infant permanently and substantially mentally and physically impaired." Section 766.302(2), Florida Statutes. Here, the medical records and the testimony of the physicians and other witnesses offered by the parties have been carefully considered. So considered, it must be concluded that the proof failed to demonstrate that Deanna suffered a "birth- related neurological injury" since the proof failed to demonstrate that, more likely than not, her impairments were associated with a 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, or that any injury Deanna may have suffered rendered her permanently and substantially mentally and physically impaired.
Findings Of Fact The Amended Petition named Dr. Wanis as the physician providing obstetric services at Cherica’s birth on February 17, 2014. Attached to the Motion for Summary Final Order is an affidavit of NICA's custodian of records, Tim Daughtry, attesting to the following, which has not been refuted: One of my official duties as Custodian of Records is to maintain NICA’s official records relative to the status of physicians as participating physicians in the Florida Birth-Related Neurological Compensation Plan who have timely paid the Five Thousand Dollar ($5,000.00) assessment prescribed in Section 766.314(4)(c), Florida Statutes, and the status of physicians who may be exempt from payment of the Five Thousand Dollar ($5,000.00) assessment pursuant to Section 766.314(4)(c), Florida Statutes. Further, I maintain NICA's official records with respect to the payment of the Two Hundred Fifty Dollar ($250.00) assessment required by Section 766.314(4)(b)1., Florida Statutes, by all non-participating, non-exempt physicians. * * * As payments of the requisite assessments are received, NICA compiles data in the “NICA CARES” database for each physician. The “NICA CARES physician payment history/report” attached hereto for Dr. Sameh F. Wanis, indicates that in the year 2014, the year in which Dr. Sameh F. Wanis participated in the delivery of Cherica Fremond, as indicated in the Petitioner’s Petition for Benefits, Dr. Sameh F. Wanis did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth- Related Neurological Injury Compensation Plan. Further, it is NICA’s policy that if a physician falls within the exemption from payment of the Five Thousand Dollar ($5,000) assessment due to their status as a resident physician, assistant resident physician or intern as provided in Section 766.314(4)(c), Florida Statutes, annual documentation as to such exempt status is required to be provided to NICA. NICA has no records with respect to Dr. Sameh F. Wanis in relation to an exempt status for the year 2014. To the contrary, the attached "NICA CARES physician payment history/report shows that in 2014, Dr. Sameh F. Wanis paid the Two Hundred and Fifty Dollar ($250) assessment required by Section 766.314(4)(b)1., Florida Statutes, for non- participating, non-exempt licensed physician. The physician payment history/report for Dr. Wanis supports Mr. Daughtry’s affidavit. Petitioner has not offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. Wanis had not paid his $5,000 assessment for 2014. At the time of the birth of Cherica, Dr. Wanis was not a participating physician in the Plan.
