Findings Of Fact Eleanor was born on August 28, 2017, at Lower Keys Medical Center in Key West, Florida. Eleanor was a single gestation weighing over 2,500 grams at birth. Respondent retained Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, to review the medical records of Eleanor and her mother, Laura Ann Ontiveros, and opine as to whether there was an injury to her brain or spinal cord that occurred in the course of labor, delivery, or resuscitation in the immediate postdelivery period due to oxygen deprivation or mechanical injury. In his report, dated September 9, 2018, Dr. Willis set forth the following: The mother was admitted to the hospital at 37 weeks gestational age in labor. A fetal heart rate (FHR) monitor tracing during labor was reviewed and showed no fetal distress. Delivery was by Cesarean section for arrest of dilation. Birth weight was 2,857 grams. Amniotic fluid was clear. The baby was not depressed at birth. Apgar scores were 8/9. No resuscitation was required. Newborn physical exam states “Healthy Term Newborn.” The baby failed the newborn hearing test in one ear. Newborn hospital course was otherwise uncomplicated and the baby was discharged home on DOL 2. Hearing evaluation after hospital discharge identified hearing loss in one ear. Records also indicate the child had Torticollis and limited mobility. MRI at 7 months of age identified a small Arachnoid cyst, slightly increased extra axial fluid and a simple pineal cyst. There were mention of findings suggestive of hypoxic ischemic encephalopathy (HIE). In summary, pregnancy was essentially uncomplicated. Cesarean section was done during labor for Arrest of Dilation. The baby was not depressed at birth with Apgar scores of 8/9. No resuscitation was required. The baby was discharged home on DOL 2. MRI at 7 months of age did not describe findings consistent with HIE. There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma during labor, delivery or in the immediate post-delivery period. Respondent’s Motion also relies upon Dr. Willis’s January 14, 2019, affidavit, wherein he affirms, to a reasonable degree of medical probability, the above-quoted findings and opinions from the report. Respondent also retained Michael S. Duchowny, M.D., a pediatric neurologist, to review the medical records of Eleanor and her mother, conduct an Independent Medical Examination (IME) of Eleanor, and opine as to whether Eleanor suffers from a permanent and substantial mental and physical impairment as a result of a birth-related neurological injury, as that term is defined in Section 766.302(2), Florida Statutes. Dr. Duchowny reviewed the medical records, obtained historical information from Eleanor’s mother, and performed an IME on November 28, 2018. Respondent’s Motion also relies upon the attached affidavit from Dr. Duchowny, dated January 14, 2019. In his affidavit, Dr. Duchowny testifies, as follows: It is my opinion that: In summary, Eleanor’s examination reveals neurological findings consistent with a diagnosis of ataxic hypotonic cerebral palsy associated with sensorineural and conductive hearing losses. Eleanor has preserved social awareness. It is premature to adequately assess cognitive functioning although her speech output is obviously delayed. She evidences dysmorphism characterized by epicanthal folds and a saddle nasal bridge. A review of the medical records does not disclose any significant risk factors during labor or delivery. Eleanor’s Apgar scores were 8 and 9 at 1 and 5 minutes, and her post-natal course in the newborn nursery was unremarkable. MR imaging performed on April 26, 2018 revealed benign cysts of the right anterior temporal and pineal regions. Based on today’s evaluation and record review, I believe that Eleanor’s neurological disabilities were acquired prior to birth and did not result from either oxygen deprivation or mechanical injury in the course of labor or delivery. In his affidavit, Dr. Duchowny testifies that his opinions are to a reasonable degree of medical probability. A review of the file, including Petitioner’s Response, reveals that no contrary evidence was presented to dispute the findings and opinions of Drs. Willis and Duchowny. Their opinions are credited.1/
The Issue Whether Anthony Wayne Blunt, a minor, suffered a "birth- related neurological injury," as defined by Section 766.302(2), Florida Statutes. If so, whether Petitioner's recovery, through settlement, with the participating physician bars her from recovery under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Petitioner, Jane Blunt, is the mother and natural guardian of Anthony Wayne Blunt, a minor. Anthony was born a live infant on September 24, 1997, at Tenet Healthcare Corporation, d/b/a North Bay Medical Center, a hospital located in New Port Richey, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Anthony's birth was Melchiades J. Loman, 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 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. See also Section 766.309(1)(a), Florida Statutes. Anthony's presentation On March 20, 2002, following the filing of the claim for compensation, Anthony was examined by Michael S. Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital, Miami, Florida. Dr. Duchowny reported the results of that neurological evaluation, as follows: PHYSICAL EXAMINATION reveals Anthony to be alert and impulsive. He weights 46 pounds and is 43 inches tall. The hair is blonde and of normal texture. The skin is warm and moist without cutaneous stigmata. There are no dysmorphic features. The head circumference measures 50.8 cm which falls within standard percentile. There are no cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. Peripheral pulses are 2+ and symmetric. Anthony's NEUROLOGIC EXAMINATION reveals an impulsive behavioral style and short attention span. He is oppositional and the examination is completed with his mother providing restraint. He talked in completed sentences and clearly identified objects, colors and body parts. There is a slight lingual disarticulation. Cranial nerve examination reveals full visual fields to direct confrontation testing and normal ocular fundi. The pupils are 3 mm and briskly reactive to direct and consensually presented light. There are no funduscopic abnormalities. Facial movements are symmetric. The tongue and palate move well. The uvula is midline. Motor examination reveals an asymmetry of the upper extremities whereby there is a more downward slant to the right shoulder and a fixed contracture of the right upper extremity whereby Anthony is unable to fully extend the elbow. In contrast, he has good finger dexterity and well developed pincer grasp. He transfers readily between hands. Muscle bulk and tone appear symmetric. Anthony is however unable to fully extend the right arm above the shoulder and in fact cannot place the right arm in a complete horizontal position parallel to the left. The lower extremity's strength, bulk and tone are within normal limits. Deep tendon reflexes are 2+ in the lower extremities and 1+ in the upper extremities. Plantar responses are down- going. Station and gait are stable although there is diminished arm swing on the right side. Sensory examination is grossly intact to withdrawal of all extremities to touch. The neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Anthony's neurologic examination reveals findings referable to a mild right Erb's palsy and mild developmental delay. He additionally has short attention span and high activity level. I believe that the findings on examination suggest neither a substantial nor permanent impairment of mental or motor functioning. Following his examination, Dr. Duchowny had the opportunity to review Anthony's medical records, and on August 1, 2002, concluded that: [t]he medical records, together with the neurological evaluation do not suggest that Anthony has a permanent or substantial mental or physical impairment of the central nervous system acquired in the course of labor, delivery or resuscitation. Rather, Anthony has a mild right Erb's palsy and evidence of mild learning problems which are developmentally based. Further, in his deposition testimony (Respondent's Exhibit 1), Dr. Duchowny offered the following additional observations: Q. . . . Is it your opinion based upon . . . your evaluation of Anthony Blunt and by your review of the medical records that the only injury suffered by Anthony Blunt in the course of labor and delivery was the Erb's palsy injury? A. Yes. Q. And the reason that injury does not fit within the NICA Statute in your opinion is because it's located outside the central nervous system?[2] A. Yes. Q. Therefore, it wouldn't be considered an injury to the spinal cord? A. That's correct. Q. And there was no brain injury based on your review of the records and your evaluation of the child that was suffered in the course of labor and delivery? A. That's correct. * * * Q. Could you explain just briefly if it's not related to a birth injury what ADHD [Attention Deficit Hyperactivity Disorder] is related to or how it develop[ed]? A. It is related to slow maturation of the brain, it's a developmental disorder. Q. Does that slow maturation of the brain have anything to do in this instance with any type of injury to the brain during labor and delivery based upon your experience and review in this case? A. No. An Erb's palsy, such as that evidenced by Anthony, is a weakness of the upper extremity due to damage to the nerve roots of the upper brachial plexus, and does not involve the brain or spinal cord. Moreover, the impairment Anthony suffers is mild, as opposed to substantial, and there is no evidence of mental impairment. Consequently, while Anthony may have suffered a mechanical injury, permanent in nature (to his right brachial plexus) during the course of birth, he does not qualify for coverage under the Plan.3 Petitioner's settlement with the participating physician By the terms of their Pre-Hearing Stipulation, filed November 26, 2002, the parties agreed, as follows: 3. The underlying medical negligence lawsuit captioned Jane Lynn Blunt and Wayne A. Blunt, Individually and as parents and next of friends of Anthony W. Blunt, a minor, v. Melchiades J. Loman, M.D.; Loman & Loman, M.D., P.A., d/b/a Woman's Care Center Center; Lynda McKenry, CNM; Raul Montenegro, M.D.; St. Petersburg Maternal Fetal Medicine Associates, P.A.; Humana Medical Plan, Inc.; and Morton Plant Hospital Associates, Inc., d/b/a North Bay Hospital, Pinellas County Case No. 99-4566-CI-20, is premised upon injuries allegedly sustained by the Petitioner and Child during the birth of the Child. * * * 9. The Petitioner and Child recovered $270,000 (before attorney's fees) . . . [through settlement of] the lawsuit against Dr. Loman and Humana Medical Plan, Inc.
The Issue Whether Jackson White (Jackson) suffered a birth-related neurological injury, as defined by section 766.302(2), Florida Statutes; and, if so, how much compensation, if any, is awardable pursuant to section 766.31.
Findings Of Fact Jackson was born on August 1, 2014, at Bayfront, in St. Petersburg, Florida. Jackson was a single gestation, weighing over 2,500 grams at birth. Jose Prieto, M.D., was the physician who provided obstetric services at Jackson’s birth. Jackson’s mother, Megan White (Mrs. White), was admitted to Bayfront and her labor was thereafter induced with Pitocin. Her membranes were artificially ruptured 15 hours prior to delivery, with clear fluid present. Delivery was initially attempted vaginally; however, delivery was altered to Cesarean section due to late decelerations and failure to descend and dilate. The records reflect that fetal heart rate decelerations may also have been present. Jackson was delivered in a vertex presentation. Upon delivery, out of a possible score of 10, his Apgar scores were 5, 7, and 8 at one, five, and ten minutes, respectively. Of concern was that his score for “color” was 0 for the first five minutes of life. He was not pink, but rather blue or pale. Additionally, he was not actively responding, but merely grimacing, at the first minute of life. The medical records document that Jackson was experiencing respiratory distress with desaturation. Accordingly, he initially received bulb suctioning, drying, stimulation, and whiffs of oxygen. As he continued to have poor color and perfusion, with grunting and retractions, continuous positive airway pressure by mask was applied. While there was improvement in the oxygen saturation after doing so, Jackson continued to have respiratory distress. Within two hours of birth, Jackson was transferred and admitted to the Neonatal Intensive Care Unit at All Children’s Hospital (All Children’s) for further management. Upon admission to All Children’s, it was documented that his oxygen saturations ranged from 96 percent to 100 percent while utilizing a Continuous Positive Airway Pressure (CPAP) system. His physical examination revealed that he was alert, active, responsive and pink in color. Jackson’s neurologic evaluation upon admission to All Children’s revealed that he was alert, active and responsive with good tone for age; there was symmetrical movement of all four extremities; his reflexes were intact; and that his “[n]eurological examination is appropriate for the baby’s gestational age.” At All Children’s, several chest X-rays were obtained from August 1 through August 3, 2014. Ultimately, the scans revealed that Jackson had a left pneumothorax. Accordingly, the CPAP was discontinued and an “oxyhood was initiated for nitrogen wash out which was discontinued after 22 hours.” Concerned with possible sepsis, Jackson also received seven days of antibiotics. Jackson was discharged home on August 8, 2014. Jackson failed his newborn hearing screen and subsequently underwent repeated testing where he was found to have mild-to-moderate sensorineural hearing loss bilaterally. Jackson has been wearing hearing aids since six months of age. Respondent retained Donald Willis, M.D., who is board- certified in obstetrics, gynecology, and maternal-fetal medicine, to review the available medical records of Jackson and his mother, and opine as to whether there was an injury to Jackson’s brain or spinal cord that occurred in the course of labor, delivery, or resuscitation in the immediate postdelivery period due to oxygen deprivation or mechanical injury. In his report, dated July 26, 2018, Dr. Willis set forth the following, in pertinent part: The mother was admitted for induction of labor at term. Amniotic membranes were ruptured with clear fluid. Fetal heart rate (FHR) monitor tracing was not available for review. Cesarean section delivery was apparently done for failure to decent [sic], but NICU notes suggest fetal heart decelerations were also present. Birth weight was 3,630 grams. Apgar scores were 5/7/8. Respiratory distress was present after birth with poor color, grunting and retractions. Bag and Mask ventilation was required and the baby transferred to All Children’s Hospital for respiratory distress. Grunting and retractions continued at All Children’s Hospital. Chest X-Ray identified a left pneumothorax. 100% hood oxygen was started. Intubation was not required. Cultures were obtained to r/o sepsis and antibiotics given for 7 days. Bacterial and viral (HSV) cultures were negative. The newborn hearing screen was failed. No seizures occurred during the hospital stay. Head imaging studies were not done during the newborn hospital course. The baby was discharged home on DOL 8. Hearing evaluation subsequently diagnosed a sensorineural hearing loss. Genetic testing was negative for familial deafness genes. Developmental delay became a concern at about 10 months of age. Genetic evaluation, including microarray, Fragile-X and metabolic work/up was negative. MRI showed delayed myelination. Etiology was uncertain, but a statement indicated “a very subtle degree of remote insult could be considered.” Follow up MRI at 2 1/2 years of age found similar findings. Neurology evaluation gave a diagnosis of chronic static encephalopathy. MRI of the lumbar spine was normal. In summary, the baby had respiratory distress after Cesarean section delivery. Chest X-Ray identified a pneumothorax. Oxygen was given for respiratory distress, but the baby did not require intubation. No head imaging studies were done during the newborn hospital stay. There were no seizures. Sensorineural hearing loss was diagnosed. MRI for developmental delay showed only some delay in myelination. There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery and the immediate post- delivery period. After authoring the initial report, Dr. Willis received a copy of the fetal heart rate monitoring strips. After reviewing the same, on August 30, 2018, he authored an addendum to his report, which provides, in full, as follows: The fetal heart rate (FHR) monitor tracing during labor was reviewed. The tracing begins at about 05:17 on 08/01/2014. The baseline FHR was normal at 130 bpm. Uterine contractions were about every 5 minutes. The FHR tracing at about one hour prior to delivery is somewhat difficult to interpret due to attempt to place a fetal scalp electrode (FSE). FHR tracing ends at about 21:18 with delivery about 30 minutes after monitor is discontinued. The FHR tracing just prior to removal of the monitor does not suggest fetal distress. Review of the FHR tracing does not change the opinions stated in the letter above, dated 7/26/2014. There was no apparent obstetrical event that would have resulted in oxygen deprivation sufficient to cause brain injury. Dr. Willis was deposed on May 20, 2019. At his deposition, Dr. Willis affirmed the factual findings and medical opinions in the above noted report. In support of his opinion that Jackson did not sustain an injury to his brain or spinal cord in the course of labor, delivery, or resuscitation in the immediate postdelivery period due to oxygen deprivation or mechanical injury, Dr. Willis credibly testified that: 1) Mrs. White’s amniotic membranes were ruptured with clear fluid; 2) the fetal heart rate tracing did not suggest fetal distress; 3) the Apgar scores, although initially low, quickly improved and were inconsistent with an infant that sustained oxygen deprivation or acidosis; 4) Jackson did not exhibit any seizure activity; 5) aside from failing his hearing screen, Jackson did not experience any other organ system failures; and 6) the available MRI reports are inconsistent with Jackson suffering a brain injury at the time of labor and delivery. On May 12, 2017, Jackson presented to Himali Renuka Jayakody, M.D., for a neurological examination. Dr. Jayakody’s office note documents that, “[d]evelopmentally, he had initial normal development but starting around 10 months when he started standing, he appeared very clumsy and was falling over a lot.” After conducting the examination, Dr. Jayakody’s assessment was that Jackson had developmental delay, sensorineural hearing loss, and chronic static encephalopathy. His note further documented that, “[a]part from signal abnormality suggestive of hypomyelination mostly affecting the posterior white matter on MRI, we have not identified any other abnormalities. Clinically, he does not seem to have a progressive disease and has always made improvement over time suggestive of static encephalopathy/cerebral palsy.” NICA also retained Laufey Y. Sigurdardottir, M.D., a pediatric neurologist, to review Jackson’s medical records, conduct an Independent Medical Examination (IME), and opine as to whether he suffers from a permanent and substantial mental and physical impairment as a result of a birth-related neurological injury. Dr. Sigurdardottir reviewed the available medical records, obtained a full historical account from Mrs. White, and conducted and IME on Jackson on August 24, 2018. In her IME report, Dr. Sigurdardottir set forth her factual findings and opinions, which have to be admitted in this matter as part of the stipulated evidentiary record. Her summary findings and opinions are as follows: Summary: Patient is a 4 year old with history of being born via stat C-section due to fetal distress. No clear evidence was present of a neonatal hypoxic ischemic encephalopathy but he has since been diagnosed with cerebral palsy with corresponding MRI findings. His delays are mild in nature. Result as to question 1: Jackson is not found to have substantial delays in motor and mental abilities. Result as to question 2: In review of available documents, there is evidence of fetal distress but no neonatal encephalopathy consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury is reported in neonatal period apart from failing newborn hearing screen. Result as to question 3: The prognosis for full motor and mental recovery is good and the life expectancy is full. In light of evidence presented, I believe Jackson does not fulfill criteria of a substantial mental and physical impairment at this time. Petitioner neither testified nor presented any testimony to refute the findings and opinions of Drs. Willis and Sigurdardottir. Their findings and opinions are credited.
Conclusions This cause came before the undersigned upon the parties’ Joint Motion to Submit Stipulated Factual Record in Lieu of a Contested Hearing (Joint Motion), which was granted on May 22, 2019, and the parties’ proposed final orders.
Other Judicial Opinions Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).
The Issue At issue in this proceeding is whether Susan Lapidus, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary matters Paul Lapidus and Lori Beth Lapidus are the parents and natural guardians of Susan Lapidus (Susan), a minor. Susan was born a live infant on November 5, 1993, at Good Samaritan Medical Center, a hospital located in West Palm Beach, Florida, and her birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Susan was Ronald Koch, M.D., who was at all times material hereto, a participating physician in the Florida Birth- Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Mrs. Lapidus' antepartum course and Susan's birth At or about 1:00 p.m., November 4, 1993, Mrs. Lapidus was admitted to Good Samaritan Medical Center for an oxytocin challenge test (a contraction stress test), with suspected intrauterine growth retardation (IUGR), to assess fetal well- being. At the time, the fetus was at 39 weeks gestation, with an estimated date of delivery of November 17, 1993, and Mrs. Lapidus' antepartum course had not been without complication or risk. Regarding those risk factors, the proof demonstrates that at the time of Susan's conception Mrs. Lapidus (date of birth November 1, 1955) was 37 years of age, with a history of five previous pregnancies. Of those pregnancies, four were aborted (one "therapeutic" in 1979, and the balance "spontaneous" in January 1985, October 1985, and 1990) and one was carried to term and produced a normal, healthy boy (Michael, date of birth, October 21, 1988). Further complicating her pregnancy, the proof demonstrated that (to the extent conceded by Mrs. Lapidus), she smoked approximately 10 cigarettes per day and drank white wine daily (1 glass with dinner) throughout her pregnancy. 1/ Because of her age and other risk factors, Mrs. Lapidus underwent a number of tests during the course of her pregnancy, including an amniocentesis and multiple sonograms which revealed (within the limits of testing accuracy) no apparent cause for concern. Finally, during the month preceding her admission to Good Samaritan Medical Center, Mrs. Lapidus underwent non-stress testing, and ultimately contraction stress testing by oxytocin challenge test (OCT), to assess fetal well-being. 2/ The non- stress tests and oxytocin challenge tests that were administered to Mrs. Lapidus prior to November 4, 1993, were apparently reassuring for fetal well-being and placental integrity. As heretofore noted, Mrs. Lapidus was admitted to Good Samaritan Medical Center at 1:00 p.m., November 4, 1993, for an OCT, which extended until 3:55 p.m., when Pictocin was discontinued. During the test some decelerations were observed late in contractions (late decelerations), consistent with placental aging/diminishing function, and Dr. Koch resolved it would be prudent to admit Mrs. Lapidus for observation overnight and induction of labor in the morning. Mrs. Lapidus was admitted to labor and delivery at about 5:30 p.m., November 4, 1993. External fetal monitoring revealed a fetal heart rate (FHR) of 120 to 130 beats per minute (normal), and mild, irregular uterine contractions (most likely symptomatic of the prior administration of Pictocin). At 5:50 p.m. Mrs. Lapidus was repositioned, and external fetal monitor was positive for accelerations and continued mild, irregular uterine contractions. Assessment at 7:30 p.m. noted continued mild contractions, as well as "variable decelerations [at] intervals but not consistently [with each] contraction," however, beat-to- beat variability was noted to be present. Continued monitoring overnight revealed occasional variable decelerations, but continued beat-to-beat variability. At 7:10 a.m., external fetal monitoring revealed a FHR of 110 to 120 beats per minute, with spontaneous accelerations. Pictocin was administered to induce labor, at 7:30 a.m. contractions commenced (labor began), and an FHR deceleration to 90 to 110 beats per minute for 2 1/2 minutes was observed. Mrs. Lapidus was repositioned to her left side, intravenous fluids (IV) were increased, and FHR returned to a 110 to 120 beat per minute baseline. Beat-to-beat variability in fetal heart rate persisted, and at 8:20 a.m. the membranes were artificially ruptured with clear fluid noted. At or about 9:00 a.m., a FHR deceleration with contraction was noted. Mrs. Lapidus was again repositioned, intravenous fluids increased and FHR accelerated to 150 beats per minute following the contraction. A late deceleration was again noted with the next contraction. At 9:40 a.m., the nurses' notes reveal 3 late decelerations were observed, and Pictocin was discontinued; FHR continued at 130 to 140 beats per minute, with moderate beat-to- beat variability. Vaginal examination at 9:50 a.m. revealed the cervix to be 5 centimeters dilated, effacement at 80 percent, and the fetus at station -2. Contractions were noted as moderate in intensity, with 3 to 5 minute frequency, and a duration of 60 to 70 seconds. At or about 10:10 a.m., an epidural was placed and at 11:45 a.m., with no further decelerations having been observed, Pictocin was restarted. At 11:50 a.m., Mrs. Lapidus' bladder was noted as distended and a foley was inserted to help her void. Contemporaneously, FHR was noted to decelerate to the 60 beat per minute range for 30 seconds. When Mrs. Lapidus was repositioned, FHR returned to the 140 beat per minute range, with accelerations. At 12:29 p.m., the fetal monitor again revealed a late deceleration with contraction; however, it also noted continued moderate beat-to-beat variability and spontaneous acceleration. At 12:50 p.m. another late deceleration was noted and Mrs. Lapidus was repositioned to her right side. FHR remained in the 130 beat per minute range, with moderate beat-to- beat variability. Vaginal examination at 1:25 p.m. revealed dilatation and effacement to be complete and the fetus at station -1. FHR was noted in the 130 to 140 beat per minute range, with moderate beat-to-beat variability. At 1:40 p.m. Mrs. Lapidus began pushing, and at 1:50 p.m. Susan was delivered (6 hours and 20 minutes after labor commenced). Susan had a weak cry and was dusky at birth, and was placed on a warmer, dried, and given oxygen via blow-by. Apgars of 7 and 8 were assigned at one and five minutes, respectively. Cord specimen was obtained, and, when subsequently analyzed, revealed that, at delivery, Susan presented with a normal pH of 7.318. The Apgar scores assigned to Susan 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 a maximum score of 2. As noted, at one minute Susan's Apgar score totalled 7, with heart rate, muscle tone and reflex response being graded at 2 each; respiratory effort being graded at 1; and color being graded at 0. At five minutes, Susan's Apgar score totalled 8 with heart rate, respiratory effort, muscle tone, and reflex response being graded at 2 each, and color being graded at 0. Such scores were normal, and consistent with the delivery of a healthy, vigorous infant. Following delivery, Susan developed slight retractions and coarse respirations, as well as a temperature of 100.2, and was transferred to the neonatal intensive care unit (NICU) for further evaluation and treatment. There, physical examination revealed the following: HEAD: The head is normocephalic. The anterior fontanel is soft. ENT: There is no nasal flaring. The ears are well set. The nasal choanae are patent. Slight protruding tongue. THORAX: The chest is symmetric. There is [sic] subcostal retractions. LUNGS: There are coarse breast sounds. There is audible grunting present. HEART: There is a normal regular rhythm with no murmurs. ABDOMEN: The abdomen is non-distended. There is no organomegaly. The umbilical cord has three vessels. EXTREMITIES: The extremities are symmetric. The hips are normal, without any dislocation or subluxation. The pulses are equal bilaterally. Bilateral simian creases. SKIN: There is no cyanosis, and no rashes are present. There is good capillary refill. GENITALIA: There are no anomalies noted. CNS: The baby is active and alert. There is good muscular tone. Admitting diagnosis (impression) was as follows: 1.- Term 38 weeks appropriate for gestational age female. 2.- Respiratory distress. 3.- Perinatal sepsis suspected. Susan remained in the hospital until November 13, 1993, when she was discharged in satisfactory condition to her parents' care. While in the hospital Susan evidenced the following problems: RESPIRATORY: The patient developed respiratory distress that required no oxygen, and that subsided rapidly. The results of the CXR [chest x-ray] showed no infiltrate, congestion, pneumothorax or other pathology. The heart size is within normal limits. She developed inspiratory stridor. This was considered to be related to a certain degree of laryngomalacia [flacidity of the epiglottis and aryepiglottic folds (a softening of the cartilage in the upper airway), as in congenital laryngral stridor]. 3/ R/O SEPSIS: In view of the initial presentation, the possibility of sepsis was considered. The patient was placed on antibiotics, ampicillin and Claforan in appropriate doses. Results of the cultures were negative. The antibiotics were discontinued on 11/12/93. DYSMORPHIC FEATURES: In view of the dysmorphic features, and the possibility of this has been associated with chromosomes pending, a new chromosome studies was sent on 11/12/93 for extended banding. 4/ Also a renal ultrasound was done on 11/10/93 and the result was negative. Notably, Susan evidenced no neurologic problems or sequela during the course of her admission. Final diagnosis on discharge was as follows: 1.- Term 38 weeks appropriate for gestational age female. 2.- Transient respiratory distress. 3.- Dysmorphic facies. 4.- Bilateral simian creases. 5.- Perinatal sepsis suspected. 6.- Mild degree of laryngomalacia. 7.- Slow feeder. Susan's subsequent development Susan's early infancy was apparently unremarkable until around 10 months of age when her parents became concerned that her development (mental and physical) appeared delayed. Consequently, they sought the advice of Susan's pediatrician and, over time, Susan was referred to, and examined by, a number of medical specialists to assess her condition and to identify its etiology. On June 5, 1995, Susan was evaluated by Amanda Naguiat, M.D., Assistant Professor of Clinical Neurology, University of Miami Children's Hospital Center. Dr. Naguiat's assessment was as follows: . . . Susan appears to have global development delay with relative strength in social interaction. Her exam is significant for diffuse hypotonia and probably some associated weakness, dysmorphic features and depressed deep tendon reflexes. Her yellowish discoloration is secondary to carotenemia. So far, I cannot put her in a definite syndrome, although phenotypically, the only thing that comes to mind here is some of the rhizomelic forms of chondrodysplasia, belonging to the group of peroxisomal disorders. There is a definite need to find etiology for all of these. As discussed with her parents, I would like for her to have an MRI of the brain to look for any malformations or any white matter anomalies that would guide us to further testing. I would like to have some initial metabolic testing, which would include serum quantitative amino acids, urine organic, acids, carnitine total and free levels, and thyroid function tests. I have referred her to Dr. Benke, who they will see this coming Saturday, on June 10, in his clinic up in West Palm Beach, to see if he can shed light on any type of syndrome in view of her dysmorphic features. I concur with the recommendations for her to have early intervention in the form of speech, occupational and physical therapy. As discussed with her parents, I do not believe that her condition will be 'outgrown' and if we do not find any etiology, I would assume that she will follow a static encephalopathy with improvement over time but with persistent impairments. If a cerebral cause for her problems are not found, she should have further investigation for neuromuscular disease, as I am concerned that there might be a concomitant peripheral nervous system problem in view of her hypotonia and weakness and depressed reflexes. I will arrange a followup with them as soon as all these tests are done. On July 17, 1995, an MRI of the brain without contrast was performed and interpreted by Walter H. Forman, M.D. The MRI was considered normal and revealed no changes or anomalies one would associate with hypoxic injury. Specifically the MRI revealed that: The ventricles are normal in size and position. No masses or mass effects are identified. I don't see any areas of abnormal signal. The myeline maturation appears to be normal for age. On October 7, 1995, Susan was seen by Paul Benke, M.D., Ph.D., Director, Clinical Genetics, University of Miami School of Medicine, for a second time in a follow-up visit. 5/ Dr. Benke reported the results of that visit as follows: I saw this 23 mo old girl with minor anomalies and developmental delay in genetic clinic in Palm Beach Gardens on this date in follow-up. She has made a lot of progress; she can now stand and is starting to talk, she has about 10 words and a sense of humor, and has made up a lot of ground. She has not been sick. The two chromosome studies (including amnio) were sent in to me, and were of sufficient quality that a routine repeat chromosome study would not be helpful. I asked the parents to bring in pictures, since they claimed that pictures of the father, taken as a child, were similar, and I thought there was small, not large resemblance. To my delight (and surprise) the family was quite right about this, and the father had a prominent forehead, low set ears, and slightly small chin as a child. He also had some speech delay, but is very normal now, and these features minimally evident. She has had a lot of OT, PT and speech therapy for the past 3 1/2 months, and the parents attribute a lot of her gains to that. But I think that they have done a lot as well, and have had a positive attitude about her development. She has not been sick, and has had no fever, seizures or other problems. Importantly, she had tracheomalacea, and high pitched breathing, and grew out of it by 1 yr, and the father has a retarded brother. PHYSICAL FINDINGS: Interactive girl with lots of personality, mild dysmorphic features. She is very interactive today. HT: 29 in(?) WT: 22 1/2 lb. HC: 48 cm Head: prominent forehead Eyes: mongoloid slant IC: 3.5, IP: 6.0, IP: 9.5 (mild increase) Ears: +/-low set Nose: slight depressed nasal bridge Chin: small chin, high arched palate Chest: clear, no rales. Heart: [n]o murmur. Abdomen: neg, no masses, organomegaly Genitals: neg. Spine: no scoliosis. Extremities: small hands and feet, hypoplastic 5th toe nail. She is hyperextensible. She has fusiform fingers. Skin: negative Neurological: tone a little better. poor DTR. No localizing finding. Diagnosis: Multiple Minor Anomalies, Probable FG (Optiz Frias) Syndrome. Counseling: Deferred Pending testing. The Opitz Frias is a very variable disorder, compatible with normal intelligence, and mild-moderate effects on intelligence. Affected patients frequently have tracheomalacea or feeding problems, frontal prominence, low set ears, hypertelorism and other findings. Recent research suggests a microdeletion of chromosome #22, determinable by Florescence-in-situ-hybridization (FISH) testing. She has greatly improved, and is functioning at a 12-14 month level today. Recommendations: 1) Fish Testing of chromosome #22. We should be able to have blood sent off to the researchers who do this testing. 2. Get pictures of Paul's retarded brother. 3. See in clinic after testing. . . . A second genetics evaluation of Susan was conducted on January 21, 1998, by Parul Jayakar, M.D., a clinical geneticist associated with the Genetics Center of South Florida. Dr. Jayaker's report of that examination reads as follows: Susan Lapidus came to our office accompanied by her parents, Lori and Paul Lapidus, for a genetics evaluation because she has speech and developmental delay. The patient was born by NSVD at term to a 37 year old gravida 8 para 1061 (2 TAb, 4 SAb) woman. An amniocentesis done because of advanced maternal age was normal, 46,XX. The patient's mother states that she was put on progesterone during her pregnancy because of her history of multiple miscarriages. She also smoked approximately 10 cigarettes per day and drank white wine daily throughout her pregnancy. The patient remained in the NICU for 1 week after delivery because she had a strep infection. The patient has not had any major hospitalizations or illnesses. An MRI of the brain was normal at approximately 2 1/2 years of age. Her vision and hearing have both been evaluated and are reportedly normal. * * * Physical Examination: Height of 39 inches (90%), weight 31 lb. (25%), head circumference 48.5 cm (5%). Patient was awake, alert and active, pupils equal and reactive to light, no ectropien, with temporal receding hairline, good hair growth, prominent glabella, slight hypertelorism, flat long philtrum, thin upper lip (? familial), slightly high arched palate, broad nasal root. Chest - no heart murmur; abdomen - soft, no hepatosplenomegaly; genitalia female. Extremities - right single palmar crease, slightly hypoplastic toenails. Neurologically - vocabulary limited to monosyllables, no obvious cranial nerve palsies. Impression: 4 year old with Speech and developmental delay Minor dysmorphic features Susan, in the past, has been seen by Dr. Benke who contemplated the diagnosis of Optiz syndrome. At the moment I do not feel that she meets the clinical criteria for Opitz syndrome and the chromosomes done revealed a 46,XX, normal female karyotype and the FISH for chromosome 22 microdeletion was normal. 6/ She was seen also, in June of 1995, by Dr. Naguiat at that time the Mom reports that a significant workup was done including MRI of the brain and hearing test which were all normal (verbal report, I do not have these reports in hand). As Mom tells me, an ophthalmology evaluation was also done which was also normal. She has been receiving OT, PT and speech therapy since 17 months of age but lately her speech therapy has been discontinued in her recent school. I feel she is in great need of speech therapy to be able to increase her vocabulary for day to day life. Based on her clinical features I do not feel that she has characteristics of any particular syndrome, the only things which come to mind is the hypoplastic toenails, the long philtrum and the thin upper lip which may be reminiscent of ? Fetal Alcohol Effects (Mom had 1 glass of white wine with dinner every day). I do not think this amount of alcohol intake would cause full blown Fetal Alcohol Syndrome. Certainly some of her facial characteristics also appears to be familial. Therefore, I feel that right now I am unable to label her in any definite syndrome. 7/ As explained to the family, she clinically does not seems to have a progressive neural degenerative condition since she has not have [sic] regression of milestones and seems to be doing much better. The dispute regarding compensability Here, there is no dispute that Susan suffers neurologic dysfunction, mental and physical. What is at issue is whether that dysfunction may reasonably be described as permanent and substantial and, more fundamentally, whether the cause (etiology) of such dysfunction is, more likely than not, attributable to "an injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," as required for coverage to be afforded under the Plan. Section 766.302(2), Florida Statutes. With regard to the issue of causation and timing, Petitioners are of the view that Susan's presentation is consistent with a brain injury caused by oxygen deprivation which occurred during the course of labor and delivery. In contrast, Respondent is of the view that the proof is not consistent with brain injury caused by oxygen deprivation during or immediately following birth and must, therefore, be attributable to some other etiology. Respondent's view of the proof has merit, and it is unnecessary to address whether Susan's neurologic dysfunction is permanent and substantial. The etiology (genesis) of Susan's neurologic dysfunction To address the etiology of Susan's neurological dysfunction, the parties offered selected records relating to Mrs. Lapidus' antepartum and intrapartum course, as well as for Susan's birth and subsequent development. Portions of those records have been addressed supra, and further salient portions will be addressed infra. The parties also offered the opinions of three physicians, at hearing, to address the likely etiology of Susan's presentation. Those physicians were Seth J. Herbst, M.D., a board-certified obstetrician and gynecologist; Jaime Baquero, M.D., a pediatric neurologist, board-certified in pediatrics and board-eligible in neurology; and Charles Kalstone, M.D., a board-certified obstetrician and gynecologist. 8/ The medical records and other proof, including the testimony of the physicians offered by the parties, have been carefully considered. So considered, it must be concluded that the proof does not demonstrate (or allow a conclusion to be drawn with any sense of confidence) that, more likely than not, Susan's neurologic dysfunction is related to an "injury to the brain . . . caused by oxygen deprivation . . . [which] occurr[ed] in the course of labor, delivery, or resuscitation in the immediate post-delivery period." In reaching such conclusion, it is observed that Susan's course pre-delivery and post-delivery was inconsistent with hypoxic or ischemic injury having occurred during the course of labor, delivery, or resuscitation. First, the evidence documenting fetal heart rate from admission through the period of labor and delivery does not support the conclusion that Susan suffered an acute intrapartum event that led to hypoxic or ischemic injury. Notably, while there were multiple late decelerations (which evidenced periods of diminished oxygenation or, stated differently, periods of transient hypoxia) the fetal monitoring tape also provided reassuring evidence of fetal wellbeing (by documenting good beat-to-beat variability, spontaneous accelerations, normal FHR baseline, and the absence of a progressive or persistent pattern of decelerations). Given such positive evidence of fetal reserve, it is unlikely that fetal oxygenation was significantly adversely affected during labor and delivery. Further militating against the conclusion that Susan's impairments were caused by oxygen deprivation during labor or delivery are the numerous inconsistencies between Susan's presentation and development, and the clinical findings one would expect had she suffered hypoxic ischemic encephalopathy, secondary to perinatal asphyxia, during that period. For example, Susan's Apgars were within the normal range; her breathing at birth was essentially stable; cord pH was normal; and she did not evidence neurologic problems in the neonatal course. Finally, the results of Susan's MRI were normal and inconsistent with an hypoxic ischemic brain injury. Given the proof, it cannot be concluded that Susan's neurologic dysfunction resulted from a brain injury caused by oxygen deprivation or that it was related to an event which may have occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Notably, Susan's presentation and neonatal course were not consistent with an acutely acquired neurological injury caused by oxygen deprivation, and it is improbable that she could have experienced an acute event during labor and delivery, or immediately thereafter, without evidencing clinical symptoms of such damage. Conversely, Susan's presentation, and Mrs. Lapidus' prenatal history, suggest a genetic or congenital anomaly (or syndrome) as the more likely etiology for Susan's presentation.
The Issue The issue in this case is whether Daquan T. Smith, Jr. (Daquan) suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan).
Findings Of Fact Daquan was born on November 22, 2015, at Florida Hospital, 601 East Altamonte Drive, Altamonte Springs, Florida. The pregnancy, labor, and delivery of his mother, Verdale T. Robinson, were managed by employees of Florida Hospital and Dr. Norma Waite. At all times material, both Florida Hospital and Dr. Waite were active members under NICA pursuant to sections 766.302(6) and (7). Daquan was born a live infant on November 22, 2015. Daquan was a single gestation, weighing 2,730 grams at birth. Daquan was delivered by Dr. Waite, who was a NICA participating physician on November 22, 2015. Petitioners contend that Daquan suffered a birth- related neurological injury and seek compensation under the NICA Plan. Respondent contends that Daquan has not suffered a birth- related neurological injury as defined by section 766.302(2). The medical records reviewed by Dr. Willis reflect that Daquan’s mother was admitted to the hospital at 36 6/7 weeks gestational age with vomiting, pain, and blood in the urine. She was started on antibiotics for a suspected UTI and observed. Her blood pressure began to elevate, and she was transferred to Florida Hospital for high-risk consultation. Labor was induced for suspected preeclampsia. The fetal heart rate (FHR) monitor during labor was reviewed. The initial FHR pattern showed a normal baseline rate and normal FHR variability. Variable decelerations with decreased variability developed about 30 minutes prior to delivery. Daquan’s delivery was by spontaneous vaginal birth. Daquan was initially depressed with Apgar scores 5/7/9. At birth, there was no respiratory effort, but heart rate was stated to be good. Bag and Mask ventilation was started without improvement. Daquan required intubation for respiratory distress and quickly improved, allowing extubation to nasal CPAP. Daquan started crying and his muscle tone improved. At this point Daquan was transferred to the NICU. The initial blood gas was a venous gas done about 15 minutes after birth and the pH level was 7.23, with a normal base excess. The initial arterial blood gas was done 90 minutes after birth, again with a normal pH level of 7.4. Apnea and bradycardia occurred with onset of seizure activity about 14 hours after birth. Oxygen desaturations were in the ‘70s. Bag and mask ventilation was required for a short period of time, followed by nasal oxygen. Phenobarb was started to control seizure activity. Daquan’s EEG readings were abnormal, confirming seizure activity. Head Ultrasound was normal. CT scan on DOL 2 showed minimal acute intraventricular hemorrhage and a subdural hemorrhage. MRI at seven weeks showed evidence of brain injury with volume loss. At the request of NICA, Dr. Willis, who is board- certified in obstetrics and gynecology and maternal-fetal medicine, reviewed the medical records relating to Daquan’s birth. In his report dated June 21, 2017, Dr. Willis opined that, [t]here was no apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery or the immediate post delivery period. At the request of NICA, Laufey Y. Sigurdardottir, M.D., who is board-certified in neurology, reviewed Daquan’s medical records and performed an independent medical examination of Daquan on May 17, 2017. Dr. Sigurdardottir opined, in pertinent part, that: Daquan is a 17 month old with history of neonatal seizures, after induced labor for maternal hypertension and pyelonephritis. No evidence of acute hypoxic episode during active labor and blood gas within hour after birth did not indicate significant asphyxia. MRI performed at 6 weeks of age does have some findings consistent with hypoxic ischemic injury but timing is hard to determine as being within active labor and delivery. Patient has delays in his development but as he is able to walk unassisted (short distances) at 17 months and is using gestures for yes and no, I do not feel that he has established permanent substantial motor and mental disability at this time. Result of question 1 [Does the child suffer from a permanent and substantial mental and physical impairment?]: Daquan is found to have delays in motor and language development but is making progress and is walking independently at this time therefore a permanent and substantial physical and mental impairment cannot be determined at this juncture. Result of question 2 [If so, was such an impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury? If so, is injury felt to be labor and birth related?]: In review of available documents, although having respiratory distress shortly after birth, there is no clear acute hypoxic event during labor and/or delivery, and fetal heart rate strips were benign. Laboratory tests were not indicative of an acute hypoxic injury. Neonatal seizures were seen but this does not give us a clear timeframe for timing of injury. Result as to question 3 [What is the prognosis and estimate of life expectancy?]: The prognosis for full motor and mental recovery is guarded but his life expectancy is full. Dr. Sigurdardottir's Affidavit reflects her ultimate opinion that "the IME and record review do not support a finding that Daquan suffered a 'birth-related neurological injury.'” Dr. Willis's and Dr. Sigurdardottir's opinions both support a finding that there was no injury to the brain or spinal cord of the infant caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period, which rendered the infant permanently and substantially mentally and physically impaired. Petitioners did not submit or introduce into evidence any expert reports rebutting the opinions of Dr. Willis or Dr. Sigurdardottir.
Findings Of Fact Geneva Wigfall was born alive on April 13, 2015, at the Labor and Delivery Unit of Baptist Medical Center, located in Jacksonville, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Geneva. In a medical report dated November 5, 2017, Dr. Willis summarized his findings and opined in pertinent part as follows: In summary, spontaneous vaginal delivery at term was complicated by a shoulder dystocia and resulting brachial plexus injury. The baby was not depressed at birth. Newborn hospital course did not suggest a birth related oxygen deprivation or mechanical injury to the brain or spine. Delivery was complicated by a shoulder dystocia and resulting brachial plexus injury, but this did not result in loss of oxygen or mechanical injury to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Geneva and to review her medical records. Dr. Sigurdardottir examined Geneva on January 24, 2018. In her medical report Dr. Sigurdardottir summarized her examination of Geneva and opined in pertinent part as follows: Summary: Patient is a 2 year old with history of severe brachial plexopathy from shoulder dystocia during vaginal birth. Result as to question 1: Geneva is found to have substantial delays in motor abilities but no substantial delays in mental abilities. Results as to question 2: In review of available documents, there is evidence of impairment consistent with a neurologic injury to the spinal cord and brachial plexus acquired due to mechanical injury during vaginal birth. Result as to question 3: The prognosis for full motor recovery is poor but the life expectancy is full. In light of evidence presented I believe Geneva does not fulfill criteria of a substantial mental impairment at this time and despite her motor impairment being considerable it doesn’t lead to major functional restrictions. I do not feel that Geneva should be included in the NICA program. I am available for any additional questions, or to review additional medical records if needed. 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 delivery was complicated by a shoulder dystocia and resulting brachial plexus injury, but this did not result in loss of oxygen or mechanical injury to the baby’s brain or spinal cord during labor, delivery or the immediate post-delivery period. Dr. Willis’s opinion is credited. There are no expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Geneva does not fulfill criteria of a substantial mental impairment at this time, and despite her motor impairment being considerable, it does not lead to major functional restrictions. Dr. Sigurdardottir’s opinion is credited.
Findings Of Fact Angel was born on October 14, 2015, at Orlando Health Hospitals located in Orlando, Florida. Based on the hospital records in evidence, Louis Stern, M.D., was the delivering physician for Angel’s birth. Dr. Stern was not a “participating physician” under the Plan at the time Angel was born. See § 766.302(7), Fla. Stat. (Dr. Kuffskie was a “participating physician” for the year in which the injury occurred.) Upon receiving the Petition, NICA retained Donald Willis, M.D., an obstetrician/gynecologist specializing in maternal-fetal medicine, as well as Laufey Y. Sigurdardottir, M.D., a pediatric neurologist, to review Angel’s medical records. NICA sought to obtain an opinion whether there was an injury to Angel’s brain or spinal cord at birth caused by oxygen deprivation or mechanical injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period, and whether that injury rendered Angel permanently and substantially mentally and physically impaired. Dr. Willis reviewed Angel’s medical records and opined, within a reasonable degree of medical probability: [T]here was an apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma during labor, delivery and the immediate post-delivery period. The oxygen deprivation resulted in brain injury. Dr. Sigurdardottir also reviewed Angel’s medical records, as well as examined Angel on August 1, 2018. Dr. Sigurdardottir opined, within a reasonable degree of medical probability: lthough there is evidence of impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury, Angel is not found to have substantial delays in motor abilities. Angel is found to have mild to moderate delays in mental abilities, with a language delay noted on her exam. She has made good progress with her developmental delays and prognosis for full motor and metal recovery is good. A review of the file reveals no contrary evidence to dispute the findings and opinions of Dr. Willis and Dr. Sigurdardottir. Their opinions are credible and persuasive. Based on the opinions and conclusions of Dr. Willis and Dr. Sigurdardottir, NICA determined that Petitioner’s claim was not compensable. NICA subsequently filed the Unopposed Motion for Summary Final Order asserting that Angel has not suffered a “birth-related neurological injury” as defined by section 766.302(2). Neither Petitioners nor Intervenor oppose NICA’s motion.
The Issue The issue in this case is whether Amelia Ann Shold suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Plan.
Findings Of Fact Amelia Ann Shold was born on August 11, 2015, at Baptist Medical Center South located at 800 Prudential Drive, Jacksonville, Florida 32207. The Petition alleged that the child “suffered from brain damage as a result of a prolonged second stage labor.” The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records submitted to NICA in conjunction with the Petition. At all times material, both Baptist and Dr. Tanouye were active members under NICA pursuant to section 766.302(6) and (7). Petitioners contend that Amelia suffered a birth-related neurological injury and seeks compensation under the Plan. Respondent contends that Amelia has not suffered a birth-related neurological injury as defined by section 766.302(2). 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 . . . . (Emphasis added). The term “birth-related neurological injury” is defined in section 766.302(2), Florida Statutes, as: [I]njury 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 Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), as its medical expert specializing in pediatric neurology. Dr. Sigurdardottir reviewed the medical records and conducted an independent medical examination (IME) of the child on November 16, 2017. Dr. Sigurdardottir subsequently rendered a report and opined, in pertinent part, that: Summary: Patient is a 2-year-old girl with history of neonatal focal seizures and evidence of subdural and intraventricular hemorrhage along with several small foci of diffusion restriction in left frontal lobe after prolonged vaginal delivery. She has had a good developmental trajectory and currently exhibits mild right monoparesis and a mild expressive language delay. Substantial motor or mental delays are not noted. * * * In light of evidence presented I believe Amelia does not fulfill criteria of a substantial mental and physical impairment at this time. I do not feel that Amelia should be included in 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. Sigurdardottir. The opinion of Dr. Sigurdardottir that Amelia does not suffer from a substantial mental and physical impairment at this time is credited.
