Findings Of Fact Ashanti Stephens was born on December 27, 2010, at Bayfront Medical Center in St. Petersburg, Florida. Ashanti weighed 3,570 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Ashanti. In an affidavit dated May 1, 2013, Dr. Willis opined that "[t]here was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain or spinal cord during labor, delivery, or the immediate post delivery period." Raymond J. Fernandez, M.D., a pediatric neurologist, was retained by NICA to perform an independent medical examination of Ashanti. He did so on September 18, 2012. In an affidavit dated May 3, 2013, Dr. Fernandez opined the following within a reasonable degree of medical probability: Ashanti's left upper extremity weakness is due to mechanical injury of the left brachial plexus and cervical nerve roots during delivery, but there is no evidence of mental or physical impairment due to brain or spinal cord injury due to oxygen deprivation or mechanical injury. A review of the file does not show any contrary opinions to those of Dr. Willis and Dr. Fernandez, and Petitioner and Intervenors have no objection to the issuance of a summary final order finding that the injury is not compensable under Plan. The opinions of Dr. Willis and Dr. Fernandez that Ashanti did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or the immediate post-delivery period are credited.
Findings Of Fact Daniel Joshua Mayard was born on November 18, 2010, at Joe DiMaggio Children's Hospital in Hollywood, Florida. Daniel weighed 2,585 grams at birth. NICA retained Raymond J. Fernandez, M.D., as its medical expert in pediatric neurology. Dr. Fernandez examined Daniel and reviewed his medical records. In an affidavit dated March 1, 2013, Dr. Fernandez opined as follows: There is clear evidence of substantial mental and motor impairment, but etiology has not yet been determined. There is no evidence in the record for oxygen deprivation or mechanical trauma during labor, delivery, or the immediate post delivery period that explains Daniel's findings. The one minute Apgar score of 2, followed by improved scores of 7 and 8 at 5 and 10 minutes, respectfully, without the need for intubation or ongoing resuscitation indicates stability after an initial brief period of postnasal neurological depression. This is not consistent with an acute anoxic or mechanical insult that explains Daniel's severe mental and motor impairment. Furthermore, there is no evidence in the NICU record for acute multi-organ injury and brain MRI on day three of life was abnormal, but not due to acute hypoxic, ischemic or mechanical injury. The MRI finding on day three is indicative of an abnormality of brain development, cause unknown, that occurred prior to labor and delivery. NICA retained Donald Willis, M.D., as an expert in maternal-fetal medicine to review the medical records of Daniel and his mother. In an affidavit dated February 27, 2013, Dr. Willis opined: It is my opinion that the baby was born by spontaneous vaginal birth and was depressed at birth with a one minute Apgar of 2. Resuscitation with only bag and mask ventilation for one minute and stimulation improved the Apgar score to 7 at five minutes and 9 at ten minutes. Significant oxygen deprivation during labor and birth would be unlikely with normal Apgar scores at five and ten minutes. MRI on DOL 3 did not show any acute features suggestive of hypoxic injury. The MRI finding of reduced brain volume suggests an abnormality of brain development that most likely occurred during fetal development. As such, it is my opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor delivery or the immediate post delivery period. The fetal brain injury and other dysmorphic features are most likely related to abnormalities of fetal development and not oxygen deprivation during birth. A review of the file does not show any opinions contrary to the opinions of Dr. Fernandez and Dr. Willis that Daniel did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate post-delivery period and that Daniel does not have a substantial and permanent mental and physical impairment due to lack of oxygen or mechanical trauma are credited.
Findings Of Fact Aydrian Portuondo was born on October 16, 2014, at South Miami Hospital in Coral Gables, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Aydrian. In a report dated November 7, 2016, Dr. Willis described his findings in pertinent part as follows: Delivery was by spontaneous vaginal birth. Birth weight was 3,000 grams. Apgar scores were 4/8. The newborn was pale and Jaundice. After intubation for suctioning meconium, bag and mask ventilation was required for poor respiratory effort. Initial oxygen saturation was low at 70% and the baby was re-intubated and taken to the NICU. Generalized petechiae were noted on NICU evaluation. The liver and spleen were felt to be enlarged. Platelet count was only 14,000. TORCH infection was suspected. Urine culture for CMV was positive and CMV IgM antibody was also positive. Liver function studies were elevated. The newborn hearing test was failed. MRI on DOL 3 had findings consistent with congenital CMV infection with dilated lateral ventricles and multiple periventricular calcifications. Follow-up MRI’s continued to show similar findings with diffuse volume loss and findings consistent with congenital CMV. The baby was followed on an out-patient basis by Infectious Disease for congenital CMV infection. In summary, the pregnancy was complicated by fetal congenital CMV infection. Physical exam of the baby, laboratory testing and head imaging studies were consistent with this diagnosis. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. The child’s brain injury would be consistent with congenital CMV infection and not a birth related hypoxic event. Dr. Willis reaffirmed his opinion in an affidavit dated November 17, 2016. A review of the file reveals that no contrary evidence was presented to dispute Dr. Willis’ finding that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery, or the immediate post-delivery period. Dr. Willis’ opinion is credited.
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 Carla Barrientos-Gutierrez was born on April 12, 2013, at Manatee Memorial Hospital located in Braden River, Florida. Carla weighed 3,610 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Carla. In an affidavit dated December 17, 2014, Dr. Willis described his findings as follows: In summary, vacuum assisted delivery resulted in a scalp hemorrhage with significant blood loss and resulting anemia, hypovolemia, hypotension and coagulation defects. Hypovolemia resulted in poor perfusion and multisystem organ failure. E. coli sepsis compounded the complications related to the scalp hemorrhage. The baby suffered brain injury due to these complications. However, the brain injury did not occur during labor delivery or the immediate post-delivery period. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Carla and to review her medical records. Dr. Duchowny examined Carla on October 15, 2014. In an affidavit dated December 17, 2014, Dr. Duchowny opined as follows: In summary, Carla’s neurological examination reveals evidence of a mild to moderate motor disability and language development which is behind age level. There is no focal or lateralizing findings and I was unable to confirm the family’s impression of diminished left-sided motor activity. The medical record review indicates that Carla’s neurological impairments are the result of E-coli, sepsis and meningoencephalitis. She likely had diffuse CNS vasculitis as well. However, there is no indication that Carla’s brain damage resulted from either mechanical injury or oxygen deprivation in the course of labor and delivery. The timing of acquisition of her infection is open [sic] a question as she only became symptomatic at 24 hours of age. Should this issue need further examination, input from a pediatric infectious disease consult would be useful. It would be important to review her MRI scans of the brain. However, pending any need for further review, I am not recommending Carla for inclusion in the NICA program. A review of the file in this case reveals that there have been no opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor, delivery, or the immediate post-delivery period, and Petitioners have no objection to the issuance of a summary final order finding that the injury is not compensable under the plan. Dr. Willis’ opinion is credited. There are no contrary opinions filed that are contrary to Dr. Duchowny’s opinion that there is no indication that Carla's neurological injury resulted from either mechanical injury or oxygen deprivation in the course of labor and delivery. Dr. Duchowny’s opinion is credited.
Findings Of Fact Robert Charles Crump was born on August 15, 2009, at Baptist South Hospital located in Jacksonville, Florida. Charlie weighed 2,505 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Charlie, to determine whether an injury occurred 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 medical report dated September 17, 2014, Dr. Willis described his findings in part as follows: In summary, the mother presented at 34 weeks with premature rupture of the membranes in early labor. Variable HFR [sic] decelerations developed during the last two hours prior to delivery. Cesarean section was done for the non-reassuring FHR pattern. The newborn was depressed. The newborn hospital course was complicated by respiratory depression, hypotension and one episode of apnea. Although the baby was discharged home with a normal exam, MRI at 16 months of age was done for evaluation of a weak left hand and found a prior cerebral stroke. It is likely the baby suffered some degree of oxygen deprivation during labor, delivery and/or in the immediate post resuscitation period. However, it is less clear that any oxygen deprivation during this time period resulted in brain injury. No head imaging studies were done during the newborn hospital course. The child did suffer a stroke, which was documented at 16 months of age by MRI. There was an apparent obstetrical event that likely resulted in some degree of oxygen loss to the baby’s brain during labor, delivery and continued into the immediate post delivery period. Without imaging studies during the newborn hospital course, I am unable to determine if this oxygen deprivation resulted in the child’s brain injury (stroke). Pediatric Neurology evaluation would be helpful in this determination. Dr. Willis reaffirmed his opinion in an affidavit dated March 8, 2016. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Charlie and to review his medical records. Dr. Duchowny examined Charlie on November 5, 2014. In a medical report dated November 5, 2014, Dr. Duchowny opined as follows: In summary, Charlie’s general physical and neurological examinations reveal a mild left hemiparesis, notable mainly for asymmetry of movement. His muscle tone is well-preserved and he has full range of movement bilaterally with the exception of full left supination. Charlie is functioning cognitively at age level. He has done remarkably well in his therapies. I reviewed the medical records sent on October 14, 2014. They document Charlie’s birth at 34 weeks gestation at Baptist Medical Center South in Jacksonville following premature rupture of membranes productive of blood-tinged amniotic fluid. Charlie was born by emergent Caesarian section for arrest of descent and presented limp, apneic and cyanotic. Apgar scores were 2 and 7 at 1 and 5 minutes. He was resuscitated via bag and mask and breathed spontaneously at just over 2 minutes. His NICU stay was complicated by apnea and bradycardia which resolved fully and transient respiratory depression. Charlie was never intubated or mechanically ventilated and was maintained on room air from August 17th until discharge on August 24th. No neonatal brain imaging was performed. MRI scan of the brain on February 8, 2011 revealed an old ischemic infarct involving the anterior limb of the right internal capsule. The remainder of the brain was normal. A consideration of the findings from today’s evaluation and record review lead me to recommend that Charlie not be considered for compensation within the NICA program. He has normal mental functioning and a mild motor deficit. Furthermore, his stroke was likely acquired prenatally, and there is no evidence of either mechanical injury or oxygen deprivation in the course of labor, delivery or the immediate post-delivery period. Dr. Duchowny reaffirmed his opinions in an affidavit dated February 24, 2016. 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 there was an apparent obstetrical event that likely resulted in some degree of oxygen loss to the baby's brain during labor, delivery or the immediate post- delivery period. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that Charlie has normal mental functioning and a mild motor deficit, and that his stroke was likely acquired prenatally. Dr. Duchowny’s opinion is credited.
The Issue The issue in this case is whether Madeline Elizabeth Kitchen suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Sarah W. Kitchen and Steven Kitchen are the natural parents of Madeline Elizabeth Kitchen (Madeline), a minor. Madeline was born a live infant at Orange Park Medical Center, a licensed hospital in Orange Park, Florida, on March 9, 2013. Obstetrical services at the time of Madeline’s birth were provided by Sharonn Jones, CNM, ARNP; and her employer, North Florida OB/GYN, LLC. At all material times, Nurse Jones and North Florida OB/GYN were participants in the Florida Birth-Related Neurological Compensation Plan. NICA’s notice is not at issue as to Nurse Jones or North Florida OB/GYN in this proceeding. Madeline weighed in excess of 2,500 grams at birth. Petitioners and Intervenors contend that Madeline suffered a birth-related neurological injury, and Petitioners seek compensation under the NICA Plan. Petitioners and Intervenors take the position that Madeline’s brain injury was caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period, which rendered Madeline permanently and substantially impaired. Respondent contends that Madeline’s injury does not meet the definition of a birth-related neurological injury as defined in section 766.302(2), Florida Statutes. Petitioner Sarah Kitchen was admitted to Orange Park Medical Center on March 9, 2013. Her membranes were artificially ruptured at 12:48 in the afternoon, and her amniotic fluid was clear. There were some fetal heart decelerations during labor. After Mrs. Kitchen pushed for over an hour, vacuum extraction with two pulls was used to assist vaginal delivery. There was meconium stained amniotic fluid requiring intubation and suctioning before first cry. Madeline’s Apgar scores were 4 at one minute, 9 at 5 minutes and 9 at 10 minutes. The cord blood pH was 7.155. Madeline was in the transitional nursery for a period of time but was not admitted to the NICU. She then spent two days in the regular nursery prior to being discharged home. Other than concerns about Madeline’s ability to nurse, there appear to have been no other concerns at discharge. When Madeline was about seven months old, Mrs. Kitchen began to have concerns about Madeline’s progress and discussed her concerns with Madeline’s pediatrician. In July 2014, Madeline was seen by Dr. Harry Abrams, a pediatric neurologist with Nemours Children’s Clinic in Jacksonville. He concurred with the parents’ concerns of motor, as well as language delays. Dr. Abrams recommended an MRI of the brain, referral to Nemours Orthopedics and Nemours GI, as well as the Early Steps Program anticipating the need for speech and physical therapy. He also noted mild microcephaly. Madeline had an MRI of the brain in August 2014, when she was approximately 16 months of age. The MRI revealed “bilateral periventricular hyper intense signal areas with cystic changes with old hemorrhagic products along with the lateral ventricles lining with a thin corpus callosum consistent with periventricular leukomalacia.” Following the results of the MRI, Madeline had a follow- up appointment with Dr. Abrams who reviewed the results with Madeline’s parents and “discussed in detail the usage of the term of ‘cerebral palsy.’” Dr. Abrams’ notes reflect that the importance of early intervention was discussed and noted that the evaluation for the Early Steps Program had already begun. Dr. Abrams again saw Madeline at an appointment in December 2014. His notes reflect that the mother reported ongoing developmental progress, but had expressed frustration at Madeline’s therapies being limited to physical therapy once per month and speech therapy once per week, with no occupational therapy. Dr. Abrams recommended more frequent therapies. At an appointment in June 2015, Dr. Abrams’ notes describe Madeline as a “2-year-old child with mild cerebral palsy who is making good progress.” At the time of Mrs. Kitchen’s deposition on July 1, 2015, Madeline was receiving physical therapy (once a week for 30 minutes), speech therapy for eating (once a week for 60 minutes), and occupational therapy consults on an irregular basis. She is able to feed herself, mostly with her fingers. Madeline did not walk until 18 months of age, but is now walking without having to hold on to anything. Her left leg is the “weaker” leg and is slightly shorter than her right leg. Her left foot turns in. There have been discussions regarding the possibility of a brace for her left leg if it does not correct itself. Her speech is limited to a few words. NICA retained Donald C. Willis, M.D., to review Madeline’s medical records. Dr. Willis made the following findings and expressed the following opinion in a report dated April 20, 2015: I have reviewed the medical records for the above individual. The mother, Sarah Kitchen was a 28 year old G1. Her AFP screen was positive for Down syndrome. She was evaluated by Maternal-Fetal Medicine. Amniocentesis was declined. The abnormal AFP was not a factor in the outcome of this case. The mother was seen for decreased fetal movement three days before delivery. Biophysical profile (BPP) was 8/8 with normal amniotic fluid volume (AFI of 10 cms). Findings suggested the fetus was not in distress. Non-stress test (NST) was done the following day and was reactive, again suggesting the fetus was not in distress. The mother presented to the hospital in labor about two days after the above NST. Her cervix was dilated 4 cms. Amniotic fluid was reported to be clear. Fetal heart rate (FHR) tracing during labor was not available for review, but labor and delivery record reported “meconium stained fluid and decelerations” as complications. Vacuum extractor with two pulls was used to assist vaginal delivery. Birth weight was 3,538 grams (7 lbs 12 oz’s). Apgar scores were 4/9/9. The newborn was intubated for meconium and suctioned. Arterial cord blood gas was within normal limits with a pH of 7.155 and a base excess of -5. Newborn physical gives an overall assessment of normal exam. Newborn hospital course was uneventful. The baby was discharged home on two days after birth. The child was subsequently followed for developmental delay. MRI on 08/04/2014 (about 16 months of age) showed periventricular leukomalacia. In summary, there was not significant oxygen deprivation during labor and delivery and indicated by normal blood gas and normal Apgar score at 5 minutes. The newborn hospital course was uncomplicated. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery, or the immediate post delivery period. In a follow-up report dated August 13, 2015, Dr. Willis reaffirmed his opinion: I have reviewed the fetal heart rate (FHR) tracing for the above individual. The base line FHR is normal at about 140 bpm on admission and heart rate variability is normal. The FHR monitor tracing does not suggest fetal distress during labor. The normal appearing FHR tracing would be in agreement with my previous medical opinion that the baby did not suffer oxygen deprivation during labor. Dr. Willis’ opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery, or the immediate post-delivery period is credited. Respondent retained Laufey Y. Sigurdardottir, M.D., to evaluate Madeline. Dr. Sigurdardottir is a pediatric neurologist with the Division of Neurology of Nemours. Dr. Sigurdardottir reviewed Madeline’s medical records and performed an independent medical examination on Madeline on July 29, 2015. Dr. Sigurdardottir made the following findings and summarized her evaluation as follows: MEDICAL HISTORY: Madeline is a 2-year 4-month-old Caucasian female who was born via vaginal delivery at 40 weeks’ gestation after a normal pregnancy. The labor was slightly prolonged, some fetal heart decelerations were noted and the delivery ended with vacuum extraction. There was meconium stained amniotic fluid, requiring intubation and suctioning below vocal cords. The patient was 7 pounds 13 ounces at birth, had diminished respiratory effort at birth and Apgar scores were 4 after 1 minute and 9 after 5 minutes. The patient was briefly tended to in the transitional nursery, but then spent 2 days with mom in the newborn nursery prior to being discharged home, presumed to be in good health. Madeline has been found to have significant delays in both motor and cognitive development. She has been diagnosed with a chronic static encephalopathy including cerebral palsy with left greater than right- sided symptoms, language delay and poor social interaction for age. MRI imaging has shown signs of old intracerebral hemorrhage and cystic periventricular leukomalacia. Due to the severity of Madeline’s delays, her case is being considered for NICA compensation. * * * Labor history: Mom presented on 03/09/13 at 10:10 a.m. and was admitted for labor. The chart documents a total hours in labor as 62 hours and documents stage 1 as 60 hours 15 minutes, stage 2 was 1 hour 54 minutes, and stage 3 as 4 minutes. An epidural anesthesia was used, the fetal heart rate tracing is not provided for our review, but there is documentation of decelerations without further clarification in an inpatient summary from Orange Park Medical Center. Mom reports having push for more than 1 hour and therefore vacuum extraction was used. Some documentation describes forceps attempt, but this cannot be verified on record review. Two vacuum attempts were needed and a third degree perineal laceration was sustained by Madeline’s mother. When Madeline was born, there is no documentation of shoulder dystocia, and she is noted to be blue and have poor respiratory effort. Suctioning was performed below vocal cords due to meconium staining of amniotic fluid. She had Apgar score of 4 at 1 minute. Her Apgar scores quickly improved being 9 after 5 minutes and 9 after 10 minutes with her only lack being in area of color. Arterial cord blood was sent revealing a pH of 7.16 with a pCO2 of 67.8 and pO2 of less than 47%. A venous cord blood was also sent with the pH of 7.24 and a pCO2 of 51. Madeline was 50 cm at birth, 3538 g and a head circumference of 32.5 cm, which places her head circumference to be at the 8th percentile, her length to be at the 34th percentile and her weight at birth to be at the 62nd percentile per the CDC growth curve. The patient was discharged home, presumed to be in good health. Developmental and Medical History: Madeline’s mother reports early feeding difficulties. She recalls her being fairly floppy and that the parents were worried about delayed visual fixation until about 3-4 months of age. Madeline’s mother brought her to her pediatrician around the age of 6 months for complaints of not grabbing toys and not showing interest in rolling over or sitting up. She had an early frenulectomy due to poor sucking and was referred for hip x-rays for poor mobility at the age of 15 months, which was found to be normal. The patient was referred to physical, occupational and speech therapy and was able to walk unassisted around the age of 20 months. The parents feel that her left side is weaker than her right. She seems unsteady, having a broad stance and frequent falling. The parents are also worried about her language development and report her having only 5-6 words (bye-bye, mama, dada, papa and milk) and a few signs at 2 yr 4 months of age. She seems to be very attracted to music and will want to listen to music and dance along. Madeline is not interested in interacting with her peers. She loves to swing on swings and will often just go about the house on her own terms. Her parents do feel that she will turn towards their face if they say her name, but that it has been difficult to get her to repeat words or point to pictures or label items. They do feel that she knows her body parts. Due to concerns for possible cerebral palsy, she was seen by Dr. Abram of Neurology in Nemours Children’s Specialty Care, Jacksonville in July of 2014 at the age of 15 months. A neurologic exam did comment on her head circumference being below the 5th percentile, there being no dysmorphic features and that her neurologic exam did not have obvious asymmetries. An MRI performed at that time showed: Bilateral periventricular hyperintense FLAIR signal areas are seen with a few cystic changes more severe on the right side. Old hemorrhagic products are seen along the lining of the lateral ventricles. Corpus callosum is thin. Findings are consistent with periventricular leukomalacia. Myelination is appropriate for age. Size and configuration of the ventricles and basal cisterns appear normal. There is no evidence of restricted diffusion. No evidence of abnormal intracranial enhancement. The pituitary gland and cervical medullary junction region appears normal. Hippocampi appear normal. Posterior fossa structures including brain stem and cerebellum appear normal. * * * Developmental testing: She has had the following developmental testing performed in August of 2014, PLS-5 language assessment with a comprehension of 87, expressive language of 89 and total score within the low range of normal. The Battelle Developmental Inventory, however, at the age of 17 months paints a different picture with motor skills at 57, self-help and adaptive skills of a standard score 55, social and emotional a standard score of 85, cognitive a standard score of 77 and communication standard score of 61. * * * NEUROLOGIC EXAMINATION: Mental status: Madeline is on the move throughout the visit, going from 1 toy to the next and seems significantly on her own terms for the majority of the visit. She does at times interact with her parents, but little eye contact is noted. She will at times come up to the examiner briefly. She will look towards voice at times. She will follow simple commands such as stop or no. She will accept food from her parents’ hands but not have joint attention during that time. No clear repetitive behavior is noted. No understandable words are heard by the examiner. Cranial nerves: Her pupils are equal, they do react to light. She has conjugate eye movements for the most part, but occasional left eye extropia is noted, especially if she is looking up and to the right. She has symmetric facial features, but seems to keep her mouth open. Her hearing seems intact. Her motor exam reveals diminished axial tone with some tendency for slip through when held in vertical suspension. She has asymmetric tone, mainly in the lower extremities with increased resistance to passive range of motion in the left lower extremity. Her strength seems to be diminished in bilateral lower extremities and she will at times keep her knees and hips slightly flexed during ambulation. Reflexes are slightly brisker in the left lower extremity than the right. This is not noted in upper extremity. She seems to favor her right upper extremity on exam, using that consistently to grab for toys. Balance and coordination: There is significant abnormality with a broad based, slightly ataxic gait and frequent falls. Her intoeing does seem to lead to her tripping over her left foot. She will, however, stand up off the floor without difficulty. There is significant clumsiness with fine motor skills, both on the right and left upper extremity. There is no seizure-like occurrences and no clear tremor, no monoclinic jerking. Overall assessment: Here we have a 2-year 4- month-old female with chronic static encephalopathy manifested by borderline microcephaly, left greater than right sided CP, moderate receptive and expressive language delay and some delays in social interaction and attention. Her language testing from one year ago is outdated and her current language abilities from what can be observed here would result in her total language score below 70. She has motor disability with bilateral hemiplegic symptoms, but overall good functional skills with independent ambulation having been obtained at 20 months. She is also able to feed herself orally and has been relatively physically healthy from birth. On review of the case, there is no evidence of a prenatal vascular events or periods of decreased fetal movements. On review of the labor and delivery records there is little to support a serious ischemic event and her mild depressed 1 minute apgar score alone with arterial cord blood pH being 7.16 does not support such an event. Results of IME: As to question 1: The patient is found to have a permanent but not substantial physical impairment and mental abilities that are delayed but progressing. As to question 2: On review of medical records, there is minimal evidence of substantial birth asphyxia. Although initial Apgar score was 4 there was immediate recovery and the mild decrease in arterial cord blood pH is not below the 7.00 cut off. The neuroimaging findings are consistent with a hypoxic ischemic injury but do not help in the timing of such an injury. As to question 3: At this time, Madeline’s prognosis regarding her motor development are good, with independent ambulation already in place. Her cognitive development seems to be more difficult to prognosticate at this time, but ongoing speech therapy along with further workup of possible autistic characteristics would be indicated. We expect ongoing progress in this area and we estimate her life expectancy as being full. At this time, it seems likely that she will need significant ongoing supportive services, although the need for this lifelong is uncertain at this time. I am therefore not recommending Madeline to be included into the NICA program and would be happy to answer additional questions. Dr. Sigurdardottir’s opinion that Madeline has a permanent, but not substantial, physical impairment and mental abilities that are delayed, but improving, is credited. Dr. Sigurdardottir’s opinion that there is minimal evidence of substantial birth asphyxia “but there is little to support a serious ischemic event and her mild depressed 1 minute apgar score alone with arterial blood pH being 7.16 does not support this event” is credited. The greater weight of the evidence establishes through the opinions of two experts that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical injury to Madeline’s brain during labor, delivery or the post- delivery period. Here, the stipulated record demonstrates, along with Dr. Sigurdardottir’s expert opinion, that Madeline’s physical impairment is permanent, but not substantial, and that mental abilities are delayed, but progressing. While Madeline has some motor and mental deficits, these deficits do not render her permanently and substantially mentally and physically impaired.
Findings Of Fact Noelle was born on February 9, 2017, at AdventHealth located in Orlando, Florida. Upon receiving the Petition, NICA retained Donald Willis, M.D., a board certified obstetrician/gynecologist specializing in maternal-fetal medicine, as well as Laufey Y. Sigurdardottir, M.D., a pediatric neurologist, to review Noelle’s medical condition. NICA sought to determine whether Noelle suffered a “birth-related neurological injury” as defined in section 766.302(2). Specifically, NICA requested its medical experts render an opinion whether Noelle experienced 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; and, if so, whether this injury rendered Noelle permanently and substantially mentally and physically impaired. Dr. Willis reviewed Noelle’s medical records and observed: A cephalohematoma was noted on admission to the nursery, but the baby was not felt to be in acute distress. Neurologic exam was normal. * * * The child was seen in the ED at about 13- months of age for head trauma related to a fall. MRI showed diffuse periventricular white matter volume loss. Evaluation at about 18-months of age described decrease movement of left arm and leg. A diagnosis of cerebral palsy with hemiplegia and partial epilepsy was made. Dr. Willis then opined: In summary, vaginal delivery was complicated by a shoulder dystocia, lasting one-minute. The baby was not depressed with Apgar scores of 7/9. No resuscitation was required. The baby was transferred to the nursery at about 16 hours after birth with decreasing blood sugars and desaturations occurred in the nursery. This would be after resuscitation in the immediate post-delivery period. * * * This child suffered a brain injury as documented by the MRI findings. However, the brain injury does not appear to be birth related. * * * There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery or the immediate post- delivery period. Dr. Sigurdardottir also reviewed Noelle’s medical records, as well as conducted an independent medical exam of Noelle on November 28, 2018. Dr. Sigurdardottir opined, within a reasonable degree of medical probability: Noelle Galbraith has substantial delays in motor and mild delays in mental abilities. * * * Noelle has serious delays in motor milestones and carries diagnosis of hemiplegic cerebral palsy. She had delays in gross motor development. Despite these findings, Dr. Sigurdardottir concluded that: In review of available documents, there is evidence of impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury, but timing of injury to the labor, birth or immediate post natal period is not able to be determined. * * * I believe Noelle does not fulfill criteria of a substantial mental and physical impairment at this time. I do feel that Noelle should not be included in the NICA program. 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 Noelle has not suffered a “birth-related neurological injury” as defined by section 766.302(2). Petitioners do not oppose NICA’s motion.
Conclusions Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition is dismissed, with prejudice. DONE AND ORDERED this 13th day of November, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2019.
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).
