Findings Of Fact Asher was born on April 20, 2017, at Memorial Hospital located in Pembroke Pines, Florida. Upon receiving the Petition, NICA retained Michael S. Duchowny, M.D., a pediatric neurologist, to review Asher’s case. NICA sought to obtain an opinion whether there was an injury to Asher’s brain or spinal cord at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period, and whether that injury rendered Asher permanently and substantially mentally and physically impaired. Dr. Duchowny reviewed Asher’s medical records, as well as examined Asher on October 10, 2018. Dr. Duchowny opined, within a reasonable degree of medical probability: [I]t is my opinion that ASHER’s neurological examination reveals neurological findings consistent with a mild motor impairment primarily affecting his right upper extremity. In contrast, Asher has preserved cognitive function and social awareness. He evidences slightly decreased muscle tone in the right distal upper and lower extremities and slightly increased deep tendon reflexes. As such, it is my opinion that despite ASHER’s abnormal MR imaging studies at birth which document prominent hemorrhagic infarction in territories supplied by the left middle and posterior cerebral arteries with a smaller region of right middle cerebral artery infarction, and bilateral parieto-occipital areas of increased signal, he has recovered to a point where he no longer evidences either substantive mental or physical impairment. Based upon my evaluation and record review, as ASHER is developing normally, I am not recommending him for acceptance into the NICA program. A review of the records filed in this matter reveals no contrary evidence to dispute the findings and opinion of Dr. Duchowny. His opinion is credible and persuasive. Based on the opinion and conclusion of Dr. Duchowny, NICA determined that Petitioners’ claim was not compensable. NICA subsequently filed the Motion for Partial Summary Final Order asserting that Asher has not suffered a “birth-related neurological injury” as defined by section 766.302(2). Petitioners do not oppose NICA’s motion.
Findings Of Fact Luke Z. Davis was born on March 27, 2014, at Shands at the University of Florida, Gainesville, Florida. Luke weighed 4,060 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Luke, 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 February 25, 2016, Dr. Willis described his findings in part as follows: There was an apparent obstetrical event, shoulder dystocia that resulted in loss of oxygen to the baby's brain during delivery and continuing into the immediate post delivery period. There was no trauma to the spinal cord. The oxygen deprivation to the brain resulted in some degree of brain injury, as identified by brain hemorrhage on MRI. The MRI reported no evidence of global brain injury. I am not able to comment about the severity of the brain injury. Dr. Willis reaffirmed his opinion in an affidavit dated May 25, 2016. NICA retained Laufey Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Luke and to review his medical records. Dr. Sigurdardottir examined Luke on March 30, 2016. In her report dated March 30, 2016, Dr. Sigurdardottir opined in pertinent part as follows: Summary: Here we have a 2-year-old with a difficult birth due to shoulder dystocia leading to an acute hypoxic event lasting 13 minutes. The patient did receive cooling protocol, had evidence of a brain injury on MRI, although not severe, and is left with a significant motor impairment from a flaccid right arm, as well as expressive language delay . . . . [T]he patient is found to have substantial physical impairment, as his right upper extremity has little to no functional use. There is a possible mild mental impairment due to language delay, but his delays do not seem substantial at this time. [T]here is evidence of a hypoxic ischemic event occurring at birth resulting in neurologic depression at birth, as well as mechanical injury resulting in a severe paresis of right upper extremity. Both his hypoxic events, as well as his mechanical brachial plexopathy is birth related. 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 no evidence of global brain injury or injury to the spinal cord. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Luke does not suffer from a substantial mental impairment. Dr. Sigurdardottir’s opinion is credited.
Findings Of Fact Dontae Bess, Jr., was born on July 21, 2011, at Lakeland Regional Medical Center in Lakeland, Florida. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Dontae’s medical records. In a medical report dated August 19, 2016, Dr. Willis made the following findings and expressed the following opinion: Spontaneous vaginal delivery was without difficulty. Birth weight was 3,220 grams. The baby was not depressed. Apgar scores were 9/9. No resuscitation was required at birth. The baby went to the normal newborn nursery and had an uncomplicated newborn hospital course with discharge on DOL 2. The child had developmental delays. MRI was done at 5 years of age and was “unremarkable.” In summary, pregnancy was induced for hypertension at term. There was no fetal distress during labor and the baby was not depressed at birth. The newborn hospital course was benign. MRI at 5 years of age did not suggest brain injury. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period. Dr. Willis reaffirmed his opinion in an affidavit dated January 26, 2017. Dr. Willis’ opinion that there was no obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or in the immediate post-delivery period is credited. Respondent retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to evaluate Dontae. Dr. Sigurdardottir reviewed Dontae’s medical records, and performed an independent medical examination on him on September 21, 2016. Dr. Sigurdardottir made the following findings and summarized her evaluation as follows: Summary: Dontae is a 5-year 2-month-old African-American male who is brought to the visit for an independent medical examination on his developmental delays. On review of his prenatal and birth history, I do not see any evidence of a likely hypoxic injury. He was born healthy and had no complications in the immediate postnatal period. He has then progressed to have mild gross motor delay and a quite significant language delay, although he is at this time in a regular education kindergarten. Neuroimaging did not show evidence of significant ischemic injury. Result as to question 1: The patient is found to have no substantial physical impairment, but to have a substantial language impairment at this time. Results as to question 2: There is no evidence in the medical record review of a substantial hypoxic event during labor or delivery, the infant had no signs of an encephalopathy in the immediate post natal period and no evidence of ischemic injury on neuroimaging. His language delay is not felt to be birth-related. Results as to question 3: Dontae’s prognosis for life expectancy is excellent and for full recovery is good. In light of the above-mentioned details and the lack of any evidence to suggest a birth related hypoxic injury, I do not recommend Dontae being included in the Neurologic Injury Compensation program, and I would be happy to answer additional questions. Dr. Sigurdardottir reaffirmed her opinions in an affidavit dated January 20, 2017. In order for a birth-related injury to be compensable under the Florida Birth-Related Neurological Injury Compensation Plan (Plan), the injury must meet the definition of a birth- related neurological injury and the injury must have caused both permanent and substantial mental and physical impairment. Dr. Sigurdardottir’s opinion that while Dontae has a substantial language impairment, he has no substantial physical impairment, is credited. 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 that Dontae does not have a substantial physical impairment.
The Issue At issue is whether Tristen Onofry, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Victoria Hill and Keith Onofry are the parents of Tristen Onofry, a minor. Tristen was born a live infant on July 29, 2002, at Tallahassee Memorial Regional Medical Center, Tallahassee, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Tristen's birth was Minal K. Krishnamurphy, 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 postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. To resolve whether Tristen suffered a "birth-related neurological injury," the parties offered the medical records related to Tristen's birth and subsequent development (Joint Exhibit 1), and the opinions of Michael Duchowny, M.D., a physician board-certified in pediatrics; neurology, with special competence in child neurology; and clinical neurophysiology (Joint Exhibit 2). Notably, Dr. Duchowny evaluated Tristen on October 6, 2004, and reported the results of his evaluation, as follows: PHYSICAL EXAMINATION reveals an[] alert and cooperative, well developed, well-nourished, 2-year-old, left-handed boy. Tristen weighs 23 pounds and is 32 inches tall. His head circumference measures 46.4 centimeters, placing him at the 10th percentile for age match controls. There are no dysmorphic features and no cranial or facial anomalies . . . [or] asymmetries. There are no neurocutaneous stigmata. The neck is supple without masses, thyromegaly, or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. Tristen's NEUROLOGIC EXAMINATION reveals him to be cooperative but with no speech output. He does know colors by pointing. He does not interact with meaningful speech sounds. He seems to enjoy the examination and actively participated. There are prominent tongue thrusting movements and intermittent drooling. The cranial nerve examination reveals full visual fields to direct confrontation testing. Funduscopic examination reveals sharply demarcated disc margins without optic pallor. There is no retinopathy. Pupils are 3 mm and react briskly to direct and consensually presented light. The extraocular movements are conjugate and full in all planes of gaze. The motor examination reveals a static hypotonia with dynamic hypertonicity most prominent in the lower extremities. At rest, Tristen demonstrates an overly full range of motion at all joints. He will then stiffen with activated movement. There are bilateral AFO's in place. Tristen shows no evidence of stable weightbearing and has poor head control with the head flopping forward. He has a wide based stance and demonstrates truncal ataxia. He is able to grasp objects only with a palmar grasp and has no evidence of developed pincher grasp in either hand. He tends to grasp cubes but cannot transfer and drops them readily. He cannot build a tower of cubes. There are no pathological reflexes. The deep tendon reflexes are 2+ in the upper extremities but 3+ at both knees and 3+ at the ankles. There are bilateral Babinski responses. The spine is straight without dysraphic features. Tristen maintains a plantar grade attitude when held in the vertical position. His shoulder girdle seems to slip through the examiner's hands. Sensory examination is intact to withdrawal of all extremities to stimulation. The neurovascular examination reveals no cervical, cranial, or ocular bruits and no temperature or pulse asymmetries. As for the etiology of Tristen's impairments, it was Dr. Duchowny's opinion, based on the results of his neurologic evaluation of Tristen and review of the medical records, that, while of unknown etiology, Tristen's impairments were most likely developmentally based, and not associated with oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or the immediate postpartum period. In so concluding, Dr. Duchowny observed that the impairments demonstrated by Tristen are consistent with the syndrome of ataxic cerebral palsy, a developmentally-based brain disorder acquired before the onset of labor. Dr. Duchowny was also of the opinion that the medical records did not reveal evidence of a substantial mechanical or hypoxic event having occurred during labor and delivery. As for the significance of Tristen's impairments, it was Dr. Duchowny's opinion that Tristen is permanently and substantially physically impaired. However, mentally, Tristen is not similarly affected or, stated otherwise, he is not permanently and substantially mentally impaired. Notably, Dr. Duchowny's opinions were uncontroverted, grossly consistent with the record, and credible.
The Issue The issues presented in this cause are: (1) Whether or not the Petitioner, Terri Taylor weighed at least 2500 grams at birth; (2) Whether or not the Petitioner, Terri Taylor, suffered a brain or spinal cord injury resulting from oxygen deprivation or mechanical injury during labor, delivery or resuscitation in the immediate post-delivery period in a hospital; (3) Whether such injury resulted in a permanent and substantial mental and physical impairment to Petitioner Terri Taylor; and, (4) Whether or not obstetrical services were delivered by a participating physician in the course of labor, delivery or resuscitation in the immediate post- delivery period in a hospital.
Findings Of Fact That Terri Taylor, a minor, was born to Latrina Taylor on February 1, 1991, at Baptist Medical Center, 800 Prudential Drive, Jacksonville, Florida 32207. That the physician delivering obstetrical services during the birth of Terri Taylor was H. Wade Barnes, Jr., M.D., who at all times material to this cause was a "participating physician" with the Florida Birth-Related Neurological Injury Compensation Plan. That the estimated fetal weight of Terri Taylor at birth was in excess of 2500 grams. That Terri Taylor was neurologically evaluated on June 24, 1992 at the Miami Children's Hospital by Michael S. Duchowny, M.D. That Dr. Duchowny, a board certified pediatric neurologist, concluded that Terri Taylor suffered from a substantial neurological deficit involving spasticity in all four limbs, cortical blindness, microcephaly, and a complete lack of expressive language skills. That the neurological deficits experienced by Terri Taylor were not the result of oxygen deprivation or mechanical injury suffered during labor, delivery, or resuscitation in the immediate post-delivery period. Instead, the evidence of record indicates that the organic brain damage suffered by Terri Taylor is a result of a prenatally acquired infection which caused irreversible brain damage in a pattern consistent with such a process. Specifically, a neuroimaging study (MRI) demonstrated the existence of cystic encephalomalacia represented by multiple cystic cavities throughout the brain with fibrotic bands around the cavities. This is a pattern of brain damage consistent with a prenatally acquired infection. Based upon the foregoing medical evidence, Dr. Duchowny concluded that Terri Taylor suffered from a prenatally acquired infection which resulted in extensive cystic encephalomalacia as evidenced in the neuroimaging studies. Therefore, Dr. Duchowny concluded that Terri Taylor did not suffer from a birth-related neurological injury as defined at Section 766.302(2) Florida Statutes. His findings are accepted.
Findings Of Fact Neha was born on May 15, 2012, at Broward General Medical Center, located in Fort Lauderdale, Florida. Neha weighed six pounds nine ounces at birth. NICA retained Michael S. Duchowny, M.D., as its medical expert in pediatric neurology. Dr. Duchowny examined Neha on March 20, 2013, and reviewed her medical records. In an affidavit dated April 24, 2013, Dr. Duchowny opined as follows: Neha’s neurological examination is significant only for a mild degree of hypontia coupled with very slight motor development delay. In other regards, she seems to be developing quite well and I suspect that her language development will progress on schedule. There are no focal or lateralizing findings to suggest structural brain damage. A review of medical records reveals that Neha was born by stat cesarean section at Broward General Hospital due to fetal bradycardia. She was delivered with a full body nuchal cord and a true knot that was removed at birth. There was evidence of severe metabolic acidosis-arterial blood gases drawn 11 minutes after birth revealed a pH of 6.66, PC02 of 162, P02 of 11, and base excess of -32. These values were improved on a repeat series drawn at 12:27 PM. Thick meconium was suctioned below the vocal cords and Neha was diagnosed with meconium aspiration syndrome. Seizures occurred several after birth and were treated with phenobarbital and phenytoin. As previously stated by the family, Neha was immediately enrolled in a general hypothermia protocol. Of significance, a brain ultrasound exam obtained on May 15 at 6:46 PM, was normal and an MRI scan of the brain obtained on May 23 (DOL #8) was also within normal limits. Neha’s examination today does not reveal either a substantial mental or motor impairment, findings are consistent with the lack of significant MRI findings. I believe that the hypothermia protocol in all likelihood was neuro-protective and more likely than not, contributed to Neha’s positive outcome. Given Neha’s favorable outcome, I believe that she should not be considered for inclusion within the NICA program. As such, it is my opinion that Neha Kannikal is not permanently and substantially mentally impaired nor is she permanently and substantially physically impaired due to oxygen deprivation or mechanical injury occurring during the course of labor, delivery or the immediate post-delivery period in the hospital during the birth of Neha Kannikal. A review of the file does not show any opinion contrary to Dr. Duchowny's opinion that Neha does not have a substantial and permanent mental and physical impairment due to lack of oxygen or mechanical trauma is credited.
Findings Of Fact Xavier Concepcion was born on September 16, 2014, at Memorial Hospital West in Pembroke Pines, Florida. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Xavier’s medical records. In a medical report dated January 20, 2016, Dr. Willis made the following findings and expressed the following opinion: In summary, labor was complicated by maternal infection (chorioamnionitis) and a non- reassuring FHR pattern prior to birth. The baby was depressed at birth with a cord blood pH of <6.9. Seizure activity developed shortly after birth. MRI was consistent with acute brain infarction. There was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and continuing into the immediate post delivery period. It is possible the brain injury from oxygen deprivation was worsened by infection. I am unable to comment about the severity of the brain injury. Dr. Willis’ opinion that there was an obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and continuing into the immediate post delivery period is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate Xavier. Dr. Duchowny reviewed Xavier’s medical records, and performed an independent medical examination on him on May 25, 2016. Dr. Duchowny made the following findings and summarized his evaluation as follows: Motor examination reveals symmetric muscle strength, bulk and tone. There are no adventitious movements and no focal weakness or atrophy. Xavier does not evidence dystonic postures or hypertonicity. He has full range of motion at all joints. Coordination: Xavier walks in a stable fashion and does not fall. He can arise from the floor without difficulty. His balance is good and he has well-developed axial and peripheral balance. He grasps with both hand[s] and moved objects between hands without difficulty. He did not fall and his head control is good. * * * In Summary, Xavier’s neurological examination discloses no significant findings. He is developmentally appropriate with no focal or lateralizing features to suggest a structural brain abnormality. Review of the medical records reveals that Xavier was born at Memorial West Hospital at term and transferred to Joe DiMaggio Children’s Hospital. Maternal membranes were ruptured 30 hours prior to delivery, and maternal chorioamnionitis and fever were treated with penicillin. Xavier was born vaginally and was pale, cyanotic, flaccid and unresponsive. A tight nuchal cord was removed. He weighed 7 pounds 7 ounces and his Apgar scores were 1, 5 and 7 at one, five, and ten minutes. The records indicated that an initial arterial pH was 6.95 but the base excess was unknown. Xavier was intubated at 3 minutes of age, established spontaneous respiration at 25 minutes of age and was subsequently extubated. His CBC revealed a bandemia of 22 on September 22nd. Seizures were noted on the first day of life and there was evidence of a mild coagulopathy. The placenta was positive for E.coli. An MRI scan of the brain revealed multiple acute infarcts in the left temporal, occipital and superior parietal regions and right thalamus and putamen, and a small subdural hematoma. Despite Xavier’s difficulties at birth, he has developed well and does not evidence neurodevelopmental delay. I am therefore not recommending Xavier for compensation within the NICA program. In order for a birth-related injury to be compensable under the Plan, the injury must meet the definition of a birth- related neurological injury and the injury must have caused both permanent and substantial mental and physical impairment. Dr. Duchowny’s opinion that Xavier has developed well and does not evidence neurodevelopmental delay is credited. 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. Duchowny that Xavier has developed well and does not evidence neurodevelopmental delay. There is nothing in Dr. Duchowny’s report that indicates that Xavier has either a substantial mental or physical impairment. Thus, Xavier does not meet the requirement of having a substantial physical or mental impairment.
The Issue For the purpose of determining compensability, the issue is whether the injury claimed is a birth-related neurological injury, as defined by section 766.302(2), Florida Statues. The specific issue that remains is whether the brain injury caused by oxygen deprivation or mechanical injury, which rendered Paj Xiong (Paj) permanently and substantially mentally and physically impaired, occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period.
Findings Of Fact Pursuant to the parties’ stipulations at the final hearing, the Findings of Fact set forth in paragraphs 1 through 5 are undisputed. Paj was born on March 13, 2018, at Winnie Palmer, a “hospital,” as defined by section 766.302, and was alive at birth. Paj was a single gestation with a birthweight in excess of 2,500 grams. Obstetrical services were delivered by Dr. Odom, a Neurological Injury Compensation Association (NICA) “participating physician,” as defined in sections 766.302 and 766.309, in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Paj sustained a brain injury caused by oxygen deprivation or mechanical injury and was thereby rendered permanently and substantially mentally and physically impaired. The notice requirements of section 766.316 were satisfied by the Intervenors. Dr. Odom is a practicing obstetrician/gynecologist (OB/GYN) and at all times relevant was employed with Orlando Health Physician Associates, LLC. Petitioner Npaug Xiong (Mrs. Xiong) first sought prenatal care and treatment with Dr. Odom on September 12, 2017, at which time she was 13 weeks and two days pregnant. Mrs. Xiong’s relevant medical history reveals that she had been pregnant on seven prior occasions, resulting in five births. The prior births had been vaginal deliveries without complication. Her expected delivery due date with this pregnancy was March 24, 2018. An ultrasound conducted on February 20, 2018, revealed that the fetus was in a breach position, thus “presenting in a buttocks first” position. On March 8, 2018, Dr. Odom determined that the fetus remained in a breech position. Dr. Odom advised Mrs. Xiong of the external cephalic version (ECV) procedure, which is used to turn a fetus from a breech position into a head- down position in anticipation of a vaginal delivery. Dr. Odom credibly testified that the plan was to schedule Mrs. Xiong for an attempt at ECV and, if successful, her membranes would be ruptured and she would proceed with a total induction of labor. If unsuccessful, Dr. Odom would proceed with a Cesarean section delivery (C-section). In either event, the plan was to deliver the baby following the attempt at ECV. On March 11, 2018, Mrs. Xiong returned to Winnie Palmer for a labor check. At this time, she was 38 weeks pregnant. Autumn Elms, M.D., an OB/GYN, examined Mrs. Xiong. Dr. Elms testified that Mrs. Xiong’s chief complaint was that of contractions, which she documented as a two out of 10 on the pain scale. Dr. Elms performed a vaginal exam, which revealed that Mrs. Xiong’s cervix was four centimeters (cm) dilated and 50 percent effaced. She also documented that the baby was “minus 3,” meaning that the baby had not descended down into the pelvic canal. During this visit, Mrs. Xiong was connected to an external fetal monitor for approximately one hour. While monitored, Mrs. Xiong only had one contraction. Dr. Elms’s impression and overall assessment was that of “false labor,” which she defined as a patient’s complaint of perceived labor without documented findings to support labor. Mrs. Xiong returned to Winnie Palmer on March 13, 2018, at 2:09 p.m., to proceed with the attempt at ECV, and subsequent delivery. As reported on the History and Physical completed by Dr. Odom, Mrs. Xiong “reports regular painful contractions since earlier today.” Mrs. Xiong also reported no loss of fluid and “only a small amount of bloody show.”1 A vaginal exam was performed by Dr. Odom, which revealed that her cervix remained at four cm dilated; however, she was now 70 percent effaced and there was the presence of bloody show. Mrs. Xiong was placed on an external fetal monitor. The fetal monitoring strips, as interpreted by Dr. Robinson, establish that from 3:09 p.m., to the beginning of the first ECV attempt, Mrs. Xiong experienced 15 separate contractions. During this time period, at approximately 3:40 p.m., a medication, Terbutaline, was administered. The purposed of this medication is to inhibit contractions and relax the uterus in preparation for the ECV procedure. Mrs. Xiong also received an epidural to prevent her from experiencing severe pain associated with the ECV. Dr. Odom began the first ECV attempt at approximately 4:26 p.m. During the first attempt, the fetal heart rate dropped to 80 beats per minute (bpm) for approximately one to two minutes. After external pressure was released, the baby’s heart rate rebounded to 120 bpm. Dr. Odom credibly opined that a normal fetal heart rate in a third trimester infant is between 110 and 160 bpm. A second ECV attempt was made at approximately 4:50 p.m. Dr. Odom testified that the attempted procedure would have taken roughly 10 minutes. Again, the procedure was unsuccessful and the fetal heart monitor was placed back on Mrs. Xiong. 1 Christopher Robinson, M.D., Intervenor’s OB/GYN and maternal-fetal expert, explained that bloody show is the “natural progress of cervical change” and that “when the cervix is changing and thinning out and undergoing stretch, there are small blood vessels that are disrupted in the stroma of the cervix, leading to that bleeding and that presentation.” The strips from the fetal heart rate monitor provide that the infant’s heart rate ranged from about 100 to 110 bpm from approximately 5:00 p.m. until 5:21 p.m. Dr. Odom credibly testified that during this period, the heart monitoring strips were consistent with potential compromise and/or hypoxia, and, therefore, an emergency C-section was necessary. At 5:21 p.m, the heart rate monitor was removed to transition Mrs. Xiong to the operating room for a C-section. The C-section delivery was completed by 5:31 p.m. At birth, Paj was profoundly depressed. His immediate heart rate was less than 30. His Apgar scores were 1 at one minute, 4 at five minutes, and 4 at 10 minutes of life.2 At one minute of life, Paj had a heart rate less than 100, no respiratory rate, flaccid muscle tone, no response to reflex, and was blue and pale. At 10 minutes of life, Paj remained severely depressed. Positive pressure ventilation by intubation was required for respiratory distress with an increase in heart rate to 150 bpm. Cord blood gas pH obtained was 7.29 with a base excess of -5. The initial arterial blood gas pH was 7.07 with a base excess of -21. Paj’s newborn hospital course was complicated by multi-system organ failures, including respiratory distress, seizures, acute renal failure, adrenal hemorrhage, thrombocytopenia, feeding difficulty, elevated liver functions, hearing loss, hypoxic ischemic encephalopathy (HIE), and brain hemorrhage. An MRI obtained on Paj’s fifth day of life had findings suggestive of HIE with right cerebellum hemorrhage. As noted above, the parties stipulate that Paj sustained a brain injury caused by oxygen deprivation or mechanical injury and was thereby rendered permanently and substantially mentally and physically impaired. 2 An Apgar score is a numerical expression of the condition of the newborn and reflects the sum total points gained on an assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and color. See Bennett v. St. Vincent’s Med. Ctr., Inc., 71 So. 3d 828, 834 n. 2 (Fla. 2011) citing Nagy v. Fla. Birth-Related Neuro. Injury Comp. Ass’n, 813 So. 2d 155, 156 n. 1 (Fla. 4th DCA 2002). Each factor is scored 0, 1, or 2; the maximum total score is 10. There is no record evidence to support a finding that the injury to Paj’s brain occurred prior to the ECV attempts on March 13, 2018. 3 It appears undisputed that the original injury occurred during or immediately following the attempts at ECV, but prior to the C-section delivery. The parties presented expert witness testimony concerning, inter alia, whether Mrs. Xiong was in “labor” during the time of the original injury and whether the injury continued to manifest during delivery, and into the immediate post-delivery period. The expert medical testimony is addressed below. Donald Willis, M.D., a board-certified obstetrician specializing in maternal-fetal medicine, was retained by Respondent to review the pertinent medical records of Mrs. Xiong and Paj and opine as to whether Paj sustained an injury to his brain or spinal cord caused by oxygen deprivation or mechanical injury that occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital. Dr. Willis’s ultimate opinions are that Mrs. Xiong was in labor when she presented to Winnie Palmer on March 13, 2018, and that the initial injury occurred during or after the second ECV attempt and continued through delivery and into the immediate post-delivery period. Dr. Willis defines the term “labor” as uterine contractions that result in a change in the cervix. The change can be either a change in dilation or effacement, or both. In support of his opinion that Mrs. Xiong was in labor, Dr. Willis testified that her cervix had increased in effacement from 50 percent on March 11, 2018, to 70 percent on March 13, 2018. Additionally, as compared to her prior visit to Winnie Palmer on March 11, she was now experiencing painful uterine contractions since earlier in the day. Moreover, Dr. Willis opined that the bloody show, while not indicative of labor in and of itself, is a complementary indication of labor. 3 The record evidence demonstrates that Mrs. Xiong was not in labor on March 11, 2018. Dr. Willis also opined that the initial injury occurred after the second ECV attempt as the baby sustained fetal bradycardia, which he defined as a “baseline heart rate that drops for ten minutes or more.” He further opined that the baby was bradycardic, and consequently suffering oxygen deprivation to the brain, from approximately 5:00 p.m. through delivery. Dr. Willis testified that the injury continued through delivery and into the immediate post-delivery period; however, he could not ascribe a percentage or certainty to the level of “insult” or “injury”: I mean, brain injury, I believe, did occur, but how much occurred then versus during delivery and the postdelivery period, there’s no way to tell with any certainty how much occurred during one particular time period in that frame. In support of his opinion that the injury to the brain was continuing post-delivery, Dr. Willis noted that Paj’s heart rate at birth was less than 30; his Apgar score was 1; he was profoundly depressed; and the blood gas results obtained approximately 30-35 minutes after birth (and after resuscitative efforts) were consistent with ongoing oxygen deprivation and resulting or continuing brain injury. Respondent also retained Luis E. Bello-Espinosa, M.D., a pediatric neurologist, to review the medical records of Mrs. Xiong and Paj, and to conduct an Independent Medical Examination (IME) of Paj. Dr. Bello- Espinosa opines that Paj suffered from an acute severe hypoxic ischemic injury, and, as a result, suffers from a permanent and substantial mental and physical impairment. Dr. Bello-Espinosa opines that certain findings or descriptions of Paj at birth such as poor Apgar scores, that he was apneic, had a low heart rate, was flaccid, and cyanotic are consistent with a hypoxic ischemic brain injury at the time of birth. He does not offer, however, an opinion as to whether Mrs. Xiong was in labor at the time of the injury. Additionally, while Dr. Bello-Espinosa testified that this type of injury is “usually a continuum of injury,” he could not offer an opinion on the exact timing: Q. Is there any way for you to determine within a reasonable degree of medical certainty as to the exact timing of when these injuries occurred with respect to whether it was before delivery, during delivery or during the immediate postdelivery period? A. No. As noted above, Intervenors retained and presented the deposition testimony of Dr. Robinson. Dr. Robinson’s ultimate opinion is that Mrs. Xiong was in labor at the time when she presented to Winnie Palmer on March 13, 2018. Dr. Robinson defines the term “labor” as uterine contractions that result in cervical change, and the change can be dilation and/or effacement. He opines that Mrs. Xiong was in labor for several reasons. First, Dr. Robinson noted that Mrs. Xiong had reported regular and painful contractions, which were supported by the fetal monitoring strips. His review of the strips revealed that she had at least 15 contractions from 3:09 to 4:27 p.m. Second, her cervical effacement was documented to be 70 percent, thus a 20 percent progression since she was examined on March 11, 2018. According to Dr. Robinson, there is a “big difference” between 50 and 70 percent effaced. Finally, she also had some bloody show over this time course when examined. Dr. Robinson opined that, on March 13, 2018, Mrs. Xiong was in “transitional labor.” He expanded on this opinion as follows: So, I believe that, you know, what was happening on that date is she was transitioning from latent to active phase labor, so she basically had achieved a regular uterine contraction pattern with a breech presentation, and she was now progressing toward active phase labor. Now, was she in active phase labor, no, but she was in labor, labor being defined as uterine contractions with cervical change, that’s dilation and/or effacement. In this case, it was specifically effacement. Dr. Robinson testified that the original injury to the fetus occurred after the second ECV attempt and prior to the C-section delivery. During this time period, he opine that there was persistent bradycardia, lack of variability in heart rate, and suggested hypoxia. With respect to whether the injury concluded prior to delivery, Dr. Robinson testified that, “[i]t would not necessarily have been completely during that time, it would have probably continued on beyond that time after delivery, based upon looking at what the Apgars are like.” He further testified, however, that with respect to post- delivery, he would defer to a pediatric neurologist overall as to the completeness and timing of injury. The undersigned finds that Drs. Willis, Bello-Espinosa, and Robinson possess significant education, training, and expertise, and are well-qualified and credentialed to render the above-noted opinions. The undersigned finds their opinions as set forth above to be credible. Petitioners retained and presented the deposition testimony of Sarah Mulkey, M.D., who is board certified in neurology with special qualifications in child neurology. Dr. Mulkey provided no opinions concerning whether Mrs. Xiong was in labor at the time of the original injury. Her ultimate opinion is that the brain injury was complete by the time of the C-section delivery, and that there was no ongoing further neurologic injury thereafter. Dr. Mulkey testified that an MRI obtained five days after birth is consistent with an acute injury that occurred over the span of 10 to 30 minutes. She conceded, however, that “we can’t tell exactly which 30 minute window back in history.” With respect to the low Apgar scores, Dr. Mulkey opined that “[t]he baby has already had an injury, and what we’re seeing are the neurological effects of that in these ten minutes as we’re scoring these Apgars. But it’s not – it’s not an ongoing new injury.” Dr. Mulkey was asked when, after delivery, Paj was receiving sufficient oxygen to the brain so that the brain was not suffering oxygen deprivation. In response, Dr. Mulkey testified that “. . . when the baby’s respiratory status was taken care of with being ventilated and the heart rate was good, this baby was then perfusing the brain pretty quickly.” The undersigned finds that Dr. Mulkey possesses significant education, training, and expertise, and is well-qualified and credentialed to render the above-noted opinions. Her opinion that Paj sustained an acute brain injury is credited. The undersigned, however, finds her opinion with respect to the injury being complete at the time of delivery to be less persuasive and entitled to less weight. Petitioners also retained and presented the deposition testimony of Berto Lopez, M.D. Dr. Lopez is an OB/GYN, however, he is not currently board certified and does not have admitting privileges at any hospital. At the final hearing, Dr. Lopez’s license to practice medicine had been revoked by the Department of Health, Board of Medicine. Dr. Lopez’s ultimate opinion is that Paj suffered a brain injury caused by oxygen deprivation and was rendered permanently and substantially mentally and physically impaired; however, said injury did not occur in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Dr. Lopez testified that Mrs. Xiong was not in labor on March 13, 2018, when she presented to Winnie Palmer because she did not have a complaint of increasing pain, she did not demonstrate a cervical change that could not be easily explained by interoperative bias (two different examiners coming up with slightly different results), and she did not have progressive dilation or effacement of a significant nature. Additionally, he opined that labor was not indicated as her contractions were not every two to three minutes. 44. While Dr. Lopez conceded that there had been a change in the effacement of Mrs. Xiong’s cervix from 50 to 70 percent, however, he discounted this change and attributed the same to the subjective scoring of two separate physicians. Dr. Lopez also acknowledged the documentation that Mrs. Xiong had bloody show. He opined that it is common in dilated women who have had multiple children to free up cervical mucus with or without blood, and the bloody show may have been due to the prior digital vaginal examination. In support of his opinion that Mrs. Xiong was not in labor at the time of injury, he also testified that at no time on March 13, 2018, was it ever documented that she was in labor, which he would have expected given that Mrs. Xiong was being assessed for the purpose of performing an ECV. Additionally, he testified that there is no indication that the Terbutaline or epidural were administered to abate labor. Dr. Lopez agreed that there are several stages of labor. He defined “active labor” as cervical change and more than five centimeters of cervical dilation. “Latent phase” labor was defined by Dr. Lopez as early labor wherein the patient might be having contractions, the cervix may be dilated (typically less than 6 cm), and she is progressing in effacement and dilation. When asked whether early labor is considered within the definition of labor, he testified that “[i]t’s one definition, yes.” He also agreed that painful contractions over several hours, change in cervical effacement, persistent dilation, and bloody show, would be consistent with a woman being in labor, whether it’s active or early labor. Dr. Lopez further opined that the initial injury did not commence on March 13, 2018, until sometime after the second ECV attempt; however, he deferred to a pediatric neurologist as to when the hypoxic injury would have concluded. Dr. Lopez possesses significant education, training, and experience to render the above-noted opinions. Dr. Lopez’s opinion concerning the timing of the initial injury is credited as well as his opinion that there was no documentation of labor on March 13, 2018. His opinion concerning whether Mrs. Xiong was in labor on March 13, 2018, is found less persuasive and entitled to less weight. Intervenor, Dr. Odom, also testified concerning whether Mrs. Xiong was in labor. She acknowledged that, on March 13, 2018, neither she nor any other healthcare provider involved in Mrs. Xiong’s care and treatment documented that she was in labor. She also confirmed that Mrs. Xiong’s membranes were intact at all times prior to the C-section delivery. Dr. Odom testified that Mrs. Xiong was not in “active labor” that day because her cervix was not dilated more than four centimeters, however, she opined that Mrs. Xiong was in “early labor” as she was experiencing contractions and there had been a cervical change in effacement from her prior examination on March 11, 2018. Dr. Odom declined to offer an opinion as to when the injury occurred. In support of the position that Mrs. Xiong was not in labor at the time of the original injury, Petitioners contend that labor is a contraindication to the performance of an ECV procedure, and, therefore, Dr. Odom would not have performed the ECV procedure if Mrs. Xiong was, in fact, in labor. Dr. Lopez testified that active labor is a contraindication in performing an ECV and that he believes the delivery nurse probably would not have permitted the procedure if she felt Mrs. Xiong was in labor. Dr. Willis confirmed that an ECV should not be attempted if the mother is in active labor because the contractions and the location of the fetus in the pelvis would make it difficult, if not impossible, to turn the baby externally. Dr. Robinson opined that labor is not a contraindication to an ECV and that it is done routinely. He acknowledged, however, that there are complicating factors that labor presents for performance of an ECV. Specifically, he testified that if the uterus is contracting regularly and will not relax, the fetus cannot be turned, and there is a potential for rupturing the membranes. The undersigned finds that, on March 13, 2018, Paj sustained an injury to his brain caused by oxygen deprivation occurring in the course of labor. The undersigned further finds that the injury was not complete at the time of the C-section delivery and continued into resuscitation in the immediate post-delivery period.
