The Issue Whether Hunter Lewis, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Petitioners, Angel Lewis and Jerry Lewis, are the parents and natural guardians of Hunter Lewis, a minor. Hunter was born a live infant on June 2, 2000, at Tallahassee Memorial Hospital, a hospital located in Tallahassee, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Hunter's birth was Arthur S. Clements, 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.1 Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. The cause and timing, as well as the significance of Hunter's neurologic impairment To address the cause and timing of Hunter's neurologic impairment, as well as its significance, Petitioners offered selected medical records relating to Hunter's birth and subsequent development (Petitioners' Exhibit 1); the Verified Medical Opinion of Richard J. Inwood, M.D., a neonatologist (Petitioners' Exhibit 2); and the deposition of Donald C. Willis, M.D., an obstetrician (Petitioners' Exhibit 3). In turn, Respondent offered the deposition of Paul R. Carney, M.D., a pediatric neurologist (Respondent's Exhibit 1). As for the significance of Hunter's impairments, it was Dr. Carney's opinion, based on the results of his neurologic evaluation of November 21, 2002, that Hunter's assessment "indicates substantial cognitive and language impairment," but "very mild long tract neurological findings." Dr. Carney described Hunter's developmental delay as static, as opposed to progressive, and he ventured no opinion as to the cause or timing of Hunter's impairments. As for Dr. Inwood, he was of the opinion that: . . . Hunter Lewis [ ] was delivered by induced labor prior to 38 weeks and had immature lungs. Because of the immaturity of the lungs he suffered hypoxic insult and, to a reasonable degree of medical probability, sustained significant neurological injury. This injury would not have occurred had his delivery been delayed until he had demonstrated lung maturity. His problems are not congenital and did not occur during labor or delivery, but rather after delivery . . . . Notably, Dr. Inwood did not further address Hunter's neurologic injury or, stated otherwise, did not speak to whether in his opinion, Hunter suffered both cognitive and motor impairment and, if so, the significance of each. As for Dr. Willis, he was of the opinion that the medical records revealed no evidence of oxygen deprivation or other trauma associated with labor, delivery, or resuscitation immediately following Hunter's birth. Significantly, the medical records are consistent with the opinions of Doctors Inwood and Willis that the cause and timing of Hunter's impairment was not associated with labor, delivery, or resuscitation, and with the opinion of Dr. Carney that, while Hunter may demonstrate substantial cognitive delay, his motor impairment is mild. Given the record, it must be concluded that the proof demonstrated, more likely than not, that Hunter's impairments were not occasioned by an injury to the brain caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital, and that he is not permanently and substantially physically impaired.
The Issue At issue in the proceeding is whether Selvin McCoy, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact As observed in the preliminary statement, neither Petitioner nor anyone on her behalf appeared at hearing, and no proof was offered to support her claim. Respondent, in light of such failure, declined the opportunity to offer any evidence. Consequently, there being no proof, it cannot be factually resolved whether Selvin McCoy, a minor, suffered a "birth-related neurological injury" as alleged in the claim for benefits.
The Issue Whether Bryan Siravo has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.
Findings Of Fact Bryan Siravo (Bryan) is the natural son of Robert and Mauro Siravo. He was born a live infant on March 13, 1990, at Plantation General Hospital in Broward County, Florida, and his birth weight was in excess of 2500 grams. The physician delivering obstetrical services during the birth of Bryan was Edward Buonopane, M.D., who was, at all times material hereto, a participating physician in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Bryan Siravo was delivered by cesarean section because of a breach presentation and maternal obesity. The delivery was without complications and Bryan presented with Apgar scores of 8 at one minute and 9 at five minutes. Resuscitation was not required in the immediate postdelivery period, and there was no evidence of fetal distress. After birth, Bryan was transported to the regular or newborn nursery and was found in a cyanotic state approximately three hours after birth. Bryan was subsequently transferred to the neonatal intensive care unit where he was intubated after about one hour. Bryan's condition continued to deteriorate over the next 24 hours and an echocardiogram revealed the presence of a large patent ductus arteriosus and heart valve insufficiency. Due to the continued deterioration of his condition, Bryan was transferred to Miami Children's Hospital on March 15, 1990. At Miami Children's Hospital, Bryan was diagnosed with respiratory distress syndrome type I, severe; a condition which impairs the ability to breath, and which arises after birth when the infant is required to breath outside the womb. Bryan also underwent multiple ultrasound and CT scans of the brain. These neuroimaging studies revealed the presence of a Grade IV intraventricular hemorrhage. Based on the credible proof of record, it is concluded that Bryan suffered an injury to the brain caused by oxygen deprivation which rendered him permanently and substantially mentally and physically impaired. Such injury did not, however, occur during labor, delivery or resuscitation in the immediate post-delivery period. Rather, the proof demonstrated that the origins of Bryan's hemorrhage and his resultant neurologic injury were a combination of respiratory distress syndrome and patent ductive arteriosus, which began to operate after his delivery. Such mechanism, acting in consort, increased, over time, the pressure in the draining veins from Bryan's brain and, therefore, the pressure in his brain, with the consequent hemorrhage.
Findings Of Fact Based upon the evidence adduced at the July 14, 1993, Division-conducted hearing in this case, and the record as a whole, the following Findings of Fact are made: Kathleen Behan is the natural daughter of Mary Lou and Gerald Behan. She was born on November 30, 1989, at Plantation General Hospital in Broward County, Florida. Her birth weight was in excess of 2500 grams. Kathleen was delivered by caesarian section performed by the family's obstetrician, Mariano J. Rodriguez, Jr., M.D., after her mother had experienced a spontaneous rupture of the fetal membrane. At the time of Kathleen's birth, Dr. Rodriguez was a participant in the Florida Birth-Related Neurological Injury Compensation Plan. Kathleen had an Apgar score of 6 one minute after birth and an Apgar score of 9 five minutes after birth. Apgar scores reflect the attending physician's or nurse's assessment of the newborn infant's well-being based upon clinical observations regarding the infant's heart rate, respiratory effort, color, muscle tone, and reflexes. The higher the score, the greater the state of well being. The highest score attainable is a 10. Apgar scores are commonly used to determine if a newborn infant has suffered a neurological injury of a substantial and permanent nature during labor or delivery or in the immediate post-delivery process. Kathleen's Apgar scores are not consistent with her having suffered such a birth-related injury. After her condition was evaluated, Kathleen was taken from the delivery room to Plantation's "well-baby" nursery. She remained there without incident until December 2, 1989, when she was found asystolic in her crib after having experienced an acute life-threatening event or ALTE. Kathleen was resuscitated and survived the incident. She, however, has neurological impairment. The neurological impairment from which she now suffers was not the product of oxygen deprivation or mechanical injury that occurred during labor or delivery or in the immediate post-delivery period.
The Issue Whether Kevin A. Hackerman, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Petitioners, Susan Hackerman and Steven Hackerman, are the parents and natural guardians of Kevin A. Hackerman, a minor. Kevin was born a live infant on September 25, 2000, at Halifax Hospital Medical Center, a hospital located in Daytona Beach, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Kevin's birth was Pamela Carbiener, 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.1 Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, indisputably, Kevin is permanently and substantially mentally and physically impaired. What remains to resolve is whether the proof supports the conclusion that, more likely than not, Kevin's neurologic impairment resulted from an "injury to the brain . . . caused by oxygen deprivation or mechanical injury, occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period," as required for coverage under the Plan. The cause and timing of Kevin's neurological impairment To address the cause and timing of Kevin's neurological impairment, Petitioners offered selected medical records related to Kevin's birth and subsequent development (Petitioners' Exhibit 1); the deposition of Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology (Petitioners' Exhibit 2); the results of Dr. Duchowny's neurologic examination of Kevin, as well as Dr. Duchowny's conclusions following review of the medical records (Petitioners' Exhibits 3-5); the deposition of Rubin Lopez, M.D., a physician board-certified in pediatrics, who attended Kevin on September 26, 2000, at Halifax Hospital (Petitioners' Exhibit 6); the deposition of Pamela Carbiener, M.D., the delivering obstetrician (Petitioners' Exhibit 7); the deposition of Robert Hartmann, M.D., a physician board-certified in pediatrics, who practices pediatrics and neonatology, and who attended Kevin at Halifax Hospital (Petitioners' Exhibit 8); the deposition of Susan Newell, R.N., the nurse who attended Kevin following delivery (Petitioners' Exhibit 9); the deposition of Donald Willis, M.D., an obstetrician who reviewed the medical records (Petitioners' Exhibit 10); and the lay testimony of Susan Hackerman, Kevin's mother, and Beverley Giardina, Kevin's maternal grandmother. As for the event, and its timing, which caused Kevin's neurologic impairment, it was Dr. Duchowny's opinion, based on the results of his neurologic evaluation of Kevin on November 27, 2002, and review of the medical records, that, while of unknown etiology, Kevin's neurologic impairment was prenatal (developmental) in origin, having occurred prior to the onset of labor, and not associated with oxygen deprivation or mechanical injury, during labor, delivery, or resuscitation. Dr. Duchowny described the bases for his opinion, as follows: Q. . . . Could you tell me why [in your opinion Kevin does not qualify under the NICA statute]? A. I believe that Kevin's neurologic impairment was unlikely to be acquired in the course of labor, delivery or the immediate resuscitation period. He was born at 40 weeks gestation, but was small for his gestational age in that his birth weight was only five pounds-seven ounces. His head circumference was small at birth. It was 32 centimeters, indicating an inadequate development of the brain prior to birth and, additionally, he had Apgar scores which were three and eight, and the eight Apgar score at five minutes suggested he was doing reasonably well at the time of delivery. In fact, he was doing well enough that the doctors didn't need to intubate him and provide ventilatory support, elected not to draw blood gases and, in fact, felt that he was reasonably stable just after delivery. Kevin did experience some respiratory problems subsequently in that he developed left lower lobe pneumonia and a left tension pneumothorax but, in my opinion, these problems were treated adequately and he was not significantly hypoxic nor was there any evidence of damage to the brain as a consequence of these postnatal events. Furthermore, Kevin's MRI scan which was performed in May of 2001 demonstrated the possibility of a small degree of periventicular leukomalacia [PVL] but was otherwise within normal limits. In my opinion, this MRI finding is inconsistent with the severe nature of Kevin's neurologic impairment. Q. When you say that that MRI was . . . inconsistent, what do you mean by that, doctor? A. What I mean is that given Kevin's severe degree of impairment, had the cause been perinatal hypoxia, I would have expected to see many more abnormalities and more widespread involvement on the MRI scan, abnormalities such as diffuse brain atrophy, enlargement of the ventricles, possibly areas of abnormal signal. None of those were present. * * * Q. There is some notation in the records throughout this case of meconium staining. Can you please indicate whether nor not the meconium staining that is noted has any significance with regard to your medical opinion. A. Yes . . . . Meconium staining represents distress in utero and requires approximately 72 hours for this finding to take place. This finding, therefore, again, predates Kevin's neurological problems prior to the onset of labor and delivery. The opinions of Daniel Shanks, M.D., Kevin's consulting pediatric neurologist following discharge from Halifax Hospital, were consistent with those expressed by Dr. Duchowny. Pertinent to this case, Dr. Shanks evaluated Kevin on March 30, 2001, at 6 months of age, and concluded: IMPRESSION: Developmental delays likely global but worse in regard to his motor skills as compared to social skills. Language skills may be significantly delayed as well. He has microcephaly and has had this since birth. This suggests more likely a prenatal situation which could either be related to malformation, injury, chromosomal or metabolic abnormality, or alternate syndromic-type diagnosis. Often, no specific etiology can be established with certainty. My bias would be to pursue initial evaluations to include brain MRI Scan, high- resolution karyotype and lactate, and baseline ophthalmologic evaluation. It would seem reasonable also to undergo a baseline genetics evaluation to help guide additional need for metabolic work up or for review of any abnormalities on karyotype. Additional work up can be guided by the above. (Petitioners' Exhibit 1.) Following testing, Kevin was again evaluated by Dr. Shanks on June 15, 2001. Dr. Shanks reported the results of that testing and his evaluation as follows: . . . Kevin is seen today in the Pediatric Neurology Clinic for follow-up of evaluation for static encephalopathy and quadriplegic cerebral palsy. He underwent neuroimaging with brain MRI last month that demonstrated findings suspicious for PVL, however, somewhat difficult to well assess due to his age. He had chromosomes high resolution that were negative and a normal lactate. No specific etiology is apparent for his encephalopathy and he continues to evidence significant motor delays. Language delays are a little bit more difficult to assess. He is very visually alert and socially attentive. He has poor head control and low truncal tone and low base tone when relaxed. He has very limited mobility . . . . (Petitioners' Exhibit 1.) Following evaluation, Dr. Shanks, reported his impression, as follows: . . . Static encephalopathy likely from a prenatal process. No specific etiology has been established to this point. If he has a dysmyelinating or PVL type evolution, this would suggest a process that adversely affected CNS during third trimester. There is no evidence of tissue loss or an injury. As for Dr. Willis, the obstetrician who reviewed the medical records, it was his opinion that the birth records failed to support a conclusion that Kevin suffered a brain injury from oxygen deprivation or other trauma associated with his birth or resuscitation. Dr. Carbiener, the attending obstetrician, was also of the opinion that it was unlikely Kevin suffered an injury during labor and delivery, but declined to address the period following delivery, since she was attending the mother, not the child, at the time. Dr. Lopez, the pediatrician who examined Kevin at approximately 4 hours of age (12:38 a.m., July 26, 2000), offered no opinion regarding the etiology of Kevin's developmental delays, or whether he suffered oxygen deprivation or mechanical injury during labor and delivery.2 Dr. Hartmann, the attending neonataologist at Halifax Hospital, likewise ventured no opinion regarding the etiology of Kevin's developmental delays or whether he suffered oxygen deprivation during labor; however, based on the newborn resuscitation record, Dr. Hartmann was of the opinion that Kevin did not suffer any significant lack of oxygen from the time of delivery until positive pressure ventilator was initiated. Nurse Newell, who attended Kevin following delivery, voiced no opinion regarding the likelihood that Kevin suffered brain injury from oxygen deprivation or other trauma. Given the record, it must be concluded that the proof demonstrated, more likely than not, that Kevin's deficits were not occasioned by an injury to the brain caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period, but were occasioned by a developmental abnormality, that preceded the onset of labor. See, e.g., Wausau Insurance Company v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obliged to present expert medical evidence establishing that causal connection."); Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation."). In so concluding, the testimony of Mrs. Hackerman and Mrs. Giardina has not been overlooked; however, while competent to demonstrate that Kevin was depressed at birth, and later developed respiratory distress, it was not competent proof to support any conclusion regarding the etiology of Kevin's developmental delays. See, e.g., Vero Beach Care Center v. Ricks, 476 So. 2d 262, 264 (Fla. 1st DCA 1985)("[L]ay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observable.").
The Issue Whether Brittany C. Story has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.
Findings Of Fact Brittany C. Story is the natural daughter of Constella Story. She was born on January 10, 1990, at Broward General Medical Center, Broward County, Florida, and her birth weight was in excess of 2500 grams. Brittany was delivered by George Edouard, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan. The claim for benefits under the Florida Birth- Related Neurological Injury Compensation Plan filed on behalf of Brittany contends that she "suffered a neurological impairment to wit: Erb's Palsy to the left upper extremity at the time of birth." To support such contention, petitioner offered the testimony of Melvin Grossman, M.D., a board certified neurologist, who opined that Brittany suffered a left brachial plexus palsy, an Erb's palsy, and that the injury to the left brachial plexus that resulted in such palsy most likely occurred during the course of delivery. It was, however, Dr. Grossman's opinion that Brittany's mental functioning was age appropriate and not substantially impaired, and that the physical impairment she suffers (left Erb's palsy) is the consequence of an injury to her left brachial plexus, which is not a brain or spinal cord injury. Juxtaposed with the proof offered on behalf of petitioner, respondent offered the testimony of Michael Duchowny, M.D., who is board certified in pediatrics, neurology with special emphasis in child neurology, and clinical neurophysiology. It was Dr. Duchowny's opinion that the condition from which Brittany suffers was not caused in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital but, rather, was a consequence of congenital deformity. Dr. Duchowny concurs, however, that Brittany is not substantially mentally impaired, and that a brachial plexus injury, which can result in an Erb's palsy, is not an injury to the brain or spinal cord. Here, it is not necessary to resolve the conflict in the testimony, as to the cause of Brittany's injury, since the proof is uncontroverted that a brachial plexus injury, the cause of Erb's palsy, is not a brain or spinal cord injury. Moreover, it is uncontroverted that Brittany is not substantially mentally impaired. Under such circumstances, the proof fails to demonstrate that Brittany suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery or resuscitation in the immediate post- delivery period, or that the injury Brittany did suffer rendered her permanently and substantially mentally and physically impaired.
