Findings Of Fact By stipulation filed December 2, 1993, petitioners and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Florida Statutes, a claim was filed on behalf of the above-styled infant against the Florida Birth-Related Neurological Injury Compensation Association (the "Association") on behalf of Jasmin Soto, Violeta Rodriguez and Luis Soto (the "Petitioners") for benefits under Chapter 766.301-766.316 (F.S.) 1988. That a timely filed claim for benefits complying with the requirements of F.S. 766.305 was filed by the Petitioners and a timely denial was filed on behalf of the Association. That the infant, Jasmin Soto, was born at Baptist Hospital on September 29, 1990, and that the said hospital was a licensed Florida Hospital and the attending physician was a participating physician within the meaning of Chapter 766, Florida Statutes. That the Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. That Section 766.302(2), Florida Statutes, states that "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post- delivery in a hospital, which renders the infant permanently and substantially, mentally and physically impaired. The parties agree that Jasmin Soto suffers from a right brachial plexus injury. That the parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., who appears on behalf of the Respondents and Leon I. Charash, M.D., who appears on behalf of the Petitioner. While Dr. Charash has not been deposed, Dr. Duchowny has been deposed and his deposition is submitted as part of this Stipulation. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further Stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply. Based upon this stipulation, the parties request the hearing officer to rule on Petitioner's claim based upon this Stipulation, the attached medical records and the deposition of Dr. Duchowny. The neurological examinations of Jasmin reveal that she suffered from a "mild" to "moderate" right Erb's palsy related directly to the right brachial plexus injury she received at birth. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury. Moreover, Jasmin's mental functioning is normal and not impaired due to any birth- related complications.
The Issue At issue in this proceeding is whether Miranda P. Larkin, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Petitioners, Randy Larkin and Denise Larkin, are the parents and natural guardians of Miranda P. Larkin, a minor. Miranda was born a live infant on November 24, 1998, at Munroe Regional Medical Center, a hospital located in Ocala, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Miranda was Seaborn Hunt, 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(2), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimants demonstrate, more likely than not, that the infant suffered an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Section 766.302(2), Florida Statutes. Here, the uncontroverted proof demonstrates that the infant has neither a substantial mental nor a substantial physical impairment. Consequently, it is unnecessary to address whether she suffered an injury to the brain or spinal cord, and if so, whether any such injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital. Miranda's mental and physical presentation On February 9, 2000, at Petitioners' request, Miranda was examined by Michael S. Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital, Miami, Florida. The results of that evaluation were reported, as follows: . . . Miranda is a 14 month old girl who was brought by her mother for an evaluation of developmental status. Mrs. Larkin began by explaining that Miranda's problems are the result of birth related trauma. She was born at 37 weeks gestation at Monroe Regional Hospital. Mrs. Larkin's pregnancy was complicated by gestational diabetes and toxemia with hypertension. The delivery, itself, was complicated by some respiratory distress and metabolic instability, followed by 1 or 2 seizures. Miranda was transferred to Shan's Hospital and remained in their Newborn Unit for 13 days. Mrs. Larkin's feels that Miranda was "under stress for a long time". Upon returning home, Miranda's course stabilized. She did have a history of her head turning to the right and her skull growth was noted to be asymmetric. She was ultimately diagnosed with right coronal synostosis and had surgical repair in October of 1999 at age 11 months. She had a prior work up including an MRI, EEG and EKG. The MRI apparently revealed "fluid on the brain on one side", but Mrs. Larkin does not have further information. She does not believe that Miranda has lateralized weakness. Miranda sat at 6 months and stood at 7 months. She was walking now in an unsteady fashion, but is able to ambulate without support. She speaks in multiple words. Miranda's health has otherwise been stable. She is on no chronic medications. Her vision and hearing are said to be normal. Miranda is not yet sleeping through the night. She has an excellent appetite. The FAMILY HISTORY reveals the father to be 44; the mother to be a 35 year old, gravida 1, para 1, ABO. There are no family members with neurodegenerative illnesses, mental retardation or cerebral palsy. Miranda is fully immunized and has no known allergies. She has had additional surgeries, including a probe of her tear duct and tubes in her ears. PHYSICAL EXAMINATION reveals Miranda to be alert, pleasant and cooperative. She sits quietly in her mother's lap and displays an appropriate degree of stranger anxiety. The head circumference measures 47.9 cm, which is at the 80th percentile for age matched controls. The coronal synostosis surgical scar is healing well. There is an asymmetric cranial vault with relative depression on the left and the left eye appears lower than the right with narrowing of the palpebral fissure. The tongue movements are coordinated. The neck is supple without masses, thyromegaly or adenopathy. There are no neurocutaneous stigmata and no digital or palmar abnormalities. The cardiovascular, respiratory and abdominal examinations are normal. Miranda's NEUOLOGIC EXAMINATION reveals her to be socially alert and interactive. She maintains good central gaze fixation and has conjugate following eye movements. The pupils are 3 mm and react briskly to direct and consensually presented light. There are no fundoscopic changes. Motor examination reveals symmetric strength and bulk. The tone is slightly diminished for age. There is no focal weakness and no atrophy. There are no adventitious movements. Miranda is able to walk with some developmental instability, but she does not fall or lean to either side. There is no evidence of torticollis. The stance is somewhat wide based. There is withdrawal of all extremities to stimulation. The deep tendon reflexes are 2+ throughout and the plantar responses are equivocal. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Miranda's neurologic examination reveals evidence of mild generalized hypotonia with some axial instability. She additionally has craniofacial dysmorphism, secondary to her coronal synostosis. It was Dr. Duchowny's opinion that Miranda's neurologic examination revealed no significant neurologic abnormalities, and that she does not suffer either a substantial motor or mental impairment. Such opinion is uncontroverted, grossly consistent with the record, and credible. Consequently, for reasons appearing more fully from the Conclusions of Law which follow, it must be resolved that Miranda does not qualify for coverage under the Plan.
The Issue At issue in this proceeding is whether obstetrical services were rendered by a participating physician during the birth of Robert C. Ball, a minor, such that compensation may be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact At hearing, Petitioner, Nancy Ball, affirmatively averred that she had no competent evidence to offer which would demonstrate that any physician who provided obstetrical services during the course of labor, delivery, or resuscitation in the immediate post-delivery period (the birth of Robert) was a "participating physician," as that term is defined by the Plan. Contrasted with the dearth of proof offered by Petitioner, Respondent offered affirmative proof that no physician who provided obstetrical services during the birth of Robert was a "participating physician," as that term is defined by the Plan.
Findings Of Fact By stipulation filed January 3, 1994, petitioners and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Fla. Stat., a claim was filed on behalf of the above-styled infant against NICA on behalf of VENISE FERDINAND, MARIE VIRGILE and MANES FERDINAND (the "Petitioners") for benefits under Chapter 766.301-766.316 Fla. Stat. That a timely filed Claim for benefits complying with the requirements of Section 766.305, Fla. Stat., was filed by the Petitioners and a timely Notice of Non- Compensability Setting forth that NICA denied the claim was filed on behalf of NICA. That infant, VENISE FERDINAND, was born at Broward General Medical Center on April 1, 1992, and Broward General Medical Center was a licensed Florida Hospital and the attending physician, Joseph Nicaisse was a participating physician within the meaning of Chapter 766, Fla. Stat. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. Section 766.302(2), Fla. Stat. states that "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. The parties agree that VENISE FERDINAND suffers from a left brachial plexus palsy injury. A brachial plexus palsy injury is not an injury to the brain or spinal cord and further, does not result in any mental injury. The parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., including in particular his reports dated February 10, 1993, March 12, 1993 and November 15, 1993. Copies of these reports have been attached hereto and incorporated herein respectively as Exhibits 1, 2 and 3. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply. Based upon this stipulation, the parties request the hearing officer to rule on Petitioners' claim based upon this Stipulation, and the attached medical records. The neurological examinations of Venise Ferdinand reveal that she suffered a left Erb's palsy directly related to the left brachial plexus injury she received at birth. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury and, further, does not result in mental injury. Moreover, Venise Ferdinand's mental functioning is normal and not impaired due to any birth related complications.
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 At issue in the proceeding is whether James Russell, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Lisa Russell and William Russell, III, are the parents and natural guardians of James Russell (James), a minor. James was born a live infant on February 12, 1997, at Columbia Memorial Hospital, a hospital located in Jacksonville, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of James was Brent Seibel, M.D., who was at all times material hereto a "participating physician" in the Florida Birth- Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(2), Florida Statutes. Pertinent to this case, coverage is afforded under the Plan, when the claimants demonstrate, more likely than not, that the infant suffered an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, James' mental presentation is dispositive of the claim and it is unnecessary to address the cause or timing of any injury he may have suffered. To address James' physical and mental status, the opinions of Michael Duchowny, M.D., a pediatric neurologist were offered. (Respondent's Exhibit 1). It was the uncontroverted opinion of Dr. Duchowny that, while James suffers a permanent and substantial physical impairment, he does not suffer a permanent and substantial mental impairment. Consequently, it must be resolved that the proof failed to demonstrate that James was "permanently and substantially mentally and physically impaired," as required for coverage under the Plan.
The Issue At issue in this proceeding is whether Shalyn L. Hayman, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Shalyn L. Hayman (Shalyn) is the natural daughter of Rosalee Hayman and Basil Hayman. She was born a live infant on January 6, 1993, at St. Mary's Hospital, a hospital located in West Palm Beach, Palm Beach County, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Shalyn was John Pauly, M.D., who was, at all time material hereto, a participating physician in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. The parties have stipulated and the proof demonstrates, that Shalyn is permanently and substantially mentally and physically impaired. What is at issue is the cause and timing of the event or events giving rise to such impairment or, stated differently and pertinent to these proceedings, whether Shalyn's impairment resulted from an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period in the hospital." Section 766.302(2), Florida Statutes. Mrs. Hayman's antepartum course and Shalyn's delivery Mrs. Hayman's pregnancy was essentially uncomplicated, except for being post-term. In this regard, it is noted that Mrs. Hayman's due date was established as December 25, 1992, at forty weeks gestation, and that when delivered on January 6, 1993, Shalyn was almost two weeks overdue, a high risk situation. At or about 5:30 a.m., January 6, 1993, Mrs. Hayman presented to St. Mary's Hospital. At the time, Mrs. Hayman was experiencing mild, irregular contractions, and vaginal examination revealed the cervix to be at 1 to 2 centimeters, effacement at 50 percent, and the fetus at station -1. The membrane was noted to be intact, and monitoring revealed a fetal heart tone in the 130's, with poor variability and no observed reactivity. Given the circumstances, Mrs. Hayman was admitted to the labor and delivery area at or about 6:00 a.m. At or about 7:50 a.m., Mrs. Hayman's contractions were still noted as irregular; however, vaginal examination revealed her cervix was changing, and it was recorded at 2 centimeters, effacement at 80 percent, and the fetus at station -3. Fetal monitoring reflected a fetal heart tone in the 140's, but an abnormal pattern, with decreased variability, lack of acceleration, and persistent late decelerations. That heart rate and pattern persisted through delivery. Mrs. Hayman's labor continued to progress slowly, and at 9:20 a.m. vaginal examination revealed the cervix to be 3 centimeters, with effacement at 80 percent, and at 10:44 a.m. the cervix was noted to be 4 to 5 centimeters. At 10:55 a.m., labor was augmented with Pitocin, and thereafter progressed fairly normally. At 1:55 p.m., January 6, 1993, Shalyn was delivered vaginally. Upon delivery thick meconium stained fluid was noted, but none was present below the cords. Shalyn initially required intubation and bagging with 100 percent oxygen for a low heart rate and poor respiratory effort, but was extubated at approximately 10 to 15 minutes of age in the delivery room. Her Apgar scores were 4, 7 and 8 at one, five and ten minutes. 3/ Shalyn was noted to have the physical stigmata of Down's syndrome, which was later substantiated by chromosomal analysis, and was ultimately transferred to the neonatal intensive care unit (NICU) for further care and management. Following admission to the NICU, Shalyn failed to maintain appropriate respirations or oxygenation, and she was re- intubated and placed on ventilator support. Her hospital course was consistent with severe persistent pulmonary hypertension of the newborn, and she required extensive ventilator support. Cardiac disease was ruled out by echocardiogram. Shalyn's initial hematocrit was 57 with a platelet count of 43,000. The reason for this thrombocytopenia was unknown, although Down's syndrome or perinatal depression were considered as possibilities. On January 7, 1993, Shalyn developed symptomatic polycythemia and a partial exchange transfusion was done. The same day, Shalyn suffered cardiac arrest, which responded to epinephrine and Bicarb. On January 8, 1993, Shalyn was noted to have developed seizure activity, which was treated with Phenobarbital, Dilantin and intermittent lorazepam before the seizures were under control. An electroencephalogram demonstrated bilateral spiked discharges. In response to the seizure activity, a neonatal head ultrasound was taken on January 8, 1993, to rule out intraventricular hemorrhage. The ultrasound was entirely normal, with no evidence of hemorrhage into the ventricular system or the tissue immediately surrounding the ventricle. Shalyn was slowly weaned from ventilatory support and by January 11, 1993, was on an oxygen hood, and by January 14, 1993, was on room air. Physical examination on January 12, 1993, revealed Shalyn to be alert and active under the oxygen hood, her anterior and posterior fontanelle open and flat, not bulging, and neurologically to demonstrate good activity, but decreased tone. On January 15, 1993, Shalyn underwent a CT brain scan to rule out congenital malformation. That scan revealed the following: There is a large right sided intracerebral hematoma involving the occipital area with mild mass effect on the right lateral ventricle. There is a much smaller area of intracerebral hematoma anterior to the larger one in the high frontal parietal area and there is a tiny intracerebral hematoma in the high left frontal parietal region. There is also some hemorrhage in the body of the left lateral ventricle and the ventricular system shows mild dilatation but no midline shift. There is no extra-axial fluid collections. IMPRESSION: There are bilateral intracerebral hematomas but the primary and largest one is located in the right parietal occipital region and causing mild mass effect on the ventricular system. There is minimal hydrocephalus with no midline shift. There is some extension into the ventricular system with blood in the left lateral ventricle. A follow-up head ultrasound was administered on January 23, 1993. In contrast to the head ultrasound conducted on January 8, 1993, the January 23rd ultrasound clearly demonstrated "a dilated ventricle system with bilateral intraventricular hemorrhage with large right occipital parenchymal bleed, essentially unchanged from the previous CT scan" of January 15, 1993. On January 25, 1993, Shalyn underwent a second brain CT scan. The January 25th scan indicated the hemorrhage was now resolving and had decreased in size. In place of the resolving hemorrhage, a resultant encephalomalacia was diagnosed. Subsequent CT scans have confirmed bilateral damage in the form of porencephalic cystic areas in the right temporal parietal and occipital lobes. These areas are consistent with the resolution of an infarct and hemorrhage. The focal damage to Shalyn's brain, evident from the CT scans, is consistent with an injury caused by an intraventricular hemorrhage, but is not consistent with the global changes to the structures of the brain associated with asphyxia. Shalyn was discharged from St. Mary's on January 30, 1993, with evident neurologic impairment. Currently, Shalyn is microcephalic, cortically blind, and has increased tone and spasticity of all four limbs, with very limited motor development. In sum, neurological examination reveals a severe degree of both mental and motor impairment, that is permanent in nature. The cause and timing of Shalyn's injury In addressing the cause and timing of Shalyn's injury, it is first observed that Shalyn has been diagnosed with Trisomy 21, also known as Down's Syndrome. Down's Syndrome is a genetic condition, which often results in mental and physical impairment. In Shalyn's case, however, her neurological impairments are significantly different and more severe than one would normally expect in a child suffering only from Down's Syndrome. Consequently, it must be concluded that Down's Syndrome is not the cause of Shalyn's current impairments. Having rejected Down's Syndrome as the cause of Shalyn's injury, the only logical conclusion to be drawn from the proof is that the injury Shalyn suffered to her brain was occasioned by a large intracerebral hemorrhage, and not asphyxia. In so concluding, it is observed that the pattern of her brain damage is focal, as opposed to the global damage one would attribute to asphyxia. Moreover, the medical records do not evidence associated organ damage, which would normally be present if Shalyn had suffered acute hypoxia. Finally, while the delivery records clearly reflect an abnormal fetal heart rate from the onset of labor, no pattern developed that would reflect acute hypoxia or an asphyxial state during labor or delivery and, as heretofore noted, there was no objective evidence of brain damage consistent with asphyxia. Consequently, it is unlikely that Shalyn suffered a hypoxic episode during labor or delivery. Having resolved that the cause of Shalyn's brain injury, and the resultant permanent and substantial mental and physical impairment, was the intracerebral hemorrhage she suffered, it becomes necessary to address the timing and origin of that hemorrhage. As for the timing, the proof demonstrates that Shalyn's ultrasound of January 8, 1993, demonstrated a normal ventricular system and no evidence of hemorrhage; however, the CT brain scan of January 15, 1993, did reveal the presence of such hemorrhage. Therefore, based on the medical evidence of record, it is reasonable to conclude that Shalyn experienced the disabling intracerebral hemorrhage sometime between January 8, 1993, and January 15, 1993, or, stated differently, after labor, delivery and resuscitation in the immediate post-delivery period. As for the cause of the hemorrhage, the proof demonstrates that, shortly after birth, Shalyn developed polycythemia, and that polycythemia is associated with hemorrhages, including hemorrhagic stroke. 4/ Given the proof, the opinion of Michael Duchowny, M.D., a board certified pediatric neurologist associated with Miami Children's Hospital, that Shalyn's hemorrhage most likely was associated with her polycythemia and was not related to any event during the birth process, is credited.
