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.
The Issue At issue is whether Elizabeth Ann Adams, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact April D. Adams and Jeffrey Floyd Adams are the natural parents of Elizabeth Ann Adams, a minor. Elizabeth was born a live infant on September 17, 2004, at St. Luke's Hospital, a licensed hospital located in Jacksonville, Florida, and her birth weight exceeded 2,500 grams. Obstetrical services were delivered at Elizabeth's birth by Michelle McLanahan, 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. Sufficient notice of participation in the Florida Birth-Related Neurological Injury Compensation Plan on the part of Michelle McLanahan, M.D., and St. Luke's Hospital was provided to April D. Adams. 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."3 § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, Petitioners were of the view that Elizabeth suffered a subgaleal hemorrhage4 (a bleed) and resulting subgaleal hematoma5 (a collection of blood within the tissue) between the skull and scalp (outside the brain) resulting from the use of the vacuum extractor during delivery, and that the hemorrhage was substantial enough to result in hypovolemia, and ultimately hypoxic-ischemic brain injury.6 (Petitioners' Memorandum Regarding Final Order, pp. 5-7). In contrast, NICA was of the view that the record failed to support the conclusion that Elizabeth's brain injury was caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period and that, regardless of the etiology of her brain injury, Elizabeth was not permanently and substantially mentally and physically impaired. Intervenor expressed no position on the issue. Elizabeth's birth and immediate newborn course At or about 11:24 a.m., September 16, 2004, Mrs. Adams, with an estimated delivery date of September 20, 2004, the fetus at 39 3/7 weeks' gestation, and a history of mild pregnancy induced hypertension (PIH), was admitted to St. Luke's Hospital for induction of labor. There, initial physical examination revealed her membranes were intact, no vaginal bleeding, and external fetal monitoring revealed a reassuring fetal heart rate baseline of 150-160 beats per minute, average long term variability and no decelerations. At or about 12:40 p.m., an IV was started for hydration, and at 3:14 p.m., Mrs. Adams' membranes spontaneous ruptured, with clear fluid noted. At the time, vaginal examination revealed the cervix at 2 centimeters dilation, effacement at 70 percent, and the fetus at -3 station. In the interim, external fetal monitoring was reassuring for fetal well-being. Thereafter, Cytotec ("miso[prostol]") was placed vaginally to soften the cervix (for induction of labor). Mrs. Adams' progress continued to be monitored, and at 6:10 p.m., vaginal examination revealed the cervix unchanged. However, at 6:58 p.m., vaginal examination revealed some change, with the cervix at 3-4 centimeters, effacement at 70 percent, and the fetus at -3 station, and an intrauterine pressure catheter (IUPC) was placed to measure the force of contractions during labor. Fetal monitoring continued to be reassuring for fetal well-being, with a fetal heart rate baseline of 145-160 beats per minute, average long term variability, and no decelerations. At 8:16 p.m., Pitocin infusion (for labor induction) was started, and at 8:37 p.m., contractions were noted at 1-2 minutes, and vaginal examination revealed the cervix at 5 centimeters dilation, effacement at 70 percent, and the fetus at -1 station. Fetal monitoring continued to be reassuring, with a baseline in the 150s. Mrs. Adams' progress continued, albeit slowly, with a prolonged second stage of labor (the expulsion/pushing stage) lasting more than two and a half hours,7 and at 5:03 a.m., September 17, 2004, Elizabeth was delivered vaginally, with vacuum assistance (three attempts). Of note, approximately three hours before delivery, recurrent variable decelerations and a mild baseline tachycardia developed, and approximately eight minutes before delivery severe, repetitive variable decelerations developed which prompted the vacuum-assisted delivery. At delivery, Elizabeth was dried, stimulated, and bulb-suctioned, otherwise no resuscitation measures were required. Apgar scores were good (8 and 9, at one and five minutes).8 Physical examination at 5:10 a.m., revealed no abnormalities, with the exception of an elevated temperature (102.7, rectal) and skin color (acrocyanosis was noted).9 By 5:40 a.m., skin color was noted as pink. Elizabeth roomed-in at her mother's bedside, and was routinely monitored by hospital staff. Of note, Elizabeth's temperature remained elevated until 1:30 p.m., when it was documented at 98.1 (auxiliary). In the interim, at 11:58 a.m., with temperatures of 100.0 (auxiliary) and 100.7 (rectal), complete blood count (CBC) and blood cultures were drawn. The CBC results revealed an elevated white blood count. Under the circumstances, the attending physician (Dr. Schwartz) noted, at 4:34 p.m., "[w]ill repeat CBC in a.m. . . . [w]ill not st[art] ABX unless temps elevated again." Blood culture was subsequently reported as negative. It also may be noted, although not shown to be clinically significant, that Elizabeth's behavior was, starting at 6:10 a.m., periodically described as "irritable" and "fussy." (Exhibit 18, pp. 22-24). Otherwise, Elizabeth's newborn stay was without incident, with normal newborn examinations, breastfeeding well, and voiding and stooling appropriately, until 8:35 p.m., when the attending nurse made the following entry in the records: Assumed care of infant. Infant/Mom ID # checked/verified. Physical assessment done and noted. Infant noted to be jittery and irritable. Mom states that infant has not breastfed since 1700-1730. Temp stable now at 98.8. Infant noted to settle after wrapping. Placed in mother's arms. Mom will breastfeed infant shortly. Will eval infant's next feeding. Thereafter, at 8:42 p.m., the attending nurse made the following entry: Called into room by parents. States that infant shreiked then arched her back and turned purple. Upon enter room infant's color noted to be dusky with purple lips. Left eye noted to be turned in and rt eye gazed. Unwrapped and body noted to be modled but no shaking present at this time. Infant taken to nicu for immediate evaluation. Elizabeth's subsequent care was summarized in her Discharge Summary, as follows: . . . Nursing brought the infant to this Special Care Nursery and it was felt that the infant was having seizure activity. At this point a complete septic workup was performed. The infant was placed on IV antibiotics and further cultures including spinal fluid were sent. The workup was initially benign; however, a CT scan [on September 18, 2004] was within normal limits except that J. Norman Patton, M.D., Division of Cardiovascular Diseases, Internal Medicine, could not completely rule out some mild evidence of inflammatory response in the brain . . . . The CT scan of September 18, 2004, was done to rule out a bleed as the cause of Elizabeth's seizures, and was read as follows: CT head without and with contrast. Iodinated contrast was given per protocol. Nonionic contrast was utilized. Small subgaleal hematoma in the biparietal locations. The intracranial contents appear unremarkable. Specifically, there is no evidence for parenchymal/extra-axial hemorrhage, nor pathologic enhancement. The ventricle volume is within normal limits, and without midline shift. A subgaleal hematoma or hemorrhage is a bleeding between the skull and the skin on the outside of the skull (scalp), and not within the brain. (Exhibit 18, pp. 15, 16, and 18). The Discharge Summary continued, and documented Elizabeth's care as follows: At this point acyclovir was also added to the antibiotic regimen. The CSF PCR was negative, but surface cultures revealed positive HSV [herpes simplex virus] in the rectal swab, although negative in the oropharynx. For this reason the infant was continued on acyclovir for a total of 21 days. After negative cultures the ampicillin and gentamicin were discontinued. The infant also required mild oxygen in this period and was placed on 1.5 liters 30-40%. Over the next several days this was able to be discontinued. Dr. Gamma, Pediatric Neurology, was involved in the patient's case and consulted on a regular basis. EEG was consistent with seizure activity. The infant was on phenobarbital and later secondary to continued occasional seizures, was started on Cerebyx. The goal was to get this infant's phenobarbital level to between 20 and 30; however, the infant metabolized the phenobarbital very well and despite increasing the dose, the phenobarbital level remained in the 19-20 range. Eventually the Cerebyx was discontinued and the infant is discharged home only on phenobarbital. The infant initially was fed fairly slowly, but by the end of admission was eating well and gaining weight steadily. The infant was ready for discharge on 10/09/04 following 21 days of acyclovir and at this point the infant had a phenobarbital level of 19.3 and a weight of 3940 grams or 8 pounds 11 ounces. The parents have been very involved with the infant, visited often, and have demonstrated good care for this baby. The infant's workup also includes urine for amino acids, which was within normal limits. Liver function tests were within normal limits. Screening CBCs were within normal limits. Ammonia was normal at 36. Urine organic acids were within normal limits . . . . An MRI performed on September 22, 2004, revealed: . . . restricted diffusion in the left occipital lobe, both parietal and frontal lobes, worse on the left, consistent with cytotoxic edema as seen in infarction, secondary to ischemic and or sequelae of severe meningoencephalitis The ventricle volume is within normal limits, and without midline shift. A head ultrasound performed on September 30, 2004, was normal and reported, as follows: Using the anterior fontanelle as an acoustic window, routine coronal and sagittal images were obtained. No evidence for intracranial or germinal matrix hemorrhage. Ventricles are not dilated and appear normal in shape and position. No obvious parenchymal abnormality. Elizabeth was discharged on October 9, 2004. Physical examination on discharge was noted in her Discharge Summary, as follows: Physical exam on discharge revealed a discharge weight of 3940 grams, length of 53 cm, and head circumference of 35.5 cm. The infant was well-developed, well- nourished, alert, pink non-jaundiced female in no acute distress. HEENT was negative. Anterior fontanelle was soft and flat. Lungs were clear to auscultation in no distress. Heart - Regular rhythm without murmur. Abdomen - Soft, benign and nontender. GU - Normal female. Back - Normal extremities, negative Ortolani, negative bilaterally. Neurologic exam intact. Discharge medication was phenobarbital. Follow-up was recommended with pediatrics, neurology, Early Intervention Program at Shands, and Occupational Therapy and Physical Therapy at Nemours. Discharge Diagnoses were: HSV ENCEPHALITIS - SEPSIS. NEONATAL SEIZURES. TERM FEMALE NEWBORN. Of note, subsequent testing revealed that Elizabeth had not been exposed to the herpes simplex virus (HSV), and the positive HSV result was a false positive. Elizabeth's subsequent development Following Elizabeth's discharge from St. Luke's, she was evaluated by the Early Intervention Program (in October 2004) to resolve whether she qualified for services. At the time, it was felt Elizabeth did not qualify for the program, as her development was within normal limits (WNL) for her age. However, in March 2005, at age 6 months, Elizabeth was reevaluated and found eligible for occupational, speech, and physical therapy services due to motor and language delay. Those services were discontinued by October 2005, since Elizabeth's developmental growth appeared age appropriate. (Exhibit 7). Elizabeth was weaned off phenobarbital at age 15 months (about December 2005) and remained seizure-free until October 13, 2006, when a seizure was noted and she was ultimately transported (after treatment in a local emergency room) to Wolfson's Childrens Hospital (Wolfson's) in Jacksonville. There she was loaded with phenobarbital and Dilantin, the seizures stopped, and on October 15, 2006, she was discharged on maintenance dosage of phenobarbital. However, on October 16th, she had a second seizure and was readmitted to Wolfson's, and then on October 18, 2006, discharged on an increased dosage of phenobarbital. Thereafter, in December 2006, her medication was changed from phenobarbital to Trileptal. (Exhibit 9). Since that time, Elizabeth has experienced seizures on four occasions, three of which she was treated at Wolfson's (April 17-19, 2007; March 19-20, 2008; and July 10, 2008) and the last of which (March 1, 2009) she apparently was treated at home in North Carolina. (Exhibits 9 and 27). Apart from her seizure disorder, Elizabeth's health has been good, and developmentally she continued to make good progress, without the need for any therapies since they were discontinued in October 2005. Currently, Elizabeth attends a regular school program, and was shown to evidence very mild physical impairment and no mental impairment. (See, e.g., Exhibits 16, 17, and 19). Whether Elizabeth suffered a "birth-related Neurological injury" To address whether Elizabeth suffered a "birth-related neurological injury," the parties offered a Stipulated Record (Exhibits 1-28), that included the medical records associated with Mrs. Adam's antepartal course, the medical records associated with Elizabeth's birth and subsequent development, the deposition testimony of the delivering obstetrician (Dr. McLanahan), and the deposition testimony of Mr. and Mrs. Adams. The parties also offered the deposition testimony of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine, and Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, electroencephalography, and neurophysiology. Based on his evaluation of the medical records, it was Dr. Willis' opinion that Elizabeth did not suffer a brain injury caused by oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate postdelivery period.10 In so concluding, Dr. Willis observed Elizabeth was not depressed at birth; her Agpar scores were normal (8 at one minute, and 9 at five minutes); she did not require any significant resuscitation (only stimulation and bulb- suctioning); and her newborn course was without incident until seizures were noted at 16 hours after birth. As for the subgaleal hemorrhage (the bleed between the skull and the scalp) Elizabeth was shown to have suffered (on the CT scan of September 18, 2004), Dr. Willis agreed it was likely related to the vacuum-assisted delivery. As for the cause of the periventricular hemorrhage (brain injury/stroke) Elizabeth was shown to have suffered (on the MRI of September 22, 2004), Dr. Willis voiced no opinion, and deferred to the expertise of a pediatric neurologist. As for Petitioners' theory of the case, that a subgaleal hemorrhage can progress to cause bleeding within the brain as a result of hypovolemia, Dr. Willis agreed. However, he did not see evidence in this case to suggest such a causative connection. Dr. Willis expressed his opinion, as follows: Q. Tell me why you don't think, if you don't think, that her brain injury is related to the vacuum extraction? A. Well, subgaleal hemorrhage is between the skull and the skin on the outside of the skull, and that's very common with vacuum extractions. But the only way that that can cause a brain injury that I'm aware of is that if so much hemorrhage occurs into that hematoma that the baby becomes hypovolemic and has a stroke due to hypovolemia and low blood pressure related to blood loss. I am not aware that this child had a subgaleal hematoma that was to that extent. (Exhibit 18, pp. 17 and 18). See also Exhibit 18, p. 35. Dr. Duchowny evaluated Elizabeth on September 10, 2008. Based on his evaluation, as well as his review of the medical records, Dr. Duchowny was of the opinion that Elizabeth's impairments were likely the result of a meningoencephalitis (an "inflammation of the brain and meninges"11), resulting from a viral infection, albeit not HSV, as opposed to a brain injury caused by oxygen deprivation or mechanical injury occurring during labor or delivery. Dr. Duchowny was also of the opinion that Elizabeth was neither substantially mentally nor substantially physically impaired. (Exhibits 15 and 19). Dr. Duchowny described the results of his evaluation, and the bases for his opinions, as follows: Q. . . . During that examination did you obtain any medical history from Elizabeth's family? A. Yes. Q. What was the history that you obtained? A. I was able to speak to Elizabeth's mother, who was the person, the caretaker, bringing Elizabeth to my office; and she first talked about Elizabeth's seizures, which began shortly after birth, at age sixteen hours; and continued with a total of five seizures during her life. The seizures, although infrequent, were prolonged, and her mother indicated that they lasted between three and five hours, all of which, obviously, resulted in hospitalizations. They were terminated with rescue Diastat in order to stop the status epilepticus. All of Elizabeth's seizures began on the right side of her body but then would generalize to involve both arms and both legs, and most recently Elizabeth has been treated which Trileptal, which apparently has brought the seizures under control. Her mother then went on to describe mild weakness on the right side of Elizabeth's body. She commented that Elizabeth had trouble with fine motor coordination, particularly a pincer grasp, and as a result was a left hander. However, Elizabeth's overall motoric ability was good. She didn't have any specific limitations to her motor abilities, and she was fully functional for her age, which at that time was three years. On a positive note, her mother indicated that her mental development was going well, that there were no delays in her acquisition of speech and language, and that she was in the New Dimensions Preschool Program where she was attending a regular classroom. There has never been any regression of Elizabeth's abilities, and at the time that I evaluated Elizabeth in September, she did not have an ongoing need for either physical or occupational therapy. Otherwise, things were good; she was healthy. She was under the care of Dr. Harry Abrams at Nemours Children's Hospital. She continued to have abnormal EEGs, and her mother commented that her MRI scan of the brain revealed damage, primarily on the left side of her brain. Q. What information, if any, did you obtain regarding her birth? A. Well, again, this was information from Elizabeth's mother, and she told me that Elizabeth was born after a term gestation at St. Luke's Hospital. It was a natural delivery, but with the assistance of a vacuum for the extraction. Elizabeth weighed seven pounds, eleven ounces. She breathed well. She was not a jaundice baby, but that she remained in the NICU at St. Luke's Hospital for a treatment of suspected infection with the herpes simplex virus; so essentially, a herpes simplex encephalitis concern. Q. Thank you. Did you obtain any information with respect to Elizabeth's growth and development? A. Yes. Elizabeth rolled over and sat at six months and then was able to stand at age ten months. She was walking on her own by age thirteen months and began talking in single words between a year and age eighteen months. At the time I saw her she had not yet been toilet trained, but she received all of her immunizations and had no known allergies to medications. She had undergone surgery on two occasions for the ear tubes and, of course, there were the multiple hospitalizations for the recurrent bouts of status epilepticus. Q. Did you perform a physical examination of Elizabeth? A. Yes. Q. What were your findings upon that examination? A. When I saw her, she was actually quite cooperative so, socially, she was very appropriate for her age. She seemed appropriately nourished and developed. Her weight was recorded at thirty-five pounds. There was no abnormalities of her skin, neck and she had no abnormal aspects of her body which suggested a malformation. I noted that her spine was normal. Her head growth was good. She had a head circumference of 49.1 centimeters, which for age three years is within standard percentiles. There were no abnormalities of her heart, her lungs, her abdomen, and her extremities or her peripheral pulses. Q. Did you also perform a neurological examination of Elizabeth? A. Yes. And once again, in terms of her social abilities, she actually was quite good for her age and she was appropriately verbal at her age level. She answered questions, she provided decent verbal content. I thought her speech sounds had a very mild disarticulation, but she knew her colors. She was able to identify parts of her body, and she was able to draw with a pencil using her left hand. No drooling was noted. Examination of her cranial nerves was essentially normal, and her motor examination revealed a well developed, age appropriate amount of muscle strength, bulk of her muscle and muscle tone. I was unable to detect any specific focal weakness, although, again, there was a difference in terms of her fine motor coordination. Even though she used both hands cooperatively, she clearly preferred her left hand, although I was able to demonstrate a pincer grasp bilaterally and reasonably good manual dexterity. Where I did think there was asymmetry had to do with her walking where her left arm would swing in a more prominent fashion on the left compared to the right. Also, there was a tendency actually for both feet to turn in, but this was more prominent, again, on the right side. I thought that Elizabeth's sensory examination was normal and that her gait was appropriate in terms of coordination, despite the asymmetric arm swing. Her deep tendon reflexes were normal and symmetric on both sides of the body, in other words, both arms and legs; and her plantar response, which is a reflex response to stroking the bottom of the feet, was normal. There were no abnormalities of her neurovascular examination, meaning that there were no asymmetries when a stethoscope was placed on her neck, head or over her eyes. The bones of her skull were closed, which was appropriate. Q. Okay. Thank you. Based upon your review of the medical records and documents which you identified earlier, and based upon your examination of Elizabeth and the findings from that examination, were you able to form an opinion as to the nature and extent of Elizabeth's neurological delays or developmental delays, if any, and the etiology of those delays? A. Well, there were some findings on the neurological exam with respect to Elizabeth's motor coordination, and my impression was that these findings were, at best, mild. I would characterize them really as very mild. Q. Specifically, what are those findings? A. The asymmetric arm swing, the establishment of handedness on the left and slightly decreased -- well, really, minimal, minimal change in dexterity. Really, the arm swing and the handedness. Q. And those delays that you've identified and, as I understand it, it's your opinion that you would characterize those as mild? A. Yes. Q. What functional impact, if any, do those mild delays have on Elizabeth based upon your examination of her when you saw her? A. Well, at present I would have predicted that there would be no compromise to her functionality, and that appeared to be the case. Q. With respect to her cognitive development, what were you able to conclude based upon your review of the medical records and your examination of her? A. My examination revealed normal cognitive development; in other words, a level of mental function, which was at age level. So I was, again, not surprised that she was in a regular class at the New Dimensions Preschool. Based upon your review of the medical records, were you able to form an opinion as to the etiology of any of those neurological problems that were identified? A. Well, from a review of the records, I think that there was a strong indication that Elizabeth had had some kind of meningoencephalitis in the first week of life, and I believe that her findings on neurological examination today are related to the previous bout of meningoencephalitis. Q. Do you have an opinion as to whether or not Elizabeth suffers from a substantial mental impairment? A. I do, and that is that I do not believe that Elizabeth has a substantial mental impairment. Q. Do you have an opinion as to whether or not Elizabeth suffers from a substantial physical impairment? A. I do not believe that Elizabeth has a substantial physical impairment either. * * * Q. . . . You mentioned the motor findings that you described as, at best, mild, or very mild, and you listed the asymmetrical arm swing, and the handedness on the left and the minimal loss of dexterity. I think your findings also included abnormalities in the gait, is that correct? A. Yes, that's true. There was a toe-in position bilaterally, but I didn't see that as a functional problem. She did that, but it didn't seem to contribute to any disability at all . . . . (Exhibit 19, pp. 7-16). When, as here, the medical condition is not readily observable, issues of causation are essentially medical questions, requiring expert medical evidence. 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."); Ackley v. General Parcel Service, 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The determination of the cause of a non-observable medical condition, such as a psychiatric illness, is essentially a medical question."); 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 obligated to present expert medical evidence establishing that causal connection."). Here, the opinions of Doctors Willis and Duchowny were logical, consistent with the record, not controverted, and not shown to lack credibility. Consequently, it must be resolved that the cause of Elizabeth's impairments was most likely a meningoencephalitis, as opposed to a "birth-related neurological injury," and, regardless of the etiology of her impairments, she is not permanently and substantially mentally and physically impaired. See 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.").
The Issue At issue is whether Christopher White-Maldonado, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Petitioner, Susanna Maldonado, is the natural mother and guardian of Christopher White-Maldonado, a minor. Christopher was born a live infant on January 1, 2000, at Orlando Regional Healthcare System, Inc., d/b/a Arnold Palmer Hospital, a hospital located in Orlando, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Christopher's birth was Virgil Davila, 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 . . . 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, the medical records and the results of a neurological examination by Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology, demonstrate, and Petitioner agrees, that Christopher does not suffer from a substantial mental or physical impairment, much less a permanent and substantial mental and physical impairment, as required for coverage under the Plan.1 (Respondent's Exhibits 1-7, Transcript page 10 and 11). Consequently, the claim is not compensable, and it is unnecessary to resolve whether Christopher's impairments resulted from brain injury caused by birth trauma (oxygen deprivation or mechanical injury), as advocated by Petitioner, or whether they are developmentally based, as advocated by Respondent.
The Issue Whether David Weeks, a deceased minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, the amount and manner of payment of the parental award, the amount owing for attorney's fees and costs incurred in pursuing the claim, and the amount owing for past expenses. Whether the hospital and the participating physician gave the patient notice, as contemplated by Section 766.316, Florida Statutes, or whether the failure to give notice was excused because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, or the giving of notice was not practicable.
Findings Of Fact Findings related to compensability Bethany Weeks and Michael Weeks are the natural parents of David Weeks (David), a deceased minor, and Bethany Weeks is the Personal Representative of her deceased son's estate. David was born a live infant at 11:00 p.m., November 3, 2002, at South Seminole Hospital, a hospital located in Longwood, Florida, and, following the termination of resuscitation efforts, was pronounced dead at 11:30 p.m. David's birth weight was 2,925 grams. The physician providing obstetrical services at David's birth was Christopher Quinsey, 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. 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 . . . 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(1) and 766.31(1), Fla. Stat. Here, the proof is compelling that David suffered an injury to the brain caused by oxygen deprivation, secondary to placental abruption, in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital, that led inevitably to his death shortly after birth. Consequently, the record demonstrated that David suffered a "birth-related neurological injury" and, since obstetrical services were provided by a "participating physician" at birth, the claim is compensable. §§ 766.309(1) and 766.31(1), Fla. Stat. Findings related to the award Where, as here, it has been resolved that a claim is compensable, the administrative law judge is required to make a determination of how much compensation should be awarded. § 766.31(1), Fla. Stat. Pertinent to this case, Section 766.31(1), Florida Statutes, provides for an award of the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, family residential or custodial care, professional residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel. However, such expenses shall not include: Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. Expenses for items or services that the infant has received, or is contractually entitled to receive, from any prepaid health plan, health maintenance organization, or other private insuring entity. Expenses for which the infant has received reimbursement, or for which the infant is entitled to receive reimbursement, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. Expenses for which the infant has received reimbursement, or for which the infant is contractually entitled to receive reimbursement, pursuant to the provisions of any health or sickness insurance policy or other private insurance program. * * * 1. Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum. 2. Death benefit for the infant in an amount of $10,000. Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge. In determining an award for attorney's fees, the administrative law judge shall consider the following factors: The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly. The fee customarily charged in the locality for similar legal services. The time limitations imposed by the claimant or the circumstances. The nature and length of the professional relationship with the claimant. The experience, reputation, and ability of the lawyer or lawyers performing services. The contingency or certainty of a fee. In this case, Petitioner and NICA have agreed that, should Petitioner elect to accept benefits under the Plan, Bethany Weeks and Michael Weeks, as the parents of David, be awarded $100,000.00, to be paid in lump sum. The parties have further agreed that Petitioner Bethany Weeks, as Personal Representative of the Estate of David Weeks, be awarded a death benefit of $10,000.00, and an award of $4,115.00 for attorney's fees ($1,575.00 for Petitioner's counsel David J. White, Jr., and $2,040.00 for Petitioner's co-counsel Patrick C. Massa) and other expenses ($500.00) incurred in connection with the filing of the claim. Finally, the parties have agreed that no monies are owing for past expenses. Such agreement is reasonable, and is approved. The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioner would prefer to pursue her civil remedies, and has averred, and requested a finding that, the hospital and the participating physician who delivered obstetrical services at David's birth (Dr. Quinsey), failed to comply with the notice provisions of the Plan. See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997)("[A]s a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery."). Consequently, it is necessary to resolve whether the notice provisions of the Plan were satisfied.3 At all times material hereto, Section 766.316, Florida Statutes, prescribed the notice requirements of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. Section 395.002(9)(b), Florida Statutes, defines "emergency medical condition" to mean: (b) With respect to a pregnant woman: That there is inadequate time to effect safe transfer to another hospital prior to delivery; That a transfer may pose a threat to the health and safety of the patient or fetus; or That there is evidence of the onset and persistence of uterine contractions[4] or rupture of the membranes. The Plan does not define "practicable." However, "practicable" is a commonly understood word that, as defined by Webster's dictionary, means "capable of being done, effected, or performed; feasible." Webster's New Twentieth Century Dictionary, Second Edition (1979). See Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001)("When necessary, the plain and ordinary meaning of words [in a statute] can be ascertained by reference to a dictionary."). The NICA brochure Responding to Section 766.316, Florida Statutes, NICA developed a brochure, titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which contained a clear and concise explanation of a patient's rights and limitations under the Plan, and distributed the brochure to participating physicians and hospitals so they could furnish a copy of it to their obstetrical patients. (Petitioner's Exhibit 7.) Findings related to Mrs. Weeks' prenatal care and notice Initially, Mrs. Weeks received prenatal care at the Seminole County Health Department, where she was first seen on June 18, 2002, and then transferred to Advanced Women's Health Specialists (AWHS) in September 2002, at 29 3/7 weeks' gestation. Notably, Mrs. Weeks had extensive workups at the Seminole County Health Department, and she delivered a copy of her medical records (which she received from the health department on September 13, 2002) to AWHS, most likely at her first visit, Monday, September 16, 2002.5 According to Mrs. Weeks' patient chart, AWHS received the following documents from the health department: a flow sheet; progress notes; history; physical; PAP; blood work/all labs; Chlamydia, gonorrhea, hepatitis results; RPR results; tri-screen results; HIV results; sonogram result; one hour GTT results; and urine culture results. (Doctors' Exhibit 10.) Pertinent to the notice issue, the physicians (who were members of the AWHS group practice) and AWHS presented evidence (through the testimony of Bonnie Mladec, the clinical coordinator for AWHS) that when Mrs. Weeks presented to AWHS for her initial visit, AWHS had a routine pursuant to which all new patients, regardless of the stage of their pregnancy, and regardless of whether they started their prenatal care with another provider, were given a copy of the NICA brochure by the medical assistant who interviewed them, together with eight other documents. (Doctors' Exhibits 1-9.) Four of the documents were informational, and did not require a signature: the NICA brochure; a one-page list of safe medications to use during pregnancy; a one-page document titled "Why Breastfeed?"; and a one-page document explaining the Healthy Start Program. The five documents that required a signature were a Notice to Our Obstetrics Patients (to acknowledge receipt of the NICA brochure)6; consent to HIV Antibody Test form (to accept or decline the test); a Triple Test Screening for Birth Defects form (to accept a decline the test); a Cystic Fibrosis Carrier Testing form (to accept or decline the test); and a Healthy Start Prenatal Risk Screen form (to accept or decline screening). Notably, Mrs. Weeks' chart does not include, as it should if AWHS's routine was followed, a copy of a Notice to Our Obstetric Patients form signed by Mrs. Weeks, or a copy of any of the other forms patients were routinely requested to sign. (Doctors' Exhibit 10; Transcript, pages 21-25.) Nevertheless, the physicians and AWHS contend there is no reason to conclude AWHS's routine was not followed because each test was performed, and AWHS would not have performed the tests absent Mrs. Weeks' written consent. In contrast to the proof offered regarding AWHS's routine, Mrs. Weeks testified that no such routine was followed when she presented for her initial visit.7 According to Mrs. Weeks, no one discussed the Plan with her, she did not receive a NICA brochure, did not sign a receipt for a brochure, and did not sign any other document that would have been part of the routine. Here, the evidence failed to support the conclusion that, more likely than not, AWHS's routine was followed. In so concluding, it is noted that, Mrs. Weeks' chart contains no document signed by Mrs. Weeks that would have been part of AWHS's routine, and contrary to the contention of the physicians and AWHS, and contrary to the testimony they offered to support such contention, the charting of HIV Antibody test results and a Triple Test Screening does not support the conclusion that AWHS's routine was followed. Rather, it demonstrates that AWHS merely accepted the results the health department had obtained. As for the Healthy Start Prenatal Risk Screen, Mrs. Weeks' chart contains no evidence that AWHS presented her with that form to sign. Rather, since the health department's prenatal record reveals that Healthy Start Screening had been completed, given AWHS's acceptance of other department of health testing, and given no further explanation, it is likely AWHS did not pursue the matter. Consequently, as to these forms, the record offers no compelling proof that AWHS followed its routine. Rather, it offers proof to the contrary. As for the Cystic Fibrosis Carrier Test, the record does reveal that test was done at AWHS, and Mrs. Weeks' chart (Antepartum Record, page D, under Comments/Additional Labs) contains an entry ("[C]ystic F[ibrosis]=accepted [,] drawn on 9/16/02") that supports the conclusion she consented to the test at her initial visit. However, given the proof, or lack thereof, these findings are not compelling proof that Mrs. Weeks' consent to the Cystic Fibrosis Carrier Test was part of an invariable routine that was followed at a patient's initial visit. Therefore, the proof fails to support the conclusion that AWHS's routine was followed on Mrs. Weeks' initial visit, or that Mrs. Weeks received a NICA brochure or signed a receipt for a NICA brochure on her initial visit. Findings related to David's birth and notice At or about 8:15 p.m., November 3, 2002, Mrs. Weeks, with an estimated delivery date of November 27, 2002, and the fetus at 36 5/7 weeks' gestation, presented to Labor and Delivery Triage, at South Seminole Hospital, in labor (with evidence of the onset and persistence of uterine contractions). At the time, Mrs. Weeks' chief complaint was noted as "[contractions] most of today, becoming more uncomfortable since [6:00 p.m.]." The notes of the triage nurse (Bernadette Charles, R.N.) include the following narrative: Client received from ER in wheelchair with above complaints. Crying and complain of labor pains. Denies rupture of membranes or bright red vag bleeding. Client's restless and uncooperative. Encouraged to relax between contractions Elevated B[lood] P[ressure] noted. Client complained of headaches, DTRs 3[+ very brisk], no clonus, edema 2 to 3+ . . . [P]ain scale [8- 9/10]. (Petitioner's Exhibit 1, pages 21 and 22; Petitioners Exhibit 6, page 0533.) Initial assessment in triage noted uterine contractions of moderate intensity, every 2 to 3 minutes, with a duration of 40 to 50 seconds. Blood pressure was elevated (164/112), and vaginal examination revealed the cervix at 2 centimeters dilation, effacement at 70 percent, and the fetus between station -1 and -2. At 8:45 p.m., Ms. Charles spoke with Lesann Dwyer, a certified nurse midwife (CNM) at AWHS, and at 8:55 p.m., she spoke with Dr. Quinsey, and received orders to admit Mrs. Weeks to labor and delivery. Thereafter, at 9:05 p.m., Mrs. Weeks was moved by wheelchair from triage to labor and delivery room 403, where she was admitted at 9:10 p.m. According to Ms. Charles' admission note: client admitted to LR 403 in early labor . . . P[ain]/S[cale] 6/10-Client crying- uncooperative. Requesting something for pain . . . . According to the medical records, by 9:15 p.m., the time at which the activities were documented, Mrs. Weeks was in her bed, positioned on her right side, and an external fetal monitor and blood pressure monitor were attached. At the time, assessment revealed an elevated blood pressure (173/103); a fetal heart rate baseline of 120 to 130 beats per minute, with decreased long-term variability; the cervix at 2 centimeters dilation, effacement at 70 percent, and the fetus at station -1; moderate uterine contractions, at a frequency of 1 to 2 minutes, with a duration of 30 to 40 seconds; and a pain severity level of 7-8/10. Also noted, an IV had been started, labs drawn, and Mrs. Weeks had been asked to sign a number of documents, including an acknowledgment of receipt of NICA notice.8 The acknowledgement form provided, as follows: FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN ACKNOWLEDGMENT OF PATIENT RECEIPT OF NOTICE I have been advised that Orlando Regional Healthcare System, Inc. and its resident physicians are participating members in the Florida Birth-Related Neurological Injury Compensation Plan. This Plan provides that certain limited compensation is available in the event certain birth-related neurological injuries may occur during labor, delivery or post-delivery resuscitation, irrespective of fault. For specifics on the Plan, I understand I can contact the Florida Birth- Related Neurological Injury Compensation Association (NICA), Post Office Box 14567, Tallahassee, Florida 32317-4567; (904) 488- 8191/ 1 (800) 398-2129. I further acknowledge I have received from Orlando Regional Healthcare System, Inc., a copy of the form brochure regarding the Plan. The form brochure is prepared and furnished by the Florida Birth-Related Neurological Injury Compensation Association. Dated this day of , 2002. Signature Name of Patient Social Security No. Witness: Date: Mrs. Weeks concedes she signed the acknowledgment form. However, she denies she received the NICA brochure. Subsequently, at 9:20 p.m., Mrs. Weeks was given Stadal (for pain) and magnesium sulfate (for pregnancy-induced high blood pressure), and at 9:30 p.m., the records note a fetal heart rate baseline of 120 to 130 beats per minute, with decreased long-term variability, and contractions of moderate intensity, at a frequency of 1 to 2 minutes, with a duration of 30 to 40 seconds. Thereafter, there is a gap in documentation until 10:00 p.m., when fetal heart rate is noted in the 90 to 100 beat per minute range, Mrs. Weeks is given oxygen and a position change, and Dr. Quinsey is called and updated. Shortly thereafter, at 10:05 p.m., anesthesiology was alerted to a possible cesarean section, and at 10:20 p.m., Ms. Charles attempted to place a fetal scalp electrode and Mrs. Weeks membranes ruptured. By 10:25 p.m., Dr. Quinsey had arrived at the hospital, and was noted at bedside. At the time, Dr. Quinsey observed Mrs. Weeks was having constant abdominal pain, with a tense abdomen, consistent with placental abruption, and an emergent cesarean section was indicated. Under the circumstances, it was Dr. Quinsey's opinion, which was credible and uncontroverted, that inadequate time remained to safely transfer Mrs. Weeks to another hospital prior to delivery, and any transfer may have posed a threat to the health and safety of Mrs. Weeks or her fetus. Given Mrs. Weeks' presentation, a stat cesarean section was called, and Mrs. Weeks was moved to the operating room, where she was admitted at 10:40 p.m. According to the records, surgery started at 10:57 p.m., and David was delivered at 11:00 p.m., with an Apgar score of 1 and 0, at one and five minutes respectively.9 Resolution of the notice issue with regard to the participating physician With regard to Dr. Quinsey, the participating physician who provided obstetrical services at David's birth, the proof demonstrates that, although it was practicable to do so during her prenatal care at AWHS, Mrs. Weeks was not given notice.10 However, since Mrs. Weeks had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, when Dr. Quinsey provided obstetrical services to her on November 3, 2002, he was exempt from the pre-delivery notice requirement, notwithstanding it may have been practicable for him to have provided Mrs. Weeks notice during her prenatal care at AWHS. § 766.316, Fla. Stat.; Orlando Regional Healthcare System, Inc. v. Alexander, 909 So. 2d 582, 586 (Fla. 5th DCA 2005)("We hold that the statute contains two distinct exemptions, each of which independently provides an exception to the pre-delivery notice requirement. As such, [the hospital] was excused from providing notice to [the patient] when she arrived at the [hospital] under emergency medical conditions, and her previous visits to the hospital during her pregnancy did not negate this clear statutory exemption."). Consequently, with regard to the participating physician, the notice provisions of the Plan were satisfied. Resolution of the notice issue with regard to the hospital With regard to the hospital, it was the hospital's policy to provide the patient with a copy of the NICA brochure, together with an acknowledgment form for the patient to sign acknowledging receipt of the brochure, following admission to labor and delivery. Here, there is no dispute that Mrs. Weeks signed the acknowledgment form at or about 9:15 p.m., following her admission to labor and delivery.11 What is disputed, is whether Mrs. Weeks was given a NICA brochure. Petitioner also contends that the brochure, if given, was not provided a reasonable time prior to delivery to allow for the exercise of an informed choice of providers. As to this contention, Petitioner notes that the hospital had an opportunity to provide meaningful notice during two prior admissions, as well as during Mrs. Weeks' preregistration, but failed to do so, and that "[a]t the time [] the NICA brochure was allegedly given to Bethany Weeks [on November 3, 2002] she was expected to read it while she was having contractions, in pain, receiving lactate ringers, and while labs were being drawn," a less than opportune time. (Petitioner's Proposal Final Order, paragraph 26.) Stated otherwise, Petitioner contends that, if she was given the brochure on November 3, 2002, it was not efficacious notice. However, the hospital, like the participating physician who delivered obstetrical services at David's birth, was exempt from the pre-delivery notice requirement, since when Mrs. Weeks presented to South Seminole Hospital at or about 8:15 a.m., November 3, 2002, she had an "emergency medical condition" ("evidence of the onset and persistence of uterine contractions"), as defined by Section 395.002(9)(b), Florida Statutes, and notwithstanding it may have been practicable for the hospital to have provided Mrs. Weeks' notice during her previous visits to the hospital. § 766.316, Fla. Stat.; Orlando Regional Healthcare Systems, Inc. v. Alexander, supra. Consequently, it is unnecessary to address whether Mrs. Weeks was given a NICA brochure or whether, if given, the notice was efficacious.
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.
