Findings Of Fact Carla Barrientos-Gutierrez was born on April 12, 2013, at Manatee Memorial Hospital located in Braden River, Florida. Carla weighed 3,610 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Carla. In an affidavit dated December 17, 2014, Dr. Willis described his findings as follows: In summary, vacuum assisted delivery resulted in a scalp hemorrhage with significant blood loss and resulting anemia, hypovolemia, hypotension and coagulation defects. Hypovolemia resulted in poor perfusion and multisystem organ failure. E. coli sepsis compounded the complications related to the scalp hemorrhage. The baby suffered brain injury due to these complications. However, the brain injury did not occur during labor delivery or the immediate post-delivery period. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Carla and to review her medical records. Dr. Duchowny examined Carla on October 15, 2014. In an affidavit dated December 17, 2014, Dr. Duchowny opined as follows: In summary, Carla’s neurological examination reveals evidence of a mild to moderate motor disability and language development which is behind age level. There is no focal or lateralizing findings and I was unable to confirm the family’s impression of diminished left-sided motor activity. The medical record review indicates that Carla’s neurological impairments are the result of E-coli, sepsis and meningoencephalitis. She likely had diffuse CNS vasculitis as well. However, there is no indication that Carla’s brain damage resulted from either mechanical injury or oxygen deprivation in the course of labor and delivery. The timing of acquisition of her infection is open [sic] a question as she only became symptomatic at 24 hours of age. Should this issue need further examination, input from a pediatric infectious disease consult would be useful. It would be important to review her MRI scans of the brain. However, pending any need for further review, I am not recommending Carla for inclusion in the NICA program. A review of the file in this case reveals that there have been no opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor, delivery, or the immediate post-delivery period, and Petitioners have no objection to the issuance of a summary final order finding that the injury is not compensable under the plan. Dr. Willis’ opinion is credited. There are no contrary opinions filed that are contrary to Dr. Duchowny’s opinion that there is no indication that Carla's neurological injury resulted from either mechanical injury or oxygen deprivation in the course of labor and delivery. Dr. Duchowny’s opinion is credited.
The Issue At issue in this proceeding is whether Aubreigh Kathryne Delisle, 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 Petitioners nor anyone on their behalf appeared at hearing, and no proof was offered to support their claim. Contrasted with the dearth of proof offered by Petitioners, Respondent offered the opinions of Michael Duchowny, M.D., a physician board certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. It was Dr. Duchowny's opinion, based on his neurological evaluation of Aubreigh on December 3, 1998 (at 7 years of age) and his review of Aubreigh's medical records, that Aubreigh's current neurological condition did not result from oxygen deprivation or mechanical trauma occurring during the course of labor, delivery, or resuscitation in the immediate post-delivery period. Rather, it was Dr. Duchowny's opinion that Aubreigh's neurological presentation was most consistent with "abnormal brain maturation" or, stated differently, "there was no brain damage whatsoever, but rather her brain was not developing normally." (Transcript, page 9.) Given the proof, it must be resolved that Petitioners have failed to demonstrate that Aubreigh suffered a "birth- related neurological injury" as alleged in the claim for benefits.
The Issue The issue in this case is whether Daquan T. Smith, Jr. (Daquan) suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan).
Findings Of Fact Daquan was born on November 22, 2015, at Florida Hospital, 601 East Altamonte Drive, Altamonte Springs, Florida. The pregnancy, labor, and delivery of his mother, Verdale T. Robinson, were managed by employees of Florida Hospital and Dr. Norma Waite. At all times material, both Florida Hospital and Dr. Waite were active members under NICA pursuant to sections 766.302(6) and (7). Daquan was born a live infant on November 22, 2015. Daquan was a single gestation, weighing 2,730 grams at birth. Daquan was delivered by Dr. Waite, who was a NICA participating physician on November 22, 2015. Petitioners contend that Daquan suffered a birth- related neurological injury and seek compensation under the NICA Plan. Respondent contends that Daquan has not suffered a birth- related neurological injury as defined by section 766.302(2). The medical records reviewed by Dr. Willis reflect that Daquan’s mother was admitted to the hospital at 36 6/7 weeks gestational age with vomiting, pain, and blood in the urine. She was started on antibiotics for a suspected UTI and observed. Her blood pressure began to elevate, and she was transferred to Florida Hospital for high-risk consultation. Labor was induced for suspected preeclampsia. The fetal heart rate (FHR) monitor during labor was reviewed. The initial FHR pattern showed a normal baseline rate and normal FHR variability. Variable decelerations with decreased variability developed about 30 minutes prior to delivery. Daquan’s delivery was by spontaneous vaginal birth. Daquan was initially depressed with Apgar scores 5/7/9. At birth, there was no respiratory effort, but heart rate was stated to be good. Bag and Mask ventilation was started without improvement. Daquan required intubation for respiratory distress and quickly improved, allowing extubation to nasal CPAP. Daquan started crying and his muscle tone improved. At this point Daquan was transferred to the NICU. The initial blood gas was a venous gas done about 15 minutes after birth and the pH level was 7.23, with a normal base excess. The initial arterial blood gas was done 90 minutes after birth, again with a normal pH level of 7.4. Apnea and bradycardia occurred with onset of seizure activity about 14 hours after birth. Oxygen desaturations were in the ‘70s. Bag and mask ventilation was required for a short period of time, followed by nasal oxygen. Phenobarb was started to control seizure activity. Daquan’s EEG readings were abnormal, confirming seizure activity. Head Ultrasound was normal. CT scan on DOL 2 showed minimal acute intraventricular hemorrhage and a subdural hemorrhage. MRI at seven weeks showed evidence of brain injury with volume loss. At the request of NICA, Dr. Willis, who is board- certified in obstetrics and gynecology and maternal-fetal medicine, reviewed the medical records relating to Daquan’s birth. In his report dated June 21, 2017, Dr. Willis opined that, [t]here was no apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery or the immediate post delivery period. At the request of NICA, Laufey Y. Sigurdardottir, M.D., who is board-certified in neurology, reviewed Daquan’s medical records and performed an independent medical examination of Daquan on May 17, 2017. Dr. Sigurdardottir opined, in pertinent part, that: Daquan is a 17 month old with history of neonatal seizures, after induced labor for maternal hypertension and pyelonephritis. No evidence of acute hypoxic episode during active labor and blood gas within hour after birth did not indicate significant asphyxia. MRI performed at 6 weeks of age does have some findings consistent with hypoxic ischemic injury but timing is hard to determine as being within active labor and delivery. Patient has delays in his development but as he is able to walk unassisted (short distances) at 17 months and is using gestures for yes and no, I do not feel that he has established permanent substantial motor and mental disability at this time. Result of question 1 [Does the child suffer from a permanent and substantial mental and physical impairment?]: Daquan is found to have delays in motor and language development but is making progress and is walking independently at this time therefore a permanent and substantial physical and mental impairment cannot be determined at this juncture. Result of question 2 [If so, was such an impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury? If so, is injury felt to be labor and birth related?]: In review of available documents, although having respiratory distress shortly after birth, there is no clear acute hypoxic event during labor and/or delivery, and fetal heart rate strips were benign. Laboratory tests were not indicative of an acute hypoxic injury. Neonatal seizures were seen but this does not give us a clear timeframe for timing of injury. Result as to question 3 [What is the prognosis and estimate of life expectancy?]: The prognosis for full motor and mental recovery is guarded but his life expectancy is full. Dr. Sigurdardottir's Affidavit reflects her ultimate opinion that "the IME and record review do not support a finding that Daquan suffered a 'birth-related neurological injury.'” Dr. Willis's and Dr. Sigurdardottir's opinions both support a finding that there was no injury to the brain or spinal cord of the infant caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period, which rendered the infant permanently and substantially mentally and physically impaired. Petitioners did not submit or introduce into evidence any expert reports rebutting the opinions of Dr. Willis or Dr. Sigurdardottir.
Findings Of Fact Petitioners are the parents and legal guardians of Aaliyah. On March 30, 2019, Ms. Harrison gave birth to Aaliyah, a single gestation of 37 weeks, at the Hospital. Aaliyah was delivered by cesarean section and weighed 2,700 grams. Yasmine Kareem, M.D., provided obstetrical services and delivered Aaliyah. The undisputed record evidence consists of affidavits and reports of two physicians: Donald Willis, M.D., a board-certified obstetrician; and Luis Bello-Espinosa, M.D., a board-certified pediatric neurologist who conducted an independent medical examination (“IME”) of Aaliyah. Dr. Willis reviewed the medical records and summarized his opinions about Aaliyah’s delivery and the attendant complications in a report dated January 11, 2021. Dr. Willis noted that Ms. Harrison was admitted to the Hospital due to worsening chronic hypertension at 37 weeks’ gestational labor. After two days of cervical ripening and induction, during which Aaliyah’s fetal heart rate became decelerated, a Cook Balloon was placed to assist cervical dilation. At that point, a prolapsed umbilical cord was noted, and a caesarian section was performed. At birth, Aaliyah was flaccid with no respiratory effort. The Hospital administered bag and mask ventilation for over three minutes. Her APGAR scores were three at one minute, five at five minutes, and nine at ten minutes. Aaliyah was taken to intensive care, placed on a machine for respiratory depression, and underwent body cooling for suspected hypoxic- ischemic encephalopathy (“HIE”). An MRI performed five days after the birth revealed subtle changes suggestive of HIE, though Aaliyah did not suffer multi-organ failure and an EEG performed six days after her birth was normal. Aaliyah was subsequently diagnosed with global developmental delay. Based on the medical records, Dr. Willis opined to a reasonable degree of medical probability that an obstetrical event resulting in oxygen deprivation to the brain likely occurred during the birth, but it was unlikely that such an event caused a brain injury. Dr. Bello-Espinosa reviewed the medical records, conducted an IME on Aaliyah, and summarized his opinions in a report dated February 7, 2021, as to whether Aaliyah suffers from permanent and substantial mental and physical impairment caused by an oxygen deprivation event. Dr. Bello-Espinosa noted that Aaliyah was diagnosed with mild HIE at birth and that an MRI conducted on the fifth day after her birth indicated subtle changes suggestive of hypoxic-ischemic injury. However, Aaliyah’s EEG was normal, she did not suffer neonatal seizures, and her neurological examinations rapidly improved after birth. Dr. Bello-Espinosa conducted an IME on February 5, 2021. Aaliyah’s neurological examination demonstrated developmental language and motor impairments, stereotypic behavior, poor joint attention, and poor play skills for her age. However, Dr. Bello-Espinosa did not find signs of upper or lower motor neuron dysfunction that would suggest cerebral palsy. Based on the medical records and his IME, Dr. Bello-Espinosa opined to a reasonable degree of medical probability that Aaliyah suffers from substantial and permanent mental impairment but only moderate and gradually improving physical impairment, which probably was not permanent. Dr. Bello-Espinosa also opined that Aaliyah’s impairments were not likely due to a brain injury caused by oxygen deprivation during birth and that, instead, an underlying genetic condition should be investigated.
Findings Of Fact Alina Karina Sukhu was born on June 23, 2011, at Florida Hospital located in Orlando, Florida. Alina weighed 6 pounds 12 ounces at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Alina, to determine whether an injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital due to oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. In an affidavit dated August 14, 2014, Dr. Willis described his findings as follows: In summary, labor and delivery were apparently uncomplicated. Umbilical cord blood gas was not done. The newborn had decreased muscle tone and feeding difficulty. MRI of the brain showed some abnormalities that could represent hemorrhage or hypoxic injury. However, the FHR tracing did not suggest fetal distress during labor and delivery was uncomplicated. These findings suggest that the brain injury was most likely not birth related. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor or delivery. NICA retained Michael S. Duchowny, M.D., a pediatric neurologist, to examine Alina and to review her medical records. Dr. Duchowny examined Alina on May 28, 2014. In an affidavit dated August 18, 2014, Dr. Duchowny opined as follows: In summary, Alina’s neurological examination reveals global developmental delay characterized by a complex 4-limb motor disability with static hypotonia, truncal ataxia, and dynamic hypertoncity. She has absent language development, a cortical visual impairment, and severe oro-motor incoordination necessitating caloric intake via an indwelling gastrostomy tube. Although Alina has a substantial mental and motor impairment, the medical records do not provide evidence to suggest that her neurological injury was acquired due to oxygen deprivation or mechanical injury in the course of labor and delivery. I therefore am not recommending Alina to be considered for compensation within the NICA program. Petitioner Anjani Ramoutar filed a letter in opposition to NICA's Motion for Summary Final Order. In the letter, Petitioner raises the issue of fault. However, as addressed in the Conclusions of Law, the Florida Birth-Related Neurological Injury Compensation Plan was established for the purpose of providing compensation, irrespective of fault, for birth-related neurological injury that fits within specific statutory definitions to be eligible to receive benefits under the Plan. §§ 766.302(2), 766.303(1), and 766.309(1), Fla. Stat. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor or delivery. Dr. Willis’ opinion is credited. There are no contrary expert opinions filed that are contrary to Dr. Duchowny’s opinion that although Alina has a substantial mental and motor impairment, the medical records do not provide evidence to suggest that her neurological injury was acquired due to oxygen deprivation or mechanical injury in the course of labor and delivery. Dr. Duchowny’s opinion is credited.
Findings Of Fact Alexander Soriano born on July 3, 2011, at Winnie Palmer Hospital in Orlando, Florida. Alexander weighed 3,442 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Alexander. In a medical report dated March 28, 2013, Dr. Willis opined the following: In summary, the mother presented at term with decreased fetal movement and an abnormal FHR pattern. There was no mention of the mother being in labor. Her cervix was not dilated and consistent with no active labor. Cesarean section delivery was required. The baby was severely depressed and had no detectable cardiac activity at birth. The hospital course was consistent with hypoxic ischemic brain injury with multisystem dysfunction, EEG and MRI studies should [sic] brain injury. Available information suggests the patient was not in labor. Oxygen deprivation and brain injury most likely occurred at some time prior to delivery. Although the hypoxia and brain injury may have continued during delivery and into the post-delivery period, the initial brain injury and substantial damage were most likely already present prior to birth. NICA retained Michael S. Duchowny, M.D., a Florida board-certified pediatric neurologist to review the instant claim and to conduct an examination of Alexander, and render an opinion whether a birth-related neurological injury occurred. In a report dated January 23, 2013, Dr. Duchowny opined: While Alexander's birth history documents severe problems resulting from his meconium aspiration syndrome, his present neurological examination reveals neither a permanent nor substantial mental or physical impairment. Essentially Alexander has done remarkably well despite his neonatal course, and I would anticipate continued improvement in the future. I regard his developmental abnormalities as unrelated to the perinatal circumstances and therefore not recommend Alexander for inclusion in the NICA program. A review of the file does not show any contrary opinions, and Petitioners and Intervenors have no objection to the issuance of a summary final order finding that the injury is not compensable under Plan. The opinion of Dr. Willis that Alexander did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period is credited. Dr. Duchowny's opinion that Alexander does not have a permanent and substantial mental and physical impairment is credited.
Findings Of Fact Jordan Gonzalez was born on May 29, 2008, at North Shore Medical Center in Miami, Florida. Jordan weighed 2,530 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Jordan and his mother. In an affidavit dated February 19, 2013, Dr. Willis opined the following within a reasonable degree of medical probability: It is my opinion that in summary, fetal abnormalities were identified by ultrasound during pregnancy. The baby was delivered by Cesarean section due to the development of fetal ascites. The mother was not in labor. The baby had several congenital abnormalities including hypoplastic lungs, single umbilical artery, ascites, dilated ventricles in the brain, agenesis of the corpus callosum and a small phallus. MRI did not identify findings suggestive of hypoxic brain injury. As such, it is my opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during delivery or during resuscitation in the immediate post delivery period in the hospital. The mother was not in labor. The fetus had known abnormalities identified by ultrasound during pregnancy. It is most likely the baby's brain abnormalities are congenital and not related to oxygen deprivation at birth. Jordan was examined and evaluated by Michael Duchowny, M.D. (Dr. Duchowny), on January 30, 2013. In an affidavit dated February 27, 2013, Dr. Duchowny found the following on his examination of Jordan: It is my opinion that the findings from the examination are consistent with both a substantial mental and motor impairment. Jordan is functioning at approximately age 2-3 month level and in addition to his global development delay manifests microcephaly, dynamic hypotonia and dynamic static hypotonia with hyperreflexia and pathological reflexes. However his examination reveals multiple congenital anomalies which together with the neuroimaging findings suggest that Jordan's neurological deficits were most likely acquired prior to birth. As such, it is my opinion that there is no evidence from his postnatal course or from his present physical findings to indicate that Jordan Gonzalez sustained an hypoxic or ischemic insults in the course of labor, delivery or the immediate neonatal period. I therefore am not recommending Jordan for inclusion into the NICA program. A review of the file does not show any contrary opinions to those of Dr. Willis and Dr. Duchowny. The opinions of Dr. Willis and Dr. Duchowny that Jordan did not suffer a neurological injury due to oxygen deprivation or mechanical trauma during labor, delivery, or resuscitation in the immediate postdelivery period are credited.
Findings Of Fact Ian Ocasio was born on April 20, 2010, at Winnie Palmer Hospital for Women and Children in Orlando, Florida. Ian weighed 2,749 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Ian. In a medical report dated September 20, 2013, Dr. Willis opined: In summary, the baby was delivered by Cesarean section due to preterm labor and a recent genital herpes outbreak. Herpes cultures from the baby were negative. There was no fetal distress during labor. The baby was not depressed at birth and did not require any resuscitation. Umbilical cord blood gas was not done. Apgar scores were normal. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. A review of the file does not show any contrary opinions, and Petitioners have no objection to the issuance of a summary final order finding that the injury is not compensable under the Plan. The opinion of Dr. Willis that Ian did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or the immediate post- delivery period is credited.
