The Issue At issue in this proceeding is whether Jackeline Casco, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Petitioners, Luis Casco and Maria Casco, are the parents and natural guardians of Jackeline Casco (Jackeline), a minor. Jackeline was born a live infant on June 3, 2000, at Holy Cross Hospital, a hospital located in Fort Lauderdale, Broward County, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Jackeline was William Joyner, 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. 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." Jackeline's presentation On March 29, 2001, following the filing of the claim for compensation, Jackeline was examined by Michael S. Duchowny, M.D., a board-certified pediatric neurologist associated with Miami Children's Hospital, Miami, Florida. Dr. Duchowny reported the results of that neurologic evaluation, as follows: HISTORY ACCORDING TO THE FAMILY: Jackeline was accompanied by her mother who began by explaining that Jackeline's major problem is with regards to her left arm. She noted that Jackeline had problems with her left arm "since birth" and that she had acquired a left clavicular fracture at delivery. The birth took place at Holy Cross Hospital after 38 weeks gestation. Jackeline weighed 9 pounds, 7 ounces and was a difficult delivery. She was moved from the regular nursery to the special care nursery because of a heart murmur, but this turned out to be inconsequential. Jackeline subsequently was referred for reconstructive surgery and had this performed three weeks ago. Dr. John Grossman did transplantations of the sural nerves. The cast came off one week ago. Mrs. Casco had not yet seen return of neurologic functioning in Jackeline. Jackeline otherwise enjoys good health and has been developing nicely. She rolled over at four months and sat at five months. She is described as being quite socially interactive and attentive. There are no problems with regards to her hearing or vision and her feeding, swallowing and sleep patterns are normal. Jackeline's immunizations have been administered on time. Apart from the brachial plexus reconstruction, she has had no other surgeries. She has an allergy to amoxicillin and sulfa drugs. She also has a vesicle ureteral reflux which was diagnosed after she presented with recurrent urinary tract infections. She now takes Primsol daily. The FAMILY HISTORY reveals the father to be 32 and the mother to be 29 years old. Jackeline has a 2-year-old sister who is healthy. There are two half brothers, ages 4 and 2 and two half sisters, ages 8 and 6. No family members have degenerative illnesses, mental retardation or cerebral palsy. PHYSICAL EXAMINATION reveals an alert, socially responsive 9-month-old infant. The weight is 19 pounds. Head circumference measures 44.1 cm, which approximates at the 50th percentile for age. The fontanelles are both opened and flat and there are no cranial or facial anomalies or asymmetries. Jackeline has no dysmorphic features or evidence of spinal dysraphism. The neck is supple without masses, thyromegaly or adenopathy and the cardiovascular, respiratory and abdominal examinations are unremarkable. Jackeline does have a grade 2/6 innocent ejection systolic murmur. There are healed scars over both posterior calves and left lateral neck. Jackeline's NEUROLOGICAL EXAMINATION reveals her to be quite socially attentive. She displays a great deal of preverbal babbling and has a pleasant disposition. She is appropriately fearful. There is good central gaze fixation and conjugate following movements. The pupils are 3 mm and briskly reactive. The iris pigment is symmetric and normal. The funduscopic examination discloses no significant findings. There are no facial asymmetries and the tongue moves well. The uvula is midline. There is no drooling. Motor examination reveals an asymmetry of movement of the upper extremities, where there is active movement on the right, but this is much less developed on the left where Jackeline rarely grasps an object unless it is placed in close proximity to her hands. She does have individual finger movements and has movement of the hands, but her proximal limb movement, especially the shoulder girdle, shows a relative absence of movement. There is an asymmetric slope to the shoulder indicating deltoid atrophy. There are no frank fasciculations. Jackeline's proximal muscle strength is judge at 1+ where her distal strength is 4+. The deep tendon reflexes are asymmetric as well being 2+ at the right biceps and brachial radialis and 1+ at the right triceps. These same reflexes on the left are not elicited. The knee jerks are 2+. Jackeline is able to sit with good balance and has well developed head control. There are no pathologic reflexes. The Moro response is asymmetric with diminished left arm movement. Jackeline grasps objects by coming across the midline with her right hand. The sensory examination is differed, although Jackeline's withdrawal to stimulation seemed less pronounced with the left upper extremity. In contrast, Jackeline's lower extremities muscle strength, bulk and tone are normal and the reflexes are likewise unremarkable. The neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Jackeline's examination discloses no significant neurologic abnormalities apart from her left upper extremity. Her examination is consistent with a left Erb's palsy and status post brachial plexus reconstruction, but does not have a significant return of functioning at this point. In contrast, Jackeline's mental status would appear to be normal and her motor development has been proceeding satisfactorily. An Erb's palsy, such as that evidenced by Jackeline, is a weakness of an upper extremity due to damage of the nerve roots of the upper brachial plexus,1 and does not involve the brain or spinal cord.2 Moreover, Jackeline's mental or cognitive status has been described as essentially normal. Consequently, while Jackeline may have suffered a mechanical injury, permanent in nature (to her right brachial plexus) during the course of birth, she does not (for reasons appearing more fully in the Conclusions of Law) qualify for coverage under the Plan.
Findings Of Fact Bentley X. Velazquez was born on September 19, 2009, at Health Central in Ocoee, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Bentley. In a report dated March 9, 2015, Dr. Willis described his findings in pertinent part as follows: Fetal heart rate (FHR) monitor tracing during labor was reviewed. The FHR pattern was reactive and did not suggest fetal distress. Delivery was by spontaneous vaginal birth. Birth weight was 3,327 grams (7 lbs 5 oz’s). There was a loose nuchal cord. The newborn was not depressed. Apgar scores were 9/10. No resuscitation was required. Newborn exam noted “ear shape tilt down.” Otherwise, newborn exam was normal. The baby was not in distress. Newborn hospital course was benign. Discharge home was on DOL 2. Right-sided weakness was noted at 6 months of age. MRI showed an old cerebral infarct. Coagulation evaluation was negative. The child was subsequently diagnosed with spastic hemiplegia and developmental delay. Follow up MRI’s showed remote insult of left middle cerebral artery and resulting encephalomalacia. In summary, labor and delivery were apparently without complications. Delivery was by spontaneous vaginal birth. The baby was not depressed. Apgar scores were 9/10. The newborn hospital course was benign with discharge home on DOL 2. The child was found to have a cerebral infarct at 6 months of age. The infarct does not appear to be related to a hypoxic event or trauma during labor, delivery or the immediate post-delivery period. A review of the file reveals that no contrary evidence was presented to dispute Dr. Willis’ finding that while Bentley was found to have a cerebral infarct at 6 months of age, Bentley’s injuries were not related to a hypoxic event or trauma during labor, delivery or the immediate post-delivery period. Dr. Willis’ opinion is credited. The Petition was filed on January 20, 2015, which is more than five years after Bentley’s birth.
Findings Of Fact Spencer Heaton was born on August 17, 2015, at Florida Hospital in Orlando, Florida. He was a single gestation. NICA attached to its motion a certification of medical records signed by the Custodian of Records from Florida Hospital, and a four-page discharge record for Ashley and Spencer Heaton. The medical records show that Spencer Heaton’s birth weight was less than 2,500 grams. A review of the file reveals that no contrary evidence was presented to dispute the medical record from Florida Hospital showing that Spencer Heaton’s birth weight was less than 2,500 grams.
The Issue At issue is whether Dagoberto Garcia, a minor, has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings 1. Dagoberto Garcia (Dagoberto) is the natural son of Jose Reyna and Nancy Garcia. He was born a live infant on August 18, 1993, at SMH Homestead Hospital, a hospital located in Homestead, Florida, and his birth weight was in excess of 2,500 grams. 2. The physician providing obstetrical services during the pirth of Dagoberto was Hosain Daee, 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. Dagoberto’ s birth and subsequent condition 3. Nancy Garcia (Ms. Garcia) was admitted to SMH Homestead Hospital at or about 12:15 a.m., August 18, 1993, in active labor. At the time, Ms. Garcia was at full-term and, except for a urinary tract infection, her prenatal course was apparently “uncomplicated. 4. While the onset of Ms. Garcia’s labor was spontaneous, augmentation was required due to a hypotonic uterus, and at 4:30 a.m. the fetal membrane was artificially ruptured and clear amniotic fluid was observed. Labor lasted 10 hours 42 minutes, with variable decelerations apparently noted during the latter stage. Delivery with forceps was attempted unsuccessfully, and vacuum extraction and pushing were applied to effect Dagoberto’s delivery. 5. Upon delivery, Dagoberto was suctioned, administered oxygen under positive pressure for approximately 30 seconds and then oxygen by mask for 3-4 minutes. His Apgar scores were noted to be 6 at one minute and 9 at five minutes, and at 9:20 a.m. he was transferred to the newborn infant nursery. 6. At or about 9:30 a.m., Dagoberto was admitted to the newborn infant nursery. Initial examination was essentially normal, and he was described as having a lusty cry, good respiration and tone, and suck, root, grasp and moro reflexes were noted as present. 7. Dagoberto’s assessment remained unchanged until approximately seven hours after birth. Those and subsequent developments were noted in the August 1, 1995 report of Sara J. Dorison, M.D., a pediatric neurologist, as follows: Approximately seven hours after birth, the nurses reported infrequent posturing. No postictal sleep was noted. No tonic-clonic movements were noted. Gradually the posturing became more prominent with flexing of the right hand and extension of the xight leg. Approximately 24 hours after birth, laboratory studies were drawn which were normal except for a bicarbonate of 20 and a CPK of 4790 Dagoberto was admitted to Miami Children’s Hospital on day of life one for further evaluation and treatment. On day of life two he was examined by a child neurologist (Dr. Alfonso) who noted his head circumference to be 36 cm. The child had a cephalohematoma. A CAT scan on day of life two was normal and a brain ultrasound was normal as well. The child was noted to be focusing. On day of life two, the EEG was normal. Brain stem auditory evoked responses were normal. At approximately nine days of age, an EEG showed a lack of normal change of state and focal epileptiform activity bialaterally in the frontotempral regions. An MRI at one month of age was normal. A CT at one month of age was also normal. An eye examination at the age of three weeks was normal. Dagoberto was discharged on phenobarbital. Since that time he has been noted to have a significant developmental delay in both cognitive and motor areas. He was examined by Dr. Michael Duchowny . . - at the age of 16 months. At that time he was not crawling, sitting or using his hands. He was having difficulty communicating his needs and did not have even single words. On examination at that time, his head circumference was 45.3 cm with "prominent flattening of the occiput." Dr. Duchowny also felt that there were mild facial dysmorphisms with "smallness in the mid-facial region. . .- prominent epicanthal folds" which he did not observe in either parent. Dr. Duchowny felt that he was functioning in the approximately four to six month age range. 8. Regarding the examination of Michael S. Duchowny, M.D., a pediatric neurologist associated with Miami Children’s Hospital, his report of January 6, 1995, observed the following: PHYSICAL EXAMINATION reveals a well- developed, well-nourished, 16-month-old male infant. Weight 26 pounds, 9 ounces. The The cause skin is warm and moist. There are no neurocutaneous stigmata. Dagoberto has a head circumference Measuring 45.3cm and prominent flattening of the occiput. He also demonstrates some smallness in the midfacial region and has prominent epicanthal folds, features not observed in either Parent. There are no digital or palmar abnormalities. The neck is supple without masses, thyromegaly or adenopathy and the cardiovascular, respiratory and abdominal examinations are normal. NEUROLOGICAL EXAMINATION reveals a severely delayed infant... MOTOR EXAMINATION reveals marked static hypotonia with laxity at both the pelvic and pectoral girdles ... IN SUMMARY, Dagoberto’s neurological examination in detail reveals marked delay in motor and cognitive areas. He is functioning at approximately in the four to six month range and additionally, demonstrates dysmorphic features. I am inclined to believe that Dagoberto’s presentation is the result of prenatal factors rather than any neurologic deficits acquired in the peri or postnatal periods. I have not had an Opportunity to review his records and would be interested in looking them over before reaching a final conclusion. of Dagoberto’s current condition 10. Dagoberto’ In addition to Dr. Duchowny’s initial impression that 8 condition was "the result of prenatal factors rather than any neurologic deficits acquired in the peri or postnatal periods," Dorison. petitioners also presented the conclusions of Dr. Dr. Dorison’s observations and conclusions were set forth in her report of August 1, 1995, as follows: The etiology of Dagoberto’s neurologic problems is unclear. Although he did have a very difficult delivery with occiput posterior presentation, it is unclear whether this contributed to his neurologic problems. There were some decelerations noted and vacuum extraction with forceps was required. Despite this, however, the child had Apgar’s of 6 at 1 and 9 at 5. In addition he was initially described as having a lusty cry and good suck. Moreover, there was no cerebral edema noted on CAT scans or ultrasounds done two days after pirth. If there had been severe asphyxia or ischemia during delivery, one would have expected the child to look depressed upon delivery and have brain swelling in the first four to five days of life. I believe that Dagoberto’s neurologic problems are probably due to prenatal factors. His initial head circumference of 33 cm was between the 5th-10th percentile. His birth weight of 3.8 kg was at the 75th- 90th percentile. His length of 19-1/2 inches places him at the 25th-50th percentile. All of these are assuming that he was a full-term infant. Even if he was several weeks early, there is a significant discrepancy between his small head size and average body length and above average body weight. Indeed, these factors may have contributed to a difficult delivery. Dagoberto’s initial postnatal presentation is also atypical for pirth trauma. He appeared well to the nurses and had a good suck It was only several hours after delivery that they noted abnormal posturing and seizure activity. At no time, in fact, was he noted to be lethargic or depressed. When first examined by a neurologist (Dr. Alfonso) at age two days, the head circumference was noted to be 36 cm. Although an increased head circumference can be due to cerebral edema, in Dagoberto’s case this was not so. He was noted to have a cephalohematoma and CAT scans and ultrasounds were normal -- eliminating significant edema as an etiology of increased head circumference. Cerebral edema is the result of severe asphyxia or ischemia. It was noted that a CPK was elevated at approximately 24 hours of age (4790). This, too, can be the result of ischemia or asphyxia, but also can be due to just general birth trauma and injury to muscles. Unfortunately, the CPK was not fractionated (the specific amount of CcPK from the brain versus muscles was not specified). In any case, a difficult birth can result in elevated cpK just on the basis of muscle. Lastly, Dagoberto was noted to be dysmorphic by Dr. Duchowny with a flattened occiput, small mid-facial region and bilateral epicanthal folds. He noted that neither Parent had these features. If these findings are correct (unfortunately I have never evidence that the child had some prenatal brain abnormality Causing facial dysmorphisms. Facial development is frequently abnormal in the setting of abnormal brain development . In summary, despite a difficult delivery, I feel that Dagoberto’s neurologic problems are most likely the result of prenatal difficulties, rather than peri- or postnatal Problems. He was born with a disproportionately small head and showed no clinical evidence of acute asphyxia/ischemia. His unusual facies Suggests brain maldevelopment (in utero). 11. Given the Proof, the record fails to support the conclusion that Dagoberto suffered any injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during the course of labor, delivery or resuscitation in the immediate post-delivery period that resulted in his current neurologic problems. Rather, the proof demonstrates that, more likely than not, his current neurologic problems are prenatal in origin, rather than peri or postnatal in origin.
Conclusions For Petitioner: Deborah J. Gander, Esquire Law Offices of Don Russo Terremark Center, Suite 2000 2601 South Bayshore Drive Coconut Grove, Florida 33133 For Respondent: W. Douglas Moody, Jr., BATEMAN GRAHAM 300 East Park Avenue Esquire Tallahassee, Florida 32301
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the petition for compensation filed by Jose Reyna and Nancy Garcia, as Parents and natural guardians of Dagoberto Garcia, a minor, be and the same is hereby denied with prejudice. DONE AND ENTERED this 28th day of September 1995 in Tallahassee, Leon County, Florida. WILLI. J. KE Ic Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September 1995,
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida 13 Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See, Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So.2d 299 (Fla. 1st DCA 1992). The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. 14
The Issue The issue to be determined is whether the infant, Zakeem Carter Lee (Zakeem), suffered a birth-related neurological injury as that term is defined in section 766.302(2), Florida Statutes (2018).
Findings Of Fact Zakeem was born on December 25, 2018, at Holmes Regional. He passed away shortly after birth. Zakeem weighed 2,425 grams at birth.
The Issue The issue to be determined is whether the infant, Miguel Nunez, Jr. (Miguel Jr.), suffered a birth-related neurological injury as that term is defined by section 766.302, Florida Statutes (2017).
Findings Of Fact On March 15, 2018, Casandra Nunez gave birth to a baby boy named Miguel Jr. The birth certificate attached to the Petition for Benefits, and the medical records from St. Joseph’s supplied by Petitioners, indicate that Miguel Jr. weighed one pound, nine ounces, or 700 grams, at birth.
Findings Of Fact The parties have stipulated to the following facts. Iyonna Hugley was born on October 14, 2010, at 1950 hours at Wuesthoff Medical Center, Melbourne, Florida. Mark Sargent, M.D., provided obstetrical services during the delivery of Iyonna. Dr. Sargent is a participating physician in the Plan as defined in section 766.302(7). At birth, Iyonna weighed 2,347 grams and was delivered from a single gestation.
The Issue The issue to be determined is whether the infant, Cory M. Irvin (Cory), suffered a birth-related neurological injury as that term is defined by section 766.302, Florida Statutes (2016).
Findings Of Fact On July 10, 2016, Coral Perdomo gave birth to a baby boy named Cory. Both the Amended Petition and the Discharge Summary from Winnie Palmer list Cory’s birth weight as 1,552 grams.
