Findings Of Fact Maliyah Jones was born on May 28, 2013, at North Florida Regional Medical Center located in Gainesville, Florida. Maliyah weighed 3,870 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Maliyah. In a medical report dated September 15, 2015, Dr. Willis opined as follows: In summary, delivery was complicated by a shoulder dystocia, which resulted in an Erb’s palsy. Although depressed at birth, the baby had a good response to resuscitation (bag and mask ventilation) with an Apgar score of 9 at five minutes. The baby’s condition was stated to be stable on admission to the NICU. The newborn hospital course was complicated only by the Erb’s palsy. Discharge was on DOL 2. 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 Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Maliyah and to review her medical records. Dr. Sigurdardottir examined Maliyah on October 28, 2015. In a medical report regarding her independent medical examination of Maliyah, Dr. Sigurdardottir opined as follows: Summary: Maliyah is a 2-1/2 year-old born at term after an uncomplicated pregnancy with shoulder dystocia resulting in a near complete Erb’s palsy. She has required 2 surgical procedures and does have significant disability as per the Mallet scale and is likely to need more surgical procedures to enhance her functional abilities in her right upper extremity. She is, however, functioning well from a cognitive level and her gross motor skills are otherwise intact. In review of the medical records available, it seems clear that her right brachial plexopathy did occur at birth due to mechanical injury. In light of her favorable cognitive and language development our findings are the following: Result as to question 1: The patient is found to have a permanent physical impairment, but to have none or mild delays in language development. She is therefore not found to have a substantial mental and physical impairment at this time. * * * In light of the above-mentioned details, Maliyah’s restricted motor disability and near normal cognitive development, I do not recommend Maliyah to be included into the Neurologic Injury Compensation Association Program and would be happy to answer additional questions or review further medical records. In light of her favorable mental and developmental state it is doubtful that additional records would alter the outcome of our review. She is not felt to have a substantial mental impairment at this time. 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 or spinal cord during labor, delivery or the immediate post-delivery period. Dr. Willis’ opinion is credited. There are no contrary expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Maliyah is not found to have a substantial mental impairment at this time. Dr. Sigurdardottir’s opinion is credited.
Findings Of Fact The Petition named Dr. Bankert as the physician providing obstetric services at Gavin's birth on June 30, 2009. Attached to the motion is an affidavit of NICA's custodian of records, Tim Daughtry, attesting to the following, which has not been refuted: One of my official duties as Custodian of Records is to maintain NICA's official records relative to the status of physicians as participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan who have timely paid the Five Thousand Dollar ($5,000.00) assessment prescribed in Section 766.314(4)(c), Florida Statutes, and the status of physicians who may be exempt from payment of the Five Thousand Dollar ($5,000.00) assessment pursuant to Section 766.314(4)(c), Florida Statutes. Further, I maintain NICA's official records with respect to the payment of the Two Hundred Fifty Dollar ($250.00) assessment required by Section 766.314(4)(b)1., Florida Statutes, by all non-participating, non-exempt physicians. * * * As payments of the requisite assessments are received, NICA compiles data in the "NICA CARES" database for each physician. The "NICA CARES physician payment history/report" attached hereto for Dr. Glenn Bankert indicates that in the year 2009, the year which Dr. Bankert participated in the delivery of Gavin King, as indicated in the Petitioner's [sic] Petition for Benefits, Dr. Bankert did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth-Related Neurological Injury Compensation Plan. Further, it is NICA's policy that if a physician falls within the exemption from payment of the Five Thousand Dollar ($5,000) assessment due to their status as a resident physician, assistant resident physician or intern as provided in Section 766.314(4)(c), Florida Statutes, annual documentation as to such exempt status is required to be provided to NICA. NICA has no records with respect to Dr. Bankert in relation to an exempt status for the year 2009. To the contrary, the attached "NICA CARES physician payment history/report" shows that in 2009, Dr. Bankert paid the Two Hundred and Fifty Dollar ($250) assessment required by Section 766.314(4)(b)1., Florida Statutes, for non- participating, non-exempt licensed physicians. The NICA CARES statement attached to the affidavit of Mr. Daughtry supports the representations made in the affidavit. No party has offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. Bankert was not a participating physician in the Plan at the time of Gavin's birth. Petitioners have not requested additional discovery time, and Petitioners have not moved for leave to amend the Petition to name any additional physician as rendering obstetrical services in connection with Gavin's birth. Dr. Bankert was not a participating physician at the time of Gavin's birth on June 30, 2009.
The Issue The issue to be determined is whether Aiyanna suffered a “birth-related neurological injury,” as defined in section 766.302, Florida Statutes (2015).
Findings Of Fact On March 20, 2016, the Hospital admitted Shawntel Gordon and she gave birth to a baby girl named Aiyanna on March 21, 2016. As stipulated by the parties, the medical records demonstrate that Amy Jo Gabriel, M.D. provided obstetric services relative to the birth of Aiyanna. Based on the affidavit of NICA’s records custodian, Tim Daughtry, and the official payment history attached thereto, Dr. Gabriel never paid the annual $5,000 assessment required by physicians who elect to participate in the Plan to NICA. NICA lacked any documentation from Dr. Gabriel that she was exempt from paying the $5,000 assessment as a resident physician, assistant resident physician, or intern. Rather, Dr. Gabriel paid $250 to NICA in 2016—the annual assessment for physicians who do not qualify for an exemption and nevertheless elect not to participate in the Plan.
Findings Of Fact Bryan was born on July 23, 2018, at Tampa Hospital located in Tampa, Florida. The Petition alleges that James Palmer, M.D., Peeraya Sawangkum, M.D., Adetola Fadeyini Louis-Jacques, M.D., Elizabeth Ann Hoover, M.D., and Christina Jean Carter, M.D., were the delivering physicians for Bryan’s birth. No evidence was presented to DOAH regarding whether these doctors were “participating physicians” under the Plan at the time Bryan was born. See § 766.302(7), Fla. Stat. Upon receiving the Petition, NICA retained Donald Willis, M.D., a board certified obstetrician/gynecologist specializing in maternal-fetal medicine, as well as Luis E. Bello-Espinosa, M.D., a pediatric neurologist, to review Bryan’s medical records and condition. NICA sought to determine whether Bryan suffered a “birth-related neurological injury” as defined in section 766.302(2). Specifically, NICA requested its medical consultants opine whether Bryan experienced an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury which occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period. And, if so, whether this injury rendered Bryan permanently and substantially mentally and physically impaired. Dr. Willis reviewed Bryan’s medical records and noted: The baby was depressed at birth... . Bag and Mask ventilation initiated for respiratory distress and subsequently intubated... . The baby was transferred to the NICU for respiratory distress. * * * The newborn hospital course was complicated and prolonged with discharge on DOL 63. Based on available medical records, there appears to be an apparent obstetrical event that resulted in oxygen deprivation to the brain during labor, delivery and continuing into the immediate post- delivery period. The oxygen deprivation appears to have resulted is [sic] some degree of brain injury. Dr. Willis, however, was “not able to comment on the severity of any injury.” Dr. Bella-Espinosa, on the other hand, did comment on the extent of Bryan’s brain injury. Dr. Bella-Espinosa reviewed Bryan’s medical records, as well as conducted an independent medical examination of Bryan on February 1, 2020. Dr. Bella-Espinosa opined, within a reasonable degree of medical probability: During today’s evaluation, Bryan has a completely normal neurological examination for his age, except for mild facial asymmetry as seen in child born with congenital Hypoplasia of the Depressor Angularis Oris Muscle, with normal development. Bryan is found to have no evidence of substantial physical impairment, and no evidence of substantial mental impairment at this time. There is no evidence of apparent residual neurological injury to the brain or spinal cord. The prognosis of full recovery is excellent. His estimated life expectancy is expected to be normal. Considering the clinical presentation, I do feel that there is not enough evidence to recommend Bryan is included in the NICA program. Based on the statements from Dr. Willis and Dr. Bella-Espinosa, NICA determined that Petitioners' claim was not compensable under section 766.302(2). As of the date of this Order, Petitioners have not responded to NICA’s Motion for Summary Final Order. A review of the documents in the record reveals no contrary evidence to dispute the findings and opinions of Dr. Willis and Dr. Bella-Espinosa. Their opinions are credible and persuasive.
Findings Of Fact Micah was born on May 18, 2019, at Brandon Hospital located in Brandon, Florida. The Petition alleges that Victoria Jones, M.D., was the delivering physician for Micah’s birth. No evidence was presented to DOAH regarding whether Dr. Jones was a “participating physician” under the Plan at the time Micah was born. See § 766.302(7), Fla. Stat. Upon receiving the Petition, NICA retained Donald Willis, M.D., a board certified obstetrician/gynecologist specializing in maternal-fetal medicine, as well as Luis E. Bello-Espinosa, M.D., a pediatric neurologist, to review Micah’s medical records and condition. NICA sought to determine whether Micah suffered a “birth-related neurological injury” as defined in section 766.302(2). Specifically, NICA requested its medical consultants opine whether Micah experienced an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury which occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period. And, if so, whether this injury rendered Micah permanently and substantially mentally and physically impaired. Dr. Willis reviewed Micah’s medical records and noted: In summary, vaginal delivery was complicated by a shoulder dystocia with a duration greater than 5-minutes. The baby was depressed at birth with Apgar scores of 0/2/3, requiring chest compressions and intubation. The newborn hospital course was complicated by multi-system organ failures, consistent with birth-related oxygen deprivation. Hypoxic ischemic brain injury was identified on head MRI. There was apparent obstetrical event (shoulder dystocia) that resulted in oxygen deprivation to the brain during delivery and continuing into the immediate post-delivery period. The oxygen deprivation resulted in brain injury. Dr. Willis concluded, “I am unable to comment as to the extent of the brain injury.” Dr. Bella-Espinosa, on the other hand, did comment on the extent of Micah’s brain injury. Dr. Bella-Espinosa reviewed Micah’s medical records, and conducted an independent medical examination of Micah on January 24, 2020. Dr. Bella-Espinosa opined, within a reasonable degree of medical probability: Micah is an Eight-month boy with a history of hypoxic ischemic encephalopathy of birth. He did have well established immediate postnatal encephalopathy, but he did not have neonatal seizures despite MRI changes which were indicative of hypoxic-ischemic insult[.] His neurological examination, except for mild residual right arm decreased tone, was normal, with no evidence of encephalopathy, myelopathy, neurogenic or myopathic processes. Micah is found not to have a substantial physical and mental impairment at this time. In review of all the available documents, the mild decreased tone on the right arm is indicative of residual changes as a result of the shoulder dystocia. This type of injury is birth related, but he is expected to recover most of his right arm function. The prognosis of full recovery is excellent. Estimated life expectancy should be normal. * * * Considering the clinical presentation and progression, I feel that there is not enough evidence to recommend Micah be included in the NICA program. A review of the file reveals no contrary evidence to dispute the findings and opinions of Dr. Willis and Dr. Bella-Espinosa. Their opinions are credible and persuasive. Based on the statements from Dr. Willis and Dr. Bella-Espinosa, NICA determined that Petitioners’ claim was not compensable. NICA subsequently filed a Motion for Partial Summary Final Order asserting that Micah did not suffer a “birth-related neurological injury” as defined by section 766.302(2). As of the date of this Order, Petitioners have not responded to NICA’s motion.
Findings Of Fact By stipulation filed January 18, 1994, petitioner and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Fla. Stat., a claim was [filed] on behalf of the above-styled infant against NICA on behalf of JORDAN KYLES, DENISE DESIR (the "Petitioners") for benefits under Chapter 766.301-766.316 Fla. Stat. That a timely filed Claim for benefits complying with the requirements of Section 766.305, Fla. Stat., was filed by the Petitioners and a timely Notice of Non- Compensability Setting forth that NICA denied the claim was filed on behalf of NICA. That the infant, JORDAN KYLES was born at Mercy Hospital on November 1, 1990, and Mercy Hospital was a licensed Florida Hospital and the attending physician, Dr. Luis G. Martinez, was a participating physician within the meaning of Chapter 766, Fla. Stat. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. Section 766.302(2), Fla. Stat. states that a "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. The parties agree that JORDAN KYLES suffers from a left brachial plexus palsy injury. A brachial plexus palsy injury is not an injury to the brain or spinal cord and further does not result in any mental injury. The parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., including in particular his report dated September 2, 1993. A copy of this report has been attached hereto and incorporated herein as Exhibit 1. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply. Based upon the stipulation, the parties request the hearing officer rule on Petitioners' claim based upon this Stipulation, and the attached medical record. The stipulation and neurological examination of Jordan reveal that he suffered a left brachial plexus palsy injury, and that a brachial plexus palsy injury is not a brain or spinal cord injury and further, does not result in mental injury. Moreover, Jordan's mental functioning is age appropriate and not impaired due to any birth related complications.
