The Issue At issue in this proceeding is whether Thalya Greene, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Daniel Greene and Lizbeth Greene, are the parents and natural guardians of Thalya Greene (Thalya), a minor. Thalya was born a live infant on August 27, 1998, at Baptist Medical Center, a hospital located in Jacksonville, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during Thalya's birth was R. William Quinlan, 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. Thalya's birth At or about 4:35 a.m., August 27, 1998, Mrs. Greene (with an estimated date of confinement of September 19, 1998, and the fetus at 36+ weeks) presented to Baptist Medical Center in early labor. Vaginal examination revealed the membranes to be intact, and the cervix at 3 centimeters dilatation, effacement at 50 percent, and the fetus at station -2. External fetal monitoring applied at 4:37 a.m., reflected a reassuring fetal heart tone, and Mrs. Greene was admitted to labor and delivery at or about 4:40 a.m. Mrs. Greene's labor progressed steadily, and external fetal monitoring reflected a reassuring fetal heart tone throughout the course of labor and delivery. At or about 7:30 a.m., dilatation was noted as complete; at 7:49 a.m., the membranes were artificially ruptured, with clear fluid noted; and at 7:55 a.m. Thalya was delivered spontaneously (cephalic presentation) without incident. On delivery, Thalya was noted as "pale blue" in color, and was bulb suctioned and accorded free flow oxygen; however, she breathed spontaneously, and did not require resuscitation. Initial newborn assessment noted no apparent abnormalities. Apgar scores were recorded as 7 at one minute and 8 at five minutes. The Apgar scores assigned to Thalya are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute, Thalya's Apgar score totaled 7, with heart rate, muscle tone, and reflect irritability being graded at 2 each; respiratory effort being graded at 1; and color being graded at 0. At five minutes, Thalya's Apgar score totaled 8, with heart rate, respiratory effort, muscle tone, and reflex irritability being graded at 2 each, and color again being graded at 0. Thalya was admitted to the newborn nursery at or about 8:50 a.m. Assessment on admission was grossly normal. Thalya's status post-delivery was uneventful until 11:30 a.m. (approximately 3 1/2 hours after delivery) when she experienced a choking episode (secondary to spitting up) and turned dusky over the face and chest. In response, Thalya was placed under a radiant warmer, suctioned, and given blow by oxygen (for approximately 3 minutes) until she pinked up. Thereafter, Thalya's course was again uneventful until 1:00 a.m., August 28, 1998, when she again appeared dusky, and was accorded blow by oxygen. At the time, it was noted that the CBC drawn during the first dusky spell was within normal limits and that the blood culture that had been obtained was preliminarily negative. Thereafter, Thalya's course was again without apparent complication until approximately 10:23 p.m., when she "became dusky not associated with feed," and was again suctioned and accorded blow by oxygen. At that time, Thalya was noted as "pink and intermittently tachypneic with rare grunting." Following neurologic consult, Thalya was transferred to the neonatal intensive care unit (NICU) for further observation and management. Thalya was received in the NICU at 10:34 p.m. At the time, she was observed as "warm and pink with grunting noted." EKG leads were applied and revealed a heart rate of 180, respiratory rate of 50, blood pressure of 76/49, and a rectal temperature of 100.3. Examination revealed nystagmus (an involuntary rapid movement of the eyeball) and some jerky movements of her extremities. CBC showed a white blood count of 5,000, and blood culture was ordered. Working diagnosis was "suspected septis" and Thalya was started on ampicillin and gentamicin. At 12:35 a.m., August 29, 1998, Thalya evidenced symptoms of seizure activity, and was loaded with phenobarbital. Spinal tap of August 29, 1998, as well as the results of the blood culture drawn of August 28, 1998, was positive for Group B Streptococcus. An infectious disease consult was obtained and Thalya was managed on antibiotics for three weeks, and maintained on phenobarbital for her seizure activity. CT and MRI of the head on August 29, 1998, were normal; however, a head ultrasound of September 3, 1998, showed minimal intra-axial fluid. Chromosomal studies were normal. Thalya was discharged to her parents' care on September 15, 1998, on phenobarbital and ampicillin. Final diagnosis on discharge included bacterial infection due to Streptococcus, Group B; streptococcal meningitis; and seizures. Thalya's subsequent development Following her discharge from Baptist Medical Center, Thalya was initially followed by Carlos H. Gama, M.D., a pediatric neurologist. Dr. Gama's first neurological examination occurred on November 3, 1998, when Thalya was 2 months of age, and was reported as follows: I had the opportunity of seeing Thalya for a neurological evaluation. The following are my diagnosis and recommendations. Diagnosis: Status post neonatal Group B Streptococcal meningitis. Seizures. Hypotnia. Recommendations: Obtain EEG. Obtain trough Phenobarbital level. Obtain records. Return to this office in one month for reevaluation and further recommendations. Comments: * * * . . . Since discharged from NICU mother reports that Thalya had done well. She is feeding well and thriving. No seizures have been noted. She continues on Phenobarbital, taking 4mls po bid. A blood level was obtained prior to this visit but this result is not available. Mother reports that Thalya has normal awake and sleep cycles. She seems to be moving all extremities spontaneously and symmetrically. There has not been any apneic spells or unusual behaviors suggestive of seizure like activity . . . . The examination today reveals a head circumference is 40.5cm (in the 90th percentile). Her weight is in the 90th percentile and height is in the 50th percentile. The baby is alert. She is able to turn her eyes to light, but does not track the examiner in a 90 degree range. The pupils were equal and reactive. Red reflex was present bilaterally. Facial grimace was symmetric. Suck was appropriate. Strength seems to be grossly unremarkable. Deep tendon reflexes were +2 in the upper extremities, +3 in the lower extremities at the knees and +2 at the ankles. No clonus was seen. Babinski's were present bilaterally. There was evidence of hypotonia of her axial musculature, being approximately moderate in severity. There was also decrease in head control. The patient's moro reflex reveals appropriate abduction of her upper extremities symmetrically. Traction response was decreased. Tone and neck reflex was absent. Palmar and Plantar reflexes were present. Muscle tone was low. The sensory examination to touch seemed to be unremarkable. Spine examination was noncontributory. The patient has no obvious dysmorphic features, organomegalies or skin abnormalities. Anterior fontanel was open and normal tense with no musculatures. Therefore, it is my opinion that Thalya has a history of neonatal Group B Streptococcal meningitis and sepsis associated with seizures. She is now seizure free. Her examination is remarkable for hypotonia, which most likely is on central basis. Therefore, the above recommendations were made. She will be reassessed in one month in this office. The EEG (Electroencephalogram) recommended by Dr. Gama was obtained on November 9, 1998, and read as abnormal. Specifically, the EEG report noted: This EEG is abnormal because of mild background disorganization which was seen bilaterally but more prominently over the right hemisphere, especially in the frontal region. This finding suggest[s] a diffused cerebral dysfunction such as seen in mild encephalopathy. In addition, a structural lesion in the right hemisphere cannot be excluded. Thalya was next seen by Dr. Gama on December 7, 1998. The results of that examination were reported as follows: Diagnosis: Seizure disorder. Stable on Phenobarbital. S/P [status post] Bacterial Group B Streptococcal Meningitis. Hypotonia. Developmental delay. Abnormal EEG. * * * Comments: . . . Thalya continues to be active. She is feeding well and gaining weight properly. She is making more cooing sounds and attempting to roll over, but she has not been successful in this area. Her examination demonstrates that her head circumference is 42cm. She is alert. She follows the examiner. Her pupils are equal and reactive. Face is unremarkable. She does seem to stick her tongue out intermittently. The motor examination demonstrates that she has decrease traction and head control for her age. She also has a tendency to keep her hands fisted, but this is only intermittently. She does not reach for objects yet. She is unable to hold weight in her lower extremities. Muscle tone seems to be slightly decreased in the axial musculature in particular. Therefore, it is my recommendation that we proceed with an MRI of the brain to rule out structural abnormalities of the right hemisphere.1 In addition, we have discussed the treatment with Phenobarbital. This should be continued for at least six months before making any further recommendations . . . She will be reassessed in this office in 1-2 months. Dr. Gama's next neurological examination of Thalya occurred on January 12, 1999, and was reported as follows: Diagnosis: Seizure disorder. Stable on Phenobarbital. S/P bacterial group B streptococcal meningitis. Hypotonia. Improving. Borderline developmental delay. Abnormal EEG * * * Comments: Thalya is doing extremely well. She is getting physical therapy twice a week and making progress. She is more attentive. She follows the examiner in a 180 degree range. She has good social skills. Anterior fontanel is soft. Head circumference is 44cm which is slightly above the 90th percentile, but she has been growing parallel to this with no problems. Cranial nerve examination is unremarkable. Motor examination demonstrates that she is unable to put weight in lower extremities, otherwise, she moves all extremities spontaneously. Deep tendon reflexes were unremarkable. No obvious pathological reflexes were elicited during today's visit. Muscle tone was normal to low. Denver Developmental Screen test reveals that she seems to be appropriate for her age in most of the areas. However, she is unable to roll over but she is showing some attempts to do this. The rest of the examination was noncontributory. Thalya was last seen by Dr. Gama on April 29, 1999, and he reported the results of that follow-up neurological examination as follows: Diagnosis: Seizure disorder. Stable on Phenobarbital. S/P Bacterial Group B Streptococcal Meningitis. Hypotonia. Improved. Comments: Thalya continues to do extremely well, with no recurrent seizures. She is tolerating the medication properly . . . . The patient continues to make progress in her development. The examination today demonstrates that her head circumference is 46.7cm. She is maintaining this in the 90th percentile. She has no obvious focal or lateralizing deficits. Her muscle tone has improved considerably and she is gaining milestones appropriately. She was felt to be at her age level in most of the areas tested . . . . Thalya's subsequent neurologic development was followed by Joseph A. Cimino, M.D., a board-certified pediatric neurologist. Dr. Cimino reported the results of his first neurological examination by October 15, 1999, as follows: DIAGNOSES: 1) GBS meningitis/sepsis. Neonatal seizures. Static encephalopathy with motor and language delay. * * * DEVELOPMENTAL HISTORY: The history is obtained from the parents. The child rolled from front to back at 7 months, back to front at 8 months, sat at 7 to 8 months, crawled at 11 months. She was getting in to sitting at 10 to 11 months, pulled to stand at 12 months, began to cruise at 13 months, is not yet walking independently, says mama but not specifically, does not say dada nor does she wave hi or bye. She began physical therapy at 3 months of age and this was initially twice a week and 1 month ago was decreased to once a week. She is not in speech therapy, although the family states the EIP evaluation at 10 months showed she had a receptive language at 4 months. The concern is that audiological evaluation have shown some missed frequency hearing deficit. * * * PHYSICAL EXAMINATION: The head circumference is 48 1/4 cms which is between the 75th and 98th percentile for chronologic age of 14 months. GENERAL EXAM: On inspection this is a well- nourished, healthy youngster who is alert and attentive. The abdomen was soft and nontender without organomegaly. The cardiovascular exam revealed regular rate and rhythm and no murmurs were appreciated. No cranial bruits are noted. The extremities were normal. The lungs were clear to auscultation. The skin exam was without café au lait spots or hypopigmented macules. The spine was without hair tufts or dimpling. In observing this child crawl and again reaching for objects I did not see any focality, nothing to suggest an old infarction which may be a complication of neonatal bacterial meningitis. In addition a CT scan was reported as negative. NEUROLOGICAL EXAM: The child is very social and attentive with good reciprocal play with a puppet. She smiled quite easily. Although with hands-on evaluation she did become irritable and cried. Assessment of tone was quite difficult. She tracked very nicely with full extraocular movements no ophthalmoparesis or nystagmus. The pupils were equal and reactive to light and facial movements were symmetric. I was not able to get an adequate look at the fundi. Corneal reflexes were intact. With regards to the motor exam, she reached quite nicely for objects without preference. She in fact did crawl well, transitioned into a sitting position but did W sit, usually associated with low muscle tone. With hands-on exam it was very difficult as she was crying and had a lot of active resistance to know exactly the status of her tone. She pulls to stand with a mature pattern with hip flexion. She sat quite nicely with her back straight, able manipulate objects. She did not slip through my grip on vertical suspension. Her deep tendon reflexes were 2/4 and symmetric in both the upper and lower extremities. The sensory exam was grossly intact to pain. IMPRESSION: GBS meningitis/sepsis . . . early onset. Neonatal seizure without recurrence, successfully tapered off of Phenobarbital. Prematurity 36 weeks gestation. Language delay. I think at 13 months adjusted age she should be saying mama and dada specifically, have more jargoning, waving hi and bye, and say several other words in addition to mama and dada which are used specifically. There is clearly risk of hearing deficit given meningitis and the use of Gentamicin and this child needs to be followed closely. History of motor delay. Clearly rolling at 6 months adjusted age is delayed. Sitting at 6 to 7 months adjusted age is normal, the family gave a chronologic age of 7 to 8 months but at 36 weeks gestation it is fair to make a 1 month adjustment which I am assuming they would do at EIP. She began to cruise at 13 months chronologic age which is 1 year. Her adjusted age is now 13 months and clearly walking independently can be normal up to 18 months at the outside limits. She appears to be making nice improvement in this area . . . . Thalya was next seen by Dr. Cimino on May 1, 2000, and most recently on November 10, 2000. Dr. Cimino reported the results of his most recent follow-up examination as follows: DIAGNOSES: 1) GBS meningitis. Neonatal seizures. Prematurity 36 weeks gestation Language delay. CLINICAL HISTORY: This is a 2 year old female seen in follow up on 5/1/2000. At that time she was having episodes of spacing out. We obtained an EEG that was normal for the awake and sleep state. Because of the GBS meningitis and developmental delay we obtained an MRI also done in September that was normal. She underwent a speech evaluation on 6/23/2000 that showed auditory comprehension at 9-12 months, verbal expression at 6-9 months. Impression was overall global delay and she has been in speech therapy twice a week at Brook's Rehab. Her chronologic age at the time of the evaluation was 22 months. At this time she began to walk at 15 months. She says mama and specifically, dada non- specifically. She will repeat words but does not have a lot of spontaneous words. She does wave hi and bye. PHYSICAL EXAMINATION: The head circumference is 50 1/4 cms which is between the 75th and 98th percentile. This continues to grow at the same rate. She is crying and extremely uncooperative. She is very frightened by many of her past appointments. She did track, had full extraocular movements without nystagmus or ophthalmoparesis. Her facial movements do appear sysmetric. Tone is low even with her resisting. She ran to her mother, I did not see any abnormalities. Her gait certainly was not wide based. She seemed to get off the floor well. Her sensory exam was grossly intact to pain. The deep tendon reflexes were difficult due to her withdrawal. IMPRESSION: Status-post Group B strep neonatal meningitis with neonatal seizure without recurrence. Language delay. Most likely reflecting sequela of the meningitis. There is a good percentage of these children who do have severe deficits. However, the EEG and MRI did not show any abnormalities. There is no slowing of the background activity and no decrease or delay in myelination reported on the MRI. PLAN: . . . Continue speech therapy . . . Reassess in 6 months. The cause of Thalya's neurologic dysfunction Regarding the cause of Thalya's neurological dysfunction, the proof is compelling that during labor and delivery Mrs. Greene was vaginally infected with Group B Streptococcal (GBS), that during delivery the infection was transmitted to Thalya, and that over the next 24 to 48 hours the infection process rapidly progressed causing meningitis and the resultant brain injury. Consequently, it may be said that Thalya's neurologic dysfunction is associated with a brain injury caused by meningitis (an inflammation of the membranes that envelop the brain and spinal cord), secondary to a GBS infection acquired during the birthing process (most likely subsequent to rupture of the membranes and during the course of delivery). The dispute regarding compensability As a touchstone to resolving the dispute regarding compensability, it is worthy of note that the Plan establishes a no-fault administrative system that provides compensation for an infant who suffers a narrowly defined "birth-related neurological injury." Under the Plan, a "birth-related neurological injury" is defined as: [I]njury to the brain or spinal cord of a live infant weighing at least 2,500 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. Section 766.302(2), Florida Statutes. Here, there is no serious dispute that Thalya is neurologically impaired or that such impairment is attributable to a brain injury caused by the infection process discussed infra. Rather, what is at issue is whether the cause of Thalya's brain injury and the nature of her impairment fit the narrowly defined term "birth-related neurological injury." In this regard, it is Intervenor's view that Thalya's brain injury (occasioned by an infectious process) may reasonably be described as having been "caused by mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," and that such injury rendered her "permanently and substantially mentally and physically impaired." Conversely, Petitioners and Respondent are of the view that that the cause of Thalya's brain injury was not a "mechanical injury," and that she was not rendered "permanently and substantially mentally and physically impaired." Of the two, Petitioners' and Respondent's view is by far the more compelling. The nature and timing of Thalya's injury To address the nature and timing of Thalya's injury, the parties offered the opinions of three physicians: Charles Kalstone, M.D., a physician board-certified in obstetrics and gynecology; Joseph Cimino, M.D., a physician board-certified in pediatric neurology; and James Perry, M.D., a Fellow of the American Academy of Neurology. (Joint Exhibits 2-4). Notably, these physicians shared strikingly similar views, and were of the opinion that Thalya's brain injury was caused by infection induced meningitis, a process distinguishable from an injury caused by oxygen deprivation or mechanical injury. Stated otherwise, the physicians were of the opinion that Thalya's injury could not reasonably be described as having been caused by oxygen deprivation or mechanical injury.2 Given the plain and ordinary meaning of the words used in the term "mechanical injury" (as physical harm or damage caused by machinery, tools, or physical forces), their conclusion was most reasonable.3 Consequently, it is resolved that Thalya's brain injury was not caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Thalya's current mental and physical presentation At hearing, the only authoritative proof offered with regard to Thalya's current mental and physical presentation was the testimony of Dr. Cimino, Thalya's pediatric neurologist. It was Dr. Cimino's opinion that while Thalya may evidence substantial cognitive impairment, she does not evidence substantial physical impairment. Such opinions are grossly consistent with the record and are credited.
The Issue Whether Jackson White (Jackson) suffered a birth-related neurological injury, as defined by section 766.302(2), Florida Statutes; and, if so, how much compensation, if any, is awardable pursuant to section 766.31.
Findings Of Fact Jackson was born on August 1, 2014, at Bayfront, in St. Petersburg, Florida. Jackson was a single gestation, weighing over 2,500 grams at birth. Jose Prieto, M.D., was the physician who provided obstetric services at Jackson’s birth. Jackson’s mother, Megan White (Mrs. White), was admitted to Bayfront and her labor was thereafter induced with Pitocin. Her membranes were artificially ruptured 15 hours prior to delivery, with clear fluid present. Delivery was initially attempted vaginally; however, delivery was altered to Cesarean section due to late decelerations and failure to descend and dilate. The records reflect that fetal heart rate decelerations may also have been present. Jackson was delivered in a vertex presentation. Upon delivery, out of a possible score of 10, his Apgar scores were 5, 7, and 8 at one, five, and ten minutes, respectively. Of concern was that his score for “color” was 0 for the first five minutes of life. He was not pink, but rather blue or pale. Additionally, he was not actively responding, but merely grimacing, at the first minute of life. The medical records document that Jackson was experiencing respiratory distress with desaturation. Accordingly, he initially received bulb suctioning, drying, stimulation, and whiffs of oxygen. As he continued to have poor color and perfusion, with grunting and retractions, continuous positive airway pressure by mask was applied. While there was improvement in the oxygen saturation after doing so, Jackson continued to have respiratory distress. Within two hours of birth, Jackson was transferred and admitted to the Neonatal Intensive Care Unit at All Children’s Hospital (All Children’s) for further management. Upon admission to All Children’s, it was documented that his oxygen saturations ranged from 96 percent to 100 percent while utilizing a Continuous Positive Airway Pressure (CPAP) system. His physical examination revealed that he was alert, active, responsive and pink in color. Jackson’s neurologic evaluation upon admission to All Children’s revealed that he was alert, active and responsive with good tone for age; there was symmetrical movement of all four extremities; his reflexes were intact; and that his “[n]eurological examination is appropriate for the baby’s gestational age.” At All Children’s, several chest X-rays were obtained from August 1 through August 3, 2014. Ultimately, the scans revealed that Jackson had a left pneumothorax. Accordingly, the CPAP was discontinued and an “oxyhood was initiated for nitrogen wash out which was discontinued after 22 hours.” Concerned with possible sepsis, Jackson also received seven days of antibiotics. Jackson was discharged home on August 8, 2014. Jackson failed his newborn hearing screen and subsequently underwent repeated testing where he was found to have mild-to-moderate sensorineural hearing loss bilaterally. Jackson has been wearing hearing aids since six months of age. Respondent retained Donald Willis, M.D., who is board- certified in obstetrics, gynecology, and maternal-fetal medicine, to review the available medical records of Jackson and his mother, and opine as to whether there was an injury to Jackson’s brain or spinal cord that occurred in the course of labor, delivery, or resuscitation in the immediate postdelivery period due to oxygen deprivation or mechanical injury. In his report, dated July 26, 2018, Dr. Willis set forth the following, in pertinent part: The mother was admitted for induction of labor at term. Amniotic membranes were ruptured with clear fluid. Fetal heart rate (FHR) monitor tracing was not available for review. Cesarean section delivery was apparently done for failure to decent [sic], but NICU notes suggest fetal heart decelerations were also present. Birth weight was 3,630 grams. Apgar scores were 5/7/8. Respiratory distress was present after birth with poor color, grunting and retractions. Bag and Mask ventilation was required and the baby transferred to All Children’s Hospital for respiratory distress. Grunting and retractions continued at All Children’s Hospital. Chest X-Ray identified a left pneumothorax. 100% hood oxygen was started. Intubation was not required. Cultures were obtained to r/o sepsis and antibiotics given for 7 days. Bacterial and viral (HSV) cultures were negative. The newborn hearing screen was failed. No seizures occurred during the hospital stay. Head imaging studies were not done during the newborn hospital course. The baby was discharged home on DOL 8. Hearing evaluation subsequently diagnosed a sensorineural hearing loss. Genetic testing was negative for familial deafness genes. Developmental delay became a concern at about 10 months of age. Genetic evaluation, including microarray, Fragile-X and metabolic work/up was negative. MRI showed delayed myelination. Etiology was uncertain, but a statement indicated “a very subtle degree of remote insult could be considered.” Follow up MRI at 2 1/2 years of age found similar findings. Neurology evaluation gave a diagnosis of chronic static encephalopathy. MRI of the lumbar spine was normal. In summary, the baby had respiratory distress after Cesarean section delivery. Chest X-Ray identified a pneumothorax. Oxygen was given for respiratory distress, but the baby did not require intubation. No head imaging studies were done during the newborn hospital stay. There were no seizures. Sensorineural hearing loss was diagnosed. MRI for developmental delay showed only some delay in myelination. There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery and the immediate post- delivery period. After authoring the initial report, Dr. Willis received a copy of the fetal heart rate monitoring strips. After reviewing the same, on August 30, 2018, he authored an addendum to his report, which provides, in full, as follows: The fetal heart rate (FHR) monitor tracing during labor was reviewed. The tracing begins at about 05:17 on 08/01/2014. The baseline FHR was normal at 130 bpm. Uterine contractions were about every 5 minutes. The FHR tracing at about one hour prior to delivery is somewhat difficult to interpret due to attempt to place a fetal scalp electrode (FSE). FHR tracing ends at about 21:18 with delivery about 30 minutes after monitor is discontinued. The FHR tracing just prior to removal of the monitor does not suggest fetal distress. Review of the FHR tracing does not change the opinions stated in the letter above, dated 7/26/2014. There was no apparent obstetrical event that would have resulted in oxygen deprivation sufficient to cause brain injury. Dr. Willis was deposed on May 20, 2019. At his deposition, Dr. Willis affirmed the factual findings and medical opinions in the above noted report. In support of his opinion that Jackson did not sustain an injury to his brain or spinal cord in the course of labor, delivery, or resuscitation in the immediate postdelivery period due to oxygen deprivation or mechanical injury, Dr. Willis credibly testified that: 1) Mrs. White’s amniotic membranes were ruptured with clear fluid; 2) the fetal heart rate tracing did not suggest fetal distress; 3) the Apgar scores, although initially low, quickly improved and were inconsistent with an infant that sustained oxygen deprivation or acidosis; 4) Jackson did not exhibit any seizure activity; 5) aside from failing his hearing screen, Jackson did not experience any other organ system failures; and 6) the available MRI reports are inconsistent with Jackson suffering a brain injury at the time of labor and delivery. On May 12, 2017, Jackson presented to Himali Renuka Jayakody, M.D., for a neurological examination. Dr. Jayakody’s office note documents that, “[d]evelopmentally, he had initial normal development but starting around 10 months when he started standing, he appeared very clumsy and was falling over a lot.” After conducting the examination, Dr. Jayakody’s assessment was that Jackson had developmental delay, sensorineural hearing loss, and chronic static encephalopathy. His note further documented that, “[a]part from signal abnormality suggestive of hypomyelination mostly affecting the posterior white matter on MRI, we have not identified any other abnormalities. Clinically, he does not seem to have a progressive disease and has always made improvement over time suggestive of static encephalopathy/cerebral palsy.” NICA also retained Laufey Y. Sigurdardottir, M.D., a pediatric neurologist, to review Jackson’s medical records, conduct an Independent Medical Examination (IME), and opine as to whether he suffers from a permanent and substantial mental and physical impairment as a result of a birth-related neurological injury. Dr. Sigurdardottir reviewed the available medical records, obtained a full historical account from Mrs. White, and conducted and IME on Jackson on August 24, 2018. In her IME report, Dr. Sigurdardottir set forth her factual findings and opinions, which have to be admitted in this matter as part of the stipulated evidentiary record. Her summary findings and opinions are as follows: Summary: Patient is a 4 year old with history of being born via stat C-section due to fetal distress. No clear evidence was present of a neonatal hypoxic ischemic encephalopathy but he has since been diagnosed with cerebral palsy with corresponding MRI findings. His delays are mild in nature. Result as to question 1: Jackson is not found to have substantial delays in motor and mental abilities. Result as to question 2: In review of available documents, there is evidence of fetal distress but no neonatal encephalopathy consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury is reported in neonatal period apart from failing newborn hearing screen. Result as to question 3: The prognosis for full motor and mental recovery is good and the life expectancy is full. In light of evidence presented, I believe Jackson does not fulfill criteria of a substantial mental and physical impairment at this time. Petitioner neither testified nor presented any testimony to refute the findings and opinions of Drs. Willis and Sigurdardottir. Their findings and opinions are credited.
Conclusions This cause came before the undersigned upon the parties’ Joint Motion to Submit Stipulated Factual Record in Lieu of a Contested Hearing (Joint Motion), which was granted on May 22, 2019, and the parties’ proposed final orders.
Other Judicial Opinions Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).
Findings Of Fact Uzziah Walker was born on November 23, 2012, at Sacred Heart Hospital located in Pensacola, Florida. Uzziah weighed in excess of 2,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Uzziah. In an affidavit dated May 24, 2015, Dr. Willis described his findings in pertinent part as follows: In summary, there was no apparent fetal distress during labor. Spontaneous vaginal delivery resulted in a large subgaleal hemorrhage with blood loss and poor perfusion. The baby was not hypoxic at birth. Cord blood gas was normal (pH 7.25). However, blood loss from the scalp hemorrhage and poor perfusion resulted in intraventricular hemorrhage during the immediate post delivery period. There was an apparent obstetrical event that resulted in scalp hemorrhage and poor perfusion with loss of oxygen to the baby’s brain during the immediate post delivery period. The poor perfusion resulted in brain injury. I am unable to comment about the severity of the brain injury. NICA retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Uzziah and to review his medical records. Dr. Duchowny examined Uzziah on March 11, 2015. In an affidavit dated May 29, 2015, Dr. Duchowny opined in pertinent part as follows: Review of medical records and imaging studies sent on February 4 and 6, 2015 was performed. They detail Uzziah’s birth at Baptist Hospital Health System in Pensacola with a forceps assisted delivery after a rapid decent. Uzziah evidenced tachycardia and some retractions at the time of delivery but his Apgar scores were 7 and 8. He was observed to have a subgaleal hematoma; a CT scan of the brain on November 23 revealed a large soft tissue hematoma and a small collection of subdural blood over the right cerebellar tent with a small amount of right ventricular hemorrhage. Of note, there was no cerebral edema or ventricular compression. No skull fractures were noted despite bilateral subgaleal hematomas. The neonatal course was otherwise uncomplicated. In summary, Uzziah’s neurological examination today reveals normal findings. He does not exhibit either mental or physical impairment and his overall development has caught up and is proceeding in an age appropriate fashion. I believe that Uzziah’s perinatal hematomas were resorbed without residual brain injury and his future prognosis is excellent. I explained to his family that Uzziah is doing very well and that his future is favorable from a prognostic standpoint. Given Uzziah’s normal neurological status today, I am not recommending compensation with 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 an apparent obstetrical event that resulted in scalp hemorrhage and poor perfusion with loss of oxygen to the baby's brain during the immediate post-delivery period, and that the poor perfusion resulted in brain injury. Dr. Willis’ opinion is credited. There are no opinions filed that are contrary to Dr. Duchowny’s opinion that Uzziah’s overall development is proceeding in an age appropriate fashion and does not exhibit either mental or physical impairment. Dr. Duchowny’s opinion is credited.
The Issue At issue in this proceeding is whether Sarah Massey, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental Findings Gina R. Massey and James Massey, are the parents and natural guardians of Sarah Massey (Sarah), a minor. Sarah was born a live infant on March 14, 1993, at St. Joseph's Women's Hospital (St. Joseph's), a hospital located in Tampa, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Sarah was Steven Ira Arkin, M.D., who was, at all time material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Mrs. Massey's antepartum course and Sarah's birth At the time of Sarah's birth, Mrs. Massey was 28 years of age, and Sarah was to be her first child. Her estimated date of confinement was established as March 20, 1993, and her pregnancy was uncomplicated. On March 13, 1993, Mrs. Massey started to experience contractions, and at or about 7:00 p.m. her membranes spontaneously ruptured. Following her physician's advice, Mrs. Massey presented to St. Joseph's Women's Hospital at or about 9:00 p.m. By 5:30 a.m., March 14, 1993, Mrs. Massey's cervix had dilated to four centimeters; however, she failed to progress and at approximately 8:00 a.m. Pitocin was started. Thereafter labor continued, but without progress, until 9:20 a.m., at which time Pitocin was discontinued and Dr. Arkin decided, for reasons hereafter discussed, to proceed with a caesarean section. Pertinent to this case, starting at 5:30 a.m., March 14, 1996, and extending until delivery, the fetal heart rate was monitored by fetal scalp electrode. Such monitoring revealed, overtime, repetitive variable and late decelerations; a reflection of fetal stress. Based on such indicia of fetal distress and Mrs. Massey's failure to progress, Dr. Arkin elected to proceed by caesarean section. Mrs. Massey was taken to the operating room at 9:30 a.m., anesthesia was started at 9:35 a.m., and surgery commenced at 9:56 a.m. At 10:01 a.m., Sarah was delivered. Upon delivery Sarah breathed spontaneously, and did not require resuscitation. The delivery record reveals no abnormalities observed at birth; however, Sarah was noted to have a temperature of 102.5 degrees. Her Apgar scores were noted as 8 at one minute and 9 at five minutes. Such scores are considered good or normal. 3/ Sarah was transferred to the well baby nursery at 10:20 a.m. where, upon admission she was noted to exhibit grunting and nasal flaring, as well as a continued pale color and poor lung exchange of air. By 10:50 a.m. Sarah's color had improved; however she continued to grunt intermittently. Considering Sarah's presentation, the initial concern was of infection, given the mother's and child's elevated temperatures at birth, as opposed to hypoxic insult. Consequently, Sarah was placed on a seven-day regimen of antibiotics as a precautionary measure. 12. During the 11:00 p.m. (March 15, 1996) to 7:00 a.m. (March 16, 1996) shift, Sarah exhibited some right-sided twitching consistent with seizure activity. Following such report, initial physical examination by her treating physician failed to observe any jitteriness; however, questionable eye deviation to the left was noted. Consequently, an electroencephalogram (EEG) and cranial ultrasound were ordered, and a neurologic consult was placed. The EEG of March 16, 1993, was abnormal, and demonstrated active electrical seizure activity in the left hemisphere. The cranial ultrasound of the same date likewise demonstrated an abnormality. That study found: . . . There is an echogenic, amorphous area located within the left basal ganglion region. . . . The findings are nonspecific, but given the presentation and age of the infant, a hemorrhage would be most likely. No germinal matrix, hemorrhage or abnormality is seen and no periventricular white matter abnormality is seen to suggest hypoxic/ ischemic brain injury. Of note, color Doppler ultrasound of the area was performed, and no abnormal vascularity to the echogenic area was seen. This would support a hemorrhage over a tumor . . . since no vascularity was seen. Still, computer tomography of the head is recommended to further evaluate this abnormality if appropriate. No other abnormalities are seen. The brain is structurally normal. The ventricles are normal in size. Conclusion: Amorphous, echogenic mass in the left lentiform nucleus and external capsule region which most likely represents an intracerebral hemorrhage. Computer tomography at some point is recommended. No other abnormalities are seen. No germinal matrix abnormality, ventricular enlargement, or evidence of hypoxic/ischemic injury to the periventricular white matter is seen. Sarah was transferred from the well baby nursery to the neonatal intensive care unit (NICU) at approximately 3:00 p.m., March 16, 1993. Following admission, a brain CT scan was ordered. The brain CT scan of March 16, 1993, revealed extensive low attenuation throughout the left cerebral hemisphere, including the basal ganglia, suggesting a large cerebrovascular accident (CVA). No significant midline shift was observed, and no hemorrhage was seen to correlate with the echogenic area observed on the ultrasound performed earlier that day. Neurologic consult was of the impression that Sarah had a seizure disorder, probably secondary to an intra-uterine CVA, and a mild right-sided hemiparesis. Sarah was begun on Phenobarbital and her seizures were well controlled. Following the seven day regimen of antibiotics heretofore noted, Sarah was believed stable, and on March 21, 1993, she was discharged to the care of her parents. The ultimate neurologic result of Sarah's intra- uterine CVA (stroke) was a mild right-sided hemiparesis, evidenced by spastic weakness primarily of her right arm; however, there is also some diminution of motor function in Sarah's right leg. As for her mental status, Sarah's mental functioning currently appears age appropriate and, although it cannot be conclusively stated at this juncture in her life, it appears more likely than not that she has not suffered any diminution of cognitive function. The timing and cause of Sarah's intra-uterine CVA Although the medical records indicate that during labor Sarah underwent fetal stress, as evidenced by fetal heart decelerations, the proof fails to support the conclusion that those events contributed to her neurological deficits. Rather, the proof, as demonstrated by Sarah's presentation at birth, relatively stable condition during hospitalization, and radiological studies, indicates that Sarah's neurological impairments derive from an intra-uterine stroke which significantly predated the onset of labor, as opposed to hypoxic insult during the course of labor or delivery. Apart from Sarah's presentation and progress during hospitalization, the radiological studies, done within two days of her birth, provide compelling proof as to the nature and timing of her injury. First, such studies do not demonstrate evidence of an acute brain injury which could have occurred during the course of labor and delivery. In this regard, it is observed that there was no evidence of edema (a condition of swelling which accompanies an acute brain injury) and no evidence of a recent (acute) hemorrhage (the presence of blood). Second, the area of diffuse low attenuation observed on radiologic study was most likely a presentation of dead or injured brain cells in the area of the hemorrhage which had undergone organic changes over time, and could properly be described as presenting in a chronic state (persisting over a long period of time), as opposed to acute. Finally, the focal nature of Sarah's brain injury, with resultant right-sided hemiparesis, is not generally associated with hypoxic insult. In this regard, it is noted that hypoxic insult generally evidences as a global injury to the brain, as opposed to the focal injury Sarah suffered, with a resultant effect, to varying degrees, on all neurologic function, as compared to the limited neurologic loss Sarah suffered. Given the record, the opinion of Michael Duchowny, M.D., a board certified pediatric neurologist associated with Miami Children's Hospital, that the cause of Sarah's brain injury and her ensuing neurologic impairment was an intra- uterine stroke, which predated labor by as much as one week, is credited as most consistent with the proof. Likewise credited, based on the consistency of his testimony with the proof of record, is Dr. Duchowny's opinion that Sarah's physical impairment can best be described as mild, as opposed to substantial, and that she evidences no loss of cognitive function.
Findings Of Fact Noelle was born on February 9, 2017, at AdventHealth located in Orlando, Florida. Upon receiving the Petition, NICA retained Donald Willis, M.D., a board certified obstetrician/gynecologist specializing in maternal-fetal medicine, as well as Laufey Y. Sigurdardottir, M.D., a pediatric neurologist, to review Noelle’s medical condition. NICA sought to determine whether Noelle suffered a “birth-related neurological injury” as defined in section 766.302(2). Specifically, NICA requested its medical experts render an opinion whether Noelle experienced 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; and, if so, whether this injury rendered Noelle permanently and substantially mentally and physically impaired. Dr. Willis reviewed Noelle’s medical records and observed: A cephalohematoma was noted on admission to the nursery, but the baby was not felt to be in acute distress. Neurologic exam was normal. * * * The child was seen in the ED at about 13- months of age for head trauma related to a fall. MRI showed diffuse periventricular white matter volume loss. Evaluation at about 18-months of age described decrease movement of left arm and leg. A diagnosis of cerebral palsy with hemiplegia and partial epilepsy was made. Dr. Willis then opined: In summary, vaginal delivery was complicated by a shoulder dystocia, lasting one-minute. The baby was not depressed with Apgar scores of 7/9. No resuscitation was required. The baby was transferred to the nursery at about 16 hours after birth with decreasing blood sugars and desaturations occurred in the nursery. This would be after resuscitation in the immediate post-delivery period. * * * This child suffered a brain injury as documented by the MRI findings. However, the brain injury does not appear to be birth related. * * * There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery or the immediate post- delivery period. Dr. Sigurdardottir also reviewed Noelle’s medical records, as well as conducted an independent medical exam of Noelle on November 28, 2018. Dr. Sigurdardottir opined, within a reasonable degree of medical probability: Noelle Galbraith has substantial delays in motor and mild delays in mental abilities. * * * Noelle has serious delays in motor milestones and carries diagnosis of hemiplegic cerebral palsy. She had delays in gross motor development. Despite these findings, Dr. Sigurdardottir concluded that: In review of available documents, there is evidence of impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury, but timing of injury to the labor, birth or immediate post natal period is not able to be determined. * * * I believe Noelle does not fulfill criteria of a substantial mental and physical impairment at this time. I do feel that Noelle should not 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. Sigurdardottir. Their opinions are credible and persuasive. Based on the opinions and conclusions of Dr. Willis and Dr. Sigurdardottir, NICA determined that Petitioner’s claim was not compensable. NICA subsequently filed the Unopposed Motion for Summary Final Order asserting that Noelle has not suffered a “birth-related neurological injury” as defined by section 766.302(2). Petitioners do not oppose NICA’s motion.
Conclusions Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition is dismissed, with prejudice. DONE AND ORDERED this 13th day of November, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2019.
Other Judicial Opinions Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass’n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).
Findings Of Fact Koby was born on January 10, 2020, at Tampa General Hospital, in Tampa, Florida. Koby was a single gestation and his weight at birth exceeded 2,500 grams. Obstetrical services were delivered by a participating physician, Dr. Louis, in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, Tampa General Hospital. As set forth in greater detail below, the unrefuted evidence establishes that Koby did not sustain a “birth-related neurological injury,” as defined by section 766.302(2). Donald Willis, M.D., a board-certified obstetrician specializing in maternal-fetal medicine, was retained by Respondent to review the pertinent medical records of Ms. Crowley and Koby and opine as to whether Koby sustained an injury to his brain or spinal cord caused by oxygen deprivation or mechanical injury that occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital. In his report, dated October 19, 2020, Dr. Willis summarized his findings and opinions as follows: In summary, pregnancy was complicated by a known fetal congenital birth defect, Omphalocele. Delivery by repeat Cesarean section was done in early labor with rupture of the membranes. The baby was depressed at birth with cord blood pH of 6.74 and base excess of -21. Despite the acidosis at birth, MRI on DOL 7 was normal. There was some degree of oxygen deprivation at birth, as documented by the cord blood pH of 6.4. However, MRI on DOL 7 was normal, suggesting the oxygen deprivation did not result in identifiable brain injury. Based on available medical records, it does not appear the child suffered a birth related brain injury. In his supporting affidavit, Dr. Willis opines, to a reasonable degree of medical probability, that while Koby suffered some degree of oxygen deprivation at birth, it does not appear the child suffered a birth related brain injury. Respondent also retained Luis E. Bello-Espinosa, a pediatric neurologist, to review the medical records of Ms. Crowley and Koby, and to conduct an Independent Medical Examination (IME) of Koby. The purpose of his review and IME was to determine whether Koby suffered from a permanent and substantial mental and physical impairment as a result of an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery, or resuscitation in the immediate post- delivery period. Dr. Bello-Espinosa reviewed the pertinent medical records and, on December 11, 2020, conducted the IME. In his report, prepared the same day as the examination, he summarized his findings and opinions as follows: Koby is an eleven month and three-week-old by ex- 35 week premature born via C-section with clear amniotic fluid after PROM. At birth, he was diagnosed with an omphalocele. A diagnosis of moderate hypoxic encephalopathy was made given his initial Apgar score, arterial blood gases, and neurological examination. Therapeutic hypothermia was implemented despite his neonatal age, given his clinical presentation. During his NICU stay, he did not have acute electroclinical or electrographic seizures. An MRI of the brain obtained on day 7th of life was normal. Since birth, he has benefited from PT and OT. His comprehensive neurological examination today is normal. Dr. Bello-Espinosa opined that Koby does not suffer from a substantial and permanent mental and physical impairment. Additionally, he opined that Koby did not acquire an injury to the brain or spinal cord during labor, delivery, or the immediate post-delivery period. Accordingly, he did not recommend Koby be considered for inclusion in the Plan. Dr. Bello-Espinosa confirms those opinions in his supporting affidavit. The undisputed and unopposed findings and opinions of Drs. Willis and Bello-Espinosa are credited. The undersigned finds that Koby did not sustain 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 rendered him permanently and substantially mentally and physical impaired.
Findings Of Fact Amy Nicole Alvarez was born on June 16, 2010, at Jackson South Community Hospital in Miami, Florida. Michael S. Duchowny, M.D. (Dr. Duchowny), was requested by NICA to do an independent medical examination of Amy and to review her medical records. Dr. Duchowny examined Amy on July 2, 2014. In an affidavit dated September 22, 2014, Dr. Duchowny reported his findings and gave the following opinion: In summary, Amy’s neurological examination today reveals mild right spastic hemiparesis, speech dysarthria and a complex visual agnosia. She additionally evidences microcephaly. Although I am concerned about Amy’s overall cognitive development due to her microcephaly, she appears to be progressing satisfactory and is making progress with respect to verbal communication both in the receptive and expressive domains. Her visual impairment is likely to be centrally-based. I had an opportunity to review Amy’s medical records. It contained information that is consistent with Amy’s overall history but I have not reviewed Amy’s brain MRI scans. However, in view of Amy’s relatively good mental development and only mild degree of motor impairment, I would not recommend inclusion within the NICA program. As such, it is my opinion that AMY NICOLE ALVAREZ is not permanently and substantially mentally impaired nor is she permanently and substantially physically impaired due to oxygen deprivation or mechanical injury occurring during the course of labor, delivery or the immediate post-delivery period in the hospital during the birth of AMY NICOLE ALVAREZ. (Emphasis in original.) A review of the file does not show any contrary opinion, nor was any potential contrary expert disclosed during the telephone hearing on the Motions for Summary Final Order. The opinion of Dr. Duchowny that Amy does not have a permanent and substantial mental or physical impairment is credited.
Findings Of Fact Xavier Concepcion was born on September 16, 2014, at Memorial Hospital West in Pembroke Pines, Florida. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Xavier’s medical records. In a medical report dated January 20, 2016, Dr. Willis made the following findings and expressed the following opinion: In summary, labor was complicated by maternal infection (chorioamnionitis) and a non- reassuring FHR pattern prior to birth. The baby was depressed at birth with a cord blood pH of <6.9. Seizure activity developed shortly after birth. MRI was consistent with acute brain infarction. There was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and continuing into the immediate post delivery period. It is possible the brain injury from oxygen deprivation was worsened by infection. I am unable to comment about the severity of the brain injury. Dr. Willis’ opinion that there was an obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and continuing into the immediate post delivery period is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate Xavier. Dr. Duchowny reviewed Xavier’s medical records, and performed an independent medical examination on him on May 25, 2016. Dr. Duchowny made the following findings and summarized his evaluation as follows: Motor examination reveals symmetric muscle strength, bulk and tone. There are no adventitious movements and no focal weakness or atrophy. Xavier does not evidence dystonic postures or hypertonicity. He has full range of motion at all joints. Coordination: Xavier walks in a stable fashion and does not fall. He can arise from the floor without difficulty. His balance is good and he has well-developed axial and peripheral balance. He grasps with both hand[s] and moved objects between hands without difficulty. He did not fall and his head control is good. * * * In Summary, Xavier’s neurological examination discloses no significant findings. He is developmentally appropriate with no focal or lateralizing features to suggest a structural brain abnormality. Review of the medical records reveals that Xavier was born at Memorial West Hospital at term and transferred to Joe DiMaggio Children’s Hospital. Maternal membranes were ruptured 30 hours prior to delivery, and maternal chorioamnionitis and fever were treated with penicillin. Xavier was born vaginally and was pale, cyanotic, flaccid and unresponsive. A tight nuchal cord was removed. He weighed 7 pounds 7 ounces and his Apgar scores were 1, 5 and 7 at one, five, and ten minutes. The records indicated that an initial arterial pH was 6.95 but the base excess was unknown. Xavier was intubated at 3 minutes of age, established spontaneous respiration at 25 minutes of age and was subsequently extubated. His CBC revealed a bandemia of 22 on September 22nd. Seizures were noted on the first day of life and there was evidence of a mild coagulopathy. The placenta was positive for E.coli. An MRI scan of the brain revealed multiple acute infarcts in the left temporal, occipital and superior parietal regions and right thalamus and putamen, and a small subdural hematoma. Despite Xavier’s difficulties at birth, he has developed well and does not evidence neurodevelopmental delay. I am therefore not recommending Xavier for compensation within the NICA program. In order for a birth-related injury to be compensable under the Plan, the injury must meet the definition of a birth- related neurological injury and the injury must have caused both permanent and substantial mental and physical impairment. Dr. Duchowny’s opinion that Xavier has developed well and does not evidence neurodevelopmental delay is credited. 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. Duchowny that Xavier has developed well and does not evidence neurodevelopmental delay. There is nothing in Dr. Duchowny’s report that indicates that Xavier has either a substantial mental or physical impairment. Thus, Xavier does not meet the requirement of having a substantial physical or mental impairment.
