The Issue At issue in this proceeding is whether Cassidy Taylor Shiver, 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 Kellie Dawn Shiver and Robert L. Shiver are the parents and natural guardians of Cassidy Taylor Shiver (Cassidy), a minor. Cassidy was born a live infant on November 5, 1996, at DeSoto Memorial Hospital, a hospital located in Arcadia, Florida, and her birth weight was in excess of 2500 grams. The physician providing obstetrical services during Cassidy's birth was Dumitru-Dan Teodoreseu, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (the 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 claimant demonstrates, 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." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, Cassidy's neurologic condition is dispositive of the claim and it is unnecessary to address the timing or cause of her condition. Cassidy's neurologic status On January 7, 1999, following the filing of the claim for compensation, Cassidy was evaluated by Michael Duchowny, M.D., a board-certified pediatric neurologist. Dr. Duchowny chronicled Cassidy's history and the results of his examination as follows: I evaluated Cassidy Shiver on January 7, 1999. Cassidy is a 2 year old girl who comes for an evaluation of developmental problems. Cassidy was accompanied by her mother and maternal grandmother. HISTORY ACCORDING TO THE FAMILY: The family began by explaining that Cassidy's seizures are her main ongoing problem. She had her last seizure several weeks ago and is now taking phenobarbital 20 mg b.i.d. Her seizure onset was at 2 months of age. She has essentially had persistent seizures, except for a 6 month seizure free interval. Each episode lasts approximately 1 to 2 minutes and typically occurs 15 to 20 minutes after falling asleep. Cassidy experiences the rapid onset of tonic and subsequently clonic movements primarily involving the upper extremities. They are associated with loss of consciousness and foaming at the mouth. She has a period of postictal depression before regaining normal baseline status during daytime attacks. Cassidy was allegedly the product of a 32 weeks gestation, born with the birth weight of 5-pounds, 9-ounces. The delivery was by a vacuum extraction and left Cassidy with a large right cephalohematoma. There was a significant collection of blood which ultimately "ruptured". Mrs. Shiver indicated that Cassidy experienced damage to both frontal lobes which was documented on both CT and MRI studies. Despite Cassidy's stormy neonatal course, her growth and development have proceeded reasonably well. She walked at 16 months and said single words at 22 months. She is not yet potty trained. Cassidy is fully immunized, has no known allergies and has never undergone surgery. She sporadically sees physical and occupational therapist, but Mrs. Shiver's [sic] performs the therapies at home. Cassidy has made a remarkable recovery, in that her motor function is essentially within the normal range with the exception of a minor arm asymmetry and with decreased left swing. Cassidy is quite curious and socially engaging. Her vision and hearing are said to be adequate and there has been no deterioration in her overall developmental level. PHYSICAL EXAMINATION today reveals Cassidy to be alert and cooperative. The skin is warm and moist. Her hair is blonde and of normal texture. Cassidy's head circumference measures 50.2 cm which is within standard percentiles. The anterior and posterior fontanelles are closed. There are no significant cranial or facial asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. NEUROLOGICAL EXMINATION reveals Cassidy to be alert, curious and slightly overactive. She does participate in the examination fully and is socially engaging. Cassidy maintains central gaze fixation and demonstrates conjugate following movements. The pupils are 4 mm and react briskly to direct and consentually presented light. There are no fundoscopic abnormalities. The tongue and palate move well. Motor examination reveals symmetric strength, bulk and tone. There are no adventitious movements or evidence of focal weakness. The gait is stable with an arm swing that indeed shows some posturing of the left arm. This is minimal however and does not affect Cassidy's stance or balance. She demonstrates good dexterity with both hands and has a well developed fine motor coordination for age. She uses both hands in a coordinated fashion. The deep tendon reflexes are 2+ and symmetric with flexor plantar responses. There is no evidence of gait, truncal or extremity ataxia. The neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. The sensory examination is deferred. Cassidy did not speak in words or sentences at any time during the evaluation, but tends to verbalize consonants only. In SUMMARY, Cassidy's neurologic examination reveals evidence of an expressive language delay and a minor non-functional asymmetry of upper arm swing on her gait. Otherwise, Cassidy appears to be developing well and is being managed appropriately for her seizure diathesis. In Dr. Duchowny's opinion, which is credited, Cassidy is not currently substantially physically impaired and, notwithstanding any events which may have occurred at birth, is not likely to be so impaired in the future. 1/ (Respondent's Exhibit 1, pages 8, 9, and 11.)
The Issue At issue is whether Robert Donald Vose, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Dawn Vose is the parent of Robert Donald Vose, a minor. Robert was born a live infant on August 15, 2001, at Baptist Hospital, Pensacola, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Robert's birth was Jill Prafke, M.D., who, at all times material hereto, was a "participating physician" in the Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant, permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. To resolve whether Robert suffered a "birth-related neurological injury," the parties offered the medical records related to Robert's birth and subsequent development (Respondent's Exhibit 3), as well as the opinions of Donald C. Willis, M.D., a physician who practices maternal-fetal medicine, and Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. (Respondent's Exhibits 1 and 2). With regard to injury, Dr. Willis was of the opinion that Robert suffered a brain injury (a venous sinus thrombosis and choroid plexus hemorrhage) at or around the time of delivery, that resulted in the development of hydrocephalus. However, he offered no opinion regarding the extent or significance of the brain damage. (Respondent's Exhibit 2). In contrast, Dr. Duchowny evaluated Robert on May 4, 2006, and concluded that his "normal neurological status together with a review of the accompanying medical records does not suggest that he has a substantial mental or motor impairment," as required for coverage under the Plan. (Respondent's Exhibit 1). Dr. Duchowny reported the results of his evaluation, and the basis for his opinion, as follows: I had the pleasure of evaluating Bobby Vose on May 4, 2006. Bobby is a 4-year-old, left-handed, prekindergarten student who was brought by his father for evaluation. This was conducted in my office at Miami Children's Hospital. HISTORY ACCORDING TO THE FATHER: Mr. Vose explained that Bobby was brought in order to "verify his abilities for NICA." He believes that Bobby is developing normally and in fact, is above average in several areas. He will be starting kindergarten in September and has done extremely well in his prekindergarten class setting. In fact, his language abilities are above average for age and he is bilingual with approximately 70 words of Spanish. He is a sociable boy who plays well with other children and his motor milestones have progressed normally. He sleeps through the night. His vision and hearing are intact. There has been no regression and no toxic or infectious exposure. Bobby is on no intercurrent medications. Bobby's PAST MEDICAL HISTORY is significant for placement of a ventriculoperitoneal shunt as a newborn. He apparently experienced an intercranial hemorrhage into the right ventricle and had a shunt placed from the anterior horn of the right ventricle into the peritoneal cavity. His shunt has functioned well and there have been no complications or revisions . . . . Otherwise, Bobby enjoys good health. He is not being followed for any chronic illnesses and has not required medical or surgical intervention subsequent to the newborn period. PERINATAL HISTORY: Bobby was born at Baptist Hospital in Pensacola at 37-weeks gestation. There was an attempt at a vaginal delivery but "the head was wedged" and Bobby was ultimately delivered by emergency cesarean section. He weighed 8 pounds and breathed well at birth. He remained in the hospital for approximately 11 days. GROWTH AND DEVELOPMENT: Bobby's father could not recall Bobby's motor or language milestones except to note that all occurred at the normal time. Bobby is fully immunized and has no known drug allergies. He has had a hernia repaired. * * * PHYSICAL EXAMINATION reveals an alert, well- developed, pleasant and cooperative 4-year- old boy. Bobby weighs 38 pounds. The skin is warm and moist. Bobby's head circumference measures 51.9 centimeters, which is within standard percentiles for age. The fontanels are closed. The ventriculoperitoneal shunt reservoir is palpated over the right frontal bone and shunt tubing is noted in the right anterior lateral neck region and across the thorax and abdomen. There is a healed right, upper quadrant abdominal scar. There are no cranial or facial anomalies or asymmetries. No dysmorphic features or cutaneous stigmata are noted. The neck is supple without masses, thyromegaly or adenopathy. The lung fields are clear and the heart sounds are normal. There is no palpable abdominal organomegaly. Peripheral pulses are 2+ and symmetric. NEUROLOGICAL EXAMINATION likewise discloses no significant findings. Bobby is alert, pleasant and cooperative. He answers all questions fluently with a good fund of information and an age appropriate stream of both thought and attention. He cooperated with all aspects of the evaluation. The cranial nerve examination reveals full visual fields to direct confrontation testing and normal ocular fundi. The optic disc margins are clearly demarcated and there is no optic pallor. There are no significant retinal findings. The extraocular movements are full and conjugate. The pupils are 3 mm and react briskly to direct and consensually presented light. There is blink to threat from both directions. The tongue is moist and papillated and moves well in all plains. The uvula is midline. The pharyngeal folds are symmetric. Motor examination reveals symmetric strength, bulk, and tone. There are no adventitious movements and no focal weakness or atrophy. The deep tendon reflexes are 2+ throughout. Plantar responses are downgoing. Station and gait are appropriate for age. The arm swing is symmetric. Sensory examination is intact to withdrawal of all extremities to stimulation. Neurovascular examination reveals no cervical, cranial, or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Bobby's neurological examination in detail reveals no significant focal or lateralizing findings. The ventriculoperitoneal shunt is likely to be nonfunctional at this point. Bobby's normal neurological status together with a review of the accompanying medical records does not suggest that he has a substantial mental or motor impairment. . . . I, therefore, do not believe that he is eligible for compensation under the NICA statute.
The Issue Whether Daniel Espinoza has suffered an injury for which he and his mother, Maria L. Espinoza, should be awarded compensation under the Florida Birth-Related Neurological Injury Compensation Plan, as Ms. Espinoza has alleged in her claim for compensation filed on behalf of Daniel?
Findings Of Fact Based upon the evidence adduced at the July 14, 1994, Division-conducted hearing in this case, and the record as a whole, the following Findings of Fact are made: Daniel Espinoza is the natural son of Petitioner. He was born on January 6, 1991, at Jackson Memorial Hospital (hereinafter referred to as "Jackson") in Dade County, Florida. Daniel was the product of a full term pregnancy. His birth weight was in excess of 2500 grams. Daniel was delivered by Erin Colleen Dawson, M.D. At the time of Daniel's birth, Dr. Dawson was a participant in the Florida Birth-Related Neurological Injury Compensation Plan. The delivery was uneventful. Daniel was a "vigorous" baby at birth. He had a "good" Apgar score of 9 at one, five, and ten minutes after birth. There was no resuscitation required in the immediate postdelivery period. Approximately five hours after the initial evaluation, Daniel appeared to be "grunting" and suffering from "cyanosis." As a result, he was transferred to Jackson's neonatal intensive care unit, where he had a seizure and experienced respiratory distress. Daniel's C.S.F. (cerebrospinal fluid) was bloody and had a white blood cell count of 19000. An initial diagnosis of meningitis was made. On January 7, 1991, an EEG (electroencephalogram) was done. It revealed "no epileptiform phenomena." A CT (computerized tomography) scan of Daniel's brain was performed on January 8, 1991. The report of the scan read as follows: HISTORY- TWO DAY OLD WITH SEPSIS. 5 MM AXIAL SECTIONS WERE OBTAINED THROUGH THE BRAIN WITHOUT CONTRAST. THERE IS A SMALL LUCENT DEFECT IN THE LEFT OCCIPITAL BONE SEEN ON IMAGE #5. ALTHOUGH NO SOFT TISSUE SWELLING IS SEEN, CANNOT DEFINITELY EXCLUDE THIS BEING A LINEAR NONDEPRESSED FRACTURE VERSUS OTHER ETIOLOGY SUCH AS A VASCULAR GROOVE. WE SUGGEST CORRELATION WITH THE PLAIN FILM. THERE IS A HUGE AMOUNT OF BLOOD IN THE RIGHT POSTERIOR FOSSA EXTENDING ACROSS THE MIDLINE AND INSINUATING ON THE RIGHT TENTORIAL INCISURA SUPRATENTORIALLY. BLOOD IS ALSO SEEN ALONG THE POSTERIOR INTERHEMISPHERIC FISSURE DIFFUSELY IN THE EXTRA-AXIAL SPACE, AND A SMALL AMOUNT OF BLOOD IN THE OCCIPITAL HORNS OF THE LATERAL VENTRICLES. WITH SUCH A TREMENDOUS AMOUNT OF BLOOD PRESENT IN THE POSTERIOR FOSSA, IT IS DIFFICULT TO SAY HOW MUCH IS PARENCHYMAL VERSUS EXTRA-AXIAL. THERE IS MASS EFFECT UPON THE MID BRAIN PONS AND MEDULLA AND ON THE FOURTH VENTRICLE CAUSING OBSTRUCTING HYDROCEPHALUS. IMPRESSION LARGE ACUTE INTRACRANIAL HEMORRHAGE, AS DESCRIBED ABOVE, WITH THE EPICENTER BEING IN THE RIGHT POSTERIOR FOSSA. THE DIFFERENTIAL DIAGNOSIS INCLUDES NEOPLASM, TRAUMA, RUPTURED ANEURYSM OR ARTERIOVENOUS MALFORMATION, COAGULOPATHY, ETC. CONTRAST STUDY OR MRI MAY BE OF HELP FOR FURTHER EVALUATION TO TRY TO DETERMINE THE UNDERLYING ETIOLOGY. On January 9, 1991, Daniel underwent an echoencephalogram, which, according to the report of the study, indicated the following: ROUTINE ECHOENCEPHALOGRAM REVEALED DILATION OF THE LATERAL AND THIRD VENTRICLES. THERE IS A BILATERAL LUMPY CHOROID PLEXUS NOTED. ADDITIONAL TRANSTEMPORAL VIEWS REVEAL AN ECHOGENIC AREA SEEN IN THE INFRATENTORIAL REGION, WITH INCREASE IN THE ECHOGENICITY OF THE BASAL CISTERNS. THE FINDINGS ARE SIMILAR TO THOSE SEEN ON PREVIOUS CT SCAN, WHICH SHOWED EVIDENCE OF A CEREBRAL HEMORRHAGE WITH SUBARACHNOID BLEED. THE NORMAL STRUCTURES OF THE POSTERIOR FOSSA ARE ILL-DEFINED. IMPRESSION: MODERATE HYDROCEPHALIC CHANGES OF THE LATERAL AND THIRD VENTRICLES. SUBARACHNOID HEMORRHAGE WITH A POSTERIOR FOSSA HEMORRHAGE, AS DESCRIBED IN A PREVIOUS CT SCAN OF THE BRAIN. Another CT brain scan was performed on January 23, 1994, the report of which stated the following: THE PATIENT IS A TWO WEEK OLD MALE WITH A HISTORY OF INTRACRANIAL HEMORRHAGE. AXIAL IMAGES WERE OBTAINED THROUGH THE BRAIN AT 5MM INTERVALS FOLLOWING INTRAVENOUS ADMINISTRATION OF CONTRAST. COMPARED TO THE PRIOR STUDY OF 1-8-91, THERE HAS BEEN SUBSTANTIAL RESORPTION OF BLOOD IN THE REGION OF THE SUBDURAL, SUBARACHNOID AND INTRAVENTRICULAR HEMORRHAGE. THERE ALSO HAS BEEN MARKED DECREASE IN THE VENTRICULAR SIZE. THERE IS LESS ASSOCIATED MASS EFFECT, ESPECIALLY IN THE POSTERIOR FOSSA WITH PERSISTENT SUBDURAL HEMORRHAGE IN THE RIGHT SIDE OF THE POSTERIOR FOSSA DISPLACING THE CEREBELLUM ANTERIORLY AND TO THE LEFT. THE FOURTH VENTRICLE IS NOW VISUALIZED, HOWEVER. NO NEW AREAS OF HEMORRHAGE ARE SEEN. THERE ARE NO BONY ABNORMALITIES. THE MAXILLARY AND ETHMOID SINUSES AND MASTOID AIR CELLS ARE CLEAR. IMPRESSION SIGNIFICANT RESORPTION OF SUBDURAL, SUBARACHNOID WITH INTRAVENTRICULAR HEMORRHAGE SINCE THE PRIOR STUDY OF 1-8-91 WITH LESS MASS EFFECT, ESPECIALLY UPON THE CEREBELLUM AND BRAIN STEM. MARKED DECREASE IN VENTRICULAR SIZE HAS ALSO OCCURRED. On January 25, 1991, Daniel underwent a second echoencephalogram, the report of which read as follows: FOLLOW-UP BRAIN HEMORRHAGE. COMPARISON IS MADE TO PREVIOUS STUDY FROM 1/8/91. THERE HAS BEEN MARKED INTERVAL RESOLUTION OF THE PREVIOUSLY DEFINED RIGHT POSTERIOR FOSSA HEMORRHAGE. IN ADDITION, THE VENTRICULAR SIZE HAS DECREASED SIGNIFICANTLY SINCE THE PREVIOUS EXAM. THERE CONTINUES TO BE SLIGHT INCREASED ECHOGENICITY WITHIN THE SYLVIAN FISSURES BILATERALLY, WHICH MAY REPRESENT SOME RESIDUAL SUBARACHNOID HEMORRHAGE. NO EVIDENCE OF NEW OR ACUTE HEMORRHAGE IS IDENTIFIED. IMPRESSION: THERE HAS BEEN SIGNIFICANT INTERVAL IMPROVEMENT IN THE DEGREE OF VENTRICULAR DILATION AND THE PREVIOUSLY DEFINED HEMORRHAGE, WHEN COMPARED TO THE STUDY OF 1/8/91. Daniel was discharged from Jackson on January 31, 1991. At present, in terms of meeting expected language milestones, Daniel is mildly delayed, primarily in the area of expressive language. The delay is developmental in nature and Daniel will likely improve in this area over time. Otherwise, his mental functioning is relatively well preserved. Physically, Daniel is only very mildly impaired. He has a slight decrease in muscle tone and some incoordination, but he does not suffer from spasticity or contracture and he is able to move both of his arms well and to walk without losing his balance. He is even able to run, although he has a tendency to lean to the right and appear as if he is about to fall when he does so. In short, Daniel suffers from no permanent and substantial mental or physical impairment. 2/
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.
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 At issue in this proceeding is whether Charles Caleb Padgett, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Initial observations As observed in the preliminary statement, neither petitioner nor anyone on her behalf appeared at hearing, and no proof was offered to support her claim. Ordinarily, such failing would be dispositive of the case; however, notwithstanding petitioner's failure of proof, respondent elected to offer into evidence the medical records filed with DOAH on February 8, 1995, which relate to Sandra Padgett's prenatal care, the birth of Charles Caleb Padgett (Caleb) and Caleb's subsequent development, as well as the opinions of Charles Kalstone, M.D., a board certified obstetrician, and Michael Duchowny, M.D., a board certified pediatric neurologist, to affirmatively resolve the issue as to whether Caleb had suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. Ms. Padgett's antepartum course and Caleb's birth The records relating to Ms. Padgett's antepartum course fail to demonstrate any complication other than polyhydramnios (an abnormal collection of amniotic fluid). Such complication did, however, place her pregnancy at risk, and she was routinely the subject of non-stress testing to assess the well being of the fetus, and periodic ultrasounds. On November 10, 1992, with an estimated date of confinement of November 19, 1992, Ms. Padgett underwent a routine non-stress test and ultrasound. The non-stress test was reactive, a positive sign of fetal well-being; however, the ultrasound suggested that the infant was macrosomic, with an estimated fetal weight of over nine pounds. 1/ Based on the ultrasound results, and considering that Ms. Padgett had previously undergone a cesarean section at term, her physician decided against a trial of labor and recommended that she be admitted for a repeat cesarean delivery. At or about 10:55 a.m., November 11, 1992, Ms. Padgett was admitted to Lawnwood Regional Medical Center, Fort Pierce, Florida, for the repeat cesarean section heretofore noted. At the time, Ms. Padgett was not in labor, and was not thereafter noted to have entered labor. At 3:50 p.m., November 11, 1992, Caleb was delivered by cesarean section. Upon delivery, copious clear fluid was aspirated from his oropharynx and stomach, and resuscitation was noted to consist of tactile stimulation, suctioning, and oxygen blow-by. Apgars were noted as 7 and 8, at 1 and 5 minutes respectively. Notwithstanding resuscitation, Caleb was noted to become dusky (pale) each time oxygen was withdrawn, and developed grunting and retractions. Consequently, Caleb was transferred to the nursery where he was initially placed on a 50 percent oxyhood. Subsequent assessment revealed transient tachypnea of the newborn (TTN), and chest x-ray revealed bilateral haziness of the lungs. Therefore, Caleb was intubated and, over the course of the next 10 hours, weaned well and was extubated to room air without further respiratory complications. Neurologically, Caleb was noted to have decreased tone since birth, with some arching, and small fontanelle. The arching resolved within the first 48 hours, but the hypotomia persisted. A CT study of the brain at 48 hours of age was noted to be within normal limits. In this regard, it is observed that there was no demonstrated evidence of intracranial hemorrhage, significant mass effect or shift to the midline structures. The ventricular system appeared patent and normal for age, and there was no evidence of extra axial fluid collections. There were, however, diffuse low attenuation changes throughout the white matter which was thought to represent immature white matter, normal for age, but other etiologies could not be entirely excluded. Caleb's hospital course was otherwise uneventful, and he was discharged to his mother's care on November 15, 1992. Caleb's development Subsequent to discharge, Caleb was followed medically, and ultimately diagnosed with a very mild right hemiparesis and developmental disorder, probably mild cerebral palsy. In an effort to identify the cause of Caleb's disorder, a number of radiological studies were performed. A CT of the brain taken on July 13, 1993, revealed: . . . encephalomalacia immediately lateral to the left caudate nucleus, manifested by linear low attenuation in the white matter and compensatory dilation of the frontal horn of the left lateral ventricle. This indicates an old unilateral vascular insult, which may well have occurred in utero. The remainder of the brain including the right hemisphere is within normal limits. There is no hydrocephalus, intracranial hemorrhage nor intracranial calcification. An MRI of the brain on November 29, 1993, revealed the following: The cerebellum and brain stem appeared normal in configuration. There is altered contour in the left basal ganglia and internal, external capsular region suggestive of an old infarct with signal changes in this region compensatory. There are areas of gliosis as well as porencephalic changes in the frontal horn and body of the lateral ventricle on the left compensatory to the infarct. There is some thickening of the ethmoid and maxillary sinus regions notable. IMPRESSION: Abnormal MRI of the brain as noted by the changes suggestive of old left basal ganglia, internal capsule and external capsular region infarct with compensatory ventricular changes of the frontal horn and body of the lateral ventricle of porencephalic nature with gliottic changes throughout this region. . . . Electroencephalograms of January 5, 1994, and May 3, 1994, were essentially normal, with no evidence of seizure activity. Although the medical records indicate that Caleb suffered some oxygen deprivation at birth, the proof fails to support the conclusion that such event caused the injury to his brain which resulted in his neurological impairment. Rather, the proof, as demonstrated by Caleb's presentation at birth, hospital course, and radiological studies, indicates that Caleb's neurological impairments, more likely than not, derive from an intra-uterine stroke which significantly predated his mother's admission to the hospital or his birth. In so concluding, it is first observed that the radiological studies do not demonstrate evidence of a brain injury at or about the time of birth but, rather, prenatally. Second, the focal nature of Caleb's brain injury, with resultant right-sided hemiparesis, is not generally associated with hypoxic insult. Rather, hypoxic insult generally evidences as a global injury to the brain, as opposed to the focal injury Caleb suffered. Finally, Caleb presented with dysmorphic features, an abnormality suggesting Caleb did not develop appropriately in utero. Such developmental abnormality is a risk factor, and can lead to developmental problems with motor function, language function and cerebral palsy. Turning now to the significance of Caleb's neurologic impairments, it must be concluded that the proof fails to demonstrate that Caleb is permanently and substantially, mentally and physically impaired. Rather, the proof demonstrates that Caleb's physical impairment can best be described as mild, as opposed to substantial, and there is no evidence that he suffered any loss of cognitive function.
Findings Of Fact Calise L. Muniz was born on May 2, 2015, at Holmes Regional Medical Center, located in Melbourne, Florida. Calise 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 Calise. In a medical report dated January 24, 2017, Dr. Willis opined in pertinent part as follows: In summary, the mother apparently became hypotensive after placement of epidural anesthesia with resulting fetal distress. The baby was depressed at birth. The initial ABG was consistent with metabolic acidosis. Cooling protocol was initiated for HIE. EEG was normal for age. No MRI or CT scan was done during the newborn hospital course. There was an apparent obstetrical event that resulted in loss of oxygen during labor and delivery. However, there was no documentation of actual brain injury. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Calise and to review her medical records. Dr. Sigurdardottir examined Calise on February 1, 2017. In a medical report dated February 1, 2017, Dr. Sigurdardottir summarized her examination of Calise and opined in pertinent part as follows: Summary: Calise is a 21-month-old female who was born via emergency cesarean section after nonreassuring fetal heart rate tracings were noted after a high spinal anesthesia. She had poor Apgars of 2, 4 and 5 after 1, 5 and 10 minutes, and was treated with cooling protocol. She did not have any neonatal seizures and the only neuroimaging available is a head ultrasound on day of life 1 that was normal. On neurologic exam today she is normal, both with her motor skills and cognition and language development. There are no signs of autistic features. Results as to question 1: Calise is not found to have substantial physical or mental impairment at this time. Results as to question 2: In review of available documents, she does have the clinical picture of an acute birth-related hypoxic injury. Results as to question 3: The prognosis for full motor and mental recovery is excellent and her life expectancy is full. In light of the normal cognitive abilities and normal neurologic exam, I do not feel that Calise should be included in the NICA program. If needed, I will be happy to answer additional questions. 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 while there was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor and delivery, there was no documentation of actual brain injury. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Calise does not have a substantial physical or mental impairment. Dr. Sigurdardottir’s opinion is credited.
