Findings Of Fact Carla Barrientos-Gutierrez was born on April 12, 2013, at Manatee Memorial Hospital located in Braden River, Florida. Carla weighed 3,610 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Carla. In an affidavit dated December 17, 2014, Dr. Willis described his findings as follows: In summary, vacuum assisted delivery resulted in a scalp hemorrhage with significant blood loss and resulting anemia, hypovolemia, hypotension and coagulation defects. Hypovolemia resulted in poor perfusion and multisystem organ failure. E. coli sepsis compounded the complications related to the scalp hemorrhage. The baby suffered brain injury due to these complications. However, the brain injury did not occur during labor delivery or the immediate post-delivery period. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Carla and to review her medical records. Dr. Duchowny examined Carla on October 15, 2014. In an affidavit dated December 17, 2014, Dr. Duchowny opined as follows: In summary, Carla’s neurological examination reveals evidence of a mild to moderate motor disability and language development which is behind age level. There is no focal or lateralizing findings and I was unable to confirm the family’s impression of diminished left-sided motor activity. The medical record review indicates that Carla’s neurological impairments are the result of E-coli, sepsis and meningoencephalitis. She likely had diffuse CNS vasculitis as well. However, there is no indication that Carla’s brain damage resulted from either mechanical injury or oxygen deprivation in the course of labor and delivery. The timing of acquisition of her infection is open [sic] a question as she only became symptomatic at 24 hours of age. Should this issue need further examination, input from a pediatric infectious disease consult would be useful. It would be important to review her MRI scans of the brain. However, pending any need for further review, I am not recommending Carla for inclusion in the NICA program. A review of the file in this case reveals that there have been no opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor, delivery, or the immediate post-delivery period, and Petitioners have no objection to the issuance of a summary final order finding that the injury is not compensable under the plan. Dr. Willis’ opinion is credited. There are no contrary opinions filed that are contrary to Dr. Duchowny’s opinion that there is no indication that Carla's neurological injury resulted from either mechanical injury or oxygen deprivation in the course of labor and delivery. Dr. Duchowny’s opinion is credited.
Findings Of Fact Jacob Baselice was born on July 19, 2010, at Memorial Hospital Miramar located in Miramar, Florida. Jacob weighed 6 pounds 2 ounces at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Jacob. In an affidavit dated December 3, 2014, Dr. Willis described his findings in pertinent part and gave the following opinion: It is my opinion that SHONA BASELICE’s term pregnancy ended with a spontaneous vaginal delivery of a healthy newborn. The newborn was not depressed. Apgar scores were 9/9. No resuscitation was required. The newborn hospital course was uncomplicated. Several months after hospital discharge, the baby was diagnosed with developmental delay and brain injury, documented by MRI. This child has a brain injury, as documented by MRI. However, the injury does not appear to be birth related. Unlike this case, babies with a birth related hypoxic brain injury are generally depressed at birth and have a complicated newborn hospital course. As such, it is my opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Jacob and to review his medical records. Dr. Duchowny examined Jacob on October 8, 2014. In a report dated October 14, 2014, Dr. Duchowny opined as follows: In summary, Jacob’s neurological examination reveals findings consistent with global developmental delay and a substantial mental and motor impairment. He evidences spastic quadriparesis, absence of expressive and receptive communication skills, and four limb involvement with hypotonia, dystonic postures and athetoid movement. He has dysmorphic features and unexplained corneal clouding. Jacob’s motor findings are consistent with a diagnosis of ataxic hypotonic cerebral palsy. I had an opportunity to review medical records which were sent on August 21, 2014. They reveal that Jacob’s mother was a carrier for cystic fibrosis and that her alpha- fetoprotein was elevated during pregnancy. Jacob was born after spontaneous rupture of membranes and delivered vaginally. His Apgar scores were 9 & 9 at 1 and 5 minutes and he had a loose double nuchal cord that was easily removed. He was resuscitated easily. His birth weight was 6 pounds 2 ounces. The amniotic fluid was clear. I believe that Jacob’s findings are most consistent with a prenatally acquired syndrome, given his dysmorphic features and corneal clouding. The medical records do not provide evidence to suggest that Jacob’s neurological impairment resulted from either oxygen deprivation or mechanical injury acquired in the course of labor or delivery. It would be useful, however, to review his MRI scans and I would request an opportunity to review them. However, pending any unexpected findings from the MRI review, I believe that Jacob should not be considered for compensation within the NICA program. In an addendum to his report dated November 19, 2014, Dr. Duchowny opined: I reviewed an MRI scan of the brain for Jacob Baselice obtained on August 24, 2011. This study revealed abnormalities consistent with periventricular leukomalacia as well as immature delayed myelination. These findings are consistent with both prenatal and perinatally-acquired brain injury. However, based on the clinical findings, I continue to believe that Jacob’s neurological problems did not result from either mechanical injury or oxygen deprivation at birth. Dr. Duchowny reaffirmed his opinions and conclusions in an affidavit dated December 4, 2014. A review of the file in this case reveals that there have been no opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor, delivery, or the immediate post-delivery period. Dr. Willis’ opinion is credited. There have been no contrary opinions filed that are contrary to Dr. Duchowny’s opinion that although Jacob has a substantial mental and motor impairment, the medical records and clinical findings do not provide evidence that his neurological injury resulted from either oxygen deprivation or mechanical injury acquired in the course of labor or delivery. Dr. Duchowny’s opinion is credited.
Findings Of Fact Zacari was born on April 2, 2011, at Plantation General Hospital located in Plantation, Florida. Zacari weighed eight pounds two ounces at birth. NICA retained Donald Willis, M.D., as it medical expert specializing in maternal-fetal medicine. In an affidavit dated September 6, 2013, Dr. Willis opined as follows: It is my opinion that labor was indicated at 39 weeks with no fetal distress during labor. Spontaneous vaginal birth resulted in a healthy baby with Apgar scores of 9/9. The newborn hospital course was uneventful. As such, it is my opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. Further, in that there was no oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediately post- delivery period in the Hospital, then accordingly, there was no causal event which would have rendered Zacari Porter permanently and substantially mentally and physically impaired as a result of same. NICA retained Michael S. Duchowny, M.D., as its medical expert in pediatric neurology. Dr. Duchowny examined Zacari on July 17, 2013, and reviewed his medical records. In an affidavit dated September 4, 2013, Dr. Duchowny opined as follows: It is my opinion that, in summary, Zacari’s neurological examination is significant only for expressive language delay. In contrast, he has well-developed motor abilities, both gross and fine motor skills and has no focal or lateralizing findings. I had an opportunity to review medical records that were sent on June 27, 2013. The records document a relatively uncomplicated perinatal and postnatal course without evidence of either mechanical injury or oxygen deprivation to the brain or spinal cord. The record review together with today’s neurological exam reveals developmentally appropriate motor function and only a mild expressive language delay which suggest that Zacari does not have either a substantial mental or physical impairment. I therefore believe that Zacari should not be considered for inclusion within the NICA program. As such, it is my opinion that Zacari is not permanently and substantially mentally impaired nor is he 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 Zacari Porter. A review of the file does not show any opinion contrary to the opinions of Dr. Willis and Dr. Duchowny that Zacari does not have a substantial and permanent mental and physical impairment due to lack of oxygen or mechanical trauma during labor, delivery, or the immediate post-delivery period are credited.
Findings Of Fact Melina Antunes was born on August 27, 2015, at Florida Hospital, located in Orlando, Florida. Melina 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 Melina. In a medical report dated December 12, 2016, Dr. Willis summarized his findings and opined in pertinent part as follows: In summary, induction of labor was complicated by a spontaneous uterine rupture. The baby and placenta were expelled into the maternal abdomen. The baby was depressed at birth with low Apgar scores and a cord blood gas consistent with acidosis (pH 6.65). MRI was consistent with HIE. There was an apparent obstetrical event (uterine rupture) that resulted in loss of oxygen to the baby’s brain during labor, delivery, and continuing into the immediate post delivery period. The oxygen deprivation resulted in brain injury. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Melina and to review her medical records. Dr. Sigurdardottir examined Melina on February 15, 2017. In a medical report dated February 15, 2017, Dr. Sigurdardottir summarized her examination of Melina and opined in pertinent part as follows: Summary: Here we have a 17-month-old born after a sudden uterine rupture during active labor. The patient had neurologic depression at birth, significant acidosis with a pH of 6.6 and required active cooling as well as supportive medication for seizures in the neonatal period. She did have well documented injury on MRI but has made a remarkable recovery. Neurologic exam today, has mild abnormalities, but no standardized developmental testing is available for our review. Result as to question 1: Melina is not found to have substantial physical or mental impairment at this time. Results as to question 2: In review of available documents, Melina does have the clinical picture of an acute birth related hypoxic injury with both the clinical features of hypoxic encephalopathy and electrographic and MRI evidence to suggest hypoxic injury. Result as to question 3: The prognosis for full motor and mental recovery currently is excellent and her life expectancy is full. In light of her normal cognitive abilities and near normal neurologic exam, I do not feel that Melina should be included in the NICA program. If needed, I will be happy to answer additional questions or review further documentation of her developmental status. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery and the post-delivery period which resulted in brain injury. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Melina does not have a substantial physical or mental impairment. Dr. Sigurdardottir’s opinion is credited.
The Issue At issue in this proceeding is whether Emmanuel Hooks, 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 Petitioner, Brianna Denise Davidson, is the mother and natural guardian of Emmanuel Hooks, a minor. Emmanuel was born a live infant on July 26, 1999, at Gulf Coast Medical Center, a hospital located in Panama City, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Emmanuel's birth was Steven G. Smith, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Emmanuel's birth At or about 9:10 p.m., July 25, 1999, Ms. Davidson (with an estimated date of delivery of July 26, 1999, and the fetus at 40 weeks gestation) presented to Gulf Coast Medical Center in labor. Initial vaginal examination revealed the cervix at 2-3 centimeters dilation, effacement as "thin," and the fetus at station -3. External fetal monitoring revealed a reassuring fetal heart rate (of 140-150 beats per minute), with accelerations. Ms. Davidson was continually monitored, and at 11:00 p.m., she was admitted to labor and delivery. At the time, uterine contractions were noted at 3-5 minute intervals, and vaginal examination revealed the cervix at 3 centimeters, effacement at 90 percent, and the fetus at station -3. Ms. Davidson's labor apparently did not progress, and at 2:49 a.m., July 26, 1999, she was started on Pitocin. Thereafter, Ms. Davidson's labor progressed slowly, and at 6:45 a.m., vaginal examination revealed the cervix at 5 centimeters, effacement at 90 percent, and the fetus at station -1. In the interim, external fetal monitoring continued to reveal a reassuring fetal heart rate. Ms. Davidson's labor continued to slowly progress, and by 9:00 a.m., vaginal examination revealed the cervix at 8 centimeters, effacement at 100 percent, and the fetus at station -1. In the interim, at 8:48 a.m., Ms. Davidson's membranes spontaneously ruptured, with clear fluid noted. Thereafter, variable decelerations were noted with each contraction, consistent with umbilical cord compression, and fetal heart base line remained reassuring (in the 140-beat minute range). From 9:00 a.m. to 11:45 a.m., Ms. Davidson's labor failed to progress (with the cervix at 8 centimeters, effacement at 100 percent, and the fetus at station -1), and at 11:45 a.m., Ms. Davidson was transported to the operating room for delivery by caesarean section. Notably, between 9:00 a.m., and 11:45 a.m., while variable decelerations continued, the fetal heart rate base line remained in the 140-beat per minute range, and fetal electrode revealed the presence of short term variability. According to the records, Ms. Davidson was in the operating room at 11:45 a.m., anesthesia started at 11:45 a.m., surgery started at 12:32 p.m., and Emmanuel was delivered at 12:35 p.m. Of note, the "nucal cord x 1" observed during delivery was described as "loose," and fetal heart monitoring in the operating room and immediately prior to the caesarean section revealed a reassuring fetal heart rate. On delivery, Emmanuel was bulb-suctioned, but did not require resuscitation. Initial newborn assessment noted no apparent abnormalities, and Apgar scores were recorded as 8 at one minute and 9 at 5 minutes. The Apgar scores assigned to Emmanuel are a numeric expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex response, and color, with each category being assigned a score ranging from the lowest score of 0 through maximum score of 2. As noted, at one minute, Emmanuel's Apgar score totaled 8, with heart rate, respiratory effort, muscle tone, and reflect response being graded at 2 each, and color being graded a 0. At five minutes, Emmanuel's Apgar score totaled 9, with heart rate, respiratory effort, muscle tone, and reflex response again graded at 2 each, and color now graded at 1. Such scores are considered normal, and inconsistent with recent hypoxic insult or trauma. Following the initial newborn assessment, Emmanuel was transported to the regular nursery, where he remained until he was discharged with his mother on July 29, 1999. Notably, the newborn nursery admission assessment was grossly normal, and there is no evidence of any complication during Emmanuel's stay. Emmanuel's subsequent development On December 10, 2001, following the filing of the subject claim, Emmanuel was examined by Dr. Michael Duchowny, a physician board-certified in pediatrics, neurology with special competence in child neurology, electroencephalography, and clinical neurophysiology. Dr. Duchowny reported the results of his neurology evaluation, as well as the history he obtained from the parents, as follows: HISTORY ACCORDING TO MR. AND MRS. HOOKS: Emmanuel is a 2 1/2 year old boy who the parents indicated suffers from cerebral palsy and brain injury. They began by explaining that Emmanuel suffered brain injury at birth due to a cord being wrapped around his neck. He was delivered by emergency caesarean section. They noted that Emmanuel's MRI has shown periventricular leukomalacia and furnished a copy of the MRI report. Emmanuel's growth and developmental milestones have been slow. He did not rollover until 9 months, nor did he sit until a year of age. He stood at 14 months, walked at 18 months and said his first word at age 2. He now has a lexicon of only one word ("ma-ma"). Emmanuel is not toilet trained. He is described as being extremely active. He does not sit still at anytime during the day and it is difficult to examine him or provide therapy. He attends a wellness center where he receives physical, speech and occupational therapy on a twice weekly basis. Communication is a particular problem area for him. Emmanuel's appetite has also been diminished and he is now "only starting to eat". His mother indicated that Emmanuel suffers from "low muscle tone" and that he drools frequently. She also mentioned that he wakes up frequently at night and is just beginning to sleep more consistently. Emmanuel does not play with other children at school. His activity level and intrusiveness have precluded meaningful peer interactions. The parents are aware that his eye contact is poor. The parents stated that Emmanuel "had seizures", but then went on to explain that 2 EEG's were normal and he was never placed on medication. The events were described as "getting into a trance". He has not had motor convulsions. FAMILY HISTORY: Both parents are healthy. A 4 year brother had no medical problems and there are no family members with degenerative illnesses, mental retardation or cerebral palsy. Emmanuel was born at Gulf Coast Medical after a 39 week gestation. He weighed 8-pounds, 9- ounces at birth and breathed well. He was discharged from the nursery at 3 days of age. Emmanuel is fully immunized, has no significant drug allergies and never been hospitalized or undergone surgery. His vision and hearing are said to be excellent. PHYSICAL EXAMINATION reveals an alert, but extremely active and well developed 2 1/2 year old toddler. Emmanuel weighs 39-pounds. His head circumference measures 50.2 cm and there are no cranial or facial anomalies or asymmetries. Emmanuel's neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. Emmanuel's NEUROLOGIC EXAMINATION is difficult to complete, as he is constantly in motion. The physical examination requires restraint from his father, as he continually tries to touch things and pull items off the desktop and shelves. Emanuel has very poor eye contact and did not communicate in words at anytime during the session. It was difficult for him to follow commands as well, as his attention span constantly shifted. He drooled intermittently. The tongue movements are poorly coordinated. Cranial nerve examination reveals full visual fields to direct confrontation testing. There is blink to threat from either direction. I could not perform a fundoscopic examination. There are no facial asymmetries. Motor examination reveals mild generalized hypotonia with full range of motion. There are no adventitious movements, aside from the high activity level and no evidence of focal weakness or atrophy. Emmanuel's gait is stable, but slightly wide- based and he has generalized hypotonia. The deep tendon reflexes are 2+ bilaterally and plantar responses are in flexion. There is withdrawal of all extremities to touch. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. Cerebellar testing could not be completed due to poor cooperation. In SUMMARY, Emmanuel's neurologic examination is significant for multiple areas of developmental delay. He is extremely overactive and inattentive, and has a significant behavior and communication problem. He additionally demonstrates poor eye contact and has a significant social disability. There are no specific focal or lateralizing findings to suggest a structural brain lesion. The findings on Emmanuel's neurologic examination suggests a diagnosis of a pervasive developmental disorder. Emmanuel fits within the autistic spectrum and this was communicated to the family . . . . The cause and timing of Emmanuel's neurological impairment To address the issue of whether Emmanuel's impairments were associated with 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," as required for coverage under the Plan, Petitioner offered selected medical records relating to Ms. Davidson's antepartum course, as well as those associated with Emmanuel's birth and subsequent development. Additionally, Emmanuel's parents testified on their own behalf, and Respondent offered the deposition testimony of Dr. Duchowny, whose qualifications were previously noted, and the deposition testimony of Dr. Donald Willis, a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine. As for the cause and timing of Emmanuel's impairments, it was Dr. Duchowny's opinion, based on the results of his neurology evaluation and review of the medical records, that Emmanuel's impairments are not related to perinatal asphyxia or trauma. More particularly, Dr. Duchowny expressed his views, as follows: Q. Based on your review of the records and your evaluation of Emmanuel Hooks, can you give us an overview of his condition? A. Yes. I thought that Emmanuel's neurologic examination revealed evidence of developmental neurologic impairment. He was hyperactive and had an attention deficit disorder and additionally had significant behavior, social and communication problems. All of this suggested he had developmental problems in multiple areas, consistent with a diagnosis of pervasive developmental disorder. Many of the children with pervasive developmental disorder go on to develop childhood autism as they get older. * * * Q. In this particular case, do you believe that Emmanuel's condition was acquired during the course of labor-delivery in the immediate post-delivery period? A. No, I do not. Q. What is the basis for that opinion? A. The basis for my opinion is that autism is a developmental disorder which results from unknown factors operating in utero prior to the onset of labor and delivery and is not a recognized complication of birth asphysia or birth trauma. Q. I take it your opinion is that Emmanuel Hooks did not acquire whatever neurological deficits he had as a result of any oxygen deprivation or mechanical injury occurring during labor-delivery or the immediate post- delivery period? A. That's correct. Q. In fact, was there any evidence in the medical records of any oxygen deprivation that occurred during the course of labor- delivery or resuscitation during the immediate post-delivery period? A. No. Q. Was there any evidence of mechanical injury occurring during the course of labor- delivery or the immediate post-delivery resuscitative period? A. No, there was not? Q. In your opinion, were Emmanuel's problems acquired prior to the course of labor- delivery? A. Yes. As for Dr. Willis, he was also of the opinion that the medical records revealed no evidence of oxygen deprivation or other trauma associated with Emmanuel's birth. The medical records, as well as the testimony of the physicians and the parents, have been carefully considered. So considered, it must be concluded that the proof failed to demonstrate that any impairment Emmanuel suffers was occasioned by an injury to the brain or spinal cord injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period.
The Issue At issue is weather Tyler Anthony Carter, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Victoria Knight Carter and Roy Carter are the natural parents of Tyler Anthony Carter, a minor. Tyler was born a live infant on February 7, 2005, at North Shore Medical Center, a licensed hospital located in Miami, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were delivered at Tyler's birth by Ramon Hechavarria, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded 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. Here, the proof demonstrated that Tyler's delivery was complicated by a shoulder dystocia, which caused a brachial plexus injury, that resulted in a weakness (an Erb's palsy) in the left upper extremity. Otherwise, Tyler was not shown to suffer any injury at birth. To address the nature and significance of Tyler's injury, NICA offered the testimony of Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology.1 (Respondent's Exhibit 1, deposition of Dr. Duchowny). Dr. Duchowny evaluated Tyler on October 17, 2007, and reported the results of his physical and neurological evaluation, as follows: PHYSICAL EXAMINATION reveals an alert, cooperative 2 1/2-year-old, well-developed and well-nourished toddler. Tyler[] weighs 29 pounds. His skin is warm and moist. There are no dysmorphic features or neurocutaneous stigmata. Head circumference measures 49.2 centimeters, which is within standard percentiles for age. The fontanels are closed. There are no cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory, and abdominal examinations are unremarkable. Tyler's NEUROLOGICAL EXAMINATION reveals an alert and sociable toddler. His speech is fluent and appropriately articulated. He maintains an age appropriate stream of attention. His social skills are appropriately developed for age. Cranial nerve examination is unremarkable. The extraocular movements are fully conjugate in all planes and the pupils are 3 mm and briskly reactive to direct and consensually presented light. A brief funduscopic examination is unremarkable. There are no significant facial asymmetries. The uvula is midline and the pharyngeal folds are symmetric. The tongue is moist and papillated. Motor examination reveals an asymmetry of the upper extremities. There is slightly diminished muscle bulk in the distal left upper extremity. Tyler is unable to raise the left arm past neutrality. He tends to posture the left arm with flexion at the elbow and wrist. Tyler cannot fully supinate the left hand. He can build a tower with using either hand and has bimanual dexterity. However, he demonstrates a consistent right hand preference. There are no fixed contractures. The deep tendon reflexes are 2+ in the lower extremities and the right upper extremity but 1+ at the [left] biceps. The sensory examination is intact to withdrawal of all extremities to stimulation. The neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Tyler's neurological examination reveals a mild left Erb's palsy, which was likely acquired during delivery due to traction on the brachial plexus. In contrast, there are no abnormalities referable to the right upper extremity or the lower extremities. Tyler's mental functioning is appropriate for age level. (Joint Exhibit 1, Report of Dr. Duchowny, dated October 17, 2007; Respondent's Exhibit 1, pp. 15 and 16). An Erb's palsy, as evidenced by Tyler, is a weakness of an upper extremity due to damage to the nerve roots of the left brachial plexus, a peripheral nerve injury, and does not represent an injury to the brain or spinal cord (the central nervous system). (Respondent's Exhibit 1, pp. 10 and 11).2 Moreover, the physical impairment Tyler suffers is mild, as opposed to substantial, and there is no compelling evidence of mental impairment, much less substantial mental impairment. (Respondent's Exhibit 1, pp. 8-10). Ackley v. General Parcel Service, 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The determination of the cause of a non-observable medical condition, such as a psychiatric illness, is essentially a medical question."); Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation."). Consequently, while Tyler may have suffered a mechanical injury, permanent in nature (to his left brachial plexus) during the course of birth, he does not qualify for coverage under the Plan.
Findings Of Fact Robert Charles Crump was born on August 15, 2009, at Baptist South Hospital located in Jacksonville, Florida. Charlie weighed 2,505 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Charlie, to determine whether an injury occurred 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 medical report dated September 17, 2014, Dr. Willis described his findings in part as follows: In summary, the mother presented at 34 weeks with premature rupture of the membranes in early labor. Variable HFR [sic] decelerations developed during the last two hours prior to delivery. Cesarean section was done for the non-reassuring FHR pattern. The newborn was depressed. The newborn hospital course was complicated by respiratory depression, hypotension and one episode of apnea. Although the baby was discharged home with a normal exam, MRI at 16 months of age was done for evaluation of a weak left hand and found a prior cerebral stroke. It is likely the baby suffered some degree of oxygen deprivation during labor, delivery and/or in the immediate post resuscitation period. However, it is less clear that any oxygen deprivation during this time period resulted in brain injury. No head imaging studies were done during the newborn hospital course. The child did suffer a stroke, which was documented at 16 months of age by MRI. There was an apparent obstetrical event that likely resulted in some degree of oxygen loss to the baby’s brain during labor, delivery and continued into the immediate post delivery period. Without imaging studies during the newborn hospital course, I am unable to determine if this oxygen deprivation resulted in the child’s brain injury (stroke). Pediatric Neurology evaluation would be helpful in this determination. Dr. Willis reaffirmed his opinion in an affidavit dated March 8, 2016. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Charlie and to review his medical records. Dr. Duchowny examined Charlie on November 5, 2014. In a medical report dated November 5, 2014, Dr. Duchowny opined as follows: In summary, Charlie’s general physical and neurological examinations reveal a mild left hemiparesis, notable mainly for asymmetry of movement. His muscle tone is well-preserved and he has full range of movement bilaterally with the exception of full left supination. Charlie is functioning cognitively at age level. He has done remarkably well in his therapies. I reviewed the medical records sent on October 14, 2014. They document Charlie’s birth at 34 weeks gestation at Baptist Medical Center South in Jacksonville following premature rupture of membranes productive of blood-tinged amniotic fluid. Charlie was born by emergent Caesarian section for arrest of descent and presented limp, apneic and cyanotic. Apgar scores were 2 and 7 at 1 and 5 minutes. He was resuscitated via bag and mask and breathed spontaneously at just over 2 minutes. His NICU stay was complicated by apnea and bradycardia which resolved fully and transient respiratory depression. Charlie was never intubated or mechanically ventilated and was maintained on room air from August 17th until discharge on August 24th. No neonatal brain imaging was performed. MRI scan of the brain on February 8, 2011 revealed an old ischemic infarct involving the anterior limb of the right internal capsule. The remainder of the brain was normal. A consideration of the findings from today’s evaluation and record review lead me to recommend that Charlie not be considered for compensation within the NICA program. He has normal mental functioning and a mild motor deficit. Furthermore, his stroke was likely acquired prenatally, and there is no evidence of either mechanical injury or oxygen deprivation in the course of labor, delivery or the immediate post-delivery period. Dr. Duchowny reaffirmed his opinions in an affidavit dated February 24, 2016. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was an apparent obstetrical event that likely resulted in some degree of oxygen loss to the baby's brain during labor, delivery or the immediate post- delivery period. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that Charlie has normal mental functioning and a mild motor deficit, and that his stroke was likely acquired prenatally. Dr. Duchowny’s opinion is credited.
Findings Of Fact La’Jordan V. Tripp was born on May 22, 2013, at Sacred Heart Hospital in Pensacola, Florida. La’Jordan weighed in excess of 2,500 grams at birth. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review La’Jordan’s medical records. In a medical report dated April 18, 2014, Dr. Willis made the following findings and expressed the following opinion: In summary, repeat Cesarean section delivery was complicated by dense adhesions and a very difficult extraction of the baby. It took nineteen minutes to deliver the baby. Normal incision to delivery time would be five minutes or less. There were failed attempts to delivery using forceps and vacuum extractor. After a difficult delivery, the baby was depressed with cord blood pH of only 6.8. The newborn hospital course was complicated by seizures and thrombocytopenia. EEG was abnormal and MRI showed evidence of a subdural hemorrhage. * * * The mother was not in labor. However, the difficult delivery resulted in loss of oxygen to the baby’s brain during the delivery process and continued into the immediate resuscitation period. The oxygen deprivation resulted in brain injury. I am not able to comment about the severity of the brain injury. Dr. Willis’ opinion that the difficult delivery resulted in loss of oxygen to the baby’s brain during the delivery process continuing into the immediate resuscitation period which resulted in brain injury is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate La’Jordan. Dr. Duchowny reviewed La’Jordan’s medical records and performed an independent medical examination on him on May 7, 2014. Dr. Duchowny made the following findings and summarized his evaluation as follows: IN SUMMARY La’Jordan’s neurologic examination is significant only for mild generalized hypotonia with borderline delay of motor milestones and some oromotor incoordination. In other respects, his neurologic examination is normal and he is progressing satisfactorily from a developmental standpoint. Certainly, there are no specific focal or lateralizing findings noted today. A review of the medical records confirms the mother’s report of La’Jordan being delivered by repeat cesarean section. The prenatal history was positive for chronic hypertension and morbid obesity and delivery was difficult due to uterine adhesions. Ultimately, 19 minutes were required to deliver La’Jordan and forceps and vacuum provided assistance. Placental pathology was within normal limits. La’Jordan’s birth weight was recorded as 8 pounds 10 ounces and his Apgar scores were 1, 4 and 6 at 1, 5 and 10 minutes. His cord blood gases were consistent with a metabolic acidosis as his arterial pH was 6.8 and venous pH 6.9. He was intubated only briefly in the delivery room for apnea and was extubated to room air at 30 minutes of life. A focal seizure led to a workup for possible sepsis and he was transiently treated with ampicillin, gentamycin and acyclovir until CFS cultures were negative at 48 hours. MRI scan of the brain performed on May 25, 2013 revealed a slight amount of hemorrhage over the tentorial region and interhemispheric fissure which were interpreted as subdural hematoma. I would question whether this was subarachnoid rather than subdural blood but I have not had an opportunity to review the films. An EEG performed one day later on May 26, 2013 demonstrated bilateral independent temporal abnormalities. In summary, the findings from today’s evaluation and medical review do not provide support for believing that La’Jordan has either a substantial mental or physical impairment. I therefore so not believe that he should be considered for compensation within the NICA Program. Dr. Duchowny re-evaluated La’Jordan on September 16, 2015, and wrote a second report regarding that evaluation. In SUMMARY, La’Jordan’s neurologic examination reveals a significant expressive language delay and a less significant delay in receptive language skills. He has poor socialization, a short attention span and an impulsive behavioral style. These findings are consistent with a diagnosis of autism spectrum disorder. He additionally has a comorbid seizure disorder and hypotonia with developmental motor delay. These findings are likely due to prenatal antecedents and are not due to oxygen deprivation or mechanical injury in the course of labor or delivery. I believe that La’Jordan will continue to progress and I discussed the diagnosis of autism spectrum with the family and encouraged them to seek additional therapeutic input. I again do not recommend that La’Jordan be accepted for compensation within the NICA Program, and am happy to answer additional questions. Dr. Duchowny’s opinion that La’Jordan’s injury is inconsistent with an injury to his brain or spinal cord due to oxygen deprivation or mechanical injury during labor, delivery or the immediate post-delivery period is somewhat at odds with Dr. Willis’ opinion regarding the same issue. However, 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 La’Jordan does not have a substantial mental or physical impairment 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 La’Jordan does not have a substantial mental and physical impairment. While La’Jordan has some deficits, these deficits do not render him permanently and substantially mentally and physically impaired.
Findings Of Fact Luke Z. Davis was born on March 27, 2014, at Shands at the University of Florida, Gainesville, Florida. Luke weighed 4,060 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Luke, to determine whether an injury occurred 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 medical report dated February 25, 2016, Dr. Willis described his findings in part as follows: There was an apparent obstetrical event, shoulder dystocia that resulted in loss of oxygen to the baby's brain during delivery and continuing into the immediate post delivery period. There was no trauma to the spinal cord. The oxygen deprivation to the brain resulted in some degree of brain injury, as identified by brain hemorrhage on MRI. The MRI reported no evidence of global brain injury. I am not able to comment about the severity of the brain injury. Dr. Willis reaffirmed his opinion in an affidavit dated May 25, 2016. NICA retained Laufey Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Luke and to review his medical records. Dr. Sigurdardottir examined Luke on March 30, 2016. In her report dated March 30, 2016, Dr. Sigurdardottir opined in pertinent part as follows: Summary: Here we have a 2-year-old with a difficult birth due to shoulder dystocia leading to an acute hypoxic event lasting 13 minutes. The patient did receive cooling protocol, had evidence of a brain injury on MRI, although not severe, and is left with a significant motor impairment from a flaccid right arm, as well as expressive language delay . . . . [T]he patient is found to have substantial physical impairment, as his right upper extremity has little to no functional use. There is a possible mild mental impairment due to language delay, but his delays do not seem substantial at this time. [T]here is evidence of a hypoxic ischemic event occurring at birth resulting in neurologic depression at birth, as well as mechanical injury resulting in a severe paresis of right upper extremity. Both his hypoxic events, as well as his mechanical brachial plexopathy is birth related. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was no evidence of global brain injury or injury to the spinal cord. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Luke does not suffer from a substantial mental impairment. Dr. Sigurdardottir’s opinion is credited.
