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 Brenay Janelle Jackson, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Petitioners, Bridget Jackson and Horace Jackson, are the parents and natural guardians of Brenay Janelle Jackson (Brenay), a minor. Brenay was born a live infant on January 11, 2002, at Palmetto General Hospital, a hospital located in Hialeah, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Brenay was Ignacio Alfredo Ramirez, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimants demonstrate, more likely than not, that the infant suffered an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Brenay's presentation On August 15, 2002, following the filing of the claim for compensation, Brenay was examined by Michael S. Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. Dr. Duchowny reported the results of that neurology evaluation, as follows: HISTORY ACCORDING TO MR. & MRS. JACKSON: The parents began by explaining that Brenay is seven months old and has a "weak left arm." They indicated that Brenay's arm has been in this condition since birth and has "not improved very much." They believe that Brenay's left arm has limited mobility despite physical therapy provided on a routine basis. She additionally receives direct electrical stimulation to the muscles of the upper extremity. They noted that Brenay's "thumb turns in" and that she "cannot get her palm up." However, there is certainly a dexterity in the hand and she is able to use both hands in a cooperative fashion. There are more problems at the shoulder in that she is unable to raise her left arm as high as the right. Brenay underwent surgical reconstruction of the left brachial plexus three weeks ago. Surgery was performed by Dr. John Grossman and included a transplant of the left sural nerve. The procedure was uncomplicated. Brenay is also followed by Dr. Michael Tidwell in the Orthopedics department at Miami Children's Hospital. Brenay's right arm has full function and there are no problems with regard to her lower extremities. She rolled over at six months and is now sitting on her own. Her head and neck have a slight tilt to the right, but this does not compromise Brenay functionally. Brenay's hearing and vision are said to be adequate and there have been no changes in her appetite. She sleeps through the night. Brenay is on no intercurrent medications. There has been no recent exposure to toxic or infectious agents and no significant postnatal injuries. FAMILY HISTORY: Brenay's mother and father are both 36 years old. Two brothers, ages eight and seven are healthy. No family members have paralysis, mental retardation, epilepsy or developmental delay. PRE and PERINATAL HISTORY: Brenay was born at term at Palmetto General Hospital. She weighed 8-pounds, 15-ounces and was delivered vaginally. She remained in the hospital for two days. The parents stated that she breathed well at birth and did not have postnatal jaundice. Brenay's immunizations have been proceeding on schedule and she has no known drug allergies. Brenay's PHYSICAL EXAMINATION reveals an alert and playful seven month-old, well- developed, well-nourished black female. Brenay weighs 18-pounds. Her skin is warm and moist and there are no neurocataneous stigmata. There are no digital, skeletal, or palmar abnormalities and no dysmorphic features. The cranial contour appears normal and the head circumference measures 43.4 cm, placing Brenay in the 60th percentile for age-matched controls. The anterior and posterior fontanelles are both patent and flat. There are no significant facial asymmetries. Tongue thrusting is noted intermittently and there is some drooling. The head has a very slight tilt to the right side. The neck is supple without masses, thyromegaly or adenopathy, and the cardiovascular, respiratory and abdominal examinations are normal. There are healed linear scars over the left calf and left lower lateral cervical region. Brenay's NEUROLOGIC EXAMINATION reveals an alert infant sitting in her mother's lap. She is extremely engaging and smiles frequently. Brenay makes frequent cooing noises and appears extremely interested in objects and people in her immediate surround. Her cranial nerve examination reveals full visual fields to confrontation testing. The extraocular eye movements are full and conjugate and the pupils are 3 mm and briskly reactive to direct and consensually presented light. There is no ptosis. Fundoscopic examination reveals appropriately demarcated disc margins without pallor and no evidence of retinopathy. The facial movements are symmetric and the tongue moves well. The uvula is midline. Motor examination reveals a functional asymmetry of the upper extremities. Brenay tends to move her right arm much more actively, and in contrast, the left shoulder mobility is diminished. There are no fixed contractures. The shoulder is held in a position of mild internal rotation and adduction. The elbow is flexed and the wrist is pronated. There is full range of motion at the wrist and finger joints and Brenay demonstrates good individual finger dexterity. There were no asymmetries of motor bulk in the forearm compartments, but the arm showed a slightly greater ridging over the lateral surface on the left. There is no asymmetry of the dorsal musculature and the shape and slope of the shoulders appeared symmetric and normal. I was unable to accurately assess sensory function in the upper extremities. The deep tendon reflexes are 2+ at the knees and ankles and 1+ to 2+ in the right biceps and brachial radialis. The right triceps is trace. In contrast, the left biceps and brachial radialis are trace and there is no evidence of a left triceps jerk. Brenay is able to sit with good head control and has a good grasping bilaterally. There are no pathologic reflexes. She stands with support. The NEUROVASCULAR EXAMINATION reveals no cervical, cranial or ocular bruits, and no temperature or pulse asymmetries. Brenay is able to grasp objects with either hand, and she demonstrates reasonably well-developed pincer grasp with both the right and left fingers. She does not yet transfer. IN SUMMARY, Brenay's neurologic examination reveals evidence of a mild left Erb's palsy, affecting the fifth, sixth, and seventh cervical roots. The lower brachial plexus appears preserved, and there are no other neurologic abnormalities. Brenay's Erb's palsy appears to be improving slightly, but it is as yet too early to know how well she will do subsequent to her surgical repair. In contrast, the neurologic examination demonstrates no evidence of mental or motor impairment referable to the central nervous system. An Erb's palsy, such as that evidenced by Brenay, is a weakness of an upper extremity due to damage of the nerve roots of the upper brachial plexus,2 and does not involve the brain or spinal cord.3 Moreover, the impairment Brenay suffers is mild, as opposed to substantial, and there is no evidence of mental impairment. Consequently, while Brenay may have suffered a mechanical injury, permanent in nature (to her left brachial plexus) during the course of birth, she does not (for reasons appearing more fully in the Conclusions of Law) qualify for coverage under the Plan.
The Issue The issue in this case is whether Reshnaya E. Francois suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Plan.
Findings Of Fact Reshnaya E. Francois was born on January 31, 2016, at Broward Health, in Coral Springs, Florida. Reshnaya weighed in excess of 2,500 grams at birth. The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records of Broward Health submitted with the Petition. At all times material, both Broward Health and Dr. Wajid were active members under NICA pursuant to sections 766.302(6) and (7). Reshnaya was delivered by Dr. Wajid, who was a NICA- participating physician, on January 31, 2016. Petitioners contend that Reshnaya suffered a birth- related neurological injury and seek compensation under the Plan. Respondent contends that Reshnaya has not suffered a birth- related neurological injury as defined by section 766.302(2). In order for a claim to be compensable under the Plan, certain statutory requisites must be met. Section 766.309 provides: The Administrative Law Judge shall make the following determinations based upon all available evidence: Whether the injury claimed is a birth- related neurological injury. If the claimant has demonstrated, to the satisfaction of the Administrative Law Judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in § 766.302(2). Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital. How much compensation, if any, is awardable pursuant to § 766.31. If the Administrative Law Judge determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at birth, she or he shall enter an order . . . . The term “birth-related neurological injury” is defined in Section 766.302(2), Florida Statutes, as: . . . injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth 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. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality. (Emphasis added). In the instant case, NICA has retained Donald Willis, M.D. (Dr. Willis), as its medical expert specializing in maternal-fetal medicine and pediatric neurology. Upon examination of the pertinent medical records, Dr. Willis opined: The newborn was not depressed. Apgar scores were 8/8. Decreased movement of the right arm was noted. The baby was taken to the Mother Baby Unit and admission exam described the baby as alert and active. The baby had an Erb’s palsy or Brachial Plexus injury of the right arm. Clinical appearance of the baby suggested Down syndrome. Chromosome analysis was done for clinical features suggestive of Down syndrome and this genetic abnormality was confirmed. Chromosome analysis was consistent with 47, XX+21 (Down syndrome). Dr. Willis’s medical Report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: In summary: Delivery was complicated by a mild shoulder dystocia and resulting Erb’s palsy. There was no evidence of injury to the spinal cord. The newborn was not depressed. Apgar scores were 8/9. Chromosome analysis was consistent with Down syndrome. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period. The baby has a genetic or chromosome abnormality, Down syndrome. 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. The opinion of Dr. Willis that Reshnaya did not suffer an obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery, or the immediate post-delivery period is credited. In the instant case, NICA has retained Michael S. Duchowny, M.D. (Dr. Duchowny), as its medical expert in pediatric neurology. Upon examination of the child and the pertinent medical records, Dr. Duchowny opined: In summary, Reshnaya’s examination today reveals findings consistent with Down syndrome including multiple dysmorphic features, hypotonia, and hyporeflexia. She has minimal weakness at the right shoulder girdle and her delayed motor milestones are likely related to her underlying genetic disorder. There are no focal or lateralizing features suggesting a structural brain injury. Dr. Duchowny’s medical report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: Neither the findings on today’s evaluation nor the medical record review indicate that Reshnaya has either a substantial mental or motor impairment acquired in the course of labor or delivery. I believe that her present neurological disability is more likely related to Downs syndrome. For this reason, I am not recommending that Reshnaya be considered for compensation within the NICA program. 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. The opinion of Dr. Duchowny that Reshnaya did not suffer a substantial mental or motor impairment acquired in the course of labor or delivery is credited.
Findings Of Fact Neha was born on May 15, 2012, at Broward General Medical Center, located in Fort Lauderdale, Florida. Neha weighed six pounds nine ounces at birth. NICA retained Michael S. Duchowny, M.D., as its medical expert in pediatric neurology. Dr. Duchowny examined Neha on March 20, 2013, and reviewed her medical records. In an affidavit dated April 24, 2013, Dr. Duchowny opined as follows: Neha’s neurological examination is significant only for a mild degree of hypontia coupled with very slight motor development delay. In other regards, she seems to be developing quite well and I suspect that her language development will progress on schedule. There are no focal or lateralizing findings to suggest structural brain damage. A review of medical records reveals that Neha was born by stat cesarean section at Broward General Hospital due to fetal bradycardia. She was delivered with a full body nuchal cord and a true knot that was removed at birth. There was evidence of severe metabolic acidosis-arterial blood gases drawn 11 minutes after birth revealed a pH of 6.66, PC02 of 162, P02 of 11, and base excess of -32. These values were improved on a repeat series drawn at 12:27 PM. Thick meconium was suctioned below the vocal cords and Neha was diagnosed with meconium aspiration syndrome. Seizures occurred several after birth and were treated with phenobarbital and phenytoin. As previously stated by the family, Neha was immediately enrolled in a general hypothermia protocol. Of significance, a brain ultrasound exam obtained on May 15 at 6:46 PM, was normal and an MRI scan of the brain obtained on May 23 (DOL #8) was also within normal limits. Neha’s examination today does not reveal either a substantial mental or motor impairment, findings are consistent with the lack of significant MRI findings. I believe that the hypothermia protocol in all likelihood was neuro-protective and more likely than not, contributed to Neha’s positive outcome. Given Neha’s favorable outcome, I believe that she should not be considered for inclusion within the NICA program. As such, it is my opinion that Neha Kannikal is not permanently and substantially mentally impaired nor is she permanently and substantially physically impaired due to oxygen deprivation or mechanical injury occurring during the course of labor, delivery or the immediate post-delivery period in the hospital during the birth of Neha Kannikal. A review of the file does not show any opinion contrary to Dr. Duchowny's opinion that Neha does not have a substantial and permanent mental and physical impairment due to lack of oxygen or mechanical trauma is credited.
