The Issue The issue in this case is whether Jacob McGowan (Jacob) suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Jacob was born on July 2, 2015, at Shands at the University of Florida (Shands), Gainesville, Alachua County, Florida. The pregnancy, labor, and delivery of his mother, Christy Gonzalez, were managed by employees of UF Health Physicians and employees of Shands. At all times material, both the hospital and the physicians group were active members under NICA pursuant to sections 766.302(6) and (7). Christy Gonzalez, age 32, presented to Shands on July 1, 2015. This was her second pregnancy. Ms. Gonzalez's prior pregnancy resulted in an emergency cesarean section at 37 weeks after a failed induction/arrest of labor due to gestational hypertension. Based on orders given by OBGYN Georgia Graham, M.D., Christy Gonzalez was admitted to the Labor and Delivery Suite at approximately 12:05 p.m. Ms. Gonzalez was started on Pitocin at 2:47 p.m. for induction/augmentation. Labor progressed slowly over the next approximate 30 hours during which time Ms. Gonzalez continued on Pitocin and exhibited several periods of ongoing and apparent uncontrolled maternal hypertension. Fetal heart monitoring started at 8:13 a.m. on July 1, 2015, and, as labor progressed, the fetal heart rate pattern demonstrated accelerations, and late and early/variable decelerations. The fetal heart rate reached 90 and below at numerous points throughout the day on July 1, 2015, including at 9:34 a.m., 9:54 a.m., 11:04 a.m., 11:10 a.m., 1:05-1:48 p.m. (multiple decelerations), 2:11-2:15 p.m., 2:16-2:18 p.m., 2:31 p.m., and 9:36-9:38 p.m. On July 2, 2015, the fetal heart rate continued to demonstrate accelerations and decelerations with "High FHR" noted at 8:56 p.m. (156/67), as well as 9:15 p.m. and 9:21 p.m. The fetal monitor strips indicate prolonged periods of fetal distress throughout this long period of labor. At approximately 11:00 p.m. on July 2, 2015, Ms. Gonzalez was taken into the operating room for emergency cesarean section due to decreased variability and repetitive decelerations in the fetal heart rate. Jacob was born a live infant at 11:42 p.m. on July 2, 2015. Jacob was a single gestation, weighing 4,366 grams at birth. Jacob was delivered by Dr. Anushka Chelliah, who was a NICA participating physician on July 2, 2015. Petitioner contends that Jacob suffered a birth-related neurological injury and seeks compensation under the NICA Plan. Respondent contends that Jacob has not suffered a birth-related neurological injury as defined by section 766.302(2). Jacob was born via cesarean section secondary to failed induction and vaginal birth after cesarean section, and non- reassuring fetal heart rate tracing and nuchal cord. Jacob was delivered with no respiratory effort and a heart rate less than 60. Post-birth resuscitation included tactile stimulation, intubation, suctioning, and positive pressure ventilation. His Apgar scores were 1 at one minute, 3 at five minutes and 4 at 10 minutes. Physical examination at birth revealed he was pale, had poor tone and negative grasp, and poor moro and suck reflexes. Following color change and rise in his heart rate and increasing oxygen saturations, Jacob was transferred to the neonatal intensive care unit (NICU) for further management. Initial assessment of Jacob included intrapartum fetal asphyxia, chorioamnionitis affecting fetus or newborn, meconium aspiration, injury to scalp secondary to birth trauma, respiratory failure of newborn, and HIE (hypoxic-ischemic encephalopathy) for which HIE protocol for cooling was initiated. Upon arrival to the NICU, Jacob was initially placed on a conventional ventilator with oxygen saturations in the upper 80s. He was quickly transitioned to a high frequency ventilator/oscillator with excellent response. Jacob’s initial blood gas showed good ventilation and medical personnel were able to sequentially wean his amplitude, and he was started on 100-percent oxygen. He was passively cooled until three hours of life when active cooling was started. By 12:46 a.m., physical examination showed a more reassuring neurological examination, although high risk for seizures and neurologic sequelae was noted. Physical examination at four hours of life revealed Jacob was pink, alert, reacting appropriately to stimulation, reactive to light, had a positive suck reflex, gag reflex, mildly increased tone in all extremities, reflexes of 3+ in his lower extremities, 2+ in his upper extremities, slow grasp in feet and brisk grasp in hands. Jacob was discharged from the hospital on August 10, 2015 (day of life 39). His hospital course was complicated by glucose and electrolyte derangements, adrenal hemorrhage, seizures, hypotension, coagulopathy, E coli sepsis with presumed meningitis and poor feeding. The hospital discharge summary reflects that he was actively moving all extremities, had received antibiotics secondary to E coli sepsis and suspect meningitis, was weaned from the ventilator to a continuous positive airway pressure machine (CPAP) at five days of life and had been stable on room air since July 11, 2015, was discharged with 10 mg of phenobarbital every 12 hours, that a physical exam revealed a mildly hypotonic normal male and that he had been on full oral feeding since August 3, 2015, with an appropriate weight gain pattern at discharge. The neurological status section of the hospital discharge summary reflects that Jacob's initial MRI on July 6, 2015, showed evidence of frontal and occipital cortical and subcortical injury globally. A repeat MRI on July 12, 2015, showed improvement in cortical injury with some evidence of injury over the head of the left caudate. He initially had seizure activity on EEG and was loaded with phenobarbital. The last two continuous EEGs on July 11, 2015, and July 16, 2015, however, showed no seizure activity, and the plan was to allow him to outgrow his phenobarbital dose. On August 12, 2015, Jacob presented to his pediatrician for a well child visit. At this time difficulty breast feeding was reported by the mother. The pediatrician noted "no obvious developmental delays or difficulties" and "great tone." Counseling was given on breast feeding and feeding, and orders were given for evaluation and treatment by ophthalmology and occupational therapy. On August 24, 2015, Jacob presented to his pediatrician for sores in his mouth and feeding problems, and fussiness with spit up and vomiting in preceding days. He was on no medications at this time. His physical exam was normal. Neurological exam was also normal with present and normal newborn reflexes noted. "Great weight gain" was noted. Counseling was given concerning gastroesophageal reflux disease (GERD) and feeding. On September 3, 2015, Jacob presented to his pediatrician for a well child visit. At this time, his mother was curious as to whether he needed therapy for motor development. He was noted to be feeding well and complete resolution of his GERD symptoms was noted. Medications at that time included only ranitidine syrup (a stomach acid reducer). All areas of development were noted to be normal for his age and a physical examination, including neurological examination, were also normal. The pediatrician noted in assessment that although the mother reported a diagnosis of brain damage, her concerns regarding motor skills were not apparent, as Jacob was noted to be moving well, trying to roll, could lift his head, and was grasping a rattle in his stroller--all of which were noted to be "very impressive for 2 months." On October 29, 2015, Jacob presented to his pediatrician with complaints of right ear pain and discharge, low-grade fever, tugging at his ear, and fussiness. Medications at this time included only ranitidine syrup. A physical exam was normal with the exception of crusty discharge noted in his ears. He was prescribed antibiotics and ranitidine was refilled. On November 10, 2015, Jacob presented to his pediatrician with complaints of congestion and ear drainage. There were no concerns with Jacob's feeding at this time, and he was noted to eat baby food and use a bottle. Medications at this time included only ranitidine syrup. His physical exam was normal with the exception of erythematous noted in both ears. Antibiotics were prescribed. On November 23, 2015, Jacob presented to his pediatrician for a well child visit. At this time Jacob was taking ranitidine daily for GERD and was in physical therapy/occupational therapy for delayed milestones and trouble sucking. He was noted to be eating solid foods since three months of age, eating baby food, and using a bottle. Ranitidine was refilled. "All areas of development are appropriate for age" was noted. A physical exam was normal. Plans for future care included continued use of ranitidine for GERD, continued therapies for delayed milestones, and a referral to otolaryngology for audiometry. On January 6, 2016, Jacob presented to his pediatrician for a six-month follow-up visit. At this time it was noted that he was getting occupational and physical therapy weekly. It was also noted that he had been diagnosed with hand, foot, and mouth disease and had spots in his throat and discharge from his right ear. The only medication at this time was ranitidine, which was refilled. No concerns with his nutrition were noted. Developmental history testing revealed a “pass” in all areas, except difficulty rolling left to right and sitting alone. Allergic rhinitis symptoms were noted, however, a physical exam was normal. Plans for future care on this visit included referral for a failed hearing screening, continued ranitidine, and continued occupational therapy. At the request of NICA, Donald C. Willis, M.D., who is board-certified in obstetrics and gynecology and maternal-fetal medicine, reviewed the medical records included in the Stipulated Record as Joint Exhibits A through E. In his report dated August 10, 2016, Dr. Willis opined that, [t]here 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. The oxygen deprivation resulted in brain injury. I am unable to comment about the severity of the brain injury. At the request of NICA, Laufey Y. Sigurdardottir, M.D., who is board-certified in neurology, reviewed the medical records included in the Stipulated Record as Joint Exhibits A through E, and performed a thorough examination of Jacob on August 31, 2016. Dr. Sigurdardottir's report, dated August 31, 2016, reveals that Jacob's mother gave an "excellent history and timeline of the pregnancy with Jacob, his birth, and aftermath." Jacob's developmental history is reported by Dr. Sigurdardottir to include walking independently between 11 and 12 months of age; speaking five words; and report by mother of some hand tremors when reaching for objects. Jacob is noted to have been weaned from phenobarbital at six months of age and he has had no further seizure activity. Dr. Sigurdardottir's neurological exam revealed a pleasant and interactive boy interested in his surroundings. His motor exam revealed symmetric, normal muscle tone and equal use of both extremities. His gait was symmetric and seemed age appropriate. His reflexes were present and at times slightly increased, but never spread from right to left. Balance and coordination were noted to be difficult to fully assess, but seemed to be within normal limits for his age. He manipulated toys in a conventional manner with no autistic characteristics or repetitive behaviors seen. Dr. Sigurdardottir noted that Jacob had made a remarkable recovery and that there were no obvious abnormalities noted upon neurologic exam. Dr. Sigurdardottir concluded her report with her opinions that, The patient is found to have no substantial physical and/or mental impairment at this time. Jacob did have a neurological injury to the brain due to oxygen deprivation, and his hypoxic ischemic encephalopathy is felt to be birth related. At this time, Jacob's prognosis for life expectancy and full recovery is good. Petitioner did not submit or introduce into evidence any expert reports rebutting the opinions of Dr. Willis or Dr. Sigurdardottir.
Findings Of Fact Petitioners are the parents and natural guardians of Yahsir. On April 8, 2019, Ms. Mallory gave birth to Yahsir, a single gestation of 39 weeks, at the Hospital. Yahsir was delivered by cesarean section and weighed 3,786 grams at birth. Ted Robertson, M.D., and Megan Bagwell, M.D., provided obstetrical services and delivered Yahsir. The undisputed evidence in the record consists of signed reports of two physicians—Donald Willis, M.D., an obstetrician, and Michael Duchowny, M.D., a pediatric neurologist who conducted a remote evaluation of Yahsir. Dr. Willis reviewed the medical records and summarized his opinions about Yahsir’s delivery in a report, dated October 9, 2020. According to Dr. Willis, Ms. Mallory suffered from elevated blood pressure at 34 weeks gestational age and was diagnosed with preeclampsia after a brief hospital evaluation. As a result of the preeclampsia, she was admitted to the Hospital on April 7, 2020, for induction of labor at 39 weeks. Yahsir was delivered the next morning by cesarean section due to a non- reassuring fetal heart rate pattern and suspected placental abruption. Yahsir was depressed at birth with APGAR scores of two at one minute, five at five minutes, and eight at ten minutes. Yahsir’s heart rate was less than 60 bpm at birth. Positive pressure ventilation was initiated without the need for chest compression and bag and mask ventilation continued for three minutes. Oxygen was weaned and Yahsir was transferred to the NICU. Yahsir arrived in the NICU with an oxygen saturation of 95 percent on room air and no further respiratory distress occurred before his discharge. The medical records noted that Yahsir was “without clinical encephalopathy.” No seizure activity occurred during his stay in the Hospital. At Yahsir’s pediatric follow up appointment at four days old, he was noted as having a bilateral upper extremity tremor. Neurological evaluation was scheduled and, at five months old, Yahsir was diagnosed with spastic cerebral palsy. An MRI conducted at seven months was normal. Based on the medical records, Dr. Willis opined that Yahsir’s neurologic issues do not appear to be birth related. Although the labor was complicated by a non-reassuring fetal heart rate pattern, Yahsir was initially depressed at birth with low APGAR scores, and was later diagnosed with cerebral palsy, Dr. Willis noted that Yahsir suffered no multi-system organ failures or seizure activity at the Hospital and had a normal MRI finding at seven months old. Dr. Duchowny reviewed the medical records, conducted a virtual neurological evaluation by Zoom on October 30, 2020, and summarized his opinions in a report, dated November 6, 2020, as to whether Yahsir suffers from permanent and substantial mental and physical impairment caused by an oxygen deprivation event. Yahsir was 18 months old at the time of the evaluation. He was previously diagnosed with cerebral palsy and leg tightness has been his major issue. He began physical therapy at four months old and began walking independently at eight months old. He can run, climb stairs, and has no motor regression. He can use both hands cooperatively and has no required medical treatment for spasticity. His previous MRI findings were normal. Yahsir’s communication is delayed. He did not say any words until about 12 to 13 months old and only seems to repeat what he hears, but he understands spoken language without difficulty. Yahsir’s speech sounds are unclear, but his hearing and vision are good. He has no significant feeding issues and has gained weight steadily. Yahsir has significant sleep issues and he is prone to temper tantrums, but his overall health is otherwise stable. He attends daycare five days per week. Dr. Duchowny found Yahsir to be an alert, well-developed, and well- nourished infant. Although Yahsir showed mild speech delay, Dr. Duchowny believed that would improve with speech therapy. Based on the medical records and evaluation, Dr. Duchowny did not believe that Yahsir has a substantial mental or physical impairment.
Findings Of Fact By stipulation filed December 27, 1993, petitioners and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Fla. Stat., a claim was filed on behalf of the above-styled infant against NICA on behalf of GEANCARLO RODRIGUEZ, PATRICIA RODRIGUEZ and GUSTAVO RODRIGUEZ (the "Petitioners") for benefits under Chapter 766.301-766.316 Fla. Stat. That a timely filed Claim for benefits complying with the requirements of Section 766.305, Fla. Stat., was filed by the Petitioners and a timely Notice of Non- Compensability Setting forth that NICA denied the claim was filed on behalf of NICA. That the infant, GEANCARLO RODRIGUEZ, was born at Hialeah Hospital on August 22, 1991, and Hialeah Hospital was a licensed Florida Hospital and the attending physician, Dr. Laida N. Casanova was a participating physician within the meaning of Chapter 766, Fla. Stat. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. Section 766.302(2), Fla. Stat. states that "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. The parties agree that GEANCARLO RODRIGUEZ suffers from a right brachial plexus injury. A brachial plexus palsy injury is not an injury to the brain or spinal cord and further, does not result in any mental injury. The parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., including in particular his reports dated April 28, 1993, and November 15, 1993. Copies of these reports have been attached hereto and incorporated herein respectively as Exhibits 1 and 2. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply. Based upon this stipulation, the parties request the hearing officer to rule on Petitioners' claim based upon this Stipulation, and the attached medical records. The neurological examinations of Geancarlo reveal that he suffered a right Erb's palsy directly related to the right brachial plexus injury he received at birth. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury and, further, does not result in mental injury. Moreover, Geancarlo's mental functioning is normal and not impaired due to any birth related complications.
