The Issue At issue is whether Maxwell Hubmann, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts related to compensability Petitioners, Roger and Sara Hubmann, are the parents of Maxwell Hubmann, a minor. Maxwell was born a live infant on March 25, 2008, at Sacred Heart Hospital, a hospital located in Pensacola, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were delivered at Maxwell's birth by Brian Sontag, 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 . . . caused by . . . 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. See also §§ 766.309 and 766.31, Fla. Stat. Here, the parties have stipulated, and the proof is otherwise compelling, that Maxwell suffered a traumatic brain injury during the delivery process. (Transcript, pp. 9 and 10; Respondent's Exhibits 1-4). What remains to resolve is whether such injury rendered Maxwell permanently and substantially mentally and physically impaired. To address the nature and significance of Maxwell's injury, NICA offered the affidavit and report of Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology, who evaluated Maxwell on January 28, 2009. Based on his evaluation, as well as his review of the medical records, Dr. Duchowny was of the opinion that while Maxwell suffered a traumatic brain injury during delivery, his mental function was normal and his motor deficit was quite mild. In so concluding, Dr. Duchowny documented the results of his examination, as well as his conclusions, as follows: PHYSICAL EXAMINATION today reveals an alert, well-developed and cooperative, well- nourished 10-month-old infant. Maxwell weighs 24 pounds and is 30 inches in height. The skin is warm and moist. There are no neurocutaneous stigmata. The hair is blond and of normal texture. The spine is straight without dysraphism. The head circumference measures 46.1 centimeters which is within standard percentiles. The anterior and posterior fontanels are patent and flat. There are no cranial or facial anomalies or asymmetries. The tongue and palate are moist. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory, and abdominal examinations are unremarkable. Maxwell's NEUROLOGICAL EXAMINATION reveals him to be alert, cooperative and fully attentive. He is quite sociable and maintains an age appropriate stream of attention. He has good central gaze fixation with conjugate following movements. The pupils are 3 mm and react briskly to direct and consensually presented light. Funduscopic examination revealed no abnormal retinal findings. There are no significant facial asymmetries of movement. The uvula is midline and the pharyngeal folds are symmetric. Tongue movements are full in all planes. Motor examination reveals an asymmetry of movement with relatively greater movement on the right side. The left upper extremity has mild stiffness but has full range of motor. There is fine motor dexterity of both hands but Maxwell demonstrates a right arm preference and will preferentially reach for an object with the right hand. When an object is moved to the left, he will ultimately offer the left and readily transfers between hands. He has symmetrical movement of both legs. He has well-developed traction and grasp responses and good head control for age. The deep tendon reflexes are slightly exaggerated being 3+ at the knees and biceps. There are no pathologic reflexes. Plantar responses are downgoing. He can stand and bear weight with good axial tone and support does not take steps independently. He has good sitting balance as well. 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, Maxwell's neurological examination reveals that his motor developmental milestones are on time despite a very mild asymmetry of movement and muscle tone in the upper extremities. He is preferentially a right hander due to the motoric asymmetry. In other respects, Maxwell's neurologic status is quite good and his overall level of mental functioning appears to be on target at age level. I have had an opportunity to fully review the medical records which were mailed on January 12, 2009. The records indicate that Maxwell's neurologic problems at birth were the result of mechanical injury acquired during the delivery process. However, he has made remarkable progress and his mental function is normal and his motor deficit is quite mild . . . . (Respondent's Exhibits 3 and 4). Here, the opinions of Dr. Duchowny were logical, consistent with the record, not controverted, and not shown to lack credibility. Consequently, it must be resolved that Maxwell's brain injury did not render him permanently and substantially mentally and physically impaired. See 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.").
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.
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.
The Issue At issue in this proceeding is whether Ernest Hall, Jr., 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 petitioners nor anyone on their behalf appeared at hearing, and no proof was offered to support their claim. Ordinarily, such failing would be dispositive of the case; however, notwithstanding petitioners' failure of proof, respondent elected to offer into evidence the medical records filed with DOAH on May 15, 1996, which included records relating to Ernest Hall, Jr.'s (Ernest's) birth and 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 Ernest had suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. Ernest's birth and development Ernest was delivered vaginally at 2:17 a.m., June 1, 1991, at Shands Hospital, the University of Florida, Gainesville, Florida. His Apgars were normal at birth (9 at one minute and 9 at five minutes) and arterial pH from the umbilical cord was normal at 7.19. Earnest's newborn course was characterized by anemia, transient thrombcytopenia, and prenatally acquired cytomegalovirus. Where, as here, the cytomegalovirus (CMV) was acquired prenatally, it has the potential to cause brain damage in the fetus, as well as hearing impairment, chorioretinitis (inflammation of the eye) and other central nervous system abnormalities. Consequently, Ernest was placed on a ten day regimen of Ampicillin and Gentamicin. A head CT taken on June 5, 1991, revealed periventricular calcification and probably parenchymal calcification consistent with a prenatal infection such as CMV. Notably, following insult, it would require several weeks for such calcifications to occur. Due to the high risk factor associated with CMV, Ernest's auditory brain stem response was evaluated on June 7, 1991. At the time, his response was noted to be within normal limits; however, follow-up was recommended in six months since he was at risk for hearing loss due to CMV. Ernest was discharged to his parents care on June 10, 1991. On February 28, 1994, Ernest was re-evaluated, and those results indicated a severe sensorineural hearing loss in the sound field. On June 19, 1996, Ernest was examined by Michael Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital. Dr. Duchowny's neurologic examination revealed evidence of marked hearing impairment with both expressive and receptive language delay, a left ptosis (drooping of the upper eyelid) and exotropia (a deviation of the visual axis of one eye away from that of the other) with chorioretinitis (inflammation of the choroid and retina). In Dr. Duchowny's opinion, which is credited, such findings were consistent with early CMV exposure, and placed Ernest at risk for significant cognitive delay, accentuated by his hearing impairment. Ernest's motor abilities were, however, noted to be age appropriate. As for the cause of Ernest's neurological injury, it must be concluded that the proof fails to demonstrate that it resulted from a brain or spinal cord injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation. Rather, the proof demonstrates, more likely than not, that Ernest's neurologic impairments derive from a congenital CMV infection, which predated his birth by several weeks.
Findings Of Fact Mya Brayboy was born on March 6, 2014, at Winnie Palmer Hospital, located in Orlando, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Mya. In a medical report dated March 21, 2016, Dr. Willis described his findings in pertinent part as follows: In summary, this was a twin pregnancy with vaginal delivery of the first baby followed by Cesarean section for the second baby due to footling breech presentation and fetal bradycardia (fetal distress). Fetus B (Mya Brayboy) was depressed at birth and had a blood gas pH of 6.86, consistent with acidosis. The newborn hospital course was complicated by multi-system organ failure. EEG was abnormal and consistent with a history of HIE. However, the MRI on DOL 8 was reported as unremarkable. 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. The oxygen deprivation resulted in some degree of brain injury based on the abnormal EEG. I am unable to determine the severity of any possible injury. Dr. Willis’ opinion that 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 is credited. Respondent retained Laufey Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to evaluate Mya. Dr. Sigurdardottir reviewed Mya’s medical records, and performed an independent medical examination on her on April 27, 2016. In a neurology evaluation based upon this examination and a medical records review, Dr. Sigurdardottir made the following findings and summarized her evaluation as follows: In summary: This is a 2-year-old, ex-36-week twin with significant intrapartum bradycardia resulting in an emergent C-section. Patient had a neonatal neurologic syndrome including hypotonia, little respiratory drive with multisystem abnormalities including a metabolic acidosis, hypotension, elevated creatinine, elevated coagulation studies, elevated LFTs, and poor urine input. The patient’s Apgar scores were 2 after 1 minute, 2 after 5 minutes and 3 after 10 minutes and the patient required a 9-day NICU stay. Fortunately, her EEG was reassuring and her MRI did not show definite signs of acute ischemic injury. Her neurologic exam during this examination is normal, indicating good motor function for her age. A full language evaluation could not be performed, but as per report from mother, she is on target for normal language development. No autistic features were noted. Therefore, my results within reasonable degree of medical certainty are the following: Results as to Question 1: The patient is found to have no permanent mental or physical impairment. Results as to Question 2: There is evidence of complications during Mya’s birth that resulted in hypoxic ischemic encephalopathy, although her recovery has been favorable. Based on record review the timing of her hypoxic event is intrapartum. Results as to Question 3: We would expect full life expectancy and an excellent prognosis for both motor and mental skills. In light of the above-mentioned details, I do not recommend Mya to be included into the Neurologic Injury Compensation Association (NICA) and would be happy to answer additional questions. In order for a birth-related injury to be compensable under the NICA 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. Sigurdardottir’s opinion that Mya does not have a permanent physical or mental 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. Sigurdardottir that Mya does not have a permanent physical or mental impairment.
The Issue At issue in this proceeding is whether Morgan Wilson, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Petitioners, Tracie Wilson and James Ray Wilson, are the natural parents and guardians of Morgan Wilson. Morgan was born a live infant on December 12, 2000, at Baptist Medical Center, a hospital located in Jacksonville, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Morgan's birth was Martin Garcia, 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. Morgan's birth At or about 7:29 a.m., December 12, 2000, Mrs. Wilson (with an estimated date of delivery of December 23, 2000, and the fetus at 38 3/7 weeks gestation) presented to Baptist Medical Center, in labor. At the time, Mrs. Wilson's membranes were noted as intact, and mild to moderate uterine contractions were noted at a frequency of 2-4 minutes. Fetal monitoring revealed a reassuring fetal heart rate, with a baseline of 150-160 beats per minute, and the presence of fetal movement. At 9:45 a.m., Mrs. Wilson's membranes were artificially ruptured, with meconium stained amniotic fluid noted. At the time, vaginal examination revealed the cervix at 4 centimeters, effacement complete, and the fetus at 0 station. Mrs. Wilson's labor progressed, and at 7:29 p.m., Morgan was delivered, with vacuum assistance. According to the Admission Summary, Morgan was suctioned on the perineum, and, before she could be moved to the warmer, the "[c]ord clamp loosened with small amount of blood loss prior to reclamping." The Admission Summary further reveals that Morgan was "floppy and required bag mask ventilation x3 minutes, then blowby oxygen for 3 minutes." Apgar scores were noted as 1 and 8, at one and five minutes,2 and umbilical cord pH was reported as normal (7.28). Morgan was transferred to the neonatal intensive care unit (NICU) for "eval[uation] after blood loss." There, her blood count (with a hematocrit of 46 percent) was reported as normal or, stated otherwise, without evidence of a clinically significant blood loss due to the loosening of the clamp. Following two hours of observation, Morgan was transferred to the normal newborn nursery; however, at 4:20 p.m., December 13, 2000, she was readmitted to the neonatal intensive care unit. The reason for admission was stated in the Admission Summary, as follows: . . . Indications for transfer included 38 week WF with renal vein thrombosis and left middle cerebral artery stroke. Neonatology consulted midafternoon today secondary to hematuria. On exam, Dr. Cuevas noted asymmetry of pupils, with right more dilated and less responsive then left. Also noted to have torticollis, preferring to keep head turned to left. Also noted to have palpable mass in left abdomen. Renal ultrasound revealed renal vein thrombosis. HUS showed some echogenecity so Head CT done revealing left middle cerebral artery stroke. Hct this am 41. Baby then admitted to NICU for further care. Neurology and hematology consulted as well as nephrology. Impressions on admission included: possible coaguloathy; left middle cerebral artery stroke; renal vein thrombosis; and torticollis. Morgan remained at Baptist Medical Center until December 29, 2000, when she was discharged to her parents' care. Morgan's Discharge Summary noted the following active diagnoses: possible coagulopathy; anemia; left middle cerebral artery stroke; renal vein thrombosis; and torticollis. 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 . . . 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, indisputably, the record demonstrates that Morgan suffered an injury to the brain (following a stroke in the territory of the left middle cerebral artery, likely due to arterial occlusion or superior saggital sinus thrombosis). What is disputed, is whether the proof demonstrates, more likely than not, that such injury occurred "in the course of labor, delivery, or resuscitation," and whether any such injury rendered Morgan "permanently and substantially mentally and physically impaired." The timing of, and the neurologic consequences that followed, Morgan's brain injury To address whether Morgan's brain injury occurred "in the course of labor, delivery, or resuscitation," and whether such injury rendered Morgan "permanently and substantially mentally and physically impaired," Petitioners offered medical records relating to Mrs. Wilson's antepartum course, as well as those associated with Morgan's birth and subsequent development. Additionally, Mrs. Wilson testified on her own behalf, and Respondent offered the deposition testimony of Dr. Donald Willis, a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine, and Dr. Michael Duchowny, a physician board-certified in pediatrics, neurology with special competence in child neurology, electroencephalography, and neurophysiology.3 As for the timing of Morgan's injury, it was Dr. Willis' opinion that the medical records did not reveal any obstetrical event that would account for Morgan's injury. In so concluding, Dr. Willis noted that fetal monitoring (which began on admission and continued until 7:28 p.m., one minute prior to delivery) did not reveal evidence of fetal compromise or a clinically significant event that would account for Morgan's injury, that Morgan's 5-minute Apgar score was normal, her umbilical cord pH was normal, and her hematocrit on initial admission to the neonatal intensive care unit was normal. Consequently, Dr. Willis concluded that Morgan's injury did not occur during labor, delivery, or resuscitation. Also speaking to the timing of Morgan's injury was Dr. Duchowny who, based on his review of the medical records, shared Dr. Willis' opinion that there was no evident problem during labor and delivery, and further opined that Morgan's injury likely occurred prior to labor. In concluding that Morgan's injury likely predated the onset of labor, Dr. Duchowny noted that Morgan's CT scan on the day after birth clearly revealed a stroke in the territory of the left middle cerebral artery, and that it would take at least 72 hours for a stroke to be revealed so clearly on a CT scan. Apart from the timing of Morgan's brain injury, Dr. Duchowny also expressed his opinions, based on his examination of November 6, 2001, regarding the neurologic consequences that followed Morgan's injury. Dr. Duchowny reported the results of Morgan's neurology evaluation, as follows: PHYSICAL EXAMINATION reveals an alert, well developed and well nourished 10 1/2 month old white female. The skin is warm and moist. There are no cutaneous stigmata or dysmorphic features. The hair is light blonde, fine and of normal texture. Morgan weighs 18-pounds, 10-ounces. Her head circumference measures 45.6 cm, which is at the 60th percentile for age matched controls. There are no dysraphic features. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. NEUROLOGIC EXAMINATION reveals an alert infant who is socially oriented. She has good central gaze fixation, conjugate following and normal ocular fundi. The pupils are 3 mm and react briskly to direct and consensually presented light. There is blink to threat from both directions. There are no facial asymmetries. The tongue and palate move well, and there is no drooling. Motor examination reveals an obvious asymmetry of posturing and movement. The left side is positioned normally and tends to grasp for objects. The right upper and lower extremity have diminished movement in comparison to the left and there is a tendency for the left hand to cross the midline for all manual tasks. She will not grasp for an offered cube with her right hand. In contrast, the left hand will grasp for a cube and display the beginnings of individual finger movements. The thumb on the right hand is fisted. The muscle, bulk and tone appears symmetric. Deep tendon reflexes are 2+ at the biceps and knees. Both plantare responses are mildly extensor. On pull-to-sit there is an asymmetry of the upper extremity, with relatively greater pull on the left side. The neck tone is good. There are no adventitious movements. Sensory examination is intact to withdrawal of all extremities to touch. The neurovascular examination via the anterior fontanelle is unremarkable. In SUMMARY, Morgan's neurologic examination reveals a mild to moderate motor asymmetry of the right side affecting primarily upper extremity, but with some lower extremity involvement as well. In contrast, Morgan's cognitive status appeared well preserved for age and she is certainly developing on schedule with regard to her linguistic milestones. I suspect that Morgan's motor function will continue to improve, as she is working actively in therapy. In sum, it was Dr. Duchowny's opinion that Morgan evidenced neither a permanent and substantial physical impairment nor a permanent and substantial mental impairment. In contrast to the proof offered by Respondent, Petitioners offered the lay testimony of Mrs. Wilson, which was legally insufficient to support a finding regarding the timing of Morgan's brain injury, and which failed to support a conclusion that Morgan was permanently and substantially mentally and physically impaired. See, e.g., Vero Beach Care Center v. Ricks, 476 So. 2d 262, 264 (Fla. 1st DCA 1985)("[L]ay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observable.") Consequently, since the opinions of Dr. Willis and Dr. Duchowny are logical, and consistent with the medical records, it must be resolved that, more likely than not, Morgan's brain injury did not occur "in the course of labor, delivery, or resuscitation," and that Morgan's injury did not render her "permanently and substantially mentally and physically impaired." 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.")
The Issue At issue is whether Jasmine Scott, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary matters Temple Scott and Daryl Scott, are the parents and natural guardians of Jasmine Scott (Jasmine), a minor. Jasmine was born a live infant on November 7, 1997, at Columbia Memorial Hospital, a hospital located in Jacksonville, Florida, and her birth weight was in excess of 2500 grams. The physician providing obstetrical services during Jasmine's birth was Joan Macksey, 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. Jasmine's birth At or about 9:15 a.m., November 6, 1997, Mrs. Scott was admitted to Columbia Memorial Hospital in labor, with onset of labor noted as having occurred at 6:00 a.m. At the time, Mrs. Scott's estimated date of delivery was noted as November 3, 1997 (by date of last menstrual period), or November 8, 1997 (by fetal/ultrasound assessment). On admission, vaginal examination revealed the membranes were intact; the cervix to be at 3 centimeters dilatation; effacement at 50 percent; and the fetus at station -1, with a vertex presentation. Fetal heart tone (FHT) was noted as 130 to 140 beats per minute, and contractions were observed at 1 1/2 to 3 minute intervals, lasting 40 to 60 seconds. Fetal monitoring from admission until approximately 5:31 p.m. revealed a FHT of 130 to 140 beats per minute, with average long-term variability. At 5:31 p.m., uterine contractions were noted at a frequency of 2 to 4 minutes, with a duration of 60 to 90 seconds and moderate intensity. Vaginal examination (at 5:33 p.m.) revealed the cervix to be at 6 to 7 centimeters dilatation, effacement at 100 percent, and the fetus still at station -1. At approximately 5:31 p.m. and extending through 5:35 p.m., the FHT was noted to decrease to the 90 beat-per- minute range, and at 5:37 p.m. to accelerate to the 180 beat per minute range. Mrs. Scott was repositioned and administered oxygen, and FHT returned to a baseline of 130 to 140 beats per minute. While fetal heart decelerations and occasional decreases in long-term variability were described between 6:00 p.m. and the end of the first stage of labor (10:20 p.m.), accelerations were also noted to accompany decelerations and overall long-term variability remained normal, a circumstance consistent with fetal reserve and continued wellbeing. At 10:20 p.m., vaginal assessment revealed complete dilatation and effacement (the onset of the second stage or, stated differently, the pushing stage of labor); however, the fetus had only progressed to station 0. Between 10:20 p.m. and midnight, FHT was noted in the 120 to 130/130 to 140 beat- per-minute range. Again, occasional decelerations were described (with Mrs. Scott being repositioned and administered oxygen); however, accelerations were also noted to accompany decelerations and overall long-term variability (as well as short-term variability) was maintained, a circumstance (as heretofore noted) consistent with fetal wellbeing. At midnight, late and variable decelerations were noted at each push and Mrs. Scott was administered oxygen and repositioned. FHT remained at 130 to 140 beats per minute, and long-term variability persisted. Subsequently, at 12:36 a.m., November 7, 1997, Dr. Macksey called for a cesarean section, secondary to arrest of descent, and at 12:57 a.m., Mrs. Scott was taken by bed to the operating room where Jasmine was delivered at 1:32 a.m. Dr. Macksey's operative report reads as follows: This is a 22-year-old female, G-1, P-0 approximately 40-3/7 weeks. Came in spontaneous labor on 11/6/97. She went on to progress to complete complete 0. She pushed for approximately two hours without any further progression and she was diagnosed secondary arrest of descent. She was explained the risks and benefits of a cesarean delivery plus full need for transfusion as necessary. She agreed to proceed. She was taken to the operating room, placed in the dorsal supine position with a leftward tilt. Epidural anesthesia was insured to be adequate. She was subsequently prepped and draped in the normal sterile fashion. A Pfannenstiel skin incision was made . . . [and, following entry], [a] low transverse incision was made on the uterus and carried out laterally with Mayo scissors. The fluid was noted to be clear. Efforts were made to deliver the baby, however, the head was firmly impacted into the pelvis, therefore help was needed with the nurse pushing up from the vaginal vault lifting, trying to elevate the head. A second attempt was made again to reinsert my hand into the uterus and deliver the child, however, the lower uterine segment had clamped down and it was very difficult to deliver the child at this point. Efforts to get the head out of the pelvis were very futile, therefore, the infant was delivered with a flexed head at the level of the scapulas almost in a curled up position and was immediately bulb suctioned and the cord clamped times two and cut and handed to the waiting neonatologist. . . . On delivery, Jasmine was bulb suctioned, and received free oxygen (blow by) for 4 minutes and oxygen by bag/mask for 1 minute. Her initial newborn exam revealed "no observable abnormalities," and cord pH was 7.10 arterial, with a normal bicarbonate component. While depressed (a "little lower than normal"), Jasmine's cord pH was not so low as one would typically associate with an acute hypoxic event during the course of labor and delivery. Moreover, with a normal bicarbonate component, Jasmine's cord pH failed to demonstrate the presence of metabolic acidosis, an absence of which is inconsistent with acute birth-related hypoxia. Apgar scores totaling 5 and 9 were assigned at one and five minutes, respectively. The Apgar scores assigned to Jasmine 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 Jasmine's Apgar score totalled 5, with respiratory effort and color being graded at 0 each; muscle tone being graded at 1; and heart rate and reflex irritability being graded at 2 each. At five minutes Jasmine's Apgar score totalled 9, with heart rate, respiratory effort, muscle tone, and reflex irritability being graded at 2 each, and color being graded at 1. While slightly depressed at birth, as reflected by the one-minute Apgar score of 5, her five-minute Apgar score (the more important of the two with regard to long-term neurologic outcome) was 9 or, stated differently, perfectly normal. Jasmine was transferred (carried) to the newborn nursery at 1:45 a.m. Upon admission to the nursery, newborn assessment was, with the exception of some discoloration of the skin (bruising on the left side and left side back) grossly normal. Jasmine's neonatal course in the nursery was unremarkable 1/ except for a slight case of jaundice (a syndrome characterized by hyperbilirubinemia and deposition of bile pigment in the skin with resulting yellow appearance of the patient), and on November 9, 1997, at two-days-old, she was discharged to the care of her parents. Jasmine's subsequent development In February 1998, at three-months-old, Jasmine was admitted to Baptist Medical Center and Wolfson Children's Hospital (Wolfson Children's Hospital), Jacksonville, Florida, for evaluation of possible seizure activity. There, Jasmine was seen by William R. Turk, M.D., for neurological evaluation, who reported his findings as follows: HISTORY: Jasmine a three-month-old seen for evaluation of possible seizures. I have reviewed her charts, spoken with Dr. Jada [Jasmine's primary care physician], and personally reviewed her history with her parents and grandparents. Apparently a question of seizures first arose last Wednesday, approximately five days ago, on Jasmine, when she had the first of now eight events. These events have occurred both during sleep and wakefulness and are characterized by the sudden onset of generalized stiffening, predominantly involving her upper extremities, as her hips are kept in a cast for a congenital hip dislocation. Her arms are either held extended or flexed. There is no clonic component, and it is bilaterally symmetrical. When she suddenly assumes this stiff posture, her eyes will be open and staring. They do not roll or flutter. No mouth movements have been noted. There are no autonomic changes in terms of cyanosis, pallor, or appearing erythematous. She does not stop breathing. There is no associated reflux. They have occurred both with and without stimuli, and generally last 15 seconds. Following the events she at times will briefly cry. When she is asleep at the onset, she will briefly open her eyes, appear alert, smile, then return to sleep. One was observed by the nursing staff as described in the notes, with bilateral stiffening lasting 30 seconds. In between these events recently she has been well. There has been no history of recent illness or trauma. PAST MEDICAL HISTORY: Reveals she is the 6 pound 1 ounce product of a term pregnancy complicated only by low maternal iron. She was delivered by emergency cesarean section due to some decelerations. However, she did well in the perinatal period. Her mother in retrospect denies any illnesses, flus, drug or toxin exposures during pregnancy. She since has been generally healthy, with no significant illnesses. . . . Jasmine was diagnosed at birth as having congenital hip dislocation and has been maintained in hip braces. Developmentally, she has not rolled over, which has been attributed to her hip braces. She has been very alert and social. On review of systems, her parents note occasionally her eyes will roll downward. There has been no consistent strabismus. She appears to hear normally. She has had no problems with chewing or swallowing. She has had no chronic cardiopulmonary complaints. She has rare modest reflux with being burped. She has had no choking or gagging. She has had no vomiting or diarrhea. No motor asymmetries have been noted, nor tremulousness. She has one café au lait patch on her right leg. She has had no recent fever, rashes, or irritability. * * * PHYSICAL EXAMINATION: She is an alert, pleasant, happy infant, in no apparent distress. She was afebrile. Her head circumference of 39.5 cm is on the 50th percentile, while her height and weight were approximately in the 15th percentile. There were no dysmorphic features, although she does have a scaphocephalic-appearing cranium. Her anterior fontanelle was soft. There were no cranial bruits. Her ears, eyes, nose, mouth, and pharynx were unrevealing. Her neck was supple. I could appreciate no meningismus. Her chest was clear. I could appreciate no cardiac murmur. Her abdomen was benign. She was wearing her hip brace, which was removed. She appeared to have full range of motion of her joints. She had one café au lait patch in her right groin. There were some areas of irregular depigmentation in a nonspecific pattern. There were no acute rashes. On neurological examination, her pupils were equal, round, and reactive to light. Here extraocular movements were conjugate and full, and she would fix, follow, and socialize visually. Multiple fleeting glimpses of her disc and retina were unrevealing. Her facial movements were symmetrical. She localized auditory stimuli bilaterally. Her gag was intact, and her cry was loud and lusty. MOTOR EXAMINATION: Demonstrated equal and symmetrical muscle bulk, tone, and strength. She had vigorous spontaneous movements of all extremities without abnormal posturing. She did appear to have a mild to moderate head lag when pulled to a sitting position. Deep tendon reflexes were diffusely 2+, with flexor plantar responses. She withdrew briskly and symmetrically to noxious stimuli. No tremulousness was noted. * * * IMPRESSION: Jasmine is a three-month-old with a history of congenital hip dislocation who in the last five days has had eight episodes of generalized (bilateral, predominantly upper extremity) stiffening. This has been either in an extensor or flexor posture. This has been associated with her eyes being open but no other motor manifestations have been noted. There are no associated autonomic changes, distress, cyanosis, or regurgitation. These events as described are suggestive of seizures, although it is unusual in an infant of this age to have generalized tonic seizures due to the relative immaturity of their cerebral circuitry. She did have an EEG performed that did demonstrate some left parietal sharp waves that are potentially epileptogenic, but these would be more suggestive of a partial rather than generalized seizure process. She does not appear to be acutely ill and is otherwise an alert, active infant whose only remarkable finding on examination is some mild head lag. Thus, it is unclear clinically whether she is having seizures or whether these stiffening spells reflect either a startle or arousal type phenomena. . . . A February 10, 1998, MRI scan was read as normal, and disclosed no evidence of brain damage. Jasmine was apparently started on Phenobarbital therapy for a perceived seizure disorder. Notwithstanding, on March 16, 1998, her seizure activity persisted and her primary care physician (Dr. Jada) referred her to Carlos Gama, M.D., for neurologic evaluation. 2/ Dr. Gama's diagnosis and recommendations were as follows: Diagnosis: Infantile spasms. Encephalopathy. 3/ Seizure disorder. Developmental delay. Recommendations: 1. Admit to Baptist Medical Center [Wolfson Children's Hospital] for further diagnostic workup and appropriate treatment. Comments: Jasmine is a four month old female infant who comes today with her parents and paternal grandmother for evaluation of a seizure disorder, which has been diagnosed in the recent month by Dr. William Turk and started on Phenobarbital therapy. However, the present visit is precipitated by the fact that she is now displaying a different type of seizure activity described as clusters of startle like movements, which tend to occur primarily during the morning time when the patient is tired. These have been present since last weekend and suggestive of infantile spasms. The past medical history reveals that Jasmine was born to a 22 year old G1 Para 0 mother at 40 weeks gestational age, uncomplicated pregnancy. Delivery was difficult and the fetus had an erratic heart rate, and possibly a cephalopelvic disproportion. The infant was delivered by c-section. The apgars were five at one minute and nine at five minutes. The infant went to the normal nursery and fed well with no significant difficulties, except parents report that for the first few weeks Jasmine was not a very active infant. They deny any evidence of hypotonia. The developmental history is remarkable for the fact that she has not obtained developmental milestones properly. Medications include Phenobarbital 3mls in the morning and 4mls at nighttime. Vaccines are remarkable for the fact that she received the first round of vaccines with no complications. The family history was negative, except for epilepsy in a paternal uncle and two maternal cousins. The neurological examination reveals that the patient's head circumference is in the 50th percentile. Her weight and height were within the normal percentiles. The baby was drowsy during the examination, however, she was able to arouse, but did not have appropriate eye contact. Red reflex was present bilaterally. Pupils were equal and reactive to light stimulation. Cranial nerve examination was normal. The motor examination was remarkable for the fact that she kept her hands fisted. She had poor traction response with very poor head control. Moro was absent. Tone and neck reflex was absent. Palmar and Plantar reflexes were present. The muscle tone seemed to be somewhat decreased. The patient was able to support weight in her lower extremities. The rest of the neurological examination was noncontributory. No obvious organomegalies, skin abnormalities or dysmorphic features were observed. Therefore it is my opinion that Jasmine has infantile spasms with a progressive encephalopathy and developmental delay. In view of the present history it is recommended that she be admitted to Baptist Medical Center for further evaluation of her seizure disorder and initiation of appropriate treatment. Jasmine was admitted to Wolfson Children's Hospital on March 17, 1998, and discharged to the care of her parents on March 25, 1998. Dr. Gama's discharge summary contained the following diagnoses and recommendations: DIAGNOSES: Infantile spasms. Partial complex seizures. Developmental delay. Iron deficiency anemia. Vitamin B6 deficiency. Congenital deformity of the hip joint. * * * PAST MEDICAL HISTORY: Basically noncontributory. Developmental history has been abnormal. FAMILY HISTORY: A paternal uncle with epilepsy as well as two maternal cousins with epilepsy. NEUROLOGICAL EXAMINATION: Examination was characterized by the fact the baby was hypotonic, delayed with no dysmorphic features per se and in no acute distress. The patient was witnessed to have had some infantile spasms. Therefore, she is admitted for further neurological work-up. The baby underwent an EEG which [was abnormal] and reveal[ed] a hypsarrhythmic pattern. During this EEG, she received Pyridoxine 50 mg IV which seemed to have improved the background of these tests. Positive pattern of vitamin B6 deficiency was considered. The patient was treated with this medication for 24-48 hours, but the symptoms persisted in spite of the fact that she was receiving high dose of vitamin B6. In view of this, it was decided to treat her with ACTH. After appropriate discussion with the family, this medication was agreed upon and was started at 40 units IM q. day. She was maintained on her Phenobarbital 4 ml p.o. q.h.s. and 3 ml in the morning. The patient also was noted to have anemia and iron deficiency and therefore she was started on Fer-In-Sol. The baby tolerated procedures well. She also had metabolic studies obtained which were unrevealing. The patient was therefore discharged to the care of her parents on 03-25-98 with the following recommendations. DISCHARGE INSTRUCTIONS: Diet is regular for age. Activity regular. ACTH 40 units IM q. day for five days and then to decrease this to 20 units IM thereafter. Pyridoxine 100 mg p.o. q. day. FOLLOW-UP: The patient is to be seen in my office in one week for re-evaluation and further recommendations regarding the ACTH therapy. Return to my office as recommended. Jasmine returned to Dr. Gama on March 31, 1998, for a follow-up neurological evaluation. The following were his diagnosis and recommendations: Diagnosis: Infantile spasms. Idiopathic [of unknown origin]. Severe encephalopathy. Iron deficiency anemia. Recommendations: Continue ACTH 20 units IM q day. Continue Phenobarbital 20mg/5mls 4mls po BID. Obtain EET. . . . Comments: Jasmine returns for her post hospital follow-up visit. She has been on the ACTH for approximately 8-9 days, 20 units q day. She continues having infantile spasms and there has not been any significant change in her overall encephalopathy. . . . Her examination shows that head circumference is 41.5cm. She is alert, but does not track the examiner. The patient's pupils are equal and reactive. Her motor response is absent. Traction is negative. Head control is poor and her muscle tone overall is decreased. Deep tendon reflexes were +2. The rest of the examination was noncontributory. In summary it is my opinion that Jasmine is not responding to ACTH as expected. I am concerned because this usually will carry poor prognosis overall if we are unable to control her seizures. In view of this I recommend that we obtain an EEG to further assess the electroencephalographic pattern and effectiveness of this. Jasmine was again seen by Dr. Gama on April 6, 1998, for a follow-up evaluation. The following were his diagnosis and recommendations: Diagnosis: Infantile spasms. Responding to ACTH. Encephalopathy. Recommendations: Continue ACTH 20 units qod IM. Phenobarbital 5 mls po BID. . . . * * * Comments: Jasmine underwent EEG, which reveals improvement of the background, although there was evidence [of] occipital spike discharges. Her grandmother reports occasional staring spells, which may represent seizures, but this is unclear. This may be related to partial seizures rather than to infantile spasms. No evidence of myoclonic jerks is described during today's visit. The grandmother also describes Jasmine of being more sociable, laughing more and being more playful. The examination shows that head circumference is 41.5 cm. She was alert and seems to be able to focus, and maybe starting to track but this was quite inconsistent. Her muscle tone is decreased throughout. Deep tendon reflexes were hypoactive. The patient remained with no evidence of a traction response, poor head control and absent tone and neck reflex. Therefore it is my opinion that Jasmine seems to be responding to the ACTH therapy at this point. She may be having some underlying partial seizures, secondary to her occipital spike discharge. We will reassess her in two weeks in this office. On April 20, 1998, at five-months-old, Jasmine returned to Dr. Gama for a follow-up evaluation. The following were his diagnosis and recommendations: Diagnosis: Infantile spasms. Idiopathic. Iron deficiency anemia. Hypotonia. Central. Hip dislocation. Recommendations: Start weaning off schedule of ACTH by decreasing the dosage. . . . Continue Phenobarbital 5mls po BID. Refer to Easter Seals for early intervention program. * * * Comments: Jasmine seems to be doing well on the ACTH with no recurrent myoclonic spasms. The grandmother reports no significant staring spells or other seizure types. Her Phenobarbital level on 4/13/98 was 31. The patient's electrolytes are stable, as well as her CBC/diff. Jasmine is described as being more vocal, more active and seems to be starting to track more than before. She is rolling over from her back to her stomach. She seems to be pleasant and with no irritability. She is feeding well and thriving. The examination shows that her head circumference is 41 cm (in the 50th percentile). Anterior fontanel is soft and normal tense. The patient is alert and she seems to track the examiner more consistently than in the past, but still no more than a 90 degree range. The patient's muscle tone is decreased. Her traction is improved, as well as head control, but still remains abnormal for her age. The motor examination shows deep tendon reflexes of +3. No clonus was seen. General muscle tone was slow as described before. The rest of the examination was noncontributory. . . . Jasmine was next seen by Dr. Gama for a follow-up evaluation on May 5, 1998. At the time, his diagnosis and recommendations were as follows: Diagnosis: Infantile spasms. Partial seizures. Hypotonia. Developmental delay. Recommendations: Continue decreasing ACTH, now to 15 units IN every other day, and progress according to schedule. Change Phenobarbital to tablets, 30mg 1 1/2 tab qHS. * * * Comments: Jasmine is doing well. She is now more alert and attentive. She seems to be laughing and more interactive than in the past. The grandparent's report no recurrent myoclonic seizures. She is scheduled to be evaluated by the Early Intervention Program in the next few weeks. Her vaccines have been on hold until she completes her ACTH therapy, which will [be] in approximately six weeks, after which she should be starting her regular schedule. The patient's examination shows that she is alert and attentive. She tracks well. Her traction response seems to be improved. Her control is also better. Her muscle tone remains low. Deep tendon reflexes are +2. The patient seems to be improving clinically. . . . Jasmine's next follow-up evaluation with Dr. Gama was on June 3, 1998. At the time, Dr. Gama made the following diagnosis and recommendations: Diagnosis: Infantile spasms. Partial seizures. Hypotonia. Developmental delay. Recommendations: Discontinue ACTH. Phenobarbital 30mg 2 tabs qHS. Continue Pyridoxine for now. * * * Comments: Jasmine is doing extremely well. She is seizure-free and tolerating Phenobarbital well. Her most recent level was 34. She seems to be interacting more with her parents. She is more playful and sociable. She has mild estropia and continues to be hypotonic, especially in her axial musculature. Moro reflex is absent. Her traction is decreased. Her head control is also decreased. Deep tendon reflexes were +3. The rest of the examination was noncontributory. She remains developmentally delayed. However, I feel that Jasmine's infantile spasms are resolved and her partial seizures seem to be under control on present dosage of Phenobarbital. On August 27, 1998, at nine-months-old, Jasmine returned to Dr. Gama for a follow-up evaluation. The results of that examination were as follows: Diagnosis: Infantile spasms. Decreased activity in the morning times by parent's report. Rule out recurrent seizures. Hypotonia. Developmental delay. Recommendations: Continue Phenobarbital 30mg 2 tabs qHS. Discontinue Pyridoxine. * * * Comments: Jasmine returns for an early appointment because of concerns regarding the fact that in the morning time she has not been as active as usual. Father reports some irritability in the last several days. She has had some nasal congestion, but no other symptoms. No nausea, vomiting or fever. Parent's also feel that she is not moving her right arm very well, and that she is not be [sic] rolling over as frequently as before. The patient continues to feed well. She has no difficulties swallowing. The examination today demonstrates that she is alert and playful. She smiles and socially relates to the examiner. The patient's cranial nerve examination shows mild esotropia of the eyes with no pupillary abnormalities. Her motor examination is unchanged, with significant hypotonia, poor traction response and poor head control, however this is not new to the examiner. The deep tendon reflexes were present. The patient is unable to support weight in the lower extremities. No pinpoint tenderness of the bones in her arms or joints is elicited. Passive range of motion is normal with no pain. No evidence of injury is seen during the examination. In general she seems to be at baseline in her neurological examination. . . . It is my opinion that Jasmine is stable neurologically, although she is developmentally delayed with severe hypotonia and an underlying seizure disorder. . . . Jasmine next saw Dr. Gama at twelve-months-old for a follow-up evaluation on November 16, 1998. The results of that evaluation were as follows: Diagnosis: Seizure disorder. Stable on Phenobarbital (infantile spasms, partial seizures). Psychomotor developmental delay. Improving. Hypotonia. Improving. Recommendations: 1. Continue Phenobarbital 60 mg 1 tab qHS. * * * 3. Continue physical and speech therapy. * * * Comments: Jasmine is doing extremely well. She has been seizure free for several months. She is starting to gain some milestones. She is now more alert, talkative and interactive with environment. She is still hypotonic, and she is getting physical therapy on a regular basis. She will be starting speech therapy. The mother has no specific complaints. . . . The examination reveals that her head circumference is 44cm. She is alert and attentive. Her head size and shape is within normal limits. The cranial nerve examination demonstrates mil[d] esotropia. The patient has a good traction response and head control, but her muscle tone is decreased axially. She is still not able to sit up by herself. The patient does not pull up to a standing position. Her muscle tone in the lower extremities tend to be somewhat increased. Deep tendon reflexes were within normal limits. The patient tends to keep her upper extremities in a semi-flex posture. No fisting was seen. The Denver Developmental Screen Test demonstrates that she is at approximately 6-8 months in her gross motor skills. She seems to be appropriate in the language area. She is approximately 9 months of age in personal/social skills. . . . Insofar as the record reflects, Jasmine was last seen by Dr. Gama for a follow-up evaluation on March 15, 1999, at sixteen-months-old. The results of that evaluation were as follows: Diagnosis: Seizure disorder. Stable on Phenobarbital. S/P Infantile spasms. Hypotonia. Developmental delay. Recommendations: Continue Phenobarbital 60mg qHS. Continue supportive therapies. Return to this office in four months for reevaluation. Comments: Jasmine is doing well, with no recurrent seizures. Her Phenobarbital level in December was 32. A repeat study is recommended. The patient is having physical therapy. She is going to the Early Intervention Program and doing well. She is making good progress. The examination reveals that her head circumference is 43.7cm. She is alert. She has good eye contact. She has mild esotropia of the right eye. The cranial nerve examination was otherwise unremarkable. Muscle tone shows hypotonia. The deep tendon reflexes were present and +2. The patient has made some advances in her milestones. Therefore, she is to continue present regimen of medication as well as support therapies. . . . Given the proof, it is apparent that Jasmine suffered some anomaly which adversely affected brain development, as evidenced by her current neurologic impairment (mental and physical). However, the records of her treating and consulting physicians, consistent with her perinatal and neonatal records from Columbia Memorial Hospital, contain no suggestion that her presentation is associated with any event which may have occurred during labor, delivery, or resuscitation. Indeed, while her consulting neurologist (Dr. Gama) evidently sought to identify the cause of her presentation, he concluded that her past medical history was "[b]asically noncontributory" and that her infantile spasms were of unknown origin ("idiopathic"). The dispute regarding compensability Here, there is no dispute that Jasmine suffers neurologic dysfunction, mental and physical. What is at issue is whether that dysfunction may reasonably be described as permanent and substantial and, more fundamentally, whether the cause (etiology) of such dysfunction is, more likely than not, attributable to "an injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post- delivery period," as required for coverage to be afforded under the Plan. Section 766.302(2), Florida Statutes. With regard to the issue of causation or timing, Petitioners are of the view that Jasmine's hospital course and subsequent development is consistent with a brain injury caused by oxygen deprivation or mechanical injury which occurred during the course of labor, delivery, or resuscitation. In contrast, Respondent is of the view that the proof is not consistent with a brain injury cause by oxygen deprivation or mechanical deprivation which occurred during or immediately following birth and must, therefore, be attributable to some other etiology. Respondent's view of the proof has merit, and it is unnecessary to address whether Jasmine's neurologic dysfunction is permanent and substantial. The etiology (genesis) of Jasmine's dysfunction To address the etiology of Jasmine's neurological dysfunction, the parties offered selected records relating to Mrs. Scott's intrapartum course, as well as for Jasmine's birth and subsequent development. Portions of those records have been addressed supra, and further salient portions will be addressed infra. The parties also offered the opinions of three physicians to address the likely etiology of Jasmine's presentation. The physician selected by Petitioners was Daria F. Marranzini, M.D., a pediatric neurologist. The physicians selected by Respondent were Michael S. Duchowny, M.D., a pediatric neurologist, and Charles Kalstone, M.D., a board- certified obstetrician and gynecologist. Here, the medical records and other proof, including the opinions of the physicians offered by the parties, have been carefully considered. So considered, the analysis and opinions of Doctors Kalstone and Duchowny were shown to rest on a logical premise, were grossly consistent with the record, and have been accepted as credible and persuasive. Consequently, it must be concluded that the proof does not demonstrate (or allow conclusion to be drawn with any sense of confidence) that, more likely than not, Jasmine's neurologic dysfunction is related to an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period." 4/ In reaching such conclusion, it is observed that Jasmine's course pre-delivery and post-delivery was inconsistent with a brain injury associated with a hypoxic/ischemic event or mechanical injury having occurred during the course of labor, delivery, or resuscitation. Notably, while there were multiple late decelerations during the second stage of labor (which evidenced periods of diminished oxygenation or, stated differently, periods of transient hypoxia) the fetal monitoring tape also provided reassuring evidence of fetal wellbeing/reserve (by documenting good beat-to-beat variability, spontaneous accelerations, and recovery (following deceleration) to FHT baseline. Further militating against the conclusion that Jasmine's impairments are associated with an injury caused by oxygen deprivation or mechanical injury during labor or delivery are the numerous inconsistencies between Jasmine's perinatal and neonatal course, and the clinical findings one would expect had she suffered a brain injury secondary to oxygen deprivation (perinatal asphyxia) or mechanical injury during that period. For example, Jasmine's five-minute Apgar score was normal; cord pH, while below normal, was not consistent with an acute insult or with metabolic acidosis; and Jasmine did not evidence symptoms (such as seizure activity within the first 48 hours of birth, continued poor tone, or renal failure) one would typically associate with an acute neurologic insult caused by oxygen deprivation or mechanical injury during the birth process. Moreover, Jasmine presented without apparent abnormality, her hospital course was essentially uneventful, and she was discharged to her parents' care (as a well baby) at two days of age. Finally, Jasmine's MRI, at three-months-old (February 10, 1998), was read as normal or, stated differently, failed to reflect any brain damage one would typically associate with an injury caused by oxygen deprivation or mechanical injury. Consequently, while Jasmine clearly suffered some trauma because of a difficult extraction during the cesarean section (occasioned by the baby's head being impacted in the pelvis), as well as transient periods of hypoxia, the objective proof regarding Jasmine's perinatal and neonatal course was not consistent with an acutely acquired neurologic injury caused by oxygen deprivation or mechanical injury, and it is improbable that she could have experienced an acute event during labor and delivery, or immediately thereafter, without evidencing clinical symptoms of such damage. Consequently, given the proof, it cannot be concluded that Jasmine's neurologic dysfunction resulted from a brain injury caused by oxygen deprivation or mechanical injury which occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period, as opposed to some intrauterine event (i.e., a developmental, genetic, or other congenital abnormality). (See Exhibit E.)
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.
