The Issue The issue in this case is the amount of attorneys' fees to be awarded to Petitioner's Counsel pursuant to the Mandate of the Third District Court of Appeal entered on Case No. 3D11- 1621, as well as the Order in that case granting Appellee's Motion for Attorneys' Fees as a Sanction Pursuant to Fla. R. App. P. 9.410(b) and § 57.105, Fla. Stat.
Findings Of Fact On November 22, 2010, Petitioner filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. On May 20, 2011, a Summary Final Order of Dismissal was entered dismissing Petitioner’s Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq., finding that the claim was not compensable and was barred by section 766.313. On June 16, 2011, the University of Miami, d/b/a University of Miami School of Medicine appealed the final order to the Third District Court of Appeal. On June 20, 2011, Leslie Caroline McLeod, M.D.; Nathalie Dauphine McKenzie, M.D.; Marion Frederic Colas-Lacombe, M.D.; Jerry M. Giles, M.D.; Hugo Gonzalez-Quintero, M.D.; and the Public Health Trust of Miami-Dade County, d/b/a Jackson Memorial Hospital filed a Notice of Joinder of the Notice of Appeal of the Final Administrative Action. The defendants in the medical practice action filed a Motion for Stay Pending Appeal in the circuit court. By letter dated June 22, 2011, Petitioner sent a letter to the defendants in the medical malpractice action, who were also the appellants in the appeal. The letter advised that Petitioner would be filing motions for attorneys’ fees if the defendant/appellants did not withdraw the notice of appeal, joinder of appeal, and motion for stay. Copies of the motions for fees, which Petitioner intended to file in the Third District Court of Appeal and the circuit court accompanied the letter. The letter did not mention fees for the administrative action which was on appeal. On January 3, 2012, Petitioner filed Appellee’s Motion for Attorneys' Fees as a Sanction Pursuant to Fla. R. App. P. 9.410(B) and § 57.105, Fla. Stat., seeking attorneys’ fees as a sanction against Appellants/Intervenors. The Third District Court of Appeal granted the motion and remanded the case to the Division of Administrative Hearings to conduct a hearing on the amount of fees to be awarded. On February 4, 2013, the final hearing on the fees awarded by the Third District Court of Appeal commenced. On the same date, Petitioner filed Petitioner’s Motion for Attorneys’ Fees and Costs Pursuant to Florida Statutes § 57.105 with the Division of Administrative Hearings. The motion seeks attorneys’ fees for the administrative action on Petitioner’s claim for benefits under the plan administered by the Florida Birth-Related Neurological Injury Compensation Association. A Final Order on Fees was entered on May 23, 2013, which determined the amount of attorneys’ fees to be awarded to Petitioner pursuant to the order of the Third District Court of Appeal. Included in the amount awarded were fees associated with the Notice of Appeal and the Motion for Stay Pending Appeal.
The Issue At issue in this proceeding is whether Jahmel Henry, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact 1. Gwendolyn Henry and Melvin Henry are the parents and natural guardians of Jahmel Henry (Jahmel), a minor. Jahmel was born a live infant on October 12, 1998, at South Broward Hospital District, d/b/a Memorial Hospital West, a hospital located in Pembroke Pines, Florida, and his birth weight was in excess of 2,500 grams. 2. The physicians providing obstetrical services during the birth of Jahmel were Stephen P. Schneider, M.D., Jose M. Santos, M.D., and Marvin Newman, D.O., and they were, at all times material hereto, participating physicians in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan 3. Pertinent to this case, coverage is afforded under the Plan when the claimants demonstrate, more likely than not, that the infant suffered an "injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Jahmel's presentation 4. On January 8, 2001, following the filing of the claim for compensation, Jahmel was examined by Michael S. Duchowny, M.D., a board-certified pediatric neurologist associated with Miami Children's Hospital, Miami, Florida. The results of that evaluation were reported, as follows: HISTORY ACCORDING TO MR. AND MRS. HENRY: The parents began by explaining that Jahmel's major problem is that he cannot elevate or stretch his right arm. This problem has been present essentially since birth and has not responded to nerve graft surgery in May 1999. Jahmel has had persistent weakness of the right upper extremity, primarily in the shoulder, although he has had some return of hand and finger movement. He is an obligate left hander, performing virtually all tasks primarily with his left hand. He does have some dexterity on the right, but this is limited by his reduced range of motion at the shoulder. Jahmel's left arm is normal and he has not had any problems in his legs. He has received physical therapy until six months ago and the parents are requesting that additional therapy be performed. There has been no subsequent trauma to the arm and Jahmel is not experiencing significant pain. Jahmel was born at .. .- Memorial Hospital with delivery complicated by shoulder dystocia. He additionally had meconium aspiration syndrome and required ECHMO for several weeks. Jahmel ultimately remained in Newborn Intensive Care for approximately 3 months before being discharged. His birth weight had been 9-pounds. Jahmel's EARLY GROWTH AND DEVELOPMENTAL MILESTONES were on time in that he walked and talked at a year. He is now toilet trained. All of his immunizations have been up-to-date and he has no significant allergies. Jahmel's overall health has otherwise been good. There are no problems with his vision or hearing and his sleep habits are quite stable. His appetite has been steady and he is on no intercurrent medications. He has had the usual childhood infections. FAMILY HISTORY: The father is 31; the mother is a 33 year old gravida 1, para 1, AB2. Two half brothers from the father's previous marriage are 14 and 8 and healthy. There are no family members with extremity palsy, neurodegenerative illnesses, mental retardation or epilepsy. PHYSICAL EXAMINATION reveals Jahmel to be an alert, pleasant and cooperative toddler. His weight is 29-pounds and height 31-inches. There is midline anterior cervical sebaceous cyst. He has no cutaneous stigmata, dysmorphic features or heterochromia i'ridis. The head circumference measures 48.2 cm and there are no significant cranial or facial anomalies or asymmetries. The neck is supple without adenopathy. The cardiovascular, respiratory and abdominal examinations are unremarkable. The peripheral pulses are 2+ and symmetric. NEUROLOGIC EXAMINATION reveals an apprehensive toddler who is quite fearful and fends off much of the examination. Jahmel did not speak in words during the examination to me, but spoke to his mother and father on several occasions. He maintains an appropriate stream of both thought and attention. The cranial nerve examination reveals full visual fields to direct confrontation testing and a brief, but normal fundoscopic examination. The pupils are 2 to 3 mm and react briskly to direct and consensually presented light. There is good visual tracking. The tongue movements are well coordinated and the uvula is midline. Motor examination is significant for a prominent asymmetry of the upper extremities. There is a prominent downward slope to the right shoulder and decreased size of the right upper extremity compared to the left. Range of motion is clearly limited at the right shoulder with the shoulder being held in a position of internal rotation, adduction and flexion. The elbow is slightly flexed. In contrast, there is full range of motion at the wrist and fingers. Mild to moderate winging of the scapula is noted and there is slightly decreased muscle bulk along the mesial border. The healed scars over the right supraclavicular area and right gastroc region are noted. The sensory examination could not be elicited reliably. The deep tendon reflexes are 1+ on the left, but are absent on the right. In comparison, deep tendon reflexes are 2+ in the lower extremities. There are no abnormalities of movement, muscle bulk or tone in the left upper extremity or legs. The right arm tone is slightly diminished distally. Individual finger movements on the right are intact with thumb and finger opposition. A pincer grasp is noted. The gait is stable and symmetric. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Jahmel's neurologic examination in detail reveals findings that are referable to the right upper extremity, consistent with right Erb's palsy. He does not appear to of achieved significant benefit from his surgical intervention and has a noticeable limitation at the shoulder. I believe that this impairment is likely to be permanent. In contrast, Jahmel's cognitive status appears well preserved. 5. An Erb's palsy, such as that evidenced by Jahmel, is a weakness of an upper extremity due to damage of the nerve roots of the upper brachial plexus, and does not involve the brain or spinal cord. Moreover, Jahmel's mental or cognitive status has been described as essentially normal. Consequently, while Jahmel may have suffered a mechanical injury, permanent in nature (to his right brachial plexus) during the course of birth, he does not (for reasons appearing more fully in the Conclusions of Law) qualify for coverage under the Plan.
Conclusions For Petitioner: Andrew Needle, Esquire Needle, Gallagher & Areces, P.A. 1401 Brickell Avenue, Suite 900 Miami, Florida 33131 For Respondent: James C. Pilkey, Esquire 1000 South Andrews Avenue Fort Lauderdale, Florida 33316-1038 For Intervenors (Doctors) : Darlene Stosik, Esquire Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A. 888 East Las Olas Boulevard, Suite 400 Fort Lauderdale, Florida 33301 For Intervenor (Hospital): Gary S. Genovese, Esquire Conrad & Scherer Post Office Box 14723 Fort Lauderdale, Florida 33302
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. 13
Findings Of Fact Mesiah Waldron was born on February 23, 2012, at Broward General Medical Center in Fort Lauderdale, Florida. He was a single gestation. Based on the medical records from Broward General Medical Center, Mesiah weighed 590 grams at birth. There is no dispute that Mesiah did not weigh at least 2,500 grams.
Findings Of Fact Kelia Santiago was born on October 25, 2011, at Tampa General Hospital in Tampa, Florida. She was a single gestation. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Kelia. In a report dated December 11, 2014, Dr. Willis described his findings in pertinent part as follows: Birth weight was reported as 2210 grams and 2201 grams in different sites in the mother’s medical records. Apgar scores were not given. Cord blood pH was normal at 7.29. No records were available from the NICU for review. * * * In summary, there was no fetal distress during labor. Delivery was by repeat Cesarean section with normal blood gas. Birth weight was <2,500 grams. NICU records were not available for review. This baby was born prematurely due to premature rupture of the membranes. Birth weight appears to be less than 2,500 grams. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor or delivery. NICU records were not available, so I have no comment about oxygen deprivation in the post delivery period. Birth weight was <2,500 grams. In an affidavit dated January 7, 2015, Dr. Willis reaffirmed his opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor or delivery, and his review of the medical records revealed that the birth weight was less than 2,500 grams. A review of the file reveals that no contrary evidence was presented to dispute Dr. Willis’ finding that Kelia’s birth weight was less than 2,500 grams, or his opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the brain during labor or delivery. Dr. Willis’ opinion is credited.
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.
Findings Of Fact Cesar was born on November 4, 2016, at AdventHealth in Winter Park, Florida. He was a single gestation. The unrefuted medical records provided by Petitioner to NICA document that Cesar’s birth weight was 2360 grams.
Findings Of Fact Colton Whitmire was born on July 4, 2012, at Holmes Regional Medical Center in Melbourne, Florida. He was a single gestation. NICA attached to its motion a Certification of Medical Records signed by Dawn Brewer, Client Service Representative from Holmes Regional Medical Center, and a one-page medical record for Colton. The medical record shows that Colton was a single gestation and his birth weight was less than 2,500 grams. A review of the file reveals that no contrary evidence was presented to dispute the medical record from Holmes Regional Medical Center showing that Colton’s birth weight was less than 2,500 grams.
The Issue The issue to be determined is whether the infant, Adrian Olmstead (Adrian), suffered a birth-related neurological injury as that term is defined by section 766.302, Florida Statutes (2018).
Findings Of Fact On November 28, 2018, Heenesys Tamayo gave birth to a baby boy, Adrian Olmstead, at AdventHealth Altamonte Springs. Adrian’s birth certificate indicates that he weighed five pounds, six ounces at birth, which equates to approximately 2,440 grams.
The Issue The issue to be determined is whether the infant, Miguel Nunez, Jr. (Miguel Jr.), suffered a birth-related neurological injury as that term is defined by section 766.302, Florida Statutes (2017).
Findings Of Fact On March 15, 2018, Casandra Nunez gave birth to a baby boy named Miguel Jr. The birth certificate attached to the Petition for Benefits, and the medical records from St. Joseph’s supplied by Petitioners, indicate that Miguel Jr. weighed one pound, nine ounces, or 700 grams, at birth.
The Issue On August 28, 2017, Petitioners, Gayla Lavender and Timothy Lavender, as parents and natural guardians of Timothy Ryan Edward Lavender (Timothy), a minor, filed a Petition for Benefits Pursuant to Florida Statute Section 776.301 et seq. (Petition) with the Division of Administrative Hearings (DOAH) for a determination of compensability under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). The Petition named Karen Bruder, M.D., as the physician who provided obstetric services for the birth of Timothy at Tampa General Hospital, in Tampa, Florida, on October 25, 2009. DOAH served a copy of the Petition to NICA on September 18, 2017. Karen L. Bruder, M.D., was served with a copy of the Petition, and filed a Petition to Intervene on October 16, 2017. DOAH sent Tampa General Hospital a copy of the Petition via certified mail on September 15, 2017. On April 3, 2018, NICA filed a Motion for Summary Final Order, requesting that a summary final order be entered finding that the claim was not compensable because Timothy did not meet the requisite minimum statutory birth weight as required by section 766.302, Florida Statutes. Neither Petitioner nor Intervenor Karen L. Bruder, M.D., filed a response to the Motion for Summary Final Order.
Findings Of Fact Timothy was born at Tampa General Hospital, in Tampa, Florida, on October 25, 2009. He was a single gestation. NICA attached to its motion the affidavit of the Custodian of Records for Tampa General Hospital, and nine pages of medical records for Timothy. The medical records show that Timothy’s birth weight was less than 2,500 grams. Specifically, the records show that his birth weight was 1,980 grams. A review of the file reveals that no contrary evidence was presented to dispute the medical records from Tampa General Hospital showing that Timothy’s birth weight was less than 2,500 grams.
