The Issue At issue in the proceeding is whether Ava Katherine Nagy, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Thomas Nagy and Dawn Nagy are the parents and natural guardians of Ava Katherine Nagy, a deceased minor. Ava was born a live infant on November 20, 1998, at South Broward Hospital District, d/b/a Memorial Regional Hospital, a hospital located in Broward County, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Ava was Susan Davila, M.D., who was at all times material hereto a "participating physician" in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(2), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan, when the proof demonstrates, more likely than not, that the infant suffered 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."1 Here, NICA and the Intervenors are of the view that Ava suffered a "birth- related neurological injury," as defined by the Plan, and request that the claim be accepted as compensable. Petitioners, however, are of the view that Ava did not suffer a "birth-related neurological injury" and request that the claim be rejected so they may pursue their civil remedies. Ava's birth and subsequent development Mrs. Nagy presented at Memorial Regional Hospital at approximately 6:00 a.m., November 20, 1998, for induction of labor. Apart from being slightly post-date (with an EDC of November 16, 1998), Mrs. Nagy's prenatal course had been uncomplicated, and on admission fetal heart rate was noted within normal limits (at 140-150 beats per minute) and positive fetal movements were reported. Mrs. Nagy's labor progress was slow, but steady, and external fetal monitoring reflected a normal fetal heart rate throughout the course of labor. At about 5:30 p.m., Mrs. Nagy began to push and at 8:00 p.m., with arrest of descent noted, Dr. Davila attempted a vacuum assisted delivery. According to the records, two pulls were made without success, and Mrs. Nagy was transferred to the operating room for delivery by cesarean section. Ava was delivered by cesarean section at 8:43 p.m. On delivery, Ava was noted to be pale, with poor perfusion, and her heart sounds were noted as distant. Ava was warmed, dried, and stimulated; suctioned by catheter; and offered free-flowing oxygen by mask. Apgar scores were noted as 6 at one minute and 7 at five minutes. The Apgar scores assigned to Ava 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, Ava's Apgar score totaled 6, with heart rate being graded at 2, and respiratory effort, muscle tone, reflex irritability, and color being graded at 1 each. At five minutes, Ava's Apgar score totaled 7, with heart rate and respiratory effort being graded at 2 each, and muscle tone, reflex irritability, and color being graded at 1 each. Ava was transferred to the neonatal intensive care unit (NICU), where she was admitted at 8:52 p.m., and placed in a preheated isolate. Assessment on admission evidenced a temperature of 975, pulse of 140, respiratory rate of 64, and blood pressure of 43/23/33. Abnormalities noted included a bruised scalp; boggy occipital area, with possible cephalohematoma ("a subperiosteal hemorrhage limited to the surface of one cranial bone, a usually benign condition seen frequently in the newborn as a result of bone trauma");2 pink, cyanotic skin color, as well as pale mouth and lips; and distant heart sounds. Preliminary diagnosis was hypovolemia ("abnormally decreased volume of circulating fluid (plasma) in the body").3 "UVC were placed by Dr. [Mesfin] Afework, the [neonatalogist], . . . admission labs obtained, [and] x-ray called." Over the next half-hour, Ava's blood pressure dropped and she was started on saline bolus and sodium bicarbonate. When she failed to improve, Ava was started on albumin and dopamine drip. Notwithstanding, at 10:45 p.m., Ava was in respiratory failure, and she was intubated and placed on a respiratory. Dr. Afework's physical examination at approximately 10:30 p.m., noted a temperature of 925, pulse rate of 110, respiratory rate of 64, and blood pressure of 43/23/33. Abnormalities noted were a pale infant, with poor perfusion; a boggy occipital area, with suspected bleed; distant heart sounds; and poor peripheral pulses. Neurological assessment revealed a limp infant, with reduced movement. Dr. Afework's diagnosis included hypotension/shock, hypovolemia, and subgaleal bleed (bleeding between the skull and the scalp). His plan of treatment included volume expansion, correction of her acidotic state, and transfusion with packed red blood cells. Subsequent laboratory results revealed a low hematocrit, consistent with internal bleeding. Ava was not responsive to volume replacement, sodium bicarbonate for acidosis, or dopamine to maintain her blood pressure; she continued to deteriorate and bleed internally; and by 3:00 a.m., November 21, 1998, she was in cardiogenic shock. At the time, Dr. Afework noted a diagnosis of "persistent acidosis/cardiogenic shock" and that trial of ECMO (Extracorporeal Membrane Oxygenation) was the only chance, albeit a slim chance, she had for survival. Ava was placed on ECMO at approximately 4:50 a.m. Unfortunately, due to an anticoagulant used to prevent clotting during the procedure, she began to bleed from her mouth, and bleeding increased under her scalp and into her neck. Due to the active bleeding and persistent acidosis dispute sodium bicarbonate drip, discontinuation of ECMO was recommended. Moreover, due to Ava's poor chance of recovery, her physician also recommended that conventional therapy (such as mechanical ventilation) not be resumed. When the parents were informed that Ava had not responded to ECMO treatment, and that she had a terminal condition ("caused by injury, disease, or illness from which, to a reasonable degree of medical certainty, there is no reasonable probability of recovery and which may be expected to cause death") they consented to withdrawing and withholding life prolonging procedures. Parental consents were signed at 10:05 a.m., ECMO was clamped at 10:07 a.m., and Ava was pronounced dead at 10:45 a.m., November 21, 1998.4 The cause and timing of the injury which led to Ava's neurologic insult and death Here, it is not subject to serious debate that, at delivery, Ava received an injury, a subgaleal hemorrhage, caused by the traumatic application of the vacuum extractor and that the hemorrhage continued, and became more critical, resulting in the pathophysiology of events (including hypovolemia, hypoprofusion, hypotension, and the clinical appearance of cardiogenic shock) which followed. Dr. Robert F. Cullen, Jr., a pediatric neurologist, whose opinions were offered on behalf of Petitioners, described the pathophysiology of events which ensued, including brain injury, as follows: Q. So it was the initial trauma which caused the bleeding, which then caused the other sequela . . . [as well as] oxygen deprivation to the brain, correct? A. It was trauma to the skull that produced anemia . . . [a consequence of hypovolema], hypotension, hypoprofusion, ischemia, cardiogenic shock, ultimately deprivation of oxygen to the brain and death. That's the sequence of events that continues to occur over the 14 hours after the child's birth. * * * Q. The metabolic acidosis in this case . . . would be evidence of an injury to the brain, correct, sir? * * * A. I think that the acidosis and the progressively developing base excess would be indicative of brain injury and systemic injury to multiple tissues. Q. Including the brain, sir? A. Including the brain but that was progressive throughout the rest of the night and the following morning. Q. You can't tell at what time that occurred, can you, sir? A. I can tell you at midnight it [pH] was 6.83 so by that time there was certainly injury. * * * [Q.] Do you have an opinion as to whether this baby at any time suffered brain damage and, if so, when? * * * A. I think that this baby was suffering brain damage during this 14-hour spectrum. I think it became more apparent after a few hours when the baby's blood pressure -- and we're in a picture of cardiogenic shock, but I can't give you the minute at which it occurred, no. It's a sequence of events that continue to compound themselves. Q. So when I asked you when, that's generally the best you can do with the information that you have? You can't actually pinpoint it? A. I can't give you a time, no. Q. It was an ongoing process in your opinion. A. It was an ongoing process that became progressively worse, yes. * * * [With regard to the significance of Ava's neurologic insult], this child did not have permanent and substantial mental impairment within the hour of delivery, and that permanent and substantial mental and physical impairment developed over the ensuing hours as a result of the hemorrhage in the subgaleal space and the other pathophysiological events that occurred. Q. You agree that there was permanent physical and mental impairment but it wasn't within the first hour post-delivery; is that what your testimony is? * * * A. I've said yes because the baby died as a result of this injury so that's as permanent as you can get. What I'm saying is that there's an ongoing sequence of events that produces a point of no return. That is not within the first hour, even though there may be some cellular injury occurring at that time, and it really doesn't become manifest for a number of hours. Can I give you a fixed time during that 14 hours? No. Dr. Michael Duchowny, also a pediatric neurologist, whose opinions were offered on behalf of NICA, agreed with Dr. Cullen's observations as to the cause, timing, and nature of Ava's injury, as well as the pathophysiology of the events that ensued. As Dr. Duchowny observed: . . . this baby's demise was a direct result of a sequence that began intrapartum and that was related to the vacuum extraction. Specifically that was related to [a subgaleal] hemorrhage and then the subsequent complications of hemorrhage [hypovolemia, hypotension, and hypoprofusion] which led to brain damage [most likely hypoxic or ischemic in nature], systemic collapse, and death. Dr. Cullen's and Dr. Duchowny's opinions concerning the cause, timing, and nature of Ava's injury, as well as their opinions regarding the nature of the rapidly progressive catastrophe that ensued, are grossly consistent with the record, are founded on a logical premise, and are accepted as credible and persuasive. Given the record, it may be resolved that Ava received a mechanical injury (a subgaleal hemorrhage, resulting from the traumatic application of the vacuum extractor) during the course of delivery. The record further reveals that the hemorrhage continued unabated, resulting in hypovolemia, hypotension, hypoprofusion, ischemia, cardiogenic shock, deprivation of oxygen to the brain, systemic collapse, and death. Finally, the record reveals that, while the effects of the hemorrhage may not have produced a significant brain injury during labor or resuscitation in the immediate post-delivery period, brain damage was progressive and became evident at least by midnight, if not by 10:30 p.m., and progressively worsened until a point in time (described by Dr. Cullen as "a point of no return"), prior to Ava's death or her removal from life support, when the injury was so profound that the resulting impairment (mental and physical) could reasonably be described as permanent and substantial.
Findings Of Fact Maliyah Jones was born on May 28, 2013, at North Florida Regional Medical Center located in Gainesville, Florida. Maliyah weighed 3,870 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Maliyah. In a medical report dated September 15, 2015, Dr. Willis opined as follows: In summary, delivery was complicated by a shoulder dystocia, which resulted in an Erb’s palsy. Although depressed at birth, the baby had a good response to resuscitation (bag and mask ventilation) with an Apgar score of 9 at five minutes. The baby’s condition was stated to be stable on admission to the NICU. The newborn hospital course was complicated only by the Erb’s palsy. Discharge was on DOL 2. 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 Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Maliyah and to review her medical records. Dr. Sigurdardottir examined Maliyah on October 28, 2015. In a medical report regarding her independent medical examination of Maliyah, Dr. Sigurdardottir opined as follows: Summary: Maliyah is a 2-1/2 year-old born at term after an uncomplicated pregnancy with shoulder dystocia resulting in a near complete Erb’s palsy. She has required 2 surgical procedures and does have significant disability as per the Mallet scale and is likely to need more surgical procedures to enhance her functional abilities in her right upper extremity. She is, however, functioning well from a cognitive level and her gross motor skills are otherwise intact. In review of the medical records available, it seems clear that her right brachial plexopathy did occur at birth due to mechanical injury. In light of her favorable cognitive and language development our findings are the following: Result as to question 1: The patient is found to have a permanent physical impairment, but to have none or mild delays in language development. She is therefore not found to have a substantial mental and physical impairment at this time. * * * In light of the above-mentioned details, Maliyah’s restricted motor disability and near normal cognitive development, I do not recommend Maliyah to be included into the Neurologic Injury Compensation Association Program and would be happy to answer additional questions or review further medical records. In light of her favorable mental and developmental state it is doubtful that additional records would alter the outcome of our review. She is not felt to have a substantial mental impairment at this time. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was no 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. Dr. Willis’ opinion is credited. There are no contrary expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Maliyah is not found to have a substantial mental impairment at this time. Dr. Sigurdardottir’s opinion is credited.
The Issue At issue in this proceeding is whether Melissa Sara Spence, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Angela Hill and Richard Spence are the parents and natural guardians of Melissa Sara Spence (Melissa), a minor. Melissa was born a live infant on January 24, 1996, at Memorial Regional Hospital, a hospital located in Hollywood, Florida, and her birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Melissa was Isabel Otero, M.D., who was, at all time 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. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimants demonstrate, more likely than not, that the infant suffered an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Melissa's presentation On April 21, 1998, following the filing of the claim for compensation, Melissa was examined by Michael Duchowny, M.D., a physician board-certified in pediatrics and neurology, with special competence in child neurology. Dr. Duchowny's evaluation revealed the following: HISTORY ACCORDING TO MR. AND MRS. SPENCE: The parents began by stating that Melissa's main problem is that she "communicates well, but her sentence structure is not real good." She apparently knows words and can speak in full sentences, but often tends to communicate her thoughts by gesture. She has not been in a course of speech therapy. Her parents believe that her hearing and vision are normal, although they have not been formally tested. There is no indication that Melissa has loss (sic) any language ability and in fact she began speaking at a year, the same time that she walked independently. Mr. and Mrs. Spence believe that Melissa's motor development has gone well. All of her motor milestones were essentially accomplished on time. She is described as an active and well-coordinated toddler. * * * PHYSICAL EXAMINATION reveals Melissa to be alert, pleasant and cooperative. Her weight is 32-pounds and height 37-inches. The skin is warm and moist. There is one cafe-au-lait spot on the right leg. There are no dysmorphic features and no other neurocutaneous stigmata. The head circumference measures 51.7 cm and the fontanelles are closed. The right ventriculoperitoneal tubing is palpated and an abdominal scar is noted. There are no significant cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. Melissa's NEUROLOGIC EXAMINATION reveals her to be alert and to have an age appropriate stream of attention. She displays a well-developed level of curiosity, but is fully cooperative and clearly enjoys the social interaction accompanying the evaluation. She spoke in phrases and short sentences. She was able to carry out one and two step commands. There is good central gaze fixation with conjugate following movements. The pupils are 3 mm and react briskly to direct and consensually presented light. There are no fundoscopic anomalies. The tongue and palate move well. There is no drooling. Motor examination reveals symmetric strength, bulk and tone. There are no adventitious movements, focal weakness or atrophy. Melissa has a full range of motion. She has well-developed gross and fine motor coordination. She is able to grasp objects with either hand, but does not display a lateralized preference. Transferring is accomplished readily and she has well- developed thumb/finger opposition. The deep tendon reflexes are 2+ and symmetric. The plantar responses are downgoing. Station and gait are age appropriate with symmetric arm swing. The neurovascular examination is unremarkable. There are no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. The spine is straight. . . . In Dr. Duchowny's opinion, which is uncontroverted and credible, Melissa's neurologic examination revealed only a mild delay in expressive language, most likely developmentally based, which is most likely to fully remit over time. As for her physical presentation, Melissa's neurologic examination was entirely normal, without any evidence of physical or motor impairment. Moreover, it was Dr. Duchowny's opinion, which was shared by Charles Kalstone, M.D., a board-certified obstetrician, that the records relating to Melissa's birth do not reveal any untoward events during the course of labor, delivery, or the immediate post-delivery period which would have caused or contributed to neurological injury. In sum, the proof fails to demonstrate that Melissa suffered any injury to her brain or spinal cord during the birth process, much less a permanent and substantial, mental and physical impairment.
The Issue At issue in this proceeding is whether Jenna Kemper, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Nancy Kemper and Jeffery Kemper are the parents and natural guardians of Jenna Kemper (Jenna), a minor. Jenna was born a live infant on March 27, 1996, at Lakeland Regional Medical Center, a hospital located in Lakeland, Polk County, Florida, and her birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Jenna was Keith Bernard Paredes, 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. Jenna's delivery at Lakeland Regional Medical Center on March 27, 1996, was apparently difficult due to her large birth weight, and when delivered she was noted to have suffered an injury to her upper right brachial plexus, an Erb's palsy, which affected the range of motion on the upper right extremity, and is evidenced by diminished range of motion at the right elbow and an inability to freely elevate the right arm above neutrality at the shoulder. Jenna's brachio-plexus injury may reasonably be described as mild to moderate, and her impairment is most likely permanent. A brachial plexus injury, such as that suffered by Jenna during the course of her birth, is not, anatomically, a brain or spinal cord injury, and does not affect her mental abilities. Moreover, apart from the brachial plexus injury, Jenna was not shown to have suffered any other injury during the course of her birth. Consequently, the proof fails to demonstrate that Jenna suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during the course of labor or delivery, and further fails to demonstrate that she is presently permanently and substantially, mentally and physically impaired.
The Issue Whether Hunter Lewis, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Petitioners, Angel Lewis and Jerry Lewis, are the parents and natural guardians of Hunter Lewis, a minor. Hunter was born a live infant on June 2, 2000, at Tallahassee Memorial Hospital, a hospital located in Tallahassee, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Hunter's birth was Arthur S. Clements, 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.1 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 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. The cause and timing, as well as the significance of Hunter's neurologic impairment To address the cause and timing of Hunter's neurologic impairment, as well as its significance, Petitioners offered selected medical records relating to Hunter's birth and subsequent development (Petitioners' Exhibit 1); the Verified Medical Opinion of Richard J. Inwood, M.D., a neonatologist (Petitioners' Exhibit 2); and the deposition of Donald C. Willis, M.D., an obstetrician (Petitioners' Exhibit 3). In turn, Respondent offered the deposition of Paul R. Carney, M.D., a pediatric neurologist (Respondent's Exhibit 1). As for the significance of Hunter's impairments, it was Dr. Carney's opinion, based on the results of his neurologic evaluation of November 21, 2002, that Hunter's assessment "indicates substantial cognitive and language impairment," but "very mild long tract neurological findings." Dr. Carney described Hunter's developmental delay as static, as opposed to progressive, and he ventured no opinion as to the cause or timing of Hunter's impairments. As for Dr. Inwood, he was of the opinion that: . . . Hunter Lewis [ ] was delivered by induced labor prior to 38 weeks and had immature lungs. Because of the immaturity of the lungs he suffered hypoxic insult and, to a reasonable degree of medical probability, sustained significant neurological injury. This injury would not have occurred had his delivery been delayed until he had demonstrated lung maturity. His problems are not congenital and did not occur during labor or delivery, but rather after delivery . . . . Notably, Dr. Inwood did not further address Hunter's neurologic injury or, stated otherwise, did not speak to whether in his opinion, Hunter suffered both cognitive and motor impairment and, if so, the significance of each. As for Dr. Willis, he was of the opinion that the medical records revealed no evidence of oxygen deprivation or other trauma associated with labor, delivery, or resuscitation immediately following Hunter's birth. Significantly, the medical records are consistent with the opinions of Doctors Inwood and Willis that the cause and timing of Hunter's impairment was not associated with labor, delivery, or resuscitation, and with the opinion of Dr. Carney that, while Hunter may demonstrate substantial cognitive delay, his motor impairment is mild. Given the record, it must be concluded that the proof demonstrated, more likely than not, that Hunter's impairments were not occasioned by 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 the hospital, and that he is not permanently and substantially physically impaired.
Findings Of Fact The Amended Petition named Dr. Tracey Molrine as the physician providing obstetric services at Eileen’s birth on August 30, 2014. Attached to the Motion for Summary Final Order is an affidavit of NICA's custodian of records, Tim Daughtry, attesting to the following, which has not been refuted: One of my official duties as Custodian of Records is to maintain NICA’s official records relative to the status of physicians as participating physicians in the Florida Birth-Related Neurological Compensation Plan who have timely paid the Five Thousand Dollar ($5,000.00) assessment prescribed in Section 766.314(4)(c), Florida Statutes, and the status of physicians who may be exempt from payment of the Five Thousand Dollar ($5,000.00) assessment pursuant to Section 766.314(4)(c), Florida Statutes. Further, I maintain NICA's official records with respect to the payment of the Two Hundred Fifty Dollar ($250.00) assessment required by Section 766.314(4)(b)1., Florida Statutes, by all non-participating, non-exempt physicians. * * * As payments of the requisite assessments are received, NICA compiles data in the “NICA CARES” database for each physician. The “NICA CARES physician payment history/report” attached hereto for Dr. Tracey Molrine [sic] indicates that in the year 2014, the year in which Dr. Molrine [sic] participated in the delivery of Eileen Mares, as indicated in the Petitioners’ Petition for Benefits, Dr. Morline [sic] did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth- Related Neurological Injury Compensation Plan. Further, it is NICA’s policy that if a physician falls within the exemption from payment of the Five Thousand Dollar ($5,000) assessment due to their status as a resident physician, assistant resident physician or intern as provided in Section 766.314(4)(c), Florida Statutes, annual documentation as to such exempt status is required to be provided to NICA. NICA has no records with respect to Dr. Molrine [sic] in relation to an exempt status for the year 2014. To the contrary, the attached "NICA CARES physician payment history/report shows that in 2013 [sic], Dr. Molrine [sic] paid the Two Hundred and Fifty Dollar ($250) assessment required by Section 766.314(4)(b)1., Florida Statutes, for non-participating, non-exempt licensed physicians. The physician payment history/report for Dr. Tracey supports Mr. Daughtry’s affidavit. Petitioners acknowledge in their Motion in Partial Support of Respondent’s Motion for Final Summary Order that the requirement of section 766.309(1)(b), that obstetric services be provided by a participating physician, has not been satisfied. At the time of the birth of Eileen, Dr. Tracey was not a participating physician in the Plan.
The Issue At issue is whether Joshua P. Hammon, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Joshua P. Hammon (Joshua) is the natural son of Jacqueline L. Blalock. He was born a live infant on March 24, 1992, at Tampa General Hospital, a hospital located in Tampa, Hillsborough County, Florida, and his birth weight was in excess of 2,500 grams. Joshua was delivered by a resident physician of Tampa General Hospital, with Michael Parsons, M.D., attending and supervising. Dr. Parsons was, at all times material hereto, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. During the course of labor, delivery or resuscitation in the immediate post-delivery period in the hospital, Joshua received an injury to the brain caused by oxygen deprivation and mechanical injury. At issue here is whether such injury rendered Joshua permanently and substantially mentally and physically impaired. Addressing first the issue of mental impairment, the proof demonstrates that the insult Joshua received to his brain at birth did impact his mental abilities, and contributed to a delay in his cognitive development. The effect of such insult has, however, resolved over time, and in the opinion of Michael S. Duchowny, M. D., a pediatric neurologist associated with Miami Children's Hospital, whose opinion is credited, Joshua does not currently suffer a permanent and substantial mental impairment, and his subsequent mental development will be normal or near normal. Having resolved that Joshua's injury did not result in permanent and substantial mental impairment, it is not necessary to address the degree of physical impairment, if any, Joshua suffered as a consequent of the brain injury he sustained at birth.
The Issue Whether Darius Jerome Durant has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in their claim for compensation. 1/
Findings Of Fact Darius Jerome Durant is the natural son of Jerome Durant and Marie Deneen Durant. He was born on August 21, 1991, at Winter Haven Hospital, in Winter Haven, Florida, and his birth weight was in excess of 2500 grams. Darius was delivered by Peter Verrill, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan. The neurological examinations of Darius reveal that he suffers from a "mild" right Erb's palsy related directly to an injury to the right brachial plexus he suffered during the course of delivery. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury. Moreover, the impairment from which he suffers is not substantial in nature and, while suffering some motor developmental delay, he was not shown to have suffered any intellectual deficit due to any birth-related complications.
