The Issue The issue in this case is whether Christopher Walker-Lawrence 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 Christopher Walker-Lawrence was born on November 29, 2015, at Community Health Systems, Inc., d/b/a Bayfront Health St. Petersburg, in St. Petersburg, Florida. Christopher 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 Bayfront provided to NICA. At all times material, both Bayfront and Dr. Reyes were active members under NICA pursuant to section 766.302(6) and (7). Christopher was delivered via Caesarean section by Dr. Reyes, who was a NICA-participating physician, on November 29, 2015, at 12:41 p.m. Petitioner contends that Christopher suffered a birth- related neurological injury and seeks compensation under the Plan, under protest. Respondent contends that Christopher 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 C. Willis, M.D. (Dr. Willis), as its medical expert specializing in maternal-fetal medicine and pediatric neurology, and pediatric neurologist, Dr. Laufey Y. Sigurdardottir. Upon examination of the pertinent medical records, Dr. Willis opined in relevant part that: there was no loss of oxygen during labor. The significant acidosis documented by the cord blood gas indicates the baby suffered oxygen deprivation prior to delivery, during the eight hour period of decreased fetal movement. Although there may have been some ongoing oxygen deprivation during the actual delivery and continuing into the immediate post-delivery period, it is more likely the bulk of the brain injury had already occurred prior to birth. The oxygen deprivation that occurred prior to delivery resulted in brain injury. Dr. Willis’s medical Report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that “Although there may have been some ongoing oxygen deprivation during the actual delivery and continuing into the immediate post-delivery period, it is more likely the bulk of the brain injury had already occurred prior to birth.” 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 Christopher 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 Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), as its medical expert in pediatric neurology. Upon examination of the child and the pertinent medical records, Dr. Sigurdardottir opined: Patient is a 2-year-old boy with history of moderate hypoxic ischemic encephalopathy and scattered intraparenchymal and intraventricular hemorrhage noted after cooling was completed. Initial abnormalities were noted on neurologic exam but he has made a full recovery and has normal development at this time. Result as to question 1: Christopher is found to have no delays in motor and/or mental abilities. Result as to question 2: In review of available documents, there is evidence of a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury. This is felt to be labor/birth related. Result as to question 3: The prognosis for full motor and mental recovery is excellent and the life expectancy is full. In light of evidence presented I believe Christopher does not fulfill criteria of a substantial mental and physical impairment at this time. I do not feel that Christopher should be included in the NICA program for that reason. Dr. Sigurdardottir’s medical report is attached to her Affidavit. Her Affidavit reflects her ultimate opinion that “although there is evidence of a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury that is felt to be labor/birth related, Christopher Walker-Lawrence has made a full recovery and has normal development at this time. He has no delays in motor or mental abilities.” 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. The opinion of Dr. Sigurdardottir that Christopher did not suffer a substantial mental or physical impairment acquired in the course of labor or delivery is credited.
Findings Of Fact The parties have stipulated to the following facts. Iyonna Hugley was born on October 14, 2010, at 1950 hours at Wuesthoff Medical Center, Melbourne, Florida. Mark Sargent, M.D., provided obstetrical services during the delivery of Iyonna. Dr. Sargent is a participating physician in the Plan as defined in section 766.302(7). At birth, Iyonna weighed 2,347 grams and was delivered from a single gestation.
Findings Of Fact Elissa Delgado was born on September 27, 2010, at Baptist Hospital located in Miami, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Elissa. In a report dated December 12, 2014, Dr. Willis described his findings as follows: The mother was admitted to the hospital at 38 weeks with spontaneous rupture of the membranes. Delivery was by spontaneous vaginal birth. The birth weight of 2,550 grams (5 pounds 9 oz’s) was consistent with the prenatal ultrasound finding of fetal growth delay. This weight is below the 10% for gestational age. The newborn was not depressed. Apgar scores were 9/9. The baby was described as crying and alert after birth. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor and delivery, based on the mother’s hospital records. In an affidavit dated January 7, 2015, Dr. Willis confirmed his opinion as stated in his medical report and opined as follows: It is my opinion that the newborn was not depressed. Apgar scores were 9/9. The baby was described as crying and alert after birth. As such, it is my 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, based on the mother’s hospital records. 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 or delivery, and Petitioners have filed their Petition under Protest, stating that they are not claimants. Dr. Willis’ opinion is credited.
Findings Of Fact Gianna was born on August 20, 2017, at Traditions Hospital, located in St. Lucie County, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Gianna. In a medical report dated February 29, 2020, Dr. Willis summarized his findings and opined, in pertinent part, as follows: In summary, labor at term was complicated by an abnormal FHR tracing that required Cesarean section delivery. Umbilical cord blood gas pH of 7.04 would seem consistent [with] the FHR pattern prior to delivery. Although there was some acidosis at birth, cord pH and base excess were not substantial enough to likely result in significant brain injury. This would be consistent with Apgar scores of 9/9, suggesting no significant birth related depression or hypoxia. Head enlargement was noted at birth and head ultrasound within two hours of birth showed dilated ventricles, consistent with hydrocephaly. These findings were confirmed by subsequent MRI. It is most likely the brain injury occurred at some time in the prenatal period and not birth related. As stated above, the baby’s brain injury does not appear to be the result of oxygen deprivation or trauma during the birth process or immediate post delivery period. NICA retained Luis E. Bello-Espinosa, M.D. (Dr. Bello), a medical expert specializing in pediatric neurology, to examine Gianna and to review her medical records. Dr. Bello examined Gianna on February 25, 2020. In a medical report dated February 25, 2020, Dr. Bello summarized his examination of Gianna and opined, in pertinent part, as follows: Gianna is a 2 1/2 year old girl born at term via C- section noticed at immediately after birth to have severe megalencephaly, and clinical signs of severe increased intracranial pressure. An urgent head ultrasound demonstrated bilateral ventriculomegaly, right intraventricular hemorrhage, and suspicion of agenesis of the corpus callosum. MRI of brain at Miami Children’s hospital done on day 1 of life showed severe enlargement of the third and lateral ventricles. Transependymal flow of cerebrospinal fluid was seen around the lateral ventricles being worse in the left cerebral hemisphere and extending to a greater degree in the left occipital and parietal lobes. Extensive intraventicular hemorrhage is seen with large clot identified in the right later ventricle. Her subsequent course required 7-VP shunt related surgeries at Miami Children’s hospital but since she was discharged at 7-month of age she had not had any seizures [or] other neurological related events. Gianna’s neurological examination today revealed she still has enlarged head, as well as left sided hemiparesis with upper motor neuron signs, in addition to cognitive dysfunction and stereotypic behavior as seen in children with autism. She has a VP shunt in place, but no longer evidence of decompensated intracranial pressure. * * * In reviewing all the available documents, the evolution of her symptoms, the birth findings, the acute brain ultrasound and acute brain MRI changes, it is evident that Gianna clinical findings are the result of a prenatal condition, are not due to a birth injury, and not due to oxygen deprivation of the brain at birth. * * * Considering the clinical presentation, I do feel that there is no evidence to recommend Gianna is included in 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. Willis that it is unlikely that any significant oxygen deprivation occurred prior to the birth of Gianna. Dr. Willis’s opinion is credited. There are no expert opinions filed that are contrary to Dr. Bello’s opinion that Gianna should not be considered for inclusion in the NICA program. Dr. Bello’s opinion is credited. Petitioner, despite attending the April 23, 2020, telephonic status conference, and agreeing to the April 29, 2020, Joint Response to Scheduling Order, which states, in part, that “NICA is of the opinion that the issues can be resolved by Motion for Summary Final Order, which it intends to file in the near future[,]” has failed to respond to the Motion or the undersigned’s Order to Show Cause.
Findings Of Fact By stipulation filed January 3, 1994, petitioners and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Fla. Stat., a claim was filed on behalf of the above-styled infant against NICA on behalf of VENISE FERDINAND, MARIE VIRGILE and MANES FERDINAND (the "Petitioners") for benefits under Chapter 766.301-766.316 Fla. Stat. That a timely filed Claim for benefits complying with the requirements of Section 766.305, Fla. Stat., was filed by the Petitioners and a timely Notice of Non- Compensability Setting forth that NICA denied the claim was filed on behalf of NICA. That infant, VENISE FERDINAND, was born at Broward General Medical Center on April 1, 1992, and Broward General Medical Center was a licensed Florida Hospital and the attending physician, Joseph Nicaisse was a participating physician within the meaning of Chapter 766, Fla. Stat. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. Section 766.302(2), Fla. Stat. states that "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. The parties agree that VENISE FERDINAND suffers from a left brachial plexus palsy injury. A brachial plexus palsy injury is not an injury to the brain or spinal cord and further, does not result in any mental injury. The parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., including in particular his reports dated February 10, 1993, March 12, 1993 and November 15, 1993. Copies of these reports have been attached hereto and incorporated herein respectively as Exhibits 1, 2 and 3. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply. Based upon this stipulation, the parties request the hearing officer to rule on Petitioners' claim based upon this Stipulation, and the attached medical records. The neurological examinations of Venise Ferdinand reveal that she suffered a left Erb's palsy directly related to the left brachial plexus injury she received at birth. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury and, further, does not result in mental injury. Moreover, Venise Ferdinand's mental functioning is normal and not impaired due to any birth related complications.
The Issue The issue in this case is whether Oliver Bender has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Tyler Dyal is the natural mother of Oliver Bender. Oliver was born a live infant at Orange Park Medical Center in Orange Park, Florida, on September 26, 2011. Orange Park Medical Center was a hospital licensed in Florida on September 26, 2011. The physician providing obstetrical services at the time of Oliver’s birth was Dr. Edelenbos. At all material times, Dr. Eric Edelenbos, North Florida Obstetrical and Gynecological Associates, P.A., was a participating physician in the Plan. Oliver weighed in excess of 2,500 grams at birth. None of the parties dispute that Oliver sustained an injury to the brain caused by oxygen deprivation during resuscitation in the immediate post-delivery period. Donald C. Willis, M.D., NICA's expert, opined: In summary, labor was complicated by an abnormal FHR pattern and resulted in a depressed newborn. Umbilical cord blood gas was consistent with birth hypoxic with a pH of 6.87. The newborn hospital course was complicated by respiratory depression, apnea episodes and seizures. MRI identified hypoxic ischemic encephalopathy. 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 brain injury. I am not able to comment about the extent of the brain injury. At the time of Oliver’s birth, his Apgar scores were 3 at one minute, 6 at five minutes, and 8 at ten minutes, and he required resuscitation in the delivery room. His arterial cord gas pH was 6.872 with a base deficit of over 20, indicating that he had metabolic acidosis and had experienced hypoxia during labor and delivery. Intubation was attempted but was not successful; however, Oliver improved and did not require intubation thereafter. Oliver began having dusky spells around 24 hours of age with reported “staring” and tight tone. He also demonstrated jitteriness and irritability. By September 28, 2011, Oliver had begun to have seizures, which were treated with Phenobarbital. Oliver was transferred to Wolfson’s Children’s Hospital, where he continued to have stiffening of his extremities with arching and eye staring. On September 29, 2011, Oliver had an MRI which showed the following: FINDINGS: There are felt to be diffusion abnormalities present. These are more conspicuous on the B200 (more heavily diffusion weighted) images. These involve predominantly the gray matter involving the left frontoparietal region and the left MCA distribution. In addition there is slight restricted diffusion in the basal ganglia bilaterally. There is restricted diffusion along the calcarine fissures greater on the right than the left. There is a small amount of restricted diffusion in the right frontal lobe along the inferior aspect of the sylvian fissure and extending slightly superiorly. There is also slight restricted diffusion bilaterally felt to localize to the gray matter along in the gray matter of the occipital tips. The cerebellum appears preserved. These diffusion abnormalities are accompanied by subtle T2 prolongation of FLAIR images as well. There is otherwise no space-occupying lesion, mass effect or midline shift. There is no hydrocephalus. The corpus callosum appears well formed. The intracerebral flow voids on the T2 cube images appear preserved and symmetric. The patient appears to have a complete circle of Willis. IMPRESSION Areas of restricted diffusion in distribution as described above. The study discussed with Dr. Driscoll and overall the findings are felt to be consistent with hypoxic ischemic encephalopathy. No obvious focal vascular abnormalities are seen on the T2 cube images. As such this is likely secondary to somewhat global ischemic etiology rather than embolic phenomenon. There is no evidence of hemorrhage. Oliver was discharged from Wolfson’s Children’s Hospital on October 5, 2011, with no further seizure activity being noted. He was continued with Phenobarbital and still remains on the medication. When Oliver was five weeks old, he was seen by Dr. Alana Salvucci at Nemours. Dr. Salvucci’s assessment of Oliver revealed the following: Since Oliver has been at home, he has made good developmental progress. He is making eye contact and tracks. He startles to loud sounds. He moves both of his extremities equally and spontaneously. He smiles. Overall, his grandmother describes him as stiff, tending to hold his hands in a fisted position, but will open and grasp objects. He is on phenobarbital 2 mL twice a day, which is approximately 3.5 mg/kg per day. He has had no further events of stiffening concerning for seizure. However, he does have episodes where he stares off, typically to the right with no change in tone, lasting 1 to 2 minutes, occurs at least once a day. There are several times where caretakers can get his attention; however, most of the time, he will not respond to tactile or verbal stimuli. There are no associated oral automatisms or eye flutter. * * * Oliver has overall been doing well with no stiffening or jerking episodes, he has been smiling, and tracking and milestones have been appropriate for his age. Dr. Salvucci recommended that Oliver’s mother and grandmother videotape Oliver’s episodes of staring off and send the tape to Nemours for review. She arranged for a prolonged, at least four-hour, video EEG in hopes of capturing the staring episodes described by Oliver’s mother and grandmother. On December 29, 2011, Oliver had a four-hour, sleep-deprived EEG, which was normal with no clinical events during the EEG recording. No evidence was presented that established Oliver’s mother followed Dr. Salvucci’s recommendation to videotape one of Oliver’s staring episodes. On March 22, 2012, Oliver returned to Nemours and was seen by Dr. Harry Abrams. Dr. Abrams noted that Oliver had made good developmental progress since his discharge from Wolfson’s Children’s Hospital. Oliver had begun sitting up in a tripod position. He used both hands equally, reaching for objects and transferring objects. According to his mother, Oliver’s stiffness had significantly improved, but Oliver still had tight heel cords, making him tend to stand on his toes when bearing weight. Although not babbling, Oliver was making good eye contact, smiling, and tracking. During the visit, Oliver’s mother reported that at least twice a day Oliver had episodes where his arms stiffened and flexed at the elbow and that he was having jerking movements. She indicated that Oliver had been staring off, and there appeared to be transient episodes of unresponsiveness that lasted several seconds. Dr. Abrams recommended that an eight-hour video EEG be done in hopes of capturing one of the events with the upper extremity jerking. This recommendation was not followed. On January 17, 2013, Oliver was admitted to Wolfson’s Children’s Hospital for seizures accompanying a fever and cough. The seizure was a single episode in which Oliver was unresponsive for one minute and nonresponsive to verbal or tactile stimulation. The seizure caused grogginess, and Oliver slept afterwards. The seizure was characterized as generalized and staring. The postical symptom was confusion. His mother reported that this was the first seizure that Oliver had had since he was an infant. Oliver was treated with Klonopin and discharged the next day in stable condition. Oliver visited Dr. Abrams on April 16, 2013. Dr. Abrams noted that Oliver was doing well. Oliver had no significant evidence of delay. Oliver’s family advised that Oliver had done well, but at times Oliver would stare off and at other times, when he was drowsy or sleepy, he would put his fingers in his ears and shake his head back and forth. Dr. Abrams recommended that Oliver’s dosage of Phenobarbital begin to be tapered. In May 2013, Oliver had another seizure. Again, this seizure was accompanied by a high fever. His mother was about to give him Tylenol when Oliver suddenly stiffened and jerked for several minutes. The episode stopped spontaneously. As a result, Oliver’s dosage of Phenobarbital was increased. Oliver has not had another episode similar to the one he had in May 2013. His mother and grandmother report that he continues to have episodes in which he stares off and becomes confused. However, he returns to baselines after the staring episodes. Oliver is an active child; he can run, walk, and play. He is able to throw a ball and can drive a power-wheel car by pushing the pedal to drive it. He plays with other children. Oliver likes to play with his Hot Wheels cars. He can pull off his hats, socks, and clothes. He is able to turn pages in a book, and he can stack blocks. Oliver scribbles on paper with pens, pencils, and crayons. He can feed himself with utensils and drinks from a sippy cup. He can also drink from a straw. He can put his arms inside his sleeves when he is being dressed. When asked to point to his body parts, including his eyes, ears, hair, feet, hands, and belly button, he is able to do so. As of October 15, 2013, Oliver could speak approximately eight single words meaningfully and had not spoken any two-word phrases. His speech development at that time was not age appropriate. However, Oliver is able to use nonverbal communications effectively. When he is hungry, he smacks his lips and holds out his hands, indicating that he wants something to eat. He is able to understand and carry out verbal requests. He makes good eye contact. He can identify objects in pictures such as a ball, airplane, and ice cream cone by pointing to the objects. He is not receiving any type of therapy, such as physical, occupational, or speech therapy. Respondent retained Raymond Fernandez, M.D., to evaluate Oliver. Dr. Fernandez is board-certified in pediatrics and neurology together with child neurology and has been practicing pediatric neurology for 37 years. Dr. Fernandez reviewed Oliver’s medical records and performed independent medical examinations on Oliver on September 25, 2012, and October 15, 2013. After Dr. Fernandez’s examination on September 25, 2012, he felt that it would be appropriate to reexamine Oliver in six to nine months in order to track his developmental progress before coming to a final conclusion. After his second evaluation, Dr. Fernandez summarized his evaluation as follows: There is no evidence at this time, of substantial mental and motor impairment due to oxygen deprivation sustained during labor and delivery. Oliver has made good progress with his fine and gross motor skills and at this time, there is no convincing evidence for spasticity or cerebral palsy that was noted earlier. There is no reason to anticipate any reversal or regression in his motor skills, strength, or coordination. Expressive speech development has been delayed, but he is improving at a steady pace and this trend should continue. Receptive language skills are also improving steadily. Delay in speech and language skills, even when improving, is sometimes an early indicator of later learning difficulty in the classroom setting. Whether or not this will prove to be a problem for Oliver remains to be determined. It is a potential problem that should not be insurmountable with appropriate input from his teachers. At the time of Dr. Fernandez’s examination on October 15, 2013, Oliver was able to run without falling and had no abnormality in his gait. Intervenor, Orange Park Medical Center, retained Trevor Resnick, M.D., to evaluate Oliver. He is board-certified in pediatrics and neurology with a special competence in child neurology. Dr. Resnick reviewed Oliver’s medical records and examined Oliver. He opined Oliver’s staring spells and resulting confusion were partial complex seizures. These seizures have not been confirmed with a video EEG and have been witnessed only by his family. However, given the long history of these episodes, more likely than not, the episodes are partial complex seizures. When Oliver experiences a staring episode and resulting confusion, he will return to his baseline condition and is able to carry on with the activities previously described. The episodes are transient in nature; thus, any physical or mental impairment that occurs during the episode is not permanent. Dr. Fernandez’s opinion that Oliver does not have a substantial, permanent physical and mental impairment is credited.
