Findings Of Fact Neha was born on May 15, 2012, at Broward General Medical Center, located in Fort Lauderdale, Florida. Neha weighed six pounds nine ounces at birth. NICA retained Michael S. Duchowny, M.D., as its medical expert in pediatric neurology. Dr. Duchowny examined Neha on March 20, 2013, and reviewed her medical records. In an affidavit dated April 24, 2013, Dr. Duchowny opined as follows: Neha’s neurological examination is significant only for a mild degree of hypontia coupled with very slight motor development delay. In other regards, she seems to be developing quite well and I suspect that her language development will progress on schedule. There are no focal or lateralizing findings to suggest structural brain damage. A review of medical records reveals that Neha was born by stat cesarean section at Broward General Hospital due to fetal bradycardia. She was delivered with a full body nuchal cord and a true knot that was removed at birth. There was evidence of severe metabolic acidosis-arterial blood gases drawn 11 minutes after birth revealed a pH of 6.66, PC02 of 162, P02 of 11, and base excess of -32. These values were improved on a repeat series drawn at 12:27 PM. Thick meconium was suctioned below the vocal cords and Neha was diagnosed with meconium aspiration syndrome. Seizures occurred several after birth and were treated with phenobarbital and phenytoin. As previously stated by the family, Neha was immediately enrolled in a general hypothermia protocol. Of significance, a brain ultrasound exam obtained on May 15 at 6:46 PM, was normal and an MRI scan of the brain obtained on May 23 (DOL #8) was also within normal limits. Neha’s examination today does not reveal either a substantial mental or motor impairment, findings are consistent with the lack of significant MRI findings. I believe that the hypothermia protocol in all likelihood was neuro-protective and more likely than not, contributed to Neha’s positive outcome. Given Neha’s favorable outcome, I believe that she should not be considered for inclusion within the NICA program. As such, it is my opinion that Neha Kannikal is not permanently and substantially mentally impaired nor is she permanently and substantially physically impaired due to oxygen deprivation or mechanical injury occurring during the course of labor, delivery or the immediate post-delivery period in the hospital during the birth of Neha Kannikal. A review of the file does not show any opinion contrary to Dr. Duchowny's opinion that Neha does not have a substantial and permanent mental and physical impairment due to lack of oxygen or mechanical trauma is credited.
Findings Of Fact Eleanor Breen Zayas was born on May 8, 2015, at University of South Florida Health, South Tampa Center, in Tampa, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Eleanor. In an affidavit dated October 28, 2016, Dr. Willis described his findings in pertinent part as follows: In summary, delivery was complicated by a prolonged FHR deceleration about 8 hours prior to delivery, maternal chrioamnionitis and fetal tachycardia. Cesarean section was done with thick Meconium present. The baby was not depressed at birth. Cord blood gas pH was normal (pH 7.36). However, oxygen desaturation occurred at 5 hours after birth with seizure activity following shortly after. MRI within 24-hours of birth showed acute cerebral infarction. The baby suffered a cerebral infarction. The exact timing of the infarction is difficult to determine. However, it is possible the infarction occurred during the severe and prolonged FHR deceleration 8 hours prior to birth. It appears the baby recovered from this hypoxic event during the remaining 8 hours of labor. Therefore, the cord blood gas was not abnormal at birth and the baby was not depressed at birth. Infection (Choriomnionitis) could be a contributing factor. The other opinion would be the infarct occurred after delivery, primarily related to infection. There was an apparent obstetrical event that may have resulted in loss of oxygen to the baby’s brain during labor. Oxygen deprivation resulted in brain injury. I am unable to comment about the severity of the injury. Dr. Willis’ opinion that there was an apparent obstetrical event that may have resulted in loss of oxygen to the baby’s brain during labor is credited. Respondent retained Laufey Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to evaluate Eleanor. Dr. Sigurdardottir reviewed Eleanor’s medical records, and performed an independent medical examination on her on August 10, 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: Summary: Here we have a 14-month-old girl with a sinus vein thrombosis at birth, focal seizures and possible subsequent infarction. This is likely a birth related injury. Her recovery has been remarkable and neurologic exam today is suggestive of mild expressive language delay, but no focal motor abnormalities are found. Results as to Question 1: The patient is found to have no substantial physical or mental impairment at this time. Results as to Question 2: Eleanor’s injury is a neurologic injury to the brain occurred [sic] due to oxygen deprivation and is felt to be birth related. Results as to Question 3: Eleanor’s prognosis for full recovery is extremely good and mild expressive delays are not likely to have any lasting ill effect. In light of the above-mentioned details, although clear evidence is that Eleanor’s infarct and thrombosis was due to a difficult prolonged birth with chrioamnionitis and recurrent decelerations, she has made such good recovery that at this time I do not recommend Eleanor being included into the Neurologic Injury Compensation Association (NICA) Program 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 Eleanor does not have a substantial 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 Eleanor does not have a substantial physical or mental impairment.
The Issue Whether Ashley Villarreal has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.
Findings Of Fact Preliminary matters Ashley Villarreal (Ashley) is the natural daughter of Roy Villarreal and Carmen Luna. She was born a live infant on January 2, 1989, at Bethesda Memorial Hospital in Palm Beach County, Florida, and her birth weight was 3090 grams. The physician delivering obstetrical services during the birth of Ashley was Allen Dinnerstein, 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(7), Florida Statutes. The birth of Ashley Villarreal At or about 4:15 p.m., January 2, 1989, Carmen Luna was admitted to Bethesda Memorial Hospital. At the time, Carmen Luna was in active labor, and Ashley was post term with a gestational age of 41 weeks. Otherwise, Carmen Luna's pregnancy had been without complication. External fetal monitoring was commenced at 4:50 p.m. and indicated that the fetal heart tone was sporadically within the 60 beat per minute level, with a slow return to baseline; a level sufficient to indicate occasional fetal bradycardia and fetal distress. 1/ This situation evidenced a need for surgical intervention, and at 5:20 p.m. Carmen Luna was taken to the operating room. Anesthesia commenced at 5:25 p.m., a cesarean section surgical procedure was commenced at 5:39 p.m., and Ashley was delivered at 5:44 p.m. The operative report reflects that the following occurred during the course of the procedure: . . . a transverse incision was made into the uterus releasing meconium stained fluid. The vertex was delivered and the baby suctioned with DeLee. A loop of cord over the neck was removed and the baby then delivered completely continually being suctioned as the cord was double clamped and severed and the infant given to the neonatologist for care . . . . The delivery records likewise reflect that Ashley had a blue appearance at delivery, the presence of meconium staining, and the following resuscitation measures: "Stimulation," "Bulb Suction," "DeLee Suction," "Mech Suction" and "Whiffs Oz." When delivered, Ashley presented Apgar scores of 6 at one minute and 8 at five minutes. These scores are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of the 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, Ashley's Apgar score totaled 6, with respiratory effort and reflex irritability being graded at 2 each, heart rate and muscle tone being graded at 1 each, and color being graded at 0. At 5 minutes, Ashley's Apgar score totaled 8, with heart rate, respiratory effort and reflex irritability being graded at 2 each, and muscle tone and color at 1 each. Such total scores could be characterized by an obstetrician as "good." Pertinent to this case, color, heart rate and respiratory effort are primarily related to the cardiovascular system, and color is the least significant indicator of an infant's brain or neurological status at birth. The categories of reflex irritability and muscle tone are, however, neurological assessments, which offer the greatest insight into the neurological condition of an infant at birth. Ashley's Apgar scores relative to those categories which reflect neurological status at birth were collectively a total of 3 out of a possible 4 at both 1 and 5 minutes. Under the circumstances, Ashley's Apgar scores, either globally or discretely, fail to reflect a hypoxic event at birth. At 6:00 p.m., following delivery, Ashley was admitted to the neonatal intensive care unit due to respiratory distress, possibly secondary to meconium aspiration. Ashley was accorded extra oxygen, via oxygen hood, for two days, and her meconium aspiration was successfully treated with antibiotics. During her admission, no clinical observations were noted that one would typically expect in a child undergoing hypoxic encephalopathy, and no neurological consult was ordered. 2/ On January 7, 1989, Ashley was discharged as an apparently well baby. Subsequent developments On July 29, 1989, Ashley was seen by M. Arenstein, D.O., for a "well baby visit," and no abnormalities were noted; however, on September 6, 1989, Ashley was again seen by Dr. Arenstein at which time the parents expressed their concern regarding Ashley "not sitting up, crawling, etc." Consequently, Dr. Arenstein referred Ashley for a pediatric consult with Jeffrey Perelman, M.D. Ashley was seen by Dr. Perelman on September 19, 1989, and he diagnosed her as developmentally delayed, and ultimately referred her to David Ross, M.D., for a neurological evaluation. Dr. Ross saw Ashley on July 2, 1990, and concluded: The patient has some mild facial dysmorphism with developmental delay in all fields associated with an abnormal neurologic exam with persistence of postural reflexes and hyperreflexia. The spectrum of findings is consistent with mental retardation of a mild to moderate degree probably due to cerebral palsy. 3/ Dr. Ross' ultimate diagnosis was mental retardation, and he recommended that Ashley have a full evaluation, including "an image of the brain either with CT scan or MRI (an EEG, torch titers, chromosome analysis)." Ashley was referred in August 1990, for a CT brain scan and an EEG. The CT scan is a neuroimaging study which can identify structural brain abnormalities occasioned by an hypoxic insult, as well as other causes. The EEG is a device used to detect abnormalities of the electrical currents of the brain such as seizure activity, which is often a manifestation of hypoxic insult at birth, and the death of neuronal cells. Here, both the CT scan and EEG were within normal limits. Ashley continued to be treated by Dr. Perelman through June 1991; however, on August 14, 1991, she came under the care of Miguel Simo, M.D., another pediatrician, because the parents were apparently dissatisfied with Dr. Perelman. Upon examination, Dr. Simo diagnosed Ashley as developmentally delayed, and referred her to Laszlo Mate', M.D., a physician practicing child neurology, for evaluation. Dr. Mate' examined Ashley on August 29, 1991, and observed: . . . a small, dysmorphic female in no apparent distress. Her head circumference is 47 cm which is in the 25th percentile. She doesn't have any neurocutaneous abnormalities. Her palmer creases are somewhat abnormal, but not of simian nature. Her fingers are slightly abnormal, extra long, and she seems to have a proximal displacement of both thumbs. Her ears are malformed with very small earlobes. The ears are somewhat posterior rotated and low set. Her eyes are almond shape but in view of her Indian heritage, that's probably normal. Both parents seem to have similar shaped eyes. The child has a somewhat prominent nose. The mouth is somewhat fishmouth in character and she has fairly shallow temporal area. She doesn't have any eyelashes on her lower eyelid. Dr. Mate's impression was: This is a markedly abnormal child with a developmental quotient in the 30's. She's currently is 30 months old and she functions around a 9-10 month level. She has multiple minor malformations which made the diagnosis of cerebral palsy somewhat unlikely. I suspect we are dealing with some prenatal etiology, either genetic or pregnancy related. 4/ Dr. Simo also referred Ashley for an MRI of the brain. An MRI, as with a CT scan, is a neuroimaging study which can identify structural abnormalities occasioned by hypoxic insult, as well as other causes. The MRI, performed September 20, 1991, was abnormal, evidencing "poor and decreased white matter myelinization extending to the frontal, occipital, and parietal cortex and decrease in white matter content in the centrum semiovale." Such damage could be reflective of birth asphyxia, developmental immaturity of the brain, or a myriad of other causes. Finally, Dr. Simo referred Ashley to Oscar Febles, M.D., a physician practicing genetics. Dr. Febles examined Ashley on November 1, 1991, and rendered a diagnosis of "psychomotor retardation of unknown etiology." Concluding, Dr. Febles observed: The clinical findings in this patient are not diagnostic of a particular genetic syndrome . . . In conclusion, this patient presents a clinical picture characterized by psychomotor retardation that cannot be diagnosed on the clinical findings and/or testing done. The fact that she presents diffuse demyelinization on the MRI would favor the diagnosis of cerebral palsy and/or a CNS degenerative disease. It is my recommendation that an MRI be repeated in approximately 6 months to see if the demyelinization process of the cortex previously seen is progressive or static. If found to be progressive it would indicate a CNS degenerative disease (e.g. leukodystrophies) and if static the diagnosis of cerebral palsy is most likely. In addition, it is also recommended . . . Genetic re-evaluation in 1 year. Whether, consistent with Dr. Febles' recommendation, an MRI was repeated or Ashley had a subsequent genetic re- evaluation does not appear of record. Notably, however, while Ashley was genetically tested and found to have a normal karyotype, such test does not rule out the preponderance of genetic disorders which manifest themselves in microscopic point mutations within a chromosome as opposed to total chromosomal malformation. The medical experts at hearing As to whether Ashley had sustained permanent and substantial mental and physical impairment as a result of an injury to her brain resulting from oxygen deprivation during the course of labor, delivery or resuscitation in the immediate post-delivery period, petitioners offered the testimony of Dr. David Ross, who, although a board certified neurologist, does not regularly treat neonates. Dr. Ross examined Ashley on July 2, 1990, and March 2, 1994. It was Dr. Ross' opinion that Ashley suffered a substantial and permanent mental and physical impairment as a consequence of oxygen deprivation during the course of labor and delivery. Compared with the opinion of Dr. Ross, the respondent offered the testimony of Dr. Michael Duchowny. Dr. Duchowny is a child neurologist who is board certified in pediatrics, neurology with special competence in child neurology and clinical neurophysiology. Dr. Duchowny is associated with the department of neurology at Miami Children's Hospital and routinely treats neonates suspected of having suffered a hypoxic event at birth. Dr. Duchowny examined Ashley on September 21, 1992, as well as observed her at hearing, and was familiar, as was Dr. Ross, with the pertinent medical records. It was Dr. Duchowny's opinion that Ashley was substantially and permanently mentally impaired, but that her physical impairment could best be described as mild to moderate. As to causation, it was Dr. Duchowny's opinion that the cause (etiology) of Ashley's mental and physical impairment (neurologic syndrome) was a developmental problem of in utero (prenatal) or genetic origin, and that any fetal distress she may have suffered at birth was not substantial and did not contribute to her condition. [Tr. 97] Here, I accept the testimony and opinion of Dr. Duchowny as being the more credible and substantial as to whether Ashley sustained a substantial and permanent mental and physical impairment, and the cause of such dysfunction. Dr. Duchowny's opinions are credible, supported by the observations of other physicians as heretofore noted, and are most consistent with conclusions to be drawn or inferences raised by the medical records received into evidence.
The Issue For the purpose of determining compensability, the issue is whether the injury claimed is a birth-related neurological injury, as defined by section 766.302(2), Florida Statues. The specific issue that remains is whether the brain injury caused by oxygen deprivation or mechanical injury, which rendered Paj Xiong (Paj) permanently and substantially mentally and physically impaired, occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period.
Findings Of Fact Pursuant to the parties’ stipulations at the final hearing, the Findings of Fact set forth in paragraphs 1 through 5 are undisputed. Paj was born on March 13, 2018, at Winnie Palmer, a “hospital,” as defined by section 766.302, and was alive at birth. Paj was a single gestation with a birthweight in excess of 2,500 grams. Obstetrical services were delivered by Dr. Odom, a Neurological Injury Compensation Association (NICA) “participating physician,” as defined in sections 766.302 and 766.309, in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Paj sustained a brain injury caused by oxygen deprivation or mechanical injury and was thereby rendered permanently and substantially mentally and physically impaired. The notice requirements of section 766.316 were satisfied by the Intervenors. Dr. Odom is a practicing obstetrician/gynecologist (OB/GYN) and at all times relevant was employed with Orlando Health Physician Associates, LLC. Petitioner Npaug Xiong (Mrs. Xiong) first sought prenatal care and treatment with Dr. Odom on September 12, 2017, at which time she was 13 weeks and two days pregnant. Mrs. Xiong’s relevant medical history reveals that she had been pregnant on seven prior occasions, resulting in five births. The prior births had been vaginal deliveries without complication. Her expected delivery due date with this pregnancy was March 24, 2018. An ultrasound conducted on February 20, 2018, revealed that the fetus was in a breach position, thus “presenting in a buttocks first” position. On March 8, 2018, Dr. Odom determined that the fetus remained in a breech position. Dr. Odom advised Mrs. Xiong of the external cephalic version (ECV) procedure, which is used to turn a fetus from a breech position into a head- down position in anticipation of a vaginal delivery. Dr. Odom credibly testified that the plan was to schedule Mrs. Xiong for an attempt at ECV and, if successful, her membranes would be ruptured and she would proceed with a total induction of labor. If unsuccessful, Dr. Odom would proceed with a Cesarean section delivery (C-section). In either event, the plan was to deliver the baby following the attempt at ECV. On March 11, 2018, Mrs. Xiong returned to Winnie Palmer for a labor check. At this time, she was 38 weeks pregnant. Autumn Elms, M.D., an OB/GYN, examined Mrs. Xiong. Dr. Elms testified that Mrs. Xiong’s chief complaint was that of contractions, which she documented as a two out of 10 on the pain scale. Dr. Elms performed a vaginal exam, which revealed that Mrs. Xiong’s cervix was four centimeters (cm) dilated and 50 percent effaced. She also documented that the baby was “minus 3,” meaning that the baby had not descended down into the pelvic canal. During this visit, Mrs. Xiong was connected to an external fetal monitor for approximately one hour. While monitored, Mrs. Xiong only had one contraction. Dr. Elms’s impression and overall assessment was that of “false labor,” which she defined as a patient’s complaint of perceived labor without documented findings to support labor. Mrs. Xiong returned to Winnie Palmer on March 13, 2018, at 2:09 p.m., to proceed with the attempt at ECV, and subsequent delivery. As reported on the History and Physical completed by Dr. Odom, Mrs. Xiong “reports regular painful contractions since earlier today.” Mrs. Xiong also reported no loss of fluid and “only a small amount of bloody show.”1 A vaginal exam was performed by Dr. Odom, which revealed that her cervix remained at four cm dilated; however, she was now 70 percent effaced and there was the presence of bloody show. Mrs. Xiong was placed on an external fetal monitor. The fetal monitoring strips, as interpreted by Dr. Robinson, establish that from 3:09 p.m., to the beginning of the first ECV attempt, Mrs. Xiong experienced 15 separate contractions. During this time period, at approximately 3:40 p.m., a medication, Terbutaline, was administered. The purposed of this medication is to inhibit contractions and relax the uterus in preparation for the ECV procedure. Mrs. Xiong also received an epidural to prevent her from experiencing severe pain associated with the ECV. Dr. Odom began the first ECV attempt at approximately 4:26 p.m. During the first attempt, the fetal heart rate dropped to 80 beats per minute (bpm) for approximately one to two minutes. After external pressure was released, the baby’s heart rate rebounded to 120 bpm. Dr. Odom credibly opined that a normal fetal heart rate in a third trimester infant is between 110 and 160 bpm. A second ECV attempt was made at approximately 4:50 p.m. Dr. Odom testified that the attempted procedure would have taken roughly 10 minutes. Again, the procedure was unsuccessful and the fetal heart monitor was placed back on Mrs. Xiong. 1 Christopher Robinson, M.D., Intervenor’s OB/GYN and maternal-fetal expert, explained that bloody show is the “natural progress of cervical change” and that “when the cervix is changing and thinning out and undergoing stretch, there are small blood vessels that are disrupted in the stroma of the cervix, leading to that bleeding and that presentation.” The strips from the fetal heart rate monitor provide that the infant’s heart rate ranged from about 100 to 110 bpm from approximately 5:00 p.m. until 5:21 p.m. Dr. Odom credibly testified that during this period, the heart monitoring strips were consistent with potential compromise and/or hypoxia, and, therefore, an emergency C-section was necessary. At 5:21 p.m, the heart rate monitor was removed to transition Mrs. Xiong to the operating room for a C-section. The C-section delivery was completed by 5:31 p.m. At birth, Paj was profoundly depressed. His immediate heart rate was less than 30. His Apgar scores were 1 at one minute, 4 at five minutes, and 4 at 10 minutes of life.2 At one minute of life, Paj had a heart rate less than 100, no respiratory rate, flaccid muscle tone, no response to reflex, and was blue and pale. At 10 minutes of life, Paj remained severely depressed. Positive pressure ventilation by intubation was required for respiratory distress with an increase in heart rate to 150 bpm. Cord blood gas pH obtained was 7.29 with a base excess of -5. The initial arterial blood gas pH was 7.07 with a base excess of -21. Paj’s newborn hospital course was complicated by multi-system organ failures, including respiratory distress, seizures, acute renal failure, adrenal hemorrhage, thrombocytopenia, feeding difficulty, elevated liver functions, hearing loss, hypoxic ischemic encephalopathy (HIE), and brain hemorrhage. An MRI obtained on Paj’s fifth day of life had findings suggestive of HIE with right cerebellum hemorrhage. As noted above, the parties stipulate that Paj sustained a brain injury caused by oxygen deprivation or mechanical injury and was thereby rendered permanently and substantially mentally and physically impaired. 2 An Apgar score is a numerical expression of the condition of the newborn and reflects the sum total points gained on an assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and color. See Bennett v. St. Vincent’s Med. Ctr., Inc., 71 So. 3d 828, 834 n. 2 (Fla. 2011) citing Nagy v. Fla. Birth-Related Neuro. Injury Comp. Ass’n, 813 So. 2d 155, 156 n. 1 (Fla. 4th DCA 2002). Each factor is scored 0, 1, or 2; the maximum total score is 10. There is no record evidence to support a finding that the injury to Paj’s brain occurred prior to the ECV attempts on March 13, 2018. 3 It appears undisputed that the original injury occurred during or immediately following the attempts at ECV, but prior to the C-section delivery. The parties presented expert witness testimony concerning, inter alia, whether Mrs. Xiong was in “labor” during the time of the original injury and whether the injury continued to manifest during delivery, and into the immediate post-delivery period. The expert medical testimony is addressed below. Donald Willis, M.D., a board-certified obstetrician specializing in maternal-fetal medicine, was retained by Respondent to review the pertinent medical records of Mrs. Xiong and Paj and opine as to whether Paj sustained an injury to his brain or spinal cord caused by oxygen deprivation or mechanical injury that occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital. Dr. Willis’s ultimate opinions are that Mrs. Xiong was in labor when she presented to Winnie Palmer on March 13, 2018, and that the initial injury occurred during or after the second ECV attempt and continued through delivery and into the immediate post-delivery period. Dr. Willis defines the term “labor” as uterine contractions that result in a change in the cervix. The change can be either a change in dilation or effacement, or both. In support of his opinion that Mrs. Xiong was in labor, Dr. Willis testified that her cervix had increased in effacement from 50 percent on March 11, 2018, to 70 percent on March 13, 2018. Additionally, as compared to her prior visit to Winnie Palmer on March 11, she was now experiencing painful uterine contractions since earlier in the day. Moreover, Dr. Willis opined that the bloody show, while not indicative of labor in and of itself, is a complementary indication of labor. 3 The record evidence demonstrates that Mrs. Xiong was not in labor on March 11, 2018. Dr. Willis also opined that the initial injury occurred after the second ECV attempt as the baby sustained fetal bradycardia, which he defined as a “baseline heart rate that drops for ten minutes or more.” He further opined that the baby was bradycardic, and consequently suffering oxygen deprivation to the brain, from approximately 5:00 p.m. through delivery. Dr. Willis testified that the injury continued through delivery and into the immediate post-delivery period; however, he could not ascribe a percentage or certainty to the level of “insult” or “injury”: I mean, brain injury, I believe, did occur, but how much occurred then versus during delivery and the postdelivery period, there’s no way to tell with any certainty how much occurred during one particular time period in that frame. In support of his opinion that the injury to the brain was continuing post-delivery, Dr. Willis noted that Paj’s heart rate at birth was less than 30; his Apgar score was 1; he was profoundly depressed; and the blood gas results obtained approximately 30-35 minutes after birth (and after resuscitative efforts) were consistent with ongoing oxygen deprivation and resulting or continuing brain injury. Respondent also retained Luis E. Bello-Espinosa, M.D., a pediatric neurologist, to review the medical records of Mrs. Xiong and Paj, and to conduct an Independent Medical Examination (IME) of Paj. Dr. Bello- Espinosa opines that Paj suffered from an acute severe hypoxic ischemic injury, and, as a result, suffers from a permanent and substantial mental and physical impairment. Dr. Bello-Espinosa opines that certain findings or descriptions of Paj at birth such as poor Apgar scores, that he was apneic, had a low heart rate, was flaccid, and cyanotic are consistent with a hypoxic ischemic brain injury at the time of birth. He does not offer, however, an opinion as to whether Mrs. Xiong was in labor at the time of the injury. Additionally, while Dr. Bello-Espinosa testified that this type of injury is “usually a continuum of injury,” he could not offer an opinion on the exact timing: Q. Is there any way for you to determine within a reasonable degree of medical certainty as to the exact timing of when these injuries occurred with respect to whether it was before delivery, during delivery or during the immediate postdelivery period? A. No. As noted above, Intervenors retained and presented the deposition testimony of Dr. Robinson. Dr. Robinson’s ultimate opinion is that Mrs. Xiong was in labor at the time when she presented to Winnie Palmer on March 13, 2018. Dr. Robinson defines the term “labor” as uterine contractions that result in cervical change, and the change can be dilation and/or effacement. He opines that Mrs. Xiong was in labor for several reasons. First, Dr. Robinson noted that Mrs. Xiong had reported regular and painful contractions, which were supported by the fetal monitoring strips. His review of the strips revealed that she had at least 15 contractions from 3:09 to 4:27 p.m. Second, her cervical effacement was documented to be 70 percent, thus a 20 percent progression since she was examined on March 11, 2018. According to Dr. Robinson, there is a “big difference” between 50 and 70 percent effaced. Finally, she also had some bloody show over this time course when examined. Dr. Robinson opined that, on March 13, 2018, Mrs. Xiong was in “transitional labor.” He expanded on this opinion as follows: So, I believe that, you know, what was happening on that date is she was transitioning from latent to active phase labor, so she basically had achieved a regular uterine contraction pattern with a breech presentation, and she was now progressing toward active phase labor. Now, was she in active phase labor, no, but she was in labor, labor being defined as uterine contractions with cervical change, that’s dilation and/or effacement. In this case, it was specifically effacement. Dr. Robinson testified that the original injury to the fetus occurred after the second ECV attempt and prior to the C-section delivery. During this time period, he opine that there was persistent bradycardia, lack of variability in heart rate, and suggested hypoxia. With respect to whether the injury concluded prior to delivery, Dr. Robinson testified that, “[i]t would not necessarily have been completely during that time, it would have probably continued on beyond that time after delivery, based upon looking at what the Apgars are like.” He further testified, however, that with respect to post- delivery, he would defer to a pediatric neurologist overall as to the completeness and timing of injury. The undersigned finds that Drs. Willis, Bello-Espinosa, and Robinson possess significant education, training, and expertise, and are well-qualified and credentialed to render the above-noted opinions. The undersigned finds their opinions as set forth above to be credible. Petitioners retained and presented the deposition testimony of Sarah Mulkey, M.D., who is board certified in neurology with special qualifications in child neurology. Dr. Mulkey provided no opinions concerning whether Mrs. Xiong was in labor at the time of the original injury. Her ultimate opinion is that the brain injury was complete by the time of the C-section delivery, and that there was no ongoing further neurologic injury thereafter. Dr. Mulkey testified that an MRI obtained five days after birth is consistent with an acute injury that occurred over the span of 10 to 30 minutes. She conceded, however, that “we can’t tell exactly which 30 minute window back in history.” With respect to the low Apgar scores, Dr. Mulkey opined that “[t]he baby has already had an injury, and what we’re seeing are the neurological effects of that in these ten minutes as we’re scoring these Apgars. But it’s not – it’s not an ongoing new injury.” Dr. Mulkey was asked when, after delivery, Paj was receiving sufficient oxygen to the brain so that the brain was not suffering oxygen deprivation. In response, Dr. Mulkey testified that “. . . when the baby’s respiratory status was taken care of with being ventilated and the heart rate was good, this baby was then perfusing the brain pretty quickly.” The undersigned finds that Dr. Mulkey possesses significant education, training, and expertise, and is well-qualified and credentialed to render the above-noted opinions. Her opinion that Paj sustained an acute brain injury is credited. The undersigned, however, finds her opinion with respect to the injury being complete at the time of delivery to be less persuasive and entitled to less weight. Petitioners also retained and presented the deposition testimony of Berto Lopez, M.D. Dr. Lopez is an OB/GYN, however, he is not currently board certified and does not have admitting privileges at any hospital. At the final hearing, Dr. Lopez’s license to practice medicine had been revoked by the Department of Health, Board of Medicine. Dr. Lopez’s ultimate opinion is that Paj suffered a brain injury caused by oxygen deprivation and was rendered permanently and substantially mentally and physically impaired; however, said injury did not occur in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Dr. Lopez testified that Mrs. Xiong was not in labor on March 13, 2018, when she presented to Winnie Palmer because she did not have a complaint of increasing pain, she did not demonstrate a cervical change that could not be easily explained by interoperative bias (two different examiners coming up with slightly different results), and she did not have progressive dilation or effacement of a significant nature. Additionally, he opined that labor was not indicated as her contractions were not every two to three minutes. 44. While Dr. Lopez conceded that there had been a change in the effacement of Mrs. Xiong’s cervix from 50 to 70 percent, however, he discounted this change and attributed the same to the subjective scoring of two separate physicians. Dr. Lopez also acknowledged the documentation that Mrs. Xiong had bloody show. He opined that it is common in dilated women who have had multiple children to free up cervical mucus with or without blood, and the bloody show may have been due to the prior digital vaginal examination. In support of his opinion that Mrs. Xiong was not in labor at the time of injury, he also testified that at no time on March 13, 2018, was it ever documented that she was in labor, which he would have expected given that Mrs. Xiong was being assessed for the purpose of performing an ECV. Additionally, he testified that there is no indication that the Terbutaline or epidural were administered to abate labor. Dr. Lopez agreed that there are several stages of labor. He defined “active labor” as cervical change and more than five centimeters of cervical dilation. “Latent phase” labor was defined by Dr. Lopez as early labor wherein the patient might be having contractions, the cervix may be dilated (typically less than 6 cm), and she is progressing in effacement and dilation. When asked whether early labor is considered within the definition of labor, he testified that “[i]t’s one definition, yes.” He also agreed that painful contractions over several hours, change in cervical effacement, persistent dilation, and bloody show, would be consistent with a woman being in labor, whether it’s active or early labor. Dr. Lopez further opined that the initial injury did not commence on March 13, 2018, until sometime after the second ECV attempt; however, he deferred to a pediatric neurologist as to when the hypoxic injury would have concluded. Dr. Lopez possesses significant education, training, and experience to render the above-noted opinions. Dr. Lopez’s opinion concerning the timing of the initial injury is credited as well as his opinion that there was no documentation of labor on March 13, 2018. His opinion concerning whether Mrs. Xiong was in labor on March 13, 2018, is found less persuasive and entitled to less weight. Intervenor, Dr. Odom, also testified concerning whether Mrs. Xiong was in labor. She acknowledged that, on March 13, 2018, neither she nor any other healthcare provider involved in Mrs. Xiong’s care and treatment documented that she was in labor. She also confirmed that Mrs. Xiong’s membranes were intact at all times prior to the C-section delivery. Dr. Odom testified that Mrs. Xiong was not in “active labor” that day because her cervix was not dilated more than four centimeters, however, she opined that Mrs. Xiong was in “early labor” as she was experiencing contractions and there had been a cervical change in effacement from her prior examination on March 11, 2018. Dr. Odom declined to offer an opinion as to when the injury occurred. In support of the position that Mrs. Xiong was not in labor at the time of the original injury, Petitioners contend that labor is a contraindication to the performance of an ECV procedure, and, therefore, Dr. Odom would not have performed the ECV procedure if Mrs. Xiong was, in fact, in labor. Dr. Lopez testified that active labor is a contraindication in performing an ECV and that he believes the delivery nurse probably would not have permitted the procedure if she felt Mrs. Xiong was in labor. Dr. Willis confirmed that an ECV should not be attempted if the mother is in active labor because the contractions and the location of the fetus in the pelvis would make it difficult, if not impossible, to turn the baby externally. Dr. Robinson opined that labor is not a contraindication to an ECV and that it is done routinely. He acknowledged, however, that there are complicating factors that labor presents for performance of an ECV. Specifically, he testified that if the uterus is contracting regularly and will not relax, the fetus cannot be turned, and there is a potential for rupturing the membranes. The undersigned finds that, on March 13, 2018, Paj sustained an injury to his brain caused by oxygen deprivation occurring in the course of labor. The undersigned further finds that the injury was not complete at the time of the C-section delivery and continued into resuscitation in the immediate post-delivery period.
Findings Of Fact Luke Z. Davis was born on March 27, 2014, at Shands at the University of Florida, Gainesville, Florida. Luke weighed 4,060 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Luke, to determine whether an injury occurred 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 medical report dated February 25, 2016, Dr. Willis described his findings in part as follows: There was an apparent obstetrical event, shoulder dystocia that resulted in loss of oxygen to the baby's brain during delivery and continuing into the immediate post delivery period. There was no trauma to the spinal cord. The oxygen deprivation to the brain resulted in some degree of brain injury, as identified by brain hemorrhage on MRI. The MRI reported no evidence of global brain injury. I am not able to comment about the severity of the brain injury. Dr. Willis reaffirmed his opinion in an affidavit dated May 25, 2016. NICA retained Laufey Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Luke and to review his medical records. Dr. Sigurdardottir examined Luke on March 30, 2016. In her report dated March 30, 2016, Dr. Sigurdardottir opined in pertinent part as follows: Summary: Here we have a 2-year-old with a difficult birth due to shoulder dystocia leading to an acute hypoxic event lasting 13 minutes. The patient did receive cooling protocol, had evidence of a brain injury on MRI, although not severe, and is left with a significant motor impairment from a flaccid right arm, as well as expressive language delay . . . . [T]he patient is found to have substantial physical impairment, as his right upper extremity has little to no functional use. There is a possible mild mental impairment due to language delay, but his delays do not seem substantial at this time. [T]here is evidence of a hypoxic ischemic event occurring at birth resulting in neurologic depression at birth, as well as mechanical injury resulting in a severe paresis of right upper extremity. Both his hypoxic events, as well as his mechanical brachial plexopathy is birth related. 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 evidence of global brain injury or injury to the spinal cord. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Luke does not suffer from a substantial mental impairment. Dr. Sigurdardottir’s opinion is credited.
The Issue At issue in this proceeding is whether Wilgen Wandique, Jr., a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Wilgen Wandique and Concepcion Wandique, are the parents and natural guardians of Wilgen Wandique, Jr. (Wilgen), a minor. He was born a live infant on August 21, 1996, at Hialeah Hospital, a hospital located in Dade County, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Wilgen was Gustavo Ruiz, 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. Wilgen's delivery at Hialeah Hospital on August 21, 1996, was apparently difficult due to his large birth weight, and was complicated by a shoulder dystocia. Following delivery, Wilgen was noted having evidence of a mild to moderate compromise of the upper right brachial plexus, an Erb's palsy, which affected the range of motion on the upper right extremity, including the arm, forearm, and hand. Otherwise, Wilgen's presentation was unremarkable, and he evidenced no abnormalities with regard to his mental status and, as hereafter noted, no motor abnormalities of central nervous system origin. A brachial plexus injury, such as that suffered by Wilgen during the course of his birth, is not, anatomically, a brain or spinal cord injury, and does not affect his mental abilities. Moreover, as heretofore noted, apart from the brachial plexus injury, Wilgen was not shown to suffer any other injury during the course of his birth. Consequently, the proof fails to demonstrate that Wilgen 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 he is presently permanently and substantially, mentally and physically impaired.
The Issue At issue is whether Aaron Smith, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Petitioners, Dawn Smith and Taryn Smith, are the natural parents and guardians of Aaron Smith, a minor. Aaron was born a live infant on December 29, 1998, at Baptist Medical Center, a hospital located in Jacksonville, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Aaron's birth was Wilford Paulk, 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 (1997).2 Aaron's birth The medical records related to Aaron's birth are meager, but reveal that at or about 6:59 a.m., December 29, 1998, Mrs. Smith (with an estimated delivery date of December 18, 1998, and the fetus at 41 and 4/7 weeks gestation) presented to Baptist Medical Center, in labor. At the time, Mrs. Smith's membranes were noted as intact, and contractions were noted at a frequency of 3-6 minutes. Mrs. Smith was administered an epidural anesthesia at 9:30 a.m., and at 10:55 a.m., her membranes were artificially ruptured, with clear fluid noted. Thereafter, at 6:28 p.m., dilation was noted on complete, and at 6:47 p.m., Aaron was delivered, with vacuum assist. At delivery, Aaron breathed spontaneously, and initial newborn assessment revealed no abnormalities. Apgar scores were recorded as 8 and 9, at one and five minutes, respectively.3 Following delivery, Aaron was transported to the newborn nursery, where he was received at 7:30 p.m. Newborn admission assessment, as well as the physician's subsequent assessment on December 30, 1998, did not reveal any significant abnormality, and Aaron was discharged to his mother's care on December 31, 1998. Overall, the medical records related to Aaron's birth do not reveal any evidence of fetal compromise or injury during the course of Mrs. Smith's labor or Aaron's delivery and brief postnatal course at the hospital. Aaron's subsequent development In early February 1999, at five weeks of age, Aaron was hospitalized, with symptoms consistent with the onset of seizure activity, and an electroencephalogram (EEG) revealed "electrographic seizures arising independently out of the left and right hemisphere." At the time, diagnostic evaluation by William Turk, M.D., a pediatric neurologist associated with Nemours Children's Clinic, including a normal cranial MRI scan, failed to reveal an etiology for Aaron's seizure disorder, and he was started on Phenobarbitol. Aaron apparently did well on Phenobarbitol until early March 1999, when his mother noted several events, characterized by staring and repetitive arm jerking on the right side lasting 30 seconds, consistent with the recurrence of seizure activity. At the time, March 3, 1999, Aaron was seen in follow-up by Dr. Turk, whose examination revealed the following: On physical examination, he is a large appearing young man whose weight of 7.5 kilograms is greater than the 95th percentile as is his height of 63.3 m. Head circumference of 42.6 cm continues to track slightly greater than the 98th percentile. His general physical examination was otherwise, unrevealing On neurological examination, his pupils are equal, round and reactive to light. His extraocular movements were full. Fleeting glimpses of his retina and discs were unrevealing. His facial movements were symmetric and his gag was intact. Motor exam revealed equal and symmetrical muscle bulk, tone and strength. Deep tendon reflexes were diffusely brisk with flexor plantar responses. He withdrew symmetrically to noxious stimuli. No involuntary movements were noted. He would alert, socialize and follow the examiner visually with a responsive smile. His fontanel was soft. Dr. Turk's impression and recommendations were, as follows: Impression: Aaron is a 2 month-old with a partial complex seizure disorder of unknown etiology. He overall, has done well on Phenobarbitol until several recent breakthrough seizures. I suspect his Phenobarbitol level is subtherapeutic given his dose and relatively rapid weight gain. He appears to be doing well developmentally. Recommendations: I feel it would be reasonable to increase his Phenobarbitol to bring him into what will be the therapeutic range . . . . We have asked him to return for a formal follow-up visit in two months. He is a young man who is statistically . . . at significant risk for neurodevelopmental concerns, although he does appear to be doing well in the short run. I have asked his parents to particularly observe him for any evidence of myoclonic seizures. I anticipate when he becomes approximately 6 months of age, we will refer him to a local developmental program for assessment and enrollment. Aaron continued on Phenobarbitol, but was otherwise quite healthy, with apparent normal developmental progress until July 8, 1999, when, at 6 months of age, Dr. Turk noted "emerging developmental concerns." At the time, Mrs. Smith reported that "[i]n terms of his development, he still does not sit, and . . . he has somewhat more difficulty rolling over." On examination, Dr. Turk noted: On physical exam, his weight of 11.3 kg is greater than the 95th percentile, as is his weight of 74.8 kg, and head circumference of 47 cm. He was alert appearing, and at times briefly social . . . . On neurological examination, his pupils are equal, round and reactive to light. His extraocular movements were full. Occasionally, he was noted to have some brief rapid horizontal nystagmus [an involuntary rapid movement of the eyeball] which occurred in primary gaze. No opsoclonus was noted. No other cranial nerve abnormalities were noted. Motor exam revealed equal and symmetrical muscle bulk, tone and strength. Deep tendon reflexes were 2+ and symmetrical. His plantar reflexes were flexor. He had no tremulousness nor myoclonus. He withdrew briskly and symmetrically to noxious stimuli. He could not sit independently. IMPRESSION: Aaron remains a problematic young man. He has been free of overt partial complex seizures. His nystagmoid eye movements, I suspect, are not representative of subtle seizure activity Over time, I am increasingly concerned that we are seeing the emergence of what will be a pattern of significant developmental delay in this young man. Unfortunately, as you know, this occurs commonly in children with early onset seizure disorders . . . . PLAN: Aaron will continue on his current dose of Gabapentin and Phenobarbital . . . . I feel strongly it would be appropriate for Aaron to see a pediatric ophthalmologist, both for a dilated funduscopic examination to see if his retina can give us any clues as to the etiology of his seizures, as well as evaluate his nystagmoid movements . . . . As recommended, Aaron was seen for an ophthalmologic evaluation on July 20, 1999, by Robert Hered, M.D., a pediatric ophthalmologist associated with Nemours Children's Clinic. Following examination, Dr. Hered concluded that: Aaron has developed pendular nystagmus. The nystagmus is somewhat more rapid than is typically seen with sensory nystagmus. I do suspect problems with the optic nerves, however. His examination suggests moderate bilateral optic nerve hypoplasia [incomplete development of the optic nerve]. I have recommended a follow-up eye examination in 6 months to reassess his vision status and the appearance of his optic nerves. Follow-up eye examination by Dr. Hered on December 14, 1999, confirmed the presence of moderate bilateral optic nerve hypoplasia and, due to a degree of visual impairment, Aaron was referred to the Division of Blind Services. In the interim, a cranial MRI scan on August 6, 1999, ordered by Dr. Turk "to redefine his intracranial anatomy and optic pathway" was normal or, stated otherwise, unrevealing as to the etiology of Aaron's neurodevelopmental difficulties. Specifically, the MRI scan was read, as follows: Comparison with previous assessment dated 2/99. There has been no change in the appearance of the intracranial contents. The supratentorial, as well as the posterior fossa contents are again well delineated. There is no evidence for a mass lesion or shift of midline structures. A structural or signal abnormality cannot be demonstrated. There is no evidence of ventriculomegaly or abnormal increase in extra-axial fluid. Aaron continued to be followed by Dr. Turk at regular intervals, who, apart from developmental delay, noted normal gross motor development. Specifically, Dr. Turk's neurological consultation of May 9, 2001, noted the following: Aaron was seen in follow-up neurological consultation. He is a 2-4/12 year old with developmental delay and seizures. He also has macrosomia. We have followed him and, overall, he continues to be problematic. He has had no behavior suggestive of seizures since last seen . . . . The other issue in this young man is his developmental status. His progress is extremely slow. He has essentially no intelligible speech and extremely-limited social interactions. His mother reports he is extremely ritualistic in his behavior and plays with a very limited repertoire of toys. He does receive OT, PT, and speech therapy at the Lighthouse Center which he attends daily. His review of systems is otherwise noncontributory. There have been no recent psychosocial changes. On physical exam, he was a fussy young man who was whining when I entered the exam room but did have one interval where he appeared relatively calm and content. He had poorly developed social interactive skills and made poor eye contact. He has a large-appearing body with a head circumference of 52 cm, greater than the 95th percentile as is his weight of 17.8 kg. His height of 94 cm is on the 80th percentile . . . . On neurological examination, his pupils were equal, round, and reactive to light. His extraocular movements were full, and he had no apparent nystagmus today. His right disc was pale, as previously noted. His facial movements were symmetrical. He did respond to auditory stimuli, and his gag was present. Motor exam revealed equal and symmetrical muscle bulk, tone, and strength. Deep tendon reflexes were 2+ and symmetrical with flexor plantar responses. His gait was narrow based and steady. He did withdraw briskly and symmetrically to noxious stimuli and no tremulousness was noted. IMPRESSION: Aaron is a 28 month old with a history of developmental delay and seizures. His seizures are well controlled on his current medication. As you will recall, we are in the process of a transition from Tegretol to phenobarbital. Developmentally as this young man has grown older, it is apparent that he has symptoms that may place him on the autistic spectrum; however, as you know, this can be a difficult diagnosis in young children particularly with significant cognitive delays . . . . RECOMMENDATIONS: Aaron's phenobarbital will be decreased to 15/30 mg, and he will continue on his current dose of Tegretol pending [further testing] . . . . We did discuss numerous developmental issues including those of possible autism. He does appear to be well networked into appropriate supportive services, at the present time. As you know, applying a label of autism little alters our approach to management; particularly in young children. Finally, this young man could appear to be an appropriate candidate to have a pediatric genetic consultation. He does have some dysmorphic features including a bifid uvula, he has significant developmental delay, and mild macrosomia . . . . Of note, subsequent genetic testing failed to reveal evidence of significant abnormalities or an etiology for Aaron's neurodevelopmental difficulties. In so far as the record reveals, Dr. Turk last saw Aaron on December 30, 2002, and, pertinent to this case, reported the results of his consultation, as follows: Aaron was seen in neurological follow up consultation. He is an extremely complex 4- year-old with multiple neurodevelopmental concerns who I have not seen in nearly one year. When we last saw him in February, there had been a question of a recent subtle seizure in the setting of a febrile illness. Since that time, he has had no seizures . . . Developmentally, he is making some progress. He still has many self-stimulatory behaviors and no intelligible speech. He does have significantly improved social interactive skills. His mother reports he has been diagnosed as having PDD. He receives physical, occupational and speech therapy at the Lighthouse Center. There is no clear history of any regression. Behaviorally, he is extremely active and very rigid, strongly preferring routines . . . . On physical examination, he was an active young man. His weight is 22 kg which is greater than the 95th percentile. Height was 106.7 cm and is on the 85th percentile. His head circumference is 55 cm which is slightly greater than the 98th percentile where it was previously been noted General physical examination revealed a somewhat large-appearing cranium with slightly coarsened features . . . . On neurological examination, he had full extraocular movements. Despite an extensive effort, I could not adequately visualize his discs. Facial movements and sensation, auditory localization, gag, palate and tongue movements were normal. Motor exam revealed equal and symmetrical muscle bulk, tone and strength. Deep tendon reflexes were 2+ and symmetrical. Plantar responses were flexor. No tremor, dysmetria or ataxia was noted. He did have, at times, prominent self- stimulatory behaviors. His gait was steady. He had no intelligible speech. He would make occasional eye contact with the examiner. IMPRESSION: Aaron is a 4-year-old with a history of significant developmental delay. Overall, as we have observed this young man, he appears to fall in the autistic spectrum. He also has a septooptic dysplasia and apparently has had no evidence of an endocrinopathy. He has had seizures that are now well-controlled with his last event being one year ago . . . . Notably, neither Dr. Turk nor any other physician who attended Aaron has expressed any opinion regarding the etiology of his neuodevelopmental difficulties or the significance, if any, of his mental and physical limitation. The opinions of Doctors Willis and Duchowny Following the filing of the claim in this case, NICA provided copies of the medical records related to Aaron's birth to Donald Willis, M.D., an obstetrician who practices maternal- fetal medicine, to review and to resolve whether, in his opinion, the records supported a conclusion that Aaron suffered an injury during the course of birth. NICA also arranged for Michael Duchowny, M.D., a pediatric neurologist, to examine Aaron and to resolve whether, in his opinion, Aaron's neurologic presentation was consistent with a brain or spinal cord injury caused by oxygen deprivation or mechanical injury during birth, and whether Aaron was permanently and substantially mentally and physically impaired. Here, the opinions of Doctors Willis and Duchowny, in the form of an affidavit and report by each, Respondent's Exhibits 3 and 4, respectively, are hearsay and, as noted in Endnote 1, were received into evidence subject to the limitations of Section 120.57(1)(c), Florida Statutes (2003). ("Hearsay evidence may be used for the purposes of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.") Dr. Willis' opinion, that "[t]here was no apparent obstetrical incident that resulted in this child's injury," is consistent with the conclusion one would draw from the medical records and to that extent is corroborative or cumulative. Dr. Duchowny's opinion, that "Aaron's neurologic examination reveals findings consistent with childhood autism," is likewise corroborative or cumulative of the opinion of Aaron's treating pediatric neurologist; however, Dr. Duchowny's opinion that childhood autism is developmentally based, and begins in intrauterine life, prior to the onset of labor and delivery, is not corroborative of any competent proof and cannot support a finding of fact. As for Aaron's difficulties, Dr. Duchowny's neurologic evaluation is consistent with the conclusions reached by Dr. Turk, but, like Dr. Turk, he does not express an opinion as to the significance of Aaron's neurodevelopmental difficulties. 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. See also §§ 766.309 and 766.31, Fla. Stat. Here, Mrs. Smith did not dispute Aaron's autistic diagnosis, but was concerned that "the seizure activity he experienced through the first year of his life probably caused a lot of developmental delay." (Transcript, page 10) Mrs. Smith also notes that during delivery, her "blood pressure and heart rate went down really fast and so did Aaron's[,] . . . at that point it was really crucial for Aaron to be delivered [,] . . . his head was in the birth canal for about a minute and a half before they could find the . . . vacuum that would work to pull him out [,] . . . and when he came out he was blue . . . [a]nd it took . . . a few seconds for him to even come around and start to cry." (Transcript, pages 10 and 11) Notably, Mrs. Smith did not offer an opinion as to whether the events of labor and delivery caused an injury to Aaron's brain or spinal cord and, if she had done so, any such testimony would have been legally insufficient to support a finding that Aaron suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during the course of labor, delivery, or resuscitation. 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 is not readily observable.") Moreover, Mrs. Smith offered no testimony regarding the significance of Aaron's neurologic difficulties. Consequently, since the record fails to contain competent proof that Aaron 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 . . . that rendered . . . [Aaron] permanently and physically impaired," the proof fails to support the conclusion, as appears more fully in the Conclusions of law, that Aaron suffered a "birth-related neurological injury," as required for coverage under the Plan. § 766.302(2), Fla. Stat.
The Issue At issue in this proceeding is whether Aubreigh Kathryne Delisle, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact 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. Contrasted with the dearth of proof offered by Petitioners, Respondent offered the opinions of Michael Duchowny, M.D., a physician board certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. It was Dr. Duchowny's opinion, based on his neurological evaluation of Aubreigh on December 3, 1998 (at 7 years of age) and his review of Aubreigh's medical records, that Aubreigh's current neurological condition did not result from oxygen deprivation or mechanical trauma occurring during the course of labor, delivery, or resuscitation in the immediate post-delivery period. Rather, it was Dr. Duchowny's opinion that Aubreigh's neurological presentation was most consistent with "abnormal brain maturation" or, stated differently, "there was no brain damage whatsoever, but rather her brain was not developing normally." (Transcript, page 9.) Given the proof, it must be resolved that Petitioners have failed to demonstrate that Aubreigh suffered a "birth- related neurological injury" as alleged in the claim for benefits.
The Issue At issue is whether Tristen Onofry, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Victoria Hill and Keith Onofry are the parents of Tristen Onofry, a minor. Tristen was born a live infant on July 29, 2002, at Tallahassee Memorial Regional Medical Center, Tallahassee, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Tristen's birth was Minal K. Krishnamurphy, 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. See also §§ 766.309 and 766.31, Fla. Stat. To resolve whether Tristen suffered a "birth-related neurological injury," the parties offered the medical records related to Tristen's birth and subsequent development (Joint Exhibit 1), and the opinions of Michael Duchowny, M.D., a physician board-certified in pediatrics; neurology, with special competence in child neurology; and clinical neurophysiology (Joint Exhibit 2). Notably, Dr. Duchowny evaluated Tristen on October 6, 2004, and reported the results of his evaluation, as follows: PHYSICAL EXAMINATION reveals an[] alert and cooperative, well developed, well-nourished, 2-year-old, left-handed boy. Tristen weighs 23 pounds and is 32 inches tall. His head circumference measures 46.4 centimeters, placing him at the 10th percentile for age match controls. There are no dysmorphic features and no cranial or facial anomalies . . . [or] asymmetries. There are no neurocutaneous stigmata. The neck is supple without masses, thyromegaly, or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. Tristen's NEUROLOGIC EXAMINATION reveals him to be cooperative but with no speech output. He does know colors by pointing. He does not interact with meaningful speech sounds. He seems to enjoy the examination and actively participated. There are prominent tongue thrusting movements and intermittent drooling. The cranial nerve examination reveals full visual fields to direct confrontation testing. Funduscopic examination reveals sharply demarcated disc margins without optic pallor. There is no retinopathy. Pupils are 3 mm and react briskly to direct and consensually presented light. The extraocular movements are conjugate and full in all planes of gaze. The motor examination reveals a static hypotonia with dynamic hypertonicity most prominent in the lower extremities. At rest, Tristen demonstrates an overly full range of motion at all joints. He will then stiffen with activated movement. There are bilateral AFO's in place. Tristen shows no evidence of stable weightbearing and has poor head control with the head flopping forward. He has a wide based stance and demonstrates truncal ataxia. He is able to grasp objects only with a palmar grasp and has no evidence of developed pincher grasp in either hand. He tends to grasp cubes but cannot transfer and drops them readily. He cannot build a tower of cubes. There are no pathological reflexes. The deep tendon reflexes are 2+ in the upper extremities but 3+ at both knees and 3+ at the ankles. There are bilateral Babinski responses. The spine is straight without dysraphic features. Tristen maintains a plantar grade attitude when held in the vertical position. His shoulder girdle seems to slip through the examiner's hands. 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. As for the etiology of Tristen's impairments, it was Dr. Duchowny's opinion, based on the results of his neurologic evaluation of Tristen and review of the medical records, that, while of unknown etiology, Tristen's impairments were most likely developmentally based, and not associated with oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or the immediate postpartum period. In so concluding, Dr. Duchowny observed that the impairments demonstrated by Tristen are consistent with the syndrome of ataxic cerebral palsy, a developmentally-based brain disorder acquired before the onset of labor. Dr. Duchowny was also of the opinion that the medical records did not reveal evidence of a substantial mechanical or hypoxic event having occurred during labor and delivery. As for the significance of Tristen's impairments, it was Dr. Duchowny's opinion that Tristen is permanently and substantially physically impaired. However, mentally, Tristen is not similarly affected or, stated otherwise, he is not permanently and substantially mentally impaired. Notably, Dr. Duchowny's opinions were uncontroverted, grossly consistent with the record, and credible.
