The Issue At issue is whether Joshua P. Hammon, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Joshua P. Hammon (Joshua) is the natural son of Jacqueline L. Blalock. He was born a live infant on March 24, 1992, at Tampa General Hospital, a hospital located in Tampa, Hillsborough County, Florida, and his birth weight was in excess of 2,500 grams. Joshua was delivered by a resident physician of Tampa General Hospital, with Michael Parsons, M.D., attending and supervising. Dr. Parsons was, at all times material hereto, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. During the course of labor, delivery or resuscitation in the immediate post-delivery period in the hospital, Joshua received an injury to the brain caused by oxygen deprivation and mechanical injury. At issue here is whether such injury rendered Joshua permanently and substantially mentally and physically impaired. Addressing first the issue of mental impairment, the proof demonstrates that the insult Joshua received to his brain at birth did impact his mental abilities, and contributed to a delay in his cognitive development. The effect of such insult has, however, resolved over time, and in the opinion of Michael S. Duchowny, M. D., a pediatric neurologist associated with Miami Children's Hospital, whose opinion is credited, Joshua does not currently suffer a permanent and substantial mental impairment, and his subsequent mental development will be normal or near normal. Having resolved that Joshua's injury did not result in permanent and substantial mental impairment, it is not necessary to address the degree of physical impairment, if any, Joshua suffered as a consequent of the brain injury he sustained at birth.
Findings Of Fact By stipulation filed December 2, 1993, petitioners and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Florida Statutes, a claim was filed on behalf of the above-styled infant against the Florida Birth-Related Neurological Injury Compensation Association (the "Association") on behalf of Jasmin Soto, Violeta Rodriguez and Luis Soto (the "Petitioners") for benefits under Chapter 766.301-766.316 (F.S.) 1988. That a timely filed claim for benefits complying with the requirements of F.S. 766.305 was filed by the Petitioners and a timely denial was filed on behalf of the Association. That the infant, Jasmin Soto, was born at Baptist Hospital on September 29, 1990, and that the said hospital was a licensed Florida Hospital and the attending physician was a participating physician within the meaning of Chapter 766, Florida Statutes. That the Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. That Section 766.302(2), Florida Statutes, 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 in a hospital, which renders the infant permanently and substantially, mentally and physically impaired. The parties agree that Jasmin Soto suffers from a right brachial plexus injury. That the parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., who appears on behalf of the Respondents and Leon I. Charash, M.D., who appears on behalf of the Petitioner. While Dr. Charash has not been deposed, Dr. Duchowny has been deposed and his deposition is submitted as part of this Stipulation. 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 Petitioner's claim based upon this Stipulation, the attached medical records and the deposition of Dr. Duchowny. The neurological examinations of Jasmin reveal that she suffered from a "mild" to "moderate" right Erb's palsy related directly to the right 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. Moreover, Jasmin's mental functioning is normal and not impaired due to any birth- related complications.
Findings Of Fact Based on the stipulation of the parties, the following facts are found: Matthew Williams and Joy Williams (Petitioners) are the parents and natural guardians of Jesse Williams (Jesse), and are the “claimants” as defined by section 766.302(3). Jesse incurred a “birth-related neurological injury” as that term is defined in section 766.302(2), on or about December 26, 2018, which was the sole and proximate cause of Jesse’s injury. At birth, Jesse weighed 3,640 grams. Adrienne George, M.D., rendered obstetrical services in Jesse’s delivery, and, at all times material to this proceeding, was a “participating physician” as defined in section 766.302(7). TMH is a hospital located in Tallahassee, Florida, and is the hospital where Jesse was born. TMH is the “hospital” as that term is defined in section 766.302(6). Jesse died on March 28, 2019. Petitioners filed a petition pursuant to section 766.305, seeking compensation from NICA, and that petition is incorporated by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth- Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Based upon the evidence adduced at the July 14, 1993, Division-conducted hearing in this case, and the record as a whole, the following Findings of Fact are made: Kathleen Behan is the natural daughter of Mary Lou and Gerald Behan. She was born on November 30, 1989, at Plantation General Hospital in Broward County, Florida. Her birth weight was in excess of 2500 grams. Kathleen was delivered by caesarian section performed by the family's obstetrician, Mariano J. Rodriguez, Jr., M.D., after her mother had experienced a spontaneous rupture of the fetal membrane. At the time of Kathleen's birth, Dr. Rodriguez was a participant in the Florida Birth-Related Neurological Injury Compensation Plan. Kathleen had an Apgar score of 6 one minute after birth and an Apgar score of 9 five minutes after birth. Apgar scores reflect the attending physician's or nurse's assessment of the newborn infant's well-being based upon clinical observations regarding the infant's heart rate, respiratory effort, color, muscle tone, and reflexes. The higher the score, the greater the state of well being. The highest score attainable is a 10. Apgar scores are commonly used to determine if a newborn infant has suffered a neurological injury of a substantial and permanent nature during labor or delivery or in the immediate post-delivery process. Kathleen's Apgar scores are not consistent with her having suffered such a birth-related injury. After her condition was evaluated, Kathleen was taken from the delivery room to Plantation's "well-baby" nursery. She remained there without incident until December 2, 1989, when she was found asystolic in her crib after having experienced an acute life-threatening event or ALTE. Kathleen was resuscitated and survived the incident. She, however, has neurological impairment. The neurological impairment from which she now suffers was not the product of oxygen deprivation or mechanical injury that occurred during labor or delivery or in the immediate post-delivery period.
The Issue At issue in the proceeding is whether James Russell, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Lisa Russell and William Russell, III, are the parents and natural guardians of James Russell (James), a minor. James was born a live infant on February 12, 1997, at Columbia Memorial Hospital, a hospital located in Jacksonville, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of James was Brent Seibel, 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(2), Florida Statutes. Pertinent to this case, coverage is afforded under the Plan, when the claimants demonstrate, more likely than not, that the infant suffered an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, James' mental presentation is dispositive of the claim and it is unnecessary to address the cause or timing of any injury he may have suffered. To address James' physical and mental status, the opinions of Michael Duchowny, M.D., a pediatric neurologist were offered. (Respondent's Exhibit 1). It was the uncontroverted opinion of Dr. Duchowny that, while James suffers a permanent and substantial physical impairment, he does not suffer a permanent and substantial mental impairment. Consequently, it must be resolved that the proof failed to demonstrate that James was "permanently and substantially mentally and physically impaired," as required for coverage under the Plan.
