The Issue At issue in this proceeding is whether Erika Calle, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimant demonstrates, 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, Erika's physical presentation is dispositive of the claim and it is unnecessary to address her mental presentation, or the timing or cause of her condition. Erika's physical presentation To address Erika's present physical status, the parties offered the opinions of Trevor Resnick, M.D., a pediatric neurologist; Michael Duchowny, M.D., a pediatric neurologist; and Marilyn Lerman Taché, a speech-language pathologist.1 Those opinions are grossly consistent and conclude that Erika evidences no motor impairment. Consequently, it must be resolved that Erika is not "permanently and substantially . . . physically impaired," as required for coverage under the Plan.
The Issue At issue is whether Maxwell Hubmann, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts related to compensability Petitioners, Roger and Sara Hubmann, are the parents of Maxwell Hubmann, a minor. Maxwell was born a live infant on March 25, 2008, at Sacred Heart Hospital, a hospital located in Pensacola, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were delivered at Maxwell's birth by Brian Sontag, 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 . . . caused by . . . 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, the parties have stipulated, and the proof is otherwise compelling, that Maxwell suffered a traumatic brain injury during the delivery process. (Transcript, pp. 9 and 10; Respondent's Exhibits 1-4). What remains to resolve is whether such injury rendered Maxwell permanently and substantially mentally and physically impaired. To address the nature and significance of Maxwell's injury, NICA offered the affidavit and report of Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology, who evaluated Maxwell on January 28, 2009. Based on his evaluation, as well as his review of the medical records, Dr. Duchowny was of the opinion that while Maxwell suffered a traumatic brain injury during delivery, his mental function was normal and his motor deficit was quite mild. In so concluding, Dr. Duchowny documented the results of his examination, as well as his conclusions, as follows: PHYSICAL EXAMINATION today reveals an alert, well-developed and cooperative, well- nourished 10-month-old infant. Maxwell weighs 24 pounds and is 30 inches in height. The skin is warm and moist. There are no neurocutaneous stigmata. The hair is blond and of normal texture. The spine is straight without dysraphism. The head circumference measures 46.1 centimeters which is within standard percentiles. The anterior and posterior fontanels are patent and flat. There are no cranial or facial anomalies or asymmetries. The tongue and palate are moist. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory, and abdominal examinations are unremarkable. Maxwell's NEUROLOGICAL EXAMINATION reveals him to be alert, cooperative and fully attentive. He is quite sociable and maintains an age appropriate stream of attention. He has good central gaze fixation with conjugate following movements. The pupils are 3 mm and react briskly to direct and consensually presented light. Funduscopic examination revealed no abnormal retinal findings. There are no significant facial asymmetries of movement. The uvula is midline and the pharyngeal folds are symmetric. Tongue movements are full in all planes. Motor examination reveals an asymmetry of movement with relatively greater movement on the right side. The left upper extremity has mild stiffness but has full range of motor. There is fine motor dexterity of both hands but Maxwell demonstrates a right arm preference and will preferentially reach for an object with the right hand. When an object is moved to the left, he will ultimately offer the left and readily transfers between hands. He has symmetrical movement of both legs. He has well-developed traction and grasp responses and good head control for age. The deep tendon reflexes are slightly exaggerated being 3+ at the knees and biceps. There are no pathologic reflexes. Plantar responses are downgoing. He can stand and bear weight with good axial tone and support does not take steps independently. He has good sitting balance as well. Sensory examination is intact to withdrawal of all extremities to stimulation. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Maxwell's neurological examination reveals that his motor developmental milestones are on time despite a very mild asymmetry of movement and muscle tone in the upper extremities. He is preferentially a right hander due to the motoric asymmetry. In other respects, Maxwell's neurologic status is quite good and his overall level of mental functioning appears to be on target at age level. I have had an opportunity to fully review the medical records which were mailed on January 12, 2009. The records indicate that Maxwell's neurologic problems at birth were the result of mechanical injury acquired during the delivery process. However, he has made remarkable progress and his mental function is normal and his motor deficit is quite mild . . . . (Respondent's Exhibits 3 and 4). Here, the opinions of Dr. Duchowny were logical, consistent with the record, not controverted, and not shown to lack credibility. Consequently, it must be resolved that Maxwell's brain injury did not render him permanently and substantially mentally and physically impaired. See Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation.").
The Issue The issue in this case is whether Ailani Sanchez suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan).
Findings Of Fact Ailani Sanchez was born a live infant at 5:46 a.m., on October 29, 2015, at Lakeland Regional Medical Center. Ailani was a single gestation, weighing 2,950 grams at birth. Ailani was delivered via cesarean section for suspected abruption/velamentous insertion of cord by Dr. Zollicoffer who was a NICA participating physician on October 29, 2015. Ailani's Apgar scores were 2/4/4. Upon delivery, she was floppy and pale and had no respiratory effort. Pulse oximetry was within target saturations for age and her heart rate remained 100 or greater. She was intubated at seven minutes of age and transferred to the Neonatal Intensive Care Unit (NICU). No seizures were noted. Ailani had increasing spontaneous respiratory effort and whole body cooling was started prior to her transfer to St. Joseph's Hospital NICU on October 29, 2015. Upon admission to St. Joseph's Hospital on October 29, 2015, Ailani was lethargic with decreased reactions to stimuli, but appeared pink and well perfused. Neurologically, she was noted to be improving; she was breathing spontaneously and moving all extremities to stimuli. After a complicated newborn hospital course, Ailani was ultimately discharged from St. Joseph's Hospital on January 6, 2016. At the time of her discharge, she was noted to be feeding by mouth and was overall gaining weight. Prior to her discharge, an EEG on October 30, 2015, showed seizures predominantly on the right side of her brain and generalized brain dysfunction. A brain MRI obtained on November 5, 2015, revealed restricted diffusion related to acute infarction in the right temporal occipital region with laminar necrosis. Additional laminar necrosis in the frontal lobes and insular cortex bilaterally was noted. An EEG on November 16, 2015, was consistent with nonspecific cerebral dysfunction with occasional sharp waves in the temporal parietal regions bilaterally with no evidence of seizures and irregular slow waves with slightly more predominance to the right. Ailani was seen for a newborn visit by her pediatrician, Dr. Bou Salvador, on January 7, 2016. Nutritionally, she was noted to be breast feeding adequately, with supplements with formula. Developmentally, she was noted to have equal movements of all extremities and follow midline. She responded to a bell and was able to lift her head while lying on her stomach. Examination of her spine, extremities, and peripheral pulses were all normal. Neurologically, she was reportedly normal, with normal strength, tone, and reflexes reported. On January 19, 2016, Ailani was evaluated at All Children's Outpatient Care upon referral by St. Joseph's Hospital secondary to hypoxic ischemia. The occupational therapist's impression included decreased bilateral coordination, decreased developmental milestones, decreased gross motor skills, decreased play skills, decreased strength, and fine motor deficits. Skilled therapy was identified to have the potential to improve her functional level in the areas of manipulation. It was recommended that Ailani undergo 30 minutes of occupational therapy once a week for six months. Her prognosis for achieving goals established by her therapist was noted to be excellent. On February 4, 2016, Ailani was evaluated for participation in, and deemed eligible for, the Early Steps Program. On February 18, 2016, Ailani was evaluated by Dr. Qureshi at Kids Neurology. Developmentally, she was noted to smile and coo and focus. It was noted that Ailani had three seizures at the age of one day old, but none since. At this time, she was taking Keppra and Phenobarbital, from which she was being weaned. A sleep deprived EEG, obtained since the last visit, was normal. She was noted to be doing very well neurologically. Her physical examination revealed she was lifting her chest and head with her arms extended. Early head control with bobbing motion was noted. She was noted to say "aah," smile, and follow pass midline. The plan noted at this time was to continue to wean and discontinue Keppra and Phenobarbital. Ailani was again seen by Dr. Bou Salvador on March 4, 2016, for her four-month well visit. Nutritionally, she was noted to be feeding with formula adequately. She had been started on solids for one to two feeds. Developmentally, she was noted to squeal and laugh. She was able to follow 180 degrees. She turned to void and was able to hold her head up 90 degrees while lying on her stomach. She was able to sit with support with her head up. She was able to pull to sit with no head lag. She could bring her hands together and had no persistent fist clenching. Her physical examination was normal. Her neurological examination was also normal, with normal strength, tone, and reflexes reported. Ailani was again seen by Dr. Bou Salvador on May 4, 2016, for her six-month well visit. Nutritionally, she was noted to be breast feeding adequately. Developmentally, she was noted to be social and smiling responsively. Adaptive equal movements of all extremities and the ability to follow midline were noted. She could respond to a bell and was able to lift her head while lying on her stomach. A physical examination was normal. A neurological examination was also normal, with normal strength, tone, and reflexes reported. On May 24, 2016, Ailani returned to Dr. Qureshi at Kids Neurology. It was noted that Ailani had been weaned from her seizure medication and had had no seizures for the last three months. She was noted to be doing very well neurologically. Physically and developmentally, she was noted to have no head lag, to be rolling over, to have her chest up in a prone position, to be trying to crawl, to be lifting her head, and to be sitting briefly unsupported. She was also noted to be leaning forward on her hands, engaging in bounce activity, supporting most of her weight, reaching out and grasping large objects, transferring from hand to hand, babbling, enjoying mirror, and using polysyllable sounds. She was noted to be feeding herself. Dr. Qureshi reported that Ailani was in occupation therapy but that it was on hold since her evaluation was "pretty unremarkable." Ailani was noted to be progressing well for her age and was receiving Early Steps intervention once a week at home. She was given a prescription of Phenobarbital for use only if a seizure occurred. On June 18, 2016, Ailani was seen by Dr. Frances Arrillaga at Pediatric Cardiology Associates for a cardiology consultation secondary to a history of pulmonary hypertension, and an echocardiogram that showed a patent foramen ovale (PFO). Ailani's mother reported that since her discharge from St. Joseph's, she was doing well. Cyanosis, difficulty breathing and unexplained diaphoresis and feeding problems, were denied. An echocardiogram on this date showed a PFO, with otherwise normal anatomy. There were normal right ventricular (RV) pressures, normal left ventricular (LV) size and function. No cardiovascular restrictions were given and she was told to return in one year for further follow up. Ailani was again seen by Dr. Bou Salvador on August 4, 2016, for her nine-month well visit. Nutritionally, she was reported to be feeding adequately. She was feeding 2 to 3 varieties of solid foods with no problems and was starting with a cup for water and juice. Developmentally, she was reported to be playing pat-a-cake and looking for fallen objects. She could bang two cubes in her hand with thumb-finger grasp. She could say "dada" and "mama" and walk while holding on. She was also noted to be crawling and standing momentarily. Her physical and neurological examinations were noted to be normal, with normal strength, tone, and reflexes noted. An August 22, 2016, a progress note from Early Intervention reflects that Ailani was babbling two syllables together, was happy, pulling to a stand and cruising along furniture, and was responding to her name. Attendance at Early Intervention was noted to be consistent and once a week. Ailani was again seen by Dr. Bou Salvador on November 3, 2016, for her 12-month well visit. Nutritionally, she was noted to be eating two to three varieties of solid foods with no problems and was feeding herself finger foods. Developmentally, she was reported to be playing pat-a-cake and drinking from a cup. She was able to bang two cubes held in her hands with thumb-finger grasp. She was saying "mama" and "dada," imitated speech sounds, could say three words other than "mama" and "dada," and understood "no." She was able to walk while holding on, and was reported to stand alone and walk well. A physical examination revealed normal extremities. A neurologic examination was also normal, with normal strength, tone, and reflexes reported. On November 21, 2016, Ailani returned to Dr. Qureshi at Kids Neurology. It was noted that Ailani had been weaned off medications six months earlier and had no seizure activity since. She was noted to be doing very well. It was noted that no therapy was being provided at this time, although she was evaluated for occupational therapy but did not qualify for it. Developmentally, she was noted to be walking with one hand held, rising independently, taking several steps, getting to sitting, pulling to stand, standing for two seconds, saying a few words besides "mama" and "dada," playing ball game, making postural adjustment to dressing, waiving "bye bye," and indicating what she wants. She was noted to have pincer grasp, releasing objects to others when grabbed, and banging two things. Dr. Qureshi noted "she is doing amazing right now." A December 24, 2016, emergency room record (for a cough/choking episode after eating a piece of Dorito) from Florida Hospital Tampa reflects that Ailani had not had seizures since birth, and had been off Keppra and Phenobarbital for almost a year. A physical examination revealed an active, well- developed, and well-nourished child. Neurologically, she was noted to be awake, alert, and interacting with family and staff. She was also noted to be active and playful. An Early Intervention progress note from February 15, 2017, reflects Ailani had age-level play skills, could communicate using vocalizations and some single words, could follow routine directions, and was independent with walking and floor transfers. Good progress was noted to be made, many goals were reported met, and the parents decided to reduce services to one time per month. On January 30, 2017, Ailani was reevaluated for participation in Early Steps. It was noted that Ailani's mother had no concerns at this time. The report notes that Ailani liked the slide, liked to kick the ball, liked to play with her siblings and cousins, and that she is very curious. No hearing or vision concerns were noted. It was reported that many of her goals had been met, and that Ailani was using a variety of vowels and consonants, identifying at least three family members when named, that she was saying a variety of words, and was using a sign for "more food." Ailani was noted to still be eligible for Early Steps secondary to her diagnosis of hypoxic ischemic encephalopathy. Ailani was seen by Dr. Bou Salvador on March 28, 2017, for her 16-month well visit. She was noted to have good eating habits and a good appetite. No mealtime problems were reported, and she was noted to be eating solid foods with no problems. She was noted to have socially appropriate behavior for her age. She was talking well and was able to balance on one foot for five seconds, could throw a ball overhead, and pedal a tricycle. Her orthopedic and neurologic examinations were normal, with normal strength, tone, and reflexes reported. At the request of NICA, Donald C. Willis, M.D., who specializes in obstetrics and gynecology and maternal-fetal medicine, reviewed the medical records included in the Stipulated Record as Joint Exhibits A through G. In his report dated August 2, 2017, which was admitted into evidence without objection, Dr. Willis noted in pertinent part that Ailani's mother was cramping when she presented to the hospital, and was three centimeters dilated with suspected amniotic membranes ruptured. Contractions were noted to be occurring occasionally. Medical records indicated the presence of late decelerations on admission, which progressed to bradycardia, for which an immediate Cesarean section was recommended. Dr. Willis observed that Ailani was depressed at birth with Apgar scores of 2/4/4, and that cord blood gas was abnormal with a pH of only 6.97. He further noted that Ailani was floppy, pale, and had poor perfusion; that bag and mask ventilation was initiated, followed by intubation for continued respiratory distress; that hypotension was present and required IV fluids; that the initial blood count was low; and that Ailani remained acidotic after birth with a pH of 6.7 and a base excess of -27 at 90 minutes after birth. Dr. Willis further noted Ailani's hospital course consistent with her medical records and ultimately opined that “there was an 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.” Dr. Willis was unable to comment about the severity of the injury, however. At the request of NICA, Laufey Y. Sigurdardottir, M.D., who is board certified in neurology and specializing in pediatric neurology, reviewed the medical records included in the Stipulated Record as Joint Exhibits A through G, and performed a thorough examination of Ailani on October 18, 2017. Dr. Sigurdardottir's summary of Ailani's medical history, along with her findings upon a full physical and neurological examination, is documented within her written report, which was admitted into evidence without objection. Dr. Sigurdardottir noted that Ailani was a non-dysmorphic, interactive toddler with normal facial features and apparently intact vision. No abnormalities in Ailani's extremities were noted other than occasional toe walking. Neurologically, Ailani was noted to be interactive, curious, and exhibiting normal joint attention. Ailani exhibited pretend play with a stethoscope, said the word "mom" a few times, pointed to her mouth when asked to do so, enjoyed playing with a tablet computer, shook her head for "no," exhibited understandable words, and exhibited no autistic features. Cranial nerves were intact, facial grimacing was symmetric and normal, and hearing seemed intact. No drooling was noted. Muscle tone was noted to be normal, strength was full and symmetric and deep tendon reflexes were symmetric and within normal limits. Gross and fine motor skills were noted to be within normal limits for age. Overall, Dr. Sigurdardottir determined that despite her initial abnormal neurological examination, and delays in early development, Ailani's current neurologic and developmental functioning is age-appropriate. She went on to opine in relevant part that, Ailani is not found to have substantial delays in motor and mental abilities at this time . . . . In review of available documents, there is evidence of impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation . . . . The prognosis for full motor and mental recovery is excellent and the life expectancy is full In light of evidence presented I believe Ailani does not fulfill criteria of a substantial mental and physical impairment at this time. I do not feel that Ailani should be included in the NICA program. Neither Petitioner nor Intervenor submitted or introduced into evidence any expert reports rebutting the opinions of Dr. Willis and/or Dr. Sigurdardottir.
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 in this proceeding is whether Thalya Greene, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Daniel Greene and Lizbeth Greene, are the parents and natural guardians of Thalya Greene (Thalya), a minor. Thalya was born a live infant on August 27, 1998, at Baptist Medical Center, a hospital located in Jacksonville, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during Thalya's birth was R. William Quinlan, 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. Thalya's birth At or about 4:35 a.m., August 27, 1998, Mrs. Greene (with an estimated date of confinement of September 19, 1998, and the fetus at 36+ weeks) presented to Baptist Medical Center in early labor. Vaginal examination revealed the membranes to be intact, and the cervix at 3 centimeters dilatation, effacement at 50 percent, and the fetus at station -2. External fetal monitoring applied at 4:37 a.m., reflected a reassuring fetal heart tone, and Mrs. Greene was admitted to labor and delivery at or about 4:40 a.m. Mrs. Greene's labor progressed steadily, and external fetal monitoring reflected a reassuring fetal heart tone throughout the course of labor and delivery. At or about 7:30 a.m., dilatation was noted as complete; at 7:49 a.m., the membranes were artificially ruptured, with clear fluid noted; and at 7:55 a.m. Thalya was delivered spontaneously (cephalic presentation) without incident. On delivery, Thalya was noted as "pale blue" in color, and was bulb suctioned and accorded free flow oxygen; however, she breathed spontaneously, and did not require resuscitation. Initial newborn assessment noted no apparent abnormalities. Apgar scores were recorded as 7 at one minute and 8 at five minutes. The Apgar scores assigned to Thalya are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute, Thalya's Apgar score totaled 7, with heart rate, muscle tone, and reflect irritability being graded at 2 each; respiratory effort being graded at 1; and color being graded at 0. At five minutes, Thalya's Apgar score totaled 8, with heart rate, respiratory effort, muscle tone, and reflex irritability being graded at 2 each, and color again being graded at 0. Thalya was admitted to the newborn nursery at or about 8:50 a.m. Assessment on admission was grossly normal. Thalya's status post-delivery was uneventful until 11:30 a.m. (approximately 3 1/2 hours after delivery) when she experienced a choking episode (secondary to spitting up) and turned dusky over the face and chest. In response, Thalya was placed under a radiant warmer, suctioned, and given blow by oxygen (for approximately 3 minutes) until she pinked up. Thereafter, Thalya's course was again uneventful until 1:00 a.m., August 28, 1998, when she again appeared dusky, and was accorded blow by oxygen. At the time, it was noted that the CBC drawn during the first dusky spell was within normal limits and that the blood culture that had been obtained was preliminarily negative. Thereafter, Thalya's course was again without apparent complication until approximately 10:23 p.m., when she "became dusky not associated with feed," and was again suctioned and accorded blow by oxygen. At that time, Thalya was noted as "pink and intermittently tachypneic with rare grunting." Following neurologic consult, Thalya was transferred to the neonatal intensive care unit (NICU) for further observation and management. Thalya was received in the NICU at 10:34 p.m. At the time, she was observed as "warm and pink with grunting noted." EKG leads were applied and revealed a heart rate of 180, respiratory rate of 50, blood pressure of 76/49, and a rectal temperature of 100.3. Examination revealed nystagmus (an involuntary rapid movement of the eyeball) and some jerky movements of her extremities. CBC showed a white blood count of 5,000, and blood culture was ordered. Working diagnosis was "suspected septis" and Thalya was started on ampicillin and gentamicin. At 12:35 a.m., August 29, 1998, Thalya evidenced symptoms of seizure activity, and was loaded with phenobarbital. Spinal tap of August 29, 1998, as well as the results of the blood culture drawn of August 28, 1998, was positive for Group B Streptococcus. An infectious disease consult was obtained and Thalya was managed on antibiotics for three weeks, and maintained on phenobarbital for her seizure activity. CT and MRI of the head on August 29, 1998, were normal; however, a head ultrasound of September 3, 1998, showed minimal intra-axial fluid. Chromosomal studies were normal. Thalya was discharged to her parents' care on September 15, 1998, on phenobarbital and ampicillin. Final diagnosis on discharge included bacterial infection due to Streptococcus, Group B; streptococcal meningitis; and seizures. Thalya's subsequent development Following her discharge from Baptist Medical Center, Thalya was initially followed by Carlos H. Gama, M.D., a pediatric neurologist. Dr. Gama's first neurological examination occurred on November 3, 1998, when Thalya was 2 months of age, and was reported as follows: I had the opportunity of seeing Thalya for a neurological evaluation. The following are my diagnosis and recommendations. Diagnosis: Status post neonatal Group B Streptococcal meningitis. Seizures. Hypotnia. Recommendations: Obtain EEG. Obtain trough Phenobarbital level. Obtain records. Return to this office in one month for reevaluation and further recommendations. Comments: * * * . . . Since discharged from NICU mother reports that Thalya had done well. She is feeding well and thriving. No seizures have been noted. She continues on Phenobarbital, taking 4mls po bid. A blood level was obtained prior to this visit but this result is not available. Mother reports that Thalya has normal awake and sleep cycles. She seems to be moving all extremities spontaneously and symmetrically. There has not been any apneic spells or unusual behaviors suggestive of seizure like activity . . . . The examination today reveals a head circumference is 40.5cm (in the 90th percentile). Her weight is in the 90th percentile and height is in the 50th percentile. The baby is alert. She is able to turn her eyes to light, but does not track the examiner in a 90 degree range. The pupils were equal and reactive. Red reflex was present bilaterally. Facial grimace was symmetric. Suck was appropriate. Strength seems to be grossly unremarkable. Deep tendon reflexes were +2 in the upper extremities, +3 in the lower extremities at the knees and +2 at the ankles. No clonus was seen. Babinski's were present bilaterally. There was evidence of hypotonia of her axial musculature, being approximately moderate in severity. There was also decrease in head control. The patient's moro reflex reveals appropriate abduction of her upper extremities symmetrically. Traction response was decreased. Tone and neck reflex was absent. Palmar and Plantar reflexes were present. Muscle tone was low. The sensory examination to touch seemed to be unremarkable. Spine examination was noncontributory. The patient has no obvious dysmorphic features, organomegalies or skin abnormalities. Anterior fontanel was open and normal tense with no musculatures. Therefore, it is my opinion that Thalya has a history of neonatal Group B Streptococcal meningitis and sepsis associated with seizures. She is now seizure free. Her examination is remarkable for hypotonia, which most likely is on central basis. Therefore, the above recommendations were made. She will be reassessed in one month in this office. The EEG (Electroencephalogram) recommended by Dr. Gama was obtained on November 9, 1998, and read as abnormal. Specifically, the EEG report noted: This EEG is abnormal because of mild background disorganization which was seen bilaterally but more prominently over the right hemisphere, especially in the frontal region. This finding suggest[s] a diffused cerebral dysfunction such as seen in mild encephalopathy. In addition, a structural lesion in the right hemisphere cannot be excluded. Thalya was next seen by Dr. Gama on December 7, 1998. The results of that examination were reported as follows: Diagnosis: Seizure disorder. Stable on Phenobarbital. S/P [status post] Bacterial Group B Streptococcal Meningitis. Hypotonia. Developmental delay. Abnormal EEG. * * * Comments: . . . Thalya continues to be active. She is feeding well and gaining weight properly. She is making more cooing sounds and attempting to roll over, but she has not been successful in this area. Her examination demonstrates that her head circumference is 42cm. She is alert. She follows the examiner. Her pupils are equal and reactive. Face is unremarkable. She does seem to stick her tongue out intermittently. The motor examination demonstrates that she has decrease traction and head control for her age. She also has a tendency to keep her hands fisted, but this is only intermittently. She does not reach for objects yet. She is unable to hold weight in her lower extremities. Muscle tone seems to be slightly decreased in the axial musculature in particular. Therefore, it is my recommendation that we proceed with an MRI of the brain to rule out structural abnormalities of the right hemisphere.1 In addition, we have discussed the treatment with Phenobarbital. This should be continued for at least six months before making any further recommendations . . . She will be reassessed in this office in 1-2 months. Dr. Gama's next neurological examination of Thalya occurred on January 12, 1999, and was reported as follows: Diagnosis: Seizure disorder. Stable on Phenobarbital. S/P bacterial group B streptococcal meningitis. Hypotonia. Improving. Borderline developmental delay. Abnormal EEG * * * Comments: Thalya is doing extremely well. She is getting physical therapy twice a week and making progress. She is more attentive. She follows the examiner in a 180 degree range. She has good social skills. Anterior fontanel is soft. Head circumference is 44cm which is slightly above the 90th percentile, but she has been growing parallel to this with no problems. Cranial nerve examination is unremarkable. Motor examination demonstrates that she is unable to put weight in lower extremities, otherwise, she moves all extremities spontaneously. Deep tendon reflexes were unremarkable. No obvious pathological reflexes were elicited during today's visit. Muscle tone was normal to low. Denver Developmental Screen test reveals that she seems to be appropriate for her age in most of the areas. However, she is unable to roll over but she is showing some attempts to do this. The rest of the examination was noncontributory. Thalya was last seen by Dr. Gama on April 29, 1999, and he reported the results of that follow-up neurological examination as follows: Diagnosis: Seizure disorder. Stable on Phenobarbital. S/P Bacterial Group B Streptococcal Meningitis. Hypotonia. Improved. Comments: Thalya continues to do extremely well, with no recurrent seizures. She is tolerating the medication properly . . . . The patient continues to make progress in her development. The examination today demonstrates that her head circumference is 46.7cm. She is maintaining this in the 90th percentile. She has no obvious focal or lateralizing deficits. Her muscle tone has improved considerably and she is gaining milestones appropriately. She was felt to be at her age level in most of the areas tested . . . . Thalya's subsequent neurologic development was followed by Joseph A. Cimino, M.D., a board-certified pediatric neurologist. Dr. Cimino reported the results of his first neurological examination by October 15, 1999, as follows: DIAGNOSES: 1) GBS meningitis/sepsis. Neonatal seizures. Static encephalopathy with motor and language delay. * * * DEVELOPMENTAL HISTORY: The history is obtained from the parents. The child rolled from front to back at 7 months, back to front at 8 months, sat at 7 to 8 months, crawled at 11 months. She was getting in to sitting at 10 to 11 months, pulled to stand at 12 months, began to cruise at 13 months, is not yet walking independently, says mama but not specifically, does not say dada nor does she wave hi or bye. She began physical therapy at 3 months of age and this was initially twice a week and 1 month ago was decreased to once a week. She is not in speech therapy, although the family states the EIP evaluation at 10 months showed she had a receptive language at 4 months. The concern is that audiological evaluation have shown some missed frequency hearing deficit. * * * PHYSICAL EXAMINATION: The head circumference is 48 1/4 cms which is between the 75th and 98th percentile for chronologic age of 14 months. GENERAL EXAM: On inspection this is a well- nourished, healthy youngster who is alert and attentive. The abdomen was soft and nontender without organomegaly. The cardiovascular exam revealed regular rate and rhythm and no murmurs were appreciated. No cranial bruits are noted. The extremities were normal. The lungs were clear to auscultation. The skin exam was without café au lait spots or hypopigmented macules. The spine was without hair tufts or dimpling. In observing this child crawl and again reaching for objects I did not see any focality, nothing to suggest an old infarction which may be a complication of neonatal bacterial meningitis. In addition a CT scan was reported as negative. NEUROLOGICAL EXAM: The child is very social and attentive with good reciprocal play with a puppet. She smiled quite easily. Although with hands-on evaluation she did become irritable and cried. Assessment of tone was quite difficult. She tracked very nicely with full extraocular movements no ophthalmoparesis or nystagmus. The pupils were equal and reactive to light and facial movements were symmetric. I was not able to get an adequate look at the fundi. Corneal reflexes were intact. With regards to the motor exam, she reached quite nicely for objects without preference. She in fact did crawl well, transitioned into a sitting position but did W sit, usually associated with low muscle tone. With hands-on exam it was very difficult as she was crying and had a lot of active resistance to know exactly the status of her tone. She pulls to stand with a mature pattern with hip flexion. She sat quite nicely with her back straight, able manipulate objects. She did not slip through my grip on vertical suspension. Her deep tendon reflexes were 2/4 and symmetric in both the upper and lower extremities. The sensory exam was grossly intact to pain. IMPRESSION: GBS meningitis/sepsis . . . early onset. Neonatal seizure without recurrence, successfully tapered off of Phenobarbital. Prematurity 36 weeks gestation. Language delay. I think at 13 months adjusted age she should be saying mama and dada specifically, have more jargoning, waving hi and bye, and say several other words in addition to mama and dada which are used specifically. There is clearly risk of hearing deficit given meningitis and the use of Gentamicin and this child needs to be followed closely. History of motor delay. Clearly rolling at 6 months adjusted age is delayed. Sitting at 6 to 7 months adjusted age is normal, the family gave a chronologic age of 7 to 8 months but at 36 weeks gestation it is fair to make a 1 month adjustment which I am assuming they would do at EIP. She began to cruise at 13 months chronologic age which is 1 year. Her adjusted age is now 13 months and clearly walking independently can be normal up to 18 months at the outside limits. She appears to be making nice improvement in this area . . . . Thalya was next seen by Dr. Cimino on May 1, 2000, and most recently on November 10, 2000. Dr. Cimino reported the results of his most recent follow-up examination as follows: DIAGNOSES: 1) GBS meningitis. Neonatal seizures. Prematurity 36 weeks gestation Language delay. CLINICAL HISTORY: This is a 2 year old female seen in follow up on 5/1/2000. At that time she was having episodes of spacing out. We obtained an EEG that was normal for the awake and sleep state. Because of the GBS meningitis and developmental delay we obtained an MRI also done in September that was normal. She underwent a speech evaluation on 6/23/2000 that showed auditory comprehension at 9-12 months, verbal expression at 6-9 months. Impression was overall global delay and she has been in speech therapy twice a week at Brook's Rehab. Her chronologic age at the time of the evaluation was 22 months. At this time she began to walk at 15 months. She says mama and specifically, dada non- specifically. She will repeat words but does not have a lot of spontaneous words. She does wave hi and bye. PHYSICAL EXAMINATION: The head circumference is 50 1/4 cms which is between the 75th and 98th percentile. This continues to grow at the same rate. She is crying and extremely uncooperative. She is very frightened by many of her past appointments. She did track, had full extraocular movements without nystagmus or ophthalmoparesis. Her facial movements do appear sysmetric. Tone is low even with her resisting. She ran to her mother, I did not see any abnormalities. Her gait certainly was not wide based. She seemed to get off the floor well. Her sensory exam was grossly intact to pain. The deep tendon reflexes were difficult due to her withdrawal. IMPRESSION: Status-post Group B strep neonatal meningitis with neonatal seizure without recurrence. Language delay. Most likely reflecting sequela of the meningitis. There is a good percentage of these children who do have severe deficits. However, the EEG and MRI did not show any abnormalities. There is no slowing of the background activity and no decrease or delay in myelination reported on the MRI. PLAN: . . . Continue speech therapy . . . Reassess in 6 months. The cause of Thalya's neurologic dysfunction Regarding the cause of Thalya's neurological dysfunction, the proof is compelling that during labor and delivery Mrs. Greene was vaginally infected with Group B Streptococcal (GBS), that during delivery the infection was transmitted to Thalya, and that over the next 24 to 48 hours the infection process rapidly progressed causing meningitis and the resultant brain injury. Consequently, it may be said that Thalya's neurologic dysfunction is associated with a brain injury caused by meningitis (an inflammation of the membranes that envelop the brain and spinal cord), secondary to a GBS infection acquired during the birthing process (most likely subsequent to rupture of the membranes and during the course of delivery). The dispute regarding compensability As a touchstone to resolving the dispute regarding compensability, it is worthy of note that the Plan establishes a no-fault administrative system that provides compensation for an infant who suffers a narrowly defined "birth-related neurological injury." Under the Plan, a "birth-related neurological injury" is defined as: [I]njury to the brain or spinal cord of a live infant weighing at least 2,500 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. Section 766.302(2), Florida Statutes. Here, there is no serious dispute that Thalya is neurologically impaired or that such impairment is attributable to a brain injury caused by the infection process discussed infra. Rather, what is at issue is whether the cause of Thalya's brain injury and the nature of her impairment fit the narrowly defined term "birth-related neurological injury." In this regard, it is Intervenor's view that Thalya's brain injury (occasioned by an infectious process) may reasonably be described as having been "caused by mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," and that such injury rendered her "permanently and substantially mentally and physically impaired." Conversely, Petitioners and Respondent are of the view that that the cause of Thalya's brain injury was not a "mechanical injury," and that she was not rendered "permanently and substantially mentally and physically impaired." Of the two, Petitioners' and Respondent's view is by far the more compelling. The nature and timing of Thalya's injury To address the nature and timing of Thalya's injury, the parties offered the opinions of three physicians: Charles Kalstone, M.D., a physician board-certified in obstetrics and gynecology; Joseph Cimino, M.D., a physician board-certified in pediatric neurology; and James Perry, M.D., a Fellow of the American Academy of Neurology. (Joint Exhibits 2-4). Notably, these physicians shared strikingly similar views, and were of the opinion that Thalya's brain injury was caused by infection induced meningitis, a process distinguishable from an injury caused by oxygen deprivation or mechanical injury. Stated otherwise, the physicians were of the opinion that Thalya's injury could not reasonably be described as having been caused by oxygen deprivation or mechanical injury.2 Given the plain and ordinary meaning of the words used in the term "mechanical injury" (as physical harm or damage caused by machinery, tools, or physical forces), their conclusion was most reasonable.3 Consequently, it is resolved that Thalya's brain injury was not caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Thalya's current mental and physical presentation At hearing, the only authoritative proof offered with regard to Thalya's current mental and physical presentation was the testimony of Dr. Cimino, Thalya's pediatric neurologist. It was Dr. Cimino's opinion that while Thalya may evidence substantial cognitive impairment, she does not evidence substantial physical impairment. Such opinions are grossly consistent with the record and are credited.
