The Issue At issue is whether Chandler Jachimiak, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Charil Rodriguez is the natural mother and guardian of Chandler Jachimiak (Chandler), a minor. Chandler was born a live infant on May 26, 1999, at Baptist Hospital of Miami (Baptist Hospital), a hospital located in Miami, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Chandler's birth was Pablo Delgado, 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 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. In this case, Petitioner is of the view that Chandler suffered a "birth-related neurological injury," as defined by the Plan. In contrast, NICA is of the view that Chandler did not suffer a "birth-related neurological injury" since the proof failed to support the conclusion that, more likely than not, Chandler's brain injury was "caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital." § 766.302(2), Fla. Stat. Chandler's birth and postnatal course at Baptist Hospital The medical records related to Chandler's birth reveal that at or about 10:25 a.m., May 25, 1999, Ms. Rodriguez, with an estimated delivery date of May 22, 1999, and the fetus at 40+ weeks gestation, was admitted to Baptist Hospital, for induction of labor. At the time, Ms. Rodriguez's temperature was 98.5°F, her membranes were intact, and vaginal examination revealed the cervix at 1 centimeter dilation, effacement at 50 percent, and the fetus at station -3. Following admission, Petocin induction was started, but was discontinued at 9:30 p.m., to allow Ms. Rodriguez to rest overnight. Then, at 8:20 a.m., May 26, 1999, Ms. Rodriguez's membranes were artificially ruptured, with thick meconium noted, and at 8:30 a.m., Petocin induction resumed. Ms. Rodriguez's labor progressed slowly, with complete dilation noted at 8:40 p.m., and Chandler was delivered at 10:10 p.m. Of note, but for a slight increase in heart rate (tachycardia), continuous fetal monitoring was reassuring. Also of note, Ms. Rodriguez's temperature was 101.2°F, at 7:15 p.m., for which she received penicillin, and at delivery her temperature was 99.4°F. At delivery, Chandler was depressed, without respiratory effort and a heart rate in the 60-beat-per-minute range, and he was immediately suctioned, with no evidence of meconium below the cords; mask-bagged for a few seconds, without evidence of respiratory effort; and orally intubated without difficulty, and hand bagged with good response at about one minute. Notably, Chandler's arterial blood gases were within the normal range, and his Apgar scores were recorded as 4, 6, and 9, at one, five, and ten minutes, respectively.2 At 10:28 p.m., following stabilization, Chandler was transported to the special care nursery (SCN) for further observation and management. There, on admission, Chandler's temperature was 100.4°F, and physical examination noted mild respiratory distress, but was otherwise unrevealing. Admitting impressions were newborn depression, suspected meconium aspiration, suspected sepsis,3 and suspected pneumothorax (right). Plan included sepsis workup, antibiotics pending culture results, oxyhood 100 percent for nitrogen washout and chest x-ray. Chandler remained hospitalized until June 26, 1999, when he was discharged to his mother's care. In the interim, Chandler received respiratory support for 2-3 days; antibiotics for suspected sepsis; support due to poor feeding and failure to thrive; and Phenobartital for 10 days, following the onset of seizure activity. Notably, a head ultrasound at 8:33 p.m., May 27, 1999, about two hours after the onset of seizure activity, revealed the following: Bilateral lateral ventricles are small in size, but are felt to be within the normal range. There is no evidence of subependymal or intraventricular hemorrhage. The ventricles are normal in configuration. No periventricular leukomalacia is seen. There is no mass effect of midline shift. There is limited evaluation of the midline structures on this examination. The posterior fossa is intact. IMPRESSION: No evidence of intracranial hemorrhage. A follow-up CT of the brain on May 31, 1999, revealed: CT brain reveals diffuse lucency throughout the hemisphere bilaterally. The basoganglia and cerebellum are somewhat spared. The possibility that this [is] secondary to diffuse ischemic process is difficult to exclude. No evidence of hemorrhage is identified. There is soft tissue swelling over the left parietal and occipital scalp. IMPRESSION: Diffuse lucency throughout the white matter in the hemispheres, bilaterally, suggestive of a edema. This may be secondary to diffuse ischemia. Cerebellar hemispheres and basoganglia are somewhat spared. No evidence of hemorrhage is identified. Follow-up is suggested. And, a brain MRI on June 6, 1999, was read as follows: Magnetic resonance imaging of the brain is compared with prior CT scan dated 05/31/99 Again noted is the presence of extensive abnormalities throughout the white matter in the supratentorial compartment. Now noted is prominent cortical sulci consistent with probable moderate volume loss which was not seen on the previous study. The sulci may have been effaced on the prior examination secondary to brain swelling. There is scalp soft tissue swelling in the right posterofrontal parietal convexity. There is no evidence of mass or hemorrhage. IMPRESSION: Extensive abnormalities throughout the supratentorium and white matter consistent with increased brain water without evidence of associated mass effect. Prominent cortical sulci are noted which may be secondary to loss of volume. There is no evidence of hemorrhage. Serial electroencephalograms (EEGs) on May 27, May 29, June 3, and June 8, 1999, were abnormal and consistent with a mild diffuse encephalopathy and a lowered seizure threshold. Chandler's subsequent development The medical records related to Chandler's subsequent development reflect that on August 6, 1999, Chandler presented at Miami Children's Hospital for a follow-up neurology examination. At the time, a CT scan of the brain revealed "extensive bilateral cerebral encephalomalacia with associated brain atrophy," and "bilateral chronic subdural hematomas, more pronounced on the left." Chandler was admitted for further evaluation, and a brain MRI of August 12, 1999, revealed: There are bilateral chronic subdural hematomas with the left much larger than the right. The left subdural collection extends into the interhemispheric fissure. The findings could be consistent with nonaccidental trauma, and clinical correlation is needed in this regard. There is bilateral cerebral atrophy and multifocal cystic encephalomalacia. There is mass effect upon the left cerebral hemisphere, related to the subdural collection but there is no midline shift. There is generalized ventriculomegaly that appears predominantly related to central atrophy. Chandler was discharged by Miami Children's Hospital on August 30, 1999. Chandler's hospital course was briefly described in his discharge summary, as follows: HOSPITAL COURSE: An ENT consult was placed. A bone survey was shown to be normal. Because of the persistent inspiratory and expiratory stridor, bronchoscopy was done by Pulmonary which showed a laryngomalacia. Tracheostomy tube was placed and the patient was transferred to Pediatric Intensive Care Unit for observation. Post operation day #6, the patient was transferred back from Pediatric Intensive Care Unit to 3 South. A chest xray done on 8/25 showed no significant change in the lung fields as compared to previous xray The patient was also followed by Neurology. The magnetic resonance scan done on 8/12 showed a mass effect of the left cerebral hemisphere with mucocystic encephalomalacia or chronic subarachnoid hemorrhage. Neurology's plan was to repeat CT prior to discharge home . . . . CT scan was done on 8/29/99 which was read as brain atrophy encephalomalacia with decrease in subdural hematoma. As compared to previous film, there was no brain edema . . . . On April 21, 2004, following the filing of the claim in this case, Chandler was examined by Michael Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital. Dr. Duchowny reported the results of his neurology evaluation, as follows: I evaluated Chandler Jachimiak on April 21, 2004. The evaluation was conducted in my office at Miami Children's Hospital with history provided by Chandler's mother.[4] History according to Ms. Jachimiak. The mother began by explaining that Chandler "was in the birth canal too long" when he was born and "had a lack oxygen in his blood." He was delivered at term at Baptist Hospital and remained in the newborn nursery for approximately one month due to poor feeding and failure to thrive. He was discharged in stable condition, but was admitted to Miami Children's Hospital three weeks later when a CT scan of the brain revealed a fluid collection over the convexities. The purpose of admission was to rule out possible child abuse, but Chandler ultimately remained hospitalized for approximately six weeks because of chronic feeding and breathing difficulties. He eventually had a tracheostomy, gastrostomy and Nissan fundoplication performed. The tracheostomy and g-tube were both removed last summer. Apparently, a diagnosis of Pierre-Robin Syndrome was entertained, but was never formally diagnosed. Chandler's growth and development have subsequently been quite slow. He has been followed by Dr. Oscar Papazian and was initially diagnosed with cerebral palsy and spasticity. He received Botox injections to the lower extremities until two years ago. His mother now feels that "he doesn't need it." Chandler is still not speaking. He has no verbal communication. He receives physical, speech and occupational therapy at the Neva King Cooper School. Chandler's social skills and behavior is another area of difficulty. He does not play well with other children and tends to be a loner. He likes playing with his toys. He is easily frustrated and will bite himself or other children. He tends to be "in his own little world" and his mother has noted poor eye contact. He frequently claps his hands repetitively and enjoys listening to music. Chandler's health is otherwise good. He has never had seizures and is on no intercurrent medications. He is scheduled for strabismus surgery in early May. His vision is otherwise intact. His hearing has been screened and is normal. Chandler sleeps through the night and his appetite has been stable, although he continues to be slow to gain weight. * * * FAMILY HISTORY: Chandler's father is absent from the family. His mother is 33 and is healthy. Multiple maternal brothers have learning disabilities and a maternal grandmother suffers from migraines. An 8- year-old sister is healthy. There are no family members with degenerative illnesses, mental retardation, epilepsy or cerebral palsy. PHYSICAL EXAMINATION reveals a small, but appropriately proportioned 4-year-old boy. The skin is warm and moist without cutaneous stigmata. The hair is brown and of normal texture. His weight is 32 pounds and his height is 40 inches. Head circumference measures 44.1 cm, which is well below the second percentile for age. There are no cranial or facial anomalies or asymmetries and the fontanels are closed. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are unremarkable. The healed tracheostomy and gastrostomy sights are noted. Peripheral pulses are 2+ and symmetric. NEUROLOGIC EXAMINATION was difficult to complete because of oppositional and defiant behavior. Chandler was restrained by his mother and intermittently sucked on his left thumb. Frequent tongue protrusions were noted and he drooled intermittently. He did not speak in words at any time during the examination. He could not name body parts or colors. He could not follow simple commands. He frequently waved his hands and clapped them. The two upper incisors are absent due to trauma. Cranial nerve examination reveals bilateral blink to threat. A funduscopic examination could not be performed. The pupils are 3 mm and react briskly to direct and consensually presented light. The extraocular movements demonstrate alternating exotropia. There are no facial asymmetries. The tongue movements are poorly coordinated. The uvula is midline. Motor examination reveals a generalized static hypotonia with a dynamic increase in tone. There is full range of motion in all joints. There are no adventitious movements and no focal weakness or atrophy. The deep tendon reflexes are slightly brisk and 2+ to 3+ bilaterally, but plantar responses are downgoing. Sensory examination is intact to withdrawal of all extremities to stimulation. Coordination could not be performed. The neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Chandler's neurologic examination does not reveal focal or lateralizing features, but does demonstrate significant delays in multiple domains consistent with a pervasive developmental disorder. He is clearly behind with regard to his receptive and expressive language development, but also has short attention span, high activity level, immature social skills with poor eye contact and a behavior disorder. He is also microcephalic and has short stature. I believe that Chandler is at significant risk for fitting within the low functioning autistic spectrum. I have not yet received medical records regarding Chandler's background and will issue a final report once the records have been received and reviewed. The cause and timing of Chandler's brain injury Dr. Duchowny ultimately reviewed Chandler's medical records and, as revealed by his deposition (Respondent's Exhibit 4), was of the opinion, based on that review and his neurologic evaluation, that the most likely cause of Chandler's brain injury was an infection, and that such injury occurred prior the onset of labor, as opposed to having been caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation. Notably, the opinions of Dr. Duchowny are consistent with the record and otherwise uncontroverted. Consequently, it must be resolved that Chandler's brain injury was not caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period, as required for coverage under the Plan. . See Wausau Insurance Company v. Tillman, 765 So. 2d 123 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obliged to present expert medical evidence establishing that causal connection."); Ackley v. General Parcel Service, 646 So. 2d 242 (Fla. 1st DCA 1995)(determining cause of psychiatric illness is essentially a medical question, requiring expert medical evidence); 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 At issue in this proceeding is whether Karina Zepeda suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Background Karina Zepeda (Karina) is the natural daughter of Luis Zepeda and Dora Zepeda. She was born a live infant on March 26, 1991, at Jackson Memorial Hospital, a hospital located in Miami, Dade County, Florida, and her birth weight was in excess of 2500 grams. The physicians providing obstetrical services during the birth of Karina were Pablo Delgado, M.D., and Gene Burkett, M.D., who were, at all times material hereto, participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. The birth of Karina At or about 8:25 p.m., March 25, 1991, Dora Zepeda was admitted to Jackson Memorial Hospital (Jackson Memorial) in active labor. Thereafter, at 11:50 p.m., she suffered an artificial rupture of the membranes and was found to have thick meconium. Subsequently, decelerations were noted and the decision was made to perform a cesarean section as a consequence of fetal distress. The cesarean section was performed, and Karina was delivered at 2:24 p.m., March 26, 1991. The operative report reflects that the following occurred during the course of the procedure: . . . The uterine cavity was then entered and found the amniotic fluid to be full of thick meconium that was aspirated. The incision was extended bilaterally on the myometruim and we proceeded to deliver the fetal head after flexion. Suction was per- formed with the DeLee catheter and at this time, we proceeded to deliver the body of the fetus. As we did this, we found a crypt surrounding the abdomen and the lower back of the fetus. This was occupied by cord, apparently cord tying up on the lower section of the lower section of the back and deep into the body of the fetus. The cord was removed and the fetus was delivered. The cord was then clamped and cut and the body was given to the pediatrician. When delivered, Karina was lethargic, floppy and without spontaneous respiratory effort or heart rate. She was resuscitated with chest compressions, intubated, and placed on a ventilator with 100 per cent oxygen. At birth, her Apgar scores were 1 at one minute, 3 at two minutes, and 4 at five minutes. Following delivery, Karina was transferred to the neonatal intensive care unit where, within twenty-four hours of birth, she was observed to have developed seizures. Karina remained in the intensive care unit for approximately nineteen days, and was discharged from Jackson Memorial on April 19, 1991, to the care of her parents. Following discharge, Karina was apparently followed at Jackson Memorial for, inter alia, hypoxic encephalopathy associated with microcephaly, spastic quadriparesis, mental retardation, language disorder and seizures. Here, the parties have stipulated, and the proof demonstrates, that Karina suffered an injury to the brain at birth caused by oxygen deprivation during the course of labor, delivery or resuscitation in the immediate post-delivery period which resulted in mental and physical impairment. What is in dispute is the degree of impairment suffered by Karina or, stated otherwise, whether her impairments are permanent and substantial, so as to be considered a "birth-related neurological injury" as defined by the Plan. The degree of Karina's impairment On February 1, 1993, upon referral by Children's Medical Services, Karina came under the care of Danilo A. Duenas, M.D., a pediatric neurologist and the associate director of the Department of Neurology, Miami Children's Hospital. As of the date of hearing, Dr. Duenas remained Karina's treating neurologist. At Dr. Duenas' initial examination of February 1, 1993, Karina, then twenty-three months of age, presented with the history heretofore noted and upon examination, Dr. Duenas diagnosed Karina as suffering from microcephaly; mental retardation, moderate to severe; spastic quadriparesis, pseudobulbar palsy; language disorder receptive and expressive; extraocular imbalance/strabismus; seizure disorder; and behavior and attention deficit disorder. Dr. Duenas' finding that Karina suffered from microcephaly reflects that her head had not grown in accordance with a standardized norm and reflects below average brain growth which in Karina's case, more likely than not, resulted from brain injury occasioned by the hypoxic insult she received at birth. Microcephaly is not itself, however, a physical or mental injury, but does portend the possibility that the injury to the brain, which affected its growth, may have been severe enough to affect mental or physical functioning. As for Dr. Duenas' observation of a seizure disorder (epilepsy), such disorder is also, more likely than not, a consequence of organic brain dysfunction occasioned by the hypoxic insult she received at birth. Epilepsy is, however, a physiologic condition, as opposed to a mental or physical condition, although it can, when seizures are severe, have profound mental or physical implications. To date, Karina has not been shown to have suffered any significant mental or physical effects from her seizure disorder. 3/ The remaining deficiencies observed by Dr. Duenas, mental retardation, spastic quadriparesis (weakness of all four extremities), pseudobulbar palsy (impaired function of the tongue and palate), language disorder receptive and expressive, extraocular imbalance/strabismus (deviation of the eye due to lack of muscular coordination) and behavior and attention deficit disorder, represent mental or physical deficiencies occasioned by the hypoxic injury to Karina's brain during birth. Following his examination, Dr. Duenas observed that his findings were consistent with "severe brain dysfunction, probably secondary to hypoxic encephalopathy at birth," but deferred any prognosis inasmuch as each child has a different potential for subsequent development after a neurological insult and, depending on the level of impairment, it is difficult to prognosticate upon the future level of impairment. Given the circumstances, Dr. Duenas recommended an electroencephalogram (EEG) to assess Karina's susceptibility to seizures, and a CT scan to confirm his clinical diagnosis of brain dysfunction and to ascertain how much brain damage could be detected. Dr. Duenas further recommended that Karina continue at Easter Seal Society School, and continue her physical, occupational and speech therapy. Consistent with Dr. Duenas' recommendation, an EEG and CT scan were performed on April 15, 1993. The EEG was abnormal, reflecting electrical abnormalities in the brain, and confirmed that Karina had, and was susceptible to, seizures. The CT scan was also consistent with Dr. Duenas' diagnoses of brain injury in that it found: There is biparieto-occipital changes of cystic encephalomalacia. Atropic changes of the central and cordical type are noted in these regions as well as along the bifrontal regions. There is a suggestion of periventricular leukomulacia. The finding of biparieto-occipital changes of cystic encephalomalacia reflects "that the white matter around the lateral ventricles [has formed] like cysts, like small sacks of empty spaces." The atropic changes in the central and cortical area reflect that brain tissue has been destroyed not only in the deep structures (central) but also the outside of the brain (cortical or cortex). The damage to Karina's brain involves both hemispheres, and is defuse. While Karina clearly suffered a severe injury to the brain by virtue of the hypoxic insult she received at birth, that finding does not compel the conclusion that such injury rendered her permanently and substantially mentally and physically impaired. Indeed, as observed by Dr. Duenas, the relationship between the results of a CT scan and the ability of a child to perform mentally and physically vary from child to child, with some adapting to the injury better than others. Indeed, examination and observation of the child is essential for a physician to reliably associate impairments with an injury depicted on a CT scan. Dr. Duenas neurologically re-evaluated Karina on April 23, 1993. At that time most of her problems persisted; however, he did note improvement in her receptive/expressive disorder because of improved vocabulary, that she was now able to walk, and that while still considered mentally retarded, the degree was rated as moderate. Dr. Duenas recommended Karina continue Easter Seals School, as well as her physical, occupational and speech therapy. Dr. Duenas continued to re-evaluate Karina on a regular basis and noted continuing progress such that by his last evaluation of August 22, 1994, he observed: . . . the mouth including tongue movements, soft palate, posterior pharynx are unremarkable. Examination of the neck was normal. Motor system shows good strength in all extremities. Deep tendon reflexes were equal and symmetric bilaterally. No pathological reflexes . . . Sensory system, pain, touch, proprioception, vibration and position senses within normal limits. Cerebellar function grossly normal finger-to-nose testing and past point. Gait seems to be unremarkable. She is a little spastic in the lower extremities but she keeps fairly good balance. . . . As for Karina's mental status, Dr. Duenas would rate her mildly to moderately mentally retarded. Based on this visit, Dr. Duenas concluded that Karina continues to make progress in her motor development, and that her vocabulary and resultant language continue to improve. Karina's strabismus had also improved to the point that rather than turn her head to one side to view an object through a single eye, she had begun to view objects in a direct and normal manner. In sum, Dr. Duenas, based on his numerous evaluations of Karina, is of the opinion that, although she will continue to suffer some impairment in her mental and physical development, that she is not currently substantially mentally or physically impaired. Moreover, Dr. Duenas foresees that Karina will continue to improve, but was unable to predict the extent of improvement. Apart from Dr. Duenas, Karina was also examined by Michael Duchowny, M.D. Dr. Duchowny, who is Board-certified in pediatrics and neurology with special competence in child neurology and the Director of the Neuroscience Department at Miami Children's Hospital, examined Karina, at the request of NICA, on March 24, 1994. Based on his examination, Dr. Duchowny was of the opinion that Karina understood the examination, the people and her surroundings, exhibited an essentially normal attention span, and behaved appropriately. He did note, however, that Karina was delayed in terms of her expressive language, but felt such impairment was primarily restricted to an inability to express herself and communicate in words, which condition should improve over time. Under the circumstances, Dr. Duchowny was of the opinion that Karina was not substantially intellectually impaired. As for Karina's physical condition, Dr. Duchowny was of the opinion that Karina was not substantially physically impaired. Although he observed some abnormality in muscle tone and coordination, Karina was fully ambulatory, could turn crisply and run easily, moved while she played and moved her hands quite well. In sum, from a physical standpoint, Karina could "virtually do all the things she wanted to do." Under the circumstances, Dr. Duchowny considered Karina's motor impairment as being "mild or at most mildly moderate, but certainly in no way substantial." As to the permanence of her current status, he felt Karina would probably improve further, but how much further he could not predict. In concluding that Karina was not substantially mentally impaired, Dr. Duchowny observed that in the spectrum of children seen with metal impairment, a substantial impairment is generally accepted to refer to patients who fall within the retarded range of functioning, with patients that exhibit an intelligence quotient (IQ) of less than fifty being considered trainable and those that exhibit an IQ under 70 being considered educable. Within that universe, the children that are considered substantially mentally impaired are the retarded, but trainable, and generally exhibit an IQ of less than 50. Here, no IQ tests have been administered to Karina and, due to her age, could not have been administered to produce any reliable results. Accordingly, by necessity, Dr. Duchowny's assessment, like Dr. Duenas' assessment, was based on observation and experience which led him to the conclusion that Karina did not exhibit those characteristics that one would associate with a child that functioned in the substantially mentally retarded range. In concluding that Karina was not substantially physically impaired, Dr. Duchowny observed that children who are substantially physically impaired have a major physical impairment. Examples given were children who were unable to move in a fluid fashion or perform certain functions such as walking or running, and those children who were wheelchair- bound, bedfast, walked with substantial gait disabilities, or lacked the use of arms or hands. In Karina's case, although she has coordination difficulties and some problems with tone, her impairment in Dr. Duchowny's opinion is "quite mild" and she is not "in the same universe as children who have a substantial impairment." In contrast to the expert opinions rendered by Dr. Duenas and Dr. Duchowny, intervenor, University of Miami, offered the opinion of Stuart Brown, M.D., who is also a pediatric neurologist. It was Dr. Brown's opinion that Karina has a permanent and substantial physical and mental impairment; however, unlike Doctors Duenas and Duchowny, Dr. Brown had never examined Karina. Rather, Dr. Brown based his testimony upon a review of the medical records, including the records from Jackson Memorial Hospital on Karina and Dora Zepeda, the records from Baptist Hospital, the records from Miami Children's Hospital, CT scans on Karina, Dr. Duenas' records and deposition, and Dr. Duchowny's report and deposition. Based on his review of the records, it was Dr. Brown's opinion that Karina's brain damage was bilateral and defuse, invading both hemispheres of the brain and was of such magnitude as to result in the liquefaction of certain areas in the parietal/occipital regions of the brain, that have been replaced with large fluid-filled cystic structures. The parietal/occipital regions are responsible for memory, visual motor functions, discrimination and languages; and the bifrontal area is responsible for intellect, judgment, attention span and executive motor functions. Dr. Brown further observed that Karina had a marked lack of normal myelination (myelin being the insulating material within the brain which enhances the transmission of information), which would portend marked impairment and delay in achievement of milestones and skills that would normally enable the child to be socially, intellectually and educationally competitive. Moreover, the structural damage to Karina's brain is permanent. Dr. Brown further observed that Karina's epilepsy will in all likelihood interfere with her performance in that, were she to experience seizures, it would interfere with her school performance, and the likelihood of seizures would preclude her from some occupational opportunities. Moreover, given the serious nature of her condition, there is a small potential that a seizure could kill Karina. Given the circumstances, Dr. Brown is of the opinion that Karina will not outgrow her seizures, and considers her seizure disorder a permanent and substantial mental and physical impairment. Dr. Brown was also of the opinion that Karina was mentally impaired. In this regard, Dr. Brown observed that, although Karina may experience some improvement in her mental functioning, given the fact that she has microcephaly, and given the striking diffuseness and bilaterality of her brain damage, the fact that she is not using sentences at age three and a half, and the attention deficit disorder and seizure disorder which will interfere with her educational process, that Karina's intelligence quotient will fall within the lowest two percentile of the general population. Indeed, Dr. Brown opined that Karina was unlikely to reach language, academic or mental skills of a ten-year-old at anytime in her life and that, in his opinion, she is trainable but not educable. In concluding that Karina was permanently and substantially mentally and physically impaired, Dr. Brown defined permanent and substantial mental and physical impairment as: An acquired injury to the brain which has produced structural damage and has produced a real and true structural injury to [the] brain [which] leads to an enduring, indefinite, lasting injury to the brain which prevents the child from achieving milestones and from being competitive with her peer group in motor, language, intellectual, and social and . . . behavioral aspects. . . . In combination, Karina's findings of microcephaly, epilepsy, retardation, motor delays and language deficits and attention deficit disorder therefore constitute, in Dr. Brown's opinion, a permanent and substantial mental and physical impairment. Resolving the conflict In resolving the conflict between the opinions rendered by Doctors Duenas and Duchowny, compared to the opinions rendered by Dr. Brown, careful consideration has been accorded the medical records in this case, the gravamen and tenor of the physicians' testimony, and the opportunity each physician had to observe and quantify the matters to which they spoke. In this regard, it is noted that Dr. Brown did not examine the child and that, under the circumstances of this case, he could not, based upon the CT scans alone, reasonably opine whether a motor abnormality he might suspect would be present would be mild, moderate or severe. Of further note is Dr. Brown's acknowledgment that there is no impairment in the strength of Karina's upper extremities, and that she can feed herself, use both hands, grasp, manipulate and walk. It is further noted that Dr. Brown agrees that Karina will improve, although the extent is not now known, and that her walking ability will continue to improve. Finally, it is noted that there is a consensus among the physicians that, within their profession, mental and physical impairments are routinely classified as mild, moderate or severe (substantial), although there may be disagreement among physicians at times as to the degree of impairment assigned. Given the circumstances, the opinions of Doctors Duenas and Duchowny are accepted. Accordingly, it must be concluded that the proof fails to support the conclusion that Karina was rendered "permanently and substantially mentally and physically impaired" as a consequence of the hypoxic insult she received at birth.
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.
The Issue Whether Isaac Castro and David Castro, deceased minors, qualify for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Milagros Magaly Castro and William Marcelo Castro are the natural parents of Isaac Castro and David Castro, deceased minors, and the Personal Representatives of their deceased sons' estates. Isaac and David were the product of a multiple (twin) gestation, and were born live infants on November 25, 2004, at Palmetto General Hospital, a hospital located in Hialeah, Florida, each with a birth weight exceeding 2,000 grams. David died December 7, 2004, and Isaac died January 12, 2005. The physician providing obstetrical services at Isaac's and David's birth was Monica Daniel, 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. Isaac's and David's birth At or about 1:50 p.m., October 11, 2004, Mrs. Castro, aged 40, with an estimated delivery date of December 30, 2004, and the twins at 28+ weeks' gestation, presented to Palmetto General Hospital on referral from her perinatologist for inpatient management, with concerns of elevated blood pressure (suspected pregnancy induced hypertension), and increased creatinine levels. At the time, Mrs. Castro's pregnancy was considered high risk, with advanced maternal age and twin gestation, and was further complicated by insulin dependent gestational diabetes and hypothyroidism. Nevertheless, numerous assessments during the term of her pregnancy were reassuring for fetal well-being, as was her initial assessment at Palmetto General Hospital. Mrs. Castro was admitted to the hospital at 3:00 p.m., that day, and her pregnancy was managed without apparent adverse incident until November 24, 2004, when, with the twins at 34 6/7 weeks' gestation, Mrs. Castro demonstrated severe preeclampsia, with increasing creatinine levels (worsening renal status). Notably, however, fetal monitoring between 1:01 p.m., and approximately 4:07 p.m., that afternoon,5 provided reassuring evidence of continued fetal well-being.6 Given her condition, Dr. Daniel ordered Mrs. Castro admitted to labor and delivery, where she was received at 9:10 p.m., for cesarean section delivery. Notably, Dr. Daniel's admission orders included a requirement for external fetal monitoring. However, that order was not followed, and no fetal monitor strips exist that would aid in assessing fetal status subsequent to 4:07 p.m., November 24, 2004. The progress notes do, however, include a few entries that bear on the issue. At 9:10 p.m., on admission to labor and delivery, the nurse noted that Mrs. Castro reported normal fetal movement, and denied pain, vaginal discharge, or blurred vision. Thereafter, at 10:30 p.m., the nurse noted that Mrs. Castro showed abnormal lung sounds, with crackles bilaterally to the bases, and dyspnea (difficult or labored breathing). Mrs. Castro was provided supplemental oxygen by nasal cannula (NC). At 1:00 a.m., November 25, 2004, while being prepared for surgery, the nurse noted that Mrs. Castro was slightly dyspneic and still receiving supplemental oxygen, NC at 2 liters. Assessment revealed reassuring fetal heart tones, with "FHT's via US on right upper quadrant in the 130's [and] FHT's via US on lower left upper quadrant in the 120's." Otherwise, the records provide no information regarding fetal status until the twins were delivered.7 At 1:35 a.m., Mrs. Castro was noted in the operating room, with an oxygen saturation level of 92 percent. She was given oxygen by mask, and by 1:45 a.m., her saturation levels were at 100 percent. No fetal heart tones were obtained "due to maternal instability," and, at 1:56 a.m., the incision was made (delivery began), and at 2:01 a.m., Isaac (identified as Twin A in the medical records) and at 2:02 a.m., David (identified as Twin B in the medical records) were delivered, severely depressed. Isaac's Apgar scores were noted as 1, 2, 2, 2, 2, 2, and 5, at one, five, ten, fifteen, twenty, twenty-five, and twenty-eight minutes, respectively.8 David's Apgar scores were noted as 3, 5, and 6, at one, five, and ten minutes, respectively.9 Isaac's delivery and hospital course are documented in his Death Summary, as follows: BIRTH DATE: 11/25/2004 [TIME 02:01 hours] WEIGHT: 2.275kg GEST AGE: 35 weeks GROWTH: AGA Amniotic fluid was meconium stained. Presentation was vertex. The patient was born in the delivery room by emergent cesarean section under spinal anesthesia for maternal hypertension and increasing creatinine. The patient was born first of twins. Apgar scores were 1 at 1 minute, 2 at 5 minutes and 2 at 10 minutes. At delivery, the patient was cyanotic, floppy, apneic and bradycardic. Treatment at delivery included oxygen, stimulation, oral suctioning, bag and mask ventilation, endotrachcal tube ventilation, epinephrine and cardiac compression. At birth baby was cyanotic, absent breathing effort, bradycardic (in the 20's-30's). Baby noticed to have particulate meconium. Oropharynx was suctioned by wall upon head delivery. Bag mask ventilation was started with no improvement in respiratory effort. Baby was intubated and epinephrine was given x 3 by EET but still no improvement in heart rate (in the 20's-30's). UAC line was placed while baby continued being bagged, and epinephrine was given IV x 2. Also 6 Meq of sodium bicarbonate was given x 2 plus one bolus of 4.5 Meq. Saline solution bolus of 20cc was given x1 . . . . On minute number 28-29 of life an adequate heart beat was finally noticed with improvement in color. Tone and activity still poor and no response to pain stimuli. ABG form UAC showed a pH=6.7 PCO2=47 PO2-380 BE=-31 HC03=5.6 . . . . ADMISSION DATE: 11/25/04 The patient was admitted immediately following delivery. Indications for admission included metabolic acidosis, possible sepsis, respiratory distress, prematurity and perinatal depression. Upon admission to NICU mechanical ventilation was started. Chest XR compatible with HMD vs. pneumonia. No air leak. Infasurf was given x 1 with good response, and several HCO3 corrections were needed. ADMISSION PHYSICAL EXAM . . . OVERALL STATUS: Critical - initial NICU day. BED: Radiant warmer. TEMP: Stable. HR: Stable. RR: Unstable. BP: Stable . . . . CONDITION: Acrocyanotic and depressed, intubated, hypertonic extremities. HEENT: Soft fontanelles, sluggish pupil reaction to light, ETT in place. RESPIRATORY: Minimally depressed air exchange and decreased breath sounds bilaterally (improved after surfactant administration). CARDIAC: Normal sinus rhythm . . . . NEUROLOGIC: Depressed mental status. Severely decreased muscle tone initially and hypertonicity noticed after NICU admission. Seizures noticed (lip smacking and tonic- clonic seizures on all 4 extremities > on the R hand) . . . . * * * RESOLVED DIAGNOSES DIAGNOSIS #1: RESPIRATORY DISTRESS ONSET: 11/25/2004 RESOLVED: 1/12/2005 * * * COMMENTS: Developed respiratory distress at birth. Chest Xrays compatible with HMD vs pneumonia. Initially severe respiratory acidosis. Improved with Infasurf x 1. On vent since birth, self-extubated during nursing touch-time on 12/5, was extubated for 19 hrs on nasal cannula but was reintubated on 12/6 for PC02 70 felt to be secondary to mucous plug. He has no gag reflex and has poor control of respiratory secretions reason why he has been kept on mechanical ventilation. He is still ventilator dependent, was on ETT CPAP+5 and after an extubation attempt on 1/2 he failed oxyhood and was reintubated on 1/3/05. now extubated to nasal cannula. * * * DIAGNOSIS #3: POSSIBLE SEPSIS ONSET: 11/25/2004 RESOLVED: 12/6/2004 * * * COMMENTS: Completed a 10 day course of antibiotics for suspect sepsis due to unknown GBS, respiratory distress, and severe metabolic and respiratory acidosis. There is no clinical evidence of sepsis at this time. * * * DIAGNOSIS #10: SEVERE HYPOXIC-ISCHEMIC BRAIN INJURY ONSET: 11/25/2004 RESOLVED: 1/12/2005 PROCEDURES: cranial ultrasound on 11/25/2004 (unofficially no bleed); MRI scan on 12/3/2004 (findings suggesting ischemic encephalopathy, normal size ventricles, no mass effects or midline shift) COMMENTS: Adequate heart rate not obtained till 28-29 minutes of life. He presented with seizures and an abnormal neurologic exam and abnormal EEG findings. The pediatric neurologist impression was of a severe hypoxic ischemic encephalopathy with multifocal seizures. No clinical neurologic deterioration has been noted recently. The MRI was compatible with ischemic encephalopathy. Ped neurologist has been following the baby with us. No neurological improvement has been noted recently. . . . Baby remains unresponsive, fixed pupils, minimal spontaneous breathing, does not have any spontaneous movement. No new changes noted recently. The baby has been unstable and recommended MRI of the brain was able to be done due to the critical condition of the infant. DIAGNOSIS #11: SEIZURES ONSET: 11/25/2004 RESOLVED: 1/12/2005 * * * COMMENTS: The pediatric neurologist impression is of a severe hypoxic ischemic encephalopathy with multifocal seizures. Baby was initially noted to be lip-smacking shortly after admission to NICU then started with tonic-clonic movement of all four extremities > on the R hand. Initially treated with phenobarbital and Versed. Phenobarb discontinued 11/26. No clinical seizure activity on PE but on 11/29 EEG showed diffuse electrical sz. Phenobarb and Cerebryx started. EEG on 12/1 was unchanged but occasional correlation with subtle finger movement. 12/2 with decerebrate posturing of UE to deep painful stimuli. EEG from 12/3 showed seizure activity but some improvement was reported. Phenobarbital given x1 then held 2nd level elevated Cerebryx continued till 12/9 discontinued per pedi-neuro. Depacon added on 12/6 as recommended by pediatric neurologist no change before discontinued 12/10. Phenobarb was resumed on 12/8. level 42.3 on 12/11. The dose has been adjusted as per neurologist. No recent new neurological changes or improvement noted. He continues on phenobarb w/occasional clinical seizure noted . . . . * * * DIAGNOSIS #13: SEVERE METABOLIC ACIDOSIS ONSET: 11/25/2004 RESOLVED: 12/2/2004 COMMENTS: Severe metabolic acidosis at birth pH 6.7 HCO3=5.6. Baby received HCO3 bolus x 3 in the OR and several corrections upon admission to NICU. * * * DEATH INFORMATION DISPOSITION: The patient died on 1/12/2005 at 00:52 hours. The cause of death was Cardio-respiratory arrest. Baby Boy "A" Castro is an 48 d/o w/Hypoxic- ischemic-encephalopathy, seizures, s/p 28-29 min full resuscitation, initially w/o a heart rate; who has been in a vegetative neurological state, w/intractable seizures since birth 11/25/04. Baby never tolerated any feeds and remained in TPN, was extubated to n/c w/(+) spontaneous breathing but NO gag and unable to clear secretions since baby never had any spontaneous voluntary movement. Tonight while parents visited baby was having desaturations and bradycardia that required IPPB, to improve heart rate and O2 sats. Parents requested to stop the IPPB, and requested to hold baby w/O2 N/C. Baby expired almost immediately of cardiorespiratory arrest at 12:52 a.m. . . . . David's delivery and hospital course are documented in his Death Summary, as follows: BIRTH DATE: 11/25/2004 TIME: 02:02 hours WEIGHT: 2.150kg GEST AGE: 35 weeks GROWTH: AGA RUPTURE OF MEMBRANES: At delivery. AMNIOTIC FLUID: Clear. PRESENTATION: Vertex. DELIVERY: Born in the delivery room by emergent cesarean section under spinal anesthesia for maternal hypertension with increasing creatinine. BIRTH ORDER: Second of twins. APGARS: 3 at 1 minute, 5 at 5 minutes and 6 at 10 minutes. CONDITION AT DELIVERY: Cyanotic and floppy. TREATMENT AT DELIVERY: Stimulation, oxygen, oral suctioning, bag and mask ventilation and endotrachael tube ventilation. At birth baby was cyanotic, no respiratory effort, floppy, bradycardic in the 50's. Mouth was suctioned with bulb, and bag mask ventilation was started for about 5 minutes before improvement in color and activity were seen. Baby was intubated aprox on min of life 4-5 by pediatrician Dr. Torres. No medication was needed during intervention, and baby responded well to intubation, oxygen and ambu bag ventilation. Baby noticed to be floppy despite color and heart rate improvement. Transferred stable to NICU. Initial ABG's showed severe metabolic acidosis pH=6.9 HCO3=7.4 BE=-25. ADMISSION DATE: 11/25/2004 ADMISSION TYPE: Immediately following delivery. ADMISSION INDICATIONS: Metabolic acidosis, respiratory distress, possible sepsis, prematurity and perinatal depression. Upon admission to NICU mechanical ventilation was stated. Chest XR showed reticulogranular pattern and air bronchograms compatible with HMD vs. pneumonia. No air leak. Infasurf was given x 1 with good response. Na bicarbonate corrections were needed x 3. ADMISSION PHYSICAL EXAM OVERALL STATUS: Critical - initial NICU day. BED: Radiant warmer. TEMP: Stable. HR: Stable. RR: Unstable: BP: Stable. URINE OUTPUT: Stable. CONDITION: on PRVC, breathing above the ventilator (tachypneic), pink color, mild acrocyanosis. HEENT: Pupils reactive to light, soft fontanelles, no bulging. RESPIRATORY: Minimally decreased air exchange, initially decreased breath sounds, improved after Infasurf and mechanical ventilator sounds heard equally bilaterally. CARDIAC: Normal sinus rhythm . . . . NEUROLOGIC: Depressed mental status and decreased muscle tone. * * * RESOLVED DIAGNOSES DIAGNOSIS #1: SEVERE RESPIRATORY DISTRESS ONSET: 11/25/2004 RESOLVED: 12/7/2004 * * * COMMENTS: Respiratory distress at birth. Chest XR compatible with HMD vs pneumonia. Received Infasurf x 1 with adequate response. In room air but requiring vent support due to no spontaneous respirations breathing with the vent. Poor respiratory effort more likely due to hypoxic ischemic encephalopathy but no deterioration in respiratory status. He remains critically ill and on high ventilatory support, unstable and deteriorating due to DIC and sepsis. During the course of the day the baby continued to deteriorate clinically and presented episodes of bradycardia and decreased SAO2 requiring higher ventilatory support and multiple doses of epinephrine. Later in the afternoon he became bradycardic and did not respond to resuscitative measures and was declared dead at 3:25 PM. . . . DIAGNOSIS #2: METABOLIC ACIDOSIS ONSET: 11/25/2004 RESOLVED: 11/29/2004 MEDICATIONS: Sodium bicarbonate on 11/25/2004. COMMENTS: Upon admission required Na bicarbonate corrections x3. Initial ABG's showed a pH=6.9 HCO3=7.4 BE=-25, currently stable. * * * DIAGNOSIS #6: POSSIBLE SEPSIS ONSET: 11/25/2004 RESOLVED: 12/5/2004 * * * COMMENTS: Completing a 10 day course of antibiotics for suspect sepsis secondary to maternal GBS unknown, respiratory distress at birth, severe metabolic acidosis. The blood culture was negative and there is no clinical evidence of sepsis at this time. * * * DIAGNOSIS #10: HYPOXIC-ISCHEMIC BRAIN INJURY ONSET: 11/25/2004 RESOLVED: 12/7/2004 PROCEDURES: cranial ultrasound from 11/25/2004 till 12/7/2004(normal) COMMENTS: Perinatal depression, required bag mask ventilation, intubation and oxygen in order to improve. Apgar scores were 3/5/6. The baby had presented seizures and systemic failure and the assessment of the pediatric neurologist was of severe hypoxic and ischemic encephalopathy. Neurologically he has not changed recently and continues with an abnormal neurological exam and no improvement in neuro condition. DIAGNOSIS #11: SEIZURES ONSET: 11/25/2004 RESOLVED: 12/7/2004 * * * COMMENTS: Shortly after admission to NICU he started with generalized tonic-clonic seizures. Persistent Sz activity on phenobarb and Cerebryx correlates with independent clonic movements of UE, extensor posturing of UE R>L and gaze deviation per neurologist Dr. Bustamante. Last EEG from 12/3 showed worsening EEG with seizure activity and burst suppression. The pediatric neurologist impression was of a severe hypoxic ischemic encephalopathy with multifocal seizures. Phenobarbital on hold since 12/1 for level 61.8 down to 29.5 will not resume per neuro and phosphenytoin level 18.8 on maintenance dose 2.5 mg/kg q 12. An MRI was not done due to the critical and unstable condition of the infant. * * * DEATH INFORMATION DISCHARGE TYPE: Died. DATE OF DEATH: 12/7/2004. TIME OF DEATH: 15:25 hours. CAUSE OF DEATH: Respiratory failure, sepsis and multisystemic failure . . . . Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . 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, it is undisputed that Isaac and David suffered an injury to the brain caused by oxygen deprivation, which rendered them permanently and substantially mentally and physically impaired. What is disputed is whether the injury occurred "in the course of labor, delivery, or resuscitation in the immediate postdelivery period," as required for coverage under the Plan. § 766.302(2), Fla. Stat.; Nagy v. Florida Birth-Related Neurological Injury Compensation Association, 813 So. 2d 155 (Fla. 4th DCA 2002). As to that issue, Petitioners are of the view that the brain injury occurred before delivery, and since it is undisputed that Mrs. Castro was never in labor the injury is not covered by the Plan. In contrast, NICA and the hospital are of the view that the injury either occurred during, or continued through, delivery and resuscitation, and is therefore compensable. As an aid to resolving such issue, Section 766.309(1)(a), Florida Statutes, provides that when, as here, the proof demonstrates "that the infant has sustained a brain . . . injury caused by oxygen deprivation . . . and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption . . . [arises] that the injury is a birth-related neurological injury, as defined [by the Plan]." Here, since Mrs. Castro was never in labor, the presumption is that Isaac's and David's brain injury occurred in the course of delivery or resuscitation in the immediate postdelivery period. See Orlando Regional Healthcare Systems, Inc. v. Alexander, 909 So. 2d 582 (Fla. 5th DCA 2005). Consequently, to be resolved is whether there was credible evidence produced to support a contrary conclusion and, if so, whether, absent the presumption, the record demonstrates, more likely than not, that Isaac's and David's brain injury occurred during delivery or resuscitation in the immediate postdelivery period.10 The timing of the twins' brain injury To address the timing of the twins' brain injury, the parties offered the medical records relating to Mrs. Castro's antepartal course, as well as those associated with the twins' birth and subsequent development. (Petitioners' Exhibit A, tabs 8-11, and Exhibit B). Additionally, the parties offered the deposition testimony of Dr. Daniel, a physician board-certified in obstetrics and gynecology; Adré du Plessis, M.D., a physician board-certified in pediatrics, and neurology with special competence in child neurology; Steven Chavoustie, M.D., a physician board-certified in obstetrics and gynecology; Michael Katz, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine; and Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine. (Petitioners' Exhibit A, tabs 3-7) The testimony of Doctors Daniel, du Plessis, and Chavoustie was supportive of Petitioners' view, and the testimony of Doctors Katz and Willis was supportive of the views of NICA and the hospital. The medical records and the testimony of the parties' experts have been carefully considered. So considered, it must be resolved that there was credible evidence (through the testimony of Doctors Daniel, du Plessis, and Chavoustie) to rebut the presumption established by Section 766.309(1)(a), Florida Statutes, and that, absent the presumption, the record failed to demonstrate, more likely than not, that any injury the twins may have suffered during delivery or immediate postdelivery resuscitation contributed significantly to the profound neurologic impairment they suffered. Indeed, the more compelling proof supports a contrary conclusion. In so concluding, it is notable that the twins' brain injury started sometime after 4:07 p.m., November 24, 2004, when fetal reserves were lost, and the twins ability to compensate for a lack of oxygen failed, and that, given the severe depression the twins demonstrated at birth (cyanotic, apneic, floppy, and profoundly bradycardic), consistent with injury to the brain stem, the more robust level of a newborn brain; the need for intensive delivery room resuscitation (with intubation and, in the case of Isaac, advanced CPR), likewise consistent with injury to the brain stem; and the profound acidotic state in which they presented, it is likely, more so than not, that the twins suffered profound brain damage well prior to delivery (which was quick and without complication), that accounts for the severe neurological impairment (mental and physical) they demonstrated at birth. Consequently, since Mrs. Castro was not in labor when the profound brain injury most likely occurred, the twins were not shown to have suffered a "birth-related neurological injury," as defined by the Plan.
The Issue At issue is whether Robert Donald Vose, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Dawn Vose is the parent of Robert Donald Vose, a minor. Robert was born a live infant on August 15, 2001, at Baptist Hospital, Pensacola, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Robert's birth was Jill Prafke, M.D., who, at all times material hereto, was a "participating physician" in the 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. To resolve whether Robert suffered a "birth-related neurological injury," the parties offered the medical records related to Robert's birth and subsequent development (Respondent's Exhibit 3), as well as the opinions of Donald C. Willis, M.D., a physician who practices maternal-fetal medicine, and Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. (Respondent's Exhibits 1 and 2). With regard to injury, Dr. Willis was of the opinion that Robert suffered a brain injury (a venous sinus thrombosis and choroid plexus hemorrhage) at or around the time of delivery, that resulted in the development of hydrocephalus. However, he offered no opinion regarding the extent or significance of the brain damage. (Respondent's Exhibit 2). In contrast, Dr. Duchowny evaluated Robert on May 4, 2006, and concluded that his "normal neurological status together with a review of the accompanying medical records does not suggest that he has a substantial mental or motor impairment," as required for coverage under the Plan. (Respondent's Exhibit 1). Dr. Duchowny reported the results of his evaluation, and the basis for his opinion, as follows: I had the pleasure of evaluating Bobby Vose on May 4, 2006. Bobby is a 4-year-old, left-handed, prekindergarten student who was brought by his father for evaluation. This was conducted in my office at Miami Children's Hospital. HISTORY ACCORDING TO THE FATHER: Mr. Vose explained that Bobby was brought in order to "verify his abilities for NICA." He believes that Bobby is developing normally and in fact, is above average in several areas. He will be starting kindergarten in September and has done extremely well in his prekindergarten class setting. In fact, his language abilities are above average for age and he is bilingual with approximately 70 words of Spanish. He is a sociable boy who plays well with other children and his motor milestones have progressed normally. He sleeps through the night. His vision and hearing are intact. There has been no regression and no toxic or infectious exposure. Bobby is on no intercurrent medications. Bobby's PAST MEDICAL HISTORY is significant for placement of a ventriculoperitoneal shunt as a newborn. He apparently experienced an intercranial hemorrhage into the right ventricle and had a shunt placed from the anterior horn of the right ventricle into the peritoneal cavity. His shunt has functioned well and there have been no complications or revisions . . . . Otherwise, Bobby enjoys good health. He is not being followed for any chronic illnesses and has not required medical or surgical intervention subsequent to the newborn period. PERINATAL HISTORY: Bobby was born at Baptist Hospital in Pensacola at 37-weeks gestation. There was an attempt at a vaginal delivery but "the head was wedged" and Bobby was ultimately delivered by emergency cesarean section. He weighed 8 pounds and breathed well at birth. He remained in the hospital for approximately 11 days. GROWTH AND DEVELOPMENT: Bobby's father could not recall Bobby's motor or language milestones except to note that all occurred at the normal time. Bobby is fully immunized and has no known drug allergies. He has had a hernia repaired. * * * PHYSICAL EXAMINATION reveals an alert, well- developed, pleasant and cooperative 4-year- old boy. Bobby weighs 38 pounds. The skin is warm and moist. Bobby's head circumference measures 51.9 centimeters, which is within standard percentiles for age. The fontanels are closed. The ventriculoperitoneal shunt reservoir is palpated over the right frontal bone and shunt tubing is noted in the right anterior lateral neck region and across the thorax and abdomen. There is a healed right, upper quadrant abdominal scar. There are no cranial or facial anomalies or asymmetries. No dysmorphic features or cutaneous stigmata are noted. The neck is supple without masses, thyromegaly or adenopathy. The lung fields are clear and the heart sounds are normal. There is no palpable abdominal organomegaly. Peripheral pulses are 2+ and symmetric. NEUROLOGICAL EXAMINATION likewise discloses no significant findings. Bobby is alert, pleasant and cooperative. He answers all questions fluently with a good fund of information and an age appropriate stream of both thought and attention. He cooperated with all aspects of the evaluation. The cranial nerve examination reveals full visual fields to direct confrontation testing and normal ocular fundi. The optic disc margins are clearly demarcated and there is no optic pallor. There are no significant retinal findings. The extraocular movements are full and conjugate. The pupils are 3 mm and react briskly to direct and consensually presented light. There is blink to threat from both directions. The tongue is moist and papillated and moves well in all plains. The uvula is midline. The pharyngeal folds are symmetric. Motor examination reveals symmetric strength, bulk, and tone. There are no adventitious movements and no focal weakness or atrophy. The deep tendon reflexes are 2+ throughout. Plantar responses are downgoing. Station and gait are appropriate for age. The arm swing is symmetric. 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, Bobby's neurological examination in detail reveals no significant focal or lateralizing findings. The ventriculoperitoneal shunt is likely to be nonfunctional at this point. Bobby's normal neurological status together with a review of the accompanying medical records does not suggest that he has a substantial mental or motor impairment. . . . I, therefore, do not believe that he is eligible for compensation under the NICA statute.
Findings Of Fact On December 13, 2018, Petitioner filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. for benefits pursuant to sections 766.301-766.316, Florida Statutes, otherwise known as the Plan. The baby was born on April 1, 2018, at Winnie Palmer Hospital for Women and Babies (Hospital). The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records the Hospital submitted with the Petition. In the instant case, NICA has retained Donald C. Willis, M.D. as its medical expert specializing in maternal- fetal medicine. Upon examination of the pertinent medical records, Dr. Willis opined: There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the baby's brain or spinal cord during labor, delivery or the immediate post-delivery period. Dr. Willis’s medical report dated February 25, 2019, (which reviews additional medical records), are attached to his Affidavit, with the Affidavit being attached to the motion as Exhibit “1”. His Affidavit reflects his ultimate opinion that: The baby suffered cerebral infarction, which appear to have occurred after the period of stabilization during the immediate post delivery period. Medical records do not suggest the cerebral infarction occurred during labor, delivery or the immediate post delivery period. As such, it is my ultimate opinion that there was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the baby's brain or spinal cord during labor, delivery or the immediate post-delivery period. In the instant case, NICA has retained Michael S. Duchowny, M.D. as its medical expert in pediatric neurology. Upon examination of the child and the pertinent medical records, Dr. Duchowny opined: I reviewed medical records which document Elias's birth at 37 weeks' gestation at Winnie Palmer Hospital. The pregnancy was complicated by pre-eclampsia, asthma, GERD and obesity. The mother had a fever to 101 degrees at time of delivery and was diagnosed with chorioamnionitis. Elias was born vaginally with a birth weight of 5 pounds 10 ounces (2547 grams). Apgar scores were 8 and 9 at 1 and 5 minutes. Elias was admitted to the NICU and found to have a blood glucose of 35. His NICU stay was further complicated by apnea and desaturation that raised concerns for seizures; he was started on Keppra, Elias was never intubated or mechanically ventilated and was maintained on room air. An MRI scan of the brain on DOL #2 revealed multiple ischemic infarcts involving the left lateral temporal lobe, left posterior thalamus and left hippocampal formation. There was adjacent extra-axial hemorrhage over the left temporal lobe. The findings were felt to most likely represent areas of venous infarction. Dr. Duchowny’s medical report is attached to his Affidavit, with the Affidavit being attached to the motion as Exhibit “2”. His Report reflects his ultimate opinion that: A consideration of the findings from today's evaluation and record review lead me to recommend that Elias not be considered for compensation within the NICA program. He has normal motor functions and his stroke was likely acquired prenatally. There is no evidence of either mechanical injury or oxygen deprivation in the course of labor, delivery or the immediate post-delivery period. The Affidavits of Dr. Willis and Dr. Duchowny are the only evidence of record relating to the issue of whether the subject claim is compensable as defined by the statute. As noted, Petitioner did not file a response to the motion, nor submit countervailing affidavits. The Petition, along with the Affidavits attached to the motion, establish that there are no genuine issues of material fact regarding the compensability of this claim.
Other Judicial Opinions Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).
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 Jordan Gonzalez was born on May 29, 2008, at North Shore Medical Center in Miami, Florida. Jordan weighed 2,530 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Jordan and his mother. In an affidavit dated February 19, 2013, Dr. Willis opined the following within a reasonable degree of medical probability: It is my opinion that in summary, fetal abnormalities were identified by ultrasound during pregnancy. The baby was delivered by Cesarean section due to the development of fetal ascites. The mother was not in labor. The baby had several congenital abnormalities including hypoplastic lungs, single umbilical artery, ascites, dilated ventricles in the brain, agenesis of the corpus callosum and a small phallus. MRI did not identify findings suggestive of hypoxic brain injury. As such, it is my opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during delivery or during resuscitation in the immediate post delivery period in the hospital. The mother was not in labor. The fetus had known abnormalities identified by ultrasound during pregnancy. It is most likely the baby's brain abnormalities are congenital and not related to oxygen deprivation at birth. Jordan was examined and evaluated by Michael Duchowny, M.D. (Dr. Duchowny), on January 30, 2013. In an affidavit dated February 27, 2013, Dr. Duchowny found the following on his examination of Jordan: It is my opinion that the findings from the examination are consistent with both a substantial mental and motor impairment. Jordan is functioning at approximately age 2-3 month level and in addition to his global development delay manifests microcephaly, dynamic hypotonia and dynamic static hypotonia with hyperreflexia and pathological reflexes. However his examination reveals multiple congenital anomalies which together with the neuroimaging findings suggest that Jordan's neurological deficits were most likely acquired prior to birth. As such, it is my opinion that there is no evidence from his postnatal course or from his present physical findings to indicate that Jordan Gonzalez sustained an hypoxic or ischemic insults in the course of labor, delivery or the immediate neonatal period. I therefore am not recommending Jordan for inclusion into the NICA program. A review of the file does not show any contrary opinions to those of Dr. Willis and Dr. Duchowny. The opinions of Dr. Willis and Dr. Duchowny that Jordan did not suffer a neurological injury due to oxygen deprivation or mechanical trauma during labor, delivery, or resuscitation in the immediate postdelivery period are credited.
