The Issue The issue in this case is whether Reshnaya E. Francois suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Plan.
Findings Of Fact Reshnaya E. Francois was born on January 31, 2016, at Broward Health, in Coral Springs, Florida. Reshnaya weighed in excess of 2,500 grams at birth. The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records of Broward Health submitted with the Petition. At all times material, both Broward Health and Dr. Wajid were active members under NICA pursuant to sections 766.302(6) and (7). Reshnaya was delivered by Dr. Wajid, who was a NICA- participating physician, on January 31, 2016. Petitioners contend that Reshnaya suffered a birth- related neurological injury and seek compensation under the Plan. Respondent contends that Reshnaya has not suffered a birth- related neurological injury as defined by section 766.302(2). In order for a claim to be compensable under the Plan, certain statutory requisites must be met. Section 766.309 provides: The Administrative Law Judge shall make the following determinations based upon all available evidence: Whether the injury claimed is a birth- related neurological injury. If the claimant has demonstrated, to the satisfaction of the Administrative Law Judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in § 766.302(2). Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital. How much compensation, if any, is awardable pursuant to § 766.31. If the Administrative Law Judge determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at birth, she or he shall enter an order . . . . The term “birth-related neurological injury” is defined in Section 766.302(2), Florida Statutes, as: . . . injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality. (Emphasis added). In the instant case, NICA has retained Donald Willis, M.D. (Dr. Willis), as its medical expert specializing in maternal-fetal medicine and pediatric neurology. Upon examination of the pertinent medical records, Dr. Willis opined: The newborn was not depressed. Apgar scores were 8/8. Decreased movement of the right arm was noted. The baby was taken to the Mother Baby Unit and admission exam described the baby as alert and active. The baby had an Erb’s palsy or Brachial Plexus injury of the right arm. Clinical appearance of the baby suggested Down syndrome. Chromosome analysis was done for clinical features suggestive of Down syndrome and this genetic abnormality was confirmed. Chromosome analysis was consistent with 47, XX+21 (Down syndrome). Dr. Willis’s medical Report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: In summary: Delivery was complicated by a mild shoulder dystocia and resulting Erb’s palsy. There was no evidence of injury to the spinal cord. The newborn was not depressed. Apgar scores were 8/9. Chromosome analysis was consistent with Down syndrome. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period. The baby has a genetic or chromosome abnormality, Down syndrome. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis. The opinion of Dr. Willis that Reshnaya did not suffer an obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery, or the immediate post-delivery period is credited. In the instant case, NICA has retained Michael S. Duchowny, M.D. (Dr. Duchowny), as its medical expert in pediatric neurology. Upon examination of the child and the pertinent medical records, Dr. Duchowny opined: In summary, Reshnaya’s examination today reveals findings consistent with Down syndrome including multiple dysmorphic features, hypotonia, and hyporeflexia. She has minimal weakness at the right shoulder girdle and her delayed motor milestones are likely related to her underlying genetic disorder. There are no focal or lateralizing features suggesting a structural brain injury. Dr. Duchowny’s medical report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: Neither the findings on today’s evaluation nor the medical record review indicate that Reshnaya has either a substantial mental or motor impairment acquired in the course of labor or delivery. I believe that her present neurological disability is more likely related to Downs syndrome. For this reason, I am not recommending that Reshnaya be considered for compensation within the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Duchowny. The opinion of Dr. Duchowny that Reshnaya did not suffer a substantial mental or motor impairment acquired in the course of labor or delivery is credited.
Findings Of Fact Mya Brayboy was born on March 6, 2014, at Winnie Palmer Hospital, located in Orlando, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Mya. In a medical report dated March 21, 2016, Dr. Willis described his findings in pertinent part as follows: In summary, this was a twin pregnancy with vaginal delivery of the first baby followed by Cesarean section for the second baby due to footling breech presentation and fetal bradycardia (fetal distress). Fetus B (Mya Brayboy) was depressed at birth and had a blood gas pH of 6.86, consistent with acidosis. The newborn hospital course was complicated by multi-system organ failure. EEG was abnormal and consistent with a history of HIE. However, the MRI on DOL 8 was reported as unremarkable. There was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and continuing into the immediate post delivery period. The oxygen deprivation resulted in some degree of brain injury based on the abnormal EEG. I am unable to determine the severity of any possible injury. Dr. Willis’ opinion that there was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and continuing into the immediate post-delivery period is credited. Respondent retained Laufey Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to evaluate Mya. Dr. Sigurdardottir reviewed Mya’s medical records, and performed an independent medical examination on her on April 27, 2016. In a neurology evaluation based upon this examination and a medical records review, Dr. Sigurdardottir made the following findings and summarized her evaluation as follows: In summary: This is a 2-year-old, ex-36-week twin with significant intrapartum bradycardia resulting in an emergent C-section. Patient had a neonatal neurologic syndrome including hypotonia, little respiratory drive with multisystem abnormalities including a metabolic acidosis, hypotension, elevated creatinine, elevated coagulation studies, elevated LFTs, and poor urine input. The patient’s Apgar scores were 2 after 1 minute, 2 after 5 minutes and 3 after 10 minutes and the patient required a 9-day NICU stay. Fortunately, her EEG was reassuring and her MRI did not show definite signs of acute ischemic injury. Her neurologic exam during this examination is normal, indicating good motor function for her age. A full language evaluation could not be performed, but as per report from mother, she is on target for normal language development. No autistic features were noted. Therefore, my results within reasonable degree of medical certainty are the following: Results as to Question 1: The patient is found to have no permanent mental or physical impairment. Results as to Question 2: There is evidence of complications during Mya’s birth that resulted in hypoxic ischemic encephalopathy, although her recovery has been favorable. Based on record review the timing of her hypoxic event is intrapartum. Results as to Question 3: We would expect full life expectancy and an excellent prognosis for both motor and mental skills. In light of the above-mentioned details, I do not recommend Mya to be included into the Neurologic Injury Compensation Association (NICA) and would be happy to answer additional questions. In order for a birth-related injury to be compensable under the NICA Plan, the injury must meet the definition of a birth-related neurological injury and the injury must have caused both permanent and substantial mental and physical impairment. Dr. Sigurdardottir’s opinion that Mya does not have a permanent physical or mental impairment is credited. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Sigurdardottir that Mya does not have a permanent physical or mental impairment.
The Issue At issue in this proceeding is whether Aubreigh Kathryne Delisle, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact As observed in the preliminary statement, neither Petitioners nor anyone on their behalf appeared at hearing, and no proof was offered to support their claim. Contrasted with the dearth of proof offered by Petitioners, Respondent offered the opinions of Michael Duchowny, M.D., a physician board certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. It was Dr. Duchowny's opinion, based on his neurological evaluation of Aubreigh on December 3, 1998 (at 7 years of age) and his review of Aubreigh's medical records, that Aubreigh's current neurological condition did not result from oxygen deprivation or mechanical trauma occurring during the course of labor, delivery, or resuscitation in the immediate post-delivery period. Rather, it was Dr. Duchowny's opinion that Aubreigh's neurological presentation was most consistent with "abnormal brain maturation" or, stated differently, "there was no brain damage whatsoever, but rather her brain was not developing normally." (Transcript, page 9.) Given the proof, it must be resolved that Petitioners have failed to demonstrate that Aubreigh suffered a "birth- related neurological injury" as alleged in the claim for benefits.
The Issue At issue is whether Tyler Lee Masterton, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact The parties stipulated as fact that: Paul David Masterton is the parent and natural guardian of Tyler Lee Masterton, a minor; Tyler was born a live infant on August 4, 2004, at Bayfront Medical Center, a licensed hospital located in St. Petersburg, Florida; Tyler's weight at birth exceeded 2,500 grams; Obstetrical services were delivered at Tyler's birth by Manuel A. Reyes, 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; Tyler suffered oxygen deprivation during labor, delivery and resuscitation in the immediate postdelivery period in a hospital; The oxygen deprivation resulted in injury to Tyler's brain; Such injury rendered Tyler permanently and substantially mentally impaired. The record evidence supports the facts stipulated to by the parties. 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 § 766.31, Fla. Stat. Here, the parties have stipulated, and the proof is otherwise compelling, that Tyler suffered a brain injury during the delivery process which resulted in his suffering a permanent and substantial mental impairment. What remains to be resolved is whether Tyler also suffers from a permanent and substantial physical impairment as a result of the brain injury sustained at birth. As the proponent of the issue, the burden rested on Petitioner to demonstrate and prove that, in addition to the issues stipulated, Tyler suffered a permanent and substantial physical impairment. Petitioner presented no expert medical witnesses to speak to that issue. Petitioner presented his own lay testimony and the lay testimony of James Masterton, Tyler's grandfather. Their testimony and Tyler's School Progress Report and Pre- Kindergarten Assessment, which supplement the testimony, demonstrate observable physical activities below average for Tyler's age and learning deficits attributable to cerebral palsy. However, these observations do not demonstrate substantial physical impairment within reasonable medical certainty. To address the nature and significance of Tyler's physical impairment, the parties had admitted in evidence the medical records from Tyler's delivery and subsequent care. The Affidavit of Raymond J. Fernandez, M.D., a pediatric neurologist, who evaluated Tyler on March 19, 2009, was admitted only to explain or supplement non-hearsay evidence, but to the extent it may be considered, it also does not support a finding that Tyler is permanently and substantially physically impaired. Together with Dr. Fernandez's report, the medical records show that, although Tyler may evidence some physical impairment, Tyler sits independently, stands independently, walks, runs, and jumps on his own, and is able to interact with people and his environment. The medical records further indicate that Tyler scores within the range of average, albeit at the low-end of average, for the physical activities for which he was tested. Further, Dr. Fernandez's opinion, as expressed in his Affidavit and accompanying report, supplements the information in the medical records and supports a finding that Tyler is not permanently and substantially physically impaired. Dr. Fernandez is of the opinion "that Tyler did not sustain a permanent and substantial physical impairment as a result of oxygen deprivation or mechanical injury occurring during the course of labor, delivery or the immediate postdelivery period in the hospital," even though his mental impairment will be permanent. In so concluding, Dr. Fernandez documented the results of his examination, as well as his conclusions, in pertinent part, as follows: PHYSICAL EXAMINATION: Weight 38 pounds. Height 39 inches. Head circumference 47.75 cm. Pulse rate 88. Respiratory rate 18. There were no dysmorphic features or significant skin abnormalities. Heart, lungs, and abdomen were normal. There were no orthopedic abnormalities. He was active and his attention span was short. He was able to draw circles but could not intersect lines even when demonstrated to him. He named 3 of 3 colors correctly (green=gee, blue=bu, red=re). He pointed to several body parts (nose, eye, and belly) but not his ears. He pointed correctly to pictures of animals and he named them although his words were not clear. At times he became restless and wanted to leave the room and when frustrated he bit his hand and tried to hit his father. Mr. Masterton was able to calm Tyler down by speaking gently and holding him. Tyler was not able to follow prepositional requests (I asked him to put an object on a chair, under a chair, and behind a chair but he did not understand these directions). He named a pencil but could not tell me what you do with one. Pupils were equal and briskly reactive to light. I was unable to visualize his optic nerves in detail but there was no gross abnormality noted. He had a subtle right esophoria. Face was symmetric. Palate and tongue midline. Muscle tone normal and there was no focal or lateralized weakness. He walked well independently, ran and jumped and hopped in place. He reached accurately with either hand and without tremor. He is left-handed but he also has good use of his right hand. He stacked five 1-inch cubes using either hand. He built a bridge with cubes when this was demonstrated to him. He climbed onto the examining table without assistance. Deep tendon reflexes 2+. There are no pathological reflexes. * * * Tyler's motor and cognitive development has been delayed but he is improving. At this time I do not find evidence for substantial physical impairment. He appears to have substantial cognitive impairment but he is improving and the ultimate outcome with regard to cognitive function is indeterminate at this time. * * * This addendum follows review of the All Children's Hospital medical record. * * * IMPRESSION: Based on record review there was evidence for perinatal encephalopathy probably due to oxygen deprivation. Tyler's early hypotonia was possibly due at least in part to hypermagnesemia but this does not explain the seizures that occurred on day 1. Also, there was brain MRI evidence for cerebral ischemia consisting of signal abnormality on the diffusion-weighted images and in addition there was MRI evidence for intracranial hemorrhage. Subsequent brain MRIs showed evidence for diffuse white matter injury that probably correlates with the early ischemic change seen on the initial MRI. As previously stated, there is evidence for substantial mental or cognitive impairment and while improving it is likely that this will be permanent. Tyler has secondary microcephaly with postnatal impairment of brain growth, likely due to ischemic brain injury. This is highly predictive of permanent mental or cognitive impairment. Also, as previously stated I did not find evidence for substantial motor impairment based on my examination of March 19, 2009, in spite of Tyler's ischemic brain injury. Consequently, for reasons appearing more fully in the Conclusions of Law, the claim is not compensable.
The Issue At issue in this proceeding is whether Emmanuel Hooks, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Petitioner, Brianna Denise Davidson, is the mother and natural guardian of Emmanuel Hooks, a minor. Emmanuel was born a live infant on July 26, 1999, at Gulf Coast Medical Center, a hospital located in Panama City, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Emmanuel's birth was Steven G. Smith, 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. Emmanuel's birth At or about 9:10 p.m., July 25, 1999, Ms. Davidson (with an estimated date of delivery of July 26, 1999, and the fetus at 40 weeks gestation) presented to Gulf Coast Medical Center in labor. Initial vaginal examination revealed the cervix at 2-3 centimeters dilation, effacement as "thin," and the fetus at station -3. External fetal monitoring revealed a reassuring fetal heart rate (of 140-150 beats per minute), with accelerations. Ms. Davidson was continually monitored, and at 11:00 p.m., she was admitted to labor and delivery. At the time, uterine contractions were noted at 3-5 minute intervals, and vaginal examination revealed the cervix at 3 centimeters, effacement at 90 percent, and the fetus at station -3. Ms. Davidson's labor apparently did not progress, and at 2:49 a.m., July 26, 1999, she was started on Pitocin. Thereafter, Ms. Davidson's labor progressed slowly, and at 6:45 a.m., vaginal examination revealed the cervix at 5 centimeters, effacement at 90 percent, and the fetus at station -1. In the interim, external fetal monitoring continued to reveal a reassuring fetal heart rate. Ms. Davidson's labor continued to slowly progress, and by 9:00 a.m., vaginal examination revealed the cervix at 8 centimeters, effacement at 100 percent, and the fetus at station -1. In the interim, at 8:48 a.m., Ms. Davidson's membranes spontaneously ruptured, with clear fluid noted. Thereafter, variable decelerations were noted with each contraction, consistent with umbilical cord compression, and fetal heart base line remained reassuring (in the 140-beat minute range). From 9:00 a.m. to 11:45 a.m., Ms. Davidson's labor failed to progress (with the cervix at 8 centimeters, effacement at 100 percent, and the fetus at station -1), and at 11:45 a.m., Ms. Davidson was transported to the operating room for delivery by caesarean section. Notably, between 9:00 a.m., and 11:45 a.m., while variable decelerations continued, the fetal heart rate base line remained in the 140-beat per minute range, and fetal electrode revealed the presence of short term variability. According to the records, Ms. Davidson was in the operating room at 11:45 a.m., anesthesia started at 11:45 a.m., surgery started at 12:32 p.m., and Emmanuel was delivered at 12:35 p.m. Of note, the "nucal cord x 1" observed during delivery was described as "loose," and fetal heart monitoring in the operating room and immediately prior to the caesarean section revealed a reassuring fetal heart rate. On delivery, Emmanuel was bulb-suctioned, but did not require resuscitation. Initial newborn assessment noted no apparent abnormalities, and Apgar scores were recorded as 8 at one minute and 9 at 5 minutes. The Apgar scores assigned to Emmanuel are a numeric expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex response, and color, with each category being assigned a score ranging from the lowest score of 0 through maximum score of 2. As noted, at one minute, Emmanuel's Apgar score totaled 8, with heart rate, respiratory effort, muscle tone, and reflect response being graded at 2 each, and color being graded a 0. At five minutes, Emmanuel's Apgar score totaled 9, with heart rate, respiratory effort, muscle tone, and reflex response again graded at 2 each, and color now graded at 1. Such scores are considered normal, and inconsistent with recent hypoxic insult or trauma. Following the initial newborn assessment, Emmanuel was transported to the regular nursery, where he remained until he was discharged with his mother on July 29, 1999. Notably, the newborn nursery admission assessment was grossly normal, and there is no evidence of any complication during Emmanuel's stay. Emmanuel's subsequent development On December 10, 2001, following the filing of the subject claim, Emmanuel was examined by Dr. Michael Duchowny, a physician board-certified in pediatrics, neurology with special competence in child neurology, electroencephalography, and clinical neurophysiology. Dr. Duchowny reported the results of his neurology evaluation, as well as the history he obtained from the parents, as follows: HISTORY ACCORDING TO MR. AND MRS. HOOKS: Emmanuel is a 2 1/2 year old boy who the parents indicated suffers from cerebral palsy and brain injury. They began by explaining that Emmanuel suffered brain injury at birth due to a cord being wrapped around his neck. He was delivered by emergency caesarean section. They noted that Emmanuel's MRI has shown periventricular leukomalacia and furnished a copy of the MRI report. Emmanuel's growth and developmental milestones have been slow. He did not rollover until 9 months, nor did he sit until a year of age. He stood at 14 months, walked at 18 months and said his first word at age 2. He now has a lexicon of only one word ("ma-ma"). Emmanuel is not toilet trained. He is described as being extremely active. He does not sit still at anytime during the day and it is difficult to examine him or provide therapy. He attends a wellness center where he receives physical, speech and occupational therapy on a twice weekly basis. Communication is a particular problem area for him. Emmanuel's appetite has also been diminished and he is now "only starting to eat". His mother indicated that Emmanuel suffers from "low muscle tone" and that he drools frequently. She also mentioned that he wakes up frequently at night and is just beginning to sleep more consistently. Emmanuel does not play with other children at school. His activity level and intrusiveness have precluded meaningful peer interactions. The parents are aware that his eye contact is poor. The parents stated that Emmanuel "had seizures", but then went on to explain that 2 EEG's were normal and he was never placed on medication. The events were described as "getting into a trance". He has not had motor convulsions. FAMILY HISTORY: Both parents are healthy. A 4 year brother had no medical problems and there are no family members with degenerative illnesses, mental retardation or cerebral palsy. Emmanuel was born at Gulf Coast Medical after a 39 week gestation. He weighed 8-pounds, 9- ounces at birth and breathed well. He was discharged from the nursery at 3 days of age. Emmanuel is fully immunized, has no significant drug allergies and never been hospitalized or undergone surgery. His vision and hearing are said to be excellent. PHYSICAL EXAMINATION reveals an alert, but extremely active and well developed 2 1/2 year old toddler. Emmanuel weighs 39-pounds. His head circumference measures 50.2 cm and there are no cranial or facial anomalies or asymmetries. Emmanuel's neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. Emmanuel's NEUROLOGIC EXAMINATION is difficult to complete, as he is constantly in motion. The physical examination requires restraint from his father, as he continually tries to touch things and pull items off the desktop and shelves. Emanuel has very poor eye contact and did not communicate in words at anytime during the session. It was difficult for him to follow commands as well, as his attention span constantly shifted. He drooled intermittently. The tongue movements are poorly coordinated. Cranial nerve examination reveals full visual fields to direct confrontation testing. There is blink to threat from either direction. I could not perform a fundoscopic examination. There are no facial asymmetries. Motor examination reveals mild generalized hypotonia with full range of motion. There are no adventitious movements, aside from the high activity level and no evidence of focal weakness or atrophy. Emmanuel's gait is stable, but slightly wide- based and he has generalized hypotonia. The deep tendon reflexes are 2+ bilaterally and plantar responses are in flexion. There is withdrawal of all extremities to touch. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. Cerebellar testing could not be completed due to poor cooperation. In SUMMARY, Emmanuel's neurologic examination is significant for multiple areas of developmental delay. He is extremely overactive and inattentive, and has a significant behavior and communication problem. He additionally demonstrates poor eye contact and has a significant social disability. There are no specific focal or lateralizing findings to suggest a structural brain lesion. The findings on Emmanuel's neurologic examination suggests a diagnosis of a pervasive developmental disorder. Emmanuel fits within the autistic spectrum and this was communicated to the family . . . . The cause and timing of Emmanuel's neurological impairment To address the issue of whether Emmanuel's impairments were associated with an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital," as required for coverage under the Plan, Petitioner offered selected medical records relating to Ms. Davidson's antepartum course, as well as those associated with Emmanuel's birth and subsequent development. Additionally, Emmanuel's parents testified on their own behalf, and Respondent offered the deposition testimony of Dr. Duchowny, whose qualifications were previously noted, and the deposition testimony of Dr. Donald Willis, a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine. As for the cause and timing of Emmanuel's impairments, it was Dr. Duchowny's opinion, based on the results of his neurology evaluation and review of the medical records, that Emmanuel's impairments are not related to perinatal asphyxia or trauma. More particularly, Dr. Duchowny expressed his views, as follows: Q. Based on your review of the records and your evaluation of Emmanuel Hooks, can you give us an overview of his condition? A. Yes. I thought that Emmanuel's neurologic examination revealed evidence of developmental neurologic impairment. He was hyperactive and had an attention deficit disorder and additionally had significant behavior, social and communication problems. All of this suggested he had developmental problems in multiple areas, consistent with a diagnosis of pervasive developmental disorder. Many of the children with pervasive developmental disorder go on to develop childhood autism as they get older. * * * Q. In this particular case, do you believe that Emmanuel's condition was acquired during the course of labor-delivery in the immediate post-delivery period? A. No, I do not. Q. What is the basis for that opinion? A. The basis for my opinion is that autism is a developmental disorder which results from unknown factors operating in utero prior to the onset of labor and delivery and is not a recognized complication of birth asphysia or birth trauma. Q. I take it your opinion is that Emmanuel Hooks did not acquire whatever neurological deficits he had as a result of any oxygen deprivation or mechanical injury occurring during labor-delivery or the immediate post- delivery period? A. That's correct. Q. In fact, was there any evidence in the medical records of any oxygen deprivation that occurred during the course of labor- delivery or resuscitation during the immediate post-delivery period? A. No. Q. Was there any evidence of mechanical injury occurring during the course of labor- delivery or the immediate post-delivery resuscitative period? A. No, there was not? Q. In your opinion, were Emmanuel's problems acquired prior to the course of labor- delivery? A. Yes. As for Dr. Willis, he was also of the opinion that the medical records revealed no evidence of oxygen deprivation or other trauma associated with Emmanuel's birth. The medical records, as well as the testimony of the physicians and the parents, have been carefully considered. So considered, it must be concluded that the proof failed to demonstrate that any impairment Emmanuel suffers was occasioned by an injury to the brain or spinal cord injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period.
The Issue At issue in this proceeding is whether Morgan Wilson, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Petitioners, Tracie Wilson and James Ray Wilson, are the natural parents and guardians of Morgan Wilson. Morgan was born a live infant on December 12, 2000, at Baptist Medical Center, a hospital located in Jacksonville, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Morgan's birth was Martin Garcia, 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. Morgan's birth At or about 7:29 a.m., December 12, 2000, Mrs. Wilson (with an estimated date of delivery of December 23, 2000, and the fetus at 38 3/7 weeks gestation) presented to Baptist Medical Center, in labor. At the time, Mrs. Wilson's membranes were noted as intact, and mild to moderate uterine contractions were noted at a frequency of 2-4 minutes. Fetal monitoring revealed a reassuring fetal heart rate, with a baseline of 150-160 beats per minute, and the presence of fetal movement. At 9:45 a.m., Mrs. Wilson's membranes were artificially ruptured, with meconium stained amniotic fluid noted. At the time, vaginal examination revealed the cervix at 4 centimeters, effacement complete, and the fetus at 0 station. Mrs. Wilson's labor progressed, and at 7:29 p.m., Morgan was delivered, with vacuum assistance. According to the Admission Summary, Morgan was suctioned on the perineum, and, before she could be moved to the warmer, the "[c]ord clamp loosened with small amount of blood loss prior to reclamping." The Admission Summary further reveals that Morgan was "floppy and required bag mask ventilation x3 minutes, then blowby oxygen for 3 minutes." Apgar scores were noted as 1 and 8, at one and five minutes,2 and umbilical cord pH was reported as normal (7.28). Morgan was transferred to the neonatal intensive care unit (NICU) for "eval[uation] after blood loss." There, her blood count (with a hematocrit of 46 percent) was reported as normal or, stated otherwise, without evidence of a clinically significant blood loss due to the loosening of the clamp. Following two hours of observation, Morgan was transferred to the normal newborn nursery; however, at 4:20 p.m., December 13, 2000, she was readmitted to the neonatal intensive care unit. The reason for admission was stated in the Admission Summary, as follows: . . . Indications for transfer included 38 week WF with renal vein thrombosis and left middle cerebral artery stroke. Neonatology consulted midafternoon today secondary to hematuria. On exam, Dr. Cuevas noted asymmetry of pupils, with right more dilated and less responsive then left. Also noted to have torticollis, preferring to keep head turned to left. Also noted to have palpable mass in left abdomen. Renal ultrasound revealed renal vein thrombosis. HUS showed some echogenecity so Head CT done revealing left middle cerebral artery stroke. Hct this am 41. Baby then admitted to NICU for further care. Neurology and hematology consulted as well as nephrology. Impressions on admission included: possible coaguloathy; left middle cerebral artery stroke; renal vein thrombosis; and torticollis. Morgan remained at Baptist Medical Center until December 29, 2000, when she was discharged to her parents' care. Morgan's Discharge Summary noted the following active diagnoses: possible coagulopathy; anemia; left middle cerebral artery stroke; renal vein thrombosis; and torticollis. 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 post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, indisputably, the record demonstrates that Morgan suffered an injury to the brain (following a stroke in the territory of the left middle cerebral artery, likely due to arterial occlusion or superior saggital sinus thrombosis). What is disputed, is whether the proof demonstrates, more likely than not, that such injury occurred "in the course of labor, delivery, or resuscitation," and whether any such injury rendered Morgan "permanently and substantially mentally and physically impaired." The timing of, and the neurologic consequences that followed, Morgan's brain injury To address whether Morgan's brain injury occurred "in the course of labor, delivery, or resuscitation," and whether such injury rendered Morgan "permanently and substantially mentally and physically impaired," Petitioners offered medical records relating to Mrs. Wilson's antepartum course, as well as those associated with Morgan's birth and subsequent development. Additionally, Mrs. Wilson testified on her own behalf, and Respondent offered the deposition testimony of Dr. Donald Willis, a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine, and Dr. Michael Duchowny, a physician board-certified in pediatrics, neurology with special competence in child neurology, electroencephalography, and neurophysiology.3 As for the timing of Morgan's injury, it was Dr. Willis' opinion that the medical records did not reveal any obstetrical event that would account for Morgan's injury. In so concluding, Dr. Willis noted that fetal monitoring (which began on admission and continued until 7:28 p.m., one minute prior to delivery) did not reveal evidence of fetal compromise or a clinically significant event that would account for Morgan's injury, that Morgan's 5-minute Apgar score was normal, her umbilical cord pH was normal, and her hematocrit on initial admission to the neonatal intensive care unit was normal. Consequently, Dr. Willis concluded that Morgan's injury did not occur during labor, delivery, or resuscitation. Also speaking to the timing of Morgan's injury was Dr. Duchowny who, based on his review of the medical records, shared Dr. Willis' opinion that there was no evident problem during labor and delivery, and further opined that Morgan's injury likely occurred prior to labor. In concluding that Morgan's injury likely predated the onset of labor, Dr. Duchowny noted that Morgan's CT scan on the day after birth clearly revealed a stroke in the territory of the left middle cerebral artery, and that it would take at least 72 hours for a stroke to be revealed so clearly on a CT scan. Apart from the timing of Morgan's brain injury, Dr. Duchowny also expressed his opinions, based on his examination of November 6, 2001, regarding the neurologic consequences that followed Morgan's injury. Dr. Duchowny reported the results of Morgan's neurology evaluation, as follows: PHYSICAL EXAMINATION reveals an alert, well developed and well nourished 10 1/2 month old white female. The skin is warm and moist. There are no cutaneous stigmata or dysmorphic features. The hair is light blonde, fine and of normal texture. Morgan weighs 18-pounds, 10-ounces. Her head circumference measures 45.6 cm, which is at the 60th percentile for age matched controls. There are no dysraphic features. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. NEUROLOGIC EXAMINATION reveals an alert infant who is socially oriented. She has good central gaze fixation, conjugate following and normal ocular fundi. The pupils are 3 mm and react briskly to direct and consensually presented light. There is blink to threat from both directions. There are no facial asymmetries. The tongue and palate move well, and there is no drooling. Motor examination reveals an obvious asymmetry of posturing and movement. The left side is positioned normally and tends to grasp for objects. The right upper and lower extremity have diminished movement in comparison to the left and there is a tendency for the left hand to cross the midline for all manual tasks. She will not grasp for an offered cube with her right hand. In contrast, the left hand will grasp for a cube and display the beginnings of individual finger movements. The thumb on the right hand is fisted. The muscle, bulk and tone appears symmetric. Deep tendon reflexes are 2+ at the biceps and knees. Both plantare responses are mildly extensor. On pull-to-sit there is an asymmetry of the upper extremity, with relatively greater pull on the left side. The neck tone is good. There are no adventitious movements. Sensory examination is intact to withdrawal of all extremities to touch. The neurovascular examination via the anterior fontanelle is unremarkable. In SUMMARY, Morgan's neurologic examination reveals a mild to moderate motor asymmetry of the right side affecting primarily upper extremity, but with some lower extremity involvement as well. In contrast, Morgan's cognitive status appeared well preserved for age and she is certainly developing on schedule with regard to her linguistic milestones. I suspect that Morgan's motor function will continue to improve, as she is working actively in therapy. In sum, it was Dr. Duchowny's opinion that Morgan evidenced neither a permanent and substantial physical impairment nor a permanent and substantial mental impairment. In contrast to the proof offered by Respondent, Petitioners offered the lay testimony of Mrs. Wilson, which was legally insufficient to support a finding regarding the timing of Morgan's brain injury, and which failed to support a conclusion that Morgan was permanently and substantially mentally and physically impaired. See, e.g., Vero Beach Care Center v. Ricks, 476 So. 2d 262, 264 (Fla. 1st DCA 1985)("[L]ay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observable.") Consequently, since the opinions of Dr. Willis and Dr. Duchowny are logical, and consistent with the medical records, it must be resolved that, more likely than not, Morgan's brain injury did not occur "in the course of labor, delivery, or resuscitation," and that Morgan's injury did not render her "permanently and substantially mentally and physically impaired." 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 in the proceeding is whether Shayla Adame, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Petitioner, Sheila Adame, is the mother and natural guardian of Shayla Adame, a minor. Shayla was born a live infant on April 1, 1996, at University Medical Center, a hospital located in Jacksonville, Florida, and her birth weight exceeded 2,500 grams. The physicians providing obstetrical services during the birth of Shayla included Drs. Pierce, Murray, and Sanchez, who were at all times material hereto "participating physician[s]" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Sections 766.302(7) and 766.314(4)(c), Florida Statutes. Ms. Adame's antenatal course and Shayla's birth Ms. Adame's antepartum course was without any apparent prenatal complication of significance; however, on November 17, 1995, at 17 weeks and 6 days gestation, the fetus was noted in a breech presentation (presentation of the buttocks of the fetus to the cervix), with placenta anterior, a condition that would persist through the course of Ms. Adame's pregnancy.1 Given the breech presentation, an external cephalic version (a manipulation of the fetal body applied through the abdominal wall of the mother to convert a breech presentation to a head presentation), referred to as an ECV in the medical records, was attempted on two occasions. The first procedure occurred on March 22, 1996, at 37 weeks gestation, and despite three attempts proved unsuccessful. The second procedure occurred on March 29, 1996, and, with one attempt, likewise proved unsuccessful. The progress notes of that attempt reveal the following: . . . ECV attempted but buttocks (presenting part) engaged and unable to elevate to perform ECV . . . [Patient] desires TOL [Trial of Labor]. CT pelvimetry [measurement of the dimensions and capacity of the pelvis to assess clinical adequacy] ordered for 4/1/06 . . . . At the time, the cervix was noted as closed and thick. At 7:35 a.m., March 31, 1996, Ms. Adame telephoned University Medical Center, the entity that provided her antenatal care, and reported that she had "[s]tarted vag[inal] bleeding last night more than spotting, less than period. Bright Red." Shortly thereafter, at 7:45 a.m., the duty nurse returned Ms. Adame's telephone call, and was informed by Ms. Adame that she was now having contractions. In response, the duty nurse told Ms. Adame to come to the hospital immediately if she experienced any more evidence of bleeding, if she experienced decreased fetal movement or no fetal movement in 2 hours, or if she experienced regular uterine contractions for 2 to 3 hours of 30 seconds duration, with 6 or more an hour. Approximately 4 1/2 hours later, at 12:15 p.m., March 31, 1996, Ms. Adame presented at University Medical Center complaining of vaginal bleeding and lower abdominal pain (described as "cramps"). External fetal monitor (EFM) and tocograph (TOCO), an instrument for measuring uterine contractions, were applied. At the time, fetal monitoring revealed a fetal heart rate of 140 to 150 beats per minute, positive long term variability and no decelerations. TOCO revealed no evidence of contractions. Vaginal examination showed the cervix at 1 centimeter dilatation, effacement at 50 percent, and the fetus high posterior. Assessment was term breach, latent labor, and the plan was to proceed with the CT pelvimetry previously scheduled for April 1, 1996. At 2:00 p.m., Ms. Adame was discharged home, with labor precautions. A little less than 6 hours later, at 7:42 p.m., March 31, 1996, Ms. Adame (with an estimated date of delivery of April 13, 1996) again presented at University Medical Center, this time complaining of spontaneous rupture of membranes (SROM) at 7:00 p.m., with "green fluid" (meconium stained fluid), and some uterine contractions. EFM and TOCO were applied, and revealed a stable fetal heart rate and positive uterine contractions. Subsequent vaginal examination revealed the cervix at 2 centimeters dilatation, effacement complete, and the fetus at station-1, with a moderate amount of "green fluid pouring from the os [ostium uteri]". CT pelvimetry revealed a clinically adequate pelvis and it was resolved to proceed with a vaginal breech delivery. Ms. Adame's labor progressed steadily until at or about 10:30 a.m., April 1, 1996, when dilatation and effacement were noted as complete, and the fetus at station +2. In the interim, fetal monitoring was reassuring, although there were occasional declarations noted and an increase in the fetal heart tone base line to 160-190 beats per minute (described in the records as protracted accelerations or persistent fetal tachycardia) associated with a slow rise in maternal temperature, which was noted to peak at 100.6 degrees Fahrenheit at 8:31 a.m., April 1, 1996. Given the elevation in temperature, blood cultures were ordered, and Ms. Adame was accorded ampicillin and gentamycin. Ms. Adame's second stage of labor was not prolonged, extending from approximately 10:30 a.m., until 11:36 a.m., when Shayla was delivered. As for the delivery, the delivery summary describes a delivery which, albeit a breech vaginal delivery, was easy and without incident. The summary further reflects that on delivery of the infant's head she was Delee suctioned, while the cord was clamped and cut, and accorded free flow oxygen. Following delivery, Shayla was handed off to the pediatrician, who noted that upon presentation Shayla was cyanotic with poor respiratory effort; however, following suctioning, stimulation, and positive pressure ventilation (PPV) for 15 seconds Shayla turned pink and cried spontaneously. Apgar scores were recorded as 3 at one minute and 8 at five minutes. The Apgar scores assigned to Shayla are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex/irritability, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute Shayla's Apgar score totaled 3, with heart rate, respiratory effort, and reflex/irritability being graded at 1 each, and muscle tone and color being graded at 0. At five minutes, Shayla's Apgar score totaled 8, with heart rate, respiratory effort, and reflex/irritability being graded at 2 each, and muscle tone and color being graded at 1 each. Notably, while Shayla's one-minute Apgar was below normal, such occurrence is not uncommon with a breech delivery, and her five-minute Apgar score, which is most predictive of neurologic outcome, was normal. Shayla was admitted to the newborn nursery at 12:00 (noon). Admission assessment and physical were essentially normal. Generally, she was described as pink, active, and with good cry; respiration as regular and unlabored; mouth with good suck and no cleft; spine straight with no apparent abnormality; and neurologic examination revealed good symmetrical muscle tone, positive suck, and positive moro. Notwithstanding, Shayla was noted with poor feeding by the third day of admission, with persistent hypotonia and occasional irritability and arching. Shayla's course in the newborn nursery from date of admission (April 1, 1996) to date of discharge (April 29, 1996) is reasonably summarized in her resume, as follows: ADMISSION DIAGNOSES: Term female appropriate for gestational age 38 weeks. BO isommunization. Rule out sepsis. Feeding difficulties. Breech delivery. Floppy infant. DISCHARGE DIAGNOSES: Term female appropriate for gestational age. BO isoimmunization. Ruled out sepsis. Feeding difficulties improved. Breech delivery. Floppy infant, etiology unknown yet. PROCEDURES: 1. Lumbar puncture. Head CT scan. Video swallow test. EEG. HISTORY: This is a 38 weeks' AGA infant born from 18-year-old gravida 2, para 0-0-1-0 white female with prenatal care at Clinic C with 0 positive blood, hepatitis B surface antigen negative, HIV negative, RPR nonreactive, rubella immune, mother who has been positive for Chlamydia on 9/22/95 which later on became negative, several times UTI with Proteus mirabilis which was treated during pregnancy, otherwise unremarkable pregnancy. Breech presentation with less fetal movement according to mom. Rupture of membranes about 16 hours prior to delivery. Mom had chorioamnionitis, temperature of 100.6. She received antibiotics prior to delivery . . . . [Baby was born by SVD] Apgars reported at 3 and 8 secondary to hypotonia, low respiratory effort and color. Mom denied drugs, alcohol or cigarette smoking during pregnancy. Mother had one elective abortion at 9 weeks of pregnancy in 1994 with different father. Father is a black male who has not been involved after pregnancy. HOSPITAL COURSE: Baby had poor p.o. feeding on the third day of admission noticed, not improving her tone and mostly floppy with occasional irritability and arching. With initial prolonged rupture of membranes and mother's known history of chorio, blood cultures, CBC, urine and CIE were done, and the patient was started on antibiotics, ampicillin and gentamicin. On the third day due to poor feeds LP was done too, and continued antibiotics until 72 hours of negative cultures. The infant continued to be floppy with generalized hypotonia and occasional arching especially neck and back accompanied with opisthotonos and extension of extremities with irritability and inconsolable. This problem continued during the past 28 days of newborn nursery. Her hypotonia did not progress, and at the same time did not improve or improved a little bit. Her irritability and arching to some extent decreased. These days she is most of the time resting with less irritability but the problem of hypotonicity and lethargy continued. Problem #1. Fluids/electrolytes/nutrition: On the first three days of life she continued with the regular care with p.o. feeding. Initially it was decided by mom to breast- feed but since she was not eating enough or not sucking enough continued with bottle feeding, namely Enfamil with Iron, but on the third day it was noticed that she was not taking enough or not sucking enough, and at the same time was getting easily tired. It was decided to continue with p.o. and at the same time NG feeding but her feeding pattern did not improve and most of the time she was dependent on NG feeding due to decreased or insufficient sucking reflex and swallowing problem. Speech therapy was consulted. Video swallow was done which showed incoordination of the muscle, and at the same time although there was no frank aspiration but was high risk for aspiration. Continued NG feeding most of the time and with OT and physical therapy with speech therapy daily arrangement this problem somehow resolved. Accordingly, it has been about a week that the patient is eating by p.o. without any need for NG. The last video swallow which was done about a week ago, namely on 4/24 showed improved swallowing mechanism but still is at risk for aspiration. No aspiration was noticed during this test. Accordingly, she is taking about 75 cc Enfamil with Iron and rice cereal is added to it . . . for thickening and decreased risk for aspiration. Problem #2. Floppy baby, hypotonia, occasional arching and irritability: The patient was born with breech presentation with history of prenatal decreased fetal movement with Apgars of 3 and 8. She continued to be hypotonic which was not improving and occasional arching which was significant. Initially sepsis was ruled out including lumbar puncture done which was normal and antibiotics were discontinued based on negative cultures. CT scan of the head was done which was normal. Neurology consult was done from Nemours Children's Clinic. Dr. Shank followed this patient. Their impression was hypotonia that appeared to be prenatal due to breech presentation and decreased fetal movement. Dr. Shanks suspected that it is central due to fair muscular strength, but at the same time it was complicated by absence of deep tendon reflex. [Dr. Shank observed that the differential diagnosis was extensive (chromosome, metabolic, syndromic mostly likely)]. He suggested to do chromosomal workup, metabolic, and other syndromes which can cause the same hypotonia and his recommendation was followed. High resolution chromotrope was normal. Basic chemistry including sodium, potassium, calcium, phosphate, magnesium, liver function tests, and CPK were normal. Serum blood test was normal. Serum very long chain fatty acid was done which is followed by genetics, the result of the test is mentioned below. Urine metabolic screening was done too. Thyroid function was normal which was recommended also by neurology. EEG was done on 4/16/96. The patient had episodes of suspicious lip smacking. To rule out possibility of seizure EEG was done the same day which was normal. Ophthalmology consult was done on 4/10/96 to rule out possibly of some metabolic abnormalities, infectious, or other finding by routine lens evaluation. Ophthalmology examination was entirely normal at this time. The patient was also followed by DEI (developmental early intervention) and also by OT, PT and ST on the basis of p.r.n. Genetics: The patient was seen today by Dr. Perszyk from Nemours Children's Clinic after having all the metabolic screening and results from plasma amino acid, urine amino acid, urine organic acid and other tests . . . [At the time, Dr. Persyk's differential diagnosis included mitochodrial disease, lactic acidosis, or congenital myopathy (central core disease).] Problem #3. Social: Mom is an 18-year-old white female. Father is black but has not been involved. There is no history of any genetic abnormality, muscular disease, neurologic abnormality or seizures in the family on the maternal side. We do not know anything about the father's side. Mom had prenatal care . . . [at University Medical Center, Clinic C]. PHYSICAL EXAMINATION ON ADMISSION: Weight 2,915 g which is equal to 25-50th percentile, height 45.7 cm equal to 10th percentile, head circumference 34.5 cm equal to 75th percentile. On admission vital signs were stable. Pulse 150, respiratory rate 48, blood pressure 58/30. Generally she was described as pink and active without any facial dysmorphism. Eyes with red reflex without discharge. Ears no tags, no sinus, no external abnormality. Mouth without any cleft. Neurological exam has been described as symmetric muscle tone and active. PHYSICAL EXAMINATION ON DISCHARGE (DAY #28): Weight 3,181 g. She has been responsive to touch, pain, stimuli, but still has arching movements and opisthotonos but to a lesser extent. HEENT showed anterior fontanelle open and flat. Head circumference 36.5 cm. Positive red reflex. Pupils equal, round and reactive to light, but at this time is not focusing which is expected. Lungs clear to auscultation bilaterally. Cardiovascular with rate and rhythm regular without murmurs. Good peripheral pulses. Abdomen soft, no mass, no hepatosplenomegaly. Liver edge is palpable about 1.5 to 2 cm below right costal margin and it is soft. Genitourinary without any hip click. Extremities with generalized hypotonia but is moving with pain and stimuli. Neurological exam showed generalized hypotonia. She cannot move her head at all. She has some flexion of extremity but is purposeless. Mild grasp reflex. No deep tendon reflex. No clonus. Has good sucking reflexes but there is no rooting reflex. No Moro reflex. SIGNIFICANT LABORATORY FINDINGS: Baby is B positive, Coombs' positive. Mom is 0 positive. Blood culture negative. Chloric metabolites negative. Group B Strep urine negative. CSF result showed glucose of 38, protein 58, with 3 white blood cells. CSF culture negative. Total bilirubin increased to maximum 7.3 with direct of 0.2. Chem-20 was done on 4/11/96 which showed glucose of 45, sodium 134, potassium 4.1, chloride 99, BUN 6, creatinine 0.6, calcium 10, phosphorus 7.1, total protein 6.2, albumin 4, total bilirubin 2.1, SGOT 22.7, alkaline phosphatase 190, SGPT 14, triglycerides 154, uric acid 3.2, LDH 439, cholesterol 101, anion gap 12. Hematocrit 43.4, white blood cells 11.3. T4 16, TSH 1.97, CK 313. All of the above has been in normal range. Repeated Chem-20 on 4/15/96 showed glucose of 63, chemistry within normal limits, total protein 5.4, albumin 3.5, liver function tests within normal limits, hematocrit 46, LDH 306, cholesterol 91, anion gap 9, magnesium 2. Ammonia showed 41 and CK 193. Lactic acid 2.6. UA showed normal with pH of 6.5, with no ketones. Urine CMV was negative. [Her] stool pH was 7, no reduce in substance. IgM was done on 4/24/96 which was 30.6 and IgG was 832 which was within normal limits. PKU was normal. Galactosemia normal. Hemoglobin electrophoresis normal and 17-hydroxy was 27.2 which is within normal limits. A very long chain fatty acid showed mildly elevated on 4/26 which is 0.034. Creatinine was normal, free creatinine was normal too. Amino acid panel was done. A copy of the result is sent to genetics, Dr. Perszyk, and also a copy of the urine amino acid and urine organic acid - at this time not significant finding. Chest x-ray was done which was normal. IMPRESSION: In summary, this is a floppy child who was born at 38 weeks of gestation with AGA with history of breech presentation with no genetics or prenatal complication. Her floppiness did not progress, at the same time it did not improve significantly either. Metabolic screening was done which at this time is not significant and needs to be followed up with other clinical findings. Neurological abnormality could not be ruled out at this time and needs to be followed up by neurology. Her p.o. feeding improved. This patient never had any life-threatening event during the 28 days in newborn nursery. She has never been on any monitors. She is still at risk for aspiration, and we instructed the parent about the feeding; they are CPR trained. VNA nursing, OT, PT and speech therapy are following the case. Primary care doctor, Dr. Cedres, is aware of the situation, and the plan is to follow closely by genetics, neurology and primary care physician for further workup. FOLLOWUP: 1. Dr. Cedres . . . . He is the primary care physician . . . . Dr. Perszyk, Nemours Children's Clinic, Division of Genetics, in two weeks . . . . Dr. Shanks, Nemours Children's Clinic, Division of Neurology, for the followup of the patient's neurological evaluation, improvement or drugs. 4. EIP (early intervention program) for followup for occupational, physical and speech therapy . . . . Shayla's subsequent development Following her discharge from University Medical Center, the medical records reveal that Shayla was followed at Nemours Children's Clinic at least through July 28, 1998. There, Shayla was under the care of, among others, Daniel E. Shanks, M.D., a pediatric neurologist, and Anthony Perszyk, M.D., a pediatric geneticist, both of whom had consulted on her care at University Medical Center. Such continuum of care was initially directed toward establishing an etiology that would explain her hypotonia, manifest at birth (described as congenital) and failure to thrive (poor feeding), but later came to include a more complex symptomatology (including discoordination of movement, gastroesophageal reflux, developmental delay (motor and cognitive), absence of deep tendon reflexes, indifference to pain, and absence of tears) that slowly manifested. Over time, Shayla underwent extensive diagnostic evaluations, including genetic, metabolic, structural, and infectious disease testing, which failed to reveal any abnormality to explain her presentation, and on August 4, 1997, Dr. Shanks summarized his thoughts, as follows: IMPRESSION: Presumed static encephalopathy of unclear etiology in a youngster who has a number of somewhat unusual features for a typical cerebral palsy. Though she has central hypotonia, she is developing some increased tone distally but has reflexes that I cannot elicit. She seems to have a decrease in her sensory responsivity. The possibility of a congenital neuropathy in addition to her encephalopathy is raised. Additionally, concerns regarding possible high cord lesion cannot be excluded. Consequently, Dr. Shanks recommended that they obtain "a C-spine and brain MRI, as well as nerve conduction studies." The spinal MRI did not reveal any abnormality. The brain MRI, taken September 5, 1997, was read, as follows: Minimal squaring of the frontal horns can be defined with prominent ventricular system involving the lateral, third as well as fourth ventricles. Minimal increase in extraaxial fluid can also be demonstrated. These findings are nonspecific. The lateral ventricles are slightly asymmetric, more so on the right. These findings are nonspecific. A focal signal or structural abnormality cannot be demonstrated. The myelination pattern is within normal limits. Minimal increase in CSF volume can be seen in the posterior fossa, the finding should represent a giant cisterna magnum. Incidental finding of abnormal increase in T2 signal intensity in the ethmoid, as well as maxillary sinuses. Correlation with clinical findings would be helpful. The results of the MRI brain scan are consistent with periventricular leukomalacia (PVL) which, as an isolated finding, is nonspecific or, stated otherwise, not diagnostic. Of note, PVL, which demonstrates as "a tiny bit of scarring in the infant's ventricles," may be seen in infants who have suffered ischemic brain disease, as well as in normal term and pre-term infants. (Respondent's Exhibit 1, pages 26 and 27). More helpful to establishing an etiology for Shayla's neurologic presentation, the nerve conduction studies, performed November 19, 1997, demonstrated abnormalities consistent with a severe sensory neuropathy, likely the group HSAN (hereditary, sensory and autonomic neuropathy), also referred to as congenital sensorimotor neuropathy during the course of this proceeding. To confirm such impression, Dr. Shanks ordered a seral nerve biopsy, which was performed in January 1998, and unequivocally identified the presence of a neuropathic process, characterized by severe loss of myelinated fibers. On March 13, 1998, at the request of Dr. Shanks, Shayla was seen by David Hammond, M.D., Director of Neuromuscular and MDA Clinics, Nemours Children's Clinic. The results of that consultation were reported, as follows: I saw Shayla in consultation in neurology clinic at Nemours today as requested by her regular neurologist, Dr. Shanks. History was obtained from Shayla's mother and grandmother. CHIEF COMPLAINT: 23-month old with developmental delay and truncal hypotonia, etc. INTERIM HISTORY OF PRESENT ILLNESS: Very slow if any developmental advances. She is not yet sitting. Her language skills are behind for age although there has been no apparent plateau or regression. Family has noted unexplained fevers. Additionally, an apparent insensitivity to pain persists. The parents have noted no significant abnormalities in terms of sweating, lacrimation, GI changes or pallor or skin mottling. REVIEW OF SYSTEMS, MEDICAL HISTORY, FAMILY HISTORY, SOCIAL/DEVELOPMENTAL HISTORY: Data as detailed in Dr. Shanks' notes on 8/4/97 and previous. No family history of neuropathy. GENERAL EXAMINATION, HIGHER INTEGRATIVE FUNCTIONS, CRANIAL NERVES, SENSORY, MOTOR, REFLEXES, COORDINATION, GAIT: Data as detailed in Dr. Shanks' letter of 8/4/97 and previous except/with height 79.8 cm, weight 10 kg, head circumference 46.5 cm. She is irritable but appears otherwise appropriate in terms of her social interaction when calm. No expressive language detected in the course of the examination. She does appear to respond well to simple directions from parent or grandparent. Truncal tone is decreased. Her lower extremity tone which was felt to be increasing on previous exams is difficult to evaluate because of her resistance to examination today. Areflexia. No response to noxious stimuli. No tears are noted when she is irritable and crying. Cardiac exam shows no apparent murmurs and a regular rhythm with a rate (while irritable) of 120. Abdominal examination is benign. No tongue fasciculations. She has vigorous movements of each of the four extremities as she resists examination. She is unable to sit or stand independently. DATA REVIEWED: MRI of brain (9/97) minimal squaring of the frontal horns with prominent ventricular system involving lateral third as well as fourth ventricle. Minimal increase in extra-axial fluid. Posterior fossa findings suggestive of a giant cisterna magna. Nerve conduction EMG (11/97) compatible with electrophysiologically severe sensory neuropathy. R1 blink reflexes were not elicitable. Sensory nerve action potentials are absent throughout. Motor conduction studies normal. Sural nerve biopsy (1/98) severe decrease in density of myelinated fibers which is diffuse. An unequivocal neuropathic process is present characterized by severe loss of myelinated fibers. Consider congenital neuropathy. Other available medical records as summarized above. ASSESSMENT: Child with a number of problems. 1. Indifference to pain, truncal hypotonia, gross motor delay and areflexia. The clinical constellation and the laboratory data are consistent with the diagnosis of hereditary, sensory and autonomic neuropathy (HSAN). HSAN Type IV is generally distinguished from HSAN Type II based on the presence of more significant cognitive involvement and more severe anhydrosis. Given the history suggestive of language and cognitive delay and the history of unexplained fevers, HSAN Type IV appears somewhat more likely diagnosis in this case than HSAN Type II. 2. Suggestion of possible autonomic involvement related to #1 in terms of her unexplained fevers. Would also recommend screening for cardiac arrhythmia with an EKG. 3. At risk unrecognized trauma skin ulcerations, etc. related to her HSAN. 4. Cognitive delay, changes on MRI scan as outlined above, changes in tone which have been noted in the past. Question of possible encephalopathic components unrelated to her HSAN. Would defer to Dr. Shanks in term of further evaluation and recommendations in this regard. According to the medical records, Shayla's last consultation with Dr. Shanks was June 8, 1998, "for followup of her hereditary sensory autonomic neuropathy type IV most likely." Dr. Shanks' notes of that visit do not speak to an encephalopathic component unrelated to Shayla's HSAN, but conclude with his "Impression: Encephalopathy associated with hereditary sensory autonomic neuropathy."2 On May 22, 2000, Thayla was examined by Michael S. Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital. The results of that neurologic evaluation were reported by Dr. Duchowny, as follows: I evaluated Shayla Adame on May 22, 2000. Shayla is a four year old developmentally delayed girl who is brought for an evaluation of development problems. HISTORY ACCORDING TO MRS. ADAME: Mrs. Adame began by explaining that Shayla has been diagnosed with hereditary sensory and autonomic neuropathy type . . . [IV]. In this regard she has a congenital absence of sensitivity to pain in conjunction with other abnormalities. Her lack of pain perception has caused her to scratch her eyes and she has already required a right eye corneal transplant due to trauma. This has been accentuated by Shayla's inability to generate tears and she appears to lack the ability to generate secretions in a generalized sense. The diagnosis of this rare disorder was made at Nemours Children's Clinic at age 2 years when Shayla had a seral nerve biopsy. The results are not available today. Shayla is developmentally delayed with regard to her language and tends to speak in single words, but occasionally puts several together to talk in phrases or sentences. Her hearing is said to be intact. She drools frequently and has been diagnosed with "cerebral palsy". She has a scoliosis and is fitted with a brace, but this is not present today. Shayla has suffered from intermittent muscle spasms and has had a total of 2 or 3 febrile seizures lifelong. She was hospitalized in March of this year for pneumonia and was sent home on cardiac monitoring. Shayla required a G-tube which was placed at a year of age. This was withdrawn at age 2 years and she is now able to sustain herself through oral intake. She had neuroimaging studies as a infant which apparently were normal. Shayla presently takes artificial tears, but is on no other medications. She receives various therapies which have been beneficial. There is a history of unexplained fever which appears to be related to environmental temperatures and she has had temperatures as high as 106 degrees. Shayla has pervasive absence of sweating and apparently is scheduled for a sweat test in the near term. She has also had tongue biting episodes with the right lateral border of her tongue sustaining a significant injury. FAMILY HISTORY: Shayla is an only child. Her father[']s whereabouts are unknown. There is no family history of sensory or motor neuropathy and no history of any neurodegenerative illnesses. PRE- AND PERINATAL HISTORY: Shayla was born at term by frank breech presentation at University Hospital. Her birth weight was 6- pounds, 6-ounces. She remained in the hospital for a total of 29 days. Shayla is not walking, although she can pull to a stand. Toilet training is "in process." * * * PHYSICAL EXAMINATION reveals an alert small child, but in proportion. Her weight is 27- pounds and height 27-inches. The head circumference measures 48.4 cm and the fontanelles are closed. There are no cranial asymmetries. Shayla has a large area of depigmentation on her right posterior lateral buttock region. There is an asymmetry of her eye with a skin tag linking the upper and lower lids on the right lateral aspect of her eye where she had the corneal transplant. A small traumatic cataract is noted in the left eye as well. There are thick callouses over the knees from crawling. She has multiple ulcerations of her toes and fingers where she has picked at sores to the point of thick soft tissue overgrowth. Shayla has only a few teeth and several stainless steel replacement caps. Multiple gingival abscissa are noted. There is a scoliosis convexed to the left. The cardiovascular, respiratory and abdominal examinations are normal. The healed G-tube scar is noted. The limbs appear warm and there are full and bounding periphereal pulses. NEUROLOGIC EXAMINATION reveals Shayla to have delayed language development. She speaks primarily in 1 or 2 word phrases with thick dysarthric speech that frequently required interpretation. Drooling is remarkably prominent. There is central gaze fixation with conjugate following movements. The pupils are 3 mm and react sluggishly to light. I was unable to visualize the fundi of either eye due to opachification. Shayla can clearly see objects in all visual spheres and tracks actively. There is no facial asymmetry. The tongue is moist and appears to be papillated with several traumatic lacerations on the lateral grooves. Motor examination reveals symmetric strength and bulk. The tone is slightly diminished throughout. There is generalized areflexia of both upper and lower extremities. Sensory examination reveals absence of withdrawal to painful pinching of all extremities. She does appear to feel however, although pain is not specifically perceived. Shayla sits with a stable balance and without head titubation, but can not stand without support. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Shayla's neurologic examination is consistent with type IV hereditary sensory and autonomic neuropathy, a rare disorder that is often associated with mental retardation. This disorder is likely to be genetic in origin, although direct linkage has not been established. The cause (etiology) and timing of Shayla's neurologic dysfunction To address the cause and timing of Shayla's neurologic dysfunction, the parties offered the medical records relating to Ms. Adame's antepartum and intrapartum course, as well as those associated with Shayla's birth and subsequent development. Portions of those records have been discussed supra, and further salient portions will be addressed infra. Additionally, Petitioner offered the deposition testimony of Paul R. Summers, M.D., an expert in obstetrics and gynecology, and Respondent offered the deposition testimony of Michael S. Duchowny, M.D., an expert in pediatric neurology, and Charles Kalstone, M.D., an expert in obstetrics and gynecology. The medical records and the testimony of the physicians offered by the parties have been carefully considered. So considered, it must be concluded that Shayla's neurologic dysfunction resulted from a Type IV hereditary, sensory and autonomic neuropathy (a congenital sensorimotor neuropathy) unassociated with any intrapartum injury, hypoxic or traumatic in nature.3 In reaching such conclusion, the evidence regarding the bleed Ms. Adame suffered the evening of March 30, 1996 (which Dr. Summers alone opined evidenced a partial placental abruption, with resultant hypoxic brain injury and serious neurologic damage) has not been overlooked; however, it is also noted that when Ms. Adame presented at University Medical Center at 12:15 p.m., and later at 7:42 p.m., March 31, 1996, fetal heart monitoring was reassuring for fetal wellbeing, and that monitoring throughout the course of labor evidenced no significant abnormalities. Moreover, Ms. Adame's labor was essentially normal, the second stage of labor was not protracted, and Shayla's delivery, including her head, was without apparent delay or other difficulty. Further, it is noted that on delivery, Shayla presented with hypotonia, a cord pH of 7.182 and a base excess of -4.5 (a result inconsistent with significant deficit in oxygenation), a normal five-minute Apgar, and no evidence of seizure activity in the immediate postnatal period. Finally, it is noted that by presentation, development, and a seral nerve biopsy, it has been demonstrated that Shayla's neurologic presentation is consistent with a Type IV hereditary, sensory and autonomic neuropathy, as opposed to any intrapartum injury. In sum, as observed by Drs. Duchowny and Kalstone, whose testimony is most consistent with the medical records and the observation of Shayla's treating physicians, the record does not evidence an acute event during labor and delivery as the cause of Shayla's neurologic impairment.4
