The Issue At issue in this proceeding is whether James Tracey, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary matters Aida Tracey and Mark A. Tracey are the parents and natural guardians of James Tracey (James), a minor. James was born a live infant on July 23, 1995, at Plantation General Hospital, a hospital located in Plantation, Broward County, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of James was Kenneth R. Selbst, M.D., who was, at all times material hereto, a participating physician in the Florida Birth- Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Here, the parties have agreed (and the proof so demonstrates) that James suffers severe cognitive and motor impairment such that it may be said with reasonable medical certainty that he is "permanently and substantially mentally and physically impaired," as those terms are used in Sections 766.301 through 766.316, Florida Statues. What remains to resolve is the genesis of his impairment or, more pertinent to these proceedings, whether the proof supports the conclusion that his condition resulted from an "injury to brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," as required for coverage to be afforded by the Plan. 1/ Mrs. Tracey's antepartum course and James' birth At or about 4:45 a.m., July 23, 1995, Mrs. Tracey's membranes prematurely ruptured (while she was at home), with (brown and green-tinged) meconium-stained fluid noted. At the time, her estimated date of delivery had been noted as August 7, 1995, and her antepartum course had not been without complication or risk. Regarding those risk factors, the proof demonstrates that Mrs. Tracey's antepartum course was complicated by multiple episodes of bleeding and threatened pre-term labor (contractions) during the course of her pregnancy. The vaginal bleeding occurred early in the pregnancy (at or about 22 weeks) and was considered secondary to low-lying placenta and leimyormata uteri (a benign tumor derived from smooth muscle located in the uterus.) The episodes of pre-term labor occurred at 30 to 37 weeks gestation, and she was treated with tocolysis and eventually a Brethine pump with home uterine activity monitoring to inhibit labor. Medications were discontinued at 37 weeks (approximately one week prior to rupture of the membranes), and Mrs. Tracey appeared to be doing well since that time. Of further note, the baby was noted to be in a transverse lie. Following the rupture of her membranes, Mrs. Tracey immediately telephoned her obstetrician, Dr. Selbst. Dr. Selbst found the presence of greenish-brown amniotic fluid "alarming," and instructed Mrs. Tracey to present to Plantation General Hospital. Mrs. Tracey presented to Plantation General Hospital at or about 5:50 a.m., July 23, 1995, in what Dr. Selbst noted as "latent labor." 2/ At the time, Mrs. Tracey complained of "feeling menstrual cramps," and vaginal examination revealed the cervix to be fingertip dilated, effacement at 50 percent, and the presenting part high. A stat ultrasound confirmed a transverse lie with the head in the left upper quadrant, back down, and external fetal monitoring revealed a fetal heart tone (FHT) in the 160 beat per minute range. Continued fetal monitoring from admission at 5:50 a.m., until approximately 7:11 a.m., revealed a fetal heart rate of 150 to 160 beats per minute that was essentially non-reactive (non- reassuring) and consistent with the presence of a compromised fetus. Specifically, the fetal heart tracing showed a complete lack of acceleration of the fetal heart over a period of approximately one hour and twenty minutes, as well as occasional decelerations (not necessarily associated with the occasional contractions that were observed) which were "blunted" (a flat decrease in fetal heart rate, then back to baseline), which was consistent with compromised or abnormal brain function dating from the time of admission. Given the transverse lie, spontaneous rupture of the membranes, slight meconium-stained fluid, and the presence of uterine fibroids, Dr. Selbst elected to proceed with a cesarean section. Mrs. Tracey was transported to the operating room, where she was noted on the table with anesthesia commenced at 7:15 a.m. Surgery started at 7:47 a.m., and James was delivered at 7:55 a.m., approximately 3 hours after Mrs. Tracey's membranes had ruptured. The operative note, following the commencement of surgery reads as follows: A hand was placed inside of the uterus. The baby was noted to be a transverse lie with the back down and the head in the left upper part of the uterus, it was converted to a breech and attempted delivery was as such. However, it was difficult to deliver the breech through the lower segment incision because at this point a posterior fibroid, bulging well into the lower uterine cavity; was noted. The uterine incision was extended into a low-vertical fashion and the right rectus abdominal muscle was also transected for more space. After this has been completed, the breech was delivered and once the breech had been delivered, the rest of the body easily followed without any difficulty. Of note is the fact that there was minimal amniotic fluid and no significant meconium noted at the time of birth, there was no meconium noted on the baby at delivery: It was a viable male infant, Apgar scores of 5 and 8, weight 7 lbs., 5 oz. No nuchal cord [around the neck] was noted at delivery. The cord was clamped twice and cut with a bandage scissors and the baby was handed to the Neonatology team, including Dr. Mitchell Stern who was present for the delivery. As noted, no significant meconium was noted at birth, and laryngoscopy revealed the cords were clear. Moreover, no placental abnormalities were noted, and no arterial blood gas PH was taken from the blood extraced from the umbilical cord after birth. Following delivery, James evidenced decreased tone, grunting, and decreased movement of the left arm, and received positive pressure ventilation with ambu bag and mask in the delivery room. Apgars of 4 and 8 were assigned at one and five minutes, respectively. Initial impression (diagnosis) was perinatal depression, rule out left Erb's palsy. The Apgar scores assigned to James 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 irritability, and skin 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 James' Apgar score totaled 5, with reflex irritability being graded at 2; heart rate, respiratory effort, and color being graded at 1 each; and muscle tone being graded at 0. At five minutes, James' Apgar score totaled 8, with heart rate, respiratory effort, and reflex irritability being graded at 2 each, and muscle tone and color being at 1 each. While the one minute Apgar was a little low, the five minute Apgar was quite normal. At approximately 8:05 a.m., James was transported to the neonatal intensive care unit (NICU) for further evaluation and management. On admission, physical examination revealed a hypotonic infant with decreased aeration bilaterally, grunting, retracting, no movement of the left arm, a hyperpigmented area on the chest, and two skin tags below the nipples. The remainder of the physical examination was essentially normal for age. Following admission, James was placed on NCPAP+5 to address his respiratory distress. Chest x-rays (CXRs) were consistent with bilateral interstitial densities with a small pneumothorax on the right. No chest tube was required and renal sonogram was normal. James' course in the neonatal intensive care unit was uneventful until approximately 3 to 4 hours of life (11:15 a.m.) when he presented with apnea secondary to probable seizure activity. At the time, James was intubated and placed on a Bear Cub ventilator, and he was started on Phenobarbital and Dilantin. CT scan of the brain was ordered. The CT of the brain, taken July 23, 1995, was negative or, stated differently, did not reveal any brain injury. 3/ However, an EEG taken the morning of July 24, 1995, was interpreted as "markedly abnormal" due to: Depressed and invariable background Electrographic-clinical ictal events . . . These findings are consistent with a diffuse encephalopathy as well as greater cortical dysfunction and epilepiogenicity over the left posterior quadrants . . . . An MRI of July 27, 1995, evidenced mild cerebral edema, and a repeat CT scan of the brain on August 5, 1995, revealed the following: There is marked diffuse decreased attenuation throughout the cerebral hemispheres bilaterally sparing the basal ganglia, cerebellum and brain stem likely secondary to severe hypoxic episode. No focal parenchymal masses are noted. There is no mid line shift or mass effect. The ventricles are symmetrical and not dilated. These changes are progressive when compared with the prior examination dated 7-23-95. IMPRESSION: 1. DIFFUSE DECREASED DENSITY THROUGHOUT THE CEREBRAL HEMISPHERES BILATERALLY SPARING THE BASAL GANGLIA, CEREBELLUM, AND BRAIN STEM CONSISTENT WITH DIFFUSE SEVERE [HYPOXIC ISCHEMIC ENCEPHALOPATHY (HIE)]. James was stabilized and ultimately discharged from Plantation General Hospital on August 5, 1995, to the care of his parents. At the time, James was on Phenobarbital, without evidence of seizure activity, and he was scheduled for follow-up appointments (within one week) with his pediatrician and pediatric neurologist. Discharge diagnoses were as follows: 38 wk average gestational male Perinatal depression Hypoxic ischemic encephalopathy Sepsis ruled out Cesarean section Erb's palsy ruled out Pneumothorax Abnormal liver function studies. Of note, the records of Plantation General Hospital revealed no impression or opinion as to the cause or timing of the hypoxic ischemic event which resulted in James' brain injury. 4/ The dispute regarding compensability Here, the competent proof is compelling, and not subject to debate, that James suffered an injury to his brain caused by oxygen deprivation that rendered him permanently and substantially mentally and physically impaired. 5/ What is disputed, and must be resolved, is the timing of James' injury or stated otherwise, whether such injury "occurred[ed] in the course of labor, delivery, or resuscitation in the immediate post- delivery period." Section 766.302(2), Florida Statutes. With regard to such issue, Petitioners are of the view that James' brain injury was an ongoing process which occurred between the time the mother's membranes ruptured (the onset of labor) and James was delivered. In contrast, Respondent is of the view that Mrs. Tracey was not in labor, as that term is used in the Plan, and that, in any event, the proof is not consistent with brain injury having occurred contemporaneously with or post- rupture of the membranes (if such rupture signaled the onset of labor) but, rather, at a time predating such event. 6/ The timing of James' neurological injury In addressing the timing of James' injury, it is worthy of note that where, as here, the proof demonstrates that the infant suffered an injury to the brain caused by oxygen deprivation which rendered him permanently and substantially mentally and physically impaired, the Petitioners/Claimants are entitled to the benefit of a rebuttable presumption that the injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital. Section 766.309(1)(a), Florida Statutes. 7/ Consequently, absent persuasive proof that, as contended by Respondent, James' injury predated Mrs. Tracey's admission to the hospital and without or prior to the onset of labor, it must be concluded that he suffered a "birth-related neurological injury" as defined by law, and that the subject claim is compensable. 7/ Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Addressing first the issue of labor, it is, as heretofore noted, Respondent's contention that Mrs. Tracey was never in labor and, consequently, James' could not have suffered a "birth-related neurological injury," as that term is defined by the Plan. Here, Respondent's contention is not well founded. The Legislature has not chosen to define "labor," as that word is used in the phrase "in the course of labor, delivery, or resuscitation in the immediate post-delivery period." When words used in a statute are not defined, "they must be construed according to their plain and ordinary meaning, or according to the meaning assigned to the terms by the class of persons within the purview of the statute." Florida East Coast Industries, Inc. v. Department of Community Affairs, 677 So. 2d 357, 362 (Fla. 1st DCA 1996). See Southeastern Fisheries Association, Inc. v. Department of Natural Resources, 453 So. 2d 1351 (Fla. 1984). If necessary, the plain, ordinary meaning of a word can be found by looking in a dictionary. Gardner v. Johnson, 451 So. 2d 477 (Fla. 1984), and Hernando County v. Florida Public Service Commission, 685 So. 2d 48 (Fla. 1st DCA 1996). Pertinent to this case, Webster's New Twentieth Century Dictionary, Unabridged, Second Edition, describes the meaning of "labor" as follows: . . . in medicine, the process of childbirth; parturition; especially, the muscular contractions of giving birth. To like effect, but more pertinent to the usage of the word in medicine, is the meaning ascribed to "labor" by Dorland's Illustrated Medical Dictionary, Twenty-eighth Edition, as follows: . . . the function of the female organism by which the product of conception is expelled from the uterus through the vagina to the outside world. Labor may be divided into four stages: The first (the stage of cervical dilatation) begins with the onset of regular uterine contractions and ends when the os is completely dilated. The second stage (stage of expulsion) extends from the end of the first stage until the expulsion of the infant is completed. The third stage (placental stage) extends from the expulsion of the child until the placenta and membranes are expelled. The fourth stage denotes the hour or two after delivery, when uterine tone is established. Called also childbirth, delivery, and parturition. See also labor pains, under pain. (Emphasis in original.) Dorland's further describes the meaning of false labor pains and labor pains as follows: false p's, ineffective pains which resemble labor pains, but which are not accompanied by effacement and dilatation of the cervix. * * * labor p's, the rhythmic pains of increasing severity and frequency, caused by contractions of the uterus during childbirth. Accord, Taber's Cyclopedic Medical Dictionary (1997), and Mosby's Medical Dictionary, Fourth Edition (1994). 8/ Given the commonly understood meaning of the term "labor," it must be concluded, contrary to Respondent's contention, that, upon presentation to Plantation General Hospital, and dating most likely to the rupture of her membranes, Mrs. Tracey was in "labor" (first stage), as that term is used in the Plan. Addressing next the timing of James' injury, it must be concluded that the proof does not demonstrate (or allow a conclusion to be drawn with any sense of confidence) that, more likely than not, James' brain injury occurred contemporaneously with or post-rupture of the membranes, or, stated differently, during the course of labor or delivery. Rather, it is more likely that such injury predated rupture of the membranes and labor, and was not associated with any event which may have occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period. In reaching the foregoing conclusion, it is observed that the presence of meconium upon rupture of the membranes is consistent with the infant having undergone a stressful event prior to the onset of premature contractions. Moreover, the color and texture of the meconium, brown-green, as opposed to a thick, particulate green, is consistent with an old, as opposed to recent, passage of meconium. Most importantly, the fetal heart monitoring from the time of admission to the hospital, and continuing thereafter for approximately one hour and twenty minutes was consistent with previous fetal compromise and failed to reflect any acute or immediate hypoxic event. Indeed, Mrs. Tracey's contractions were mild and infrequent, and the few decelerations noted were mild and not persistent. Moreover, there was no cord impediment, no cord around the neck of the infant, and no noted problems with the placenta. Finally, the cesarean delivery was not stressful or traumatic, and James' presentation post-delivery was not consistent with the severe consequences one would ordinarily associate with an acute insult at or around the time of birth. For example, James' Apgars were within the normal range, his breathing at birth was essentially stable, and he did not evidence severe metabolic changes. Similarly, there was no evidence of profound systemic compromise (damage to multiple organ systems) that one would typically associate with an acute hypoxic ischemic event at or about the time of delivery. On balance, the proof points, with reasonable medical certainty, to an hypoxic event (of unknown cause) which occurred within the 48-hour interval prior to rupture of the membranes. 9/
The Issue At issue in this proceeding is whether Shalyn L. Hayman, 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 Shalyn L. Hayman (Shalyn) is the natural daughter of Rosalee Hayman and Basil Hayman. She was born a live infant on January 6, 1993, at St. Mary's Hospital, a hospital located in West Palm Beach, Palm Beach County, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Shalyn was John Pauly, M.D., who was, at all time material hereto, a participating physician in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. The parties have stipulated and the proof demonstrates, that Shalyn is permanently and substantially mentally and physically impaired. What is at issue is the cause and timing of the event or events giving rise to such impairment or, stated differently and pertinent to these proceedings, whether Shalyn's impairment resulted from 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 the hospital." Section 766.302(2), Florida Statutes. Mrs. Hayman's antepartum course and Shalyn's delivery Mrs. Hayman's pregnancy was essentially uncomplicated, except for being post-term. In this regard, it is noted that Mrs. Hayman's due date was established as December 25, 1992, at forty weeks gestation, and that when delivered on January 6, 1993, Shalyn was almost two weeks overdue, a high risk situation. At or about 5:30 a.m., January 6, 1993, Mrs. Hayman presented to St. Mary's Hospital. At the time, Mrs. Hayman was experiencing mild, irregular contractions, and vaginal examination revealed the cervix to be at 1 to 2 centimeters, effacement at 50 percent, and the fetus at station -1. The membrane was noted to be intact, and monitoring revealed a fetal heart tone in the 130's, with poor variability and no observed reactivity. Given the circumstances, Mrs. Hayman was admitted to the labor and delivery area at or about 6:00 a.m. At or about 7:50 a.m., Mrs. Hayman's contractions were still noted as irregular; however, vaginal examination revealed her cervix was changing, and it was recorded at 2 centimeters, effacement at 80 percent, and the fetus at station -3. Fetal monitoring reflected a fetal heart tone in the 140's, but an abnormal pattern, with decreased variability, lack of acceleration, and persistent late decelerations. That heart rate and pattern persisted through delivery. Mrs. Hayman's labor continued to progress slowly, and at 9:20 a.m. vaginal examination revealed the cervix to be 3 centimeters, with effacement at 80 percent, and at 10:44 a.m. the cervix was noted to be 4 to 5 centimeters. At 10:55 a.m., labor was augmented with Pitocin, and thereafter progressed fairly normally. At 1:55 p.m., January 6, 1993, Shalyn was delivered vaginally. Upon delivery thick meconium stained fluid was noted, but none was present below the cords. Shalyn initially required intubation and bagging with 100 percent oxygen for a low heart rate and poor respiratory effort, but was extubated at approximately 10 to 15 minutes of age in the delivery room. Her Apgar scores were 4, 7 and 8 at one, five and ten minutes. 3/ Shalyn was noted to have the physical stigmata of Down's syndrome, which was later substantiated by chromosomal analysis, and was ultimately transferred to the neonatal intensive care unit (NICU) for further care and management. Following admission to the NICU, Shalyn failed to maintain appropriate respirations or oxygenation, and she was re- intubated and placed on ventilator support. Her hospital course was consistent with severe persistent pulmonary hypertension of the newborn, and she required extensive ventilator support. Cardiac disease was ruled out by echocardiogram. Shalyn's initial hematocrit was 57 with a platelet count of 43,000. The reason for this thrombocytopenia was unknown, although Down's syndrome or perinatal depression were considered as possibilities. On January 7, 1993, Shalyn developed symptomatic polycythemia and a partial exchange transfusion was done. The same day, Shalyn suffered cardiac arrest, which responded to epinephrine and Bicarb. On January 8, 1993, Shalyn was noted to have developed seizure activity, which was treated with Phenobarbital, Dilantin and intermittent lorazepam before the seizures were under control. An electroencephalogram demonstrated bilateral spiked discharges. In response to the seizure activity, a neonatal head ultrasound was taken on January 8, 1993, to rule out intraventricular hemorrhage. The ultrasound was entirely normal, with no evidence of hemorrhage into the ventricular system or the tissue immediately surrounding the ventricle. Shalyn was slowly weaned from ventilatory support and by January 11, 1993, was on an oxygen hood, and by January 14, 1993, was on room air. Physical examination on January 12, 1993, revealed Shalyn to be alert and active under the oxygen hood, her anterior and posterior fontanelle open and flat, not bulging, and neurologically to demonstrate good activity, but decreased tone. On January 15, 1993, Shalyn underwent a CT brain scan to rule out congenital malformation. That scan revealed the following: There is a large right sided intracerebral hematoma involving the occipital area with mild mass effect on the right lateral ventricle. There is a much smaller area of intracerebral hematoma anterior to the larger one in the high frontal parietal area and there is a tiny intracerebral hematoma in the high left frontal parietal region. There is also some hemorrhage in the body of the left lateral ventricle and the ventricular system shows mild dilatation but no midline shift. There is no extra-axial fluid collections. IMPRESSION: There are bilateral intracerebral hematomas but the primary and largest one is located in the right parietal occipital region and causing mild mass effect on the ventricular system. There is minimal hydrocephalus with no midline shift. There is some extension into the ventricular system with blood in the left lateral ventricle. A follow-up head ultrasound was administered on January 23, 1993. In contrast to the head ultrasound conducted on January 8, 1993, the January 23rd ultrasound clearly demonstrated "a dilated ventricle system with bilateral intraventricular hemorrhage with large right occipital parenchymal bleed, essentially unchanged from the previous CT scan" of January 15, 1993. On January 25, 1993, Shalyn underwent a second brain CT scan. The January 25th scan indicated the hemorrhage was now resolving and had decreased in size. In place of the resolving hemorrhage, a resultant encephalomalacia was diagnosed. Subsequent CT scans have confirmed bilateral damage in the form of porencephalic cystic areas in the right temporal parietal and occipital lobes. These areas are consistent with the resolution of an infarct and hemorrhage. The focal damage to Shalyn's brain, evident from the CT scans, is consistent with an injury caused by an intraventricular hemorrhage, but is not consistent with the global changes to the structures of the brain associated with asphyxia. Shalyn was discharged from St. Mary's on January 30, 1993, with evident neurologic impairment. Currently, Shalyn is microcephalic, cortically blind, and has increased tone and spasticity of all four limbs, with very limited motor development. In sum, neurological examination reveals a severe degree of both mental and motor impairment, that is permanent in nature. The cause and timing of Shalyn's injury In addressing the cause and timing of Shalyn's injury, it is first observed that Shalyn has been diagnosed with Trisomy 21, also known as Down's Syndrome. Down's Syndrome is a genetic condition, which often results in mental and physical impairment. In Shalyn's case, however, her neurological impairments are significantly different and more severe than one would normally expect in a child suffering only from Down's Syndrome. Consequently, it must be concluded that Down's Syndrome is not the cause of Shalyn's current impairments. Having rejected Down's Syndrome as the cause of Shalyn's injury, the only logical conclusion to be drawn from the proof is that the injury Shalyn suffered to her brain was occasioned by a large intracerebral hemorrhage, and not asphyxia. In so concluding, it is observed that the pattern of her brain damage is focal, as opposed to the global damage one would attribute to asphyxia. Moreover, the medical records do not evidence associated organ damage, which would normally be present if Shalyn had suffered acute hypoxia. Finally, while the delivery records clearly reflect an abnormal fetal heart rate from the onset of labor, no pattern developed that would reflect acute hypoxia or an asphyxial state during labor or delivery and, as heretofore noted, there was no objective evidence of brain damage consistent with asphyxia. Consequently, it is unlikely that Shalyn suffered a hypoxic episode during labor or delivery. Having resolved that the cause of Shalyn's brain injury, and the resultant permanent and substantial mental and physical impairment, was the intracerebral hemorrhage she suffered, it becomes necessary to address the timing and origin of that hemorrhage. As for the timing, the proof demonstrates that Shalyn's ultrasound of January 8, 1993, demonstrated a normal ventricular system and no evidence of hemorrhage; however, the CT brain scan of January 15, 1993, did reveal the presence of such hemorrhage. Therefore, based on the medical evidence of record, it is reasonable to conclude that Shalyn experienced the disabling intracerebral hemorrhage sometime between January 8, 1993, and January 15, 1993, or, stated differently, after labor, delivery and resuscitation in the immediate post-delivery period. As for the cause of the hemorrhage, the proof demonstrates that, shortly after birth, Shalyn developed polycythemia, and that polycythemia is associated with hemorrhages, including hemorrhagic stroke. 4/ Given the proof, the opinion of Michael Duchowny, M.D., a board certified pediatric neurologist associated with Miami Children's Hospital, that Shalyn's hemorrhage most likely was associated with her polycythemia and was not related to any event during the birth process, is credited.
The Issue At issue in the proceeding is whether Clayton Kenneth Hunter Cochran (Hunter), a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Jean Ann Cochran and Clayton Leon Cochran, are the parents and natural guardians of Clayton Kenneth Hunter Cochran (Hunter). Hunter was born a live infant on June 12, 1997, at Orlando Regional Health Care System, Inc., d/b/a South Seminole Hospital, a hospital located in Longwood, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Hunter was John V. Parker, M.D., who was at all times material hereto a "participating physician" in the Florida Birth- Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(2), Florida Statutes. Pertinent to this case, coverage is afforded under the Plan, when the claimants demonstrate, more likely than not, that the infant suffered an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, Hunter's mental and physical presentation are dispositive of the claim and it is unnecessary to address the cause or timing of any injury he may have suffered. To address Hunter's current physical and mental status, Petitioners offered the opinions of Michael S. Duchowny, M.D., a pediatric neurologist, as well as the results of Hunter's recent occupational therapy evaluations by the Easter Seal Program of Volusia and Flagler Counties. Notably, Dr. Duchowny examined Hunter on March 20, 2000, and reported the results of his neurological evaluation as follows: NEUROLOGIC EXAMINATION reveals Hunter to be alert and socially oriented. He tends toward non-fluency, but can communicate some thoughts in words. Hunter has a speech articulation defect. He can talk in phrases and short sentences. There is good central gaze fixation with conjugate following movements. The pupils are 3 mm and briskly reactive. There are no fundoscopic findings and no significant facial asymmetries. The tongue and palate move well without drooling. Motor examination reveals symmetric strength, bulk and tone. There are no adventitious movements, focal weakness or atrophy. The outstretched hands are markedly postured. His gait is stable and reasonably narrow based. The deep tendon reflexes are 2+ and symmetric. The plantar responses are downgoing. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. The sensory and cerebellar examinations are deferred. In SUMMARY, Hunter presents as a 2 1/2 year old boy with an expressive language delay and speech dysfluency. In contrast, he has mild fine motor incoordination, but his examination is otherwise non-focal. I have not as yet had an opportunity to review Hunter's records and will issue a final report once the review process is complete. Subsequently, Dr. Duchowny had an opportunity to review the medical records, and on April 11, 2000, reported his conclusions as follows: A review of medical records and the medical evaluation of Clayton "Hunter" Cochran leads me to believe that he does not have significant neurologic impairment. His neurologic examination reveals evidence of an expressive language delay and some fine motor incoordination. Both of these findings are developmentally based and indicate acquisition in utero, long before the onset of labor and delivery. These findings are mild and there certainly is no evidence of substantial mental or motor impairment. Furthermore, Hunter's developmental delay would be expected to improve over time and therefore is not permanent. Dr. Duchowny's deposition testimony and the results of recent occupational therapy evaluations by the Easter Seal Program are consistent with the opinions heretofore expressed by Dr. Duchowny. Consequently, it must be resolved that the proof failed to demonstrate that Hunter was "permanently and substantially mentally and physically impaired," as required for coverage under the Plan.
The Issue Whether Eman Mustafa, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether the hospital and the participating physician gave the patient notice, as contemplated by Section 766.316, Florida Statutes, or whether any failure to give notice was excused because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, or the giving of notice was not practicable.
Findings Of Fact Stipulated facts Shiren Mustafa and Nehad Mustafa are the natural parents and guardians of Eman Mustafa, a minor. Eman was born a live infant on February 22, 2002, at University Community Hospital, a hospital located in Tampa, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Eman's birth was Caryn L. Bray, 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. Eman's birth and immediate postnatal course At or about 8:00 p.m., February 21, 2002, Mrs. Mustafa, with an estimated delivery date of February 15, 2002, and the fetus at 40 6/7 weeks' gestation, was admitted to University Community Hospital, for induction of labor, and proposed vaginal birth, after prior cesarean section (VBAC). At the time, Mrs. Mustafa's membranes were intact; irregular contractions were noted; vaginal examination revealed the cervix closed, effacement at 60-70 percent, and the fetus at station -2; and fetal monitoring revealed a reassuring fetal heart rate, with a baseline in the 130-beat per minute range. At 9:00 p.m., Cervidil was placed to soften the cervix overnight, and by 7:15 a.m., February 22, 2002, vaginal examination revealed the cervix at 1-2 centimeters dilation, effacement at 90 percent, and the fetus at station -1. Cervidil was removed; at 7:40 a.m., the membranes spontaneously ruptured, with clear fluid noted; and Pitocin was started to augment labor. Fetal monitoring contained to reveal a reassuring fetal heart rate. Mrs. Mustafa's labor rapidly progressed and by 8:30 a.m., vaginal examination revealed the cervix at 5 centimeters,3 effacement complete and the fetus at station 0, and by 9:30 a.m., vaginal examination revealed complete dilation and effacement, and the fetus at station +2. Late decelerations were also noted at 9:30 a.m., but fetal heart rate was otherwise reassuring. Dr. Bray was paged at 9:32 a.m., and returned the page at 9:39 a.m. At the time, Dr. Bray was notified of Mrs. Mustafa's status and requested that the patient start pushing. However, due to the low station of the fetus, staff requested Dr. Bray's presence for pushing, and Dr. Bray stated she would be bedside in approximately 10 minutes. Thereafter, at 9:58 a.m., further decels were noted, and Pitocin was stopped. At 9:59 a.m., Dr. Bray was noted at bedside, oxygen was applied, fluid bolus started, and fetal heart rate decels to 60 beats per minute were documented. Thereafter, at 10:03 a.m., Mrs. Mustafa was pushing, complaining of pain when abdomen palpated, and fetal heart rate in the 50-beat per minute range was noted. Then, at 10:07 a.m., fetal heart rate in the 50s was noted, with brief accelerations to the 110-beat per minute range, and Dr. Bray requested a Kiwi vacuum. At 10:09 a.m., Kiwi vacuum-assisted delivery, with patient pushing, proved unsuccessful, and fetal heart rate was noted in the 110-beat per minute range, with deceleration back to the 60-beat per minute range. At 10:11 a.m., Dr. Bray requested fundal pressure, with patient pushing, but again Kiwi vacuum-assisted delivery was unsuccessful, despite three attempts. Medela vacuum was called for and at 10:17 a.m., two attempts at delivery with the Medela vacuum and fundal pressure proved unsuccessful. Then, at 10:19 a.m., with fetal heart rate remaining in the 60-beat per minute range, a stat cesarean section was called for non-reassuring fetal heart rate and suspected uterine rupture. At 10:22 a.m., Mrs. Mustafa was taken to the operating room, where she was admitted at 10:25 a.m.; surgery started at 10:30 a.m., at which time uterine rupture was confirmed; and Eman was delivered at 10:32 a.m., with Apgar scores of 1, 3, and 6, at one, five, and ten minutes respectively.4 According to the medical records, Eman required resuscitation at birth, with tracheal intubation, IPPV, and cardiac massage, and was then transferred to the neonatal intensive care unit (NICA), where she developed spontaneous respirations, and within two to three hours was weaned from the ventilator. Eman's subsequent newborn course was without incident or evidence of residual effects of birth trauma, and she was discharged with her mother on February 25, 2002. Eman's Discharge Summary included the following observations: PHYSICAL EXAMINATION: A term female infant, weight 3329 grams, length 51 cm, and hip circumference 32 cm. Temperature 97.3, heart rate 158, respiratory rate 62, blood pressure 51/48. HEENT: Normocephalic. Eyes examined at discharge: Pupils were reactive and the red reflex seen. No nasal flaring. Neck supple. Lungs: No retractions. Good air entry. Heart regular rate and rhythm. No murmur. Abdomen soft, no masses, three-vessel cord. Genitalia: Female. Extremities: Moving all limbs, hips stable. No rashes. Neurological: Good tone. INITIAL IMPRESSION: Term female infant. Perinatal depression. Maternal uterine rupture. Respiratory distress. At once (STAT) cesarean section. INITIAL TREATMENT: NICU admission. Pulse oximetry monitoring. Conventional mechanical ventilation. Nothing by mouth. Intravenous fluids. Sepsis workup. Antibiotics. Chest x-ray. PROGRESS: Respiratory: The infant was extubated and weaned to room air within approximately two to three hours of admission. Initial chest x-ray was not significant. Rule out sepsis: The infant was treated with antibiotics; namely, ampicillin and gentamicin for 48 hours. These were discontinued when the cultures remained negative. Fluids and electrolytes: On admission, the infant was given early intravenous fluids, approximately 24 to 48 hours enteral feeds were begun and increased progressively. At the present time the infant is breastfeeding only. She is voiding well, passing stools. Neurological: The infant has good tone and good reflexes, no clonus, and appears to be neurologically normal. SUMMARY: This is a term female infant who was delivered after having maternal uterine rupture. The infant did require neonatal resuscitation but recovered very quickly. At the present time the infant is doing well and feeding well. FINAL DIAGNOSIS: Term female infant. Cesarean section. Perinatal depression. Rule out sepsis. Respiratory distress. Eman's subsequent development Eman's early development was apparently without significant concern until approximately 19 months of age, when she was referred by her pediatrician (Issaam Albanna, M.D.) to Jose Ferreira, M.D., a physician board-certified in neurophysiology and neurology with special qualification in child neurology, for evaluation concerning "some gait disturbance with falling and some coordination problems." Pertinent to this case, Dr. Ferreira reported the results of his initial evaluation of October 6, 2003, as follows: I had the pleasure of seeing Eman for initial evaluation today accompanied by her mother and aunt. The main concern is some gait disturbance with falling and some coordination problems. They report that she started walking somewhat late at 14-15 months and was doing better initially and then seems to be falling more frequently recently and will walk on her toes at times. There is also some deficits with the coordination where she seems to be "clumsy" at times, hands "clinched" frequently and her muscles "give out" on her apparently more frequently then expected for age. She has been developing speech with about 5 words at this point. She tends to drool frequently She is potty training currently as she starts to talk with 5-6 words vocabulary . . . . PAST MEDICAL HISTORY: She was born at full term pregnancy. Birth weight was 7 lb 8 ounces. There was some traumatic delivery as she describes it with uterine rupture and labor requiring a stat cesarean section. She went home with her mother. There was no other problems noted initially. * * * GENERAL PHYSICAL EXAMINATION: HC: 45 cm (5th percentile) WT: 23 lb HR: 90 and regular. HEENT: Unremarkable. Normocephalic. . . . The extremities have full range of motion with no edema, deformities or joint tenderness. The midline back shows no midline defects and no point tenderness to percussion. The skin shows no neurocutaneous findings of significance and there was no dysmorphic features. NEUROLOGICAL EXAMINATION: Shows she was alert. She was initially showing significant stranger anxiety and then was more comfortable with the examiner as the interview took place. She was able to follow some simple commands from her mother. She did not say any words during the examination. The cranial nerve examination revealed full extraocular movements and visual fields full to confrontation. The pupils were equal and reactive. The funduscopic exam showed bilateral red reflex. The face is symmetric and the tongue midline with no fasciculations. There was some degree of drooling noted. Her motor exam shows she had no focal weakness. There is no significant increased resistance to pass of motion other than possibly the right upper extremities. She tended to maintain her hands fisted with some cortical thumbs at times specially when she walked. The gait shows she was somewhat stooped forward to a mild degree but otherwise wide based appropriate for age. She tended to fall occasionally. There was no asymmetry of the use of her extremities otherwise except that she tended to hold the right arm more flexed and the right hand more frequently closed and pronated. The deep tendon reflexes showed 2+. There is no sustained ankle clonus. The plantar responses were extensor bilaterally. Gait and coordination showed there was no tremors and no ataxia [failure of musculature coordination]5 of significance other than the tendency to fall which was somewhat limited coordination. The plantar responses were extensor bilaterally. IMPRESSION: 1. Gait disturbance associated with a mild degree of incoordination with her age with some mild upper motor neuron dysfunction signs as described above in the neurological examination. * * * RECOMMENDATIONS: She will have an MRI of the brain without contrast. She will have a metabolic screening including serum amino acids, ammonia levels, thyroid functions studies, total carnitine levels, ammonia and lactate and CPK levels. She will be seen for follow up here in approximately one and a half to two months or earlier if there is any acute changes. Physical and occupational therapy may be recommended at this point . . . . (Petitioners' Exhibit 2). Eman was reevaluated by Dr. Ferreira on December 15, 2003, and he reported the results of that visit, as follows: I had the pleasure of seeing Eman for follow up today accompanied by her parents. As you know, she has a history of difficulties with her gait and some developmental delay and coordination difficulties. She had an MRI of the brain, which was normal with the exception of some sinusitis. She also had a metabolic screen and had elevated T4[,] and T3 and TSH was normal. She continues having difficulties with her gait and coordination. She has had some drooling at times. Her speech has been somewhat delayed and she has approximately 10-15 word vocabulary but difficult to understand and does not show any signs to suggest regression. She has been sleeping and eating well. * * * HEENT: Unremarkable. . . . The extremities had full range of motion and no edema. NEUROLOGICAL EXAMINATION: She was alert and friendly. She was cooperative. Cranial nerve exam revealed full extraocular movements and visual fields grossly full to confrontation. The pupils are equal and reactive. The funduscopic exam shows bilateral red reflex. The face is symmetric and the tongue was midline with no fasciculations. The motor exams shows she had some difficulties with fine motor coordination. She did not have a good pincer grasp and she tended to keep her hands mostly in a pronated position and somewhat flexed at the elbow and especially when she walked. Her muscle tone was minimally increased in all extremities. Deep tendon reflexes were 2+/2+. The plantar responses were extensor bilaterally. Her gait was minimally spastic with a slightly wide base. She tended to walk somewhat stood forward to a mild degree. When she was sitting she also had some mild degree of truncal ataxia. IMPRESSION: History of developmental disorder with mild speech and language delay as well as some drooling. Mild degree of spasticity with gait disturbance. There is history of sinusitis. RECOMMENDATIONS: As her MRI did not show any intracranial pathology an EEG will be done to evaluate for any encephalopathic changes. She was referred to occupational, speech and physical therapy. The thyroid function (T4 was mildly elevated) will be repeated. She will be seen for follow up here in three to four months or earlier if there is any acute changes . . . . (Petitioners' Exhibit 2). Eman was last evaluated by Dr. Ferreira on February 11, 2004, and he reported the results of that visit, as follows: I had the pleasure of seeing Eman for follow up today accompanied by her parents for a history of gait disturbance with some developmental delay and coordination difficulties. She had an EEG done today which showed a mild abnormality with the right occipital rhythm being slightly lower voltage than the left. The EEG was otherwise normal. She is now in physical, occupational and speech therapy. This just started so it is difficult to say whether or not improvement has been noted. Her parents feel however that she has improved. She is learning new words and her parents feel that she is steadily showing improvement. She is falling still but is moving around better than she has previously. They also feel her drooling has improved. She is eating and sleeping well and they have no new concerns today. * * * HEENT: Unremarkable. . . . Extremities had full range of motion. NEUROLOGICAL EXAMINATION: She is awake and alert. She is very cooperative and friendly. She was speaking at times and was smiling. Cranial nerve and motor exams were unchanged from the last evaluation. Her pincer grasp was still not as good as expected for her age and she tended to keep her hands pronated when walking. Her muscle tone was still mildly increased. Deep tendon reflexes were 2+ and she was walking with a slightly wide based gait for age. She was sitting without assistance for short periods of time today but continued with a mild degree of truncal ataxia. RECOMMENDATIONS: The thyroid panel will be repeated as it was requested at the last visit but unable to be completed.[6] She will continue in the therapies . . . . (Petitioners' Exhibit 2). According to Dr. Ferreira, as of the last time he saw Eman (February 11, 2004) she was still showing some neurologic deficits, which he described as a mild degree of spasticity (increased muscle tone), with gait disturbance; mild upper motor dysfunction, with a less than age-appropriate pincer grasp and tendency to pronate her hands when walking; and a mild speech and language delay. (See Dr. Ferreira's reports of December 15, 2003, and February 11, 2004, supra, and Petitioners' Exhibit 2, pages 15-21, 28-32, and 42). As for permanency, Dr. Ferreira declined (given the limited contact he had with Eman) to offer an opinion regarding the significance of any dysfunction that might persist. Moreover, Dr. Ferreira, who was not familiar with Eman's birth records or those medical records that predated his evaluation of October 6, 2003, offered no opinion, within a reasonable degree of medical certainty, as to the likely etiology of Eman's neurologic defects (i.e., whether they resulted from brain injury caused by oxygen deprivation or mechanical injury occurring during labor delivery or resuscitation, or another etiology) or whether Eman suffered any mental impairment. Subsequent neurologic evaluations On February 23, 2005, Eman was, at NICA's request, evaluated by Michael Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital. Dr. Duchowny reported the results of his evaluation, as follows: PRE-AND PERINATAL HISTORY: Eman was born in Tampa at University Hospital after a full term gestation. Her birth weight was 7 pounds 9 ounces, and she remained in the nursery for three days. Eman walked at eighteen months and said single words at two years. She is just beginning toilet training. She is fully immunized and has no known allergies. She has never undergone surgery and has not been hospitalized after birth. PHYSICAL EXAMINATION reveals an alert, well- developed and well-nourished, cooperative 3- year-old girl. Eman weighs 36 pounds and is 45 inches tall. The skin is warm and moist. There are no neurocutaneous stigmata . . . The spine is straight. The head circumference measures 45.8 centimeters, which is below the 3rd percentile for age. There are no cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular examination is unremarkable, and the lung fields are clear. There is no palpable abdominal organomegaly. Peripheral pulses are 2+ and symmetric. Eman's NEUROLOGIC EXAMINATION reveals her to be socially interactive and cooperative. She has a good attention span and is quite inquisitive. She smiles frequently. She is able to understand commands and completes them very clearly. She is quite interactive playing games. She knows body parts. She is behaviorally intact. Cranial nerve examinations reveal full visual fields to confrontation testing. The pupils are 3mm and briskly reactive to direct and consensually presented light. There are full and conjugate extraocular movements. Funduscopic examination is unremarkable with well-defined optic disc margins. There are no significant facial asymmetries. The tongue movements are poorly coordinated. Drooling is noted intermittently. Motor examination reveals static hypotonia with a mild increase in tone in all extremities. There are no contractures and there is full range of motion in all joints. The gait is complex with the left heel being slightly elevated with a mild degree of circumduction at the hips and internal rotation at the ankles. Deep tendon reflexes are 1+ in the upper extremities, 3+ at the knees, and 1+ at the ankles. Plantar responses are downgoing. Sensory examination is intact to withdrawal of all extremities to stimulation. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. (Petitioners' Exhibit 3). Based on his neurologic evaluation and review of the medical records, Dr. Duchowny was of the opinion that Eman's impairments were most likely developmentally based (the product of atypical brain development), as opposed to birth trauma (brain injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation). In so concluding, Dr. Duchowny noted that following delivery, Eman's hospital course was inconsistent with traumatic brain damage (there being an absence of significant prolonged respiratory depression, an absence of systemic organ involvement, and an absence of seizure activity), and her MRI scan of November 13, 2003, was normal. Dr. Duchowny also noted that Eman's presentation on February 23, 2005, with a pattern of immature muscle control and expressive language delay, was typical of children with developmental disabilities, as opposed to disabilities associated with birth trauma. Finally, Dr. Duchowny was of the opinion that Eman's expressive language delay was mild to moderate, and her motor disability was moderate, as opposed to substantial, and that her condition was likely to improve with time. (Petitioners' Exhibit 4; Respondent's Exhibit 1). Subsequently, on March 11, 2005, Eman was, at University Community Hospital's request, evaluated by S. Parrish Winesett, M.D. a physician board-certified in pediatrics and neurology with special qualification in child neurology. Dr. Winesett reported the results of his evaluation, as follows: PHYSICAL EXAMINATION: General: Shows a young lady who is alert, who is quite interactive. She smiles easily. She has no obvious dysmorphic features. She has normally placed eyes, ears, nose, philtrum and mouth. Her mental status is that she said single words during my exam. I did not really hear her say sentences. She was rather quiet for the most part. She seemed to follow directions well. Cranial nerve exam showed her pupils were equal and responsive to light. She seemed to have full visual fields. Her extraocular eye movements were intact. Range of motion in all directions was full. Face was symmetrical with good facial movements in both the upper and lower face. Tongue was midline without any fasiculations. Palate raised symmetrically. She shrugged her shoulders will. Motor exam seemed to show that she was strong in all four extremities. I could not get her to fully resist me and give her full effort in trying to resist me, but she did seem to be fairly strong in what resistance I could elicit. She does not seem to have any obvious atrophy of the muscles. She seemed to have normal tone and bulk. In particular, I did not detect any asymmetry of tone nor did I detect any hypertonia. Reflexes in the upper extremities were normal in the biceps, brachial radialis and triceps. In the lower extremities, she did not have any pathologic increase in reflexes, but her patella and ankle reflexes were brisk. Her motor coordination showed that in reaching with both hands, she seemed to be somewhat jerky and has a very slow approach in reaching for my tape measure. She did not seem to be particularly adept at pushing the buttons and pulling the tape as I would expect a child of three to be. She seemed to be very slow. Finger tapping also seemed to be slow and somewhat labored. She did not diminish her amplitude as she tapped. Sensation was not extensively tested, but she did seem to acknowledge being touched in all four extremities in a normal fashion. Her gait was clearly abnormal. Her hands while sitting never showed any adduction of the thumbs within the palms. When she walked, she immediately assumed a posture in which she pulled her arms close to her side, bent her elbows and brought her thumbs within her palm. This was seen each time she started to walk. She did not circumduct her legs but instead seemed to drag her lower extremities and have an almost slapping motion of her feet as she pulled her legs forward. She did not particularly scissor while she was walking. She did not space out her gait while she was walking. * * * Review of the medical records provided to me of both the child, as well as the mother . . . showed the following. The child was born on February 22, 2002 as the product of a 41 week pregnancy. There was an attempted vaginal birth after previous C-section. At approximately 10:02, the fetal heart rate was noticed to be decelerating. The obstetrician was called at that time. The child had heart deceleration during this period that was noted in the nurses notes to be down in the 50's and noted in the physician's notes to be in the 70's. The child was then taken to the operating room where the child was born at approximately 10:32. The child, at that time, was handed over to the neonatal resuscitation team who started resuscitation effort and gave the child Apgar scores of 1, 3 and 6 at 1, 5 and 10 minutes. The patient had been intubated by the 3rd Apgar score. The child was taken back to the NICU where at 10:45, a blood gas was performed which showed a pH of 7.31, a PC02 of 22 and a base excess of -18. The child recovered quite quickly and was extubated in approximately two hours. Review of the operating notes showed that there was reported 200 to 300 cc of blood in the uterus and that there was a uterine rupture noted by the physicians at the operation. The child was discharged from the NICU on February 25, 2002 with the neurological exam reported to be normal. The child has subsequently been seen by Dr. Jose Ferriera for the same complaints that they presented to me with. He has done an MRI which was read as normal by the Tampa Children's Hospital radiologist. Thyroid function tests were ordered and showed a mild elevation of T4. . . . A speech therapy evaluation including the Rossetti Infant Toddler Language Scale showed that she scored at the 15 month range at the age of 23 months for her speech skills. There was apparently some splintering of the scoring but mostly within the 15 to 18 month range. An auditory comprehension subtest, she scores at 23 months which is normal. She is also noted to have some oral motor speech difficulties. Physical and occupational therapy evaluations were reviewed but not as significantly to the data. IMPRESSION: Eman is a young lady who is presenting with predominantly problems in gait disturbance, as well as speech problems. Many of her speech problems could be related to problems in the coordination of her speech. There is a mild increase in reflexes in the lower extremities; however, it does not appear to be a significant degree of hypertonia. Overall, this child appears to have predominant problems with dyscoordination. This is not a typical presentation for a neonatal hypoxic ischemic encephalopathy syndrome. In addition, the fact that the child recovered so quickly and was extubated within two hours and was discharged within two days makes it highly unlikely that the hypoxia suffered at birth is the cause of the neurologic syndrome. (Petitioners' Exhibit 3). Based on his neurologic evaluation and review of the medical records, Dr. Winesett was of the opinion that, while of unknown etiology, it was unlikely Eman's neurologic problems were related to birth trauma. Dr. Winesett also described Eman's motor difficulties as moderate, as opposed to substantial, and offered no opinion regarding her cognitive function. (Petitioner's Exhibit 3, pages 18, 19, 22-26, and 36). Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired."7 § 766.302(2), Fla. Stat. See also §§ 766.309(1) and 766.31(1), Fla. Stat. The etiology and significance of Eman's impairments Here, among the physicians who have examined Eman, and who were particularly qualified to address the etiology and significance of her impairments, none concluded that Eman's impairments most likely resulted from brain injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitating in the immediate postdelivery period in the hospital, or that Eman was permanently and substantially mentally and physically impaired. See, e.g., Wausau Insurance Company v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because of the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obliged to present expert medical evidence establishing that causal connection."); Ackley v. General Parcel Service, 646 So. 2d 242 (Fla. 1st DCA 1995)(determining cause of psychiatric illness is essentially a medical question, requiring expert medical evidence); Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation."). Therefore, the proof fails to support the conclusion that Eman suffered a "birth-related neurological injury," as required for coverage under the Plan. The notice provisions of the Plan Given that Eman did not suffer an injury compensable under the Plan, it is unnecessary to address whether the healthcare providers complied with the notice provisions of the Plan. See, e.g., Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997)("[A]s a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, healthcare providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery."); O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("We recognize that lack of proper notice does not affect a claimant's ability to obtain compensation from the Plan. However, a healthprovider who disputes a plaintiff's assertion of inadequate notice is raising the issue of whether a claim can only be compensated under the plan.").
The Issue Whether Davante Smith, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). Whether the hospital and the participating physician complied with the notice provisions of Section 766.316, Florida Statutes.
Findings Of Fact Stipulated facts Tissany Standley is the natural mother and guardian of Davante Smith, a minor. Davante was born a live infant on June 27, 1996, at Florida Hospital Altamonte, a hospital located in Altamonte Springs, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Davante's birth was John V. Parker, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, Petitioner and Respondent were of the view that Davante did not suffer a "birth-related neurological injury," as that term is defined by the Plan. In contrast, Intervenors harbored a contrary opinion, but failed to produce compelling proof to support their position. Davante's birth and immediate postnatal course The medical records related to Davante's birth reveal that at or about 3:25 p.m., June 26, 1996, with an estimated delivery date of July 8, 1996, and the fetus at 38 2/7 weeks gestation, Ms. Standley presented to Florida Hospital Altamonte for induction of labor. Notably, Ms. Standley was not in labor3 when admitted, and fetal monitoring revealed a reassuring fetal heart rate. With regard to Ms. Standley's labor and Davante's delivery, the records reveal that Pitocin induction started at or about 6:00 p.m.; Ms. Standley's membranes were artificially ruptured at 7:00 p.m., with clear fluid noted; and evidence of regular uterine contractions was documented at 8:30 p.m. Thereafter, Ms. Standley's labor slowly progressed, and at 4:35 a.m., June 27, 1996, Davante was delivered with Apgars of 7 and 9, at one and five minutes, respectively.4 According to Dr. Parker's Clinical Resume, Davante's vacuum-assisted delivery was without complication. Following delivery, Davante was bulb suctioned, given tactile stimulation and blow-by oxygen by mask for five minutes, and transferred to the newborn nursery. There, initial newborn examination was normal except for evidence of tachypnea and decreased movement of the right arm. Davante's history from admission until discharge on June 30, 1996, was documented in his Clinical Resume, as follows: PROBLEMS Transient tachypnea of the newborn. The infant did not require oxygen therapy. Tachypnea resolved by 24 hours. The chest x-ray was unremarkable. Findings were consistent with transient tachypnea of the newborn. An arterial blood gas was normal in room air and transient tachypnea resolved. Patent ductus arteriosus. The infant was noted to have a heart murmur on day #1. An echocardiogram was done on June 28, 1996, and showed a small patent ductus arteriosus. The remaining cardiac structures were normal. Sepsis ruled out. The infant received three days of ampicillin and gentamicin. A blood culture was drawn on July 27, 1996, and was negative. A urine wellcogen was done and was negative. The infant remained clinically stable with normal complete blood count (CBC). Antibiotics were discontinued after three days. Blood culture remained negative and sepsis was ruled out. Right brachioplexus injury, Erb-Duchenne palsy. The infant does not move the right arm. Right hand exhibits good grasp and movement. Occupational therapy and physical therapy evaluated the infant and instructed the mother in passive range of motions. The mother is to do passive range of motion exercises five to six times a day and the baby is to be followed up on an outpatient basis with Osteen Kimberly for physical therapy and the infant is also to see Dr. Borrero in one month for evaluation. FINAL DIAGNOSES: A 38-WEEK, LARGE FOR GESTATIONAL AGE, MALE INFANT. TRANSIENT TACHYPNEA OF A NEWBORN, RESOLVED. SEPSIS RULED OUT. RIGHT BRACHIOPLEXUS INJURY, ERB-DUCHENE PALSY. SMALL PATIENT DUCTUS ARTERIOSUS. The baby's physical exam was within normal limits on the day of discharge except for palsy of the right arm . . . . The baby was discharged home with the mother on June 30, 1996, on ad lib formula feedings and is to see Dr. Iyer for routine well baby care. Appointment to be made this week. The baby is also to see Dr. Osteen Kimberly for pediatric HCC-FU for physical therapy and occupational therapy followup. The mother is to do passive range of motion exercises five to six times a day and she is instructed to call Dr. Borrero's office in one month for an appointment to evaluate brachioplexus palsy. Davante's current presentation Currently, Davante presents with a right brachial plexus palsy (an Erb-Duchenne palsy), with substantial impairment of the right upper extremity, that is likely to be permanent.5 However, apart from that physical impairment, Davante is otherwise neurologically sound, without evidence of impairment in his left upper extremity or lower extremities. Regarding Davante's mental status, there was some disagreement. Dr. Robert Cullen, a pediatric neurologist associated with Miami Children's Hospital, who examined Davante on June 3, 2004, was of the opinion that Davente evidenced a cognitive disorder (an auditory memory, sequencing and retention disorder), which was likely permanent in nature. However, he did not, at the time, consider it substantial, and Davante's subsequent development does not suggest otherwise. (Intervenors' Exhibit 1, page 22). In contrast, Dr. Michael Duchowny, also a pediatric neurologist associated with Miami Children's Hospital, who examined Davante on July 11, 2005, was of the opinion that Davante's mental status was age appropriate or, stated otherwise, normal. Here, given the absence of any proof that Davante suffers a substantial mental impairment, it is unnecessary to resolve any conflict that may exist between the opinions of Doctors Cullen and Duchowny, since absent evidence of a substantial mental impairment Davante does not qualify for coverage under the Plan. Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearings, 686 So. 2d 1349 (Fla. 1997)(The Plan is written in the conjunctive and can only be interpreted to require both substantial mental and physical impairment.). Similarly, it is unnecessary to resolve whether, if mentally impaired, such impairment is related to birth trauma, as opposed to another etiology. The cause and timing of Davante's physical impairment As for the etiology of Davante's physical impairment (a brachial plexus palsy of the upper right extremity), the proof is compelling that such impairment was the product of a right brachial plexus injury (a stretch injury to the brachial plexus) Davante suffered during the course of delivery, and was not the product of a brain or spinal cord injury. In so concluding, it is noted that a brachial plexus injury, such as that suffered by Davante, refers to damage to a network of nerves (a "plexus") that lies outside the spinal cord, and does not involve the brain or spinal cord (or, as they are commonly referred to, the "central nervous system").6 (Joint Exhibit 2, page 7 and 10; Joint Exhibit 3, page 17 and 18. See also "plexus," and "brachial p." under "plexus," Dorland's Illustrated Medical Dictionary, 28th Edition, 1994.) Consequently, Davante's injury is not compensable under the Plan. The notice issue In addition to Petitioner's claim that Davante does not qualify for coverage under the Plan, Petitioner also sought to avoid Plan immunity by averring, and requesting a finding that, the hospital and the participating physician who delivered obstetrical services at Davante's birth (Dr. Parker) failed to comply with the notice provisions of the Plan.7 See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997)("[A]s a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery."); Board of Regents v. Athey, 694 So. 2d 46 (Fla. 1st DCA), aff'd 699 So. 2d 1350 (Fla. 1997); Schur v. Florida Birth-Related Neurological Injury Compensation Association, 832 So. 2d 188 (Fla. 1st DCA 2002). However, since the claim is not compensable, it is unnecessary for Petitioner to have a favorable resolution of the notice issue to proceed with her civil suit. Nevertheless, to avoid any further delay should the conclusion regarding compensability be disturbed, and to allow contemporaneous review of the conclusion regarding notice, the issue will be addressed. The notice provisions of the Plan At all times material hereto, Section 766.316, Florida Statutes (1995),8 prescribed the notice requirements of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients thereof as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. Pertinent to this case, the Florida Supreme Court described the legislative intent and purpose of the notice requirement, as follows: . . . the only logical reading of the statute is that before an obstetrical patient's remedy is limited by the NICA plan, the patient must be given pre-delivery notice of the health care provider's participation in the plan. Section 766.316 requires that obstetrical patients be given notice "as to the limited no-fault alternative for birth-related neurological injuries." That notice must "include a clear and concise explanation of a patient's rights and limitations under the plan." § 766.316. This language makes clear that the purpose of the notice is to give an obstetrical patient an opportunity to make an informed choice between using a health care provider participating in the NICA plan or using a provider who is not a participant and thereby preserving her civil remedies. Turner v. Hubrich, 656 So. 2d 970, 971 (Fla. 5th DCA 1995). In order to effectuate this purpose a NICA participant must give a patient notice of the "no-fault alternative for birth-related neurological injuries" a reasonable time prior to delivery, when practicable. Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997). The Court further observed: Under our reading of the statute, in order to preserve their immune status, NICA participants who are in a position to notify their patients of their participation a reasonable time before delivery simply need to give the notice in a timely manner. In those cases where it is not practicable to notify the patient prior to delivery, pre- delivery notice will not be required. Whether a health care provider was in a position to give a patient pre-delivery notice of participation and whether notice was given a reasonable time before delivery will depend on the circumstances of each case and therefore must be determined on a case-by-case basis. Id. at 311. Consequently, the Court held: . . . as a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery. Id. at 309. Findings related to Ms. Standley's prenatal care and notice Ms. Standley received her prenatal care at Advanced Women's Health Specialists (AWHS), Altamonte Springs, Florida, where she was first seen with regard to the pregnancy at issue on December 14, 1995. At that time, the AWHS group practice included at least three physicians: Edward S. Guindi, M.D., Jon F. Sweet, M.D., and Eileen F. Farwick, D.O. (Joint Exhibit 1-7). Whether Dr. Parker was also associated with the practice at that time is not apparent from the record; however, according to AWHS' records, he was associated with the practice by January 4, 1996. (Joint Exhibit 1-7). Pertinent to the notice issue, Ms. Standley's patient chart at AWHS included a Notice to Our Obstetric Patients form, ostensibly signed by Ms. Standley on December 14, 1995. The notice form provided, as follows: NOTICE TO OUR OBSTETRIC PATIENTS I have been furnished information by Advanced Women's Health Specialists prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that Jon F. Sweet, M.D. is a participating physician in that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery or resuscitation. For specifics on the program, I understand I can contact the Florida Birth Related Neurological Injury Compensation Association (NICA), Barnett Bank Building, 315 South Calhoun Street, Suite 312, Tallahassee, Florida 32301, (904) 488-8191. I further acknowledge that I have received a copy of the brochure by NICA. Dated this day of , 19__. Signature Name of Patient SS# Attest: (Nurse or Physician) Date: Notably, the notice form does not advise Ms. Standley that any AWHS physician, other than Dr. Sweet, was a participating physician in the Plan, although it had a reasonable opportunity to do so, if any were, and the record is devoid of any proof to suggest or support a conclusion that notice was provided by Dr. Parker or that it was not practicable for Dr. Parker to provide Ms. Standley notice during her prenatal care at AWHS. § 766.316, Fla. Stat. ("[E]ach participating physician . . . shall provide notice to the obstetrical patients thereof as to the limited no-fault alternative for birth-related neurological injures."); Schur v. Florida Birth-Related Neurological Injury Compensation Association, 832 So. 2d 188, 192 (Fla. 1st DCA 2002)("The plain language of this section shows an intention that the NICA plan immunizes a physician only when he or she provides notice.") Findings related to Davante's birth and notice As for Ms. Standley's admission to Florida Hospital Altamonte on June 26, 1996, for Davante's birth, there is no proof that either Dr. Parker or Florida Hospital Altamonte provided Ms. Standley notice, although they had a reasonable opportunity to do so. There is likewise no proof to support a conclusion that there was a medical emergency or other reason that rendered it not practicable for them to have done so.
The Issue At issue in this proceeding is whether Halle Cohen Martinez, III, a minor, qualifies for coverage under the Florida Birth- Related Neurological Injury Compensation Plan.
Findings Of Fact Petitioners, Barbara Mary Martinez and Halle Martinez, Jr., are the natural parents and guardians of Halle Cohen Martinez, III, a minor. Halle was born a live infant on November 12, 2001, at Leesburg Regional Medical Center, a hospital located in Leesburg, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Halle's birth was Wendell Courtney, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury" defined as an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also, §§ 766.309 and 766.31, Fla. Stat. To address the cause, timing, and significance of Halle's impairment, Petitioners offered selected medical records relating to Halle's birth and subsequent development, as well as the testimony of Mr. and Mrs. Martinez. In turn, Respondent offered the affidavits and the reports of Doctors Donald C. Willis and Paul R. Carney. The cause and significance of Halle's neurologic impairment At birth, Halle suffered a left brachial plexus injury, with resultant left arm brachial plexus palsy, and a left posterior dislocated shoulder, secondary to the birth brachial plexus palsy. Thereafter, at age 5 months, Halle underwent corrective surgery of the brachial plexus using sural nerve grafts, and at 8 months he underwent corrective surgery to improve the function of his left shoulder. The operations resulted in functional improvements; however, as of the date of hearing, Halle continued to suffer impairments of his left arm and hand, which are likely to be permanent, with notable atrophy within the left upper extremity. Apart from the physical impairment Halle exhibits in his left upper extremity, he is otherwise neurologically sound, without evidence of impairment in his right upper extremity or lower extremities; without evidence of cognitive delay; and without evidence of vision or hearing impairment. Accordingly, although Halle evidences a significant birth-related left brachial plexus injury, he is not, on balance, substantially physically impaired, and evidences no mental impairment. Therefore, for reasons appearing fully in the Conclusions of Law, the claim is not compensable, and it is unnecessary to address whether Halle's brachial plexus injury is, anatomically, an injury to the spinal cord.
Findings Of Fact Micah was born on December 6, 2016, at St. Mary’s Medical Center. She was a single gestation, weighing over 2,500 grams at birth. Respondent retained Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, to review the medical records of Micah and her mother, Petitioner Maysterline Sesse, and opine as to whether there was an injury to her brain or spinal cord that occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period due to oxygen deprivation or mechanical injury. In his report dated May 10, 2019, Dr. Willis set forth the following, in pertinent part: Cesarean section was done for the non- reassuring fetal heart rate (FHR) pattern. The mother was not in labor. Birth weight was 2,620 grams. Umbilical cord gas was not done. The baby was not depressed at birth. Apgar scores were 8/9. No resuscitation was required. Muscle tone was appropriate with a strong cry after birth and the baby was stated to be “comfortable on room air.” NICU admission was not required. Newborn hospital course was uncomplicated. The baby was managed in the normal nursery and discharged home three days after birth. There was no seizure activity. No fetal head imaging was done during newborn hospital course. Gross motor delays were noted at 2 months of age. Hemiplegia was subsequently diagnosed. MRI was done at about 22 months of age. The MRI showed significant chronic abnormalities related to infarction in the right cerebral hemisphere with cystic encephalomalacia. * * * The baby has brain damage as identified by MRI at 22 months of age. The mother was not in labor prior to birth. The baby was not depressed at birth and did not require resuscitation. The new born hospital course was essentially uncomplicated. The brain injury does not appear to be birth related. There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery or the immediate post- delivery period. Attached to Respondent’s Motion is Dr. Willis’s affidavit, dated August 5, 2019. In his affidavit, Dr. Willis affirms, to a reasonable degree of medical probability, the above-quoted findings and opinions from his report. Respondent also retained Michael S. Duchowny, M.D., a pediatric neurologist, to review the pertinent medical records, conduct an Independent Medical Examination (IME) of Micah, and opine as to whether she suffers from a permanent and substantial mental and physical impairment as a result of a birth-related neurological injury. Dr. Duchowny reviewed the medical records, obtained historical information from Micah’s parents, and performed an IME on July 9, 2019. Respondent’s Motion also relies upon the attached affidavit from Dr. Duchowny, dated August 6, 2019. In his affidavit, Dr. Duchowny testifies, in pertinent part, as follows: It is my opinion that MICAH’s evaluation reveals neurological findings consistent with a mild-moderate left hemiparesis with motor impairment primarily affecting upper and lower extremities. In contrast, MICAH has preserved cognitive function and social awareness. She evidences slightly increased muscle tone in the left distal upper and lower extremities and increased deep tendon reflexes. A review of MICAH’s records reveals that she was born at 36 weeks gestation at St. Mary’s Hospital and weighed 5 pounds 12 ounces. Her Apgar scores were 8 and 9 at 1 and 5 minutes; cord blood gases were not done. She remained in the nursery for three days and was discharged home in good condition. Her development proceeded satisfactorily but the lack of motor development triggered an MRI scan of the brain which revealed right temporo-parietal cerebral hemispheric cystic encephalomalacia with compensatory dilation of the right lateral ventricle, findings consistent with an old right middle cerebral artery infarct. MICAH’s hemiparesis is most likely related to an intra-uterine acquired cerebrovascular accident, and is not birth-related. Her cognitive level is age-appropriate and should continue to develop normally in the future. For these reasons, I am not recommending MICAH’s acceptance into the NICA program. In his affidavit, Dr. Duchowny testifies that his opinions are to a reasonable degree of medical probability. A review of the file reveals that no contrary evidence was presented to dispute the findings and opinions of Drs. Willis and Duchowny. Their opinions are credited.
Other Judicial Opinions Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).
