The Issue Whether Roslyn Sue Wells (Roslyn) suffered a “birth-related neurological injury” as defined by section 766.302(2) for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation (NICA) Plan (the Plan).
Findings Of Fact Pursuant to the Joint Pre-hearing Stipulation, the parties agreed to the following facts: Roslyn was delivered on March 24, 2016, at MRMC—a hospital. Roslyn was a single gestation, weighing 3,240 grams at delivery. Dr. Hunt was the delivering physician and was a NICA participating provider at the time of Roslyn’s delivery. MRMC provided notice of NICA participation to Petitioners. Provision of notice of Dr. Hunt’s NICA participation to Petitioners was excused. The undersigned makes the following additional Findings of Fact: Natalie, who was pregnant with Roslyn for approximately 38 weeks, began experiencing contractions at about 11:30 a.m., on March 24, 2016. Natalie arrived at MRMC at 3:30 p.m., that day, and MRMC began fetal heart rate monitoring at 3:32 p.m. At 4:12 p.m., Lisa Roberson, R.N., in the OB Triage notes, noted that “Dr. Hunt covering for Dr. Marquette. Called w/full report. Fhts. w/minimal variability and variables w/every ctx. Reported ctx. Pattern and urine dip. Orders to continue watch pt.” The OB Triage notes indicate, at 4:27 p.m., prolonged accelerations with fetal heart rates down to the “60s” with “occasional rises to the 90s” over 8 minutes. At 4:34 p.m., the OB Triage notes indicate that the fetal heart rate and maternal heart rate “not in sync [:] maternal hr 80s and fhts in 100s.” At 4:36 p.m., Nurse Roberson’s notes indicate “MD called back to inform of fhts continue to decel. MD orders to take pt. to the OR now.” Natalie arrived in the operating room at 4:41 p.m., and Dr. Hunt arrived at 4:45 p.m. The MRMC notes indicate “MD arrived to OR and spoke w/pt. about c/s. Informed MD at that time that the baby’s hr was in the 80- 90s prior to prep.” Dr. Hunt delivered Roslyn, via cesarean section, at 4:54 p.m. Dr. Hunt’s operative report states: The patient is a 30-year-old, gravida 2, para 1 female, admitted at 38 weeks gestation in active labor. She states that contractions became quite strong and she came to the labor room. ON the monitor, she was having mild contractions, but they were at 1 and 2 minute intervals. She had a baseline fetal heart beat of 110. There were no accelerations noted. She was in the labor room short time for monitoring when she had decelerations down to the 60s and had come back up to the 90s. I was called and came in for immediate cesarean section. Just prior to being placed on the operating table, fetal heart tones were 90. The patient had no vaginal bleeding and membranes were intact. The operative report further states, “[a] 6-pound-15-ounce female infant was delivered with Apgars of 0, 0, and 2 at 15 minutes. The baby required immediate resuscitation by the neonatologist.”1 1 “An Apgar score is a numerical expression of the condition of the newborn and reflects the sum total of points gained on an assessment of heart rate, respiratory effort, muscle tone, reflex irritability and color.” Nagy v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 813 So. 2d 155, 156 n.1 (Fla. 4th DCA 2002) (citing Dorland’s Illustrated Medical Dictionary 1498 (27th ed. 1988)). The Neonatologist Transfer Note states, in pertinent part: Baby Girl Wells born via state C/s due to NRFHR – HR in the 50-60s for ~10 minutes. Mother is serology negative. Infant with APGARS 0/0/0/3 at 1,5/10/15 minutes requiring CPR for ~15 minutes. Infant was limp, cyanotic, no respiratory effort, intubated and given manual breaths until 15 minutes and placed on mechanical ventilator. . . . Per OB mother had massive abruption placenta. The Neonatology Delivery/Consult Note reflects the following diagnoses: “term newborn born via c/s for NFEHR”; “hypoxic ischemic encephalopathy”; and “respiratory failure.” The MRMC Delivery Summary reflects that Roslyn was “alive.” The MRMC Admission Orders reflect that Roslyn was “[l]iveborn in hospital by cesarean section (primary).” Following delivery and resuscitation, MRMC’s records reflect Roslyn’s vital signs on March 24, 2016, as follows: blood pressure of 75/35 at 5:12 p.m.; blood pressure of 69/50 at 5:18 p.m.; blood pressure of 69/50, with some spontaneous respirations noted at 5:34 p.m.; blood pressure of 74/32 at 5:36 p.m.; pulse of 124/minute, and with 5-6 spontaneous respirations noted at 6:03 p.m.; a pulse of 120/minute at 6:19 p.m.; and blood pressure of 78/47, and a pulse of 120/minute, at 6:33 p.m. At 6:45 p.m., on March 24, 2016, Roslyn was discharged from MRMC and transferred to Shands Hospital at the University of Florida (Shands) for continued care in its neonatal intensive care unit (NICU). Shands NICU started a cooling protocol for hypoxic ischemic encephalopathy, and also started a video EEG. Roslyn remained on a mechanical ventilator. The neurological examination of Roslyn reflects that she “doesn’t react[] to light by squinting,” has “[w]eak withdraw with some antigravity effort to noxious stimuli seen in all 4 extremities,” and “withdraws to pain equally in all extremities.” Video EEG from overnight revealed multiple seizures, and Phenobarbital was administered. Roslyn remained on a mechanical ventilator through March 28, 2016, at Shands. She received two blood transfusions. A trial of feeding started on day 3 of life that Roslyn did not tolerate. On March 28, 2016, a brain MRI showed global injury to Roslyn’s brain involving the whole cortex and basal ganglia. According to the notes of the treating physician at Shands: After discussing results of the MRI concerning the global injury, along with the signs of hemodynamic instability, and the EEG readings the parents decided to withdraw care. Two attendings supported the decision. Sedative drips were stopped and prn medications were ordered. The patient was extubated at 1800, 3/28/16. Time of death 3/29/16 4:28 a.m., pronounced by [the attending physician]. Testimony of Expert Witnesses2 The parties’ respective experts opined on the critical issue in this matter: whether Roslyn was a “live infant” or “live birth” as contemplated under section 766.302(2) (and would therefore be entitled to compensation under the Plan), or whether she suffered a “fetal death,” which would fall outside of section 766.302(2). The experts relied on Roslyn’s Apgar scores, and also relied on the definitions of “fetal death,” “live birth,” and “stillbirth” found in section 382.002, Florida Statutes, which is the definitional provision of the Vital Statistics chapter of the Florida Statutes, in rendering their opinions. 2 The parties stipulated to the undersigned accepting Dr. Voss and Dr. Willis as medical experts. The undersigned has reviewed the deposition transcripts of both, has considered their credentials, and the bases for their respective opinions, and accepts both as expert witnesses. Section 766.302(2) defines “Birth-related neurological injury” as: [An] 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 he course of labor, deliver, 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 supplied). Section 382.002(8) defines “fetal death” as: death prior to the complete expulsion or extraction of a product of human conception from its mother if the 20th week of gestation has been reached and death is indicated by the fact that after such expulsion or extraction the fetus does not breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles. Section 382.002(12) defines “live birth” as: The complete expulsion or extraction of a product of human conception from its mother, irrespective of the duration of pregnancy, which, after such expulsion, breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, and definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached. Section 382.002(17) defines “stillbirth” as “[a]n unintended, intrauterine fetal death after a gestational age of not less than 20 completed weeks.” Petitioners’ expert, Dr. Voss, whom they originally retained in the previous medical negligence lawsuit, opined that Roslyn was not born alive, based primarily on her Apgar scores. Dr. Voss stated: This – this child had Apgar scores of zero at one minute; zero at five minutes; zero at ten minutes. And, finally—there’s a discrepancy in the records between the note made by the obstetrician and the note made by the neonatologist; either had a score of two or three. But at one minute, five minutes, and ten minutes, this baby did not have a detectable heartbeat, made no respiratory efforts, and had no movement based on the Apgar scores. Q: But you would agree with me that the Apgar score of either two or three at 15 minutes would indicate signs of life, wouldn’t you? A: After resuscitative efforts, yes. Dr. Voss also opined that the statutory definitions of “live birth,” “fetal death,” and “stillbirth” include the factors that are considered in the assignment of Apgar scores. He further opined that Roslyn showed signs of life sometime between 10 and 15 minutes after extraction, but also that she showed no signs of life prior to that. Dr. Voss testified, “I think this fetus died in utero. I think this was a fetal death.” However, upon further questioning, he clarified his opinion as follows: But—so again, at birth, at the time of extraction, or delivery, or whatever term you want to put to it, this baby had no signs of life. And it’s only—and it occurred temporally enough that these tissues were still viable enough, with the right stimulus, signs of life could be restored through this child. But by the legal definition that is outlined in the statute, I would declare this a stillbirth, and clearly so, unless you want to say that, yes, at 10 to 15 minutes, signs of life—through the right stimulus, signs of life were restored; that the tissues were still viable enough, that with the right stimulus, the signs of life could be restored to the child. Q: Okay. So to be fair … it sounds like—and correct me if I’m wrong—your opinion is that this can be characterized as both a fetal death or stillbirth as well as— A: A live birth. Q: --a live birth, according to your medical definitions set forth in the statute, is that fair? A: Yes, that’s very fair. NICA’s expert, Dr. Willis, opined that Roslyn suffered oxygen deprivation during labor and delivery, resulting in brain injury. Dr. Willis opined that Roslyn’s Apgar scores (either 0/0/0/2 or 0/0/0/3) indicated that Roslyn showed signs of life after extraction from the mother. Dr. Willis further opined that Roslyn was born alive. He further testified: [S]everal things would confirm that. Number one, the child died five—five days after birth, so obviously the child was alive. The definition of live birth is expulsion of a baby that shows signs of life after birth. That can be a heartbeat or voluntary muscle movement or respiratory effort. There’s no time limit on it. So to show signs of life, it doesn’t mean it has to be by a certain time after life. It’s at any time after birth. In order to be considered a stillbirth, or demised at birth, you should remember that the—the diagnosis of death is a permanent diagnosis. So—so you can’t die and then be alive. So to say that a baby is stillborn means the baby is born without a heartbeat and is never resuscitated. Never shows signs of life. So in this case the baby was— obviously lived for several days, so it was alive. Also the records confirm this. On the delivery summary there’s a box that—that states several things about the baby. And on is—it has choices between alive and stillbirth and clearly circled is alive. So that would again confirm that impression, but clearly the baby was a live birth. When questioned on cross-examination whether Roslyn’s receiving a 0 Apgar score upon extraction indicated an intrauterine fetal death, Dr. Willis stated it did not, “because intrauterine fetal demise would be a baby that’s born without a heartbeat and never obtains one.” Dr. Willis later clarified, “[a]t any point after expulsion if there’s a heartbeat or sign of life, it is considered a live birth.” Based on the weight of the credible evidence presented, the evidence established that Roslyn suffered oxygen deprivation during labor, delivery, or resuscitation in the immediate post-delivery period in a hospital (MRMC). Further, Roslyn weighed in excess of 2,500 grams. Additionally, the weight of the credible evidence establishes that Roslyn was, after extraction, a “live infant” and that this was a “live birth,” based on the statutory definitions found in section 382.002, the medical record evidence presented, and the expert testimony of both Dr. Voss and Dr. Willis, and that this was not a “fetal death” or “stillbirth.” The medical record evidence indicates that, between 10 and 15 minutes after extraction, signs of life were present, including a pulse, blood pressure, and spontaneous respirations following resuscitative efforts. Additionally, after the Petitioners made the decision to withdraw mechanical care to Roslyn, and care was withdrawn, Roslyn lived for approximately 10 and one-half hours on her fifth day of life. Further, Dr. Voss and Dr. Willis both testified that Roslyn was a live birth, although Dr. Voss testified that Roslyn was both a live birth and a fetal death/stillbirth. The undersigned credits Dr. Willis’s testimony that “live birth” means a baby that shows signs of life after birth, which is what happened with Roslyn, and that Roslyn suffered a neonatal death. The undersigned does not credit Dr. Voss’s testimony that Roslyn was both a fetal death/stillbirth and a live birth.
Conclusions For Petitioners: T. Patton Youngblood, Jr., Esquire Youngblood Law Firm Suite 800 360 Central Avenue St. Petersburg, Florida 33701-3984 For Respondent: Brooke M. Gaffney, Esquire Smith, Stout, Bigman & Brock, P.A. Suite 900 444 Seabreeze Boulevard Daytona Beach, Florida 32118 For Intervenors: For Intervenor Munroe HMA Hospital, LLC, d/b/a Munroe Regional Medical Center: David O. Doyle, Jr., Esquire Pearson Doyle Mohre & Pastis, LLP Suite 401 485 North Keller Road Orlando, Florida 32751 For Intervenors Seaborn Hunt, M.D., and 17th Street, LLC: M. Suzanne Green, Esquire Bice Cole Law Firm, L.P. 1333 Southeast 25th Loop, Suite 101 Ocala, Florida 34471
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).
Findings Of Fact Zoe was born on May 21, 2019, at St. Mary’s Medical Center, a hospital, in West Palm Beach, Florida. Zoe was a single gestation and her weight at birth exceeded 2,500 grams. As set forth in greater detail below, the unrefuted evidence establishes that Zoe did not sustain a “birth-related neurological injury,” as defined by section 766.302(2). Donald Willis, M.D., a board-certified obstetrician specializing in maternal-fetal medicine, was retained by Respondent to review the pertinent medical records of Zoya Jones and Zoe and opine as to whether Zoe sustained an injury to her brain or spinal cord caused by oxygen deprivation or mechanical injury that occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital. In his report, dated September 14, 2020, Dr. Willis summarized his findings and opinions as follows: In summary, the mother presented in labor at term. There was no apparent fetal distress during labor. Spontaneous vaginal delivery resulted in a vigorous newborn with Apgar scores of 9/9. Newborn hospital course was complicated only by the somewhat confusing history for syphilis . . . The baby suffered a brain injury at some time remote from the CT scan at 2 months of age. The baby as not depressed at birth and the newborn hospital course was not complicated by multi- system organ failures. The brain injury does not appear to be birth related. * * * There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or in the immediate post delivery period. In his supporting affidavit, Dr. Willis opines, to a reasonable degree of medical probability, that “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 in the immediate post-delivery period.” Respondent also retained Michael S. Duchowny, M.D., a pediatric neurologist, to review the medical records of Zoya Jones and Zoe, and to conduct an Independent Medical Examination (IME) of Zoe. The purpose of his review and IME was to determine whether Zoe suffered from a permanent and substantial mental and physical impairment as a result of an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery, or resuscitation in the immediate post- delivery period. Dr. Duchowny reviewed the pertinent medical records and, on October 15, 2020, conducted the IME remotely via Zoom teleconference. In his report, prepared November 6, 2020, he summarized his findings and opinions as follows: In summary, Zoe’s neurological evaluation reveals findings consistent with a substantial mental and motor impairment. She has spastic quadriplegic (double hemiparetic) cerebral palsy, oromotor incoordination, microcephaly, absence of receptive and expressive communication, sensorineural hearing loss in the left ear and pathologic developmental reflexes. Her level of development approximates that of a 3-6 month-old infant. Review of the medical records reveals that Zoe was born at 40 2/7 weeks gestation at St. Mary’s Hospital and weighed 6’12” [sic]. Pregnancy was complicated by several sexually transmitted diseases including a positive RPR that was treated with penicillin but secondarily increased near term. Pregnancy was also complicated by Type 2 HSV genital infection and trichomonas infection treated with metronidazole. Zoe was delivered vaginally with Apgar scores of 9 and 9 at 1 and 5 minutes. Cord blood gases were not requested and there was no evidence of systemic organ dysfunction. Zoe was discharged from the nursery on the third day of life. * * * Based on today’s neurological evaluation and medical records review, I believe that while Zoe’s neurological impairments and permanent and substantial, they were most likely acquired in utero. The records do not provide support for intrapartum oxygen deprivation or mechanical injury, and the brain imaging findings are more consistent with a prenatally-acquired infections process that affected the brain. For these reasons, I am not recommending that consideration be given for Zoe’s inclusion in the NICA program. In his supporting affidavit, Dr. Duchowny opines, to a reasonable degree of medical probability, that Zoe did not suffer 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 which rendered her permanently and substantially mentally and physically impaired. The undisputed and unopposed findings and opinions of Drs. Willis and Duchowny are credited. The undersigned finds that Zoe did not sustain 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 rendered her permanently and substantially mentally and physical impaired.
Findings Of Fact By stipulation filed December 27, 1993, petitioners and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Fla. Stat., a claim was filed on behalf of the above-styled infant against NICA on behalf of GEANCARLO RODRIGUEZ, PATRICIA RODRIGUEZ and GUSTAVO RODRIGUEZ (the "Petitioners") for benefits under Chapter 766.301-766.316 Fla. Stat. That a timely filed Claim for benefits complying with the requirements of Section 766.305, Fla. Stat., was filed by the Petitioners and a timely Notice of Non- Compensability Setting forth that NICA denied the claim was filed on behalf of NICA. That the infant, GEANCARLO RODRIGUEZ, was born at Hialeah Hospital on August 22, 1991, and Hialeah Hospital was a licensed Florida Hospital and the attending physician, Dr. Laida N. Casanova was a participating physician within the meaning of Chapter 766, Fla. Stat. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. Section 766.302(2), Fla. Stat. states that "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. The parties agree that GEANCARLO RODRIGUEZ suffers from a right brachial plexus injury. A brachial plexus palsy injury is not an injury to the brain or spinal cord and further, does not result in any mental injury. The parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., including in particular his reports dated April 28, 1993, and November 15, 1993. Copies of these reports have been attached hereto and incorporated herein respectively as Exhibits 1 and 2. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply. Based upon this stipulation, the parties request the hearing officer to rule on Petitioners' claim based upon this Stipulation, and the attached medical records. The neurological examinations of Geancarlo reveal that he suffered a right Erb's palsy directly related to the right brachial plexus injury he received at birth. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury and, further, does not result in mental injury. Moreover, Geancarlo's mental functioning is normal and not impaired due to any birth related complications.
