The Issue At issue in this proceeding is whether Frannie Lasher, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Initial observations As observed in the preliminary statement, neither petitioner nor anyone on her behalf appeared at hearing, and no proof was offered to support her claim. Ordinarily, such failing would be dispositive of the case; however, notwithstanding petitioner's failure of proof, respondent elected to offer certain evidence to affirmatively resolve the issue as to whether Frannie Lasher (Frannie), suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. Frannie's neurologic condition Pertinent to the resolution of the subject claim, the proof demonstrates that Frannie was the product of a normal pregnancy, and was delivered at term on May 4, 1993, at Hollywood Memorial Hospital, Hollywood, Florida, by repeat cesarean section. At birth, Frannie weighed 7 pounds, 5 ounces, had an Apgar score of 8 at one minute and 9 at five minutes, and had a normal newborn course. In sum, the delivery and newborn records fail to demonstrate that Frannie was compromised by oxygen deprivation, mechanical injury or otherwise, during the birth-process. On February 15, 1995, Frannie was referred to Melvin Grossman, M.D., a child neurologist, who observed some delay in her developmental speech and motor milestones. At the time, Dr. Grossman recommended an MRI scan of the brain to make sure there were no structural lesions, although he did not believe that Frannie had any evidence to suggest a neuromuscular disorder. The MRI scan of the brain was normal. Approximately two years after birth, Frannie was diagnosed as severely autistic, which accounts for her impaired development, communication, motor coordination and balance. Autism is not, however, a condition related to the birthing or resuscitative process, and there is no evidence that Frannie suffered an injury to her brain due to hypoxia or mechanical trauma during such period.
The Issue The issue in this case is whether Ajani Buchanan suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Plan.
Findings Of Fact Ajani Buchanan was born on March 18, 2012, at Memorial Regional Hospital in Hollywood, Florida. Ajani weighed in excess of 2,500 grams at birth. The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records of Memorial provided to NICA. At all times material, both Memorial and Dr. McCreath were active members under NICA pursuant to section 766.302(6) and (7). Ajani was delivered by Dr. McCreath, who was a NICA- participating physician, on March 18, 2012. Petitioner contends that Ajani suffered a birth-related neurological injury and seeks compensation under the Plan. Respondent contends that Ajani has not suffered a birth-related neurological injury as defined by section 766.302(2). In order for a claim to be compensable under the Plan, certain statutory requisites must be met. Section 766.309 provides: The Administrative Law Judge shall make the following determinations based upon all available evidence: Whether the injury claimed is a birth- related neurological injury. If the claimant has demonstrated, to the satisfaction of the Administrative Law Judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in § 766.302(2). Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital. How much compensation, if any, is awardable pursuant to § 766.31. If the Administrative Law Judge determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at birth, she or he shall enter an order . . . . The term “birth-related neurological injury” is defined in Section 766.302(2), Florida Statutes, as: . . . injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality. (Emphasis added). In the instant case, NICA has retained Donald C. Willis, M.D. (Dr. Willis), as its medical expert specializing in maternal-fetal medicine and pediatric neurology. Upon examination of the pertinent medical records, Dr. Willis opined: Based on available medical records, there does not appear to be a birth related hypoxic injury. The newborn hospital records confirm that there was no oxygen deprivation to the baby during labor, delivery or the immediate post delivery period. Dr. Willis’ medical report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that “there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period.” A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis. The opinion of Dr. Willis that Ajani did not suffer an obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery, or the immediate post-delivery period is credited. In the instant case, NICA has retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), as its medical expert in pediatric neurology. Upon examination of the child and the pertinent medical records, Dr. Sigurdardottir opined: Ajani is a 5-year-old boy with history of an autistic regression at age 18 months and no obvious perinatal injury that can be identified. Result as to question 1 [Does the child suffer from a permanent and substantial mental and physical impairment?]: Ajani is found to have substantial delays in mental abilities with non-verbal moderate to severe autism. His motor capabilities are grossly within normal limits. Result as to question 2 [If so, is such an impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury? If so, is injury felt to be labor and birth related?]: In review of available documents, there is no evidence of an incident during labor or delivery consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury. Result as to question 3 [What is the prognosis and estimate of life expectancy?]: The prognosis for full motor recovery is excellent and prognosis for mental recovery is poor. The life expectancy is normal. In light of evidence presented I believe Ajani does not fulfill criteria of a substantial mental and physical impairment to be included in the NICA program. . . . Dr. Sigurdardottir’s medical report is attached to her Affidavit. Her Affidavit reflects her ultimate opinion that “the IME and record review do not support a finding that Ajani suffered a ‘birth-related neurological injury.’” A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Sigurdardottir. The opinion of Dr. Sigurdardottir that Ajani did not suffer a substantial mental or physical impairment acquired in the course of labor or delivery is credited.
Findings Of Fact Abel was born on September 23, 2009, at South Miami Hospital in Miami, Florida. Dr. Martinez-Marquez was the physician providing obstetric services and who was present at Abel’s birth. Attached to Respondent’s Motion is the affidavit of Respondent’s Record’s Custodian, Tim Daughtry. Mr. Daughtry attests in his affidavit that, in 2009, Dr. Martinez-Marquez did not pay the five thousand dollar ($5,000.00) assessment prescribed in section 766.314(4)(c), Florida Statutes, required for participation in the Plan. Mr. Daughtry’s affidavit further provides that NICA has no records to suggest that Dr. Martinez- Marquez is otherwise exempt from payment. Dr. Martinez-Marquez was not a participating physician in the Plan at the time of Abel’s birth.
Findings Of Fact Koby was born on January 10, 2020, at Tampa General Hospital, in Tampa, Florida. Koby was a single gestation and his weight at birth exceeded 2,500 grams. Obstetrical services were delivered by a participating physician, Dr. Louis, in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, Tampa General Hospital. As set forth in greater detail below, the unrefuted evidence establishes that Koby 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 Ms. Crowley and Koby and opine as to whether Koby sustained an injury to his brain or spinal cord caused by oxygen deprivation or mechanical injury that occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital. In his report, dated October 19, 2020, Dr. Willis summarized his findings and opinions as follows: In summary, pregnancy was complicated by a known fetal congenital birth defect, Omphalocele. Delivery by repeat Cesarean section was done in early labor with rupture of the membranes. The baby was depressed at birth with cord blood pH of 6.74 and base excess of -21. Despite the acidosis at birth, MRI on DOL 7 was normal. There was some degree of oxygen deprivation at birth, as documented by the cord blood pH of 6.4. However, MRI on DOL 7 was normal, suggesting the oxygen deprivation did not result in identifiable brain injury. Based on available medical records, it does not appear the child suffered a birth related brain injury. In his supporting affidavit, Dr. Willis opines, to a reasonable degree of medical probability, that while Koby suffered some degree of oxygen deprivation at birth, it does not appear the child suffered a birth related brain injury. Respondent also retained Luis E. Bello-Espinosa, a pediatric neurologist, to review the medical records of Ms. Crowley and Koby, and to conduct an Independent Medical Examination (IME) of Koby. The purpose of his review and IME was to determine whether Koby 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. Bello-Espinosa reviewed the pertinent medical records and, on December 11, 2020, conducted the IME. In his report, prepared the same day as the examination, he summarized his findings and opinions as follows: Koby is an eleven month and three-week-old by ex- 35 week premature born via C-section with clear amniotic fluid after PROM. At birth, he was diagnosed with an omphalocele. A diagnosis of moderate hypoxic encephalopathy was made given his initial Apgar score, arterial blood gases, and neurological examination. Therapeutic hypothermia was implemented despite his neonatal age, given his clinical presentation. During his NICU stay, he did not have acute electroclinical or electrographic seizures. An MRI of the brain obtained on day 7th of life was normal. Since birth, he has benefited from PT and OT. His comprehensive neurological examination today is normal. Dr. Bello-Espinosa opined that Koby does not suffer from a substantial and permanent mental and physical impairment. Additionally, he opined that Koby did not acquire an injury to the brain or spinal cord during labor, delivery, or the immediate post-delivery period. Accordingly, he did not recommend Koby be considered for inclusion in the Plan. Dr. Bello-Espinosa confirms those opinions in his supporting affidavit. The undisputed and unopposed findings and opinions of Drs. Willis and Bello-Espinosa are credited. The undersigned finds that Koby 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 him permanently and substantially mentally and physical impaired.
