Findings Of Fact Alina Karina Sukhu was born on June 23, 2011, at Florida Hospital located in Orlando, Florida. Alina weighed 6 pounds 12 ounces at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Alina, to determine whether an injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital due to oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. In an affidavit dated August 14, 2014, Dr. Willis described his findings as follows: In summary, labor and delivery were apparently uncomplicated. Umbilical cord blood gas was not done. The newborn had decreased muscle tone and feeding difficulty. MRI of the brain showed some abnormalities that could represent hemorrhage or hypoxic injury. However, the FHR tracing did not suggest fetal distress during labor and delivery was uncomplicated. These findings suggest that the brain injury was most likely not birth related. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor or delivery. NICA retained Michael S. Duchowny, M.D., a pediatric neurologist, to examine Alina and to review her medical records. Dr. Duchowny examined Alina on May 28, 2014. In an affidavit dated August 18, 2014, Dr. Duchowny opined as follows: In summary, Alina’s neurological examination reveals global developmental delay characterized by a complex 4-limb motor disability with static hypotonia, truncal ataxia, and dynamic hypertoncity. She has absent language development, a cortical visual impairment, and severe oro-motor incoordination necessitating caloric intake via an indwelling gastrostomy tube. Although Alina has a substantial mental and motor impairment, the medical records do not provide evidence to suggest that her neurological injury was acquired due to oxygen deprivation or mechanical injury in the course of labor and delivery. I therefore am not recommending Alina to be considered for compensation within the NICA program. Petitioner Anjani Ramoutar filed a letter in opposition to NICA's Motion for Summary Final Order. In the letter, Petitioner raises the issue of fault. However, as addressed in the Conclusions of Law, the Florida Birth-Related Neurological Injury Compensation Plan was established for the purpose of providing compensation, irrespective of fault, for birth-related neurological injury that fits within specific statutory definitions to be eligible to receive benefits under the Plan. §§ 766.302(2), 766.303(1), and 766.309(1), Fla. Stat. 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 that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor or delivery. Dr. Willis’ opinion is credited. There are no contrary expert opinions filed that are contrary to Dr. Duchowny’s opinion that although Alina has a substantial mental and motor impairment, the medical records do not provide evidence to suggest that her neurological injury was acquired due to oxygen deprivation or mechanical injury in the course of labor and delivery. Dr. Duchowny’s opinion is credited.
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.
The Issue Whether Emmanuel Jared Marinez, a deceased minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, the amount and manner of payment of the parental award, the death benefit, the amount owing for attorney's fees and costs, and the amount owing for past expenses.
Findings Of Fact Findings related to compensability Magaly N. Marinez is the natural mother of Emmanuel Jared Marinez, a deceased minor. Emmanuel was born a live infant on December 26, 2001, at Orlando Regional South Seminole Hospital, a hospital located in Longwood, Florida, and his birth weight exceeded 2,500 grams. Emmanuel expired January 6, 2002, following removal from life support. The physician providing obstetrical services at Emmanuel's birth was Stephen Phillips, 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.1 Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, the parties have stipulated, and the proof is otherwise compelling, that Emmanuel suffered a severe brain injury caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital that rendered him permanently and substantially mentally and physically impaired and which, following removal from life support, resulted in death. Consequently, the proof demonstrates that Emmanuel suffered a "birth-related neurological injury" and, since obstetrical services were provided by a participating physician at birth, the claim is compensable. §§ 766.309(1) and 766.31(1), Fla. Stat. Findings related to the award Where, as here, it has been resolved that a claim qualifies for coverage under the Plan, the administrative law judge is required to make a determination of how much compensation should be awarded. § 766.31(1), Fla. Stat. Pertinent to this case, Section 766.31 provides for an award providing compensation for the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, family residential or custodial care, professional residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel. However, such expenses shall not include: Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. * * * 1. Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum. Death benefit for the infant in an amount of $10,000. Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge . . . . At hearing, the parties agreed that Petitioner receive a parental award of $100,000.00, to be paid in lump sum; a death benefit for the infant of $10,000.00; an award of $10,500.00 for attorney's fees ($10,000.00) and other expenses ($500.00) incurred in connection with the filing of the claim; and no award for past expenses, since any such expenses have been paid by a collateral source. Such agreement is reasonable, and is approved.
Findings Of Fact Kaden Nguyen was born on July 26, 2012, at Plantation General Hospital and weighed 3,827 grams at birth. NICA retained Donald Willis, M.D., to review the medical records for Kaden. After reviewing the records, Dr. Willis opined as follows: In summary, the mother suffered a cardiac arrest during labor due to a suspected amniotic fluid embolism and could not be resuscitated. Fetal oxygen deprivation resulted from maternal cardiac arrest, as reflected by fetal bradycardia. Emergency Cesarean section was done while maternal CPR continued. The baby was depressed at birth and continued to develop worsening respiratory distress. Despite the obvious lack of oxygen, there was no seizure activity and the MRI on DOL 17 was normal. There was an obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery, and continuing into the immediate post delivery period. However, the oxygen deprivation did not result in any significant brain injury. The lack of significant brain injury is based primarily on the normal MRI on DOL 17, absence of any seizure activity and age appropriate developmental milestones achieved at 9 months of age. Michael Duchowny, M.D. (Dr. Duchowny), was requested by NICA to do an independent medical evaluation of Kaden. Dr. Duchowny examined Kaden on February 12, 2014. Based on his examination, Dr. Duchowny opined the following: In summary, Kaden’s neurological examination reveals no specific focal or lateralizing findings. He does not evidence any motor or mental impairment and his growth and development are proceeding satisfactorily. I had an opportunity to review medical records which were sent to me on December 5, 2013 which documented the catastrophic perinatal course. Of note, head ultrasound examinations performed on July 28th and 30th, 2012 were within normal limits. No further neuroimaging studies were undertaken. As Kaden’s neurological examination is normal today, I do not believe that he should be considered for acceptance into the NICA program. A review of the file does not show any contrary opinions to the opinions of Dr. Willis and Dr. Duchowny that Kaden did not have a brain injury that resulted in permanent and substantial physical and mental impairments. The opinions of Dr. Willis and Dr. Duchowny are credited.
The Issue Whether Alphonso Cato has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.
Findings Of Fact Alphonso Reginald Cato (Alphonso) is the natural son of Deryl L. Cato and Jacqueline Flood McLaughlin. He was born a live infant on March 12, 1989, at Baptist Medical Center in Jacksonville, Duval County, Florida, and his birth weight was in excess of 2500 grams. The physicians providing obstetrical services during the birth of Alphonso were Dr. F. Andre and Dr. Huddleston, who were, at all times material hereto, participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. The neurological examination of Alphonso performed by Michael S. Duchowny, M.D., whose opinions are credited, revealed a prominent spastic diapiresis of the lower extremities which had been ameliorated by dorsal rhizotomy. Alphonso's mental functioning was, however, found to be age appropriate, and he was not found to suffer from any mental impairment. As to the cause of Alphonso's cerebral palsy, the proof is less than compelling that it was suffered as a consequence of any birth-related complications, as opposed to having been acquired prenatally. Moreover, although permanently impaired, the proof fails to support the conclusion that Alphonso's impairment is substantial.
Findings Of Fact Adam was born on June 11, 2018, at HealthPark Medical Center, in Fort Myers, Florida. Adam was a single gestation and his weight at birth exceeded 2500 grams. Obstetrical services were delivered by a participating physician, Jane A. Daniel, M.D., in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, HealthPark Medical Center. As set forth in greater detail below, the unrefuted evidence establishes that Adam 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. Johnson and Adam and opine as to whether Adam 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 affidavit, dated December 11, 2020, Dr. Willis summarized his opinions as follows: In summary, an abnormal FHR pattern developed during labor and resulted in a depressed newborn. Cord blood pH was 6.9 with a base excess of -18.6. Seizures began shortly after birth. The newborn hospital course was complicated by multi-system organ failures, consistent with birth-related oxygen deprivation. MRI on DOL 4 was suggestive of HIE, but findings improved with follow-up MRI. There was an apparent obstetrical event that resulted in oxygen deprivation to the brain during labor, delivery and continuing into the immediate post-delivery period. The oxygen deprivation resulted [in] a potential for brain injury, but the follow-up normal MRI suggests that no actual brain injury occurred. Respondent also retained Michael S. Duchowny, M.D., a pediatric neurologist, to review the medical records of Ms. Johnson and Adam, and to conduct an Independent Medical Examination (IME) of Adam. The purpose of his review and IME was to determine whether Adam 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 20, 2020, conducted the IME. In his affidavit, dated December 16, 2020, Dr. Duchowny summarized his opinions as follows: In summary, Adam’s evaluation reveals findings consistent with a substantial motor but not mental impairment. He evidences a spastic diplegia, but with relative preservation of motor milestones, and age-appropriate receptive and expressive communication. Adam additionally has a severe behavior disorder, and has a sleep disorder and attentional impairment. His seizures are in remission. Review of the medical records reveals that Adam was the product of a 40 week gestation and was delivered vaginally with Apgar scores of 3, 6, 7 and 6 at one, five and 10 minutes. Terminal meconium was noted at delivery. Adam initially required positive pressure ventilation until his respirations were subsequently managed with nasal CPAP. His cord gas pH was 6.917 with a base excess of – 18.6. Adam developed seizures in the NICU and was intubated on the first day of life for apnea. Multiple seizures were documented on video/EEG monitoring. He was oliguric on the first day of life and had elevated liver function studies. An elevated lactic acid level was noted and there was a borderline elevation of DIC parameters. Adam was enrolled in a body hypothermia protocol on the first day of life. His blood pressure was maintained with dopamine. A head ultrasound on June 11 at 22:23 (DOL#2) was unremarkable. A brain MR imaging study performed on June 15, (DOL#5) revealed multifocal areas of restricted diffusion. Follow-up brain MR imaging study on July 5th revealed near-complete resolution of the previously observed diffusion abnormalities. A third MR imaging study obtained one month ago confirms the resolution of the DWI findings noted on the first brain MR imaging study. In conclusion, Dr. Duchowny opined that Adam does not have a substantial mental impairment, and, therefore, did not recommend that Adam be considered for inclusion in the Plan. The undisputed findings and opinions of Drs. Willis and Duchowny are credited. The undersigned finds that Adam 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.
The Issue Whether Ashley Villarreal has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.
Findings Of Fact Preliminary matters Ashley Villarreal (Ashley) is the natural daughter of Roy Villarreal and Carmen Luna. She was born a live infant on January 2, 1989, at Bethesda Memorial Hospital in Palm Beach County, Florida, and her birth weight was 3090 grams. The physician delivering obstetrical services during the birth of Ashley was Allen Dinnerstein, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. The birth of Ashley Villarreal At or about 4:15 p.m., January 2, 1989, Carmen Luna was admitted to Bethesda Memorial Hospital. At the time, Carmen Luna was in active labor, and Ashley was post term with a gestational age of 41 weeks. Otherwise, Carmen Luna's pregnancy had been without complication. External fetal monitoring was commenced at 4:50 p.m. and indicated that the fetal heart tone was sporadically within the 60 beat per minute level, with a slow return to baseline; a level sufficient to indicate occasional fetal bradycardia and fetal distress. 1/ This situation evidenced a need for surgical intervention, and at 5:20 p.m. Carmen Luna was taken to the operating room. Anesthesia commenced at 5:25 p.m., a cesarean section surgical procedure was commenced at 5:39 p.m., and Ashley was delivered at 5:44 p.m. The operative report reflects that the following occurred during the course of the procedure: . . . a transverse incision was made into the uterus releasing meconium stained fluid. The vertex was delivered and the baby suctioned with DeLee. A loop of cord over the neck was removed and the baby then delivered completely continually being suctioned as the cord was double clamped and severed and the infant given to the neonatologist for care . . . . The delivery records likewise reflect that Ashley had a blue appearance at delivery, the presence of meconium staining, and the following resuscitation measures: "Stimulation," "Bulb Suction," "DeLee Suction," "Mech Suction" and "Whiffs Oz." When delivered, Ashley presented Apgar scores of 6 at one minute and 8 at five minutes. These scores are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of the heart rate, respiratory effort, muscle tone, reflex irritability, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute, Ashley's Apgar score totaled 6, with respiratory effort and reflex irritability being graded at 2 each, heart rate and muscle tone being graded at 1 each, and color being graded at 0. At 5 minutes, Ashley's Apgar score totaled 8, with heart rate, respiratory effort and reflex irritability being graded at 2 each, and muscle tone and color at 1 each. Such total scores could be characterized by an obstetrician as "good." Pertinent to this case, color, heart rate and respiratory effort are primarily related to the cardiovascular system, and color is the least significant indicator of an infant's brain or neurological status at birth. The categories of reflex irritability and muscle tone are, however, neurological assessments, which offer the greatest insight into the neurological condition of an infant at birth. Ashley's Apgar scores relative to those categories which reflect neurological status at birth were collectively a total of 3 out of a possible 4 at both 1 and 5 minutes. Under the circumstances, Ashley's Apgar scores, either globally or discretely, fail to reflect a hypoxic event at birth. At 6:00 p.m., following delivery, Ashley was admitted to the neonatal intensive care unit due to respiratory distress, possibly secondary to meconium aspiration. Ashley was accorded extra oxygen, via oxygen hood, for two days, and her meconium aspiration was successfully treated with antibiotics. During her admission, no clinical observations were noted that one would typically expect in a child undergoing hypoxic encephalopathy, and no neurological consult was ordered. 2/ On January 7, 1989, Ashley was discharged as an apparently well baby. Subsequent developments On July 29, 1989, Ashley was seen by M. Arenstein, D.O., for a "well baby visit," and no abnormalities were noted; however, on September 6, 1989, Ashley was again seen by Dr. Arenstein at which time the parents expressed their concern regarding Ashley "not sitting up, crawling, etc." Consequently, Dr. Arenstein referred Ashley for a pediatric consult with Jeffrey Perelman, M.D. Ashley was seen by Dr. Perelman on September 19, 1989, and he diagnosed her as developmentally delayed, and ultimately referred her to David Ross, M.D., for a neurological evaluation. Dr. Ross saw Ashley on July 2, 1990, and concluded: The patient has some mild facial dysmorphism with developmental delay in all fields associated with an abnormal neurologic exam with persistence of postural reflexes and hyperreflexia. The spectrum of findings is consistent with mental retardation of a mild to moderate degree probably due to cerebral palsy. 3/ Dr. Ross' ultimate diagnosis was mental retardation, and he recommended that Ashley have a full evaluation, including "an image of the brain either with CT scan or MRI (an EEG, torch titers, chromosome analysis)." Ashley was referred in August 1990, for a CT brain scan and an EEG. The CT scan is a neuroimaging study which can identify structural brain abnormalities occasioned by an hypoxic insult, as well as other causes. The EEG is a device used to detect abnormalities of the electrical currents of the brain such as seizure activity, which is often a manifestation of hypoxic insult at birth, and the death of neuronal cells. Here, both the CT scan and EEG were within normal limits. Ashley continued to be treated by Dr. Perelman through June 1991; however, on August 14, 1991, she came under the care of Miguel Simo, M.D., another pediatrician, because the parents were apparently dissatisfied with Dr. Perelman. Upon examination, Dr. Simo diagnosed Ashley as developmentally delayed, and referred her to Laszlo Mate', M.D., a physician practicing child neurology, for evaluation. Dr. Mate' examined Ashley on August 29, 1991, and observed: . . . a small, dysmorphic female in no apparent distress. Her head circumference is 47 cm which is in the 25th percentile. She doesn't have any neurocutaneous abnormalities. Her palmer creases are somewhat abnormal, but not of simian nature. Her fingers are slightly abnormal, extra long, and she seems to have a proximal displacement of both thumbs. Her ears are malformed with very small earlobes. The ears are somewhat posterior rotated and low set. Her eyes are almond shape but in view of her Indian heritage, that's probably normal. Both parents seem to have similar shaped eyes. The child has a somewhat prominent nose. The mouth is somewhat fishmouth in character and she has fairly shallow temporal area. She doesn't have any eyelashes on her lower eyelid. Dr. Mate's impression was: This is a markedly abnormal child with a developmental quotient in the 30's. She's currently is 30 months old and she functions around a 9-10 month level. She has multiple minor malformations which made the diagnosis of cerebral palsy somewhat unlikely. I suspect we are dealing with some prenatal etiology, either genetic or pregnancy related. 4/ Dr. Simo also referred Ashley for an MRI of the brain. An MRI, as with a CT scan, is a neuroimaging study which can identify structural abnormalities occasioned by hypoxic insult, as well as other causes. The MRI, performed September 20, 1991, was abnormal, evidencing "poor and decreased white matter myelinization extending to the frontal, occipital, and parietal cortex and decrease in white matter content in the centrum semiovale." Such damage could be reflective of birth asphyxia, developmental immaturity of the brain, or a myriad of other causes. Finally, Dr. Simo referred Ashley to Oscar Febles, M.D., a physician practicing genetics. Dr. Febles examined Ashley on November 1, 1991, and rendered a diagnosis of "psychomotor retardation of unknown etiology." Concluding, Dr. Febles observed: The clinical findings in this patient are not diagnostic of a particular genetic syndrome . . . In conclusion, this patient presents a clinical picture characterized by psychomotor retardation that cannot be diagnosed on the clinical findings and/or testing done. The fact that she presents diffuse demyelinization on the MRI would favor the diagnosis of cerebral palsy and/or a CNS degenerative disease. It is my recommendation that an MRI be repeated in approximately 6 months to see if the demyelinization process of the cortex previously seen is progressive or static. If found to be progressive it would indicate a CNS degenerative disease (e.g. leukodystrophies) and if static the diagnosis of cerebral palsy is most likely. In addition, it is also recommended . . . Genetic re-evaluation in 1 year. Whether, consistent with Dr. Febles' recommendation, an MRI was repeated or Ashley had a subsequent genetic re- evaluation does not appear of record. Notably, however, while Ashley was genetically tested and found to have a normal karyotype, such test does not rule out the preponderance of genetic disorders which manifest themselves in microscopic point mutations within a chromosome as opposed to total chromosomal malformation. The medical experts at hearing As to whether Ashley had sustained permanent and substantial mental and physical impairment as a result of an injury to her brain resulting from oxygen deprivation during the course of labor, delivery or resuscitation in the immediate post-delivery period, petitioners offered the testimony of Dr. David Ross, who, although a board certified neurologist, does not regularly treat neonates. Dr. Ross examined Ashley on July 2, 1990, and March 2, 1994. It was Dr. Ross' opinion that Ashley suffered a substantial and permanent mental and physical impairment as a consequence of oxygen deprivation during the course of labor and delivery. Compared with the opinion of Dr. Ross, the respondent offered the testimony of Dr. Michael Duchowny. Dr. Duchowny is a child neurologist who is board certified in pediatrics, neurology with special competence in child neurology and clinical neurophysiology. Dr. Duchowny is associated with the department of neurology at Miami Children's Hospital and routinely treats neonates suspected of having suffered a hypoxic event at birth. Dr. Duchowny examined Ashley on September 21, 1992, as well as observed her at hearing, and was familiar, as was Dr. Ross, with the pertinent medical records. It was Dr. Duchowny's opinion that Ashley was substantially and permanently mentally impaired, but that her physical impairment could best be described as mild to moderate. As to causation, it was Dr. Duchowny's opinion that the cause (etiology) of Ashley's mental and physical impairment (neurologic syndrome) was a developmental problem of in utero (prenatal) or genetic origin, and that any fetal distress she may have suffered at birth was not substantial and did not contribute to her condition. [Tr. 97] Here, I accept the testimony and opinion of Dr. Duchowny as being the more credible and substantial as to whether Ashley sustained a substantial and permanent mental and physical impairment, and the cause of such dysfunction. Dr. Duchowny's opinions are credible, supported by the observations of other physicians as heretofore noted, and are most consistent with conclusions to be drawn or inferences raised by the medical records received into evidence.
