The Issue At issue in this proceeding is whether Paul Bryant Sivley, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact As observed in the preliminary statement, neither petitioner nor anyone on her behalf appeared at hearing, and no proof was offered to support her claim. Respondent, in light of such failure, declined the opportunity to offer any evidence. Consequently, there being no proof, it cannot be factually resolved whether Paul Bryant Sivley, a minor, suffered a "birth- related neurological injury" as alleged in the claim for benefits.
The Issue The issue in this case is whether Jeffrey Puretz, M.D., was a participating physician at the time of the birth of Sophia Talley for purposes of the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated Facts Petitioners Jaime Barnes and Jonathan Talley are the parents/natural guardians of Sophia Talley. The delivery of Sophia was performed by Intervenor, Jeffrey Puretz, M.D. Sophia was born at Lakeland Regional Medical Center (LRMC), a licensed hospital in Lakeland, Florida, on June 14, 2011. Sophia’s birth weight was 2,970 grams. Sophia was a single gestation. Sophia did not suffer from a genetic or congenital abnormality at birth. Sophia’s APGAR scores at birth were 4/8/9. Sophia was delivered by Cesarean section. Sophia is substantially and permanently mentally and physically impaired as a result of an hypoxic injury to her brain which occurred during labor, delivery and in the immediate post- delivery period. Sophia’s medical condition and treatment are documented in the birth records of Lakeland Regional Medical Center. The Petition in this cause was filed within five years from the date of birth of Sophia. Jeffrey Puretz, M.D., provided NICA notice to Jaime Barnes. Jeffrey Puretz, M.D., paid the NICA fee covering the period during which the birth of Sophia took place. NICA issued a certificate of participation regarding Jeffrey Puretz, M.D., for the period of time which included the date of birth of Sophia. At the time of Sophia’s birth, Jeffrey Puretz, M.D., was providing services pursuant to a contract with Central Florida Healthcare, Inc. (CFH). Facts based upon evidence of record At the time he delivered Sophia Talley, Dr. Puretz was employed by Women’s Care of Florida Lakeland OB/GYN. However, Dr. Puretz also provided obstetrical services pursuant to an independent contractor agreement with CFH. Ms. Barnes received her prenatal care from CFH. Dr. Puretz provided services to Ms. Barnes as a result of Ms. Barnes’ status as a patient of CFH, a federally-funded community healthcare provider. The independent contractor agreement between Dr. Puretz and CFH states that Dr. Puretz has been "deemed" an employee of the federal government pursuant to the Federally Supported Health Centers Assistance Act and reads in pertinent part as follows: The practice represents and warrants to the Contractor that it has been “deemed” and that during the term of this Agreement it shall remain “deemed” as an employee of the Federal Government pursuant to the Federally Supported Health Centers Assistance Act of 1995 (Pub. L. 104-73). As such, all of the Practice’s employees and certain independent contractors, as well as the Practice itself, are afforded protection under the Federal Tort Claims Act (FTCA) for claims relating to personal injury, including death, resulting from the performance of medical procedures required under this Agreement. The Contractor, by virtue of his/her independent contractor status in the field of obstetrics and gynecology, will be afforded protection under the FTCA for duties performed under this Agreement. The NICA Notice provided to Ms. Barnes by CFH includes the name of Dr. Puretz as one of the physicians who could be providing obstetrical care to Ms. Barnes. In addition to having a “Certificate of Participation” from NICA, Dr. Puretz appears on NICA’s list of participating physicians, which listed Dr. Puretz as a participating physician for the time period in which Sophia was born. Carol Fox is Associate Vice President of Medical and Academic affairs at LRMC. Her responsibilities include oversight of the medical staff office, which does the credentialing, privileging, and enrollment of medical staff members of the hospital. According to Ms. Fox, a physician must provide evidence of licensure and malpractice insurance to apply for medical staff privileges. The office is also responsible for confirming that physicians with privileges are participants in NICA. Dr. Puretz is an active staff member providing obstetrical services at LRMC. A copy of Dr. Puretz’s memorandum of insurance for medical professional liability insurance is kept on file at LRMC, listing his private practice, Women’s Care Florida, LLC, as the named insured. According to Ms. Fox, LRMC does not consider or rely upon a physician’s employment status when considering the granting of privileges. The Agreement between Dr. Puretz and CFH specifically contemplates that the services provided by Dr. Puretz include both hospital and outpatient services. It is Dr. Puretz’s understanding that he was acting as a federal employee under the contract with CFH when he was providing obstetrical services for the birth of Sophia.
The Issue At issue is whether Christopher White-Maldonado, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Petitioner, Susanna Maldonado, is the natural mother and guardian of Christopher White-Maldonado, a minor. Christopher was born a live infant on January 1, 2000, at Orlando Regional Healthcare System, Inc., d/b/a Arnold Palmer Hospital, a hospital located in Orlando, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Christopher's birth was Virgil Davila, 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 . . . 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. Here, the medical records and the results of a neurological examination by Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology, demonstrate, and Petitioner agrees, that Christopher does not suffer from a substantial mental or physical impairment, much less a permanent and substantial mental and physical impairment, as required for coverage under the Plan.1 (Respondent's Exhibits 1-7, Transcript page 10 and 11). Consequently, the claim is not compensable, and it is unnecessary to resolve whether Christopher's impairments resulted from brain injury caused by birth trauma (oxygen deprivation or mechanical injury), as advocated by Petitioner, or whether they are developmentally based, as advocated by Respondent.
The Issue Whether Darius Jerome Durant has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in their claim for compensation. 1/
Findings Of Fact Darius Jerome Durant is the natural son of Jerome Durant and Marie Deneen Durant. He was born on August 21, 1991, at Winter Haven Hospital, in Winter Haven, Florida, and his birth weight was in excess of 2500 grams. Darius was delivered by Peter Verrill, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan. The neurological examinations of Darius reveal that he suffers from a "mild" right Erb's palsy related directly to an injury to the right brachial plexus he suffered during the course of delivery. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury. Moreover, the impairment from which he suffers is not substantial in nature and, while suffering some motor developmental delay, he was not shown to have suffered any intellectual deficit due to any birth-related complications.
The Issue At issue is whether Christian M. Hernandez, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Preliminary findings related to compensability Miguel Hernandez and Lynn Hernandez, are the parents and natural guardians of Christian M. Hernandez, a minor. Christian was born a live infant on March 28, 2005, at Mount Sinai Medical Center, a hospital located in Miami Beach, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were delivered at Christian's birth by Melvin E. Castillo, 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 . . . 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."1 § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, Petitioners and NICA are of the view that Christian did not suffer such an injury, whereas Intervenors hold a contrary view. Whether Christian suffered a "birth-related neurological injury" To address whether Christian suffered a "birth-related neurological injury," the parties offered the Mount Sinai Medical Center records associated with Christian's birth and immediate newborn course, March 28, 2005, to April 2, 2005 (Joint Exhibits 1 and 2), as well as the Miami Children's Hospital medical records associated with his subsequent care, April 2, 2005, to May 11, 2005 (Joint Exhibit 3). The parties also offered the deposition testimony of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine, and Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, electroencephalography, and neurophysiology. (Joint Exhibits 4 and 5). Dr. Willis reviewed the medical records related to Christian's birth and subsequent development, and accurately summarized his history, as follows: . . . The mother, Lynn Hernandez, was a 36 year old G3 P2 admitted at term in early labor. Her cervix was dilated 2 cms. She was taking Synthroid for hypothyroidism and had a previous Cesarean delivery. Meconium was identified with rupture of the membranes. Ampicillin was given during labor. The fetal heart rate pattern on admission had a normal baseline and was reactive. Variable decelerations, to about 90 bpm, developed during the second stage of labor and vacuum assisted delivery was done for this indication. Vacuum was applied and the baby was delivered on the first pull. Delivery was complicated by a tight nuchal cord and mild shoulder dystocia. McRoberts maneuver was required for delivery of the shoulders. Birth weight was 4,180 grams or 9 lbs 3 ozs. No meconium was identified below the vocal cords by neonatal evaluation. Apgar scores were 7/9/9. The baby was floppy at birth, but responded to resuscitation. From the delivery room, the baby was taken to the NICU for possible sepsis and respiratory distress. Retractions and a rapid respiratory rate were present. Neurologic exam was normal. Oxygen saturation was in the 90's on admission, but the baby was unable to maintain adequate oxygenation with hood oxygen. Oxygen saturation dropped to the 50's and intubation and mechanical ventilation was required shortly after being admitted to the NICU (about one hour). Respiratory distress continued with progressively increasing ventilator settings required to maintain adequate oxygenation. The baby was transferred to Miami Children's Hospital for possible ECMO. Diagnoses included meconium aspiration syndrome, suspected viral pneumonia and significant pulmonary hypertension. Chest tubes were placed for pneumothorax. Respiratory distress worsened and ECMO was started. Head ultrasound was done before ECMO and was normal. The baby suffered an intracranial hemorrhage while on ECMO, which required discontinuation of ECMO. The baby was on ECMO for 32 hours. Serial CT scans showed an evolving intracranial hemorrhage with eventual development of a porencephalic cyst. The baby was discharged home on day 43 of life. (Joint Exhibit 4; See also Joint Exhibit 1; Joint Exhibit 2, Discharge Summary; Joint Exhibit 3, Discharge Summary). Based on his evaluation of the medical records, it was Dr. Willis' opinion that Christian did not suffer a brain injury caused by oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate postdelivery period, and that the intracranial hemorrhage he suffered while on ECMO, was a complication of the blood thinner (anti-coagulant) required for ECMO therapy.2 (Joint Exhibit 4, pp. 13, 14, and 22). Compare, Orlando Regional Health Care System, Inc. v. Florida Birth-Related Neurological Injury Compensation Association, 33 Fla. L. Weekly D2563 (Fla. 5th DCA 2008)(Where infant found to have suffered a "birth-related neurological injury" when it was shown that the infant required active resuscitation from birth until he was placed on ECMO bypass hours after his birth, and that the infant suffered a brain injury caused by oxygen deprivation, which rendered him permanently and substantially mentally and physically impaired, between the time of birth and the time of being placed on ECMO.). Notably, it was not shown through Dr. Willis' testimony or otherwise that Christian's intracranial hemorrhage was caused by oxygen deprivation or mechanical injury, and Dr. Willis offered no opinion regarding the significance of, or any sequelae caused by, the brain injury Christian suffered while on ECMO. (Joint Exhibit 4, p. 14). Dr. Duchowny evaluated Christian on September 28, 2007. Based on his evaluation, as well as his review of the medical records, Dr. Duchowny was of the opinion that Christian's impairments were, more likely than not, the result of a developmentally based brain disorder, as opposed to a brain injury. Dr. Duchowny was also of the opinion that Christian does not have a substantial physical impairment. Rather his motor function is essentially appropriate for age and he does not currently demonstrate, and is unlikely to demonstrate in the future, a substantial mental impairment. (Joint Exhibit 5). When, as here, the medical condition is not readily observable, issues of causation are essentially medical questions, requiring expert medical evidence. See, e.g., Vero Beach Care Center v. Ricks, 476 So. 2d 262, 264 (Fla. 1st DCA 1985)("[L]ay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observable."); Ackley v. General Parcel Service, 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The determination of the cause of a non-observable medical condition, such as a psychiatric illness, is essentially a medical question."); Wausau Insurance Company v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obligated to present expert medical evidence establishing that causal connection."). Here, the opinions of Doctors Willis and Duchowny were not controverted or shown to lack credibility. Consequently, it must be resolved that the cause of Christian's impairments was most likely a developmentally based brain abnormality, as opposed to a "birth- related neurological injury," and, regardless of the etiology of his impairments, he is not permanently and substantially mentally and physically impaired. See Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation.").
The Issue At issue is whether Joshua P. Hammon, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Joshua P. Hammon (Joshua) is the natural son of Jacqueline L. Blalock. He was born a live infant on March 24, 1992, at Tampa General Hospital, a hospital located in Tampa, Hillsborough County, Florida, and his birth weight was in excess of 2,500 grams. Joshua was delivered by a resident physician of Tampa General Hospital, with Michael Parsons, M.D., attending and supervising. Dr. Parsons 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. During the course of labor, delivery or resuscitation in the immediate post-delivery period in the hospital, Joshua received an injury to the brain caused by oxygen deprivation and mechanical injury. At issue here is whether such injury rendered Joshua permanently and substantially mentally and physically impaired. Addressing first the issue of mental impairment, the proof demonstrates that the insult Joshua received to his brain at birth did impact his mental abilities, and contributed to a delay in his cognitive development. The effect of such insult has, however, resolved over time, and in the opinion of Michael S. Duchowny, M. D., a pediatric neurologist associated with Miami Children's Hospital, whose opinion is credited, Joshua does not currently suffer a permanent and substantial mental impairment, and his subsequent mental development will be normal or near normal. Having resolved that Joshua's injury did not result in permanent and substantial mental impairment, it is not necessary to address the degree of physical impairment, if any, Joshua suffered as a consequent of the brain injury he sustained at birth.
Findings Of Fact Based on the stipulation of the parties, the following facts are found: Ameni Selmi and Mondher Tahar Ghali are the parents and legal guardians of Oubey, and are the “Claimants” as defined by section 766.302(3). Oubey incurred a “birth-related neurological injury” as that term is defined in section 766.302(2), on or about January 25, 2018, which was the sole and proximate cause of Oubey’s medical condition. Oubey died during the pendency of this action on June 24, 2020. At birth, Oubey weighed 3,770 grams. Shereen Oloufa, M.D., rendered obstetrical services in the delivery of Oubey and, at all times material to this action, was a “participating physician” as defined in section 766.302(7). Orlando Health Central is a hospital located in Ocoee, Florida, and is the “hospital,” as that term is defined in section 766.302(6), where Oubey was born. Petitioners filed a Petition pursuant to section 766.305, seeking compensation from NICA, and that Petition is incorporated herein by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (the Plan).
