The Issue The issue to be determined is whether the infant, Charleston McClain (Charleston), suffered a birth-related neurological injury as that term is defined by section 766.302, Florida Statutes (2018).
Findings Of Fact On March 1, 2019, Charleston was born at Brandon Regional. The birth certificate lists Charleston’s birth weight as four pounds, 15 ounces. The discharge summary from Brandon Regional lists his birth weight as 2.260 kilograms, which is equal to 2,260 grams.
Findings Of Fact Sarah Goncalves-Rodrigues was born on December 1, 2009, at Baptist Medical Center in Jacksonville, Florida. Sarah weighed 3,826 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Sarah. In an affidavit dated March 22, 2013, Dr. Willis opined the following: Based on my education and experience, it is my professional opinion, within a reasonable degree of medical probability, that delivery was complicated by shoulder dystocia, which resulted in brachial plexus injury (Erb's palsy) to the left arm, but there was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the baby's brain or spinal cord during labor, delivery, or in the immediate post delivery period. A review of the file does not show any contrary opinion, and Petitioners have no objection to the issuance of a summary final order finding that the injury is not compensable under Plan. The opinion of Dr. Willis that Sarah did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period is credited.
Findings Of Fact Carmello Manuel-Edward Santiago was born on March 25, 2013, at Sacred Heart Hospital in Pensacola, Florida. He was a single gestation. Based on medical records from Sacred Heart Hospital, Carmello weighed 660 grams at birth. There is no dispute that Carmello did not weigh at least 2,500 grams at birth.
Findings Of Fact Sophia Diolinda Richardson was born on April 8, 2013, at Sacred Heart Hospital in Pensacola, Florida. She was a single gestation. Based on the medical records from Sacred Heart Hospital, Sophia weighed 2,480 grams at birth. There is no dispute that Sophia did not weigh at least 2,500 grams.
The Issue The issue in this case is the amount of attorneys' fees to be awarded to Petitioner's Counsel pursuant to the Mandate of the Third District Court of Appeal entered on Case No. 3D11- 1621, as well as the Order in that case granting Appellee's Motion for Attorneys' Fees as a Sanction Pursuant to Fla. R. App. P. 9.410(b) and § 57.105, Fla. Stat.
Findings Of Fact On November 22, 2010, Petitioner filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. On May 20, 2011, a Summary Final Order of Dismissal was entered dismissing Petitioner’s Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq., finding that the claim was not compensable and was barred by section 766.313. On June 16, 2011, the University of Miami, d/b/a University of Miami School of Medicine appealed the final order to the Third District Court of Appeal. On June 20, 2011, Leslie Caroline McLeod, M.D.; Nathalie Dauphine McKenzie, M.D.; Marion Frederic Colas-Lacombe, M.D.; Jerry M. Giles, M.D.; Hugo Gonzalez-Quintero, M.D.; and the Public Health Trust of Miami-Dade County, d/b/a Jackson Memorial Hospital filed a Notice of Joinder of the Notice of Appeal of the Final Administrative Action. The defendants in the medical practice action filed a Motion for Stay Pending Appeal in the circuit court. By letter dated June 22, 2011, Petitioner sent a letter to the defendants in the medical malpractice action, who were also the appellants in the appeal. The letter advised that Petitioner would be filing motions for attorneys’ fees if the defendant/appellants did not withdraw the notice of appeal, joinder of appeal, and motion for stay. Copies of the motions for fees, which Petitioner intended to file in the Third District Court of Appeal and the circuit court accompanied the letter. The letter did not mention fees for the administrative action which was on appeal. On January 3, 2012, Petitioner filed Appellee’s Motion for Attorneys' Fees as a Sanction Pursuant to Fla. R. App. P. 9.410(B) and § 57.105, Fla. Stat., seeking attorneys’ fees as a sanction against Appellants/Intervenors. The Third District Court of Appeal granted the motion and remanded the case to the Division of Administrative Hearings to conduct a hearing on the amount of fees to be awarded. On February 4, 2013, the final hearing on the fees awarded by the Third District Court of Appeal commenced. On the same date, Petitioner filed Petitioner’s Motion for Attorneys’ Fees and Costs Pursuant to Florida Statutes § 57.105 with the Division of Administrative Hearings. The motion seeks attorneys’ fees for the administrative action on Petitioner’s claim for benefits under the plan administered by the Florida Birth-Related Neurological Injury Compensation Association. A Final Order on Fees was entered on May 23, 2013, which determined the amount of attorneys’ fees to be awarded to Petitioner pursuant to the order of the Third District Court of Appeal. Included in the amount awarded were fees associated with the Notice of Appeal and the Motion for Stay Pending Appeal.
The Issue At issue in this proceeding is whether Jahmel Henry, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact 1. Gwendolyn Henry and Melvin Henry are the parents and natural guardians of Jahmel Henry (Jahmel), a minor. Jahmel was born a live infant on October 12, 1998, at South Broward Hospital District, d/b/a Memorial Hospital West, a hospital located in Pembroke Pines, Florida, and his birth weight was in excess of 2,500 grams. 2. The physicians providing obstetrical services during the birth of Jahmel were Stephen P. Schneider, M.D., Jose M. Santos, M.D., and Marvin Newman, D.O., and they 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. Coverage under the Plan 3. 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." Jahmel's presentation 4. On January 8, 2001, following the filing of the claim for compensation, Jahmel was examined by Michael S. Duchowny, M.D., a board-certified pediatric neurologist associated with Miami Children's Hospital, Miami, Florida. The results of that evaluation were reported, as follows: HISTORY ACCORDING TO MR. AND MRS. HENRY: The parents began by explaining that Jahmel's major problem is that he cannot elevate or stretch his right arm. This problem has been present essentially since birth and has not responded to nerve graft surgery in May 1999. Jahmel has had persistent weakness of the right upper extremity, primarily in the shoulder, although he has had some return of hand and finger movement. He is an obligate left hander, performing virtually all tasks primarily with his left hand. He does have some dexterity on the right, but this is limited by his reduced range of motion at the shoulder. Jahmel's left arm is normal and he has not had any problems in his legs. He has received physical therapy until six months ago and the parents are requesting that additional therapy be performed. There has been no subsequent trauma to the arm and Jahmel is not experiencing significant pain. Jahmel was born at .. .- Memorial Hospital with delivery complicated by shoulder dystocia. He additionally had meconium aspiration syndrome and required ECHMO for several weeks. Jahmel ultimately remained in Newborn Intensive Care for approximately 3 months before being discharged. His birth weight had been 9-pounds. Jahmel's EARLY GROWTH AND DEVELOPMENTAL MILESTONES were on time in that he walked and talked at a year. He is now toilet trained. All of his immunizations have been up-to-date and he has no significant allergies. Jahmel's overall health has otherwise been good. There are no problems with his vision or hearing and his sleep habits are quite stable. His appetite has been steady and he is on no intercurrent medications. He has had the usual childhood infections. FAMILY HISTORY: The father is 31; the mother is a 33 year old gravida 1, para 1, AB2. Two half brothers from the father's previous marriage are 14 and 8 and healthy. There are no family members with extremity palsy, neurodegenerative illnesses, mental retardation or epilepsy. PHYSICAL EXAMINATION reveals Jahmel to be an alert, pleasant and cooperative toddler. His weight is 29-pounds and height 31-inches. There is midline anterior cervical sebaceous cyst. He has no cutaneous stigmata, dysmorphic features or heterochromia i'ridis. The head circumference measures 48.2 cm and there are no significant cranial or facial anomalies or asymmetries. The neck is supple without adenopathy. The cardiovascular, respiratory and abdominal examinations are unremarkable. The peripheral pulses are 2+ and symmetric. NEUROLOGIC EXAMINATION reveals an apprehensive toddler who is quite fearful and fends off much of the examination. Jahmel did not speak in words during the examination to me, but spoke to his mother and father on several occasions. He maintains an appropriate stream of both thought and attention. The cranial nerve examination reveals full visual fields to direct confrontation testing and a brief, but normal fundoscopic examination. The pupils are 2 to 3 mm and react briskly to direct and consensually presented light. There is good visual tracking. The tongue movements are well coordinated and the uvula is midline. Motor examination is significant for a prominent asymmetry of the upper extremities. There is a prominent downward slope to the right shoulder and decreased size of the right upper extremity compared to the left. Range of motion is clearly limited at the right shoulder with the shoulder being held in a position of internal rotation, adduction and flexion. The elbow is slightly flexed. In contrast, there is full range of motion at the wrist and fingers. Mild to moderate winging of the scapula is noted and there is slightly decreased muscle bulk along the mesial border. The healed scars over the right supraclavicular area and right gastroc region are noted. The sensory examination could not be elicited reliably. The deep tendon reflexes are 1+ on the left, but are absent on the right. In comparison, deep tendon reflexes are 2+ in the lower extremities. There are no abnormalities of movement, muscle bulk or tone in the left upper extremity or legs. The right arm tone is slightly diminished distally. Individual finger movements on the right are intact with thumb and finger opposition. A pincer grasp is noted. The gait is stable and symmetric. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Jahmel's neurologic examination in detail reveals findings that are referable to the right upper extremity, consistent with right Erb's palsy. He does not appear to of achieved significant benefit from his surgical intervention and has a noticeable limitation at the shoulder. I believe that this impairment is likely to be permanent. In contrast, Jahmel's cognitive status appears well preserved. 5. An Erb's palsy, such as that evidenced by Jahmel, is a weakness of an upper extremity due to damage of the nerve roots of the upper brachial plexus, and does not involve the brain or spinal cord. Moreover, Jahmel's mental or cognitive status has been described as essentially normal. Consequently, while Jahmel may have suffered a mechanical injury, permanent in nature (to his right brachial plexus) during the course of birth, he does not (for reasons appearing more fully in the Conclusions of Law) qualify for coverage under the Plan.
Conclusions For Petitioner: Andrew Needle, Esquire Needle, Gallagher & Areces, P.A. 1401 Brickell Avenue, Suite 900 Miami, Florida 33131 For Respondent: James C. Pilkey, Esquire 1000 South Andrews Avenue Fort Lauderdale, Florida 33316-1038 For Intervenors (Doctors) : Darlene Stosik, Esquire Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A. 888 East Las Olas Boulevard, Suite 400 Fort Lauderdale, Florida 33301 For Intervenor (Hospital): Gary S. Genovese, Esquire Conrad & Scherer Post Office Box 14723 Fort Lauderdale, Florida 33302
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. 13
Findings Of Fact Kelia Santiago was born on October 25, 2011, at Tampa General Hospital in Tampa, Florida. She was a single gestation. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Kelia. In a report dated December 11, 2014, Dr. Willis described his findings in pertinent part as follows: Birth weight was reported as 2210 grams and 2201 grams in different sites in the mother’s medical records. Apgar scores were not given. Cord blood pH was normal at 7.29. No records were available from the NICU for review. * * * In summary, there was no fetal distress during labor. Delivery was by repeat Cesarean section with normal blood gas. Birth weight was <2,500 grams. NICU records were not available for review. This baby was born prematurely due to premature rupture of the membranes. Birth weight appears to be less than 2,500 grams. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor or delivery. NICU records were not available, so I have no comment about oxygen deprivation in the post delivery period. Birth weight was <2,500 grams. In an affidavit dated January 7, 2015, Dr. Willis reaffirmed his opinion 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, and his review of the medical records revealed that the birth weight was less than 2,500 grams. A review of the file reveals that no contrary evidence was presented to dispute Dr. Willis’ finding that Kelia’s birth weight was less than 2,500 grams, or his opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the brain during labor or delivery. Dr. Willis’ opinion is credited.
The Issue At issue in the proceeding is whether Jordan Mears, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Theresa Mears is the mother and natural guardian of Jordan Mears (Jordan), a minor. Jordan was born a live infant on January 6, 1999, at Ocala Regional Medical Center, a hospital located in Ocala, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Jordan was Sarojini Pericherla, 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 claimant demonstrates, 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, Jordan's mental and physical presentation is dispositive of the claim and it is unnecessary to address the cause or timing of any injury he may have suffered. To address the compensability of the claim, Petitioner offered selected records related to Jordan's birth and subsequent development. Among those records were certain assessments and opinions of Jordan's treating pediatric neurologist, Dr. Bernard L. Maria. The most recent assessment of record is dated October 18, 1999, and states: SUBJECTIVE: Patient is a 10-month-old white male who is here for return visit . . . . The patient is being followed by PT with one visit per week. The patient is assessed by PT to be at a 5-6-month-old developmental age for motor skills. Patient has persistently deceased truncal tone. Patient still exhibits inability to sit without assistance or to stand. The patient is also unable to crawl. The patient is able to grab objects with either hand and to pass these objects from hand to hand. The patient is also able to hold a bottle on his own. The patient is mobile by rolling. Patient exhibits good appetite per mom with good weight gain. The patient is on formula cereal and soft foods. The patient babbles but as yet has been unable to articulate words. OBJECTIVE: On examination today, he is alert; he tracks; he turns his head appropriate; has good reciprocal facial responses; exhibits good range of motion with good muscle strength and bulk in the extremities. The patient still exhibits central hypertonia with marked truncal instability. The patient is unable to sit without assistance. Patient is able to stand with assistance; however, he has difficulty moving from the standing to sitting position. His legs exhibit transient stiffness. The patient exhibits no clonus, nor does he exhibit spasticity. The patient also does not exhibit any contractures; however, the patient exhibits brisk reflexes bilaterally of the lower extremities. IMPRESSION/PLAN: Based on history, physical exam, and persistent developmental delay, the patient is assessed as having cerebral palsy . . . . Previously, on April 14, 1999, at three months of age, Dr. Maria had observed that Jordan "had mild to moderate central hypotonia with brisk reflexes in the legs," and that he was "at high risk for mild cerebral palsy." Given Jordan's presentation on October 18, 1999, Dr. Maria's expectations, as expressed in his report of April 14, 1999, were apparently accurate. Subsequent to the filing of the claim in this case, Jordan was examined by Michael J. Duchowny, M.D., a pediatric neurologist board-certified in child neurology. The results of that examination, which occurred on January 24, 2000, were reported as follows: HISTORY ACCORDING TO MRS. MEARS: . . . Jordan . . . [has been] diagnosed with "mild cerebral palsy." He is only now beginning to pull himself up for the first time and has been noted to have left sided weakness. Fisting of the left hand was not noted until 1 month ago. Jordan attends the ARC Program Occupational and speech therapy should start soon. * * * PHYSICAL EXAMINATION reveals an alert, active, well developed and well nourished 13 month old infant. The weight is 17-pounds and height 27-inches. His head circumference measures 45.8 cm, which approximate the 3rd percentile for age. There is one cafe-au- lait spot over the left buttocks region. No other neurocutaneous stigmata are noted. The anterior fontanelle is just opened and flat. There is no significant cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are unremarkable. There is an area of fungal rash over the left temporal scalp. NEUROLOGIC EXAMINATION reveals Jordan to be overactive with a short attention span. He has frequent grasping and a prominent sucking reflex. He makes cooing sounds. The tongue movements are poorly coordinated and he demonstrates frequent drooling. There is good central gaze fixation with conjugate following movement. The pupils are 3 mm and briskly reactive to direct and consensually presented light. Fundoscopic examination is unremarkable. The motor examination reveals generalized static hypotonia of all extremities with dynamic increases in tone. There are no fixed contractures and there is full range of motion at all joints. No atrophy, weakness or fasciculations are noted. Jordan tends to grasp with either hand and transfers readily. The sensory examination reveals withdrawal of all extremities to noxious stimulation. Jordan is able to sit without support and stands with only a small debris of support. The spine is straight without dysraphic features. The deep tendon reflexes are brisk at 2 to 3+ and there are bilateral Babinski responses. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. Jordan apparently had 2 MRI scans and several EEG's which have been unremarkable. In SUMMARY, Jordan's neurologic examination in detail reveals changes in muscle tone and abnormal reflexes. His development at this point is only slightly behind age level. There are no focal or lateralizing signs. In Dr. Duchowny's opinion, Jordan's neurologic examination revealed minimal changes in muscle tone and no evidence of widespread brain damage. Dr. Duchowny was of the opinion that Jordan's developmental delays will continue to improve. Consequently, Dr. Duchowny concluded that Jordan does not "suffer[] from either a substantial or permanent mental or motor impairment." The most recent observations regarding Jordan's presentation were offered by Ms. Mears at the hearing held on October 11, 2000. At the time, Ms. Mears made the following observations: . . . My son is 22 months old. He does not speak. The special needs program that he is in is teaching him sign language. He did not begin walking until May. He is making quite a bit of progress but they still are putting him anywhere from four to six months delayed . . . . Here, it must be resolved that the proof fails to demonstrate, more likely than not, that Jordan is "permanently and substantially mentally and physically impaired," as required for coverage under the Plan. Indeed, among those most qualified to address the issue, Doctors Maria and Duchowny, are fairly consistent in their neurologic findings, as well as their conclusions that Jordan's impairment can best be described as mild.
The Issue The issue to be determined is whether the infant, Cory M. Irvin (Cory), suffered a birth-related neurological injury as that term is defined by section 766.302, Florida Statutes (2016).
Findings Of Fact On July 10, 2016, Coral Perdomo gave birth to a baby boy named Cory. Both the Amended Petition and the Discharge Summary from Winnie Palmer list Cory’s birth weight as 1,552 grams.
