The Issue At issue in this proceeding is whether Britney Palmero, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary matters Manuel Palmero and Mary Jane Palmero are the parents and natural guardians of Britney Palmero (Britney), a minor. Britney was born a live infant on January 11, 1993, at South Miami Hospital, a hospital located in South Miami, Dade County, Florida, and her birth weight exceeded 2500 grams. The physician providing obstetrical services during the birth of Britney was Julio Somoano, 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(7), Florida Statutes. Mrs. Palmero's antepartum course and Britney's birth On January 11, 1993, Mrs. Palmero was admitted to South Miami Hospital for induction of labor. At the time, her estimated date of confinement was January 19, 1993, and her antepartum course was without apparent complication; however, due to Mrs. Palmero's expressed discomfort during the later stage of pregnancy, and the size of the baby (over eight pounds), it was resolved to deliver the baby prior to its due date. Mrs. Palmero's initial admission on January 11, 1993, occurred at or about 7:50 a.m. Thereafter, at or about 8:00 a.m., external fetal monitoring commenced, and revealed a normal fetal heart rate pattern or, stated differently, reflected evidence of fetal well-being. Mrs. Palmero received her first Prostin gel, as the first step in the induction of labor, at 9:45 a.m., and her second at about 11:45 a.m. Following the second Prostin gel, mild irregular contractions were noted; however, her cervix did not progress (she did not go into labor), and at 2:00 p.m. Mrs. Palmero was sent home with instructions to call if she began to experience regular contractions, if the membranes ruptured, or if she observed any vaginal bleeding. During the period she was monitored, and until her discharge at 2:00 p.m., no vaginal bleeding was observed, and the fetal heart rate pattern continued to evidence fetal well-being. Mrs. Palmero returned to labor and delivery at or about 3:21 p.m. complaining of increased "intensity of cramps" and some bloody discharge. A small amount of red vaginal blood, with mucus, was noted; however, vaginal examination revealed the cervix (at 1 centimeter, effacement at 50 percent, and the fetus at station -2) to be unchanged. External fetal monitoring again revealed a reassuring fetal heart rate and, at 3:40 p.m., there being no evidence that she was yet in labor, the instructions previously given were reviewed and Mrs. Palmero was sent home. At or about 8:00 p.m., January 11, 1993, Mrs. Palmero returned to labor and delivery complaining of moderately bright red bleeding. According to Mrs. Palmero, her membranes ruptured at 7:00 p.m. with pinkish fluid noted. Vaginal examination revealed the cervix to be at 1 to 2 centimeters, effacement at 50 percent, and the fetus at station -2. A moderate amount of red fluid with occasional clots was observed by the nurse. Contractions were noted at a frequency of 1 1/2 to 3 minutes, with moderate intensity, and fetal heart rate was noted as stable, with good variability. At 8:45 p.m. it was noted that Mrs. Palmero continued to leak a large to moderate amount of red fluid from the vagina, but no clots were noted. Fetal heart rate remained stable. Dr. Somoano was notified by phone of the patient's status, and he announced he was enroute to the hospital. Dr. Somoano arrived at the hospital at or about 9:15 p.m. Vaginal examination revealed the cervix to be 3 centimeters, effacement complete, and the fetus at station - Fetal heart rate remained stable. Given Mrs. Palmero's presentation on admission, Dr. Somoano entertained the likelihood of abruptio placenta, but, there being no evidence of fetal distress, elected to proceed with a normal delivery. An epidural anesthetic was ordered. Following the epidural, Mrs. Palmero's contractions were less frequent. Given the stability of the fetal heart rate pattern, Dr. Somoano ordered Pitocin to augment labor. Pitocin was started at 10:45 p.m., which brought Mrs. Palmero's contractions closer together; however, given that she began bleeding more and her cervix had only progressed to 5 centimeters, Dr. Somoano elected to proceed by cesarean section to avoid the risk of a complete abruptio. Consequently, at 11:15 p.m., Pitocin was discontinued and Mrs. Palmero was moved to the operating room. During this period, apart from a few mild variable decelerations consistent with cord compression, and one variable deceleration about 45 minutes before delivery, the fetal heart rate remained stable and continued to evidence fetal well-being. The cesarean section was begun at 11:28 p.m., Britney was delivered at 11:29 p.m., and the procedure was complete at 11:45 p.m. During delivery, the cord was noted to be tight, around the baby's neck twice, and around the shoulder. Upon removal of the placenta, a marginal abruptio placenta, 15 to 20 percent, was observed. Following delivery, Britney was handed off to the attending neonatologist, who assigned her Apgar scores of 7 at one minute and 9 at five minutes. The Apgar scores assigned to Britney are a numerical expression of the condition of a newborn infant, and reflect the sum of points gained on assessment of 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 Britney's Apgar score totalled 7, with heart rate and respiratory effort being graded at 2 each, and muscle tone, reflex irritability and color being graded at one each.2 At five minutes, her Apgar score totalled 9, with heart rate, respiratory effort, muscle tone, and reflex irritability being graded at 2 each, and color being graded at 1. Such scores are normal and, while they do not rule out the presence of an existent brain injury or anomaly, the presentation represented by those scores is not consistent with a neurologic insult (injury to the brain) having occurred during the birth process. Britney's course and development subsequent to delivery Following delivery, Britney was transported to the newborn nursery, where she was admitted at "0000" January 12, 1993. Apart from the admitting nurse noting that Britney was a little lethargic and hypotonic, Britney's presentation appeared grossly normal. Dr. Jose Luis, the pediatrician, was notified of Britney's admission to the nursery at 12:40 a.m., January 12, 1993, and his physical examination on that date, as well as his examinations of January 13 and January 14, 1993, described a normal new-born girl without evidence of abnormality. During her stay in the nursery, Britney evidenced no problems, and her course was considered routine. She and her mother were discharged January 14, 1993.3 Britney's early infancy was characterized by good health, and no apparent problems were observed until approximately six to seven months of age. At that time, the parents observed that Britney's right hand was held in a closed fist position. The parents' concern was reported to Britney's pediatrician. He monitored Britney's progress, and in December 1993, referred her for a neurologic consult with Dr. Israel Alfonso at Miami Children's Hospital, Department of Neurology. Britney was examined by Dr. Alfonso on or about January 6, 1994. At the time, Dr. Alfonso noted Britney's general examination as normal; however, her neurological examination revealed the following: . . . neurological examination is characterized by a right hemiparesis that does not involve the face but it does involve the right arm, especially the right hand and also the right leg. Her deep tendon reflexes are within normal range in all four extremities. The right hand is somewhat smaller than the left, especially the thumb. The thumb is kept in a cortical position continuously. She did not use the right hand to grab any object while examined though she occasionally opens that hand at will. IMPRESSION: Right hemiparesis. Dr. Alfonso recommended an MRI of the brain to identify the most likely cause for Britney's presentation.4 The MRI was performed on January 7, 1994, and provided the following findings and conclusions: FINDINGS: There is focal signal abnormality seen in the left posterior frontal parietal region. This is reduced on the T1 weighted images and increased on the T2 weighted study. Also noted is enlargement of the left lateral ventricle. There is prominence of the sulcal folds in this region. Also, there is a discrepancy in the white matter volume with it being reduced on the left. There is a more immature myelin signal on the left particularly in the periventricular region. There is also noted thinning of the corpus callosum in the posterior body. The brain stem shows a reduction in size of the left cerebral peduncle. Evidence of mass effect, midline shift or hemorrhage is not seen. CONCLUSION: Findings as described in keeping cystic encephalomalacia involving the posterior, frontal and anterior parietal region. Secondary diaschisis involving the left cerebral peduncle is noted as well as the posterior body of the corpus callosum. There is signal abnormality identified of the white matter in the left periventricular region and associated with the posterior frontal parietal region. While this may represent delayed maturation of myelin, leukomalacia should also be considered. In addition, there is a reduction in volume of the white matter of the left cerebral hemisphere identified when compared with that on the right. These findings most likely represent a sequelae of a vascular insult. The infarct (loss of brain tissue) in the left cerebral hemisphere, near the left middle cerebral artery, depicted by the MRI is consistent with a vascular insult (cerebral vascular accident or stroke). The vascular insult resulted in focal damage to a selected region of the left hemisphere, and was clearly the cause of the prominent right hemiparesis, evidenced by spasticity of the right arm and leg, with which Britney presents.5 The dispute regarding compensability Given the proof, it cannot be subject to serious debate that Britney suffered an injury to her brain that resulted in neurologic impairment. What remains to resolve is the origin, nature and timing (genesis) of that injury or, more pertinent to these proceedings, whether the proof demonstrates, more likely than not, that the injury Britney suffered was "caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," as opposed to some other genesis.6 Section 766.302(2), Florida Statutes. With regard to such issue, Petitioners contend that the brain injury was caused by oxygen deprivation (a hypoxic ischemic injury), consequent to placental abruption, which occurred during the course of labor, delivery, or resuscitation. In contrast, Respondent contends the proof is not consistent with a hypoxic ischemic injury occurring during the course of childbirth but, rather, with a brain injury resulting from a vascular insult or infarct,7 commonly referred to as a stroke, suffered in the antenatal (prenatal) period. Respondent's view of the proof has merit. The genesis of Britney's brain injury Britney's presentation is consistent with a group of persisting motor disorders appearing in young children, commonly referred to as cerebral palsy, that are characterized by delayed or abnormal motor development, such as spastic paraplegia, hemiplegia, or tetraplegia, which is often accompanied by mental retardation, seizures or ataxia. Such disorders result from brain damage caused by birth trauma, such as that which may result from oxygen deprivation or mechanical injury during labor or delivery, or may be associated with a intrauterine (antenatal) event or pathology, such as a vascular insult or stroke, genetic abnormality, or developmental abnormality.8 Here, the proof is compelling that Britney's brain injury resulted from a stroke suffered in the antenatal period, most likely after 30 weeks gestation and at least two weeks prior to delivery, and that it was not associated with any event occurring during the course of labor, delivery, or the immediate post-delivery period.9 In so concluding, it is initially observed that the results of the neuro-imaging study (MRI) are inconsistent with brain injury resulting from oxygen deprivation. Rather, the neuro-imaging study, as well as Britney's neurologic examination, are consistent with focal damage occasioned by a left hemisphere stroke, as opposed to the bilateral or global damage one would typically associate with an injury occasioned by oxygen deprivation. Moreover, Britney's course pre-delivery and post- delivery was inconsistent with hypoxic or ischemic damage occurring during the course of birth. First the stability of the fetal heart rate during labor and delivery affords objective proof that the marginal abruption Mrs. Palmero suffered did not adversely affect fetal oxygenation. Second, Britney's healthy presentation, as evidenced by her Apgar scores and uneventful hospital course, are inconsistent with the presentation and hospital course one would reasonably expect had the fetus suffered a brain injury, of the magnitude capable of producing the damage evidenced by Britney's MRI brain scan, during labor and delivery. Indeed, had such an event occurred, one would reasonably expect a severely depressed infant on delivery, with an absence of respiratory effort, and whose hospital course would be reflective of neurologic insult, to include a likely onset of seizure activity. Here, Britney presented with normal Apgars, good respiratory effort, and her hospital course reflected an essentially healthy new-born. In summary, the paucity of any evidence to suggest fetal compromise during labor and delivery, the conclusions reasonably drawn from the MRI scan, and Britney's presentation and hospital course present a picture that is wholly inconsistent with a birth-related injury. Moreover, the marginal nature of the placental abruption, given the evidence of fetal well-being during labor and delivery, renders it most unlikely that the abruption played any role in Britney's injury. Rather, giving due regard to the objective evidence, the conclusion is inescapable that the most likely cause of Britney's brain injury was a vascular insult or stroke, which occurred well prior to labor or delivery.10
The Issue At issue is whether Robert Donald Vose, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Dawn Vose is the parent of Robert Donald Vose, a minor. Robert was born a live infant on August 15, 2001, at Baptist Hospital, Pensacola, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Robert's birth was Jill Prafke, M.D., who, at all times material hereto, was a "participating physician" in the 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 or spinal cord . . . 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. To resolve whether Robert suffered a "birth-related neurological injury," the parties offered the medical records related to Robert's birth and subsequent development (Respondent's Exhibit 3), as well as the opinions of Donald C. Willis, M.D., a physician who practices maternal-fetal medicine, and Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. (Respondent's Exhibits 1 and 2). With regard to injury, Dr. Willis was of the opinion that Robert suffered a brain injury (a venous sinus thrombosis and choroid plexus hemorrhage) at or around the time of delivery, that resulted in the development of hydrocephalus. However, he offered no opinion regarding the extent or significance of the brain damage. (Respondent's Exhibit 2). In contrast, Dr. Duchowny evaluated Robert on May 4, 2006, and concluded that his "normal neurological status together with a review of the accompanying medical records does not suggest that he has a substantial mental or motor impairment," as required for coverage under the Plan. (Respondent's Exhibit 1). Dr. Duchowny reported the results of his evaluation, and the basis for his opinion, as follows: I had the pleasure of evaluating Bobby Vose on May 4, 2006. Bobby is a 4-year-old, left-handed, prekindergarten student who was brought by his father for evaluation. This was conducted in my office at Miami Children's Hospital. HISTORY ACCORDING TO THE FATHER: Mr. Vose explained that Bobby was brought in order to "verify his abilities for NICA." He believes that Bobby is developing normally and in fact, is above average in several areas. He will be starting kindergarten in September and has done extremely well in his prekindergarten class setting. In fact, his language abilities are above average for age and he is bilingual with approximately 70 words of Spanish. He is a sociable boy who plays well with other children and his motor milestones have progressed normally. He sleeps through the night. His vision and hearing are intact. There has been no regression and no toxic or infectious exposure. Bobby is on no intercurrent medications. Bobby's PAST MEDICAL HISTORY is significant for placement of a ventriculoperitoneal shunt as a newborn. He apparently experienced an intercranial hemorrhage into the right ventricle and had a shunt placed from the anterior horn of the right ventricle into the peritoneal cavity. His shunt has functioned well and there have been no complications or revisions . . . . Otherwise, Bobby enjoys good health. He is not being followed for any chronic illnesses and has not required medical or surgical intervention subsequent to the newborn period. PERINATAL HISTORY: Bobby was born at Baptist Hospital in Pensacola at 37-weeks gestation. There was an attempt at a vaginal delivery but "the head was wedged" and Bobby was ultimately delivered by emergency cesarean section. He weighed 8 pounds and breathed well at birth. He remained in the hospital for approximately 11 days. GROWTH AND DEVELOPMENT: Bobby's father could not recall Bobby's motor or language milestones except to note that all occurred at the normal time. Bobby is fully immunized and has no known drug allergies. He has had a hernia repaired. * * * PHYSICAL EXAMINATION reveals an alert, well- developed, pleasant and cooperative 4-year- old boy. Bobby weighs 38 pounds. The skin is warm and moist. Bobby's head circumference measures 51.9 centimeters, which is within standard percentiles for age. The fontanels are closed. The ventriculoperitoneal shunt reservoir is palpated over the right frontal bone and shunt tubing is noted in the right anterior lateral neck region and across the thorax and abdomen. There is a healed right, upper quadrant abdominal scar. There are no cranial or facial anomalies or asymmetries. No dysmorphic features or cutaneous stigmata are noted. The neck is supple without masses, thyromegaly or adenopathy. The lung fields are clear and the heart sounds are normal. There is no palpable abdominal organomegaly. Peripheral pulses are 2+ and symmetric. NEUROLOGICAL EXAMINATION likewise discloses no significant findings. Bobby is alert, pleasant and cooperative. He answers all questions fluently with a good fund of information and an age appropriate stream of both thought and attention. He cooperated with all aspects of the evaluation. The cranial nerve examination reveals full visual fields to direct confrontation testing and normal ocular fundi. The optic disc margins are clearly demarcated and there is no optic pallor. There are no significant retinal findings. The extraocular movements are full and conjugate. The pupils are 3 mm and react briskly to direct and consensually presented light. There is blink to threat from both directions. The tongue is moist and papillated and moves well in all plains. The uvula is midline. The pharyngeal folds are symmetric. Motor examination reveals symmetric strength, bulk, and tone. There are no adventitious movements and no focal weakness or atrophy. The deep tendon reflexes are 2+ throughout. Plantar responses are downgoing. Station and gait are appropriate for age. The arm swing is symmetric. Sensory examination is intact to withdrawal of all extremities to stimulation. Neurovascular examination reveals no cervical, cranial, or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Bobby's neurological examination in detail reveals no significant focal or lateralizing findings. The ventriculoperitoneal shunt is likely to be nonfunctional at this point. Bobby's normal neurological status together with a review of the accompanying medical records does not suggest that he has a substantial mental or motor impairment. . . . I, therefore, do not believe that he is eligible for compensation under the NICA statute.
Findings Of Fact Ja’quaylin K. Lewis was born on September 29, 2009, at Holy Cross Hospital in Ft. Lauderdale, Florida. Ja’quaylin weighed in excess of 2,500 grams at birth. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Ja’quaylin’s medical records. In a medical report dated April 24, 2015, Dr. Willis made the following findings and expressed the following opinion: In summary, there was an episode of FHR tachycardia during labor, but overally (sic) the FHR tracing during labor did not suggest any significant fetal distress. The newborn was not severely depressed at birth (Apgar 7/8), but did have respiratory distress that required oxygen. Hypovolemin and intracranial hemorrhage were suspected at time of NICU admission. CT scan of the head within hours of birth identified bilateral acute IVH. I can’t identify the exact time the IVH occurred. However, the IVH was identified by CT scan within hours of birth and must have occurred at some time during labor, delivery or the immediate post delivery period. There was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during (sic) at some time during labor, delivery, or the immediate post delivery period. The oxygen deprivation resulted in bilateral IVH and brain injury. I am not able to comment about the severity of the brain injury. Dr. Willis affirmed his opinion in an affidavit dated May 28, 2015. Dr. Willis’ opinion that there was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery, or the immediate post-delivery period which resulted in brain injury is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate Ja’quaylin. Dr. Duchowny reviewed Ja’quaylin’s medical records and performed an independent medical examination on her on April 8, 2015. Dr. Duchowny made the following findings and summarized his evaluation as follows: NEUROLOGIC EXAMINATION reveals a quiet and attentive child sitting in her mother’s lap who does not communicate well. Ja’Quaylin speaks in single words which are often repetitive. I did not hear her put 2 words together. She does not make emotional responses to social introductions but does fondle a stuffed animal and enjoyed playing (sic) it. There was no drooling. Her attention span appeared appropriate for age and there are no behavioral abnormalities. * * * Motor examination reveals symmetric muscle strength, bulk and tone in the upper extremities. There are no adventitious movements and no focal weakness or atrophy. Full range of motion is also noted in the lower extremities and I was able to dorsiflex both ankles to several degrees above neutrality. Similarly, there is no focal weakness or atrophy in the lower extremities. Coordination and gait: Ja’Quaylin walks in a stable fashion and has bilateral heel strikes. She turns reasonably crisply without ataxia or lateralized instability. She could perform finger-to-nose maneuvers without difficulty. * * * In SUMMARY, Ja’Quaylin’s neurologic examination reveals evidence of a substantial mental impairment with a cognitive level approximating 18-24 months in development. In contrast, motor development has progressed satisfactorily and there is no evidence of a substantial motor impairment. I had an opportunity to review medical records which detailed Ja’Quaylin’s birth at Holy Cross Hospital. She was born with Apgar scores of 7 and 8 at 1 & 5 minutes and had atrial blood gases that were near-normal. Her pulse oximetry levels were between 99 and 100. She was transferred to the Neonatal Intensive Care Unit (NICU) and given supplemental oxygen. There was no evidence of neonatal encephalopathy or multi-organ failure. She evidenced mild hypovolemia with normal liver and renal function tests. Suspected sepsis was treated prophylactically. A head CT scan apparently revealed acute bilateral intraventricular hemorrhage and a small subdural and subarchnoid hemorrhage. The hemorrhagic regions have completely resorbed and follow up MR imaging is unremarkable. Ja’Quaylin thus has a mild spastic diplegia which has responded well to a combination of Achilles heel cord lengthening procedures, physical and occupational therapy. Today’s physical examination and record review did not document a substantial motor impairment nor is there evidence that she sustained neurological injury to her brain or spinal cord due to oxygen deprivation or mechanical injury during labor, delivery or the immediate post-delivery period. For these reasons, I am not recommending Ja’Quaylin for inclusion within the NICA program. Dr. Duchowny’s opinion that Ja’quaylin does not have a substantial, permanent motor impairment is credited. Dr. Duchowny’s opinion that Ja’quaylin’s injury is inconsistent with an injury to her brain or spinal cord due to oxygen deprivation or mechanical injury during labor, delivery or the immediate post-delivery period is at odds with Dr. Willis’ opinion regarding the same issue. However, in order for a birth-related injury to be compensable under the Plan, the injury must meet the definition of a birth-related neurological injury and the injury must have caused both permanent and substantial mental and physical impairment. 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. Duchowny that Ja’quaylin does not have a substantial motor impairment. While Ja’quaylin has a mild spastic diplegia, these deficits do not render her permanently and substantially physically impaired.
The Issue In a short pre-hearing discussion it was determined that the Division of Retirement did not controvert the status of the applicant as being totally and permanently disabled; however, it did controvert whether the disability arose totally out of an in-line duty accident, although the Division of Retirement did not controvert the fact that the applicant had had an accident on duty which had resulted in some degree of physical impairment. Specifically at issue were the affects of a mastectomy and of a degenerative bone disease upon the applicant's total physical disability. It was also agreed that the applicant had no psychological overlay contributing to her disability.
Findings Of Fact The applicant testified that she had hurt her back transferring a patient from the operating table to a stretcher and that as a result she immediately felt a sharp pain in the middle of her lower back radiating upward. She testified that she had later leaned over to take off her operating booties and had been unable to straighten up whereupon she reported to the hospital health center. There she was given some medicine and put on physical therapy. This back pain continued to worsen and although the applicant returned to work during the time between her injury and her application for retirement, she was unable to perform her duties which involved a substantial amount of bending, stooping and similar physical activity. While she was being treated for her back condition over one year after the original injury, she contracted breast cancer, and a radical mastectomy was performed on August 9, 1974. The Division of Retirement has controverted the application primarily because of the encouraging reports of Dr. Parker of May 27, 1974 (Exhibit 7), which was followed by the entirely opposite report of September 3, 1974 (Exhibit 8); the mastectomy having occurred in the interim. The Division of Retirement asserts Dr. Parker's report of September 29, 1974, in which he references the mastectomy, supports the Division's position. "Mrs. Purcell was seen and examined in the office on September 27, 1974. She continues to have intermittent severe back and hip pain. This is somewhat more severe recently, probably because of the possible adjustment caused by her mastectomy. I do not feel she will be able to return to her previous work. The applicant testified that although she had had some pain associated with the surgery but that after she had recovered and received physical therapy for the affected arm, she had not been bothered any further. Avis Garrett as investigator for the County of Dade testified that she had visited the applicant ten times on an unscheduled basis in fifteen months and had almost always found her in bed or at rest. During Garrett's visits the applicant manifested pain by her walk, stance and by complaining of great pain. Garrett visited the applicant within a few weeks after the mastectomy and was uaware of the operation, the applicant not having mentioned or complained of it, until some comment related to it was made as she was leaving. Beyond the passing comment contained in Dr. Parker's medical report quoted above there is no other medical opinion expressed regarding the mastectomy affecting the applicant's condition. Both medical reports of Dr. Parker and dr. Herskowitz, dated September 16, 1975, supporting the application, diagnose the applicant's physical diability as a back injury. In neither case do the doctors' reports indicate the radical mastectomy as contributing to the patient's disability as indicated by their response to questions 2 and 7 (respectively Exhibits 22 and 23). I find that the report of Dr. Parker dated September 29, 1974, quoted above, consistent with the applicant's testimony that she had some difficulty in movement associated with the then recent surgery. Based on the foregoing, I find that the mastectomy is not a contributing factor to the existing physical disability. There is some indication that the lack of activity enforced by the back injury has caused the development of a disease of the bone; however, I find that it is the lack of mobility resulting from the disability which has aggravated or "caused" the disease and not the disease that has caused the disability.
The Issue Whether Faith Lapp, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Linda J. Davidson Lapp is the natural mother and guardian of Faith Lapp, a minor. Faith was born a live infant on January 27, 1998, at Arnold Palmer Hospital for Children & Women (Arnold Palmer Hospital), a division of Orlando Regional Healthcare System, Inc., a hospital located in Orlando, Florida, and her birth weight exceeded 2,500 grams. The physicians providing obstetrical services at Faith's birth were Penny A. Danna, M.D., and Steven Carlan, M.D., who, at all times material hereto, were "participating physician[s]" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Faith's birth At or about 1:25 a.m., January 27, 1998, Mrs. Lapp (with an estimated date of delivery of January 22, 1998, and the fetus at 40+ weeks gestation) presented to Arnold Palmer Hospital, in labor. At the time, Mrs. Lapp's membranes were noted as intact, and vaginal examination revealed the cervix at 4 centimeters dilation, effacement complete, and the fetus at -1 station. Contractions were noted as mild, at a frequency of 2-3 minutes, with a duration of 40 seconds, and fetal monitoring revealed a reassuring fetal heart rate, with a baseline in the 130 beat per minute range. From 1:25 a.m. until 5:00 a.m., when her membranes spontaneously ruptured, Mrs. Lapp's labor progress was steady, and fetal monitoring continued to reveal a reassuring fetal heart rate. Thereafter, to 7:05 a.m., when vaginal examination revealed Mrs. Lapp complete, monitoring continued to reveal a reassuring fetal heart rate, with a baseline in the 150 beat per minute range, and variable decelerations, with contractions, and a good return to baseline. At 7:20 a.m., Mrs. Lapp was noted as pushing, with contractions, and variable decelerations continued without significant change until approximately 8:40 a.m., one hour prior to delivery, when fetal heart rate decelerations became persistent. Thereafter, at 9:25 a.m., the baby was noted to crown; at 9:34 a.m., the baby was noted as bradycardic with a fetal heart rate in the 70 beat per minute range; and at 9:36 a.m., the baby's head was noted as delivered, with the fetal heart rate continuing in the 70 beat per minute range. Delivery was complicated by a shoulder dystocia, and at 9:38 a.m., the labor and delivery record reveals the baby was not yet delivered, and the fetal heart rate was persisting in the 70 beat per minute range. Thereafter, at 9:40 a.m., Faith was delivered. At delivery, Faith was severely depressed (without respiratory effort, reflex, or muscle tone; a color consistent with central cyanosis; and a heart rate under 60 beats per minute), and required resuscitation (ambu bagging with 100 percent oxygen, cardiac compression for 20 seconds, and intubation). Apgar scores were recorded as 1 and 6, at one and five minutes, respectively,1 and cord pH was recorded at 7.28. Following delivery, Faith was transported to the neonatal intensive care unit (NICU), where she remained until January 31, 1998, when she was discharged to her parent's care. Faith's hospital course was summarized in her Clinical Resume (discharge summary), as follows: History . . . . Term newborn female, birth weight 4449 gm, born on 01/27/98 at APHCW. Mother is a 39- year-old gravida 2, para 1, 0 positive, maternal screens negative, uncomplicated gestation, 40+ weeks gestation, rupture of membranes 4 hr., 40 min. prior to delivery. Difficult extraction, vaginal delivery, epidural anesthesia, nuchal cord times one. During process of extraction, left fracture of the humerus. Baby cyanotic and apneic, heart rate 40-60, Ambu bagged with 100%, cardiac compressions given, intubated at one to 1-1/2 min. of life, with 3.5 cm ET tube, responded with 100% 02 by bagging, re- intubated due to air leak with 4.0 ET tube at 7-10 min. of age. Apgars 1 at one min., 6 at five min., cord pH 7.28, birth weight 4449 gm, temperature 98.8?, Accu-Chek 72, mean blood pressure low 30s. Hematocrit 49%. PHYSICAL EXAMINATION: Alert, molding of the head, bruising of the scalp. Pupils reactive to light. Nose and throat normal. Lungs coarse. No murmur. Abdomen soft. Liver 2 cm below right costal margin. Cord - 2 arteries, 1 vein. Female genitalia. Anus patent. Passing meconium. Spine normal. Left arm with swelling and tenderness at fracture site. Decreased tone and reflexes. Poor perfusion. IMPRESSION: Post mature, 41 weeks female Neonatal depression, post difficult delivery. Aspiration. Rule out sepsis. Hypovolemia. Left humerus fracture. PROBLEM LIST: Problem #1: Post mature, 41 weeks female. Problem #2: Neonatal depression. Infant required 100%, pressures of 23/3 and an IMV of 30; pH 7.4, pCO2 22, PO2 393, base excess -8.1. Weaned and extubated to room air by day one. No apnea nor bradycardia. Monitor discontinued. Problem #3: Rule out sepsis. Treated with ampicillin and gentamicin times 72 hr. Blood culture negative. Problem #4: Fracture of the left humerus. Orthopaedic consult obtained, infant was splinted, now is positioned with left upper extremity pinned across chest and is comfortable. For follow-up with Dr. Topoleski. Problem #5: Neurologic. A CT scan of the head shows some central subdural bleeding along tentorium and falx cerebri, small amount, slightly prominent extra-axial space left temporal region.[2] Problem #6: Miscellaneous. Passed ABR hearing screening exam. Annual follow-up is recommended. Infant screening was done 01/28/97. Problem #7: Fluids/electrolytes/nutrition. Feedings were begun on day 2, and advanced. Infant is tolerating ad lib feedings of maternal breast milk or Similac-20 with iron, and nippling well. Physical examination, 01/31/98: Four days of age. Weight 4555 gm, head circumference 33.25 cm. Pink. Anterior fontanelle soft. No murmur. Lungs clear. Abdomen soft and full. Neurologic appropriate. Left arm positioned as noted above. * * * FINAL DIAGNOSIS: Post term, 41 weeks female. Neonatal depression. Rule out sepsis. Left fractured humerus. Subdural bleeding. Follow-up CT scan on March 25, 1998, showed resolution of the subdural hemorrhage. Specifically, the CT scan was read, as follows: The ventricles are normal in size and configuration. There is no midline shift. The attenuation characteristics of the brain are within normal limits for the patient's age and state of maturity. No extra-axial fluid collections are identified. The hemorrhagic changes described on the study of 01/30 have cleared. IMPRESSION: CT appearance of brain within normal limits. Faith's subsequent development Following discharge from Arnold Palmer Hospital, Faith was followed for a number of evolving irregularities. Pertinent to this case, insight into the complexity of her presentation can be gleaned from some observations by a few of Faith's physicians: Michael Pollack, M.D., a pediatric neurologist; Eric Trumble, M.D., a pediatric neurosurgeon; and Harry Flynn, Jr., M.D., an ophthalmologist. Dr. Pollack initially evaluated Faith on March 30, 1998, and described his impressions, as follows: . . . Parents have observed that the patient does not follow although she appears to respond to light. She has been evaluated by Dr. Gold and Dr Richmond and apparently has retinal detachment . . . . A recent film of the patient's left arm apparently demonstrated that her humeral fracture is healing satisfactorily. * * * A recent CT scan of the head shows resolution of posterior fossa hemorrhage. In addition, the fluid collection over the left temporal region has largely disappeared but the left-sided subarachnoid space does remain larger than the right. Physical examination includes a weight of 14 pounds and a head circumference of 35.5 cm. The forehead appears underdeveloped and the head is small in relation to the face. Anterior fontanel is closed. There is ridging of coronal and sagittal sutures. Slight flattening of the right occiput is present and there is corresponding alopecia . . . . IMPRESSION: Perinatal craniocerebral trauma and probable hypoxic ischemic encephalopathy. Retinopathy by history. Evolving microcephaly versus craniosynostosis: Primary microcephaly (failure of the head to grow because of poor brain growth) appears more likely than craniosynostosis . . . . Dr. Pollack summarized his September 29, 1998, evaluation, as follows: Faith is an 8-month-old girl who was initially evaluated in my office 3/98 because of visual impairment and suspected seizures. Her diagnoses include perinatal craniocerebral trauma and a possible hypoxic ischemic encephalopathy. In addition, she had a congenital retinopathy. Her diagnoses at Bascom Palmer Institute were: (1) congenital bilateral retinal detachment and (2) variation of persistent hyperplastic primary vitreous or persistent fetal vasculature bilaterally. Her MRI scan of the head showed an abnormality of the rostrum of the corpus callosum which was thought to fall in the spectrum of septo- optic dysplasia. Her condition, therefore, appears to be due to a combination of congenital anomalies and perinatal factors . . . . In the past few months, the patient has undergone . . . [repair of metopic synostosis]. Although the shape of her head has improved, her head circumference has remained below the 5th percentile, supporting the view that primary microcephaly rather than craniosynostosis was responsible for the small head size in this patient. In addition, ptosis of the right upper lid developed postoperatively. * * * PHYSICAL EXAMINATION: Includes a length of 26.5 inches, weight 18-3/4 pounds, head circumference 38.5 cm. The head appears small in relation to the face. There is unilateral occipital flattening . . . . IMPRESSION: Severe nonprogressive encephalopathy due to perinatal factors as outlined above and a congenital anomaly of the central nervous system. There is severe visual impairment which is due to a retinal anomaly . . . . Her residual microcephaly suggests that deficient brain growth rather than craniosynostosis was responsible for her small head size . . . . Development is globally delayed. The combination of microcephaly, congenital CNS anomalies, visual impairment and global developmental delay in this patient suggests that she is likely to function in the trainable mentally handicapped range. Her motor attainment to date implies that she will walk independently. Following September 29, 1998, Faith was seen by Dr. Pollack on July 21, 1999; April 3, 2000; and July 17, 2001, during which there was no apparent change in Dr. Pollack's impression. Thereafter, the record suggests that following Faith's last visit with Dr. Pollock, her neurology issues were followed in Miami; however, there is no evidence of record regarding those evaluations, if any.3 Following discharge from Arnold Palmer Hospital, Faith was also seen by Dr. Trumble and had serial workups for craniosynostosis. That diagnosis was rejected July 9, 1998, when "a head CT with 3-D reconstruction . . . revealed all sutures to be open with the exception of her metopic suture, which was supposed to be closed at this age." Faith did, however, have "metopic synostosis with a small palpable ridge," which was repaired on July 29, 1998. Faith apparently did well post-operatively, with the exception of right eye ptosis. Of note, an uncontrasted CT scan was reviewed by Dr. Trumble in March 1999, which he noted: "identifies normal morphology without evidence of increased CSF spaces or definite atrophy." On April 20, 1998, Faith's ophthalmologic problems were evaluated by Dr. Flynn, professor of ophthalmology at Bascom Palmer Eye Institute, Miami, Florida. Dr. Flynn described his impressions as follows: . . . [Faith] was examined on 4/20/98 regarding her retinal detachments in both eyes. . . . [The patient] had a traumatic delivery that involved extensive facial, cranial and subconjunctival hemorrhages. The patient has brought with her multiple studies including X-rays, CT scans and other studies that have been reviewed and are present on the chart. The patient is being referred regarding the possibility of any surgical therapy for this patient with bilateral retinal detachments. The ocular examination showed no recordable visual acuity although there did appear to be a response to light in each eye. The pupillary reaction showed a 1+ response to direct light in each eye. The tension by palpation was normal in both eyes. The anterior segment examination showed a white plague-like structure on the back surface of the lens in both eyes. The vitreous cavity was clear with no visible hemorrhage in either eye. The posterior segment examination showed total retinal detachment with dragging of the retina toward the inferior temporal quadrant in both eyes. The retinal folds were drawn forward as well to fibrous tissue inserting on the back surface of the lens. IMPRESSION: Congenital bilateral retinal detachment both eyes. Variation of persistent hyperplastic primary vitreous or persistent fetal vasculature both eyes. RECOMMENDATION: I discussed my findings with the patient [sic] and husband. I indicated that the retinal detachments were inoperable. I indicated that the changes present in the back of the eye could not have taken place in 2 1/2 months in spite of the extent of the trauma at delivery.[4] Apart from the impressions of Faith's treating physicians, some insight into Faith's development may also be gleaned from certain evaluations and testing by the Seminole County Public Schools; including a Report of Adoptive Behavior Testing, dated August 21, 2003. On that test, administered at age 5 years, 7 months, Faith's ability to care for herself and interact with others ("Broad Independence") was measured based on an average of four areas of adaptive functioning: motor skills, social interaction and communication skills, personal living skills, and community living skills. There, Faith's motor skills, which included gross and fine motor proficiency tasks involving mobility, fitness, coordination, eye-hand coordination, and precise movements were said to be comparable to an individual at age 3-1 (3 years, one month). However, the examiner noted the basis for such conclusion, as follows: When presented with age-level tasks, Faith's gross-motor skills are age-appropriate. Age-level tasks involving balance, coordination, strength, and endurance will be manageable for her. When presented with age-level tasks, Faith's fine-motor skills are very limited. Age- level tasks requiring eye-hand coordination using the small muscles of the fingers, hands, and arms will be extremely difficult for her. (Emphasis added.) (Intervenor's Exhibit 4.) Faith's motor skills were also evaluated by the Seminole Public County Schools, and noted in a Physical Therapy Assessment/Evaluation report, dated October 2, 2003, as follows: OBSERVATIONS: Faith was evaluated in a variety of educational settings. She was observed in the classroom, during an obstacle course in another classroom, on the playground and around the school campus. During the obstacle course observation, Faith was participating in tunnel creeping, rockerboard activities, basketball and balance beam walking. Throughout the evaluation, it appeared that Faith had difficulty with some motor tasks due to body and spatial awareness as well as with her speed and intensity of her movements. With this evaluator, Faith followed all directions and seemed eager to please. * * * FUNCTIONAL MOBILITY: Faith ambulates indepen[den]tly in all directions demonstrating a forward lurch, hiking type of gait pattern, head is bent forwards. She is able to walk in the halls, on ramps and on sand on the playground without falling. She is able to creep and knee walk independently. Rises from the floor using a half kneel pattern or through a backwards crab type of pattern. Lowers self to floor with control. Transfers in/out of all chairs independently but teacher reports she often trips over her own feet. Ascends the stairs using a reciprocal pattern without holding the rail, descends using step to step pattern holding the rail. GROSS MOTOR: Faith sits on the floor with good balance in a criss cross position or sidesit position. She low kneels but weight bears on her right side more than her left and high kneels with good balance. She squats to pick an item up off the floor. Is able to jump off the floor and jumps on the trampoline at least 5 times in a row. She is able to walk on the balance beam taking 3 steps independently and attempts to walk backwards on it. On the playground, she is able to climb all structures independently with supervision. Within the school environment, Faith is able to push/pull her exterior doors and turn knobs of all interior doors. FINE MOTOR/VISUAL MOTOR: . . . According to notes from OCPS records, Faith may exhibit some visual motor issues as well as the visual impairment already noted. (Intervenor's Exhibit 4.) 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 in "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. In this case, Petitioner and Intervenor are of the view that Faith suffered a "birth-related neurological injury," as defined by the Plan. In contrast, NICA is of the view that Faith did not suffer a "birth-related neurological injury" since her neurologic impairments are, more likely than not, prenatal (developmental) in origin, and resulted from cerebral malformation, as opposed to brain injury caused by oxygen during labor, delivery, or resuscitation. Moreover, NICA is of the view that Faith is not permanently and substantially mentally and physically impaired. The cause and timing, as well as the significance of Faith's impairment To address the cause and timing of Faith's impairments, as well as their significance, the parties offered the records related to Faith's birth and subsequent development, portions of which have been addressed supra (Joint Exhibits 1-4, and Intervenor's Exhibit 2); a color photograph of Faith taken several hours after her birth (Petitioner's Exhibit 1); the deposition of Leon Charash, M.D., a physician board-certified in pediatrics, who practices pediatric neurology (Intervenor's Exhibit 1); the deposition of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine (Respondent's Exhibit 1); and the deposition of Michael Duchowny, M.D., a physician board- certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. (Respondent's Exhibit 2.) Dr. Willis, whose deposition was offered on behalf of NICA, was of the opinion that the birth records failed to support a conclusion that Faith suffered a brain injury from oxygen deprivation during labor or delivery, but offered no opinion regarding the likelihood of brain injury from oxygen deprivation during the course of resuscitation or from trauma associated with Faith's delivery. Dr. Willis expressed the basis for his opinions, as follows: BY MS. WRIGHT: * * * Q. After reviewing the records in this case, do you have an opinion within a reasonable degree of medical probability as to whether or not Faith Lapp qualifies for compensation under the NICA criteria you just described? * * * A. Yes, it was my opinion that there did not appear to be a loss of oxygen that occurred during labor or delivery that would result in this child's injury. * * * Q. Doctor, would you tell us how it is that you reached such an opinion as that? A. Yes. I reviewed the fetal heart rate monitor strips, which do show fetal heart rate decelerations during the latter few hours of labor. Although they're not persistent decelerations until about the last hour before delivery, and then the fetal heart rate tracing does show persistent variable decelerations . . . . The Apgar scores that the baby had were low, the Apgar score was one and six. Of course, the baby had -- there was a shoulder dystocia at birth resulting in a very difficult delivery. However, the umbilical cord blood gas was normal with a pH of 7.28. And the baby had a course in the hospital that did not suggest an ischemic event during labor or delivery. In other words, did not have seizures in the post-delivery period, no other organ failure like renal failure, hypotension, those types of things, and was discharged home on the fourth day. So looking at all of that, I felt there was not oxygen deprivation during labor or delivery. Q. . . . What is the significance of the fetal heart rate monitoring strips? A. Well, the fetal heart rate monitor strips are consistent with some degree of umbilical cord compression or variable decelerations prior to delivery, and all fetuses react differently to that. But certainly if the fetal heart rate decelerations persist and are significant, then it can lead to a baby that has lack of oxygen at birth. * * * Q. Dr. Willis, can you tell us the significance of the cord blood pH which you referenced earlier as being normal at 7.28? A. Right. Well, if a baby is born with a lack of oxygen, then they will have lack of oxygen and acidosis, which the two go together. And if the baby has lack of oxygen acidosis, then the cord pH should be low. If the umbilical cord blood pH is within normal limits, it would suggest that for whatever fetal heart rate decelerations or whatever Apgar scores that were present, that that wasn't a result of or did not cause or was not a result of lack of oxygen to the baby. * * * Q. Would you anticipate the pH to be abnormal if the deceleration that you saw on the fetal heart monitoring strips had continuously occurred? A. Well, the fetal heart rate monitor strip shows you that in a way that the baby is being stressed, but it doesn't really tell you if the baby is in distress. So different babies tolerate different amounts of fetal heart rate deceleration. So the bottom line here was the umbilical cord pH being normal. I felt that I could not say that those fetal heart rate decelerations that were present in that hour prior to birth really resulted in lack of oxygen to the baby. Q. In other words, you would have anticipated the pH score to be abnormal if the infant had been severely affected by the deceleration? A. That is correct. * * * Q. And the significance of the Apgar scores? A. Well, the Apgar score at one minute tells you how much resuscitation is going to be required for the newborn, and the one was simply one point for fetal heart rate. The baby at birth had no spontaneous respiration, it was pale and it was not moving, and the only points that the baby got -- therefore, was depressed at that time, and the Apgar score was one. The one- minute Apgar score is not a very good indicator of long-term neurologic development though. The five- and the 10 minute Apgar scores are better indicators for that. The Apgar score at five minutes was listed at six. That's still low. We consider Apgar score to be low if it is under seven. So a six is just under the cut-off. If the baby had an Apgar score of seven at five minutes, then it would have been considered a normal score . . . . * * * BY MS. LAPP: Q. [D]o you normally . . . [limit yourself as you did in this case]? A. Normally -- normally, in most cases, I don't limit myself as much as I am with your case. Q. You found that my case was -- A. I found it a little bit confusing. If I saw the fetal heart rate tracing that I saw here and the Apgar scores that I saw and if the cord pH was abnormal, or I didn't see a cord pH, then I would have assumed that there would have been hypoxia to this baby at birth. But the fact that the cord pH was so normal, I really have to stop and question that. So then with that -- and this happens in other cases. So with that then, I have to look and see what else. And from doing this for several years and practicing in my subspecialty, I know that babies that have hypoxic injury to the brain at time of birth or during labor frequently have seizures during the first hour or two after birth and many of the other things that we've talked about. So, for instance, if your baby would have had a seizure disorder an hour or two hours after birth and would have been hypotensive, I might have in that circumstance decided that I would have simply ignored the cord pH result because it wouldn't have fit everything that I see. Q. Could it be possible that . . . [it was] human error . . . ? A. That is why I look at many different things. Again, if I would have seen other things that would have been consistent with hypoxic injury to the brain at birth, then I would have said I am going to discard this cord pH because it just doesn't fit the rest of the picture. And so that is the reason I kind of limited myself to labor and delivery, because the baby is depressed after birth, and I really can't explain that. * * * Q. . . . When would she have had these seizures? A. It would have been after birth, relatively in a short period after birth. I guess what I'm trying to say is from a maternal fetal standpoint, the medicine that I practice, if I see a poor fetal heart rate tracing and a baby with low Apgars and then seizures two hours after birth and then a CT scan done at five or six days of life which shows a cystic structure -- shows maybe brain edema consistent with hypoxic injury, then that all becomes a very, very clear picture for me. In this case, unfortunately, the picture just was not so clear. Because of that, I wanted to limit myself to labor and delivery because I could not make such a clear picture of what happened after that. (Respondent's Exhibit 1.) Dr. Duchowny, whose deposition was also offered on behalf of NICA, was of the opinion, based on his review of the records and his neurologic evaluation of Faith on March 12, 2003, that Faith's impairments, more likely than not, resulted from cerebral malformation, as opposed to brain injury caused by oxygen deprivation during labor, delivery, or resuscitation, and that, regardless of the cause, Faith was not permanently and substantially mentally and physically impaired. Dr. Duchowny expressed the basis for his opinions, as follows: BY MS. WRIGHT: * * * Q. Could you tell me, after reviewing the records concerning the records of both Linda Lapp and also Faith Lapp, your review of all the records you've just named and your examination of Faith Lapp, if you have reached an opinion which is in the reasonable degree of medical probability as to whether or not Faith Lapp sustained permanent mental and physical impairment as a result of her labor and delivery? A. Yes. I believe that Faith does not have a substantial mental or motor impairment and that her neurologic disabilities were acquired in utero and not the result of a birth related neurological injury that occurred during labor, delivery or resuscitation in the immediate post delivery period. Q. Could you tell me what you base that opinion on, Doctor? A. That opinion is based on the medical records which indicated that Faith's labor and delivery were complicated by a fractured left humerus, but that her cord blood pH was normal; her Apgar scores of 1 and 6 were reasonably good; that she did not have findings in the post natal period which are consistent with either mechanical injury or severe hypoxia; and that her evaluations, including my examination, all suggested that the types of neurologic disabilities that she has resulted from developmental abnormalities which occurred during the time that the brain was forming in interuterine life. Q. Doctor, in examining Faith's records, would you comment on the blood cord results? A. Well, her cord pH of the blood gas was 7.28, which is essentially normal. There is no indication of any hypoxia at that point in time when the blood gases were drawn from the cord. Q. Would you comment--you said earlier that her Apgar was relatively normal at 1 and 6. What did you mean by that? A. An Apgar score of 1 at one minute is not an unusual finding in normal deliveries. It reflects obstetrical medication; and I think the important Apgar score is at five minutes, which for Faith was 6. While not being perfect, it certainly is a decent Apgar score and inconsistent with asphyxia. * * * Q. Well, you indicated after that, if I heard you correctly, that you didn't see any post delivery signs of hypoxia. A. That's correct. Faith did require some ventilatory support for the first day, but she never developed systemic signs of hypoxia, which might produce abnormalities of her heart, liver, kidney, lungs, or cardiovascular system. * * * Q. You indicate further that there was no evidence of mechanical injury. Could you tell us for the record what you mean by "mechanical injury?" A. Well, there was no evidence of mechanical injury to the central nervous system, meaning there was no trauma to the brain or spinal cord. Faith did have a left Erb's palsy, which indicates dysfunction in the brachial plexus. I believe this was mechanically induced, but it was outside the central nervous system. * * * Q. Let's now turn to your opinion that Faith does not suffer from a substantial and permanent mental or physical impairment. Could you comment on the reasons why you believe that to be your opinion? A. Yes. At the time that I evaluated Faith last March, she was five years old. She did have a short attention span, and she was an overactive child, but she was able to talk. Albeit with a speech delay, she was able to talk. In fact, could speak in short phrases. She seemed to be socially appropriate. And with some effort, one could actually complete the examination because there would be some interaction between Faith and myself. She wouldn't cooperate for all testing but much of the testing did in fact get done. * * * BY MR. THOMPSON: * * * Q. . . . [Y]ou . . . [agree] that you believe there are neurologic abnormalities. Correct? A. Yes. Q. When you say that they were acquired in utero, you think that those were something that developed prior to the birthing process? A. Yes. Q. Is that what you mean? A. Yes. Q. Do you have a name for whatever that process was that caused that? A. I believe it is cerebral malformation. Q. And is that a chromosomal problem? A. Not usually. Q. What's usually the cause of that? A. Unknown interuterine acquired factors. Q. You have stated that you agree that there were mechanical injuries to this child during the labor and delivery process, correct? A. Yes. Q. You said one evidence of that was the fractured humerus. Correct? A. Yes. Q. She had some abnormalities on CT scan, I believe, some sort of--I can look for it, but you may remember what it was. I've got it right here. "A central subdural bleeding along the tentorium and faux cerebrum of a small amount." Do you recall that CT scan of the head that was taken shortly after her birth? A. Yes. Q. Would you agree that that was the result of a mechanical injury to her head? A. Yes. * * * Q. Would you agree that the pH of 7.28 in the cord blood may not represent what her true level of acidosis was? A. No, I wouldn't agree with that statement. Q. Could that be a lab error? * * * A. Well, anything is possible; but given the Apgar score and given her ultimate clinical findings, I regard that cord blood pH as being accurate. Q. What do you account for her being cyanotic? A. She already had brain dysfunction in utero. So, if you take a newborn, whose brain is not normal, and you provide stress, their response is often abnormal. Q. . . . Would you agree that Faith's laboratory work after her birth did show evidence of problems with her liver? A. No. Q. Are you familiar with what her LDH was? A. Yes. It was elevated, but the rest of her liver functions were normal. Q. Was her AST normal? A. I would have to check. I don't believe it was significantly elevated. Q. Was her ALT abnormal? A. Again, there were mild elevations that I don't think were significant, as I recall. Q. I may have asked you this. I apologize if I have. You do agree that her hydrocephaly is a result of secondary atrophy, as opposed to some other reason? A. No, I don't agree with that. Q. But you disagree with Dr. Trumbull [sic] when he said that in his report of July 9th, 1998?[5] A. Well, you would have to ask Dr. Trumbull [sic] what he meant by that. But my understanding is that there were findings, there were abnormalities, but they would not be classified as atrophy. It would really be failure to develop, which is different. Q. How can you distinguish between atrophy and failure to develop? A. Well, atrophy implies at one point all the brain structures were normal, and then something happened to damage those structures. Developmental problems imply that they never developed correctly in the first place so they never assumed normal proportions. The findings that Faith had on her MRI are more consistent with developmental abnormalities to her brain, so I would not classify them as atrophy. (Respondent's Exhibit 2.) Dr. Charash, whose deposition was offered by Intervenor, and whose testimony was supportive of Petitioner's claim, did not examine Faith, although he was accorded the opportunity to do so,6 but based on the records, he was of the opinion that Faith suffered a "birth-related neurological injury." With regard to brain injury, Dr. Charash was of the opinion that Faith's injury had two components, lack of oxygen and trauma (mechanical injury). As for oxygen deprivation being a likely course of brain injury, Dr. Charash noted Faith's one-minute Apgar score, which reflected severe depression; the need for resuscitation; an increased number of nucleated red cells; a low bicarb; a likely false pH, since Faith was given a bolus of sodium bicarb on delivery without adverse effect; and evidence of kidney malfunction, with transient abnormalities in her liver enzymes. As for trauma, Dr. Charash noted the subdural hemorrhage (cephalohematoma), observed on CT scan at 3 days of age, a likely result of trauma during delivery, as well as the severe bruising of the head documented following delivery. Finally, as further evidence of likely brain injury, Dr. Charash noted that on delivery, Faith's head, at 33 1/4 centimeters, was normal, but within a matter of months failed to grow as one would expect, and that she is now microcephalic. Consequently, Dr. Charash concluded that Faith likely suffered brain injury during labor, delivery, and resuscitation caused by oxygen deprivation and mechanical injury. (Intervenor's Exhibit 1, page 18.) As for the neurological consequences associated with such injury, Dr. Charash offered the following observations: EXAMINATION BY MR. TOWNSEND: * * * Q. Did . . . the lack of oxygen or the trauma affect her mentally in any way? A. Yes. I think it has left her with certain physical stigmata and certain intellectual stigmata. She has certain physical injuries based upon her birth difficulties and she's been left with behavioral and cognitive and learning difficulties; yes. Q. And that's clearly set forth in the records that you've reviewed, the cognitive and the physical problems? A. Yes. Let me deal with them one at a time, if I may. Q. All right, sir. A. The Orange County Public Schools have evaluated her and they find her functioning at percentiles which are far below age expectations. For example, there's a report of the Highland Elementary School in kindergarten described on 8/21/03, it's one of many reports, but this brings us up to five years and seven months . . . . At this point in time she's five years and seven months old. Her ability for functional independence is that of a three-year old which puts her in the lower one tenth of one percent of the population, 0.1, which means that 99 people out of a hundred outscore her in that area. They give her a rating for motor skills. They think her motor skills are three years and one month at an age of five years and seven months, which, again, puts her in the profoundly retarded area in terms of her motor skills, precise movements, coordination, fitness, etc. They have another score of social interaction and communication. Again, she's equivalent in one area to a three year one month old, another area she can pass tests at two years and two months, she has great difficulty with tasks that approach four years and eight months. And so it goes. They basically conclude that in every area she averages out three years and no months. She's five years and seven months. This gives her a quotient of an aggregate of all other adaptive performance in the range of retardation . . . . There is a psychoeducational evaluation done at the Seminole County Public Schools. This is carried out when she's five years and seven months. . . . The conclusion here . . . is . . . that the child is performing in areas that range from the very low category in the WJ-111 cognitive battery. She's considered to be significantly deficient. She's in the second percentile in the Bracken, B-R-A-C-K- E-N, basic concept scale. She's in the fourth percentile in some other test. On the Stanford Binet, in her verbal ability she does better, she's at the 12th percentile, and that's not retarded. . . . Now, her physical problems are of great significance here and, frankly, I think they relate to what I've mentioned before, her problems with balance, equilibrium, coordination, some of which may be tangentially a consequence of her visual impairments, but it is my opinion within a reasonable degree of medical certainty that her major physical problem aside from the structural change in her brain which makes it abnormally very, very small is her blindness or her severe visual impairments. As noted, Dr. Charash was of the opinion that Faith's principal physical injury was her visual impairment, which rendered her substantially physically impaired, and that Faith's visual impairment resulted from bilateral retinal detachment that was caused by mechanical injury during delivery.7 (Intervenor's Exhibit 1, pages 21-31.) Consequently, if credited, Dr. Charash's testimony would support the conclusion that Faith suffered bilateral retinal detachment caused by mechanical injury that rendered her substantially physically impaired, and that such impairment did not result from a brain injury. Notably, other physicians who have examined Faith, as well as the Seminole County School System, have concluded that Faith's gross and fine motor skills, except to the extent they may be diminished because of her visual impairment, are age appropriate. Consequently, given the record, there is no competent proof to support a conclusion that Faith is permanently and substantially physically impaired, because of a brain injury. Here, the opinions of the experts offered by the parties, as well as the other proof of record, have been carefully considered. So considered, it must be resolved that, while Faith's delivery was traumatic and there is evidence to suggest that she may have suffered oxygen deprivation during labor, delivery and resuscitation, as well as mechanical injury, as evidenced by the cephalhematoma, the proof fails to support the conclusion that, more likely than not, any oxygen deprivation or mechanical injury she may have suffered resulted in significant brain injury, or that she is permanently and substantially physically impaired. In so concluding, it is noted that Faith's hospital course post-delivery was not consistent with Faith having suffered an acute brain injury; that the imaging studies do not reveal brain injury, (i.e., evidence of atrophy) and are therefore most consistent with cerebral malformation; that Faith's current deficits have a congenital basis, at least in part; that Dr. Duchowny, as opposed to Dr. Charash, examined Faith, and based on his training and experience is most qualified to address the neurologic issues in this case; and that Dr. Duchowny, as opposed to Dr. Charash, was most candid, and his opinions were most consistent with the other proof of record. Consequently, it is resolved that the more credible proof demonstrates that Faith's impairment, more likely than not, resulted from cerebral malformation, as opposed to brain injury caused by oxygen deprivation or mechanical injury during labor, delivery or resuscitation, and that, regardless of the cause, Faith is not permanently and substantially physically impaired.
The Issue The issue presented for decision in this case is whether Respondent should be subjected to discipline for the violations of Chapter 458, Florida Statutes, alleged in the Administrative Complaint issued by Petitioner on April 24, 1997.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner is the state agency charged with regulating the practice of medicine in the State of Florida, pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 458, Florida Statutes. Pursuant to Section 20.43(3), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, and prosecutorial services required by the Division of Medical Quality Assurance, councils, or boards. At all times relevant to this proceeding, Respondent was a licensed physician in the State of Florida, having been issued license no. ME 00276678. At the time of Patient R.M.’s treatment, Respondent practiced orthopedic medicine. Respondent voluntarily ceased his orthopedic surgery practice in December 1994. He is currently employed as an assistant professor in the Department of Occupational Medicine at the University of South Florida College of Public Health. On July 28, 1993, Patient R.M., a 41-year-old female, presented to Respondent for an evaluation of right knee pain. Patient R.M. told Respondent that on November 1, 1992, she twisted her knee at home and heard a pop. Prior to this event, she had no knee problems. She told Respondent that she went to the emergency room at Brandon Hospital and was evaluated by the emergency room physician. The emergency room physician prescribed pain medication and placed her in a knee brace, gave her crutches, and advised her to see an orthopedic physician. Patient R.M. told Respondent that she had continued to experience swelling, occasional locking and giving-way of her knee over the intervening months. Respondent examined Patient R.M.'s right knee. He noted no obvious effusion or swelling, but did note tenderness over the medial joint line. Respondent noted that the right knee had a "full ROM" (range of motion), but his records did not quantify the patient's range of motion. Respondent noted a "markedly positive" McMurray's test. McMurray's test evaluates the stability of the knee meniscus. A positive McMurray's test is consistent with injury to meniscal structures. Respondent's records indicated that X-rays of the knee revealed no abnormalities. Respondent did not record the details of the X-rays, such as which planes were pictured or whether the X-rays were of the patella femoral joint or a standing lateral view of the knee. Respondent's records indicated to no examination or testing of the patella femoral joint. Dr. Harry Steinman, a board-certified orthopedic surgeon, opined that patella femoral problems can masquerade as meniscal problems in some situations, and that it is thus "mandatory" for the orthopedist to examine the patella femoral joint to rule it out as the locus of pathology. On the basis of his examination and Patient R.M.'s subjective complaints, Respondent's diagnostic impression was a tear of the medial meniscus, and his recommendation was an arthroscopic examination to evaluate and repair the tear. Respondent discussed his examination findings and treatment recommendation with Patient R.M. and explained the surgical procedure, including possible risks, complications, and alternatives. Patient R.M. subsequently signed a surgical consent form acknowledging that Respondent explained the necessity of the surgery, its advantages and disadvantages, its possible complications, and possible alternative modes of treatment. On August 6, 1993, Respondent performed an arthroscopic repair of the meniscus of Patient R.M.'s right knee. Respondent placed two sutures within the body of the meniscus, attaching it to the posterior medial capsule. Respondent made a second incision in the posterior medial aspect of the right knee. The posterior incision allowed Respondent to expose the capsule of the knee joint so that he could directly view the sutures as he passed them from the inside to the outside of the knee capsule, where he tied down the sutures and repaired the torn meniscus. This direct visualization was designed to ensure that any neurovascular structures were not impinged by the sutures. On August 11, 1993, Patient R.M. returned to Respondent for her first post-surgery examination. Respondent noted that the patient seemed to be doing well and her wounds were healing without difficulty. Respondent prescribed a Bledsoe brace, an articulated brace that allows for various ranges of motion, and advised Patient R.M. that she could begin partial weight-bearing with the use of crutches. Respondent advised Patient R.M. to return in three weeks for re-evaluation. Less than two weeks later, on August 23, 1993, Patient R.M. returned, complaining of numbness on the medial side of her right calf. On this visit, Patient R.M. was examined by Respondent's partner, Dr. Stuart Goldsmith, not Respondent. Dr. Goldsmith noted no effusion, redness, inflammation, or signs of infection. Dr. Goldsmith noted that Patient R.M. was wearing the Bledsoe brace "significantly tight," which could explain the numbness in the medial side of her calf. He advised the patient to loosen the straps on the brace, continue with range of motion exercises, and return to see Respondent in one week. Patient R.M. understood and agreed with Dr. Goldsmith's advice, and indicated she would return in one week. On September 1, 1993, Patient R.M. returned to Respondent for evaluation. She complained of decreased sensation along the medial side of her calf. Respondent noted that his evaluation revealed "what I determine to be almost normal sensation." Respondent also noted that he wondered whether Patient R.M. had a little irritation of the infrapatellar branch of the saphenous nerve at the site of the anterior medial stab wound. Respondent recommended that Patient R.M. begin range of motion exercises without the Bledsoe brace and commence physical therapy. He advised her to return in three to four weeks for re-evaluation. Patient R.M. returned two weeks later, on August 15, 1993, complaining that she heard a pop in the knee the night before. She told Respondent that she had not commenced physical therapy, but had been doing quite well prior to hearing the pop. Respondent noted that "sensation has apparently returned to normal." Respondent noted some tenderness along the medial aspect of the knee joint. He noted no effusion and a full range of motion, though again his records did not quantify the range of motion with numeric values. Respondent concluded that Patient R.M. had pulled apart some mild scar tissue, and again recommended commencement of physical therapy. He advised her to return in about one month for re-evaluation. On October 11, 1993, Patient R.M. returned to Respondent for evaluation. She continued to complain of decreased sensation along the anterior medial aspect of her right calf. She told Respondent that she had sensation, but that it was "different." Respondent noted that he wondered if the cause of this complaint might be that a portion of the infrapatellar branch of the saphenous nerve was nicked during surgery. Patient R.M. complained of pain extending from the inferior pole of her patella distally. Respondent noted that this pain was alleviated by bringing the patella medially, and that he had ordered a brace that he hoped would offer relief. Respondent advised Patient R.M. to continue therapy at home and to return in a couple of months. Patient R.M. never returned to Respondent's office. On November 16, 1993, Patient R.M. presented to Dr. John Okun, an orthopedic surgeon, for a second opinion. Dr. Okun took her history and performed an examination, including pinprick and light touch tests, and Tinel's sign, which indicates irritability of a nerve. Respondent testified that he had also performed these tests, but did not note them in his records. Dr. Okun suspected that a branch of the saphenous nerve had either been transected or caught in a suture during Respondent's operation, and believed that Patient R.M. would be best served by an exploration of the posterior aspect of the knee to see if anything could be done to restore nerve function. Dr. Okun noted that he discussed the situation at length with Patient R.M., advised her of the options, and received her assurance that she would consider the options and call him with any problems or changes. On December 3, 1993, Dr. Okun performed a surgical exploration of the nerve. He identified a loop of suture wrapped around the saphenous nerve. He removed the suture and freed the tissues surrounding the nerve. Dr. Okun followed Patient R.M.'s progress until March 1995. She generally reported improvement, but continued to complain of paresthesia and showed positive Tinel's signs in her lower leg. On March 8, 1994, Dr. Okun noted persistent nerve symptoms, and further noted that this was not surprising considering the degree of nerve compression. On May 5, 1994, Dr. Okun noted probable permanent damage to the nerve, but advised waiting another six months to one year before concluding that she had reached maximum improvement. Dr. Okun testified that, during his course of treatment, he never identified a significant patella tracking problem with Patient R.M. Dr. Okun also testified that Patient R.M. had a definite medial meniscus tear, and that "it looks like it was repaired fine" by Respondent's arthroscopic procedure. Dr. Steinman agreed at the hearing that there was a tear of the medial meniscus, and noted that Patient R.M. no longer complained of swelling, giving-way, or locking after the arthroscopic procedure. The evidence at hearing established that the surgical procedure performed by Respondent was within the standard of care. Respondent repaired a tear of the medial meniscus. The experts agreed that impingement of the saphenous nerve by a suture is a known and relatively common complication of the procedure performed by Respondent, despite the precaution of making an incision in the posterior aspect of the knee to visualize the posterior capsule. The experts further agreed that such impingement of the nerve during this procedure does not, of itself, establish that Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Petitioner's allegations thus relate to Respondent's actions prior to and after the surgical procedure itself. The Complaint alleges that, prior to surgery, Respondent failed to perform an appropriate initial examination, failed to appropriately diagnose Patient R.M.'s condition, and failed to attempt conservative therapy prior to performing surgery. Dr. Steinman testified that Respondent should have examined the patella femoral joint in order to rule that out as a cause of the patient's symptoms. While conceding that Patient R.M.'s symptoms were all consistent with meniscal pathology, and that Respondent arrived at the correct diagnosis, Dr. Steinman opined that the patient was entitled to a full examination irrespective of the final outcome, and that the standard of care required an examination of the patella femoral joint. Dr. Steinman's testimony is credited on this point. However, the impact of his critique is lessened by that fact that Respondent's diagnosis was correct, the fact that Dr. Richard Goldberger examined the records and concluded that the patient was not suffering from a patella femoral joint problem, and the fact that Dr. Okun, who actually treated Patient R.M. for more than a year, also found no reason to believe that Patient R.M. had a patella tracking problem. Dr. Goldberger further observed that Patient R.M.'s only complaint regarding patellar pain was made after the surgery, not before. Under the circumstances, the worst that can be said of Respondent is that he went directly to the true cause of Patient R.M.'s complaint without affirmatively ruling out another possible cause. The evidence established that Respondent discussed a conservative course of therapy with Patient R.M. The evidence also established that a conservative course of therapy would have accomplished no tangible improvement in the tear of the medial meniscus. Dr. Richard Goldberger testified that physical therapy was not indicated for this patient. Dr. Goldberger testified that the only reason he would recommend physical therapy in this situation would be for the peace of mind of the patient, to assure a reluctant candidate for surgery that all conservative avenues had been exhausted. Even Petitioner's expert, Dr. Steinman, agreed that he would have discussed arthroscopy with the patient after the first visit, given her stated history and examination results. Dr. Steinman testified that after the initial examination, he would not have been convinced the patient had a meniscal tear, and would have recommended other treatments to confirm the diagnosis. However, he also stated that if Respondent was firm in his diagnosis of a meniscal tear, then diagnostic arthroscopy is what orthopedic surgeons generally would recommend. Respondent noted that Patient R.M.'s right knee showed a normal range of motion, though he did not note numeric values for the range of motion. This was not a deviation from the standard of care because loss of range of motion was not related to Patient R.M.'s pathology. Under the circumstances, it was sufficient for Respondent to note that range of motion was observed and found to be normal. Respondent failed to describe the X-rays he examined in reaching his diagnosis. Again, this was not a deviation from the standard of care because the information to be found in an X-ray was unrelated to the soft tissue injury that Respondent diagnosed in Patient R.M. Under the circumstances, it was sufficient for Respondent to note that X-rays were taken, examined, and found to be normal. In summary, Petitioner failed to establish by clear and convincing evidence that Respondent failed to meet the standard of care as regards his pre-operative treatment of Patient R.M. As to post-operative care, Petitioner alleges that Respondent failed to perform testing on the saphenous nerve when Patient R.M. complained of medial side numbness in the lower right leg, and failed to refer Patient R.M. to a neurologist for evaluation of a possible saphenous nerve injury. As noted above, Respondent employed a surgical technique by which he made a posterior incision in the knee, exposed the knee capsule, passed the suture from the inside to the outside of the knee, tying the suture under direct visualiztion. Respondent contended that use of this technique allowed him reasonably to assume that no injury to the saphenous nerve had occurred due to a suture being tied directly on it. This assumption explains why Respondent's post-surgery notes record his suspicions of a problem with the infrapatellar branch of the saphenous nerve. Respondent's technique would not have allowed him to observe an injury to the infrapatellar branch, because that injury would have occurred during placement of the surgical port on the medial aspect of the knee. Dr. Steinman testified that Respondent's observations were inconsistent with Patient R.M.'s complaints. He stated that the infrapatellar branch comes off the medial kneecap and travels in a medial to lateral direction. If the infrapatellar branch was interrupted, the area of numbness or abnormal sensation would have been on the lateral aspect of the patella, whereas the patient's complaints were along the anterior or medial aspect of the calf and ankle, outside the autonomous area of this nerve. Dr. Steinman testified that Patient R.M.'s complaints could lead only to the conclusion that the sartorial branch of the saphenous nerve had been jeopardized in some way. Dr. Steinman observed that Respondent appeared aware that there was a nerve problem, but that he was in error as to which nerve. Dr. Steinman testified that Respondent should have commenced some form of testing for a saphenous nerve problem no later than the October 11, 1993, visit, when she reiterated her complaints of decreased sensation along the medial aspect of her right calf and Respondent noted for the second time his suspicions regarding a saphenous nerve problem. Dr. Okun testified that if he had performed a meniscus repair and the patient presented these symptoms, he would probably have gone back into the knee and tried to snip the suture or at least explore the incision. However, he also testified that if he were comfortable that he had done everything properly and there was not a very high chance that he had trapped a nerve, he would wait for a period of three to six months to see if the problem would resolve on its own. Dr. Okun was unsure whether a definite standard of care could be stated for this situation. Dr. Okun also testified that whatever damage the nerve sustained was probably done at the time of the initial surgery, and would not get worse from having the constriction of the suture around it. He stated this was another reason why he might wait to perform a second procedure. Dr. Steinman strongly disagreed that the surgeon's degree of confidence in his work should play any role in his post-surgical treatment. The fact that the patient has complained of symptoms in a problematic area is evidence enough that there may be a problem, particularly where the complication is as common as this one, regardless of the surgeon's conviction that his suture missed the nerve. Dr. Goldberger testified that Respondent met the standard of care. Respondent was aware of the complaints of numbness and mentioned them and their severity in his notes. Dr. Goldberger stated that the saphenous is a sensory nerve and is not considered vital. Because the nerve has no motor function, the physician must rely on the subjective complaints of the patient regarding the symptoms. Some patients accept the symptoms and do not feel they are impaired by them. Dr. Goldberger testified that it was reasonable for Respondent to observe the patient's clinical course and pay attention to her complaints, without taking aggressive action. The weight of the evidence leads to a finding that Respondent might have been more aggressive in treating what he suspected was a saphenous nerve problem, and might have referred Patient R.M. to a neurologist to rule out a systemic problem, but that Respondent did not clearly deviate from the standard of care in choosing a more conservative course or failing to make a referral. Dr. Steinman severely criticized Respondent's post- surgical records in their failure to thoroughly document the sensory tests that Respondent testified he performed on Patient R.M. Respondent was not charged with failure to maintain adequate medical records. Thus, it is not necessary to address the merits of Dr. Steinman's critique of Respondent's medical records.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Health, Board of Medicine, enter a final order dismissing the April 24, 1997, Administrative Complaint against the Respondent, Steven A. Field, M.D. DONE AND ENTERED this 6th day of July, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2000. COPIES FURNISHED: John E. Terrel, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Christopher J. Schulte, Esquire Shear, Newman, Hahn, Rosenkranz, P.A. 201 East Kennedy Boulevard, Suite 1000 Post Office Box 2378 Tampa, Florida 33601-2378 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
Findings Of Fact Terrance Drake, Jr., was born on April 27, 2012, at Bayfront Medical Center in St. Petersburg, Florida. Respondent retained Laufey Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to evaluate Terrance. Dr. Sigurdardottir reviewed Terrance’s medical records, and performed an independent medical examination on him on October 14, 2015. In a neurology evaluation based upon this examination and an extensive medical records review, Dr. Sigurdardottir made the following findings and summarized her evaluation as follows: Summary: Here we have a 3-year-5-month-old boy with a near miraculous recovery after a near fatal bradycardia due to likely placental abruption during delivery. He is at this time physically healthy but has a mild microcephaly. He has no obvious motor impairment and likely but not established mild language delay. The patient is doing well compared to his extremely dire situation at birth. Results as to question 1: The patient is found to have no substantial physical or mental impairment. Results as to question 2: There is evidence of near terminal hypoxia at birth resulting in infant being declared deceased, but self resuscitation occurred followed by a period of critical illness. Presumed hypoxic neurologic injury is plausible and timing of injury is in immediate perinatal period. No evidence suggests his injury having occurred apart from the immediate perinatal period. Results as to question 3: We expect a full life expectancy and an excellent prognosis, although mild mental delays relating to attention span, language, and/or behavior cannot be ruled out at this time. In light of the above-mentioned details, and with lack of substantial physical and motor impairment, I do not recommend Terrance being included into the Neurologic Injury Compensation Association (NICA) Program and would be happy to answer additional questions. Dr. Sigurdardottir’s opinion was affirmed in her affidavit dated March 29, 2016. In order for a birth-related injury to be compensable under the NICA Plan, the injury must meet the definition of a birth-related neurological injury and the injury must have caused both permanent and substantial mental and physical impairment. Dr. Sigurdardottir’s opinion that Terrance does not have a substantial physical or mental impairment is credited. 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 that Terrance does not have a substantial physical or mental impairment.
Findings Of Fact Xavier Concepcion was born on September 16, 2014, at Memorial Hospital West in Pembroke Pines, Florida. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Xavier’s medical records. In a medical report dated January 20, 2016, Dr. Willis made the following findings and expressed the following opinion: In summary, labor was complicated by maternal infection (chorioamnionitis) and a non- reassuring FHR pattern prior to birth. The baby was depressed at birth with a cord blood pH of <6.9. Seizure activity developed shortly after birth. MRI was consistent with acute brain infarction. There was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and continuing into the immediate post delivery period. It is possible the brain injury from oxygen deprivation was worsened by infection. I am unable to comment about the severity of the brain injury. Dr. Willis’ opinion that 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 is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate Xavier. Dr. Duchowny reviewed Xavier’s medical records, and performed an independent medical examination on him on May 25, 2016. Dr. Duchowny made the following findings and summarized his evaluation as follows: Motor examination reveals symmetric muscle strength, bulk and tone. There are no adventitious movements and no focal weakness or atrophy. Xavier does not evidence dystonic postures or hypertonicity. He has full range of motion at all joints. Coordination: Xavier walks in a stable fashion and does not fall. He can arise from the floor without difficulty. His balance is good and he has well-developed axial and peripheral balance. He grasps with both hand[s] and moved objects between hands without difficulty. He did not fall and his head control is good. * * * In Summary, Xavier’s neurological examination discloses no significant findings. He is developmentally appropriate with no focal or lateralizing features to suggest a structural brain abnormality. Review of the medical records reveals that Xavier was born at Memorial West Hospital at term and transferred to Joe DiMaggio Children’s Hospital. Maternal membranes were ruptured 30 hours prior to delivery, and maternal chorioamnionitis and fever were treated with penicillin. Xavier was born vaginally and was pale, cyanotic, flaccid and unresponsive. A tight nuchal cord was removed. He weighed 7 pounds 7 ounces and his Apgar scores were 1, 5 and 7 at one, five, and ten minutes. The records indicated that an initial arterial pH was 6.95 but the base excess was unknown. Xavier was intubated at 3 minutes of age, established spontaneous respiration at 25 minutes of age and was subsequently extubated. His CBC revealed a bandemia of 22 on September 22nd. Seizures were noted on the first day of life and there was evidence of a mild coagulopathy. The placenta was positive for E.coli. An MRI scan of the brain revealed multiple acute infarcts in the left temporal, occipital and superior parietal regions and right thalamus and putamen, and a small subdural hematoma. Despite Xavier’s difficulties at birth, he has developed well and does not evidence neurodevelopmental delay. I am therefore not recommending Xavier for compensation within the NICA program. In order for a birth-related injury to be compensable under the Plan, the injury must meet the definition of a birth- related neurological injury and the injury must have caused both permanent and substantial mental and physical impairment. Dr. Duchowny’s opinion that Xavier has developed well and does not evidence neurodevelopmental delay is credited. 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. Duchowny that Xavier has developed well and does not evidence neurodevelopmental delay. There is nothing in Dr. Duchowny’s report that indicates that Xavier has either a substantial mental or physical impairment. Thus, Xavier does not meet the requirement of having a substantial physical or mental impairment.
