The Issue Whether Isaac Castro and David Castro, deceased minors, qualify for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Milagros Magaly Castro and William Marcelo Castro are the natural parents of Isaac Castro and David Castro, deceased minors, and the Personal Representatives of their deceased sons' estates. Isaac and David were the product of a multiple (twin) gestation, and were born live infants on November 25, 2004, at Palmetto General Hospital, a hospital located in Hialeah, Florida, each with a birth weight exceeding 2,000 grams. David died December 7, 2004, and Isaac died January 12, 2005. The physician providing obstetrical services at Isaac's and David's birth was Monica Daniel, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Isaac's and David's birth At or about 1:50 p.m., October 11, 2004, Mrs. Castro, aged 40, with an estimated delivery date of December 30, 2004, and the twins at 28+ weeks' gestation, presented to Palmetto General Hospital on referral from her perinatologist for inpatient management, with concerns of elevated blood pressure (suspected pregnancy induced hypertension), and increased creatinine levels. At the time, Mrs. Castro's pregnancy was considered high risk, with advanced maternal age and twin gestation, and was further complicated by insulin dependent gestational diabetes and hypothyroidism. Nevertheless, numerous assessments during the term of her pregnancy were reassuring for fetal well-being, as was her initial assessment at Palmetto General Hospital. Mrs. Castro was admitted to the hospital at 3:00 p.m., that day, and her pregnancy was managed without apparent adverse incident until November 24, 2004, when, with the twins at 34 6/7 weeks' gestation, Mrs. Castro demonstrated severe preeclampsia, with increasing creatinine levels (worsening renal status). Notably, however, fetal monitoring between 1:01 p.m., and approximately 4:07 p.m., that afternoon,5 provided reassuring evidence of continued fetal well-being.6 Given her condition, Dr. Daniel ordered Mrs. Castro admitted to labor and delivery, where she was received at 9:10 p.m., for cesarean section delivery. Notably, Dr. Daniel's admission orders included a requirement for external fetal monitoring. However, that order was not followed, and no fetal monitor strips exist that would aid in assessing fetal status subsequent to 4:07 p.m., November 24, 2004. The progress notes do, however, include a few entries that bear on the issue. At 9:10 p.m., on admission to labor and delivery, the nurse noted that Mrs. Castro reported normal fetal movement, and denied pain, vaginal discharge, or blurred vision. Thereafter, at 10:30 p.m., the nurse noted that Mrs. Castro showed abnormal lung sounds, with crackles bilaterally to the bases, and dyspnea (difficult or labored breathing). Mrs. Castro was provided supplemental oxygen by nasal cannula (NC). At 1:00 a.m., November 25, 2004, while being prepared for surgery, the nurse noted that Mrs. Castro was slightly dyspneic and still receiving supplemental oxygen, NC at 2 liters. Assessment revealed reassuring fetal heart tones, with "FHT's via US on right upper quadrant in the 130's [and] FHT's via US on lower left upper quadrant in the 120's." Otherwise, the records provide no information regarding fetal status until the twins were delivered.7 At 1:35 a.m., Mrs. Castro was noted in the operating room, with an oxygen saturation level of 92 percent. She was given oxygen by mask, and by 1:45 a.m., her saturation levels were at 100 percent. No fetal heart tones were obtained "due to maternal instability," and, at 1:56 a.m., the incision was made (delivery began), and at 2:01 a.m., Isaac (identified as Twin A in the medical records) and at 2:02 a.m., David (identified as Twin B in the medical records) were delivered, severely depressed. Isaac's Apgar scores were noted as 1, 2, 2, 2, 2, 2, and 5, at one, five, ten, fifteen, twenty, twenty-five, and twenty-eight minutes, respectively.8 David's Apgar scores were noted as 3, 5, and 6, at one, five, and ten minutes, respectively.9 Isaac's delivery and hospital course are documented in his Death Summary, as follows: BIRTH DATE: 11/25/2004 [TIME 02:01 hours] WEIGHT: 2.275kg GEST AGE: 35 weeks GROWTH: AGA Amniotic fluid was meconium stained. Presentation was vertex. The patient was born in the delivery room by emergent cesarean section under spinal anesthesia for maternal hypertension and increasing creatinine. The patient was born first of twins. Apgar scores were 1 at 1 minute, 2 at 5 minutes and 2 at 10 minutes. At delivery, the patient was cyanotic, floppy, apneic and bradycardic. Treatment at delivery included oxygen, stimulation, oral suctioning, bag and mask ventilation, endotrachcal tube ventilation, epinephrine and cardiac compression. At birth baby was cyanotic, absent breathing effort, bradycardic (in the 20's-30's). Baby noticed to have particulate meconium. Oropharynx was suctioned by wall upon head delivery. Bag mask ventilation was started with no improvement in respiratory effort. Baby was intubated and epinephrine was given x 3 by EET but still no improvement in heart rate (in the 20's-30's). UAC line was placed while baby continued being bagged, and epinephrine was given IV x 2. Also 6 Meq of sodium bicarbonate was given x 2 plus one bolus of 4.5 Meq. Saline solution bolus of 20cc was given x1 . . . . On minute number 28-29 of life an adequate heart beat was finally noticed with improvement in color. Tone and activity still poor and no response to pain stimuli. ABG form UAC showed a pH=6.7 PCO2=47 PO2-380 BE=-31 HC03=5.6 . . . . ADMISSION DATE: 11/25/04 The patient was admitted immediately following delivery. Indications for admission included metabolic acidosis, possible sepsis, respiratory distress, prematurity and perinatal depression. Upon admission to NICU mechanical ventilation was started. Chest XR compatible with HMD vs. pneumonia. No air leak. Infasurf was given x 1 with good response, and several HCO3 corrections were needed. ADMISSION PHYSICAL EXAM . . . OVERALL STATUS: Critical - initial NICU day. BED: Radiant warmer. TEMP: Stable. HR: Stable. RR: Unstable. BP: Stable . . . . CONDITION: Acrocyanotic and depressed, intubated, hypertonic extremities. HEENT: Soft fontanelles, sluggish pupil reaction to light, ETT in place. RESPIRATORY: Minimally depressed air exchange and decreased breath sounds bilaterally (improved after surfactant administration). CARDIAC: Normal sinus rhythm . . . . NEUROLOGIC: Depressed mental status. Severely decreased muscle tone initially and hypertonicity noticed after NICU admission. Seizures noticed (lip smacking and tonic- clonic seizures on all 4 extremities > on the R hand) . . . . * * * RESOLVED DIAGNOSES DIAGNOSIS #1: RESPIRATORY DISTRESS ONSET: 11/25/2004 RESOLVED: 1/12/2005 * * * COMMENTS: Developed respiratory distress at birth. Chest Xrays compatible with HMD vs pneumonia. Initially severe respiratory acidosis. Improved with Infasurf x 1. On vent since birth, self-extubated during nursing touch-time on 12/5, was extubated for 19 hrs on nasal cannula but was reintubated on 12/6 for PC02 70 felt to be secondary to mucous plug. He has no gag reflex and has poor control of respiratory secretions reason why he has been kept on mechanical ventilation. He is still ventilator dependent, was on ETT CPAP+5 and after an extubation attempt on 1/2 he failed oxyhood and was reintubated on 1/3/05. now extubated to nasal cannula. * * * DIAGNOSIS #3: POSSIBLE SEPSIS ONSET: 11/25/2004 RESOLVED: 12/6/2004 * * * COMMENTS: Completed a 10 day course of antibiotics for suspect sepsis due to unknown GBS, respiratory distress, and severe metabolic and respiratory acidosis. There is no clinical evidence of sepsis at this time. * * * DIAGNOSIS #10: SEVERE HYPOXIC-ISCHEMIC BRAIN INJURY ONSET: 11/25/2004 RESOLVED: 1/12/2005 PROCEDURES: cranial ultrasound on 11/25/2004 (unofficially no bleed); MRI scan on 12/3/2004 (findings suggesting ischemic encephalopathy, normal size ventricles, no mass effects or midline shift) COMMENTS: Adequate heart rate not obtained till 28-29 minutes of life. He presented with seizures and an abnormal neurologic exam and abnormal EEG findings. The pediatric neurologist impression was of a severe hypoxic ischemic encephalopathy with multifocal seizures. No clinical neurologic deterioration has been noted recently. The MRI was compatible with ischemic encephalopathy. Ped neurologist has been following the baby with us. No neurological improvement has been noted recently. . . . Baby remains unresponsive, fixed pupils, minimal spontaneous breathing, does not have any spontaneous movement. No new changes noted recently. The baby has been unstable and recommended MRI of the brain was able to be done due to the critical condition of the infant. DIAGNOSIS #11: SEIZURES ONSET: 11/25/2004 RESOLVED: 1/12/2005 * * * COMMENTS: The pediatric neurologist impression is of a severe hypoxic ischemic encephalopathy with multifocal seizures. Baby was initially noted to be lip-smacking shortly after admission to NICU then started with tonic-clonic movement of all four extremities > on the R hand. Initially treated with phenobarbital and Versed. Phenobarb discontinued 11/26. No clinical seizure activity on PE but on 11/29 EEG showed diffuse electrical sz. Phenobarb and Cerebryx started. EEG on 12/1 was unchanged but occasional correlation with subtle finger movement. 12/2 with decerebrate posturing of UE to deep painful stimuli. EEG from 12/3 showed seizure activity but some improvement was reported. Phenobarbital given x1 then held 2nd level elevated Cerebryx continued till 12/9 discontinued per pedi-neuro. Depacon added on 12/6 as recommended by pediatric neurologist no change before discontinued 12/10. Phenobarb was resumed on 12/8. level 42.3 on 12/11. The dose has been adjusted as per neurologist. No recent new neurological changes or improvement noted. He continues on phenobarb w/occasional clinical seizure noted . . . . * * * DIAGNOSIS #13: SEVERE METABOLIC ACIDOSIS ONSET: 11/25/2004 RESOLVED: 12/2/2004 COMMENTS: Severe metabolic acidosis at birth pH 6.7 HCO3=5.6. Baby received HCO3 bolus x 3 in the OR and several corrections upon admission to NICU. * * * DEATH INFORMATION DISPOSITION: The patient died on 1/12/2005 at 00:52 hours. The cause of death was Cardio-respiratory arrest. Baby Boy "A" Castro is an 48 d/o w/Hypoxic- ischemic-encephalopathy, seizures, s/p 28-29 min full resuscitation, initially w/o a heart rate; who has been in a vegetative neurological state, w/intractable seizures since birth 11/25/04. Baby never tolerated any feeds and remained in TPN, was extubated to n/c w/(+) spontaneous breathing but NO gag and unable to clear secretions since baby never had any spontaneous voluntary movement. Tonight while parents visited baby was having desaturations and bradycardia that required IPPB, to improve heart rate and O2 sats. Parents requested to stop the IPPB, and requested to hold baby w/O2 N/C. Baby expired almost immediately of cardiorespiratory arrest at 12:52 a.m. . . . . David's delivery and hospital course are documented in his Death Summary, as follows: BIRTH DATE: 11/25/2004 TIME: 02:02 hours WEIGHT: 2.150kg GEST AGE: 35 weeks GROWTH: AGA RUPTURE OF MEMBRANES: At delivery. AMNIOTIC FLUID: Clear. PRESENTATION: Vertex. DELIVERY: Born in the delivery room by emergent cesarean section under spinal anesthesia for maternal hypertension with increasing creatinine. BIRTH ORDER: Second of twins. APGARS: 3 at 1 minute, 5 at 5 minutes and 6 at 10 minutes. CONDITION AT DELIVERY: Cyanotic and floppy. TREATMENT AT DELIVERY: Stimulation, oxygen, oral suctioning, bag and mask ventilation and endotrachael tube ventilation. At birth baby was cyanotic, no respiratory effort, floppy, bradycardic in the 50's. Mouth was suctioned with bulb, and bag mask ventilation was started for about 5 minutes before improvement in color and activity were seen. Baby was intubated aprox on min of life 4-5 by pediatrician Dr. Torres. No medication was needed during intervention, and baby responded well to intubation, oxygen and ambu bag ventilation. Baby noticed to be floppy despite color and heart rate improvement. Transferred stable to NICU. Initial ABG's showed severe metabolic acidosis pH=6.9 HCO3=7.4 BE=-25. ADMISSION DATE: 11/25/2004 ADMISSION TYPE: Immediately following delivery. ADMISSION INDICATIONS: Metabolic acidosis, respiratory distress, possible sepsis, prematurity and perinatal depression. Upon admission to NICU mechanical ventilation was stated. Chest XR showed reticulogranular pattern and air bronchograms compatible with HMD vs. pneumonia. No air leak. Infasurf was given x 1 with good response. Na bicarbonate corrections were needed x 3. ADMISSION PHYSICAL EXAM OVERALL STATUS: Critical - initial NICU day. BED: Radiant warmer. TEMP: Stable. HR: Stable. RR: Unstable: BP: Stable. URINE OUTPUT: Stable. CONDITION: on PRVC, breathing above the ventilator (tachypneic), pink color, mild acrocyanosis. HEENT: Pupils reactive to light, soft fontanelles, no bulging. RESPIRATORY: Minimally decreased air exchange, initially decreased breath sounds, improved after Infasurf and mechanical ventilator sounds heard equally bilaterally. CARDIAC: Normal sinus rhythm . . . . NEUROLOGIC: Depressed mental status and decreased muscle tone. * * * RESOLVED DIAGNOSES DIAGNOSIS #1: SEVERE RESPIRATORY DISTRESS ONSET: 11/25/2004 RESOLVED: 12/7/2004 * * * COMMENTS: Respiratory distress at birth. Chest XR compatible with HMD vs pneumonia. Received Infasurf x 1 with adequate response. In room air but requiring vent support due to no spontaneous respirations breathing with the vent. Poor respiratory effort more likely due to hypoxic ischemic encephalopathy but no deterioration in respiratory status. He remains critically ill and on high ventilatory support, unstable and deteriorating due to DIC and sepsis. During the course of the day the baby continued to deteriorate clinically and presented episodes of bradycardia and decreased SAO2 requiring higher ventilatory support and multiple doses of epinephrine. Later in the afternoon he became bradycardic and did not respond to resuscitative measures and was declared dead at 3:25 PM. . . . DIAGNOSIS #2: METABOLIC ACIDOSIS ONSET: 11/25/2004 RESOLVED: 11/29/2004 MEDICATIONS: Sodium bicarbonate on 11/25/2004. COMMENTS: Upon admission required Na bicarbonate corrections x3. Initial ABG's showed a pH=6.9 HCO3=7.4 BE=-25, currently stable. * * * DIAGNOSIS #6: POSSIBLE SEPSIS ONSET: 11/25/2004 RESOLVED: 12/5/2004 * * * COMMENTS: Completing a 10 day course of antibiotics for suspect sepsis secondary to maternal GBS unknown, respiratory distress at birth, severe metabolic acidosis. The blood culture was negative and there is no clinical evidence of sepsis at this time. * * * DIAGNOSIS #10: HYPOXIC-ISCHEMIC BRAIN INJURY ONSET: 11/25/2004 RESOLVED: 12/7/2004 PROCEDURES: cranial ultrasound from 11/25/2004 till 12/7/2004(normal) COMMENTS: Perinatal depression, required bag mask ventilation, intubation and oxygen in order to improve. Apgar scores were 3/5/6. The baby had presented seizures and systemic failure and the assessment of the pediatric neurologist was of severe hypoxic and ischemic encephalopathy. Neurologically he has not changed recently and continues with an abnormal neurological exam and no improvement in neuro condition. DIAGNOSIS #11: SEIZURES ONSET: 11/25/2004 RESOLVED: 12/7/2004 * * * COMMENTS: Shortly after admission to NICU he started with generalized tonic-clonic seizures. Persistent Sz activity on phenobarb and Cerebryx correlates with independent clonic movements of UE, extensor posturing of UE R>L and gaze deviation per neurologist Dr. Bustamante. Last EEG from 12/3 showed worsening EEG with seizure activity and burst suppression. The pediatric neurologist impression was of a severe hypoxic ischemic encephalopathy with multifocal seizures. Phenobarbital on hold since 12/1 for level 61.8 down to 29.5 will not resume per neuro and phosphenytoin level 18.8 on maintenance dose 2.5 mg/kg q 12. An MRI was not done due to the critical and unstable condition of the infant. * * * DEATH INFORMATION DISCHARGE TYPE: Died. DATE OF DEATH: 12/7/2004. TIME OF DEATH: 15:25 hours. CAUSE OF DEATH: Respiratory failure, sepsis and multisystemic failure . . . . Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, it is undisputed that Isaac and David suffered an injury to the brain caused by oxygen deprivation, which rendered them permanently and substantially mentally and physically impaired. What is disputed is whether the injury occurred "in the course of labor, delivery, or resuscitation in the immediate postdelivery period," as required for coverage under the Plan. § 766.302(2), Fla. Stat.; Nagy v. Florida Birth-Related Neurological Injury Compensation Association, 813 So. 2d 155 (Fla. 4th DCA 2002). As to that issue, Petitioners are of the view that the brain injury occurred before delivery, and since it is undisputed that Mrs. Castro was never in labor the injury is not covered by the Plan. In contrast, NICA and the hospital are of the view that the injury either occurred during, or continued through, delivery and resuscitation, and is therefore compensable. As an aid to resolving such issue, Section 766.309(1)(a), Florida Statutes, provides that when, as here, the proof demonstrates "that the infant has sustained a brain . . . injury caused by oxygen deprivation . . . and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption . . . [arises] that the injury is a birth-related neurological injury, as defined [by the Plan]." Here, since Mrs. Castro was never in labor, the presumption is that Isaac's and David's brain injury occurred in the course of delivery or resuscitation in the immediate postdelivery period. See Orlando Regional Healthcare Systems, Inc. v. Alexander, 909 So. 2d 582 (Fla. 5th DCA 2005). Consequently, to be resolved is whether there was credible evidence produced to support a contrary conclusion and, if so, whether, absent the presumption, the record demonstrates, more likely than not, that Isaac's and David's brain injury occurred during delivery or resuscitation in the immediate postdelivery period.10 The timing of the twins' brain injury To address the timing of the twins' brain injury, the parties offered the medical records relating to Mrs. Castro's antepartal course, as well as those associated with the twins' birth and subsequent development. (Petitioners' Exhibit A, tabs 8-11, and Exhibit B). Additionally, the parties offered the deposition testimony of Dr. Daniel, a physician board-certified in obstetrics and gynecology; Adré du Plessis, M.D., a physician board-certified in pediatrics, and neurology with special competence in child neurology; Steven Chavoustie, M.D., a physician board-certified in obstetrics and gynecology; Michael Katz, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine; and Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine. (Petitioners' Exhibit A, tabs 3-7) The testimony of Doctors Daniel, du Plessis, and Chavoustie was supportive of Petitioners' view, and the testimony of Doctors Katz and Willis was supportive of the views of NICA and the hospital. The medical records and the testimony of the parties' experts have been carefully considered. So considered, it must be resolved that there was credible evidence (through the testimony of Doctors Daniel, du Plessis, and Chavoustie) to rebut the presumption established by Section 766.309(1)(a), Florida Statutes, and that, absent the presumption, the record failed to demonstrate, more likely than not, that any injury the twins may have suffered during delivery or immediate postdelivery resuscitation contributed significantly to the profound neurologic impairment they suffered. Indeed, the more compelling proof supports a contrary conclusion. In so concluding, it is notable that the twins' brain injury started sometime after 4:07 p.m., November 24, 2004, when fetal reserves were lost, and the twins ability to compensate for a lack of oxygen failed, and that, given the severe depression the twins demonstrated at birth (cyanotic, apneic, floppy, and profoundly bradycardic), consistent with injury to the brain stem, the more robust level of a newborn brain; the need for intensive delivery room resuscitation (with intubation and, in the case of Isaac, advanced CPR), likewise consistent with injury to the brain stem; and the profound acidotic state in which they presented, it is likely, more so than not, that the twins suffered profound brain damage well prior to delivery (which was quick and without complication), that accounts for the severe neurological impairment (mental and physical) they demonstrated at birth. Consequently, since Mrs. Castro was not in labor when the profound brain injury most likely occurred, the twins were not shown to have suffered a "birth-related neurological injury," as defined by the Plan.
Findings Of Fact Adam was born on June 11, 2018, at HealthPark Medical Center, in Fort Myers, Florida. Adam was a single gestation and his weight at birth exceeded 2500 grams. Obstetrical services were delivered by a participating physician, Jane A. Daniel, M.D., in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, HealthPark Medical Center. As set forth in greater detail below, the unrefuted evidence establishes that Adam did not sustain a “birth-related neurological injury,” as defined by section 766.302(2). Donald Willis, M.D., a board-certified obstetrician specializing in maternal-fetal medicine, was retained by Respondent to review the pertinent medical records of Ms. Johnson and Adam and opine as to whether Adam sustained an injury to his brain or spinal cord caused by oxygen deprivation or mechanical injury that occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital. In his affidavit, dated December 11, 2020, Dr. Willis summarized his opinions as follows: In summary, an abnormal FHR pattern developed during labor and resulted in a depressed newborn. Cord blood pH was 6.9 with a base excess of -18.6. Seizures began shortly after birth. The newborn hospital course was complicated by multi-system organ failures, consistent with birth-related oxygen deprivation. MRI on DOL 4 was suggestive of HIE, but findings improved with follow-up MRI. There was an apparent obstetrical event that resulted in oxygen deprivation to the brain during labor, delivery and continuing into the immediate post-delivery period. The oxygen deprivation resulted [in] a potential for brain injury, but the follow-up normal MRI suggests that no actual brain injury occurred. Respondent also retained Michael S. Duchowny, M.D., a pediatric neurologist, to review the medical records of Ms. Johnson and Adam, and to conduct an Independent Medical Examination (IME) of Adam. The purpose of his review and IME was to determine whether Adam suffered from a permanent and substantial mental and physical impairment as a result of an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery, or resuscitation in the immediate post- delivery period. Dr. Duchowny reviewed the pertinent medical records and, on October 20, 2020, conducted the IME. In his affidavit, dated December 16, 2020, Dr. Duchowny summarized his opinions as follows: In summary, Adam’s evaluation reveals findings consistent with a substantial motor but not mental impairment. He evidences a spastic diplegia, but with relative preservation of motor milestones, and age-appropriate receptive and expressive communication. Adam additionally has a severe behavior disorder, and has a sleep disorder and attentional impairment. His seizures are in remission. Review of the medical records reveals that Adam was the product of a 40 week gestation and was delivered vaginally with Apgar scores of 3, 6, 7 and 6 at one, five and 10 minutes. Terminal meconium was noted at delivery. Adam initially required positive pressure ventilation until his respirations were subsequently managed with nasal CPAP. His cord gas pH was 6.917 with a base excess of – 18.6. Adam developed seizures in the NICU and was intubated on the first day of life for apnea. Multiple seizures were documented on video/EEG monitoring. He was oliguric on the first day of life and had elevated liver function studies. An elevated lactic acid level was noted and there was a borderline elevation of DIC parameters. Adam was enrolled in a body hypothermia protocol on the first day of life. His blood pressure was maintained with dopamine. A head ultrasound on June 11 at 22:23 (DOL#2) was unremarkable. A brain MR imaging study performed on June 15, (DOL#5) revealed multifocal areas of restricted diffusion. Follow-up brain MR imaging study on July 5th revealed near-complete resolution of the previously observed diffusion abnormalities. A third MR imaging study obtained one month ago confirms the resolution of the DWI findings noted on the first brain MR imaging study. In conclusion, Dr. Duchowny opined that Adam does not have a substantial mental impairment, and, therefore, did not recommend that Adam be considered for inclusion in the Plan. The undisputed findings and opinions of Drs. Willis and Duchowny are credited. The undersigned finds that Adam did not sustain an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which rendered him permanently and substantially mentally and physical impaired.
The Issue At issue is whether Sierra Matteini, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Michele Matteini and Russell Matteini, are the natural parents and guardians of Sierra Matteini, a minor. Sierra was born a live infant on December 28, 2001, at South Seminole Hospital, a hospital located in Longwood, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Sierra's birth was John F. Sweet, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by . . . 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(1) and 766.31(1), Fla. Stat. In this case, it is undisputed that due to the natural forces associated with her vaginal delivery, Sierra suffered a mechanical injury to the brain, a subarachnoid hemorrhage, which precipitated an epidural hematoma, the compression of the left temporal lobe, and a left temporal contusion (bruise), that left an area of encephalomalacia. What is disputed, is whether Sierra's brain injury was the likely cause of her current impairments, and whether Sierra is permanently and substantially mentally and physically impaired. As to those issues, Petitioners are of the view that the brain injury Sierra sustained rendered her permanently and substantially mentally and physically impaired. In contrast, NICA is of the view that Sierra's impairments were not occasioned by the injury she sustained at birth and, regardless of the etiology of her impairments, Sierra is not permanently and substantially mentally and physically impaired. The etiology and significance of Sierra's impairments To address the etiology and significance of Sierra's impairments, the parties offered medical records related to Sierra's birth and subsequent development, and the testimony of Dr. Michael Duchowny, a pediatric neurologist; Dr. David Turell, a pediatrician; Dr. Eric Trumble, a pediatric neurosurgeon; Michelle Webster, an occupational therapist; Bonnie Bear, a speech language pathologist; and Michele Matteini, Sierra's mother.1 Dr. Duchowny, whose testimony was offered by Respondent, is board-certified in pediatrics, neurology with special competence in child neurology, and neurophysiology. (Respondent's Exhibit K.) It was Dr. Duchowny's opinion, based on the results of his neurologic evaluation of Sierra on January 19, 2005, and review of the medical records, that Sierra's impairments were most likely developmentally based, and unrelated to her brain injury. Dr. Duchowny was also of the opinion that Sierra did not have a substantial mental or physical impairment. Dr. Duchowny explained his findings and the basis for his opinions, as follows: Q. Could you tell us . . . about the neurological examination . . . ? A. At the time of the examination, Sierra was three years old. She exhibited behavior that was both impulsive and overactive. In fact, she was somewhat difficult to evaluate just because of her high activity level. I tried to have her sit in her mother's lap, but she even then would have trouble sitting there in a consistent fashion. She was able to speak to me, but the speech sounds were dysarthric, and her lexicon, meaning the number of words that she had in her vocabulary, were probably diminished with respect to age matched controls. Q. . . . Could you please tell us what dysarthric means in layman's terms? A. It means her speech was thick and difficult to understand. Q. What else did you observe during the neurological examination? A. Her understanding of information was clearly better. She knew colors and she knew body parts without difficulty. She tended to babble, but did not drool. I evaluated her cranial nerve[s] . . ., which means the nerves that serve her head and neck, and found those to be normal. There were eye movements that were quite fluid and well-developed. Her pupils reacted normally, and the back part of her eye was also entirely normal. With respect to motor functioning, there were no problems with her strength. She had good range of movement. There's no evidence of weakness or loss of muscle bulk, and her gait was quite stable and appropriate for age. There is no evidence of gait incoordination. I thought that Sierra's reflexes were symmetric and normal, and there were no pathological reflexes. Examination of the blood vessels supplying the neck and head disclosed no significant abnormalities, and there were no changes in the temperature or pulses of blood vessels supplying the neck and head. Sierra had good manual dexterity, in that she was able to construct a tower made of eight cubes, and she used both hands in a fluid manner and had very good dexterity with regard to individual finger movements. Her fine motor coordination was somewhat immature, but she was able to accomplish tasks without difficulty. Q. Based on the records you reviewed and the examination you conducted, were you able to form an opinion regarding whether or not Sierra has a substantial and permanent physical impairment? A. Yes. I believe the findings on examination indicate that Sierra does not have a substantial physical impairment. Q. And what was the basis for that specific opinion? A. She's functioning very close to age level with respect to her physical abilities. Q. With regard to your examination and the records that you reviewed, did you form an opinion regarding whether or not Sierra has a substantial and permanent mental impairment? A. Yes. I further do not believe that Sierra has a substantial mental impairment either. Q. Could you tell us what the basis of that opinion specifically is? A. Well, again, although she has an expressive language disorder, her receptive language skills were good, and I think that she'll continue to improve in the future. * * * Q. Have all of your opinions been rendered within a reasonable degree of medical certainty? A. Yes, they have. * * * CROSS EXAMINATION * * * Q. Would you agree that the left temporal area of the brain is the area that's related to speech? A. In 92 percent of individuals, yes. Q. Dr. Trumble's opinion is that her speech delay is a mental impairment with anatomical relationship to her area of encephalomalacia. Do you have any reason to differ with that opinion? A. Yes. I believe that Sierra's speech problems are developmentally based and unrelated to that anatomic defect. Q. Explain what you mean by developmental? A. That is based on brain maturation, not on brain damage. Q. And what's brain maturation? A. Meaning that individuals can have patterns of strength and weaknesses based on brain maturation, and it's different for different individuals. Q. And you're saying that's unrelated to trauma or anything that occurred at birth? A. That's correct. Q. And there is no way to determine if that is so, is it? There is no testing that could be performed which would definitely relate her speech delay to brain maturation? A. First of all, she has other developmental disorders, for example, hyperactivity and attention deficit, so we already know she has developmental problems. Secondly, her language problems mainly have to deal with expressive language, which is not located in the temporal lobe. Q. Expressive language? A. Yes. Q. What do you mean by that? A. Her ability to speak, as opposed to her ability to understand language. Q. Her ability to speak is not related to the left temporal lobe? A. That's correct. * * * Q. You said in your direct testimony that her fine motor coordination seems slightly immature for her age. Would you expand on that a little bit? What did you mean by that? A. This is another developmental finding. When she put out her hands, she would posture her fingers. Her ability to have rapid alternating movement sequences was slightly immature for her age. This is yet another developmental finding. In other words, it's related to brain immaturity, in this case, for fine motor movement. Q. . . . You commented in your report that she is not yet toilet trained. Would that be another developmental deficiency? A. Yes. Q. That would have nothing to do with brain injury? A. That's correct. Q. You said that she does not demonstrate ataxia. Did I pronounce that correctly? A. Yes. Q. Ataxia, which means incoordination, correct? A. Correct. Notably, as will be seen from the testimony of Doctors Turell and Trumble, Ms. Webster, and Ms. Bear, who were called to offer testimony on behalf of Petitioners with regard to the likely etiology or significance of Sierra's impairments, Dr. Duchowny's opinions stand largely uncontroverted.2 Dr. Turell is board-certified in pediatrics, and practices general pediatrics at Altamonte Pediatric Associates, Sierra's primary care provider until March 2004, when the family transferred to another pediatric group. According to Dr. Turell, and the records of Altamonte Pediatric Associates, Sierra's development was age appropriate until approximately April 1, 2003, when Sierra's mother voiced concerns about her speech. Thereafter, on July 1, 2003, Dr. Turell diagnosed a speech delay, but noted good comprehension, and referred Sierra for speech therapy and audiology. Audiology reported normal hearing and, according to Dr. Turell and the records of Altamonte Pediatric Associates, apart from an expressive language delay, Sierra's development continued to be normal, including her receptive language functions. The records from Sierra's subsequent provider were not offered at hearing. Dr. Trumble is board-certified in adult and pediatric neurosurgery, and first saw Sierra on December 30, 2001, in the neonatal intensive care unit at Arnold Palmer Hospital, where she was transferred following delivery. There, Dr. Trumble was consulted to review Sierra's CT scan, and decide whether the epidural hemorrhage she suffered required evacuation. At the time, Dr. Trumble was of the opinion that evacuation was not required, and indeed the resulting hematoma and left temporal contusion resolved, but left an area of encephalomalacia. As for the etiology of Sierra's speech delay and the significance of her impairment, Dr. Trumble offered the following observations at hearing: Q. Is there a relationship between . . . a contusion to the left temporal area and the speech delay that Sierra has sustained -- has demonstrated? * * * A. Okay. . . . [A]natomically, speech is localized to the left temporal lobe in more than 95 percent of the population, and so if you were to pick an area of the brain to cause a speech delay, you'd roughly pick where Sierra's injury was. So a long answer to say yes. Q. Is it your opinion, Doctor, that the -- that this was a neurological injury? A. Yes. Q. Was it a physical injury? A. It was a brain injury, and the brain's part of the body. So yes, it was clearly physical. Q. Is there a mental injury, mental impairment resulting? A. Yes. Q. Is it substantial? * * * A. You know, "substantial" gets into the subjective realm that I would defer to . . . somebody else. If this were my child and she was having speech issues, it would be substantial to me. Q. All right. In your opinion, is this a permanent injury? A. Certainly the anatomical abnormalities seen on the MRI are permanent. She will probably always have some speech issues. The hope is with therapy she will learn to compensate with -- for it. Q. Do you have an opinion as to whether, therefore, she has suffered both mental and physical impairment from her epidural hematoma which she suffered at birth? A. Yeah, yes, she did. Q. And is that opinion based on a reasonable degree of medical certainty? A. Yes. * * * CROSS EXAMINATION Q. Doctor, what is the physical impairment? A. Speech delay. Q. Okay. So you consider that a physical impairment, not a mental impairment? A. I would consider it both, yeah. I mean, if you want to look at the physical impairment, then you -- it depends if we want to talk anatomical where she has -- you know, based on the MRI she had 1/21/04 she has a one centimeter left mid-temporal area of encephalomalacia . . . . [That] specific physical anomaly within the brain . . . would be . . . most likely related to her speech impairment. Q. Okay. I think the part where we're miscommunicating is I think you're talking about a physical injury where I’m talking about a physical impairment. Do you understand the distinction? A. I do -- no, I do not see any left-sided -- or it's a left lesion, so any right-sided weakness. I do not see any motor abnormalities, if that is what you mean by a physical impairment. Q. That's where I was going, okay. Dr. Duchowny who is a pediatric neurologist testified that the temporal lobe is associated with receptive language ability and the frontal lobe is associated with expressive language ability. Do you disagree with that or agree with that? A. . . . [T]he difference between the two areas . . . is not as hard wired in children as it is in adults. So . . . while I would say that in general that is true, in any individual patient there is overlap. Q. Okay. So what you're saying is that if it's an adult the temporal lobe deals with receptive language ability and the frontal lobe deals with expressive language ability, but because children's brains are more malleable, there's some overlap in the temporal lobe that could affect both? A. Correct. Notably, when called upon to describe the physical impairment caused by Sierra's brain injury, Dr. Trumble agreed that no physical impairment ensued, and he declined to offer an opinion, within a reasonable degree of medical certainty, whether Sierra's mental injury (an expressive language delay) was substantial.3 Ms. Webster is an occupational therapist, and has been working with Sierra for approximately one year. Currently, they are working on Sierra's fine motor skills, which Ms. Webster describes as "[b]elow-average skills for grasping for her age level," but their main focus is on sensory integration skills. According to Ms. Webster, Sierra's difficulties in sensory integration skills include auditory processing, vestibule processing (sense of balance), touch processing, multisensory processing, and oral sensory processing.4 Related issues include impulsive and overactive behavior (hyperactivity), and a low attention span (attention deficit). Ms. Webster offered no opinion as to the etiology of Sierra's fine motor impairment or of the etiology of Sierra's sensory integration skill deficits, and offered no opinion regarding the significance or permanence of those disorders. Ms. Bear is a speech language pathologist, and has worked with Sierra since December 2003. According to Ms. Bear, she last saw Sierra on August 10, 2005, at which time Sierra evidenced a "severe deficit in articulation" (an expressive language deficit), but her receptive language skills were within normal limits for her age. With regard to Sierra's expressive language deficit, Ms. Bear noted that Sierra currently had a lexicon of about 40 words, when a normal range would be "over 100 . . . maybe 125." However, Ms. Bear also observed that with an additional 18 to 24 months of therapy, it was likely Sierra's expressive language would be within 6 months of her chronological age. Ms. Bear offered no opinion regarding the etiology of, or any other opinion regarding the significance or permanence of, Sierra's expressive language disorder. In this case, there is no reason to credit Dr. Trumble's opinion regarding the etiology of Sierra's expressive language disorder, over the opinion of Dr. Duchowny. Indeed, as between the two, Dr. Duchowny's opinion was the more compelling. Moreover, there was a dearth of proof, apart from the opinion of Dr. Duchowny, as to the likely cause of Sierra's other deficits. Finally, regardless of the etiology of Sierra's deficits, she is not permanently and substantially mentally or physically impaired. See, e.g., Wausau Insurance Company v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obliged to present expert medical evidence establishing that causal connection."); Ackley v. General Parcel Service, 646 So. 2d 242 (Fla. 1st DCA 1995)(determining cause of psychiatric illness is essentially a medical question, requiring expert medical evidence); Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation.")
Findings Of Fact Bryan Alavez was born on August 7, 2011, at Tampa General Hospital located in Tampa, Florida. Bryan weighed 4,590 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Bryan. In a medical report dated July 14, 2014, Dr. Willis opined as follows: In summary, the mother had poorly controlled Gestational Diabetes, which most likely resulted in the large for gestational age (macrosomic) newborn and resulting shoulder dystocia. Umbilical cord blood gas was within normal limits, suggesting the baby did not have hypoxia during labor. However, newborn depression occurred, most likely related to shoulder dystocia. The Apgar was 0 at one minute. Chest compressions and bag and mask ventilation were required at birth. The baby improved and was taken to the NICU with respiratory depression requiring nasal canula oxygen. A fractured humerus occurred at time of shoulder dystocia delivery. The baby did not have seizures. Encephalopathy was not suspected. Imaging studies of the brain were not done. The fetus did not suffer oxygen deprivation or mechanical trauma to the brain during labor. Some oxygen deprivation may have occurred as a result of the shoulder dystocia, as indicated by an Apgar score of 0 at one minute. However, there is no documentation that any significant brain injury resulted from this possible oxygen deprivation. There was an apparent obstetrical event, shoulder dystocia, but this does not appear to have resulted in any significant loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery, or the immediate post delivery period. NICA retained Raymond J. Fernandez, M.D. (Dr. Fernandez), a pediatric neurologist, to examine Bryan and to review his medical records. Dr. Fernandez examined Bryan on September 15, 2014. In a medical report regarding his independent medical examination of Bryan, Dr. Fernandez opined as follows: IMPRESSION: Despite transient neurological depression immediately after birth, there is no evidence for substantial mental and motor impairment due to oxygen deprivation or mechanical injury of brain or spinal cord during labor, delivery, or within the immediate postdelivery period of resuscitation. This opinion is based on record review and clinical history and physical and neurodevelopmental examination. There was no suspicion of perinatal encephalopathy while in the NICU or after discharge. Imaging of the brain and spinal cord has not been necessary. Bryan sustained a fracture of his left humerus as a complication of shoulder dystocia and there was question of left brachial plexus injury causing left arm weakness. He appears to have subtle residual left upper extremity proximal weakness. This is due to mechanical injury of peripheral nerves (brachial plexus). It is not due to oxygen deprivation or mechanical injury of brain or spinal cord. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was an apparent obstetrical event, shoulder dystocia, but this event does not appear to have resulted in any significant loss of oxygen or mechanical trauma to the baby's brain during labor, delivery, or the immediate post delivery period. Dr. Willis’ opinion is credited. There are no contrary expert opinions filed that are contrary to Dr. Fernandez’s opinion that although Bryan appears to have subtle residual left upper extremity proximal weakness, this is due to mechanical injury to peripheral nerves, and is not due to oxygen deprivation or mechanical injury of the brain or spinal cord. Dr. Fernandez’s opinion is credited.
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.
The Issue The issue in this case is whether Jordan S. Garland suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Amber Evans and Fleming Garland are the natural parents of Jordan Garland. Jordan was born on September 22, 2009, at Baptist Medical Center, which is a licensed hospital located in Jacksonville, Florida. Jordan weighed in excess of 2,500 grams at birth. Amber Evans was an obstetrical patient of Dr. Martin Garcia, who at all times material to this proceeding, was a participating physician in the NICA program.1/ On September 21, 2009, Amber Evans contacted Dr. Garcia’s office because she was going into labor. She was told to come into the office where Dr. Garcia checked her and instructed her to go to the hospital to be admitted. She was admitted to Baptist Medical Center at approximately 3:30 p.m., and was sent to labor and delivery. Ms. Evans recalls that between approximately 7:00 and 8:00 p.m., the heart rate monitor alarm periodically sounded, until the nurses repositioned her. Ms. Evans estimates that the monitor alarm went off approximately every 45 minutes, at which time the nurses would reposition her and the alarm would stop. Based upon conversations which took place in the labor and delivery room, Ms. Evans believed that the alarm went off when the baby’s heart rate went down. Jordan was born by vaginal delivery at 2:24 a.m. According to Ms. Evans, Dr. Garcia arrived in the delivery room when Jordan’s head “was basically already out.” When Jordan was delivered, she recalls that he was blue in color, was not breathing, and that Dr. Garcia instructed the nurses to perform resuscitation on Jordan. After he was resuscitated, she heard him cry and was able to hold him before he was taken to the nursery. Fleming Garland, Jordan’s father, was present in the delivery room and also recalls the heart monitors going off and Ms. Evans being repositioned. He recalled Dr. Garcia turning Jordan from a face-down position to a face-up position as he was delivering Jordan. Mr. Garland cut the umbilical cord, and Jordan was taken to the warming table where he was resuscitated. Mr. Garland recalls that Jordan was covered in birth film, was a little blue, and that his eyes were closed. He saw three or four people huddled around the warming table while Jordan was being resuscitated. After hearing Jordan cry, he recalled that the delivery room staff brought Jordan to them. Ms. Evans held Jordan first, followed by Mr. Garland. At that time, Mr. Garland described Jordan as being really pink, a little yellowish, with his eyes closed. Mr. Garland then accompanied the nurses who took Jordan to the nursery, where he assisted in giving Jordan his first bath. Mr. Garland returned to the delivery room and after a period of time, the nurses brought Jordan back into the delivery room to his parents, where Ms. Evans attempted to nurse Jordan. Jordan was unable to latch, so he was fed formula. Jordan stayed with his parents in the labor and delivery room for the rest of that night. Mr. Garland recalls that Jordan was periodically taken back to the nursery where he was monitored for jaundice. Otherwise, Jordan stayed in the room with his mother and/or his father. Attempts at breastfeeding remained unsuccessful. Carrie Anderson is a neonatal physician assistant. She was employed at Baptist Medical Center at the time Jordan was born, and was known at that time as Carrie Smith. She was called to the labor and delivery unit where Jordan was born. She arrived in the labor and delivery room seven minutes after Jordan was born. When she arrived, she was provided information about what had happened up to that point. According to her report, the baby had been in distress with no respirations, with a heart rate less than 100. Bag mask valve had been used “times 90 seconds intermittently” meaning that bag and mask ventilation was used intermittently for a total of 90 seconds. The report reflects that Jordan became pink and stayed pink with spontaneous respirations and a heart rate greater than 100. At the time Ms. Smith arrived, resuscitative efforts were no longer ongoing. Jordan had “mild acrocyanosis moving times four,” meaning that he had a bluish color of the palms and soles of his feet and that the extremities were moving. Ms. Smith explained that was indicative of continuation of transition from fetal blood flow to infant blood flow. Jordan’s one-minute and five-minute Apgar scores, which were 3 and 7, had been determined before Ms. Smith arrived. Ms. Smith determined the 10-minute Apgar score to be 10. She cleared Jordan to be sent to the nursery unit. When asked about her involvement when she arrived in the room, Ms. Smith reviewed her progress notes and testified as follows: According to my note I walked in -- when it says RN reports, then it’s indicative of me saying what’s going on. And the RN tells me that the baby came out with no respirations. She bagged the baby for 90 seconds intermittently. And then the baby was pink and stayed pink, spontaneous respirations, heart rate above 100. I approached the baby, and the baby is in the radiant warmer, and, according to my note, pink and not crying, but you can -- I could clearly see the baby was breathing on his own and there was some slight retractions which is your -- just your subcostal retractions of having a little bit difficulty breathing. And then no nasal flaring, which is also a sign of no respiratory distress. The nasal flaring indicates respiratory distress. * * * Q. The baby was still having difficulty breathing still when you arrived? A. According to my note he was having slight retractions. And then according to my physical exam, his bilateral breath sounds were equal and had mild rales throughout, but -- that were clearing with crying, which is showing improvement in the baby. Q. Okay. By ten minutes of life would those have resolved? A. According to my Apgar of 10 out of 10, yes. Jordan’s blood cord pH was 7.21. Jordan was discharged from the hospital on September 24, 2009, on his third day of life. Ms. Evans first began to have concerns about Jordan’s development when he was three-to-six months old. Jordan was “wobbly” when trying to sit up and needed support under his head and neck as he had trouble holding his head up. Jordan’s parents expressed their concerns to Dr. Silberman, who was Jordan’s pediatrician at that time. Dr. Silberman referred them to Early Steps which came to their home once or twice a week and provided physical therapy and occupational therapy to Jordan. Ms. Evans noticed improvements in Jordan from the physical therapy including his ability to balance his neck correctly, his ability to start to crawl and an improvement in eating. The physical therapist provided physical therapy to Jordan until he was three years old. When Jordan was about five months old, Dr. Silberman referred Jordan’s parents to Dr. Sheth, a pediatric neurologist at Nemours. Dr. Sheth performed a neurological exam on Jordan on March 1, 2010. It is not entirely clear from the record whether Dr. Silberman or Dr. Sheth ordered an MRI, but one took place. Following the neurological exam and reviewing the MRI report, Dr. Sheth wrote a letter to Dr. Silberman which reads in pertinent part: IMPRESSION: Jordan is a 5-month-old male presenting with a history of head [lag] as well as an MRI scan that is suggestive of a possible structural abnormality in the form of nodular heterotopia. On exam, patient does appear to have a mild delay in terms of his head control with a head lag. Jordan has reached other developmental milestones including cooing, bringing his hands together and moving his arms and legs equally and symmetrically. In other words there are no other features on exam that would point to gross motor delay. The MRI of the brain performed in [sic] 02/25/2010 shows benign extracerebral cerebral fluid collection that does correspond with his head circumference at the 95th percentile. In addition there was a suspected nodule heterotopia reported on the MRI scan; however, this will need to be reviewed with Radiology to further confirm these findings. The benign extracerebral fluid collection is anticipated to resolve over time. RECOMMENDATIONS: We will review the MRI of the brain at the next Neuroradiology conference to further shed light on the possible structural abnormality in the form of nodular bilateral frontal horn nodular heterotopia. The parents were recommended to call the office 1 week after the conference for the results. If no abnormality is confirmed, the patient will not need to followup in Neurology Clinic; however, if the findings are confirmed then we will contact the patient. The patient’s parents were recommended to call the office with any new additional developmental or other concerns for that matter. Dr. Sheth conducted a reevaluation of Jordan about six months following the previous visit. He wrote another letter to Dr. Silberman which reads in pertinent part: ASSESSMENT: Jordan Garland has developmental delay associated with thinning of the corpus callosum, although the corpus callosum is intact, as well as 2 nodular heterotopias that were seen, 1 in each ventricle in the frontal horns. No other heterotopias were seen anywhere else. He has no ash leaf spots to suggest tuberous sclerosis; however, this is clearly in consideration. I discussed the findings of this and told the mother that these did not need surgery by themselves. They sometimes are associated with seizures which she will watch for. PLAN: Genetics consultation. I have not scheduled a further followup appointment for her; however, should seizures develop, mother knows to return to see us. Dr. Sheth again examined Jordan in 2014. In a letter dated May 27, 2014, to Dr. Robert Colyer, Jordan’s current pediatrician, Dr. Sheth stated in pertinent part as follows: I saw your 4-year-old patient, Jordan Garland, in the Pediatric Neurology Clinic in consultation for evaluation of speech issues that he is not talking. HISTORY OF PRESENT ILLNESS: Jordan is a 4-year-old boy who I first saw when he was an infant for evaluation delays. Since that time, the most prominent problem he has is speech related issues, particularly related to and associated with difficulty swallowing. He drools a lot as well. He has poor coordination in his mouth and tongue. Reviewing his MRI scans I see modular heterotopias plus hypoplastic corpus callosum and wider opened sylvian fissures than normal. Clearly, one wonders if while the sylvian fissures are not as wide open as you would expect with open opercular syndrome, if there are features of this. His findings are consistent with delays that are related to cerebral malformation and the delays manifest both in expressive language and in swallowing. Because of this, I recommend the following specific plan: Genetic consultation. Mom had blood drawn when he was 1-year-old, but the sample was apparently lost and she was very frustrated and did not see Genetics at that time. Clearly this is important now. He is the only child for this family. They are considering a 2nd child and it would heavily depend on the ratios of likelihood to have another child similarly affected. I have recommended speech and language evaluation. This is to identify issues that could be consistent with the open opercular syndrome as well as suggest management strategies for this. He does not have any nutritional problems as a result of these problems. In his deposition taken on May 23, 2016, Dr. Sheth was asked about his May 27, 2014, letter to Dr. Colyer. Dr. Sheth testified in relevant part as follows: Q. All right. Now again, referring to this letter to Dr. Colyer in 2014, you indicated in here that, “His findings are consistent with delays that are related to cerebral malformation and that the delays manifest both in expressive language and in swallowing.” Did I read that correctly? A. Yes. Q. Okay. And can you please explain what that means: A. Well, the -- so the findings of diffuse low white matter volume and the heterotopias, to an extent, would all be indicating, you know, that they manifest in many ways, but expressive language and swallowing were one of the ways in which I thought it might be manifesting in this situation. * * * Q. And so what you are saying there is that the pattern of brain malformation and, in particular, correct me if I’m wrong, the nodular heterotopias are consistent with the pattern or impairment that you see in this child? A. That is correct. Jordan is now seven years old. According to his mother, he still suffers from developmental delay. He only says a few words. He has shown improvement in physical abilities in that he is able to walk and run. He can jump in that he can now successfully get both feet off of the ground. He wore orthotics on his feet until a few months ago. He is still a little unbalanced although his walking and running have noticeably improved over the past year. Jordan enjoys playing outside. He loves to throw a ball and enjoys playing basketball using a child’s basketball set. He loves playing with remote-control cars. He still has training wheels on his bicycle and still uses his feet to push the bike along. Jordan enjoys using an iPad, playing with Legos, and taking selfies. Jordan is in kindergarten in a special education program. He is improving with writing skills and starting to pick up math. He can identify letters, colors, and shapes. He is able to follow instructions. Jordan receives physical, occupational, and speech therapy at school. He also sees a speech pathologist once a week at Nemours. At the time of her deposition in March 2016, Ms. Evans was waiting for a referral for Jordan to receive some additional physical therapy at Nemours. Jordan still has significant problems with his speech, although he has shown improvement with vowel sounds. According to his mother, Jordan has never had a seizure. NICA retained Dr. Donald Willis, an obstetrician specializing in maternal fetal medicine, who reviewed the medical records related to Jordan’s birth and subsequent development to determine whether Jordan sustained an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery, or resuscitation in the immediate post-delivery period. In two separate reports dated November 7, 2014, and February 2, 2016, Dr. Willis stated in pertinent part: (November 7, 2014 Report) Delivery was by vaginal birth. There is no record of forceps or vacuum extractor use. Amniotic fluid was clear. Birth weight was 3,414 grams. The newborn was depressed initially at birth. Apgar scores were 3/7/10. Cord blood gas had a normal pH of 7.21 with a base excess of only -3. Bag and mask ventilation was required at birth and continued for [90 seconds].[2] The baby was noted to be responsive and clinically stable after the initial bag mask resuscitation. Evaluation in the nursery indicated the initial respiratory distress at birth had resolved. The baby had problems with hypoglycemia and failed the newborn hearing test. The baby was approved for discharge home on 09/24/2009, which would be DOL 3. Subsequent problems after hospital discharge include recurrent otitis media, abnormal peripheral auditory function and developmental delay. MRI of the brain at 9 months of age showed marked thinning of the corpus callosum, diffuse white matter volume loss with enlarged lateral ventricles and bilateral nodular heterotopia in the frontal horns of the brain. Genetic evaluation showed normal chromosomes and normal microarray studies. Evaluation at 16 months by Genetics stated the clinical and imaging findings “imply early fetal developmental insult.” In summary: Although there was initial depression at birth, the cord blood pH was normal. The respiratory depression at birth resolved with resuscitation efforts. The newborn hospital course was not complicated by multisystem failures or seizures, which are commonly seen with birth hypoxia. The baby was discharged home on DOL 3, which again would not be expected with a significant hypoxic brain injury at birth. MRI finding of nodular heterotopia is consistent with early fetal brain development abnormalities and not hypoxic injury. Nodular Heterotopia is a condition in which nerve cells do not migrate properly during the early development of the fetal brain. This abnormality generally occurs from the time of early brain development to about 24- weeks gestational age. This is a congenital brain developmental abnormality and not a hypoxic birth related injury. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. (February 2, 2016, Report) I have reviewed the additional medical record concerning the above case, which include Labor and Delivery hospital records for the mother, fetal heart rate monitor tracing during labor, prenatal records, school records, out-patient office visits and billing records. The fetal heart rate (FHR) monitor tracing during labor was reviewed. Baseline FHR was 140 bpm with normal variability on admission, which would be consistent with no fetal distress at time of hospital admission. Contractions were every 2 to 4 minutes, consistent with labor. Occasional variable FHR decelerations occurred during labor, but FHR variability remained normal. This would suggest some umbilical cord compression, but no fetal distress. The remainder of the additional medical records confirmed findings already discussed in the letter dated 11/07/2014. In summary: FHR monitor tracings are consistent with no apparent fetal distress during labor. The additional records would agree with the previous statement that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical injury to the baby’s brain during labor, delivery or the immediate post delivery period. Dr. Willis was deposed on May 26, 2016, in which he reaffirmed the opinions expressed in the above referenced reports. He noted that while Jordan required some bag ventilation, he responded to resuscitation and recovered well, as evidenced by the five-minute Apgar score of seven, which is considered normal. He explained that the one-minute Apgar score is not a good predictor of the ultimate outcome. The five and 10-minute scores are generally more predictive of the ultimate outcome of the child with respect to any oxygen deprivation experienced during labor and delivery. He further explained that 10 is the highest Apgar score, so the fact that Jordan had an Apgar score of 10 is indicative that the baby was very stable at that time. Dr. Willis’ opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post-delivery period is credited. NICA also retained Dr. Raymond Fernandez, a pediatric neurologist, to evaluate Jordan. Dr. Fernandez reviewed Jordan’s medical records and performed an independent medical examination on Jordan on June 17, 2015. In a medical report dated June 23, 2015, Dr. Fernandez stated the following: IMPRESSION: Delay in all areas of development, probably due to a developmental brain abnormality characterized as nodular heterotopias seen on brain MRI. Jordan has substantial mental impairment that will probably be permanent. While in general he is not well-coordinated, his motor impairment is not considered to be substantial, but rather of less severity. There is no evidence in the medical record to suggest oxygen deprivation or mechanical trauma of brain or spinal cord during labor, delivery, or the immediate post-delivery period of resuscitation, is the cause of Jordan’s neurodevelopmental and brain MRI abnormalities. Dr. Fernandez reaffirmed his opinions contained in his June 2015 written report when he was deposed on May 11, 2016. That is, that Jordan has substantial mental impairment that will most likely be permanent. However, while Jordan is not well- coordinated, he is of the opinion that his motor impairment is not considered to be substantial, but rather is less severe. He also believes that Jordan’s motor development can improve. Dr. Fernandez also is of the opinion that the cause of Jordan’s impairments relates to his early brain malformation characterized as nodular heterotopias, not to any oxygen deprivation or mechanical trauma during labor, delivery or the immediate post-delivery period of resuscitation. This is consistent with the testimony of Jordan’s treating pediatric neurologist, Dr. Sheth, and supports the opinion of Dr. Willis. Dr. Fernandez’s opinion that Jordan is permanently and substantially mentally impaired is credited. Dr. Fernandez’s opinion that Jordan’s physical impairment is less than substantial is credited. The greater weight of the evidence establishes through the expert opinion of Dr. Willis that that there was no apparent obstetrical event that resulted in loss of oxygen to Jordan’s brain during labor, delivery and continuing into the post- delivery period that resulted in brain injury. The greater weight of the evidence establishes through the expert opinion of Dr. Fernandez that while Jordan has motor impairments, his motor impairment is less severe than substantial and that his motor development can improve. While Petitioners have presented factual evidence regarding Jordan’s birth and his mental and physical impairments, they have not established through expert opinion that there was an obstetrical event that resulted in oxygen deprivation or mechanical trauma to the baby’s brain during labor, delivery, or the immediate post-delivery period, or that Jordan has a permanent and substantial motor impairment as contemplated by section 766.302. Thus, Jordan is not entitled to benefits under the Plan.
Findings Of Fact Nina Udenze was born on April 19, 2013, at Memorial Hospital in Jacksonville, Florida. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Nina's medical records. In medical reports dated February 8 and March 12, 2016, Dr. Willis made the following findings and expressed the following opinion: I have reviewed the medical records, pages 1-505 for the above individual. The mother, . . . was a 34 year old G3 P2002 with a twin pregnancy. Nina was the B twins [sic]. The mother had a history of two prior Cesarean deliveries. * * * Repeat Cesarean section was done in early labor. Fetus B (Nina Udenze) was in a transverse lie. The baby was converted to breech and delivered. Birth weight was 2,152 grams (4 lbs 11 oz’s). Apgar scores were 6/9. The baby initially had a poor respiratory effort and required bag and mask ventilation for 45 seconds with good response. Apgar score was 9 by five minutes. The baby was taken to the NICU. The operative note indicated cord blood gases were done for both babies. However, only one cord blood gas result was seen in the available records (page 298). It was not labeled A or B and was apparently a venous sample. The pH was normal at 7.31 with a BE of -5. Hospital discharge was on DOL 4. The baby failed the newborn hearing test. Placental pathology was normal. There does not appear to be a birth related hypoxic brain injury based on available, but medical records are limited. No head imaging studies were available. It would be helpful if we could get the cord blood gas for fetus B. Thank you for allowing me to review this case. I will be available to review any additional records if they become available. Specifically, any head imaging studies and the cord blood gas for fetus B would be helpful. * * * Additional medical records were reviewed for the above individual, which included two MRI studies. The first MRI was done at about 8 months of age. A posterior fossa cyst was identified as well as findings suggestive of cerebral volume loss. MRI of the spine on the same day showed scoliosis. A follow-up MRI was done at about 2 ½ years of age, again identified the posterior fossa arachnoid cyst and also described partial absence of the Falx. It is also my understanding a cord blood gas for this child was not done at birth. The cord blood gas in the medical records was for the twin sibling. The additional medical records do not change the opinion given in the previous letter dated 02/08/2016. There does not appear to be a birth related hypoxic brain injury or mechanical trauma resulting in brain or spinal cord injury. In an affidavit dated April 1, 2016, Dr. Willis reaffirmed his ultimate opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period. Dr. Willis was deposed on May 26, 2016, wherein he testified in pertinent part as follows: Q. Okay. Do the records show that any mechanical devices such as forceps or vacuum extractions was used in the delivery? A. No. Q. You also note that her apgar scores were six and nine. Could you explain what an apgar score is? A. Yes. The apgar scores are given to the babies for a couple of reasons. The apgar score, the first apgar score is at one minute. And apgar scores can be anywhere from zero to ten. And the apgar score at one minute tells you how much resuscitation the baby requires at time of birth. An apgar score of seven or above would be considered normal. An apgar score below seven would be considered low. The one- minute apgar score is six. So, it was slightly lower than expected. However, by five minutes, the apgar score was nine, which would be a very good score showing that the baby transitioned well after birth. Babies that have significant oxygen deprivations during time of delivery, usually it takes a longer time for them to transition and recover. The baby seemed to recover fairly quickly. Q. Had there been oxygen deprivation at the time of delivery, what types of symptoms would you expect to see? A. Babies that have significant oxygen deprivation during the birthing process will be depressed and require resuscitation. They usually have respiratory distress. So, they’ll need some type of oxygen bag, mask ventilation, intubation. And then they will go to the neonatal intensive care nursery at -- which sometimes they will often have abnormalities in many of their different organ systems. For instance, seizure disorders are very common after brain injury at time of birth. You can also have renal failure, elevated liver function studies, blood clotting abnormalities. So, babies that have significant oxygen deprivation at birth will usually have some combination of these problems in the nursery. A baby that goes to the nursery and has a relatively benign newborn course in the nursery would not be consistent with significant oxygen deprivation during labor or delivery. Q. And in Nina’s case, what did the records indicate regarding her newborn course? A. The newborn course looked pretty uncomplicated. In fact, the newborn records pretty much just show normal newborn care, no significant problems in the newborn period. And the baby was discharged home on the third day of life. So, no prolonged hospital stay. * * * Q. All right. And based on your second letter dated March 2016, which is Exhibit 3, your final opinion was that there does not appear to be a birth-related hypoxic injury or mechanical trauma resulting in brain or spinal cord injury. Is that still your opinion today? A. That’s correct. Q. During your review of the medical records, did you find that Nina Udenze suffered oxygen deprivation occurring in the course of labor/delivery or resuscitation in the immediate postdelivery period that would have resulted in brain injury? A. No. Q. During review of the medical records, did you find that Nina Udenze suffered a mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period that would have resulted in brain injury or injury to her spinal cord? A. No. Q. And have your opinions today been rendered within a reasonable degree of medical certainty? A. Yes. Dr. Willis' opinion that there was no 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, is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate Nina. Dr. Duchowny reviewed Nina's medical records and performed an independent medical examination on her on February 3, 2016. In an affidavit dated April 4, 2016, Dr. Duchowny made the following findings and summarized his evaluation as follows: It is my opinion that: In SUMMARY, Nina's neurological examination reveals findings consistent with a substantial mental and motor impairment. Although Nina is walking, her gait is unstable with abnormal motor functioning and hyerreflexia. Her epicanthal folds were acquired prenatally and her unilateral hearing loss is unexplained. She also has microcephaly. A have had an opportunity to review the medical records which were sent on January 28, 2016. They reveal that Nina’s mother went into labor at 36 weeks gestation after experiencing spontaneous rupture of her membranes. Nina and her fraternal twin brother were delivered by urgent cesarean section. The fetal heart rate was stable. Nina was 4 pounds 11 ounces at birth and had 1 and 5 minute Apgar scores of 6 and 9. She required positive pressure ventilation for 45 seconds but then stabilized and did not experience subsequent respiratory complications. There was no evidence of multiorgan system involvement. Nina was discharged from Memorial Hospital Jacksonville on the 5th day of life. The medical records do not include the results of brain imaging studies. Before making a final determination, I would request to review the salient imaging studies. * * * I have now reviewed neuroimaging studies including MR brain imaging. The images do not reveal findings consistent with either an intra-partum hypoxic-ischemic insult or a mechanical injury. It is my opinion that together with the record review and neurological evaluation, the imaging findings confirm that Nina did not suffer from a birth-related neurological injury, and I am therefore not recommending inclusion within the NICA program. Dr. Duchowny's opinion that Nina did not suffer from a birth-related neurological injury 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. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord occurring in the immediate post- delivery period. Dr. Willis’ opinion is credited. Dr. Duchowny’s opinion that, although Nina has a substantial mental and motor impairment, she did not suffer from a birth- related neurological injury, is credited.
The Issue At issue in this proceeding is whether Ernest Hall, Jr., a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Initial observations As observed in the preliminary statement, neither petitioners nor anyone on their behalf appeared at hearing, and no proof was offered to support their claim. Ordinarily, such failing would be dispositive of the case; however, notwithstanding petitioners' failure of proof, respondent elected to offer into evidence the medical records filed with DOAH on May 15, 1996, which included records relating to Ernest Hall, Jr.'s (Ernest's) birth and subsequent development, as well as the opinions of Charles Kalstone, M.D., a board certified obstetrician, and Michael Duchowny, M.D., a board certified pediatric neurologist, to affirmatively resolve the issue as to whether Ernest had suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. Ernest's birth and development Ernest was delivered vaginally at 2:17 a.m., June 1, 1991, at Shands Hospital, the University of Florida, Gainesville, Florida. His Apgars were normal at birth (9 at one minute and 9 at five minutes) and arterial pH from the umbilical cord was normal at 7.19. Earnest's newborn course was characterized by anemia, transient thrombcytopenia, and prenatally acquired cytomegalovirus. Where, as here, the cytomegalovirus (CMV) was acquired prenatally, it has the potential to cause brain damage in the fetus, as well as hearing impairment, chorioretinitis (inflammation of the eye) and other central nervous system abnormalities. Consequently, Ernest was placed on a ten day regimen of Ampicillin and Gentamicin. A head CT taken on June 5, 1991, revealed periventricular calcification and probably parenchymal calcification consistent with a prenatal infection such as CMV. Notably, following insult, it would require several weeks for such calcifications to occur. Due to the high risk factor associated with CMV, Ernest's auditory brain stem response was evaluated on June 7, 1991. At the time, his response was noted to be within normal limits; however, follow-up was recommended in six months since he was at risk for hearing loss due to CMV. Ernest was discharged to his parents care on June 10, 1991. On February 28, 1994, Ernest was re-evaluated, and those results indicated a severe sensorineural hearing loss in the sound field. On June 19, 1996, Ernest was examined by Michael Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital. Dr. Duchowny's neurologic examination revealed evidence of marked hearing impairment with both expressive and receptive language delay, a left ptosis (drooping of the upper eyelid) and exotropia (a deviation of the visual axis of one eye away from that of the other) with chorioretinitis (inflammation of the choroid and retina). In Dr. Duchowny's opinion, which is credited, such findings were consistent with early CMV exposure, and placed Ernest at risk for significant cognitive delay, accentuated by his hearing impairment. Ernest's motor abilities were, however, noted to be age appropriate. As for the cause of Ernest's neurological injury, it must be concluded that the proof fails to demonstrate that it resulted from a brain or spinal cord injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation. Rather, the proof demonstrates, more likely than not, that Ernest's neurologic impairments derive from a congenital CMV infection, which predated his birth by several weeks.
The Issue Whether Daniel Espinoza has suffered an injury for which he and his mother, Maria L. Espinoza, should be awarded compensation under the Florida Birth-Related Neurological Injury Compensation Plan, as Ms. Espinoza has alleged in her claim for compensation filed on behalf of Daniel?
Findings Of Fact Based upon the evidence adduced at the July 14, 1994, Division-conducted hearing in this case, and the record as a whole, the following Findings of Fact are made: Daniel Espinoza is the natural son of Petitioner. He was born on January 6, 1991, at Jackson Memorial Hospital (hereinafter referred to as "Jackson") in Dade County, Florida. Daniel was the product of a full term pregnancy. His birth weight was in excess of 2500 grams. Daniel was delivered by Erin Colleen Dawson, M.D. At the time of Daniel's birth, Dr. Dawson was a participant in the Florida Birth-Related Neurological Injury Compensation Plan. The delivery was uneventful. Daniel was a "vigorous" baby at birth. He had a "good" Apgar score of 9 at one, five, and ten minutes after birth. There was no resuscitation required in the immediate postdelivery period. Approximately five hours after the initial evaluation, Daniel appeared to be "grunting" and suffering from "cyanosis." As a result, he was transferred to Jackson's neonatal intensive care unit, where he had a seizure and experienced respiratory distress. Daniel's C.S.F. (cerebrospinal fluid) was bloody and had a white blood cell count of 19000. An initial diagnosis of meningitis was made. On January 7, 1991, an EEG (electroencephalogram) was done. It revealed "no epileptiform phenomena." A CT (computerized tomography) scan of Daniel's brain was performed on January 8, 1991. The report of the scan read as follows: HISTORY- TWO DAY OLD WITH SEPSIS. 5 MM AXIAL SECTIONS WERE OBTAINED THROUGH THE BRAIN WITHOUT CONTRAST. THERE IS A SMALL LUCENT DEFECT IN THE LEFT OCCIPITAL BONE SEEN ON IMAGE #5. ALTHOUGH NO SOFT TISSUE SWELLING IS SEEN, CANNOT DEFINITELY EXCLUDE THIS BEING A LINEAR NONDEPRESSED FRACTURE VERSUS OTHER ETIOLOGY SUCH AS A VASCULAR GROOVE. WE SUGGEST CORRELATION WITH THE PLAIN FILM. THERE IS A HUGE AMOUNT OF BLOOD IN THE RIGHT POSTERIOR FOSSA EXTENDING ACROSS THE MIDLINE AND INSINUATING ON THE RIGHT TENTORIAL INCISURA SUPRATENTORIALLY. BLOOD IS ALSO SEEN ALONG THE POSTERIOR INTERHEMISPHERIC FISSURE DIFFUSELY IN THE EXTRA-AXIAL SPACE, AND A SMALL AMOUNT OF BLOOD IN THE OCCIPITAL HORNS OF THE LATERAL VENTRICLES. WITH SUCH A TREMENDOUS AMOUNT OF BLOOD PRESENT IN THE POSTERIOR FOSSA, IT IS DIFFICULT TO SAY HOW MUCH IS PARENCHYMAL VERSUS EXTRA-AXIAL. THERE IS MASS EFFECT UPON THE MID BRAIN PONS AND MEDULLA AND ON THE FOURTH VENTRICLE CAUSING OBSTRUCTING HYDROCEPHALUS. IMPRESSION LARGE ACUTE INTRACRANIAL HEMORRHAGE, AS DESCRIBED ABOVE, WITH THE EPICENTER BEING IN THE RIGHT POSTERIOR FOSSA. THE DIFFERENTIAL DIAGNOSIS INCLUDES NEOPLASM, TRAUMA, RUPTURED ANEURYSM OR ARTERIOVENOUS MALFORMATION, COAGULOPATHY, ETC. CONTRAST STUDY OR MRI MAY BE OF HELP FOR FURTHER EVALUATION TO TRY TO DETERMINE THE UNDERLYING ETIOLOGY. On January 9, 1991, Daniel underwent an echoencephalogram, which, according to the report of the study, indicated the following: ROUTINE ECHOENCEPHALOGRAM REVEALED DILATION OF THE LATERAL AND THIRD VENTRICLES. THERE IS A BILATERAL LUMPY CHOROID PLEXUS NOTED. ADDITIONAL TRANSTEMPORAL VIEWS REVEAL AN ECHOGENIC AREA SEEN IN THE INFRATENTORIAL REGION, WITH INCREASE IN THE ECHOGENICITY OF THE BASAL CISTERNS. THE FINDINGS ARE SIMILAR TO THOSE SEEN ON PREVIOUS CT SCAN, WHICH SHOWED EVIDENCE OF A CEREBRAL HEMORRHAGE WITH SUBARACHNOID BLEED. THE NORMAL STRUCTURES OF THE POSTERIOR FOSSA ARE ILL-DEFINED. IMPRESSION: MODERATE HYDROCEPHALIC CHANGES OF THE LATERAL AND THIRD VENTRICLES. SUBARACHNOID HEMORRHAGE WITH A POSTERIOR FOSSA HEMORRHAGE, AS DESCRIBED IN A PREVIOUS CT SCAN OF THE BRAIN. Another CT brain scan was performed on January 23, 1994, the report of which stated the following: THE PATIENT IS A TWO WEEK OLD MALE WITH A HISTORY OF INTRACRANIAL HEMORRHAGE. AXIAL IMAGES WERE OBTAINED THROUGH THE BRAIN AT 5MM INTERVALS FOLLOWING INTRAVENOUS ADMINISTRATION OF CONTRAST. COMPARED TO THE PRIOR STUDY OF 1-8-91, THERE HAS BEEN SUBSTANTIAL RESORPTION OF BLOOD IN THE REGION OF THE SUBDURAL, SUBARACHNOID AND INTRAVENTRICULAR HEMORRHAGE. THERE ALSO HAS BEEN MARKED DECREASE IN THE VENTRICULAR SIZE. THERE IS LESS ASSOCIATED MASS EFFECT, ESPECIALLY IN THE POSTERIOR FOSSA WITH PERSISTENT SUBDURAL HEMORRHAGE IN THE RIGHT SIDE OF THE POSTERIOR FOSSA DISPLACING THE CEREBELLUM ANTERIORLY AND TO THE LEFT. THE FOURTH VENTRICLE IS NOW VISUALIZED, HOWEVER. NO NEW AREAS OF HEMORRHAGE ARE SEEN. THERE ARE NO BONY ABNORMALITIES. THE MAXILLARY AND ETHMOID SINUSES AND MASTOID AIR CELLS ARE CLEAR. IMPRESSION SIGNIFICANT RESORPTION OF SUBDURAL, SUBARACHNOID WITH INTRAVENTRICULAR HEMORRHAGE SINCE THE PRIOR STUDY OF 1-8-91 WITH LESS MASS EFFECT, ESPECIALLY UPON THE CEREBELLUM AND BRAIN STEM. MARKED DECREASE IN VENTRICULAR SIZE HAS ALSO OCCURRED. On January 25, 1991, Daniel underwent a second echoencephalogram, the report of which read as follows: FOLLOW-UP BRAIN HEMORRHAGE. COMPARISON IS MADE TO PREVIOUS STUDY FROM 1/8/91. THERE HAS BEEN MARKED INTERVAL RESOLUTION OF THE PREVIOUSLY DEFINED RIGHT POSTERIOR FOSSA HEMORRHAGE. IN ADDITION, THE VENTRICULAR SIZE HAS DECREASED SIGNIFICANTLY SINCE THE PREVIOUS EXAM. THERE CONTINUES TO BE SLIGHT INCREASED ECHOGENICITY WITHIN THE SYLVIAN FISSURES BILATERALLY, WHICH MAY REPRESENT SOME RESIDUAL SUBARACHNOID HEMORRHAGE. NO EVIDENCE OF NEW OR ACUTE HEMORRHAGE IS IDENTIFIED. IMPRESSION: THERE HAS BEEN SIGNIFICANT INTERVAL IMPROVEMENT IN THE DEGREE OF VENTRICULAR DILATION AND THE PREVIOUSLY DEFINED HEMORRHAGE, WHEN COMPARED TO THE STUDY OF 1/8/91. Daniel was discharged from Jackson on January 31, 1991. At present, in terms of meeting expected language milestones, Daniel is mildly delayed, primarily in the area of expressive language. The delay is developmental in nature and Daniel will likely improve in this area over time. Otherwise, his mental functioning is relatively well preserved. Physically, Daniel is only very mildly impaired. He has a slight decrease in muscle tone and some incoordination, but he does not suffer from spasticity or contracture and he is able to move both of his arms well and to walk without losing his balance. He is even able to run, although he has a tendency to lean to the right and appear as if he is about to fall when he does so. In short, Daniel suffers from no permanent and substantial mental or physical impairment. 2/
