The Issue At issue is whether Elizabeth Ann Adams, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact April D. Adams and Jeffrey Floyd Adams are the natural parents of Elizabeth Ann Adams, a minor. Elizabeth was born a live infant on September 17, 2004, at St. Luke's Hospital, a licensed hospital located in Jacksonville, Florida, and her birth weight exceeded 2,500 grams. Obstetrical services were delivered at Elizabeth's birth by Michelle McLanahan, 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. Sufficient notice of participation in the Florida Birth-Related Neurological Injury Compensation Plan on the part of Michelle McLanahan, M.D., and St. Luke's Hospital was provided to April D. Adams. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired."3 § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, Petitioners were of the view that Elizabeth suffered a subgaleal hemorrhage4 (a bleed) and resulting subgaleal hematoma5 (a collection of blood within the tissue) between the skull and scalp (outside the brain) resulting from the use of the vacuum extractor during delivery, and that the hemorrhage was substantial enough to result in hypovolemia, and ultimately hypoxic-ischemic brain injury.6 (Petitioners' Memorandum Regarding Final Order, pp. 5-7). In contrast, NICA was of the view that the record failed to support the conclusion that Elizabeth's brain injury was caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period and that, regardless of the etiology of her brain injury, Elizabeth was not permanently and substantially mentally and physically impaired. Intervenor expressed no position on the issue. Elizabeth's birth and immediate newborn course At or about 11:24 a.m., September 16, 2004, Mrs. Adams, with an estimated delivery date of September 20, 2004, the fetus at 39 3/7 weeks' gestation, and a history of mild pregnancy induced hypertension (PIH), was admitted to St. Luke's Hospital for induction of labor. There, initial physical examination revealed her membranes were intact, no vaginal bleeding, and external fetal monitoring revealed a reassuring fetal heart rate baseline of 150-160 beats per minute, average long term variability and no decelerations. At or about 12:40 p.m., an IV was started for hydration, and at 3:14 p.m., Mrs. Adams' membranes spontaneous ruptured, with clear fluid noted. At the time, vaginal examination revealed the cervix at 2 centimeters dilation, effacement at 70 percent, and the fetus at -3 station. In the interim, external fetal monitoring was reassuring for fetal well-being. Thereafter, Cytotec ("miso[prostol]") was placed vaginally to soften the cervix (for induction of labor). Mrs. Adams' progress continued to be monitored, and at 6:10 p.m., vaginal examination revealed the cervix unchanged. However, at 6:58 p.m., vaginal examination revealed some change, with the cervix at 3-4 centimeters, effacement at 70 percent, and the fetus at -3 station, and an intrauterine pressure catheter (IUPC) was placed to measure the force of contractions during labor. Fetal monitoring continued to be reassuring for fetal well-being, with a fetal heart rate baseline of 145-160 beats per minute, average long term variability, and no decelerations. At 8:16 p.m., Pitocin infusion (for labor induction) was started, and at 8:37 p.m., contractions were noted at 1-2 minutes, and vaginal examination revealed the cervix at 5 centimeters dilation, effacement at 70 percent, and the fetus at -1 station. Fetal monitoring continued to be reassuring, with a baseline in the 150s. Mrs. Adams' progress continued, albeit slowly, with a prolonged second stage of labor (the expulsion/pushing stage) lasting more than two and a half hours,7 and at 5:03 a.m., September 17, 2004, Elizabeth was delivered vaginally, with vacuum assistance (three attempts). Of note, approximately three hours before delivery, recurrent variable decelerations and a mild baseline tachycardia developed, and approximately eight minutes before delivery severe, repetitive variable decelerations developed which prompted the vacuum-assisted delivery. At delivery, Elizabeth was dried, stimulated, and bulb-suctioned, otherwise no resuscitation measures were required. Apgar scores were good (8 and 9, at one and five minutes).8 Physical examination at 5:10 a.m., revealed no abnormalities, with the exception of an elevated temperature (102.7, rectal) and skin color (acrocyanosis was noted).9 By 5:40 a.m., skin color was noted as pink. Elizabeth roomed-in at her mother's bedside, and was routinely monitored by hospital staff. Of note, Elizabeth's temperature remained elevated until 1:30 p.m., when it was documented at 98.1 (auxiliary). In the interim, at 11:58 a.m., with temperatures of 100.0 (auxiliary) and 100.7 (rectal), complete blood count (CBC) and blood cultures were drawn. The CBC results revealed an elevated white blood count. Under the circumstances, the attending physician (Dr. Schwartz) noted, at 4:34 p.m., "[w]ill repeat CBC in a.m. . . . [w]ill not st[art] ABX unless temps elevated again." Blood culture was subsequently reported as negative. It also may be noted, although not shown to be clinically significant, that Elizabeth's behavior was, starting at 6:10 a.m., periodically described as "irritable" and "fussy." (Exhibit 18, pp. 22-24). Otherwise, Elizabeth's newborn stay was without incident, with normal newborn examinations, breastfeeding well, and voiding and stooling appropriately, until 8:35 p.m., when the attending nurse made the following entry in the records: Assumed care of infant. Infant/Mom ID # checked/verified. Physical assessment done and noted. Infant noted to be jittery and irritable. Mom states that infant has not breastfed since 1700-1730. Temp stable now at 98.8. Infant noted to settle after wrapping. Placed in mother's arms. Mom will breastfeed infant shortly. Will eval infant's next feeding. Thereafter, at 8:42 p.m., the attending nurse made the following entry: Called into room by parents. States that infant shreiked then arched her back and turned purple. Upon enter room infant's color noted to be dusky with purple lips. Left eye noted to be turned in and rt eye gazed. Unwrapped and body noted to be modled but no shaking present at this time. Infant taken to nicu for immediate evaluation. Elizabeth's subsequent care was summarized in her Discharge Summary, as follows: . . . Nursing brought the infant to this Special Care Nursery and it was felt that the infant was having seizure activity. At this point a complete septic workup was performed. The infant was placed on IV antibiotics and further cultures including spinal fluid were sent. The workup was initially benign; however, a CT scan [on September 18, 2004] was within normal limits except that J. Norman Patton, M.D., Division of Cardiovascular Diseases, Internal Medicine, could not completely rule out some mild evidence of inflammatory response in the brain . . . . The CT scan of September 18, 2004, was done to rule out a bleed as the cause of Elizabeth's seizures, and was read as follows: CT head without and with contrast. Iodinated contrast was given per protocol. Nonionic contrast was utilized. Small subgaleal hematoma in the biparietal locations. The intracranial contents appear unremarkable. Specifically, there is no evidence for parenchymal/extra-axial hemorrhage, nor pathologic enhancement. The ventricle volume is within normal limits, and without midline shift. A subgaleal hematoma or hemorrhage is a bleeding between the skull and the skin on the outside of the skull (scalp), and not within the brain. (Exhibit 18, pp. 15, 16, and 18). The Discharge Summary continued, and documented Elizabeth's care as follows: At this point acyclovir was also added to the antibiotic regimen. The CSF PCR was negative, but surface cultures revealed positive HSV [herpes simplex virus] in the rectal swab, although negative in the oropharynx. For this reason the infant was continued on acyclovir for a total of 21 days. After negative cultures the ampicillin and gentamicin were discontinued. The infant also required mild oxygen in this period and was placed on 1.5 liters 30-40%. Over the next several days this was able to be discontinued. Dr. Gamma, Pediatric Neurology, was involved in the patient's case and consulted on a regular basis. EEG was consistent with seizure activity. The infant was on phenobarbital and later secondary to continued occasional seizures, was started on Cerebyx. The goal was to get this infant's phenobarbital level to between 20 and 30; however, the infant metabolized the phenobarbital very well and despite increasing the dose, the phenobarbital level remained in the 19-20 range. Eventually the Cerebyx was discontinued and the infant is discharged home only on phenobarbital. The infant initially was fed fairly slowly, but by the end of admission was eating well and gaining weight steadily. The infant was ready for discharge on 10/09/04 following 21 days of acyclovir and at this point the infant had a phenobarbital level of 19.3 and a weight of 3940 grams or 8 pounds 11 ounces. The parents have been very involved with the infant, visited often, and have demonstrated good care for this baby. The infant's workup also includes urine for amino acids, which was within normal limits. Liver function tests were within normal limits. Screening CBCs were within normal limits. Ammonia was normal at 36. Urine organic acids were within normal limits . . . . An MRI performed on September 22, 2004, revealed: . . . restricted diffusion in the left occipital lobe, both parietal and frontal lobes, worse on the left, consistent with cytotoxic edema as seen in infarction, secondary to ischemic and or sequelae of severe meningoencephalitis The ventricle volume is within normal limits, and without midline shift. A head ultrasound performed on September 30, 2004, was normal and reported, as follows: Using the anterior fontanelle as an acoustic window, routine coronal and sagittal images were obtained. No evidence for intracranial or germinal matrix hemorrhage. Ventricles are not dilated and appear normal in shape and position. No obvious parenchymal abnormality. Elizabeth was discharged on October 9, 2004. Physical examination on discharge was noted in her Discharge Summary, as follows: Physical exam on discharge revealed a discharge weight of 3940 grams, length of 53 cm, and head circumference of 35.5 cm. The infant was well-developed, well- nourished, alert, pink non-jaundiced female in no acute distress. HEENT was negative. Anterior fontanelle was soft and flat. Lungs were clear to auscultation in no distress. Heart - Regular rhythm without murmur. Abdomen - Soft, benign and nontender. GU - Normal female. Back - Normal extremities, negative Ortolani, negative bilaterally. Neurologic exam intact. Discharge medication was phenobarbital. Follow-up was recommended with pediatrics, neurology, Early Intervention Program at Shands, and Occupational Therapy and Physical Therapy at Nemours. Discharge Diagnoses were: HSV ENCEPHALITIS - SEPSIS. NEONATAL SEIZURES. TERM FEMALE NEWBORN. Of note, subsequent testing revealed that Elizabeth had not been exposed to the herpes simplex virus (HSV), and the positive HSV result was a false positive. Elizabeth's subsequent development Following Elizabeth's discharge from St. Luke's, she was evaluated by the Early Intervention Program (in October 2004) to resolve whether she qualified for services. At the time, it was felt Elizabeth did not qualify for the program, as her development was within normal limits (WNL) for her age. However, in March 2005, at age 6 months, Elizabeth was reevaluated and found eligible for occupational, speech, and physical therapy services due to motor and language delay. Those services were discontinued by October 2005, since Elizabeth's developmental growth appeared age appropriate. (Exhibit 7). Elizabeth was weaned off phenobarbital at age 15 months (about December 2005) and remained seizure-free until October 13, 2006, when a seizure was noted and she was ultimately transported (after treatment in a local emergency room) to Wolfson's Childrens Hospital (Wolfson's) in Jacksonville. There she was loaded with phenobarbital and Dilantin, the seizures stopped, and on October 15, 2006, she was discharged on maintenance dosage of phenobarbital. However, on October 16th, she had a second seizure and was readmitted to Wolfson's, and then on October 18, 2006, discharged on an increased dosage of phenobarbital. Thereafter, in December 2006, her medication was changed from phenobarbital to Trileptal. (Exhibit 9). Since that time, Elizabeth has experienced seizures on four occasions, three of which she was treated at Wolfson's (April 17-19, 2007; March 19-20, 2008; and July 10, 2008) and the last of which (March 1, 2009) she apparently was treated at home in North Carolina. (Exhibits 9 and 27). Apart from her seizure disorder, Elizabeth's health has been good, and developmentally she continued to make good progress, without the need for any therapies since they were discontinued in October 2005. Currently, Elizabeth attends a regular school program, and was shown to evidence very mild physical impairment and no mental impairment. (See, e.g., Exhibits 16, 17, and 19). Whether Elizabeth suffered a "birth-related Neurological injury" To address whether Elizabeth suffered a "birth-related neurological injury," the parties offered a Stipulated Record (Exhibits 1-28), that included the medical records associated with Mrs. Adam's antepartal course, the medical records associated with Elizabeth's birth and subsequent development, the deposition testimony of the delivering obstetrician (Dr. McLanahan), and the deposition testimony of Mr. and Mrs. Adams. The parties also offered the deposition testimony of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine, and Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, electroencephalography, and neurophysiology. Based on his evaluation of the medical records, it was Dr. Willis' opinion that Elizabeth did not suffer a brain injury caused by oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate postdelivery period.10 In so concluding, Dr. Willis observed Elizabeth was not depressed at birth; her Agpar scores were normal (8 at one minute, and 9 at five minutes); she did not require any significant resuscitation (only stimulation and bulb- suctioning); and her newborn course was without incident until seizures were noted at 16 hours after birth. As for the subgaleal hemorrhage (the bleed between the skull and the scalp) Elizabeth was shown to have suffered (on the CT scan of September 18, 2004), Dr. Willis agreed it was likely related to the vacuum-assisted delivery. As for the cause of the periventricular hemorrhage (brain injury/stroke) Elizabeth was shown to have suffered (on the MRI of September 22, 2004), Dr. Willis voiced no opinion, and deferred to the expertise of a pediatric neurologist. As for Petitioners' theory of the case, that a subgaleal hemorrhage can progress to cause bleeding within the brain as a result of hypovolemia, Dr. Willis agreed. However, he did not see evidence in this case to suggest such a causative connection. Dr. Willis expressed his opinion, as follows: Q. Tell me why you don't think, if you don't think, that her brain injury is related to the vacuum extraction? A. Well, subgaleal hemorrhage is between the skull and the skin on the outside of the skull, and that's very common with vacuum extractions. But the only way that that can cause a brain injury that I'm aware of is that if so much hemorrhage occurs into that hematoma that the baby becomes hypovolemic and has a stroke due to hypovolemia and low blood pressure related to blood loss. I am not aware that this child had a subgaleal hematoma that was to that extent. (Exhibit 18, pp. 17 and 18). See also Exhibit 18, p. 35. Dr. Duchowny evaluated Elizabeth on September 10, 2008. Based on his evaluation, as well as his review of the medical records, Dr. Duchowny was of the opinion that Elizabeth's impairments were likely the result of a meningoencephalitis (an "inflammation of the brain and meninges"11), resulting from a viral infection, albeit not HSV, as opposed to a brain injury caused by oxygen deprivation or mechanical injury occurring during labor or delivery. Dr. Duchowny was also of the opinion that Elizabeth was neither substantially mentally nor substantially physically impaired. (Exhibits 15 and 19). Dr. Duchowny described the results of his evaluation, and the bases for his opinions, as follows: Q. . . . During that examination did you obtain any medical history from Elizabeth's family? A. Yes. Q. What was the history that you obtained? A. I was able to speak to Elizabeth's mother, who was the person, the caretaker, bringing Elizabeth to my office; and she first talked about Elizabeth's seizures, which began shortly after birth, at age sixteen hours; and continued with a total of five seizures during her life. The seizures, although infrequent, were prolonged, and her mother indicated that they lasted between three and five hours, all of which, obviously, resulted in hospitalizations. They were terminated with rescue Diastat in order to stop the status epilepticus. All of Elizabeth's seizures began on the right side of her body but then would generalize to involve both arms and both legs, and most recently Elizabeth has been treated which Trileptal, which apparently has brought the seizures under control. Her mother then went on to describe mild weakness on the right side of Elizabeth's body. She commented that Elizabeth had trouble with fine motor coordination, particularly a pincer grasp, and as a result was a left hander. However, Elizabeth's overall motoric ability was good. She didn't have any specific limitations to her motor abilities, and she was fully functional for her age, which at that time was three years. On a positive note, her mother indicated that her mental development was going well, that there were no delays in her acquisition of speech and language, and that she was in the New Dimensions Preschool Program where she was attending a regular classroom. There has never been any regression of Elizabeth's abilities, and at the time that I evaluated Elizabeth in September, she did not have an ongoing need for either physical or occupational therapy. Otherwise, things were good; she was healthy. She was under the care of Dr. Harry Abrams at Nemours Children's Hospital. She continued to have abnormal EEGs, and her mother commented that her MRI scan of the brain revealed damage, primarily on the left side of her brain. Q. What information, if any, did you obtain regarding her birth? A. Well, again, this was information from Elizabeth's mother, and she told me that Elizabeth was born after a term gestation at St. Luke's Hospital. It was a natural delivery, but with the assistance of a vacuum for the extraction. Elizabeth weighed seven pounds, eleven ounces. She breathed well. She was not a jaundice baby, but that she remained in the NICU at St. Luke's Hospital for a treatment of suspected infection with the herpes simplex virus; so essentially, a herpes simplex encephalitis concern. Q. Thank you. Did you obtain any information with respect to Elizabeth's growth and development? A. Yes. Elizabeth rolled over and sat at six months and then was able to stand at age ten months. She was walking on her own by age thirteen months and began talking in single words between a year and age eighteen months. At the time I saw her she had not yet been toilet trained, but she received all of her immunizations and had no known allergies to medications. She had undergone surgery on two occasions for the ear tubes and, of course, there were the multiple hospitalizations for the recurrent bouts of status epilepticus. Q. Did you perform a physical examination of Elizabeth? A. Yes. Q. What were your findings upon that examination? A. When I saw her, she was actually quite cooperative so, socially, she was very appropriate for her age. She seemed appropriately nourished and developed. Her weight was recorded at thirty-five pounds. There was no abnormalities of her skin, neck and she had no abnormal aspects of her body which suggested a malformation. I noted that her spine was normal. Her head growth was good. She had a head circumference of 49.1 centimeters, which for age three years is within standard percentiles. There were no abnormalities of her heart, her lungs, her abdomen, and her extremities or her peripheral pulses. Q. Did you also perform a neurological examination of Elizabeth? A. Yes. And once again, in terms of her social abilities, she actually was quite good for her age and she was appropriately verbal at her age level. She answered questions, she provided decent verbal content. I thought her speech sounds had a very mild disarticulation, but she knew her colors. She was able to identify parts of her body, and she was able to draw with a pencil using her left hand. No drooling was noted. Examination of her cranial nerves was essentially normal, and her motor examination revealed a well developed, age appropriate amount of muscle strength, bulk of her muscle and muscle tone. I was unable to detect any specific focal weakness, although, again, there was a difference in terms of her fine motor coordination. Even though she used both hands cooperatively, she clearly preferred her left hand, although I was able to demonstrate a pincer grasp bilaterally and reasonably good manual dexterity. Where I did think there was asymmetry had to do with her walking where her left arm would swing in a more prominent fashion on the left compared to the right. Also, there was a tendency actually for both feet to turn in, but this was more prominent, again, on the right side. I thought that Elizabeth's sensory examination was normal and that her gait was appropriate in terms of coordination, despite the asymmetric arm swing. Her deep tendon reflexes were normal and symmetric on both sides of the body, in other words, both arms and legs; and her plantar response, which is a reflex response to stroking the bottom of the feet, was normal. There were no abnormalities of her neurovascular examination, meaning that there were no asymmetries when a stethoscope was placed on her neck, head or over her eyes. The bones of her skull were closed, which was appropriate. Q. Okay. Thank you. Based upon your review of the medical records and documents which you identified earlier, and based upon your examination of Elizabeth and the findings from that examination, were you able to form an opinion as to the nature and extent of Elizabeth's neurological delays or developmental delays, if any, and the etiology of those delays? A. Well, there were some findings on the neurological exam with respect to Elizabeth's motor coordination, and my impression was that these findings were, at best, mild. I would characterize them really as very mild. Q. Specifically, what are those findings? A. The asymmetric arm swing, the establishment of handedness on the left and slightly decreased -- well, really, minimal, minimal change in dexterity. Really, the arm swing and the handedness. Q. And those delays that you've identified and, as I understand it, it's your opinion that you would characterize those as mild? A. Yes. Q. What functional impact, if any, do those mild delays have on Elizabeth based upon your examination of her when you saw her? A. Well, at present I would have predicted that there would be no compromise to her functionality, and that appeared to be the case. Q. With respect to her cognitive development, what were you able to conclude based upon your review of the medical records and your examination of her? A. My examination revealed normal cognitive development; in other words, a level of mental function, which was at age level. So I was, again, not surprised that she was in a regular class at the New Dimensions Preschool. Based upon your review of the medical records, were you able to form an opinion as to the etiology of any of those neurological problems that were identified? A. Well, from a review of the records, I think that there was a strong indication that Elizabeth had had some kind of meningoencephalitis in the first week of life, and I believe that her findings on neurological examination today are related to the previous bout of meningoencephalitis. Q. Do you have an opinion as to whether or not Elizabeth suffers from a substantial mental impairment? A. I do, and that is that I do not believe that Elizabeth has a substantial mental impairment. Q. Do you have an opinion as to whether or not Elizabeth suffers from a substantial physical impairment? A. I do not believe that Elizabeth has a substantial physical impairment either. * * * Q. . . . You mentioned the motor findings that you described as, at best, mild, or very mild, and you listed the asymmetrical arm swing, and the handedness on the left and the minimal loss of dexterity. I think your findings also included abnormalities in the gait, is that correct? A. Yes, that's true. There was a toe-in position bilaterally, but I didn't see that as a functional problem. She did that, but it didn't seem to contribute to any disability at all . . . . (Exhibit 19, pp. 7-16). When, as here, the medical condition is not readily observable, issues of causation are essentially medical questions, requiring expert medical evidence. See, e.g., Vero Beach Care Center v. Ricks, 476 So. 2d 262, 264 (Fla. 1st DCA 1985)("[L]ay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observable."); Ackley v. General Parcel Service, 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The determination of the cause of a non-observable medical condition, such as a psychiatric illness, is essentially a medical question."); Wausau Insurance Company v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obligated to present expert medical evidence establishing that causal connection."). Here, the opinions of Doctors Willis and Duchowny were logical, consistent with the record, not controverted, and not shown to lack credibility. Consequently, it must be resolved that the cause of Elizabeth's impairments was most likely a meningoencephalitis, as opposed to a "birth-related neurological injury," and, regardless of the etiology of her impairments, she is not permanently and substantially mentally and physically impaired. See Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation.").
Findings Of Fact By stipulation dated August 26, 1993, and filed August 27, 1993, petitioners and respondent agreed "that for purposes of the disposition of this cause, relative to a ruling on that certain Motion to Dismiss filed by the Respondents under the date of March 17, 1993, the weight of Raquel Solorzano, at birth was 2,296 grams."
The Issue At issue in the proceeding is whether Tabitha Tutt, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Petitioners, Laura Tutt and Darryl Tutt, are the parents and natural guardians of Tabitha Tutt, a minor. Tabitha was born a live infant on February 19, 1998, at Jackson Memorial Hospital, a hospital located in Miami, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Tabitha was Sharon Salamat, M.D., who was at all times material hereto a "participating physician" in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(2), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimants demonstrate, more likely than not, that the infant suffered an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post- delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Section 766.302(2), Florida Statutes. Here, the uncontroverted proof demonstrates that the infant has neither a substantial mental nor a substantial physical impairment. Consequently, it is unnecessary to address whether she suffered an injury to the brain or, if so, whether any such injury occurred in the course of labor, delivery, or resuscitation in the immediate post- delivery period in the hospital. Tabitha's mental and physical presentation On December 2, 2000, following the filing of the claim for compensation, Tabitha was examined by Michael S. Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital, Miami, Florida. The results of that evaluation were reported, as follows: HISTORY ACCORDING TO MRS. TUTT: The mother began by indicating that Tabitha has delays due to birth trauma. She specifically identified a delay in toilet training and difficulties with differentiating between boys and girls as Tabitha's major problems. She is quite bothered by these problems and apparently has had Tabitha in the Easter Seal Program. Tabitha will soon be leaving Easter Seal for a new program, as she will be ineligible to continue past February. In contrast, Tabitha's speech development has been normal and she does not have any motoric problems. Her hearing and vision are said to be unremarkable. Mrs. Tutt continued that Tabitha had a difficult delivery. She was born at term at Jackson Memorial Hospital, but Mrs. Tutt said that she was diagnosed with "fetal demise" 20 hours prior to delivery. The delivery was vaginal and apparently stressful. Tabitha remained at Jackson Memorial Hospital for 2 weeks primarily for observation. She had an apneic episode on the third day of life requiring intubation and a C-PAP. Her clinical course stabilized and she was discharged in good condition. She has never been re-hospitalized. Tabitha otherwise enjoys good health. She has not been exposed to toxic or infectious agents and there have been no significant head injuries. She takes Rhinocort, but no other intercurrent medications. FAMILY HISTORY . . . Tabitha has never suffered from seizures, nor has there been any deterioration in her overall neurologic development. Her milestones were on time, in that she walked at 12 months. Tabitha is fully immunized and has no significant allergies. She has . . . [never] undergone surgery. PHYSICAL EXAMINATION reveals an alert, well developed, pleasant and cooperative 2 3/4 years old female. The weight is 36-pounds and height 37-inches. The hair is brown and of normal texture. The eye color is . . . [ash] brown. There is no identifying cutaneous lesions and no dysmorphic features. The head circumference measures 50.3 cm, which is within standard percentiles and there are no cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are unremarkable. Tabitha's NEUROLOGIC EXAMINATION reveals her to be alert and interactive. She has a good attention span and seems to be quite pleasant socially. She easily engages in games and seems to derive enjoyment from these activities. Her speech is fluent for age and appropriately articulated. The cranial nerve examination reveals full extraocular movements and normal ocular fundi. The pupils are 3 mm and briskly reactive to direct and consensually presented light. The tongue movements are full and there are no significant facial asymmetries. Motor examination reveals symmetric strength, bulk and tone. There are no adventitious movements or evidence of focal weakness or atrophy. The deep tendon reflexes are 2+ in the upper extremities and 3+ in the lower extremities with flexor plantar responses. Sensory examination is intact to withdrawal of all extremities to stimulation. Her gait is stable and appropriately based. There is no ataxia. The neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Tabitha's neurologic examination in detail reveals no specific focal or lateralizing features. She seems to be functioning at age level and there is no evidence of substantial motor or mental impairment . . . . Dr. Duchowny's opinion, that Tabitha's neurologic examination revealed no significant abnormalities, and that she does not suffer either a substantial motor or mental impairment, was uncontroverted, grossly consistent with the record, and credible. Consequently, it must be resolved, for reasons appearing more fully from the Conclusions of Law which follow, that Tabitha does not qualify for coverage under the Plan.
The Issue At issue is whether Noah Taber (Noah), a minor, suffered a "birth-related neurological injury," as defined by Section 766.302(2), Florida Statutes.1
Findings Of Fact Preliminary findings Dawn Tabor and Britt Tabor, are the parents and natural guardians of Noah Tabor, a minor. Noah was born a live infant on June 19, 1999, at Largo Medical Center, a hospital located in Largo, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Noah's birth was Ivelisse Ruiz-Robles, 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. Noah's presentation On April 23, 2002, following the filing of the claim for compensation, Noah was examined by Michael S. Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital, Miami, Florida. Dr. Duchowny reported the results of his neurological evaluation, as follows: Noah's PHYSICAL EXAMINATION reveals Noah to be an alert, extremely active youngster. He weighs 25-pounds. The hair is blond and of normal texture. The head circumference measures 43.3 cm, which is several standard deviations below age level and median for age 5-month males. He has frequent tongue thrusting movements and drooling. There are no dysmorphic features and no cutaneous stigmata. The spine is straight. There is a small nevus flambeaus. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. Noah's NEUROLOGIC EXAMINATION reveals a small child with a short attention span and high activity level. Noah is difficult to control and has poor social skills. He did not articulate words during the evaluation. Noah tends to engage in simple games and there is no evidence of overtly aggressive behavior. He will perform very simple commands. Noah would not identify body parts for me. Noah's MOTOR EXAMINATION reveals generalized hypotonia in all extremities, with a slight dynamic increase of tone on the right. He has exaggerated range of motion on the left side, with normal range of motion on the right. There is no evidence of spasticity. Noah demonstrates a clear left hand preference and will grasp with both hands on the right. He can clearly use the right hand to manipulate objects and transfer to the left. There is also diminished arm swing on the right side, compared to the left. His overall movement is clearly more fluid on the left side of his body. He has bilateral pes planus and there is no clear asymmetry of gait with regard to the lower extremities. Muscle bulk is symmetric throughout. The deep tendon reflexes are bilaterally brisk at 3+ and both plantar responses are in extension. He walks in a straightforward manner and turns crisply. He would not cooperate for formal finger-to-nose or heel- to-shin testing. A sensory examination is grossly intact to withdrawal all extremities to touch. The cardiovascular examination reveals no cervical, cranial, or ocular bruits and no temperature or pulse asymmetries. An AFO is appreciated over the right ankle. In SUMMARY, Noah's neurologic examination is significant for microcephaly and a prominent cognitive impairment. In contrast, his motor deficit is much less severe and it appears to be improving steadily. I am not sure that he needs an AFO, as he has good range of motion. Noah also suffers from epilepsy. Following his examination, Dr. Duchowny had the opportunity to review Noah's medical records and concluded that: Although Noah has a substantial mental impairment, his motor abilities are only mildly behind age level and I suspect that he will continue to improve over the next several years. For this reason, I do not believe that Noah is eligible for compensation under the Florida NICA statute. 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 a "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Section 766.302(2), Florida Statutes. See also Section 766.309(1)(a), Florida Statutes. Here, the medical records and the results of Dr. Duchowny's neurological evaluation demonstrate Noah suffered an injury to the brain caused by oxygen deprivation in the course of labor, delivery, or resuscitation in the immediate post- delivery period that rendered him permanently and substantially mentally impaired; however, physically, he was not similarly affected or, stated otherwise, he was not rendered permanently and substantially physically impaired.
The Issue At issue in the proceeding is whether Clayton Kenneth Hunter Cochran (Hunter), a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Jean Ann Cochran and Clayton Leon Cochran, are the parents and natural guardians of Clayton Kenneth Hunter Cochran (Hunter). Hunter was born a live infant on June 12, 1997, at Orlando Regional Health Care System, Inc., d/b/a South Seminole Hospital, a hospital located in Longwood, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Hunter was John V. Parker, M.D., who was at all times material hereto a "participating physician" in the Florida Birth- Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(2), Florida Statutes. Pertinent to this case, coverage is afforded under the Plan, when the claimants demonstrate, more likely than not, that the infant suffered an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, Hunter's mental and physical presentation are dispositive of the claim and it is unnecessary to address the cause or timing of any injury he may have suffered. To address Hunter's current physical and mental status, Petitioners offered the opinions of Michael S. Duchowny, M.D., a pediatric neurologist, as well as the results of Hunter's recent occupational therapy evaluations by the Easter Seal Program of Volusia and Flagler Counties. Notably, Dr. Duchowny examined Hunter on March 20, 2000, and reported the results of his neurological evaluation as follows: NEUROLOGIC EXAMINATION reveals Hunter to be alert and socially oriented. He tends toward non-fluency, but can communicate some thoughts in words. Hunter has a speech articulation defect. He can talk in phrases and short sentences. There is good central gaze fixation with conjugate following movements. The pupils are 3 mm and briskly reactive. There are no fundoscopic findings and no significant facial asymmetries. The tongue and palate move well without drooling. Motor examination reveals symmetric strength, bulk and tone. There are no adventitious movements, focal weakness or atrophy. The outstretched hands are markedly postured. His gait is stable and reasonably narrow based. The deep tendon reflexes are 2+ and symmetric. The plantar responses are downgoing. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. The sensory and cerebellar examinations are deferred. In SUMMARY, Hunter presents as a 2 1/2 year old boy with an expressive language delay and speech dysfluency. In contrast, he has mild fine motor incoordination, but his examination is otherwise non-focal. I have not as yet had an opportunity to review Hunter's records and will issue a final report once the review process is complete. Subsequently, Dr. Duchowny had an opportunity to review the medical records, and on April 11, 2000, reported his conclusions as follows: A review of medical records and the medical evaluation of Clayton "Hunter" Cochran leads me to believe that he does not have significant neurologic impairment. His neurologic examination reveals evidence of an expressive language delay and some fine motor incoordination. Both of these findings are developmentally based and indicate acquisition in utero, long before the onset of labor and delivery. These findings are mild and there certainly is no evidence of substantial mental or motor impairment. Furthermore, Hunter's developmental delay would be expected to improve over time and therefore is not permanent. Dr. Duchowny's deposition testimony and the results of recent occupational therapy evaluations by the Easter Seal Program are consistent with the opinions heretofore expressed by Dr. Duchowny. Consequently, it must be resolved that the proof failed to demonstrate that Hunter was "permanently and substantially mentally and physically impaired," as required for coverage under the Plan.
The Issue Whether obstetrical services were delivered by a participating physician in the course of labor and delivery. If so, whether notice was accorded the patient as contemplated by Section 766.316, Florida Statutes.1
Findings Of Fact Fundamental findings Petitioner, Lisa Gilcreast, is the mother and natural guardian of Kara Gilcreast, a minor. Kara was born a live infant on May 28, 2000, at Bayfront Medical Center, Inc. (Bayfront Medical Center), a hospital located in St. Petersburg, Pinellas County, Florida, and her birth weight exceeded 2,500 grams. Coverage under the Plan A claim is compensable under the Plan when it can be shown, more likely than not, that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth." Section 766.31(1), Florida Statutes. See also Section 766.309(1), Florida Statutes. Here, the parties have stipulated, and the proof is otherwise compelling, that Kara sustained a "birth- related neurological injury," as that term is defined by Section 766.302(2), Florida Statutes. What remains in dispute is whether obstetrical services were rendered by a "participating physician" at birth. The "participating physician" issue Section 766.302(7), Florida Statutes, defines the term "participating physician," as used in the Plan, to mean: . . . a physician licensed in Florida to practice medicine who practices obstetrics or performs obstetrical services either full time or part time and who had paid or was exempted from payment at the time of the injury the assessment required for participation in the birth-related neurological injury compensation plan for the year in which the injury occurred . . . . And, Section 766.314(4)(c), Florida Statutes, describes the circumstances under which a resident physician, assistant resident physician, or intern may be deemed a participating physician without payment of the assessment otherwise required for participation in the Plan, as follows: . . . if the physician is either a resident physician, assistant resident physician, or intern in an approved postgraduate training program, as defined by the Board of Medicine or the Board of Osteopathic Medicine by rule, and is supervised by a physician who is participating in the plan, such resident physician, assistant resident physician, or intern is deemed to be a participating physician without the payment of the assessment Supervision shall require that the supervising physician will be easily available and have a prearranged plan of treatment for specified patient problems which the supervised . . . physician may carry out in the absence of any complicating features . . . . (Emphasis added) Pertinent to this case, the proof demonstrates that the physicians providing obstetrical services during the course of Kara's birth were resident physicians3 in Bayfront Medical Center's postgraduate residency program in obstetrics and gynecology.4 The proof further demonstrates that during that time, Dr. Karen Raimer, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (Plan), was the supervising physician, and that she was in the hospital and easily available (by beeper or overhead page through the hospital operator) to consult with or assist the residents if they requested. However, Dr. Raimer was never called by the residents, and she did not provide any obstetrical services during the course of Ms. Gilcreast's labor or Kara's birth.5 As heretofore noted, "supervision," as defined by Section 766.314(4)(c), Florida Statutes, "require[s] that the supervising physician will be easily available and have a prearranged plan of treatment for specified patient problems which the supervised . . . physician may carry out in the absence of any complicating features." Here, while the supervising physician was easily available, there was no compelling proof that "the supervising physician . . . [had] a prearranged plan for treatment of specified patient problems which the supervised . . . physician . . . [could] carry out in the absence of any complicating features" (the prearranged plan for treatment). Consequently, the resident physicians and intern who provided obstetrical services during Kara's birth were not exempt from payment of the assessment required for participation in the Plan, and were not "participating physician[s]," as that term is defined by the Plan. In reaching such conclusion, Dr. Raimer's testimony regarding the residency program at Bayfront Medical Center, as well as her perceptions on the existence of a prearranged plan of treatment, has been considered. In this regard, it is noted that Dr. Raimer's role as supervising physician, or attending physician as it was known in the residency program, was to be available if the residents had any questions or concerns regarding patient care, and if her assistance was not requested, as it was not in this case, she did not involve herself in the labor and delivery. Under such circumstances, as is the practice in the residency program, the residents are left to manage the patient's care, with the more senior resident supervising the more junior. As for resident supervision in this case, Dr. Raimer offered the following observations: Q: And so [w]as . . . [Dr. Marler] the person for the shift on Sunday, May 28, 2000, who was responsible for the supervision of the other residents? . . . [A]s far as I remember, Dr. Marler was the chief resident on that day, the fourth-year. Q. Is there any resident that's higher than the chief resident? A. No. Q. So if he's there - A. Then he was responsible. * * * Q. So he was responsible to supervise the senior residents, the third-year residents, the second-year residents, and the first-year residents; is that correct? A. That's correct. Q. And you relied upon him to do that? A. Yes. [Joint Exhibit 2, pages 50 and 51] As for a preexisting plan of treatment, Dr. Raimer offered the following observations: Q. Now, in May 2000, did you have any prearranged plan of treatment for specified patient problems which the resident may carry out in the absence of any complicating features? All of the residents in their training as they go through the four years, it’s a cumulative knowledge base and experience base that develops. And by the time that they get through their fourth year and about to graduate and get to that point, if they are a fourth-year, we feel that they are competent in knowing how to manage cases that have complicating features, and if not, they can call their attending physician. * * * . . . [Again], residents during their training are expected to learn how to manage patients throughout their four years of experience. And, again, by the time they get to their fourth year, they are expected to know how to manage patients on an obstetrical unit and manage complicating features. If there is any concern or any question, they are to call their attending physician. [Joint Exhibit 2, pages 47 and 48] From Dr. Raimer's testimony, it is apparent that, unless requested to do so, the supervising physician does not participate in the preparation of a plan of treatment. Rather, it is customary, as was done in the instant case, for the chief resident to develop the plan. Therefore, as heretofore noted, the resident physicians and intern who provided obstetrical services during Kara's birth were not exempt from payment of the assessment required for participation in the Plan, and were not "participating physician[s]," as that term is defined by the Plan. The notice issue Pertinent to the notice issue, the proof demonstrates that Ms. Gilcreast received her prenatal care at Bayfront Women's & Children's Health Center (the Clinic), an outpatient facility established by Bayfront Medical Center to provide obstetrical services to lower income families in mid-Pinellas County, and located at 7995 66th Street, North, Pinellas Park, Florida. Staffing at the facility included faculty of, and residents participating in, Bayfront Medical Center's postgraduate residency program in obstetrics and gynecology, as well as two perinatologists and three nurse midwives, all of whom were employed by Bayfront Medical Center.6 Notably, at her first visit to the Clinic, Ms. Gilcreast (age 18, with her first pregnancy) met with Cynthia McNulty, a patient representative, for a new patient orientation. During that orientation, which lasted from 45 minutes to 1 hour, Ms. McNulty addressed a number of matters with Ms. Gilcreast, including financial matters (Florida Medicaid), Healthy Start (for which Ms. Gilcreast filled out an application), W.I.C. (a nutritional counseling program and monthly food check program), the prenatal care plan she could expect at the clinic, and who to contact in case of emergency. Ms. McNulty also provided Ms. Gilcreast with an American Baby Basket packet (which contained parenting and educational materials, as well as samples of baby products), magazines for parenting and breast feeding, and scheduled her next appointment. Finally, at some point during the orientation, Ms. McNulty showed Ms. Gilcreast a brochure titled "Peace of Mind for an Unexpected Problem."7 That brochure, prepared by NICA,8 contains a concise explanation of the patient's rights and limitations under the Plan; however, Ms. McNulty described the brochure as a . . . $100,000 . . . insurance policy, that . . . [if] the baby was neurologically injured . . . the parents would collect $100,000, and any further questions they could call the association, . . . [at] the number . . . on the back, or talk to the physicians. [Transcript, pages 68 and 69.] Copies of all the papers they discussed, including the NICA brochure, were placed in the American Baby Basket packet, a clear plastic bag, by Ms. McNulty and given to Ms. Gilcreast. Subsequently, Ms. Gilcreast discarded many of the materials she received during the orientation, and there is no proof of record that would lead one to conclude that she read the NICA brochure or was otherwise informed of its actual contents.
Findings Of Fact Lukas was born on December 23, 2017, at Sacred Heart Hospital, located in Escambia County, Florida. Donald Willis, M.D. (Dr. Willis) was requested by NICA to review the medical records for Lukas. In a medical report dated January 14, 2020, Dr. Willis summarized his findings and opined in pertinent part as follows: In summary, labor was induced at 37 weeks due to a prior fetal demise. The newborn was depressed at birth with Apgar scores of 1/6/7. Bag and mask ventilation was required for 2-minutes. The initial blood gas after birth had a base excess of -16. The baby was anemic at birth. Evaluation identified adrenal hemorrhage as the etiology for the anemia. MRI on DOL 9 showed a small subarachnoid hemorrhage. The mother was being treated with Lovenox, an injectable anticoagulant. Lovenox does not cross the placenta and would not be factor in the fetal adrenal or subarachnoid hemorrhage. The adrenal and subarachnoid hemorrhage were more likely related to birth related hypoxia. There was an apparent obstetrical event that resulted in oxygen deprivation to the brain. Based on the cord blood gas pH >7.1, it is unlikely any significant oxygen deprivation occurred prior to birth. However, some degree of oxygen deprivation likely occurred in the immediate post-delivery period, based on the base excess of -16 on the initial blood gas in the nursery and both adrenal and subarachnoid hemorrhages identified by ultrasound. I am unable to comment on the severity of the brain injury. NICA retained Raj D. Sheth, M.D. (Dr. Sheth), a medical expert specializing in maternal-fetal medicine and pediatric neurology, to examine Lukas and to review his medical records. Dr. Sheth examined Lukas on February 18, 2020. In a medical report dated March 8, 2020, Dr. Sheth summarized his examination of Lukas and opined in pertinent part as follows: In SUMMARY, Lucas’s [sic.] neurological examination reveals evidence of behavioral problems, and stereotypic behaviors with expressive language delay concerning for autism spectrum disorder, and generalized axial hypotonia and mild appendicular hypertonia evidenced only in gait, with apparent preserved visual acuity, and a history of epilepsy that started at age 6 months and generalized tonic clonic seizures with a history of 4 fever related seizures. Much of Lucas’s [sic.] neonatal course was detailed in the history of present illness. He was born at 37 weeks gestation. Delivery was vaginal with an epidural. The NICU team was called emergently to labor and delivery patient appeared depressed and unresponsive pale. Positive pressure ventilation for about 2 minutes was undertaken. Spontaneous breaths were established at this time. Heart rate improved within 30 seconds of positive pressure ventilation. By 40 minutes of age the patient was active normal tone had a good gag good suck responsive pupils and normal Moro. Serial neuro exams for the next 24 hours of life were normal. He was not felt to meet criteria for brain cooling. MRI revealed a slight extra-parenchymal hemorrhage in the subarachnoid space without significant intra- parenchymal involvement. While he has seizures they did not develop till he was approximately six months old and he was not noted to have neonatal seizures. His head appears to be growing appropriately with regards to head size. He has not had a genetic evaluation or developmental pediatrics evaluation. As such Lucas [sic.]would not appear to meet NICA specified criteria for compensation under the NICA program. 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 it is unlikely that any significant oxygen deprivation occurred prior to the birth of Lukas. Dr. Willis’s opinion is credited. There are no expert opinions filed that are contrary to Dr. Sheth’s opinion that Lukas should not be considered for inclusion in the NICA program. Dr. Sheth’s opinion is credited. The Unopposed Motion for Summary Final Order states that “Respondent has conferred with Petitioners’ attorney and is authorized to represent that Petitioner is in agreement and not opposed to this motion.”
The Issue Whether Nathan Eric Powell has suffered an injury for which compensation should be awarded under the Florida Birth- Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.
Findings Of Fact Preliminary matters Nathan Eric Powell (Nathan) is the natural son of Paulette Schwab-Powell and Norman Powell. He was born a live infant on September 23, 1993, at North Florida Regional Medical Center, a hospital located in Gainesville, Alachua County, Florida, and his birth weight was in excess of 2,500 grams. The physicians providing obstetrical services during the birth of Nathan were Eduardo Marichal, M.D. and Gregory Bailey, M.D. NICA concedes that Eduardo Marichal, M.D., was a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. 2/ Nathan's birth and injury Paulette Schwab-Powell (Mrs. Powell) was admitted to North Florida Regional Medical Center at or about 6:30 p.m., September 22, 1993, in active labor. At the time, Mrs. Powell was slightly post-term, with an estimated date of delivery of September 11, 1993, and her prenatal course had been essentially uncomplicated. Mrs. Powell continued to have regular uterine contractions and at 10:25 p.m. her membranes were artificially ruptured, with clear fluid noted. Mrs. Powell continued progressing, and became completed dialated at 4:30 a.m., September 23, 1993. Thereafter, at or about 6:15 a.m. pushing was started, with assistance of a vacuum extractor. At 7:45 a.m., due to arrest of descent due to cephalopelvic disproportion, vacuum extraction was abandoned and the decision was made to proceed with a cesarean section. Mrs. Powell was taken to the operating room where a cesarean section was performed, and Nathan was delivered at 8:27 a.m. Upon delivery, Nathan required resuscitation, and his Apgar scores were 2 at one minute and 8 at five minutes. Within twenty-four hours of birth, Nathan developed intermittent tremors in the left leg, which were categorized as suspected seizures, and on September 24, 1993, he was transferred to the NICU II unit at Shands Teaching Hospital in Gainesville, Florida. Upon admission to Shands, Nathan evidenced a seizure and was placed on phenobarbital, later changed to Tegretol, to control his seizures. An EEG revealed seizures activity suggestive of diffuse cerebral dysfunction, and a CT scan revealed a bilateral subarachnoid hemorrhage, with fracture of the parietal bone. Nathan was initially hypertonic with poor suck, but showed gradual improvement until by September 28, 1993, he was able to take full feedings and was weaned off oxygen. On September 29, 1993, Nathan was discharged to the care of his parents, with maintenance Tegretol for seizure control. On November 24, 1993, Nathan was evaluated at the Pediatric Neurology Clinic. At the time, it was reported that Nathan continued on Tegretol and had not experienced any further seizures since those experienced immediately after his admission to Shands on September 24, 1993. A follow-up MRI was performed which showed resolving hemorrhage and no evidence of an ongoing fracture. On examination, Nathan evidenced good developmental milestones. The exam further revealed: . . . In terms of developmental milestones, Nathan has good head control for age. He has turned over one time. He recognizes mom's voice and smiles. On exam he has a height of 58.5 cm., weight of 5.48 kg., head circumference of 39.5 cm., temperature 37.2, pulse 164, respiratory rate of 28. On HEENT the patient's anterior fontanel is soft, flat, bilateral breath sounds are clear to auscultation. Heart rate is regular, no murmurs auscultated. Abdominal exam is benign for hepatosplenomegaly. No birth marks are detected. Specifically on neurologic the patient is awake, alert, easily rooting well. Cranial nerve exam reveals PERRLA, positive red reflex on funduscopic exam, tracking well. In terms of facial movement, there seems to be an asymmetry with a weekness on the left. It was difficult to assess forehead involvement as the baby neither cried nor smiled throughout the exam. It appears to effect [sic] his lower face as well as his left eyelid and mom adds that when he sleeps his left eye does not close spontaneously at times. Motor exam reveals normal tone. Reflexes were easy to elicit and approximately 5-10 beats of clonus was noted bilaterally with upgoing toes. Sensory is grossly intact. Cerebellar is appro- priate for age. As a consequence, it was concluded to continue Nathan on Tegretol, without further increase in dosage, and gradually wean him off the medicine as he gained weight, with the aim of discontinuing Tegretol by six months of age. On January 20, 1995, Nathan was evaluated by Michael Duchowny, M.D., at Miami Children's Hospital, in Miami, Dade County, Florida. Dr. Duchowny is board certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. On examination, Dr. Duchowny found and reported the following observations: GROWTH AND DEVELOPMENT: Nathan rolled over at 5 months, sat at 7 months and stood at 9 months, he walked at a year and is not yet toilet trained. PHYSICAL EXAMINATION: Reveals Nathan to be an alert, pleasant and cooperative infant. His weight is 24 lbs and height a 34 inches, his skin is warm and moist and no neurocutaneous stigmata, the head circumference measures 48.1 cm. which is in standard percentiles, neck is supple with out masses, thyromegaly or adenopathy and the cardiovascular, respiratory and abdominal examinations are normal. There are no digital, skeletal or palmar abnormalities. Nathan's NEUROLOGICAL EXAMINATION: Reveals him to be alert and cooperative, he maintains an age appropriate stream of attention and cooperative fully with the examination. He has a good level of curiosity. Nathan did not speak but babble quite melodically throughout the interview. Nathan maintain a good central gaze fixation and congenically follows quite well. There is blink to threat in both directions, the funduscopic examination are unremarkable the pubils [sic] are 4 ml and react briskly to direct and consensually presented light. There are no nasolabial asymmetries and the tongue and palate move well, the gag reflex is appropriate active. Motor examination reveals generalized diminution in muscle tone. Motor examination reveals generalized diminution in muscle tone. This is present in a symmetric fashion in all extremities and there is increase range of motion at all joints. I detected no evidence . . . of spasticity or hypotonia and Nathan additionally demonstrate full use of all limbs. He grasp for offered objects with either hand and transferred readily. There is good fine motor movement and thumb finger opposition bilaterally. The deep tendon reflexes were slightly brisk being 2-3+ with both plantar responses being down ongoing. Station and gait revealed the stability in normal stands but a slight truncal ataxia while walking, however, Nathan turn crisply and did not fall. Sensory examination was deferred. Neurovascular examination reveal cervical cranial and ocular bruit and no temperature or pulse asymmetries. In SUMMARY, Nathan neurological examination in detail reveals only mild delays in motor and speech function. I regard the lateralized motor syndrome to be fully resolved. The foregoing findings of Dr. Duchowny are consistent with the other evidence of record which reveals that the consequences of the injury Nathan suffered at birth have, over time, continued to improve. Consequently, the opinion of Dr. Duchowny that Nathan does not suffer a permanent and substantial physical impairment or a permanent and substantial mental impairment is credited.
