The Issue Whether the injury claimed is a birth-related neurological injury and whether obstetrical services were delivered by a participating physician in the course of labor, delivery or resuscitation in the immediate postdelivery period in the hospital.1
Findings Of Fact Petitioners, Rock Pollock, Sr., and Shawna M. Pollock, are Rock Pollock, Jr.'s (Rock, Jr.'s), natural parents. At all times material, Shawna M. Pollock was an obstetric patient of Intervenor, Deanna Doyle-Vallery, M.D., and Deanna Doyle-Vallery, M.D., was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. (Plan) At all times material, Amy Martin, M.D., also was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes, and she provided obstetrical services "in the course of labor, delivery and resuscitation in the immediate postdelivery period in a hospital," as related to this case. Rock, Jr., was born on November 2, 2006. At birth, Rock, Jr., weighed in excess of 2,500 grams. Rock, Jr., was born at Sarasota Memorial Hospital. Sarasota Memorial Hospital is a licensed Florida Hospital located in Sarasota, Florida.9 It is owned and operated by Intervenor Sarasota County Public Hospital District. Coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. On November 1, 2006, Rock, Jr.,'s mother, Shawna M. Pollock, who was in the forty-second week of pregnancy (beyond term), was admitted to Sarasota Memorial Hospital. She had received prenatal care from Dr. Doyle-Vallery and Corcoran, Easterling & Doyle-Vallery, LTD, a predecessor corporation to Gulf Coast Obstetrics and Gynecology, LTD, with which entity Drs. Doyle-Vallery and Martin were associated. At 6:50 p.m., on November 1, 2006, Mrs. Pollock was examined, and her cervix was found to be two centimeters dilated and thick. Dr. Amy Martin ordered Cervadil and Pitocin and signed the obstetrical record. Sarasota Memorial Hospital's progress notes indicate that Mrs. Pollock had previously suffered two miscarriages, but that this pregnancy had been uneventful with ASA therapy. At 8:00 a.m., on November 2, 2006, Rock, Jr.,'s fetal heart rate was noted to be stable; contractions were occurring every 2-3 minutes; and Certified Nurse Midwife Laura Danner, made a progress note that the plan of care would be continued. On November 2, 2006, both the Pitocin and Cervadil were administered. Entries were made on the progress notes by Certified Nurse Midwife Danner at 9:45 a.m., 10:30 a.m., and 12:05 p.m., that the fetal heart rate monitoring was stable; contractions were occurring every 2 to 3 or 2 to 4 minutes; and that, upon consultation with Dr. Amy Martin, the plan of care would be continued. At 1:30 p.m., Certified Nurse Midwife Danner wrote in the progress notes that Mrs. Pollock had been instructed on how and when to push and that Rock, Jr.,'s fetal heart rate was still stable. At 2:00 p.m., the fetal heart rate continued to be stable, and Mrs. Pollock was in labor, pushing every 2-3 contractions, with Pitocin continuing to be administered. Contractions were occurring every 1-1/2 to 2-1/2 minutes. Once again, Nurse Danner noted a continuation of the plan of care. Nurse Danner's progress notes indicate that at 2:30 p.m., there was a stable fetal heart rate with moderate to severe variables with recovery to baseline and contractions every 1-1/2 to 2-1/2 minutes. Mrs. Pollock had stopped pushing; had been in multiple positions; and was currently in the knee- chest position. A possible cesarean section was discussed with Mrs. Pollock in the event labor did not continue to progress. Also discussed was having Mrs. Pollock rest and not push for 30 minutes. The progress notes reflect that Dr. Martin and Nurse Danner consulted and agreed on a plan of care. The progress notes reflect that at 3:00 p.m., November 2, 2006, Mrs. Pollock was complaining of abdominal pain. The fetal heart rate was stable, but there was decrease in the long term variability and severe variables. Contractions were occurring every 1-1/2 to 2-1/2 minutes. Nurse Danner palpated Mrs. Pollock's abdomen, and it was soft between contractions. Because of the non-reassuring fetal heart rate tracing, Nurse Danner again consulted with Dr. Martin, and the decision was made to proceed with a cesarean section. The progress note at that time reflects that Dr. Martin was proceeding to the hospital, so it is assumed that the consultation at that time was by telephone. A note made immediately thereafter at 3:01 p.m., reflects the presence of a fetal bradycardia; that Mrs. Pollock was complaining of severe abdominal pain; and that Mrs. Pollock was being taken to the operating room for a cesarean section. At 3:05 p.m., Mrs. Pollock continued to complain of severe abdominal pain. When her abdomen was palpitated, it was described as "rigid." Rock, Jr.,'s fetal heart rate was decreasing to 40 beats per minute and continuing to decrease to 20 beats per minute. Dr. Martin was again called and was en route to the hospital. Dr. Evelyn Santiago was present at the hospital, and she started a "stat" (immediate) cesarean section. Dr. Santiago performed a primary low cervical transverse cesarean section, and Rock, Jr., was delivered at 3:12 p.m. Thick meconium-stained fluid was noted. Rock, Jr., was in a cephalic, vertex presentation. Upon inspection, Dr. Santiago noted a uterine rupture on the left aspect of the uterus. At 3:24 p.m., Dr. Martin was present and began to assist Dr. Santiago and Certified Nurse Midwife Danner with the cesarean section; Dr. Martin became the primary surgeon for the repair of the uterine incision and uterine rupture. Dr. Martin's operative note states in part: INDICATIONS: The patient is a G4, P1, who was admitted for induction for postdates and did well initially through labor induction. She made it to complete dilation and at that time had reactive fetal heart rate tracing. She began pushing and was noted to have moderate to severe variable decelerations with pushing effort. The patient pushed every other contraction for approximately 1 hour with continued moderate variable decelerations. At this point the patient was turned and allowed to rest for recovery of the infant. The patient with progress to +1 station. [sic] With further pushing the patient continued to have moderate to severe variable decelerations with no further descent and a cesarean section was called. At this point the patient was prepared to be taken to the operating room and she began complaining of severe left lower quadrant and left back pain. This was unable to be controlled with epidural. At this point in time the infant's heart rate dropped into the 60s and then continued down to the 40s. The patient was rushed back to the OR for emergent C-section at this point with fetal heart rate obtained in the OR in the 20s. FINDINGS: Male infant in cephalic presentation. Meconium stained fluid. NICU present at delivery. Apgar's[10] 2, 3, and 3 with weight 8 pounds, 11 ounces. Of note uterus had a large lateral defect with extensive bleeding and area of uterine rupture. Normal ovaries bilaterally. Of note per Dr. Santiago upon entering the peritoneal cavity blood was noted in the abdominal cavity prior to making uterine incision. Rock, Jr., was taken to the neonatal intensive care unit at Sarasota Memorial Hospital and evaluated by Darlene Calhoun, D.O. Spontaneous respirations were noted with some being quite irregular. Dr. Calhoun's impression was: Term male infant at 41 and 2/7 weeks. Perinatal depression. Rule out sepsis. History of methylene tetrahydrofolate reductase deficiency in the mother and questionable factor V Leiden mutation. Respiratory depression. Rule out seizures. Metabolic acidosis. Evaluate for persistent pulmonary hypertension of the newborn. On November 3, 2006, Rock, Jr., was transferred to All Children's Hospital, because of continued seizure activity. Victor McKay, M.D., evaluated Rock, Jr., upon admission. He noted that Rock, Jr., required intubation, had Apgar scores of 2, 3, and 3, and had a cord pH of 6.8. In the Neonatal Intensive Care Unit (NICU), Rock, Jr., was placed on a ventilator, but quickly weaned off. Because of seizure-like activity, a video EEG was ordered, and Rock, Jr., was loaded with Phenobarbital. After evaluating Rock, Jr., Dr. McKay gave an assessment and plan of: Term male infant. Perinatal acidosis. The infant has severe perinatal acidosis with cord pH of 6.8. The acidosis was corrected after birth. The infant has remained on ventilator, is currently weaned down to low ventilator settings and still has CO2 in the 20s. So, the infant will be extubated. The infant has shown no signs of pulmonary hypertension. Neurologically, the infant will be placed on a 24-hour video electroencephalogram. Will continue the Phenobarbital. Obtain a neurology consult with CT scan of the infant. If the CT scan is normal, then the infant may need further imaging at 3-5 days of life. Sepsis. Rule out sepsis. The infant will receive ampicillin and gentamicin pending culture results. Fluid, electrolytes, nutrition. The infant is n.p.o on IV fluids at 60 mL/kg/day. Will follow electrolytes and make adjustments as needed. Maternal methylenetetrahydrofolate reductase.[11] The infant will need further evaluation at a later time. On November 6, 2006, an MRI with and without contrast was performed on Rock, Jr.,'s brain. Radiologist James M. Anderson, M.D., read the films. His findings were as follows: FINDINGS: Sagittal T1, axial diffusion FLAIR T2, coronal FLAIR, coronal T2, coronal 3D T1, axial and coronal postcontrast T1 weighted images were performed. Cerebral and cerebellar volume appear to be normal. In general, the brain appears to be normally formed with no obvious anomalies. T1 weighted images show no migrational disorders. T2 and FLAIR images show no gross areas of hyperintensity. The diffusion images, however, are concerning. There is abnormally restricted diffusion identified in the basal ganglia bilaterally, somewhat asymmetrically, worse on the left than on the right with some asymmetric areas of restricted diffusion extending into the left insula as well as the left occipital and temporal lobes. These findings are suspicious for early infarct or ischemia. Rock, Jr., was discharged from All Children's Hospital on December 12, 2006. The portions of the Discharge Summary for purposes of this case are: DISCHARGE DIAGNOSES: Low Apgar scores. Hypoxic-ischemic encephalopathy. Respiratory distress. Acidosis. Seizure-like behavior. Neonatal encephalopathy. Staphylococcus warneri bacteremia. Severe dysphagia. * * * HISTORY: . . . The estimated gestational age was 41-2/7 weeks. Maternal history included positive MTHFR/positive Leiden mutation determined through genetic counseling . . . The pregnancy was significant for uneventful. The mother took prenatal vitamins, antacids, and aspirin and delivery was significant for fetal bradycardia, low Apgar scoring, and a cord pH of 6.8. Delivery room resuscitation included tactile suctioning, bulb suctioning, deep suctioning, intubation for no respiratory effort. . . . * * * CENTRAL NERVOUS SYSTEM: Phenobarbital was used for questionable seizure-like activity and HIE, and the baby initially had levels into the 40s. At the time of discharge, the December 11, 2006, level was 8.5. Cranial ultrasound was done at birth which was normal. A CT done on day 2 was normal. On November 6, 2006, day 4, an MRI was done showing subtle changes in the basal ganglia on the left occipital temporal lobe with questionable early infarct or ischemia. The region of the pre and post central gyri also have some mild diffuse changes. Followup in 7 to 10 days is recommended. Neurology followed this baby throughout hospitalization. Continuous EEGs were done between November 3, 2006, and November 6, 2006, showing severe, diffuse encephalopathy, multiple cortical and stable areas, and potential for epileptogenicity. On November 9, 2006, there was some improvement in the EEG but there was still noted excessive sharps in the right temporal area. November 27, 2006, was also still abnormal with epileptiform discharger [sic] in the right temporal region, no seizures, but was improved from previously. * * * GENETICS: There were no genetic problems or dysmorphology. On September 10, 2007, when Rock, Jr., was ten months of age, he was evaluated by Dr. Tiffany Day at Shands Hospital at the University of Florida. He presented there for a video EEG and MRI with sedation, to evaluate seizure-like activity. A G-tube had been inserted because he had gastroesophageal reflux. Mr. and Mrs. Pollock described Rock, Jr.,'s seizure activity as jerking movements that had started to become worse four months previously, shortly after Rock, Jr.,'s immunizations. The seizures started to be short in duration, originally just on the left side, affecting the upper extremities bilaterally. Rock, Jr., had been taking Klonopin for the past two to three months, which seemed to significantly reduce the seizures. Other medications included Keppra and Prevacid as well as Valium for hypertonicity. Dr. Day's assessment included the following comment: "This is a 10 month-old Caucasian male with a likely hypoxic eschemic [sic] event at birth as well as a history significant for what sounds like neonatal seizures and gastroesophageal reflux disease." The MRI was performed on September 13, 2007, and the films were read by Ronald Quisling, M.D. His report states:
Findings Of Fact Elaina was born on July 23, 2018, at St. Vincent’s Hospital, located in Duval County, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Elaina. In a medical report dated August 13, 2020, Dr. Willis summarized his findings and opined, in pertinent part, as follows: In summary, pregnancy was essentially uncomplicated. Spontaneous vaginal birth resulted in a healthy newborn with Apgar scores of 8/9. The newborn hospital course was uncomplicated. MRI at about one year of age showed cerebral volume loss, consistent with prior brain injury. The brain injury was apparently not due to birth related oxygen deprivation or trauma. As such, it is my opinion that there was no apparent obstetrical event that resulted in oxygen deprivation and or mechanical trauma to the brain or spinal cord during labor, delivery or in the immediate post-delivery period. NICA retained Raj D. Sheth, M.D. (Dr. Sheth), a medical expert specializing in pediatric neurology, to examine Elaina and to review her medical records. Dr. Sheth examined Elaina on June 17, 2020. In a medical report dated June 17, 2020, Dr. Sheth summarized his examination of Elaina and opined, in pertinent part, as follows: Elaina Howe does suffer from substantial physical impairment and substantial mental impairment as manifest by delays in gross motor, and fine motor, language and personal social skills. Elaina Howe mental and physical impairments are likely to be permanent although there is likely to be some improvement with time. The mental and physical impairments are not consistent with an injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury occurring during labor and delivery or immediate post delivery period. The permanent and substantial impairments from the records provided and this evaluation do not appear to have occurred during labor, delivery or the immediate post-delivery period. NICA filed a Supplemental Affidavit of Dr. Willis on December 21, 2020, in which he offered an opinion on the fetal heart tracing records submitted by Petitioners. Dr. Willis opined as follows: The FHR tracing during labor was reassuring (no distress), consistent with my previous opinion, dated 6/17/20, that there was no apparent obstetrical event that resulted in oxygen deprivation and or mechanical trauma to the brain or spinal cord during labor, delivery or in the immediate post delivery period. The Opinions se[t] forth in my Affidavit executed July 21, 2020 remain the same and are not modified by my review of the additional medical records as indicated herein. 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 Elaina. Dr. Willis’s opinion is credited. There are no expert opinions filed that are contrary to Dr. Sheth’s opinion that Elaina should not be considered for inclusion in the NICA program. Dr. Sheth’s opinion is credited. Petitioners have failed to respond to the Motion or the undersigned’s Second Order to Show Cause.
Findings Of Fact Kaden Lenard McWhite was born on March 17, 2011, at Sacred Heart Hospital in Pensacola, Florida. He weighed 3,715 grams at birth. NICA requested Michael S. Duchowny, M.D. (Dr. Duchowny), a certified pediatric neurologist, to review the medical records for Kaden and to conduct an independent medical examination of Kaden. Dr. Duchowny examined Kaden on January 18, 2012. In a report dated January 23, 2012, Dr. Duchowny summarized Kaden's medical history as follows: Kaden is 10 months old and was born at term at Sacred Heart Hospital, Pensacola, Florida. He suffered severe meconium aspiration syndrome and was evacuated to Shands Hospital on the lst day of life. Kaden was placed on the cooling protocol for 72 hours; ECMO was planned but ultimately was not initiated as his pulmonary function improved. However, Kaden's course was compromised by hypertension and shock with DIC. Hypoglycemia was treated with D-10 boluses. Prior to transfer, Kaden received a packed red blood cell transfusion, fresh frozen plasma and cryoprecipate at Sacred Heart. He was documented to have both cardiac and renal dysfunction. Kaden remained hospitalized in the Newborn Intensive Care Unit for approximately one month. Upon discharge, he was clinically stable and on no medications. Kaden has done remarkably well since coming home. He has not had additional medical complications and his milestones have all been acquired on time. In fact, Kaden sat at six months and now at age 10 months is beginning to stand without support. He is enrolled in the Early Steps program essentially to monitor his progress and ascertain that he is reaching his milestones. The only supervening problem is that Kaden tends to be a head banger and a rocker. He will both bang his head against the wall and will hit his head repetitively. These behaviors occur when he does not get his way. Otherwise, there are no complaints. His vision and hearing are good and his appetite is stable. He had gained weight steadily. He sleeps through the night on most occasions but may awaken for a bottle. There have been no developmental regression and no weakness. He has never experienced seizures. Dr. Duchowny opined that Kaden does not have a substantial and permanent physical and mental injury. He summarized his findings as follows: In summary, Kaden's neurological examination in detail reveals no significant focal or lateralizing findings and is entirely normal. Given his stormy neonatal course, Kaden's outcome is truly remarkable. In retrospect, the cooling protocol may have played a decisive role in Kaden's remarkable recovery. Given his current normal neurological status, I believe that he would not be eligible for compensation within the NICA program. His future prognosis is excellent. 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. The opinion of Dr. Duchowny that Kaden is not substantially and permanently mentally and physically impaired is credited.
Findings Of Fact Kayley was born January 26, 2009, at Winnie Palmer Hospital in Orlando, Florida. She weighed 2,928 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records of Kayley. In an affidavit dated July 9, 2012, Dr. Willis opined as follows: Based upon my education and experience, it is my professional opinion, within a reasonable degree of medical probability that Kayley Jazzmine Jimenez-Sanchez did not suffer a "Birth-related Neurological Injury" as defined by Florida Statutes Section 766.302(2) as there was no oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate post delivery period which resulted in injury to Kayley's brain or spinal cord. Attached to Dr. Willis' affidavit was a report detailing his findings based on the medical records of Kayley as follows: Fetal heart rate (FHR) monitoring on admission shows a normal baseline heart rate of 145 bpm. The pattern is reactive. The FHR monitor strip does not show any fetal distress prior to delivery. Cesarean section delivery was done without difficulty. Birth weight was 2,928 grams (6 lbs 7 oz's). Apgar scores were 4/8. Umbilical cord blood gas was normal with a pH of 7.28 and base excess of -1.9. The baby was taken to the nursery. Difficulty with feeding occurred with emesis after attempting to feed. X-Ray showed a dilated loop of bowel. Gastorgrafin enema was done for evaluation and identified Small Left Colon syndrome. Neurology evaluation at 2 days of age was done for jitteriness. Exam shows abnormal muscle tone. EEG on DOL 2 was normal. Head ultrasound also had normal findings. Skull X-Ray showed asymmetry of the skull bones. MRI on DOL 3 identified dilation of the left lateral ventricle. There were no findings suggestive of hypoxic ischemic encephalopathy. Genetic evaluation was done for the above findings and was negative. Chromosome analysis was normal. Genomic hybridization array was negative. In summary, there was no fetal distress during labor. Delivery was by Cesarean section due to breech presentation. The newborn was not depressed. Umbilical cord blood gas was normal with a pH of 7.28. The baby was identified to have congenital malformations, including Small Left Colon syndrome and dilation of the left ventricle in the brain. MRI did not suggest hypoxic ischemic brain 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. 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. The opinion of Dr. Willis that Kayley did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or immediate post- delivery period is credited.
Findings Of Fact Kathaileen F. Arbulu was born on April 27, 2013, at Osceola Regional Medical Center in Kissimmee, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Kathaileen. In a report dated March 9, 2016, Dr. Willis described his findings in pertinent part as follows: The mother was admitted to the hospital at 38 weeks for induction of labor due to preeclampsia and a history of Gestational Diabetes. Fetal heart rate (FHR) monitor tracing during labor did not suggest fetal distress. Seizure activity occurred during the induction. Eclampsia was diagnosed and intravenous MgSO4 started for management. Cesarean section was done due to Eclampsia. The delivery was stated to be uncomplicated. Amniotic fluid was clear. There was a loose nucal cord. Birth weight was 4,210 grams or 9 lbs 4 oz’s. The baby was not depressed. Apgar scores were 8/8. The infant cried spontaneously at delivery. No resuscitation was required. The baby was given blow-by oxygen for two- minutes and then transferred to the nursery. 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. A review of the file reveals that no contrary evidence was presented to dispute Dr. Willis’ finding that Kathaileen’s injuries were not the result of oxygen deprivation or mechanical injury during labor, delivery, or the immediate post-delivery period. Dr. Willis’ opinion is credited.
The Issue At issue in the proceeding is whether Joshua Ryan Osburn, a deceased minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Petitioner, Jennie Michelle Caddell, formerly Jennie Michelle Osburn, is the mother and natural guardian of Joshua Ryan Osburn, a deceased minor, and personal representative of her deceased son's estate. Joshua was born October 25, 1997, at Sacred Heart Hospital, a hospital located in Pensacola, Florida, and his birth weight exceeded 2,500 grams. The physicians providing obstetrical services during the birth of Joshua included Drs. Dean E. Altenhofen and Charles A. Horan, III, who were at all times material hereto "participating physician[s]" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Mrs. Caddell's antepartum course and Joshua's birth Mrs. Caddell's antepartum course was without apparent complication until approximately 7:05 p.m., October 24, 1997, when, with the fetus at 33 and 5/7 weeks' gestation (estimated date of delivery December 7, 1997), she was involved in an automobile accident in Pensacola, Florida. Emergency medical services (EMS) responded to the scene and, on arrival, noted an approximate 3 to 4 inch circumference area of redness to the right lower quadrant of the abdomen, palpably tender and with slight rigidness as compared to the left; low back pain without deformity; and right wrist pain without swelling or deformity. Following evaluation at the scene, EMS transported Mrs. Caddell to Sacred Heart Hospital, where she was admitted to the Emergency Department at or about 7:45 p.m. On admission, Mrs. Caddell complained of abdominal pain, cramping, and thoracic back pain and chest pain. No bleeding was apparent. Fetal heart tone was noted at 140, and Mrs. Caddell reported feeling fetal movement. Mrs. Caddell was examined by the Emergency Department physician at 7:55 p.m.. The results of his physical examination were reported as follows: PHYSICAL EXAMINATION: Well developed, well nourished white female, pregnant, mobilized on back board. HEAD: Is atraumatic. Pupils equal, round and reactive to light. TMs are clear. Nose is without discharge. NECK: Immobilized. Collar removed while maintaining immobilization. There is no significant tenderness to palpation and the cervical spine and collar is discontinued. CHEST: There is diffuse tenderness of the anterior chest, more so on the left. There is abrasion and early bruising noted over the neck and the anterior chest consistent with a seat belt injury. LUNGS: Are clear with good breath sounds. CARDIOVASCULAR: Regular rate and rhythm without murmur, rub or gallop. ABDOMEN: Pregnant, soft. The fundus is quite tender. Appears to be contracting. There is no rebound or guarding. Diminished bowel sounds. There is tenderness to palpation in the mid thoracic spine. EXTREMITIES: No cyanosis, clubbing or edema . . . . Given Mrs. Caddell's history, the Emergency Department physician ordered partial thoracic spine and chest x-rays to rule out spinal or other neurologic injury. These studies were read as not revealing any significant abnormalities and it was decided to transfer Mrs. Caddell to Labor and Delivery for fetal monitoring. According to the Emergency Department records, a fetal heart tone of 160 was recorded at 9:30 p.m., and Mrs. Caddell was transferred to Labor and Delivery at 9:45 p.m. At or about 10:09 p.m., Mrs. Caddell was placed on a monitor which revealed some fetal tachycardia in the 160s, with occasional late decelerations, and regular uterine contractions every 1 1/2 to 2 minutes, lasting approximately 45 seconds in duration. Mrs. Caddell was hydrated and, at approximately 10:30 p.m., she received terbutaline to stop the contractions and, at approximately 10:40 p.m., nubain to relieve her complaint of pain associated with her seat belt injury. Following receipt of terbutaline, Mrs. Caddell's contractions were noted to abate, but not cease, and then some decreased reactivity was observed. Further occasional decelerations were noted at 11:00 p.m. Vaginal examination at approximately 11:09 p.m., revealed the cervix to be thick, long, and closed. At approximately 11:30 p.m., an ultrasound revealed an accumulation of retroplacental blood consistent with placental abruption, and Mrs. Caddell was taken to the operating room for an emergency cesarean section. At the time of surgery, Mrs. Caddell was found to have approximately 30 percent abruption of the placenta. Joshua was delivered at midnight, severely depressed, and died October 30, 1997. Cause of death was severe hypoxic ischemic encephalopathy, caused by perinatal asphyxia, secondary to placental abruption. 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 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, there is no dispute that Joshua suffered an injury to the brain caused by oxygen deprivation which rendered him permanently and substantially mentally and physically impaired. What is at issue is whether the injury Joshua received occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital. To address the issue, the parties offered selected medical records relating to Mrs. Caddell's antepartum and intrapartum course, as well as those associated with Joshua's birth and subsequent development. Additionally, Petitioner offered the deposition testimony of Michael C. Goodman, M.D., a physician board-certified in obstetrics and gynecology; Respondent offered the deposition testimony of Charles Kalstone, M.D., a physician board-certified in obstetrics and gynecology; and Intervenor Altenhofen offered the testimony of James E. Maher, M.D., a physician board-certified in obstetrics and gynecology, as well as the subspecialty of maternal fetal medicine. Regarding such issue, it was Dr. Maher's opinion that the abruption was initiated by the automobile accident and progressed over time, leading to a progressive decrease in placental perfusion. He was also of the opinion that the abruption precipitated the onset of labor, where contractions intermittently exacerbated the ongoing process of oxygen deprivation to the baby. Consequently, Dr. Maher concluded that Joshua's brain injury occurred during the course of labor and delivery. Dr. Goodman shared opinions strikingly similar to those of Dr. Maher. In contrast, Dr. Kalstone was of the opinion that the abruption occurred, as well as Joshua's injury, at the instant of, and in the immediate moments following the impact of the automobile accident, and that Mrs. Caddell was not then or thereafter in labor. The medical records and the testimony of the physicians offered by the parties have been carefully considered. So considered, it must be concluded that the opinions rendered by Drs. Maher and Goodman are most persuasive and consistent with the medical records. Consequently, it is resolved that, more likely than not, the injury Joshua received occurred during the course of premature labor, precipitated by placental abruption.1
The Issue At issue in this proceeding is whether Michael Chase Anwar, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary matters Lisa Anwar and Saeed Anwar are the parents and natural guardians of Michael Chase Anwar (Michael), a minor. Michael was born a live infant on September 11, 1995, at Florida Hospital, a hospital located in Orlando, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Michael was Jorge Jesus Lense, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Mrs. Anwar's antepartum course and Michael's birth At or about 12:48 a.m., September 11,1995, Mrs. Anwar was admitted, in labor, to Florida Hospital. At the time, her estimated date of confinement was noted as September 22, 1995, and her antepartum course was without apparent complication; however, the fetus was noted to be large for gestational age. Onset of labor was noted as 11:15 p.m., September 10, 1995, with spontaneous rupture of the membranes, and clear amniotic fluid noted. Mrs. Anwar's obstetrical course from admission through Michael's delivery at 1:55 p.m., September 11, 1995, is detailed in Dr. Lense's delivery notes, as follows: The patient . . . presented with spontaneous rupture of membranes since 2315 hours on September 10, 1995. She was in active labor on admission. She progressed through labor to 8 cm dilatation at which time she had a prolonged fetal heart rate deceleration lasting approximately four minutes to fetal heart tones of 70s associated with a tetanic uterine contraction lasting approximately four minutes. This was relieved with terbutaline 0.125 mg subcutaneously and 0.125 mg intravenously. Fetal heart rate returned to normal with good variability and accelerations. She was having mild to moderate variable decelerations. She allowed labor to progress. She progressed rapidly to the anterior lip of the cervix to complete and +1 station. Because the fetal heart rate tracing was reassuring she was allowed to progress spontaneously to reach complete dilatation. However, the variable decelerations progressively worsened. She had temperature elevation of 100.5 [to 101.4]. She was begun on ampicillin 2 grams intravenously for presumed chorioamnionitis [an inflammation of female membranes]. She began pushing second stage labor. The variable decelerations worsened, and the decision was made to shorten second state of labor with vacuum assist. A vacuum was applied after the bladder was empty, complete, complete +3 station. The fetal head was delivered to complete, complete and +4 with the vacuum. However, it was difficult to maintain an adequate suction on the vacuum secondary to the thickness of the fetal hair. However, the patient was able to deliver the infant spontaneously without difficulty. Double nuchal cord was reduced. The rest of the infant was delivered without difficulty . . . The cord was doubly clamped and cut. The infant was noted to have poor respiratory effort and tone at the time of delivery. The neonatal resuscitation team and the neonatal intensive care unit neonatologists were called to the delivery. . . . At delivery Michael was intubated due to apnea (failure of the newborn infant to initiate pulmonary ventilation), and required positive pressure ventilation. Apgar scores of 2 at one minute, 3 at five minutes, and 5 at ten minutes were noted. Chord pH obtained on delivery was noted as 7.01, representing severe acidosis. The Apgar scores assigned to Michael are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute Michael's Apgar score totalled 1, with heart rate being graded at 2, and respiratory effort, muscle tone, reflex irritability, and color being graded at zero. At five minutes his Apgar score totalled 3, with heart rate being graded at 2, color being graded at 1, and respiratory effort, muscle tone, and reflex irritability being graded at zero. At ten minutes his Apgar score totalled 5, with heart rate being graded at 2, respiratory effort, reflex irritability and color being graded at 1 each, and muscle tone being graded at zero. Such scores are abnormal, and consistent with perinatal depression. Michael's course and development subsequent to delivery Following resuscitation, Michael was transferred to the neonatal intensive care unit in guarded condition. After admission, positive pressure ventilation was continued, and he was placed on ventilatory support. A blood culture, complete blood count, urine wellcogen and RPR were obtained, and Michael was started on ampicillin and gentamicin to address the risk of sepsis or infection. Possible seizure activity was noted during the first day of life, with tonic-clonic movements of all four extremities, and he was loaded with phenobarbital. An electroencephalogram was obtained and read as an abnormal neonatal recording characterized by diffuse depression of background cerebral activity; however, no electrographic seizures or lateralized epileptiform discharges were observed, and motion and electrical artifact were noted to be present. Michael was extubated the morning of September 12, 1995, following which he was noted to be "breathing spontaneously, receiving oxygen via nasal cannula." However, overnight he was noted as "quite irritable, jittery, with back arching," and required occasional sedation with Fentanyl. A head ultrasound completed on September 12, 1995, revealed the following: THERE IS A SMALL BLEED IN CHOROID PLEXUS NOTED BILATERALLY. IT COULD BE WORSE ON THE RIGHT THAN ON THE LEFT. THE VENTRICLES ARE NORMAL IN SIZE. THERE IS NO INTRAVENTRICULAR BLEED. NO OTHER ABNORMALITY. IMPRESSION: SMALL CHOROID PLEXUS BLEED NOTED BILATERALLY, WITH THE LEFT BEING MORE EXTENSIVE THAN THE RIGHT. Stated differently, the ultrasound revealed a bilateral grade one intraventricular hemorrhage (IVH). Between the afternoon of September 11, 1995, and the afternoon of September 12, 1995, Michael's hematocrit was noted to drop from 46 percent to 29 percent. Hemoglobin likewise dropped from 15.6 to 10.0. Consequently, due to his anemic condition, Michael was transfused on September 12, 1995. On September 12, 1995, Michael was examined by a consulting physician, most likely to address his neurologic condition. That examination, by Prashant M. Desai, M.D., reported the following observations, impressions, and recommendations: PHYSICAL EXAMINATION GENERAL: Weight is approximately 3.5 kg. Head circumference was 36.75 cm. Anterior fontanel is soft. The infant is lying supine in an open warmer, receiving oxygen via nasal cannula. He looks healthy, well-developed and well-hydrated. No clear dysmorphic features are noted. No apparent significant congenital skin lesions. He is sleeping comfortably. When disturbed, he becomes jittery and extremely irritable. He is difficult to console. He arches his neck and back. He keeps his hands fisted, flexes the elbows, and displays hand tremoring. BACK & SPINE: Appear normal. EXTREMITIES: There is mild stiffness of the extremities. Reflexes are brisk. He will not allow flexion of his neck, and instead, he resists it by neck arching and back arching. He will transiently open his eyes. Face is symmetric. Tongue is midline. Gag reflex is present. IMPRESSION: FULL-TERM ONE-DAY-OLD NEWBORN INFANT WITH PERINATAL DEPRESSION AND HYPOXIC-ISCHEMIC ENCEPHALOPATHY. RECENT DROP IN HEMOGLOBIN AND HEMATOCRIT MAY INDICATE INTRACRANIAL HEMORRHAGE. SUBARACHNOID HEMORRHAGE IS POSSIBLE, AND WOULD BE COMPATIBLE WITH CLINICALLY NOTED NECK AND BACK ARCHING, JITTERINESS AND EXTREME IRRITABILITY. HE HAS BEEN LOADED WITH PHENOBARBITAL AND PLACED ON MAINTENANCE PHENOBARBITAL SECONDARY TO SOME SEIZURE-LIKE ACTIVITY YESTERDAY. ELECTROENCEPHALOGRAM SHOWS DIFFUSE DEPRESSION OF BACKGROUND CEREBRAL ACTIVITY. THIS WOULD BE COMPATIBLE WITH HISTORY OF PERINATAL DEPRESSION. RECOMMENDATIONS: Head computerized axial tomography scan when feasible. Continue Phenobarbital at 4-5 mg/kg/day in two divided doses. He may require p.r.n. sedation with Fentanyl, given his irritability. Obtain a repeat electroencephalogram prior to hospital discharge. Duration of anticonvulsant treatment will depend on his hospital course. If his seizures recur and, in particular, if his extreme irritability persists, a metabolic work-up might be indicated. A CT (computerized tomography) brain scan of September 13, 1995, was read as "probably within normal limits." The scan was read and reported as follows: FINDINGS: THE DURAL VENOUS SINUSES AND THE VEIN OF GALEN ARE RELATIVELY DENSE COMPARED TO BRAIN. THIS IS PROBABLY RELATED TO THIS CHILD'S AGE AND THE COMPARATIVE LOW ATTENUATION OF THE UNMYELINATED BRAIN. THIS APPEARANCE CAN ALSO BE SEEN WITH ELEVATED HEMATOCRIT. WHILE THIS CAN ALSO BE SEEN WITH DURAL SINUS THROMBOSIS, THIS WOULD IMPLY THAT THE ENTIRE DURAL SINUS SYSTEM AS WELL AS THE VEIN OF GALEN WERE THROMBOSED. THAT IS UNLIKELY IN THIS SITUATION ESPECIALLY SINCE NO ASSOCIATED PARENCHYMAL CHANGES ARE NOTED. NO FOCAL PARENCHYMAL ATTENUATION ABNORMALITY IS NOTED. IMPRESSION: THE EXAM IS PROBABLY WITHIN NORMAL LIMITS. THE POSSIBILITY OF AN ELEVATED HEMATOCRIT IS RAISED. On September 14, 1995, Michael was noted to have an increased temperature. To further address the risk of sepsis or infection he was accorded a regimen of Vanco and Claforan for three days. Blood culture, urine, and CSF (cerebrospinal fluid) studies were reported as negative. Phenobarbital was discontinued September 16, 1995, and ampicillin and gentamicin were discontinued September 18, 1995. All intervening culture studies were reported as negative. A repeat electroencephalogram of September 20, 1995, was read as a "mildly abnormal neonatal recording due to some mild diffuse suppression of background cerebral activity." However, consistent with improvement in Michael's status, the recording was noted to be "considerably improved from [the] previous electroencephalogram performed on day 1" of life. On September 25, 1995, Michael had a second CT brain scan.1 That scan, unlike the first scan, was apparently read as abnormal, reflecting a presentation consistent with hypoxic- ischemic encephalopathy2 or, stated differently, brain injury occasioned by oxygen deprivation. (Discharge Summary for Michael Anwar, at page 2). Michael was discharged at 4:45 p.m., September 25, 1995, to the care of his parents.3 At the time, he was noted to exhibit "diffusely poor tone" ("infant limp, floppy tone"), and "little spontaneous movement" or, stated differently, "little spontaneous arousal." However, positive suck, positive blink, and positive gag were present, and Michael was free of seizure activity. Discharge diagnosis was, as follows: DISCHARGE DIAGNOSIS: 35 weeks appropriate for gestational age male Perinatal depression Sepsis, ruled out Seizures, ruled out Hypoxic-Ischemic Encephalopathy Bilateral Grade 1 Intraventricular hemorrhage Anemia On February 27, 1998, following the filing of the claim for compensation, Michael was examined by Michael Duchowny, M.D., a board certified pediatric neurologist. Dr. Duchowny's examination revealed the following: PHYSICAL EXAMINATION reveals a small 2 1/2 year old, appropriately proportioned boy. The weight is 25 pounds. The skin is warm and moist without neurocutaneous stigmata. There are no gross dysmorphisms. No digital, skeletal or palmar abnormalities are noted. The head circumference measures 48.6 centimeters which approximates the 3rd percentile for age. There are no cranial or facial anomalies or asymmetries, and the fontanels are closed. The neck is supple without masses, thyromegaly or adenopathy and the cardiovascular, respiratory and abdominal examinations are normal. NEUROLOGIC EXAMINATION reveals an alert boy who is socially interactive and has only a few words. There is an abundant amount of babbling sounds which suggest the emergence of speech patterns. Michael is in fact able to identify all of his body parts and knows both primary and secondary colors. He is quite alert and his socialization skills are well developed. He maintains good central gaze fixation with conjugate following movements and the ocular fundi are normal. There are full and conjugate extraocular movements with blink to threat from both directions. There are no significant facial asymmetries. The tongue movements are poorly coordinated and drooling is a prominent feature. Motor examination reveals a static generalized hypotonia with a dynamic increase in tone and bilateral upper extremity posturing. Michael is grossly ataxic [uncoordinated], both for axial and appendicular musculature [both truncal stability as well as all four limbs (arms and legs)] and his gait shows marked instability and a tendency to fall in all directions. Romberg sign could not be tested. He is unable to perform alternating movement sequences and he had poor dexterity for individual finger movements. The DTR's are present and 2 to 3+ bilaterally and plantar responses are downgoing. Sensory examination is intact to withdrawal of extremities to touch and pin, and a neurovascular examination discloses no cervical, cranial or ocular bruits. There are no temperature or pulse asymmetries. IN SUMMARY: Michael's neurologic examination reveals findings consistent with ataxic cerebral palsy. I believe that his cognitive and social skills are actually quite good but [are] restricted as a result of his motor deficit. I suspect that Michael will continue to improve in the future and that he will walk independently within the next 12 to 18 months. The dispute regarding compensability Given the proof, it cannot be subject to serious debate that Michael suffered an injury or anomaly in brain development that has resulted in neurologic impairment. What remains to resolve is the cause and timing (genesis) of the event which led to Michael's anomalous brain development or, more pertinent to these proceedings, whether the proof demonstrates, more likely than not, that the anomaly Michael suffers was "caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," as opposed to some other genesis. Section 766.302(2), Florida Statutes. Also at issue is whether, if such an injury occurred, Michael was rendered "permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, the nature and significance of Michael's impairment is dispositive of the claim, and it is unnecessary to resolve the dispute regarding the cause and timing of the event which led to Michael's anomalous brain development.4 Regarding the nature and significance of Michael's impairment, the proof demonstrates that the physical impairment he suffers may best be described as moderate, as opposed to severe, and that his physical impairment is not static, but improving. As for Michael's mental status, it has been observed to be at or near age level, and, consequently, there is no evidence of any mental impairment.5
