Findings Of Fact April Santiago was born on November 23, 2011, at Shands Teaching Hospital in Gainesville, Florida. April weighed in excess of 2,500 grams at the time of her birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records of April. Based on his review of the medical records, Dr. Willis opined as follows: In summary, the mother presented to the hospital with an imminent delivery, which was complicated by a shoulder dystocia. The baby was depressed at birth, but recovered quickly. The umbilical cord blood pH of 7.19 was within normal limits and consistent with no significant hypoxia during labor or delivery. By DOL 2 the respiratory depression had resolved and the child was on room air and taking oral feedings. The baby was stable and would consider the post- delivery resuscitation period to be over. On DOL 5 the baby had a renal artery thrombosis, which caused a hypertensive crisis and resulted in cerebral hemorrhage and brain damage. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period. The baby did have trauma at time of delivery, which included a fractured humerus and clavicle, but no trauma to the spine or brain. The baby was stable and would be considered out of the post-delivery resuscitation period when a renal artery thrombosis, hypertensive crisis and resulting cerebral hemorrhage occurred. A review of the file does not show any contrary opinion to Dr. Willis’ opinion that the claim is not compensable under the Plan. The opinion of Dr. Willis that April did not sustain a birth-related neurological injury is credited.
Findings Of Fact Uzziah Walker was born on November 23, 2012, at Sacred Heart Hospital located in Pensacola, Florida. Uzziah weighed in excess of 2,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Uzziah. In an affidavit dated May 24, 2015, Dr. Willis described his findings in pertinent part as follows: In summary, there was no apparent fetal distress during labor. Spontaneous vaginal delivery resulted in a large subgaleal hemorrhage with blood loss and poor perfusion. The baby was not hypoxic at birth. Cord blood gas was normal (pH 7.25). However, blood loss from the scalp hemorrhage and poor perfusion resulted in intraventricular hemorrhage during the immediate post delivery period. There was an apparent obstetrical event that resulted in scalp hemorrhage and poor perfusion with loss of oxygen to the baby’s brain during the immediate post delivery period. The poor perfusion resulted in brain injury. I am unable to comment about the severity of the brain injury. NICA retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Uzziah and to review his medical records. Dr. Duchowny examined Uzziah on March 11, 2015. In an affidavit dated May 29, 2015, Dr. Duchowny opined in pertinent part as follows: Review of medical records and imaging studies sent on February 4 and 6, 2015 was performed. They detail Uzziah’s birth at Baptist Hospital Health System in Pensacola with a forceps assisted delivery after a rapid decent. Uzziah evidenced tachycardia and some retractions at the time of delivery but his Apgar scores were 7 and 8. He was observed to have a subgaleal hematoma; a CT scan of the brain on November 23 revealed a large soft tissue hematoma and a small collection of subdural blood over the right cerebellar tent with a small amount of right ventricular hemorrhage. Of note, there was no cerebral edema or ventricular compression. No skull fractures were noted despite bilateral subgaleal hematomas. The neonatal course was otherwise uncomplicated. In summary, Uzziah’s neurological examination today reveals normal findings. He does not exhibit either mental or physical impairment and his overall development has caught up and is proceeding in an age appropriate fashion. I believe that Uzziah’s perinatal hematomas were resorbed without residual brain injury and his future prognosis is excellent. I explained to his family that Uzziah is doing very well and that his future is favorable from a prognostic standpoint. Given Uzziah’s normal neurological status today, I am not recommending compensation with the NICA program. A review of the file in this case reveals that there have been no opinions filed that are contrary to the opinion of Dr. Willis that there was an apparent obstetrical event that resulted in scalp hemorrhage and poor perfusion with loss of oxygen to the baby's brain during the immediate post-delivery period, and that the poor perfusion resulted in brain injury. Dr. Willis’ opinion is credited. There are no opinions filed that are contrary to Dr. Duchowny’s opinion that Uzziah’s overall development is proceeding in an age appropriate fashion and does not exhibit either mental or physical impairment. Dr. Duchowny’s opinion is credited.
Findings Of Fact Mia Rodriguez was born on September 29, 2008, at Jackson South Community Hospital in Miami, Florida. Mia weighed 3,230 grams at birth. Donald Willis, M.D. (Dr. Willis), an obstetrician specializing in maternal-fetal medicine, was requested by NICA to review the medical records for Mia. In an affidavit dated August 24, 2012, Dr. Willis described his findings as follows: [L]abor was complicated by infection, chorioamnionitis. Fetal heart rate monitoring during labor did not suggest any significant fetal distress. The baby was not depressed at birth. Apgar scores were 9/9. Newborn hospital course was uneventful. Within one year of age the child demonstrated neurologic abnormalities and was diagnosed with cerebral palsy. MRI showed a porencephalic cyst. This child has clinical and MRI evidence of brain injury. However, review of the medical records does not suggest the brain injury was the result of oxygen deprivation or mechanical trauma during labor, delivery of [sic] the immediate post-delivery period. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during delivery or the immediate post delivery period. In his affidavit, Dr. Willis summarized his opinion as follows: [I]t is my opinion that there was no oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post- delivery in the Hospital. Further, in that there was no oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediately post-delivery period in the Hospital, then accordingly, there was no causal event which would have rendered MIA RODRIGUEZ permanently and substantially mentally and physically impaired as a result of same. NICA retained Michael S. Duchowny, a pediatric neurologist, to examine Mia and to review the medical records of Mia and her mother, Ms. Calderon, to determine whether Mia suffers from an injury which rendered her permanently and substantially mentally and physically impaired and whether such injury is consistent with an injury caused by oxygen deprivation or mechanical injury occurring during the course of labor, delivery, or the immediate post-delivery period in the hospital. In an affidavit dated August 27, 2012, Dr. Duchowny stated: I evaluated MIA RODRIGUEZ on July 25, 2012. . . . In SUMMARY, Mia's neurological examination is significant for a mild to moderate left spastic hemiparesis affecting the arm greater than the leg. There is no evidence of a visual field deficit and her higher cognitive function is assessed at age level. The medical records sent on June 19, 2012 revel that the mother was febrile in labor and diagnosed with chorioamnionitis. She was placed on triple intravenous antibiotics at Jackson South Hospital. Apgar scores were 9 and 9 at 1 and 5 minutes and there was no evidence of postnatal complication. Placental pathology reveals findings consistent with a 3rd trimester placenta but findings consistent with chorioamnionitis were not reported. I do not believe that Mia should be considered for compensation within the NICA statute. She has normal mental functions for age and there are no findings from her history to suggest that hemiparesis was a consequence of either mechanical injury or oxygen deprivation in the course of labor or delivery. More likely, Mia's hemiparesis is due to a right porencephalic cyst which was likely acquired due to cerebrovascular accident in utero prior to the onset of labor. As such, it is my opinion that MIA RODRIGUEZ'S left hemiparesis is not due to oxygen deprivation or mechanical injury occurring during the course of labor, delivery or the immediate post-delivery period in the hospital during the birth of MIA RODRIGUEZ. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinions of Dr. Willis and Dr. Duchowny. The opinions of Dr. Willis and Dr. Duchowny that Mia did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or immediate post-delivery period are credited.
The Issue Whether Faith Lapp, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Linda J. Davidson Lapp is the natural mother and guardian of Faith Lapp, a minor. Faith was born a live infant on January 27, 1998, at Arnold Palmer Hospital for Children & Women (Arnold Palmer Hospital), a division of Orlando Regional Healthcare System, Inc., a hospital located in Orlando, Florida, and her birth weight exceeded 2,500 grams. The physicians providing obstetrical services at Faith's birth were Penny A. Danna, M.D., and Steven Carlan, M.D., who, at all times material hereto, were "participating physician[s]" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Faith's birth At or about 1:25 a.m., January 27, 1998, Mrs. Lapp (with an estimated date of delivery of January 22, 1998, and the fetus at 40+ weeks gestation) presented to Arnold Palmer Hospital, in labor. At the time, Mrs. Lapp's membranes were noted as intact, and vaginal examination revealed the cervix at 4 centimeters dilation, effacement complete, and the fetus at -1 station. Contractions were noted as mild, at a frequency of 2-3 minutes, with a duration of 40 seconds, and fetal monitoring revealed a reassuring fetal heart rate, with a baseline in the 130 beat per minute range. From 1:25 a.m. until 5:00 a.m., when her membranes spontaneously ruptured, Mrs. Lapp's labor progress was steady, and fetal monitoring continued to reveal a reassuring fetal heart rate. Thereafter, to 7:05 a.m., when vaginal examination revealed Mrs. Lapp complete, monitoring continued to reveal a reassuring fetal heart rate, with a baseline in the 150 beat per minute range, and variable decelerations, with contractions, and a good return to baseline. At 7:20 a.m., Mrs. Lapp was noted as pushing, with contractions, and variable decelerations continued without significant change until approximately 8:40 a.m., one hour prior to delivery, when fetal heart rate decelerations became persistent. Thereafter, at 9:25 a.m., the baby was noted to crown; at 9:34 a.m., the baby was noted as bradycardic with a fetal heart rate in the 70 beat per minute range; and at 9:36 a.m., the baby's head was noted as delivered, with the fetal heart rate continuing in the 70 beat per minute range. Delivery was complicated by a shoulder dystocia, and at 9:38 a.m., the labor and delivery record reveals the baby was not yet delivered, and the fetal heart rate was persisting in the 70 beat per minute range. Thereafter, at 9:40 a.m., Faith was delivered. At delivery, Faith was severely depressed (without respiratory effort, reflex, or muscle tone; a color consistent with central cyanosis; and a heart rate under 60 beats per minute), and required resuscitation (ambu bagging with 100 percent oxygen, cardiac compression for 20 seconds, and intubation). Apgar scores were recorded as 1 and 6, at one and five minutes, respectively,1 and cord pH was recorded at 7.28. Following delivery, Faith was transported to the neonatal intensive care unit (NICU), where she remained until January 31, 1998, when she was discharged to her parent's care. Faith's hospital course was summarized in her Clinical Resume (discharge summary), as follows: History . . . . Term newborn female, birth weight 4449 gm, born on 01/27/98 at APHCW. Mother is a 39- year-old gravida 2, para 1, 0 positive, maternal screens negative, uncomplicated gestation, 40+ weeks gestation, rupture of membranes 4 hr., 40 min. prior to delivery. Difficult extraction, vaginal delivery, epidural anesthesia, nuchal cord times one. During process of extraction, left fracture of the humerus. Baby cyanotic and apneic, heart rate 40-60, Ambu bagged with 100%, cardiac compressions given, intubated at one to 1-1/2 min. of life, with 3.5 cm ET tube, responded with 100% 02 by bagging, re- intubated due to air leak with 4.0 ET tube at 7-10 min. of age. Apgars 1 at one min., 6 at five min., cord pH 7.28, birth weight 4449 gm, temperature 98.8?, Accu-Chek 72, mean blood pressure low 30s. Hematocrit 49%. PHYSICAL EXAMINATION: Alert, molding of the head, bruising of the scalp. Pupils reactive to light. Nose and throat normal. Lungs coarse. No murmur. Abdomen soft. Liver 2 cm below right costal margin. Cord - 2 arteries, 1 vein. Female genitalia. Anus patent. Passing meconium. Spine normal. Left arm with swelling and tenderness at fracture site. Decreased tone and reflexes. Poor perfusion. IMPRESSION: Post mature, 41 weeks female Neonatal depression, post difficult delivery. Aspiration. Rule out sepsis. Hypovolemia. Left humerus fracture. PROBLEM LIST: Problem #1: Post mature, 41 weeks female. Problem #2: Neonatal depression. Infant required 100%, pressures of 23/3 and an IMV of 30; pH 7.4, pCO2 22, PO2 393, base excess -8.1. Weaned and extubated to room air by day one. No apnea nor bradycardia. Monitor discontinued. Problem #3: Rule out sepsis. Treated with ampicillin and gentamicin times 72 hr. Blood culture negative. Problem #4: Fracture of the left humerus. Orthopaedic consult obtained, infant was splinted, now is positioned with left upper extremity pinned across chest and is comfortable. For follow-up with Dr. Topoleski. Problem #5: Neurologic. A CT scan of the head shows some central subdural bleeding along tentorium and falx cerebri, small amount, slightly prominent extra-axial space left temporal region.[2] Problem #6: Miscellaneous. Passed ABR hearing screening exam. Annual follow-up is recommended. Infant screening was done 01/28/97. Problem #7: Fluids/electrolytes/nutrition. Feedings were begun on day 2, and advanced. Infant is tolerating ad lib feedings of maternal breast milk or Similac-20 with iron, and nippling well. Physical examination, 01/31/98: Four days of age. Weight 4555 gm, head circumference 33.25 cm. Pink. Anterior fontanelle soft. No murmur. Lungs clear. Abdomen soft and full. Neurologic appropriate. Left arm positioned as noted above. * * * FINAL DIAGNOSIS: Post term, 41 weeks female. Neonatal depression. Rule out sepsis. Left fractured humerus. Subdural bleeding. Follow-up CT scan on March 25, 1998, showed resolution of the subdural hemorrhage. Specifically, the CT scan was read, as follows: The ventricles are normal in size and configuration. There is no midline shift. The attenuation characteristics of the brain are within normal limits for the patient's age and state of maturity. No extra-axial fluid collections are identified. The hemorrhagic changes described on the study of 01/30 have cleared. IMPRESSION: CT appearance of brain within normal limits. Faith's subsequent development Following discharge from Arnold Palmer Hospital, Faith was followed for a number of evolving irregularities. Pertinent to this case, insight into the complexity of her presentation can be gleaned from some observations by a few of Faith's physicians: Michael Pollack, M.D., a pediatric neurologist; Eric Trumble, M.D., a pediatric neurosurgeon; and Harry Flynn, Jr., M.D., an ophthalmologist. Dr. Pollack initially evaluated Faith on March 30, 1998, and described his impressions, as follows: . . . Parents have observed that the patient does not follow although she appears to respond to light. She has been evaluated by Dr. Gold and Dr Richmond and apparently has retinal detachment . . . . A recent film of the patient's left arm apparently demonstrated that her humeral fracture is healing satisfactorily. * * * A recent CT scan of the head shows resolution of posterior fossa hemorrhage. In addition, the fluid collection over the left temporal region has largely disappeared but the left-sided subarachnoid space does remain larger than the right. Physical examination includes a weight of 14 pounds and a head circumference of 35.5 cm. The forehead appears underdeveloped and the head is small in relation to the face. Anterior fontanel is closed. There is ridging of coronal and sagittal sutures. Slight flattening of the right occiput is present and there is corresponding alopecia . . . . IMPRESSION: Perinatal craniocerebral trauma and probable hypoxic ischemic encephalopathy. Retinopathy by history. Evolving microcephaly versus craniosynostosis: Primary microcephaly (failure of the head to grow because of poor brain growth) appears more likely than craniosynostosis . . . . Dr. Pollack summarized his September 29, 1998, evaluation, as follows: Faith is an 8-month-old girl who was initially evaluated in my office 3/98 because of visual impairment and suspected seizures. Her diagnoses include perinatal craniocerebral trauma and a possible hypoxic ischemic encephalopathy. In addition, she had a congenital retinopathy. Her diagnoses at Bascom Palmer Institute were: (1) congenital bilateral retinal detachment and (2) variation of persistent hyperplastic primary vitreous or persistent fetal vasculature bilaterally. Her MRI scan of the head showed an abnormality of the rostrum of the corpus callosum which was thought to fall in the spectrum of septo- optic dysplasia. Her condition, therefore, appears to be due to a combination of congenital anomalies and perinatal factors . . . . In the past few months, the patient has undergone . . . [repair of metopic synostosis]. Although the shape of her head has improved, her head circumference has remained below the 5th percentile, supporting the view that primary microcephaly rather than craniosynostosis was responsible for the small head size in this patient. In addition, ptosis of the right upper lid developed postoperatively. * * * PHYSICAL EXAMINATION: Includes a length of 26.5 inches, weight 18-3/4 pounds, head circumference 38.5 cm. The head appears small in relation to the face. There is unilateral occipital flattening . . . . IMPRESSION: Severe nonprogressive encephalopathy due to perinatal factors as outlined above and a congenital anomaly of the central nervous system. There is severe visual impairment which is due to a retinal anomaly . . . . Her residual microcephaly suggests that deficient brain growth rather than craniosynostosis was responsible for her small head size . . . . Development is globally delayed. The combination of microcephaly, congenital CNS anomalies, visual impairment and global developmental delay in this patient suggests that she is likely to function in the trainable mentally handicapped range. Her motor attainment to date implies that she will walk independently. Following September 29, 1998, Faith was seen by Dr. Pollack on July 21, 1999; April 3, 2000; and July 17, 2001, during which there was no apparent change in Dr. Pollack's impression. Thereafter, the record suggests that following Faith's last visit with Dr. Pollock, her neurology issues were followed in Miami; however, there is no evidence of record regarding those evaluations, if any.3 Following discharge from Arnold Palmer Hospital, Faith was also seen by Dr. Trumble and had serial workups for craniosynostosis. That diagnosis was rejected July 9, 1998, when "a head CT with 3-D reconstruction . . . revealed all sutures to be open with the exception of her metopic suture, which was supposed to be closed at this age." Faith did, however, have "metopic synostosis with a small palpable ridge," which was repaired on July 29, 1998. Faith apparently did well post-operatively, with the exception of right eye ptosis. Of note, an uncontrasted CT scan was reviewed by Dr. Trumble in March 1999, which he noted: "identifies normal morphology without evidence of increased CSF spaces or definite atrophy." On April 20, 1998, Faith's ophthalmologic problems were evaluated by Dr. Flynn, professor of ophthalmology at Bascom Palmer Eye Institute, Miami, Florida. Dr. Flynn described his impressions as follows: . . . [Faith] was examined on 4/20/98 regarding her retinal detachments in both eyes. . . . [The patient] had a traumatic delivery that involved extensive facial, cranial and subconjunctival hemorrhages. The patient has brought with her multiple studies including X-rays, CT scans and other studies that have been reviewed and are present on the chart. The patient is being referred regarding the possibility of any surgical therapy for this patient with bilateral retinal detachments. The ocular examination showed no recordable visual acuity although there did appear to be a response to light in each eye. The pupillary reaction showed a 1+ response to direct light in each eye. The tension by palpation was normal in both eyes. The anterior segment examination showed a white plague-like structure on the back surface of the lens in both eyes. The vitreous cavity was clear with no visible hemorrhage in either eye. The posterior segment examination showed total retinal detachment with dragging of the retina toward the inferior temporal quadrant in both eyes. The retinal folds were drawn forward as well to fibrous tissue inserting on the back surface of the lens. IMPRESSION: Congenital bilateral retinal detachment both eyes. Variation of persistent hyperplastic primary vitreous or persistent fetal vasculature both eyes. RECOMMENDATION: I discussed my findings with the patient [sic] and husband. I indicated that the retinal detachments were inoperable. I indicated that the changes present in the back of the eye could not have taken place in 2 1/2 months in spite of the extent of the trauma at delivery.[4] Apart from the impressions of Faith's treating physicians, some insight into Faith's development may also be gleaned from certain evaluations and testing by the Seminole County Public Schools; including a Report of Adoptive Behavior Testing, dated August 21, 2003. On that test, administered at age 5 years, 7 months, Faith's ability to care for herself and interact with others ("Broad Independence") was measured based on an average of four areas of adaptive functioning: motor skills, social interaction and communication skills, personal living skills, and community living skills. There, Faith's motor skills, which included gross and fine motor proficiency tasks involving mobility, fitness, coordination, eye-hand coordination, and precise movements were said to be comparable to an individual at age 3-1 (3 years, one month). However, the examiner noted the basis for such conclusion, as follows: When presented with age-level tasks, Faith's gross-motor skills are age-appropriate. Age-level tasks involving balance, coordination, strength, and endurance will be manageable for her. When presented with age-level tasks, Faith's fine-motor skills are very limited. Age- level tasks requiring eye-hand coordination using the small muscles of the fingers, hands, and arms will be extremely difficult for her. (Emphasis added.) (Intervenor's Exhibit 4.) Faith's motor skills were also evaluated by the Seminole Public County Schools, and noted in a Physical Therapy Assessment/Evaluation report, dated October 2, 2003, as follows: OBSERVATIONS: Faith was evaluated in a variety of educational settings. She was observed in the classroom, during an obstacle course in another classroom, on the playground and around the school campus. During the obstacle course observation, Faith was participating in tunnel creeping, rockerboard activities, basketball and balance beam walking. Throughout the evaluation, it appeared that Faith had difficulty with some motor tasks due to body and spatial awareness as well as with her speed and intensity of her movements. With this evaluator, Faith followed all directions and seemed eager to please. * * * FUNCTIONAL MOBILITY: Faith ambulates indepen[den]tly in all directions demonstrating a forward lurch, hiking type of gait pattern, head is bent forwards. She is able to walk in the halls, on ramps and on sand on the playground without falling. She is able to creep and knee walk independently. Rises from the floor using a half kneel pattern or through a backwards crab type of pattern. Lowers self to floor with control. Transfers in/out of all chairs independently but teacher reports she often trips over her own feet. Ascends the stairs using a reciprocal pattern without holding the rail, descends using step to step pattern holding the rail. GROSS MOTOR: Faith sits on the floor with good balance in a criss cross position or sidesit position. She low kneels but weight bears on her right side more than her left and high kneels with good balance. She squats to pick an item up off the floor. Is able to jump off the floor and jumps on the trampoline at least 5 times in a row. She is able to walk on the balance beam taking 3 steps independently and attempts to walk backwards on it. On the playground, she is able to climb all structures independently with supervision. Within the school environment, Faith is able to push/pull her exterior doors and turn knobs of all interior doors. FINE MOTOR/VISUAL MOTOR: . . . According to notes from OCPS records, Faith may exhibit some visual motor issues as well as the visual impairment already noted. (Intervenor's Exhibit 4.) Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as in "injury to the brain . . . caused by oxygen deprivation or mechanical injury, occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. In this case, Petitioner and Intervenor are of the view that Faith suffered a "birth-related neurological injury," as defined by the Plan. In contrast, NICA is of the view that Faith did not suffer a "birth-related neurological injury" since her neurologic impairments are, more likely than not, prenatal (developmental) in origin, and resulted from cerebral malformation, as opposed to brain injury caused by oxygen during labor, delivery, or resuscitation. Moreover, NICA is of the view that Faith is not permanently and substantially mentally and physically impaired. The cause and timing, as well as the significance of Faith's impairment To address the cause and timing of Faith's impairments, as well as their significance, the parties offered the records related to Faith's birth and subsequent development, portions of which have been addressed supra (Joint Exhibits 1-4, and Intervenor's Exhibit 2); a color photograph of Faith taken several hours after her birth (Petitioner's Exhibit 1); the deposition of Leon Charash, M.D., a physician board-certified in pediatrics, who practices pediatric neurology (Intervenor's Exhibit 1); the deposition of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine (Respondent's Exhibit 1); and the deposition of Michael Duchowny, M.D., a physician board- certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. (Respondent's Exhibit 2.) Dr. Willis, whose deposition was offered on behalf of NICA, was of the opinion that the birth records failed to support a conclusion that Faith suffered a brain injury from oxygen deprivation during labor or delivery, but offered no opinion regarding the likelihood of brain injury from oxygen deprivation during the course of resuscitation or from trauma associated with Faith's delivery. Dr. Willis expressed the basis for his opinions, as follows: BY MS. WRIGHT: * * * Q. After reviewing the records in this case, do you have an opinion within a reasonable degree of medical probability as to whether or not Faith Lapp qualifies for compensation under the NICA criteria you just described? * * * A. Yes, it was my opinion that there did not appear to be a loss of oxygen that occurred during labor or delivery that would result in this child's injury. * * * Q. Doctor, would you tell us how it is that you reached such an opinion as that? A. Yes. I reviewed the fetal heart rate monitor strips, which do show fetal heart rate decelerations during the latter few hours of labor. Although they're not persistent decelerations until about the last hour before delivery, and then the fetal heart rate tracing does show persistent variable decelerations . . . . The Apgar scores that the baby had were low, the Apgar score was one and six. Of course, the baby had -- there was a shoulder dystocia at birth resulting in a very difficult delivery. However, the umbilical cord blood gas was normal with a pH of 7.28. And the baby had a course in the hospital that did not suggest an ischemic event during labor or delivery. In other words, did not have seizures in the post-delivery period, no other organ failure like renal failure, hypotension, those types of things, and was discharged home on the fourth day. So looking at all of that, I felt there was not oxygen deprivation during labor or delivery. Q. . . . What is the significance of the fetal heart rate monitoring strips? A. Well, the fetal heart rate monitor strips are consistent with some degree of umbilical cord compression or variable decelerations prior to delivery, and all fetuses react differently to that. But certainly if the fetal heart rate decelerations persist and are significant, then it can lead to a baby that has lack of oxygen at birth. * * * Q. Dr. Willis, can you tell us the significance of the cord blood pH which you referenced earlier as being normal at 7.28? A. Right. Well, if a baby is born with a lack of oxygen, then they will have lack of oxygen and acidosis, which the two go together. And if the baby has lack of oxygen acidosis, then the cord pH should be low. If the umbilical cord blood pH is within normal limits, it would suggest that for whatever fetal heart rate decelerations or whatever Apgar scores that were present, that that wasn't a result of or did not cause or was not a result of lack of oxygen to the baby. * * * Q. Would you anticipate the pH to be abnormal if the deceleration that you saw on the fetal heart monitoring strips had continuously occurred? A. Well, the fetal heart rate monitor strip shows you that in a way that the baby is being stressed, but it doesn't really tell you if the baby is in distress. So different babies tolerate different amounts of fetal heart rate deceleration. So the bottom line here was the umbilical cord pH being normal. I felt that I could not say that those fetal heart rate decelerations that were present in that hour prior to birth really resulted in lack of oxygen to the baby. Q. In other words, you would have anticipated the pH score to be abnormal if the infant had been severely affected by the deceleration? A. That is correct. * * * Q. And the significance of the Apgar scores? A. Well, the Apgar score at one minute tells you how much resuscitation is going to be required for the newborn, and the one was simply one point for fetal heart rate. The baby at birth had no spontaneous respiration, it was pale and it was not moving, and the only points that the baby got -- therefore, was depressed at that time, and the Apgar score was one. The one- minute Apgar score is not a very good indicator of long-term neurologic development though. The five- and the 10 minute Apgar scores are better indicators for that. The Apgar score at five minutes was listed at six. That's still low. We consider Apgar score to be low if it is under seven. So a six is just under the cut-off. If the baby had an Apgar score of seven at five minutes, then it would have been considered a normal score . . . . * * * BY MS. LAPP: Q. [D]o you normally . . . [limit yourself as you did in this case]? A. Normally -- normally, in most cases, I don't limit myself as much as I am with your case. Q. You found that my case was -- A. I found it a little bit confusing. If I saw the fetal heart rate tracing that I saw here and the Apgar scores that I saw and if the cord pH was abnormal, or I didn't see a cord pH, then I would have assumed that there would have been hypoxia to this baby at birth. But the fact that the cord pH was so normal, I really have to stop and question that. So then with that -- and this happens in other cases. So with that then, I have to look and see what else. And from doing this for several years and practicing in my subspecialty, I know that babies that have hypoxic injury to the brain at time of birth or during labor frequently have seizures during the first hour or two after birth and many of the other things that we've talked about. So, for instance, if your baby would have had a seizure disorder an hour or two hours after birth and would have been hypotensive, I might have in that circumstance decided that I would have simply ignored the cord pH result because it wouldn't have fit everything that I see. Q. Could it be possible that . . . [it was] human error . . . ? A. That is why I look at many different things. Again, if I would have seen other things that would have been consistent with hypoxic injury to the brain at birth, then I would have said I am going to discard this cord pH because it just doesn't fit the rest of the picture. And so that is the reason I kind of limited myself to labor and delivery, because the baby is depressed after birth, and I really can't explain that. * * * Q. . . . When would she have had these seizures? A. It would have been after birth, relatively in a short period after birth. I guess what I'm trying to say is from a maternal fetal standpoint, the medicine that I practice, if I see a poor fetal heart rate tracing and a baby with low Apgars and then seizures two hours after birth and then a CT scan done at five or six days of life which shows a cystic structure -- shows maybe brain edema consistent with hypoxic injury, then that all becomes a very, very clear picture for me. In this case, unfortunately, the picture just was not so clear. Because of that, I wanted to limit myself to labor and delivery because I could not make such a clear picture of what happened after that. (Respondent's Exhibit 1.) Dr. Duchowny, whose deposition was also offered on behalf of NICA, was of the opinion, based on his review of the records and his neurologic evaluation of Faith on March 12, 2003, that Faith's impairments, more likely than not, resulted from cerebral malformation, as opposed to brain injury caused by oxygen deprivation during labor, delivery, or resuscitation, and that, regardless of the cause, Faith was not permanently and substantially mentally and physically impaired. Dr. Duchowny expressed the basis for his opinions, as follows: BY MS. WRIGHT: * * * Q. Could you tell me, after reviewing the records concerning the records of both Linda Lapp and also Faith Lapp, your review of all the records you've just named and your examination of Faith Lapp, if you have reached an opinion which is in the reasonable degree of medical probability as to whether or not Faith Lapp sustained permanent mental and physical impairment as a result of her labor and delivery? A. Yes. I believe that Faith does not have a substantial mental or motor impairment and that her neurologic disabilities were acquired in utero and not the result of a birth related neurological injury that occurred during labor, delivery or resuscitation in the immediate post delivery period. Q. Could you tell me what you base that opinion on, Doctor? A. That opinion is based on the medical records which indicated that Faith's labor and delivery were complicated by a fractured left humerus, but that her cord blood pH was normal; her Apgar scores of 1 and 6 were reasonably good; that she did not have findings in the post natal period which are consistent with either mechanical injury or severe hypoxia; and that her evaluations, including my examination, all suggested that the types of neurologic disabilities that she has resulted from developmental abnormalities which occurred during the time that the brain was forming in interuterine life. Q. Doctor, in examining Faith's records, would you comment on the blood cord results? A. Well, her cord pH of the blood gas was 7.28, which is essentially normal. There is no indication of any hypoxia at that point in time when the blood gases were drawn from the cord. Q. Would you comment--you said earlier that her Apgar was relatively normal at 1 and 6. What did you mean by that? A. An Apgar score of 1 at one minute is not an unusual finding in normal deliveries. It reflects obstetrical medication; and I think the important Apgar score is at five minutes, which for Faith was 6. While not being perfect, it certainly is a decent Apgar score and inconsistent with asphyxia. * * * Q. Well, you indicated after that, if I heard you correctly, that you didn't see any post delivery signs of hypoxia. A. That's correct. Faith did require some ventilatory support for the first day, but she never developed systemic signs of hypoxia, which might produce abnormalities of her heart, liver, kidney, lungs, or cardiovascular system. * * * Q. You indicate further that there was no evidence of mechanical injury. Could you tell us for the record what you mean by "mechanical injury?" A. Well, there was no evidence of mechanical injury to the central nervous system, meaning there was no trauma to the brain or spinal cord. Faith did have a left Erb's palsy, which indicates dysfunction in the brachial plexus. I believe this was mechanically induced, but it was outside the central nervous system. * * * Q. Let's now turn to your opinion that Faith does not suffer from a substantial and permanent mental or physical impairment. Could you comment on the reasons why you believe that to be your opinion? A. Yes. At the time that I evaluated Faith last March, she was five years old. She did have a short attention span, and she was an overactive child, but she was able to talk. Albeit with a speech delay, she was able to talk. In fact, could speak in short phrases. She seemed to be socially appropriate. And with some effort, one could actually complete the examination because there would be some interaction between Faith and myself. She wouldn't cooperate for all testing but much of the testing did in fact get done. * * * BY MR. THOMPSON: * * * Q. . . . [Y]ou . . . [agree] that you believe there are neurologic abnormalities. Correct? A. Yes. Q. When you say that they were acquired in utero, you think that those were something that developed prior to the birthing process? A. Yes. Q. Is that what you mean? A. Yes. Q. Do you have a name for whatever that process was that caused that? A. I believe it is cerebral malformation. Q. And is that a chromosomal problem? A. Not usually. Q. What's usually the cause of that? A. Unknown interuterine acquired factors. Q. You have stated that you agree that there were mechanical injuries to this child during the labor and delivery process, correct? A. Yes. Q. You said one evidence of that was the fractured humerus. Correct? A. Yes. Q. She had some abnormalities on CT scan, I believe, some sort of--I can look for it, but you may remember what it was. I've got it right here. "A central subdural bleeding along the tentorium and faux cerebrum of a small amount." Do you recall that CT scan of the head that was taken shortly after her birth? A. Yes. Q. Would you agree that that was the result of a mechanical injury to her head? A. Yes. * * * Q. Would you agree that the pH of 7.28 in the cord blood may not represent what her true level of acidosis was? A. No, I wouldn't agree with that statement. Q. Could that be a lab error? * * * A. Well, anything is possible; but given the Apgar score and given her ultimate clinical findings, I regard that cord blood pH as being accurate. Q. What do you account for her being cyanotic? A. She already had brain dysfunction in utero. So, if you take a newborn, whose brain is not normal, and you provide stress, their response is often abnormal. Q. . . . Would you agree that Faith's laboratory work after her birth did show evidence of problems with her liver? A. No. Q. Are you familiar with what her LDH was? A. Yes. It was elevated, but the rest of her liver functions were normal. Q. Was her AST normal? A. I would have to check. I don't believe it was significantly elevated. Q. Was her ALT abnormal? A. Again, there were mild elevations that I don't think were significant, as I recall. Q. I may have asked you this. I apologize if I have. You do agree that her hydrocephaly is a result of secondary atrophy, as opposed to some other reason? A. No, I don't agree with that. Q. But you disagree with Dr. Trumbull [sic] when he said that in his report of July 9th, 1998?[5] A. Well, you would have to ask Dr. Trumbull [sic] what he meant by that. But my understanding is that there were findings, there were abnormalities, but they would not be classified as atrophy. It would really be failure to develop, which is different. Q. How can you distinguish between atrophy and failure to develop? A. Well, atrophy implies at one point all the brain structures were normal, and then something happened to damage those structures. Developmental problems imply that they never developed correctly in the first place so they never assumed normal proportions. The findings that Faith had on her MRI are more consistent with developmental abnormalities to her brain, so I would not classify them as atrophy. (Respondent's Exhibit 2.) Dr. Charash, whose deposition was offered by Intervenor, and whose testimony was supportive of Petitioner's claim, did not examine Faith, although he was accorded the opportunity to do so,6 but based on the records, he was of the opinion that Faith suffered a "birth-related neurological injury." With regard to brain injury, Dr. Charash was of the opinion that Faith's injury had two components, lack of oxygen and trauma (mechanical injury). As for oxygen deprivation being a likely course of brain injury, Dr. Charash noted Faith's one-minute Apgar score, which reflected severe depression; the need for resuscitation; an increased number of nucleated red cells; a low bicarb; a likely false pH, since Faith was given a bolus of sodium bicarb on delivery without adverse effect; and evidence of kidney malfunction, with transient abnormalities in her liver enzymes. As for trauma, Dr. Charash noted the subdural hemorrhage (cephalohematoma), observed on CT scan at 3 days of age, a likely result of trauma during delivery, as well as the severe bruising of the head documented following delivery. Finally, as further evidence of likely brain injury, Dr. Charash noted that on delivery, Faith's head, at 33 1/4 centimeters, was normal, but within a matter of months failed to grow as one would expect, and that she is now microcephalic. Consequently, Dr. Charash concluded that Faith likely suffered brain injury during labor, delivery, and resuscitation caused by oxygen deprivation and mechanical injury. (Intervenor's Exhibit 1, page 18.) As for the neurological consequences associated with such injury, Dr. Charash offered the following observations: EXAMINATION BY MR. TOWNSEND: * * * Q. Did . . . the lack of oxygen or the trauma affect her mentally in any way? A. Yes. I think it has left her with certain physical stigmata and certain intellectual stigmata. She has certain physical injuries based upon her birth difficulties and she's been left with behavioral and cognitive and learning difficulties; yes. Q. And that's clearly set forth in the records that you've reviewed, the cognitive and the physical problems? A. Yes. Let me deal with them one at a time, if I may. Q. All right, sir. A. The Orange County Public Schools have evaluated her and they find her functioning at percentiles which are far below age expectations. For example, there's a report of the Highland Elementary School in kindergarten described on 8/21/03, it's one of many reports, but this brings us up to five years and seven months . . . . At this point in time she's five years and seven months old. Her ability for functional independence is that of a three-year old which puts her in the lower one tenth of one percent of the population, 0.1, which means that 99 people out of a hundred outscore her in that area. They give her a rating for motor skills. They think her motor skills are three years and one month at an age of five years and seven months, which, again, puts her in the profoundly retarded area in terms of her motor skills, precise movements, coordination, fitness, etc. They have another score of social interaction and communication. Again, she's equivalent in one area to a three year one month old, another area she can pass tests at two years and two months, she has great difficulty with tasks that approach four years and eight months. And so it goes. They basically conclude that in every area she averages out three years and no months. She's five years and seven months. This gives her a quotient of an aggregate of all other adaptive performance in the range of retardation . . . . There is a psychoeducational evaluation done at the Seminole County Public Schools. This is carried out when she's five years and seven months. . . . The conclusion here . . . is . . . that the child is performing in areas that range from the very low category in the WJ-111 cognitive battery. She's considered to be significantly deficient. She's in the second percentile in the Bracken, B-R-A-C-K- E-N, basic concept scale. She's in the fourth percentile in some other test. On the Stanford Binet, in her verbal ability she does better, she's at the 12th percentile, and that's not retarded. . . . Now, her physical problems are of great significance here and, frankly, I think they relate to what I've mentioned before, her problems with balance, equilibrium, coordination, some of which may be tangentially a consequence of her visual impairments, but it is my opinion within a reasonable degree of medical certainty that her major physical problem aside from the structural change in her brain which makes it abnormally very, very small is her blindness or her severe visual impairments. As noted, Dr. Charash was of the opinion that Faith's principal physical injury was her visual impairment, which rendered her substantially physically impaired, and that Faith's visual impairment resulted from bilateral retinal detachment that was caused by mechanical injury during delivery.7 (Intervenor's Exhibit 1, pages 21-31.) Consequently, if credited, Dr. Charash's testimony would support the conclusion that Faith suffered bilateral retinal detachment caused by mechanical injury that rendered her substantially physically impaired, and that such impairment did not result from a brain injury. Notably, other physicians who have examined Faith, as well as the Seminole County School System, have concluded that Faith's gross and fine motor skills, except to the extent they may be diminished because of her visual impairment, are age appropriate. Consequently, given the record, there is no competent proof to support a conclusion that Faith is permanently and substantially physically impaired, because of a brain injury. Here, the opinions of the experts offered by the parties, as well as the other proof of record, have been carefully considered. So considered, it must be resolved that, while Faith's delivery was traumatic and there is evidence to suggest that she may have suffered oxygen deprivation during labor, delivery and resuscitation, as well as mechanical injury, as evidenced by the cephalhematoma, the proof fails to support the conclusion that, more likely than not, any oxygen deprivation or mechanical injury she may have suffered resulted in significant brain injury, or that she is permanently and substantially physically impaired. In so concluding, it is noted that Faith's hospital course post-delivery was not consistent with Faith having suffered an acute brain injury; that the imaging studies do not reveal brain injury, (i.e., evidence of atrophy) and are therefore most consistent with cerebral malformation; that Faith's current deficits have a congenital basis, at least in part; that Dr. Duchowny, as opposed to Dr. Charash, examined Faith, and based on his training and experience is most qualified to address the neurologic issues in this case; and that Dr. Duchowny, as opposed to Dr. Charash, was most candid, and his opinions were most consistent with the other proof of record. Consequently, it is resolved that the more credible proof demonstrates that Faith's impairment, more likely than not, resulted from cerebral malformation, as opposed to brain injury caused by oxygen deprivation or mechanical injury during labor, delivery or resuscitation, and that, regardless of the cause, Faith is not permanently and substantially physically impaired.
Findings Of Fact Gracen was born on June 26, 2019, at Brandon Hospital located in Brandon, Florida. According to the Petition, Maya Kamath, M.D., provided obstetrical services at Gracen's birth.1 Upon receiving the Petition, NICA retained Donald Willis, M.D., a board-certified obstetrician/gynecologist specializing in maternal-fetal medicine, as well as Luis E. Bello-Espinosa, M.D., a pediatric neurologist, to review Gracen's medical records and condition. NICA sought to determine whether Gracen suffered a "birth-related neurological injury" as defined in section 766.302(2). Specifically, NICA requested its medical consultants opine whether Gracen experienced an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury which occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period. And, if so, whether this injury rendered Gracen permanently and substantially mentally and physically impaired. Dr. Willis reviewed Gracen's medical records and noted that: The mother was admitted for induction of labor at 39 weeks gestational age. * * * Cesarean section was done for a non-reassuring FHR pattern. A true knot was noted in the umbilical cord at birth. * * * The delivery operative note describes the baby as pink and vigorous at birth. Neonatal team noted poor respiratory effort once placed in the warmer. … Despite resuscitative measures, the baby remained floppy with delayed perfusion. * * * 1 No evidence was presented establishing that Dr. Kamath was a "participating physician" under the NICA statute at the time Gracen was born. See §§ 766.302(7) and 766.314(4), Fla. Stat. However, this finding is not pertinent to this Final Order as Gracen did not suffer a compensable injury under the Plan. The baby was taken to the NICU. … Chest X-ray suggested transient tachypnea of the newborn (TTN). Hypoxic ischemic encephalopathy (HIE) was suspected and the baby was transferred to [Tampa General Hospital] for possible cooling protocol. * * * EEG showed depressed cerebral activity while on cooling protocol, but no seizure activity was noted. Neurologic exam at time of newborn hospital discharge was considered normal. * * * In summary, labor was induced at term. A non- reassuring FHR pattern during labor required Caesarean delivery. … Cooling protocol was initiated for suspected HIE. No seizure activity was noted, either clinically or by EEG. Head ultrasound was normal. MRI on DOL 7 was normal. There was some degree of oxygen deprivation at birth … However, MRI on DOL 7 did not identify any brain injury. Dr. Willis concluded that, "Fortunately, the oxygen deprivation did not result in any identifiable brain injury." Dr. Bella-Espinosa agreed with Dr. Willis that Gracen did not suffer injuries that qualify for inclusion in the NICA Plan. Dr. Bella-Espinosa reviewed Gracen's medical records, as well as conducted an independent medical examination of Gracen on October 9, 2020, when Gracen was 15 months old. Following the examination, Dr. Bella-Espinosa reported that: Gracen was quite alert and interactive. He had great attention. … The tone of arms and legs was normal. … [H]e was able to walk on his own power without difficulties. … He reached for objects without any tremors or dysmetria. Thereafter, Dr. Bella-Espinosa concluded that Gracen's prognosis is "excellent," and that his "estimated life expectancy is normal." Dr. Bella- Espinosa then opined: In reviewing all the available documents, there is no evidence of permanent and substantial mental and physical impairments of the brain or spinal cord that may have been due to oxygen deprivation or mechanical injury that may have occurred during labor, delivery or the immediate post- delivery period. … Considering the clinical presentation, I do feel that there is no evidence to recommend Gracen is included in the NICA program. A review of the documents in the record reveals no contrary evidence to dispute the findings and opinions of Dr. Willis and Dr. Bella-Espinosa. Their opinions are credible and persuasive.
Findings Of Fact Brandon Santiago was born on January 28, 2008, at Health Central in Ocoee, Florida. Brandon weighed 2,750 grams at birth. NICA retained Donald C. Willis, M.D., as its expert in maternal fetal medicine. After having reviewed the medical records of Brandon and his mother, Dr. Willis opined in an affidavit dated June 26, 2013, as follows: The fetal heart rate (FHR) monitor tracing during labor was not available for review. However, the operative report stated “repetitive variable decelerations to the 60’s" were present. Cesarean section delivery was done for the abnormal FHR pattern and failure to progress in labor. Amniotic fluid was clear at delivery. Birth weight was 2,750 grams. The newborn was not depressed. Apgar scores were 7/9/9. Cord blood gas did not suggest acidosis. The pH was 7.26 with abase [sic] excess of only -3. Decreased fetal tone was present after birth and attributed to maternal MgS04 administration during labor. The baby had an uneventful hospital course and was discharged home two days after birth. Subsequently, the baby was noted to have poor muscle tone and developmental delay. Genetic evaluation was done but no obvious genetic condition was identified. In summary, Cesarean section was done for abnormal FHR pattern. The baby was not depressed at birth. Decreased muscle tone was noted, but otherwise the newborn hospital course was uneventful. The baby was discharged home with the mother two days after birth. These findings do not suggest oxygen deprivation during the birthing process. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to Brandon Santiago’s brain during labor, delivery, or the immediate post delivery period. NICA retained Michael S. Duchowny, M.D., as its medical expert in pediatric neurology. Dr. Duchowny examined Brandon and reviewed his medical records. In an affidavit dated July 9, 2013, Dr. Duchowny opined as follows: Brandon’s neurological examination reveals evidence of severe motor delay with virtually no progress past the newborn level. This disorder affects all limbs in a symmetric fashion and has likely compromised his bulbar musculature, as well. Cognitive testing is difficult to assess due to the profound motor impairment. A review of the medical records confirms his mother’s impression of only transient difficulties at birth and in fact, Brandon was born only with a brief period of absent respirations which responded immediately in the delivery room. His Apgar scores were 7, 9, 9 at 1, 5, and 10 minutes and Brandon’s hospital course stabilized rapidly allowing him to be discharged on the second day of life. These facts do not support the acquisition of a neurological injury to the brain or spinal cord due to oxygen deprivation or mechanical injury during labor or delivery. While Brandon does evidence a substantial motor impairment, he is likely suffering from an unknown neuromuscular disorder. The history of seizures obviously suggests that the underlying diagnosis also involves the central nervous system and is therefore more complex, but his caretakers have so far been unable to ascertain a definitive diagnosis. * * * It is my opinion that BRANDON SANTIAGO does have a substantial motor impairment. However, I do not regard Brandon’s neurological presentation as consistent with a neurological injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury occurring during the course of labor, delivery, or the immediate post- delivery period in the hospital during the birth of BRANDON SANTIAGO. I, therefore, do not believe that BRANDON SANTIAGO is compensable within the NICA program. A review of the file does not show any opinions contrary to the opinions of Dr. Duchowny and Dr. Willis that Brandon did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate post-delivery period are credited.
Findings Of Fact Yancel Peraza was born on April 1, 2009, at Winnie Palmer Hospital in Orlando, Florida. Yancel weighed 3,525 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Yancel. In a medical report dated November 27, 2013, Dr. Willis opined the following: The newborn was not depressed. Apgar scores were 8/9. No cord blood gas was done. No resuscitation was required after birth. The baby had a weak right arm and some mild respiratory distress with grunting and flaring. The respiratory distress resolved shortly after birth. Neurology consultation was obtained at one day of age for evaluation of a weak right arm. Erb’s palsy was suspected. New born hospital course was otherwise uncomplicated. The baby was discharged home two days after birth with Neurology follow-up scheduled for reevaluation of the weak right arm. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery, or the immediate post delivery period. The baby did have a brachial plexus injury, but no damage to the spinal cord. NICA retained Michael S. Duchowny, M.D., to perform an independent medical examination of Yancel. Dr. Duchowny examined Yancel on September 25, 2013. In a medical report dated September 25, 2013, Dr. Duchowny reported his findings and gave the following opinion: In summary, Yancel’s neurologic examination is significant for a right Erb’s (upper brachial plexus) palsy involving the C5 and C6 dermatomes. He has a preserved individual finger dexterity and fine motor coordination but is mechanically limited by a fixed elbow contracture on the right. In contrast, there are no other significant findings on the neurologic examination. Despite the absence of supplementary medical records, Yancel’s neurological examination today that is consistent with an Erb’s palsy of the upper cervical nerve roots anatomically places his deficit outside the central nervous system (brain and spinal cord). For this reason, I do not believe that Yancel should be considered for compensation within the NICA program. A review of the file does not show any contrary opinion, and Petitioner and Intervenors have no objection to the issuance of a summary final order finding that the injury is not compensable under Plan. The opinion of Dr. Willis that Yancel did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate postdelivery period is credited. The opinion of Dr. Duchowny that Yancel has Erb’s palsy, which is outside the central nervous system, meaning that the injury does not involve the brain or spinal cord, is credited.
