Findings Of Fact Noble was born on May 4, 2017, at Bayfront Health St. Petersburg. Noble was a single gestation, weighing over 2,500 grams at birth. With respect to Noble’s birth, obstetrical services were provided by Prashanti Logeswaran, M.D., a NICA participating physician, in the course of labor, delivery, or resuscitation in the immediate post-delivery period. NICA retained Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, to review Noble’s medical records and opine as to whether there was an injury to his brain or spinal cord that occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period due to oxygen deprivation or mechanical injury. In his report dated June 18, 2018, Dr. Willis set forth the following: In summary, what appeared to be an uneventful vaginal birth resulted in newborn depression with Apgar scores of 3/4/6. Bag and mask ventilation was required at birth, followed by CPAP in the nursery. ABG at one hour after birth was consistent with acidosis. The pH was 7.18 with a base excess of -11. Seizure activity developed within the first 24 hours after birth and was confirmed by EEG. MRI on DOL 3 had findings consistent with ischemic brain injury. There was no apparent obstetrical event that resulted in oxygen deprivation during labor and delivery, but oxygen deprivation did occur in the post-delivery period. The oxygen deprivation resulted in brain injury. Dr. Willis affirms in his affidavit, dated September 4, 2018, the above-quoted opinion based upon his education, training, experience, and to a reasonable degree of medical probability. NICA also retained Laufey Y. Sigurdardottir, M.D., a pediatric neurologist, to review Noble’s medical records, conduct an Independent Medical Examination (IME), and opine as to whether he suffers from a permanent and substantial mental and physical impairment as a result of a birth-related neurological injury. Dr. Sigurdardottir reviewed the available medical records, obtained information regarding Noble’s developmental trajectory from Petitioners, and conducted an IME of Noble on May 23, 2018. Dr. Sigurdardottir’s affidavit, attached to NICA’s Motion, provides in pertinent part, as follows: Based upon my education, training and experience, it is my professional opinion, within a reasonable degree of medical probability that although there is evidence of impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury, he has made an excellent recovery and has minimal delays in development at this time. He has no delays in mental abilities. A review of the file reveals that no contrary evidence was presented to refute the findings and opinions of Dr. Willis and Dr. Sigurdardottir. Their unrefuted opinions are credited.
Findings Of Fact Elissa Delgado was born on September 27, 2010, at Baptist Hospital located in Miami, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Elissa. In a report dated December 12, 2014, Dr. Willis described his findings as follows: The mother was admitted to the hospital at 38 weeks with spontaneous rupture of the membranes. Delivery was by spontaneous vaginal birth. The birth weight of 2,550 grams (5 pounds 9 oz’s) was consistent with the prenatal ultrasound finding of fetal growth delay. This weight is below the 10% for gestational age. The newborn was not depressed. Apgar scores were 9/9. The baby was described as crying and alert after birth. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor and delivery, based on the mother’s hospital records. In an affidavit dated January 7, 2015, Dr. Willis confirmed his opinion as stated in his medical report and opined as follows: It is my opinion that the newborn was not depressed. Apgar scores were 9/9. The baby was described as crying and alert after birth. As such, it is my opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor or delivery, based on the mother’s hospital records. 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 no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor or delivery, and Petitioners have filed their Petition under Protest, stating that they are not claimants. Dr. Willis’ opinion is credited.
Findings Of Fact Based upon the evidence adduced at the July 14, 1993, Division-conducted hearing in this case, and the record as a whole, the following Findings of Fact are made: Kathleen Behan is the natural daughter of Mary Lou and Gerald Behan. She was born on November 30, 1989, at Plantation General Hospital in Broward County, Florida. Her birth weight was in excess of 2500 grams. Kathleen was delivered by caesarian section performed by the family's obstetrician, Mariano J. Rodriguez, Jr., M.D., after her mother had experienced a spontaneous rupture of the fetal membrane. At the time of Kathleen's birth, Dr. Rodriguez was a participant in the Florida Birth-Related Neurological Injury Compensation Plan. Kathleen had an Apgar score of 6 one minute after birth and an Apgar score of 9 five minutes after birth. Apgar scores reflect the attending physician's or nurse's assessment of the newborn infant's well-being based upon clinical observations regarding the infant's heart rate, respiratory effort, color, muscle tone, and reflexes. The higher the score, the greater the state of well being. The highest score attainable is a 10. Apgar scores are commonly used to determine if a newborn infant has suffered a neurological injury of a substantial and permanent nature during labor or delivery or in the immediate post-delivery process. Kathleen's Apgar scores are not consistent with her having suffered such a birth-related injury. After her condition was evaluated, Kathleen was taken from the delivery room to Plantation's "well-baby" nursery. She remained there without incident until December 2, 1989, when she was found asystolic in her crib after having experienced an acute life-threatening event or ALTE. Kathleen was resuscitated and survived the incident. She, however, has neurological impairment. The neurological impairment from which she now suffers was not the product of oxygen deprivation or mechanical injury that occurred during labor or delivery or in the immediate post-delivery period.
Other Judicial Opinions Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass’n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).
Findings Of Fact Gianna was born on August 20, 2017, at Traditions Hospital, located in St. Lucie County, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Gianna. In a medical report dated February 29, 2020, Dr. Willis summarized his findings and opined, in pertinent part, as follows: In summary, labor at term was complicated by an abnormal FHR tracing that required Cesarean section delivery. Umbilical cord blood gas pH of 7.04 would seem consistent [with] the FHR pattern prior to delivery. Although there was some acidosis at birth, cord pH and base excess were not substantial enough to likely result in significant brain injury. This would be consistent with Apgar scores of 9/9, suggesting no significant birth related depression or hypoxia. Head enlargement was noted at birth and head ultrasound within two hours of birth showed dilated ventricles, consistent with hydrocephaly. These findings were confirmed by subsequent MRI. It is most likely the brain injury occurred at some time in the prenatal period and not birth related. As stated above, the baby’s brain injury does not appear to be the result of oxygen deprivation or trauma during the birth process or immediate post delivery period. NICA retained Luis E. Bello-Espinosa, M.D. (Dr. Bello), a medical expert specializing in pediatric neurology, to examine Gianna and to review her medical records. Dr. Bello examined Gianna on February 25, 2020. In a medical report dated February 25, 2020, Dr. Bello summarized his examination of Gianna and opined, in pertinent part, as follows: Gianna is a 2 1/2 year old girl born at term via C- section noticed at immediately after birth to have severe megalencephaly, and clinical signs of severe increased intracranial pressure. An urgent head ultrasound demonstrated bilateral ventriculomegaly, right intraventricular hemorrhage, and suspicion of agenesis of the corpus callosum. MRI of brain at Miami Children’s hospital done on day 1 of life showed severe enlargement of the third and lateral ventricles. Transependymal flow of cerebrospinal fluid was seen around the lateral ventricles being worse in the left cerebral hemisphere and extending to a greater degree in the left occipital and parietal lobes. Extensive intraventicular hemorrhage is seen with large clot identified in the right later ventricle. Her subsequent course required 7-VP shunt related surgeries at Miami Children’s hospital but since she was discharged at 7-month of age she had not had any seizures [or] other neurological related events. Gianna’s neurological examination today revealed she still has enlarged head, as well as left sided hemiparesis with upper motor neuron signs, in addition to cognitive dysfunction and stereotypic behavior as seen in children with autism. She has a VP shunt in place, but no longer evidence of decompensated intracranial pressure. * * * In reviewing all the available documents, the evolution of her symptoms, the birth findings, the acute brain ultrasound and acute brain MRI changes, it is evident that Gianna clinical findings are the result of a prenatal condition, are not due to a birth injury, and not due to oxygen deprivation of the brain at birth. * * * Considering the clinical presentation, I do feel that there is no evidence to recommend Gianna is included in the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that it is unlikely that any significant oxygen deprivation occurred prior to the birth of Gianna. Dr. Willis’s opinion is credited. There are no expert opinions filed that are contrary to Dr. Bello’s opinion that Gianna should not be considered for inclusion in the NICA program. Dr. Bello’s opinion is credited. Petitioner, despite attending the April 23, 2020, telephonic status conference, and agreeing to the April 29, 2020, Joint Response to Scheduling Order, which states, in part, that “NICA is of the opinion that the issues can be resolved by Motion for Summary Final Order, which it intends to file in the near future[,]” has failed to respond to the Motion or the undersigned’s Order to Show Cause.
Findings Of Fact By stipulation filed December 2, 1993, petitioners and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Florida Statutes, a claim was filed on behalf of the above-styled infant against the Florida Birth-Related Neurological Injury Compensation Association (the "Association") on behalf of Andres Romero, Bertha Romero and Alberto Romero (the "Petitioners") for benefits under Chapter 766.301-766.316 (F.S.) 1988. That a timely filed claim for benefits complying with the requirements of F.S. 766.305 was filed by the Petitioners and a timely denial was filed on behalf of the Association. That the infant, Andres Romero, was born at Baptist Hospital [sic] [medical reports and records reflect South Miami Hospital] on July 22, 1991, and that the said hospital was a licensed Florida Hospital and the attending physician was a participating physician within the meaning of Chapter 766, Florida Statutes. That the Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. That Section 766.302(2), Florida Statutes, states that "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post- delivery in a hospital, which renders the infant permanently and substantially, mentally and physically impaired. The parties agree that Andres Romero suffers from a right brachial plexus injury. That the parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., who appears on behalf of the Respondents and Leon I. Charash, M.D., who appears on behalf of the Petitioner. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further Stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply. Based upon this stipulation, the parties request the hearing officer to rule on Petitioner's claim based upon this Stipulation, the attached medical records and the deposition of Dr. Duchowny. The neurological examinations of Andres reveal that he suffered from a "mild" to "moderate" right Erb's palsy related directly to the right brachial plexus injury he received at birth. A brachial plexus injury, the cause of Erb's palsy, is not, however, a spinal cord injury. Moreover, Andres's mental functioning is normal and not impaired due to any birth-related complications.
Findings Of Fact By stipulation filed January 3, 1994, petitioners and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Fla. Stat., a claim was filed on behalf of the above-styled infant against NICA on behalf of VENISE FERDINAND, MARIE VIRGILE and MANES FERDINAND (the "Petitioners") for benefits under Chapter 766.301-766.316 Fla. Stat. That a timely filed Claim for benefits complying with the requirements of Section 766.305, Fla. Stat., was filed by the Petitioners and a timely Notice of Non- Compensability Setting forth that NICA denied the claim was filed on behalf of NICA. That infant, VENISE FERDINAND, was born at Broward General Medical Center on April 1, 1992, and Broward General Medical Center was a licensed Florida Hospital and the attending physician, Joseph Nicaisse was a participating physician within the meaning of Chapter 766, Fla. Stat. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. Section 766.302(2), Fla. Stat. states that "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. The parties agree that VENISE FERDINAND suffers from a left brachial plexus palsy injury. A brachial plexus palsy injury is not an injury to the brain or spinal cord and further, does not result in any mental injury. The parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., including in particular his reports dated February 10, 1993, March 12, 1993 and November 15, 1993. Copies of these reports have been attached hereto and incorporated herein respectively as Exhibits 1, 2 and 3. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply. Based upon this stipulation, the parties request the hearing officer to rule on Petitioners' claim based upon this Stipulation, and the attached medical records. The neurological examinations of Venise Ferdinand reveal that she suffered a left Erb's palsy directly related to the left brachial plexus injury she received at birth. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury and, further, does not result in mental injury. Moreover, Venise Ferdinand's mental functioning is normal and not impaired due to any birth related complications.
The Issue Whether Brittany C. Story has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.
Findings Of Fact Brittany C. Story is the natural daughter of Constella Story. She was born on January 10, 1990, at Broward General Medical Center, Broward County, Florida, and her birth weight was in excess of 2500 grams. Brittany was delivered by George Edouard, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan. The claim for benefits under the Florida Birth- Related Neurological Injury Compensation Plan filed on behalf of Brittany contends that she "suffered a neurological impairment to wit: Erb's Palsy to the left upper extremity at the time of birth." To support such contention, petitioner offered the testimony of Melvin Grossman, M.D., a board certified neurologist, who opined that Brittany suffered a left brachial plexus palsy, an Erb's palsy, and that the injury to the left brachial plexus that resulted in such palsy most likely occurred during the course of delivery. It was, however, Dr. Grossman's opinion that Brittany's mental functioning was age appropriate and not substantially impaired, and that the physical impairment she suffers (left Erb's palsy) is the consequence of an injury to her left brachial plexus, which is not a brain or spinal cord injury. Juxtaposed with the proof offered on behalf of petitioner, respondent offered the testimony of Michael Duchowny, M.D., who is board certified in pediatrics, neurology with special emphasis in child neurology, and clinical neurophysiology. It was Dr. Duchowny's opinion that the condition from which Brittany suffers was not caused in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital but, rather, was a consequence of congenital deformity. Dr. Duchowny concurs, however, that Brittany is not substantially mentally impaired, and that a brachial plexus injury, which can result in an Erb's palsy, is not an injury to the brain or spinal cord. Here, it is not necessary to resolve the conflict in the testimony, as to the cause of Brittany's injury, since the proof is uncontroverted that a brachial plexus injury, the cause of Erb's palsy, is not a brain or spinal cord injury. Moreover, it is uncontroverted that Brittany is not substantially mentally impaired. Under such circumstances, the proof fails to demonstrate that Brittany suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery or resuscitation in the immediate post- delivery period, or that the injury Brittany did suffer rendered her permanently and substantially mentally and physically impaired.
The Issue At issue is whether Tyler Baker, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact As observed in the Preliminary Statement, neither Petitioners nor anyone on their behalf appeared at hearing, and no proof was offered to support their claim. In contrast, NICA offered the testimony of Donald Willis, M.D., a physician board- certified in obstetrics and gynecology, as well as maternal- fetal medicine, and Michael Duchowny, M.D., a physician board- certified in pediatrics; neurology, with special competence in child neurology; and clinical neurophysiology. Dr. Duchowny is a pediatric neurologist associated with Miami Children's Hospital, who evaluated Tyler on January 16, 2008. Based on that evaluation, as well as his review of the medical records associated with Tyler's birth and subsequent development, Dr. Duchowny concluded that, although Tyler was permanently and substantially mentally and physically impaired, the cause of such impairment was likely a developmentally-based brain abnormality, as opposed to a brain injury caused by oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period. Dr. Duchowny offered the following basis for his opinion: That opinion is based on several factors. If one looks through the records, it's clear that when Tyler was born, he had reasonably good Apgar Scores, and was actually relatively stable at birth. By that I mean, he didn't show evidence of any respiratory embarrassment. He did not require intubation and mechanical ventilation, and he did not show evidence of multi-system organ involvement of, for example, the heart, the liver or kidneys, as one would expect in a child who suffered from hypoxic ischemic damage or mechanical injury. Furthermore, Tyler's normal MRI scans of the brain argue strongly that there was no damage due to mechanical injury or oxygen deprivation at birth. Q. And why is that, Dr. Duchowny? A. If Tyler's neurological problems were caused by lack of oxygen at birth, one would expect to see changes on his MRI scan of the brain. Particularly, one would expect to see evidence of brain atrophy, enlargement of the ventricles deep within the brain or possibly abnormalities of white matter. None of these findings are evident in Tyler's MRI scan, suggesting that lack of oxygen at birth is simply not a realistic possibility. (Respondent's Exhibit 2, pp. 14 and 15). Similarly, Dr. Willis, based on his evaluation of the medical records, concluded that Tyler did not suffer a brain injury due to oxygen deprivation or mechanical injury occurring during labor, delivery, or resuscitation. Dr. Willis based his opinion on the fetal monitor strips, which did not reveal any significant abnormalities that would be suggestive of fetal distress; Tyler's Apgar score of 8 at five minutes, which was normal; and Tyler's newborn course, which was uncomplicated. The opinions of Doctors Duchowny and Willis were rationally based, and not contradicted. Consequently, it must be resolved that the cause of Tyler's neurologic impairments was likely a developmental brain disorder, as opposed to a birth- related brain injury. See Ackley v. General Parcel Service, 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The determination of the cause of a non-observable medical condition, such as a psychiatric illness, is essentially a medical question."); Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation."). Therefore, the proof fails to support the conclusion that Tyler suffered a "birth-related neurological injury," as required for coverage under the Plan.
