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).
The Issue At issue in this proceeding is whether Emmanuel Broughton, a deceased minor, weighed at least 2,500 grams at birth.
Findings Of Fact Samuel Broughton and Angela Broughton, are the parents and natural guardians of Emmanuel Broughton (Emmanuel), a deceased minor. Emmanuel was born a live infant on March 19, 1997, at Sacred Heart Hospital, a hospital located in Pensacola, Florida, and he died March 21, 1997. Emmanuel's weight at birth was 1,395 grams.1
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.
Findings Of Fact On February 24, 2017, Petitioners filed a Petition for Benefits Pursuant to Florida Statute Section 766.301, et seq. The child, Rosabella Wilson, was stillborn on April 29, 2016, at Gulf Coast Medical Center after the mother was transferred there from Jackson in Marianna, Florida. The circumstances of Rosabella’s labor and delivery are reflected in the medical records submitted by Petitioners along with the Petition. In order for a claim to be compensable under the Plan, the requisites set forth in section 766.309 must be met. NICA retained Donald C. Willis, M.D. (Dr. Willis), as its medical expert specializing in maternal-fetal medicine. Upon examination of the medical records, Dr. Willis opined, in pertinent part: Autopsy stated this was a stillbirth. Neuropathologic diagnosis was Hypoxic Ischemic Encephalopathy (HIE). No birth defects were noted. * * * In summary, the mother was a poorly controlled Diabetic, admitted at 38 weeks gestational age for labor induction. An abnormal FHR tracing developed during labor and resulted in fetal demise. There was an obstetrical event that resulted in loss of oxygen to the baby's brain during labor which resulted in brain injury as diagnosed by Autopsy. Severity of the brain injury could not be determined. This was apparently not a live birth. Further, in the Petition, Petitioners indicate that the child is deceased and that a birth certificate was never issued. See Petition, paras. 12 and 13. The autopsy report reviewed by Dr. Willis was included in the medical records provided by Petitioners with the Petition and indicates that the child was stillborn. Thus, the face of the Petition, the autopsy report, and Dr. Willis' affidavit establish that the child was stillborn and was not a live birth.
Findings Of Fact Koby was born on January 10, 2020, at Tampa General Hospital, in Tampa, Florida. Koby was a single gestation and his weight at birth exceeded 2,500 grams. Obstetrical services were delivered by a participating physician, Dr. Louis, in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, Tampa General Hospital. As set forth in greater detail below, the unrefuted evidence establishes that Koby did not sustain a “birth-related neurological injury,” as defined by section 766.302(2). Donald Willis, M.D., a board-certified obstetrician specializing in maternal-fetal medicine, was retained by Respondent to review the pertinent medical records of Ms. Crowley and Koby and opine as to whether Koby sustained an injury to his brain or spinal cord caused by oxygen deprivation or mechanical injury that occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital. In his report, dated October 19, 2020, Dr. Willis summarized his findings and opinions as follows: In summary, pregnancy was complicated by a known fetal congenital birth defect, Omphalocele. Delivery by repeat Cesarean section was done in early labor with rupture of the membranes. The baby was depressed at birth with cord blood pH of 6.74 and base excess of -21. Despite the acidosis at birth, MRI on DOL 7 was normal. There was some degree of oxygen deprivation at birth, as documented by the cord blood pH of 6.4. However, MRI on DOL 7 was normal, suggesting the oxygen deprivation did not result in identifiable brain injury. Based on available medical records, it does not appear the child suffered a birth related brain injury. In his supporting affidavit, Dr. Willis opines, to a reasonable degree of medical probability, that while Koby suffered some degree of oxygen deprivation at birth, it does not appear the child suffered a birth related brain injury. Respondent also retained Luis E. Bello-Espinosa, a pediatric neurologist, to review the medical records of Ms. Crowley and Koby, and to conduct an Independent Medical Examination (IME) of Koby. The purpose of his review and IME was to determine whether Koby suffered from a permanent and substantial mental and physical impairment as a result of an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery, or resuscitation in the immediate post- delivery period. Dr. Bello-Espinosa reviewed the pertinent medical records and, on December 11, 2020, conducted the IME. In his report, prepared the same day as the examination, he summarized his findings and opinions as follows: Koby is an eleven month and three-week-old by ex- 35 week premature born via C-section with clear amniotic fluid after PROM. At birth, he was diagnosed with an omphalocele. A diagnosis of moderate hypoxic encephalopathy was made given his initial Apgar score, arterial blood gases, and neurological examination. Therapeutic hypothermia was implemented despite his neonatal age, given his clinical presentation. During his NICU stay, he did not have acute electroclinical or electrographic seizures. An MRI of the brain obtained on day 7th of life was normal. Since birth, he has benefited from PT and OT. His comprehensive neurological examination today is normal. Dr. Bello-Espinosa opined that Koby does not suffer from a substantial and permanent mental and physical impairment. Additionally, he opined that Koby did not acquire an injury to the brain or spinal cord during labor, delivery, or the immediate post-delivery period. Accordingly, he did not recommend Koby be considered for inclusion in the Plan. Dr. Bello-Espinosa confirms those opinions in his supporting affidavit. The undisputed and unopposed findings and opinions of Drs. Willis and Bello-Espinosa are credited. The undersigned finds that Koby did not sustain an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which rendered him permanently and substantially mentally and physical impaired.
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.
