Findings Of Fact Adam was born on June 11, 2018, at HealthPark Medical Center, in Fort Myers, Florida. Adam was a single gestation and his weight at birth exceeded 2500 grams. Obstetrical services were delivered by a participating physician, Jane A. Daniel, M.D., in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, HealthPark Medical Center. As set forth in greater detail below, the unrefuted evidence establishes that Adam 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. Johnson and Adam and opine as to whether Adam 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 affidavit, dated December 11, 2020, Dr. Willis summarized his opinions as follows: In summary, an abnormal FHR pattern developed during labor and resulted in a depressed newborn. Cord blood pH was 6.9 with a base excess of -18.6. Seizures began shortly after birth. The newborn hospital course was complicated by multi-system organ failures, consistent with birth-related oxygen deprivation. MRI on DOL 4 was suggestive of HIE, but findings improved with follow-up MRI. There was an apparent obstetrical event that resulted in oxygen deprivation to the brain during labor, delivery and continuing into the immediate post-delivery period. The oxygen deprivation resulted [in] a potential for brain injury, but the follow-up normal MRI suggests that no actual brain injury occurred. Respondent also retained Michael S. Duchowny, M.D., a pediatric neurologist, to review the medical records of Ms. Johnson and Adam, and to conduct an Independent Medical Examination (IME) of Adam. The purpose of his review and IME was to determine whether Adam 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. Duchowny reviewed the pertinent medical records and, on October 20, 2020, conducted the IME. In his affidavit, dated December 16, 2020, Dr. Duchowny summarized his opinions as follows: In summary, Adam’s evaluation reveals findings consistent with a substantial motor but not mental impairment. He evidences a spastic diplegia, but with relative preservation of motor milestones, and age-appropriate receptive and expressive communication. Adam additionally has a severe behavior disorder, and has a sleep disorder and attentional impairment. His seizures are in remission. Review of the medical records reveals that Adam was the product of a 40 week gestation and was delivered vaginally with Apgar scores of 3, 6, 7 and 6 at one, five and 10 minutes. Terminal meconium was noted at delivery. Adam initially required positive pressure ventilation until his respirations were subsequently managed with nasal CPAP. His cord gas pH was 6.917 with a base excess of – 18.6. Adam developed seizures in the NICU and was intubated on the first day of life for apnea. Multiple seizures were documented on video/EEG monitoring. He was oliguric on the first day of life and had elevated liver function studies. An elevated lactic acid level was noted and there was a borderline elevation of DIC parameters. Adam was enrolled in a body hypothermia protocol on the first day of life. His blood pressure was maintained with dopamine. A head ultrasound on June 11 at 22:23 (DOL#2) was unremarkable. A brain MR imaging study performed on June 15, (DOL#5) revealed multifocal areas of restricted diffusion. Follow-up brain MR imaging study on July 5th revealed near-complete resolution of the previously observed diffusion abnormalities. A third MR imaging study obtained one month ago confirms the resolution of the DWI findings noted on the first brain MR imaging study. In conclusion, Dr. Duchowny opined that Adam does not have a substantial mental impairment, and, therefore, did not recommend that Adam be considered for inclusion in the Plan. The undisputed findings and opinions of Drs. Willis and Duchowny are credited. The undersigned finds that Adam 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.
The Issue Whether Anthony Wayne Blunt, a minor, suffered a "birth- related neurological injury," as defined by Section 766.302(2), Florida Statutes. If so, whether Petitioner's recovery, through settlement, with the participating physician bars her from recovery under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Petitioner, Jane Blunt, is the mother and natural guardian of Anthony Wayne Blunt, a minor. Anthony was born a live infant on September 24, 1997, at Tenet Healthcare Corporation, d/b/a North Bay Medical Center, a hospital located in New Port Richey, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Anthony's birth was Melchiades J. Loman, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post- delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Section 766.302(2), Florida Statutes. See also Section 766.309(1)(a), Florida Statutes. Anthony's presentation On March 20, 2002, following the filing of the claim for compensation, Anthony was examined by Michael S. Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital, Miami, Florida. Dr. Duchowny reported the results of that neurological evaluation, as follows: PHYSICAL EXAMINATION reveals Anthony to be alert and impulsive. He weights 46 pounds and is 43 inches tall. The hair is blonde and of normal texture. The skin is warm and moist without cutaneous stigmata. There are no dysmorphic features. The head circumference measures 50.8 cm which falls within standard percentile. There are no cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. Peripheral pulses are 2+ and symmetric. Anthony's NEUROLOGIC EXAMINATION reveals an impulsive behavioral style and short attention span. He is oppositional and the examination is completed with his mother providing restraint. He talked in completed sentences and clearly identified objects, colors and body parts. There is a slight lingual disarticulation. Cranial nerve examination reveals full visual fields to direct confrontation testing and normal ocular fundi. The pupils are 3 mm and briskly reactive to direct and consensually presented light. There are no funduscopic abnormalities. Facial movements are symmetric. The tongue and palate move well. The uvula is midline. Motor examination reveals an asymmetry of the upper extremities whereby there is a more downward slant to the right shoulder and a fixed contracture of the right upper extremity whereby Anthony is unable to fully extend the elbow. In contrast, he has good finger dexterity and well developed pincer grasp. He transfers readily between hands. Muscle bulk and tone appear symmetric. Anthony is however unable to fully extend the right arm above the shoulder and in fact cannot place the right arm in a complete horizontal position parallel to the left. The lower extremity's strength, bulk and tone are within normal limits. Deep tendon reflexes are 2+ in the lower extremities and 1+ in the upper extremities. Plantar responses are down- going. Station and gait are stable although there is diminished arm swing on the right side. Sensory examination is grossly intact to withdrawal of all extremities to touch. The neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Anthony's neurologic examination reveals findings referable to a mild right Erb's palsy and mild developmental delay. He additionally has short attention span and high activity level. I believe that the findings on examination suggest neither a substantial nor permanent impairment of mental or motor functioning. Following his examination, Dr. Duchowny had the opportunity to review Anthony's medical records, and on August 1, 2002, concluded that: [t]he medical records, together with the neurological evaluation do not suggest that Anthony has a permanent or substantial mental or physical impairment of the central nervous system acquired in the course of labor, delivery or resuscitation. Rather, Anthony has a mild right Erb's palsy and evidence of mild learning problems which are developmentally based. Further, in his deposition testimony (Respondent's Exhibit 1), Dr. Duchowny offered the following additional observations: Q. . . . Is it your opinion based upon . . . your evaluation of Anthony Blunt and by your review of the medical records that the only injury suffered by Anthony Blunt in the course of labor and delivery was the Erb's palsy injury? A. Yes. Q. And the reason that injury does not fit within the NICA Statute in your opinion is because it's located outside the central nervous system?[2] A. Yes. Q. Therefore, it wouldn't be considered an injury to the spinal cord? A. That's correct. Q. And there was no brain injury based on your review of the records and your evaluation of the child that was suffered in the course of labor and delivery? A. That's correct. * * * Q. Could you explain just briefly if it's not related to a birth injury what ADHD [Attention Deficit Hyperactivity Disorder] is related to or how it develop[ed]? A. It is related to slow maturation of the brain, it's a developmental disorder. Q. Does that slow maturation of the brain have anything to do in this instance with any type of injury to the brain during labor and delivery based upon your experience and review in this case? A. No. An Erb's palsy, such as that evidenced by Anthony, is a weakness of the upper extremity due to damage to the nerve roots of the upper brachial plexus, and does not involve the brain or spinal cord. Moreover, the impairment Anthony suffers is mild, as opposed to substantial, and there is no evidence of mental impairment. Consequently, while Anthony may have suffered a mechanical injury, permanent in nature (to his right brachial plexus) during the course of birth, he does not qualify for coverage under the Plan.3 Petitioner's settlement with the participating physician By the terms of their Pre-Hearing Stipulation, filed November 26, 2002, the parties agreed, as follows: 3. The underlying medical negligence lawsuit captioned Jane Lynn Blunt and Wayne A. Blunt, Individually and as parents and next of friends of Anthony W. Blunt, a minor, v. Melchiades J. Loman, M.D.; Loman & Loman, M.D., P.A., d/b/a Woman's Care Center Center; Lynda McKenry, CNM; Raul Montenegro, M.D.; St. Petersburg Maternal Fetal Medicine Associates, P.A.; Humana Medical Plan, Inc.; and Morton Plant Hospital Associates, Inc., d/b/a North Bay Hospital, Pinellas County Case No. 99-4566-CI-20, is premised upon injuries allegedly sustained by the Petitioner and Child during the birth of the Child. * * * 9. The Petitioner and Child recovered $270,000 (before attorney's fees) . . . [through settlement of] the lawsuit against Dr. Loman and Humana Medical Plan, Inc.
