Findings Of Fact Zackary K. Farnum was born on August 11, 2008, at North Florida Regional Medical Center in Gainesville, Florida. Zackary weighed 3,620 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Zackary to determine whether an injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital due to oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Dr. Willis described his findings as follows in his medical report: In summary, labor was induced at term due to rupture of the membranes. A prolonged FHR deceleration, lasting about 4 minutes occurred at about five hours prior to birth. However, the baby was not depressed after birth with a normal Apgar score of 8 by five minutes and a normal cord blood pH of 7.29. The newborn hospital course was not complicated by multisystem organ failure, which is commonly seen with birth asphyxia. The baby had some initial difficult feeding and one episode of arching of the back was noted. Clinical findings were no [sic] substantial enough to require further evaluation, such as EEG or MRI. Overall, review of the medical records does not clearly identify a hypoxic event during labor or delivery that would have resulted in substantial brain injury. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor, delivery or the immediate post delivery period. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Zackary and to review his medical records. Dr. Duchowny examined Zackary on May 21, 2014, and opined as follows in his medical report: In summary, Zackary's neurological examination reveals evidence of left-sided motor findings including left hemihypotrophy, left mild spastic weakness, and left hyperreflexia with a left Babinski sign. Despite these findings, he is able to accomplish most tasks reasonably well and is well-adjusted to his motor deficits. His cognitive functioning is appropriate for age, although he is behaviorally overactive and impulsive. His speech dysarthria is likely developmentally based. Medical records confirm the parental history of a difficult delivery. Zack's Apgar scores were 2 and 8 at 1 and 5 minutes and there was evidence of thick meconium. A tight nuchal cord was removed at birth. The neonatal course was subsequently benign. I am familiar with the Florida Birth-Related Neurological Injury Compensation Plan (the "Plan") and the standards imposed by the Plan for compensability of potential claims. Based upon my review of the medical records as described herein and in my report, and further based upon my evaluation of ZACKARY FARNUM, I have formed an opinion as to whether ZACKARY FARNUM qualifies for compensation under the plan. I regard Zack's motor difficulties as mild to moderate and his evaluation today does not provide evidence for a substantial mental impairment. I suspect that his right hemisphere stroke was acquired in utero but I have not had an opportunity to personally review the MR images. However, Zackary does not have a substantial mental impairment. I therefore believe that he should not be considered for inclusion within 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 there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. Dr. Willis’ opinion is credited. There are no contrary expert opinions filed that are contrary to Dr. Duchowny’s opinion that Zackary does not have a substantial mental or physical impairment. Dr. Duchowny’s opinion is credited.
Findings Of Fact Ryan was born on September 4, 2015, at Central Florida Regional Hospital, in Sanford, Florida. The physician providing obstetric services and who was present at Ryan’s birth was Dr. David Teitelbaum. At the time of Ryan’s birth, Dr. Teitelbaum was a NICA participating physician. Respondent retained Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, to review Ryan’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 a report dated April 5, 2018, Dr. Willis concluded the following: In summary, labor was complicated by a non- reassuring FHR pattern requiring emergency Cesarean section delivery. The baby was depressed at birth with Apgar scores of 2/2/4. Resuscitation included chest compressions for 2 minutes, intubation and intravenous fluid bolus. Cooling protocol was initiated. The newborn hospital course was complicated by multi-system organ failures, including respiratory distress, hypotension, coagulopathy and elevated liver function studies. Despite the clinical findings of birth related hypoxia, only the initial EEG showed mild encephalopathy, which normalized. No abnormalities were reported on brain MRI’s after birth and at 6 months of age. There was a clinically apparent obstetrical event that resulted in oxygen deprivation during labor, delivery and continuing into the immediate post-delivery period. The oxygen deprivation would have been expected to result in some degree of brain injury. Attached to Respondent’s Unopposed Motion for Summary Final Order is the affidavit of Dr. Willis, dated June 27, 2018. In his affidavit, Dr. Willis opines, based on his education, training, and experience, and within a reasonable degree of medical probability, that there was a clinically apparent obstetrical event that resulted in oxygen deprivation during labor, delivery, and continuing into the post-delivery period. Respondent also retained Laufey Y. Sigurdardottir, M.D., a pediatric neurologist, to review Ryan’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 a full historical account from Ryan’s father and family members, and conducted an IME of Ryan on November 22, 2017. Dr. Sigurdardottir’s IME report provides, in part, as follows: Summary: Patient is a 2-year-old male with history of being born via an emergency C- section after normal uncomplicated pregnancy. Apgar scores were low: 2 whole body cooling was performed at Florida Hospital at 1 minute, 2 at 5 minutes, 4 at 10 minutes and 6 at 15 minutes. And patient had neurologic sequelae including a cognitive impairment autistic features. Despite having early motor delays, he is currently ambulatory. Result as to question 1: Ryan is found to have substantial delays in mental abilities but mild delays in motor abilities at this time. Result as to question 2: In review of available documents there is evidence of impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation. Result as to question 3: The prognosis for full motor recovery is good but mental recovery is unlikely and need for vast therapies to improve his language development and decrease autistic features is needed. His life expectancy is excellent. In light of evidence presented, I believe Ryan does not fulfill criteria of both substantial and mental and physical impairments at this time. I do not feel that Ryan should be included in the NICA program for that reason. Respondent’s Unopposed Motion for Summary Final Order also relies upon the attached affidavit of Dr. Sigurdardottir, dated June 25, 2018. In her affidavit, she opines, based upon her education, training and experience, and to a reasonable degree of medical probability, that Ryan “has substantial delays in mental abilities,” however, “he has only mild delays in motor abilities.” A review of the file reveals 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 Akeem Brown was born on May 15, 2012, at Memorial Hospital Jacksonville in Jacksonville, Florida. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Akeem’s medical records. In a medical report dated May 14, 2015, Dr. Willis made the following findings and expressed the following opinion: Spontaneous vaginal delivery was apparently uncomplicated. Birth weight was 3,626 grams or 8 lbs. The baby was not depressed. Apgar scores were 8/9. Newborn hospital course appears to be uncomplicated. Progress note on the day after birth recommended routine newborn care. Neurology evaluation at 20 months of age stated the baby had global developmental delay, hypotonia, and hyperreflexia. MRI at about 2 years of age showed bilateral motor cortex hyperintense FLAIR, suggestive of gliosis. A subsequent neurology note stated this finding was likely related perinatal ischemia. In summary, there was no apparent fetal distress during labor. Delivery was uncomplicated. The newborn was not depressed. Newborn hospital course was uncomplicated. The baby was subsequently found to have global developmental delay and an abnormal MRI as described above. There is nothing in the medical records to suggest this brain injury was related to hypoxia or trauma during the birth process. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. Dr. Willis reaffirmed his opinion in an affidavit dated October 31, 2016. Dr. Willis’ opinion that there was no obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or in the immediate post- delivery period is credited. Respondent retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to evaluate Akeem. Dr. Sigurdardottir reviewed Akeem’s medical records, and performed an independent medical examination on him on October 21, 2015. Dr. Sigurdardottir made the following findings and summarized her evaluation as follows: Summary: Akeem is a 3-year 5-month-old black male who has a possible bilateral hemiplegic cerebral palsy following a fairly uncomplicated pregnancy and delivery. His MRI shows evidence of old hypoxia. After review of fairly extensive maternal records and labor and delivery records, it seems clear that timing his injury is difficult as he did not show any evidence of recent neurologic injury at the time of birth. Although sparse medical records of Akeem are made available to us, such as physical therapy or occupational therapy records, cognitive testing or language assessments and no additional neurologic evaluations are at hand it seems clear that Akeem has relatively spared cognitive abilities. Final result: Results of question 1: The patient is found to have a permanent substantial physical impairment, but to have relatively mild mental impairment mainly in the areas of language. Results of question 2: There is evidence on neuroimaging that Akeem’s difficulties could relate to hypoxic neurologic injury, but no clear evidence to suggest the timing of such an injury and, therefore, it cannot be established that it occurred in the immediate perinatal period. Results of question 3: We would expect full life expectancy, although a guarded prognosis for motor recovery and likely ongoing disability from his significant bilateral hemiplegia. We expect favorable recovery in areas of cognition and language. In light of the above-mentioned details, difficulty with clear timing of Akeem’s injury, we do not recommend Akeem to be included into the Neurologic Injury Compensation Association (NICA) Program and would be happy to answer additional questions. Dr. Sigurdardottir reaffirmed her opinions in an affidavit dated November 29, 2016. In order for a birth-related injury to be compensable under the Plan, the injury must meet the definition of a birth- related neurological injury and the injury must have caused both permanent and substantial mental and physical impairment. Dr. Sigurdardottir’s opinion that while Akeem has a substantial physical impairment, he has a relatively mild mental impairment, mainly in the area of language, is credited. 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. Sigurdardottir that Akeem does not have a substantial mental impairment.
Findings Of Fact Micah was born on May 18, 2019, at Brandon Hospital located in Brandon, Florida. The Petition alleges that Victoria Jones, M.D., was the delivering physician for Micah’s birth. No evidence was presented to DOAH regarding whether Dr. Jones was a “participating physician” under the Plan at the time Micah was born. See § 766.302(7), Fla. Stat. 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 Micah’s medical records and condition. NICA sought to determine whether Micah suffered a “birth-related neurological injury” as defined in section 766.302(2). Specifically, NICA requested its medical consultants opine whether Micah 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 Micah permanently and substantially mentally and physically impaired. Dr. Willis reviewed Micah’s medical records and noted: In summary, vaginal delivery was complicated by a shoulder dystocia with a duration greater than 5-minutes. The baby was depressed at birth with Apgar scores of 0/2/3, requiring chest compressions and intubation. The newborn hospital course was complicated by multi-system organ failures, consistent with birth-related oxygen deprivation. Hypoxic ischemic brain injury was identified on head MRI. There was apparent obstetrical event (shoulder dystocia) that resulted in oxygen deprivation to the brain during delivery and continuing into the immediate post-delivery period. The oxygen deprivation resulted in brain injury. Dr. Willis concluded, “I am unable to comment as to the extent of the brain injury.” Dr. Bella-Espinosa, on the other hand, did comment on the extent of Micah’s brain injury. Dr. Bella-Espinosa reviewed Micah’s medical records, and conducted an independent medical examination of Micah on January 24, 2020. Dr. Bella-Espinosa opined, within a reasonable degree of medical probability: Micah is an Eight-month boy with a history of hypoxic ischemic encephalopathy of birth. He did have well established immediate postnatal encephalopathy, but he did not have neonatal seizures despite MRI changes which were indicative of hypoxic-ischemic insult[.] His neurological examination, except for mild residual right arm decreased tone, was normal, with no evidence of encephalopathy, myelopathy, neurogenic or myopathic processes. Micah is found not to have a substantial physical and mental impairment at this time. In review of all the available documents, the mild decreased tone on the right arm is indicative of residual changes as a result of the shoulder dystocia. This type of injury is birth related, but he is expected to recover most of his right arm function. The prognosis of full recovery is excellent. Estimated life expectancy should be normal. * * * Considering the clinical presentation and progression, I feel that there is not enough evidence to recommend Micah be included in the NICA program. A review of the file reveals no contrary evidence to dispute the findings and opinions of Dr. Willis and Dr. Bella-Espinosa. Their opinions are credible and persuasive. Based on the statements from Dr. Willis and Dr. Bella-Espinosa, NICA determined that Petitioners’ claim was not compensable. NICA subsequently filed a Motion for Partial Summary Final Order asserting that Micah did not suffer a “birth-related neurological injury” as defined by section 766.302(2). As of the date of this Order, Petitioners have not responded to NICA’s motion.
Findings Of Fact Jordan Gonzalez was born on May 29, 2008, at North Shore Medical Center in Miami, Florida. Jordan weighed 2,530 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Jordan and his mother. In an affidavit dated February 19, 2013, Dr. Willis opined the following within a reasonable degree of medical probability: It is my opinion that in summary, fetal abnormalities were identified by ultrasound during pregnancy. The baby was delivered by Cesarean section due to the development of fetal ascites. The mother was not in labor. The baby had several congenital abnormalities including hypoplastic lungs, single umbilical artery, ascites, dilated ventricles in the brain, agenesis of the corpus callosum and a small phallus. MRI did not identify findings suggestive of hypoxic brain injury. 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 delivery or during resuscitation in the immediate post delivery period in the hospital. The mother was not in labor. The fetus had known abnormalities identified by ultrasound during pregnancy. It is most likely the baby's brain abnormalities are congenital and not related to oxygen deprivation at birth. Jordan was examined and evaluated by Michael Duchowny, M.D. (Dr. Duchowny), on January 30, 2013. In an affidavit dated February 27, 2013, Dr. Duchowny found the following on his examination of Jordan: It is my opinion that the findings from the examination are consistent with both a substantial mental and motor impairment. Jordan is functioning at approximately age 2-3 month level and in addition to his global development delay manifests microcephaly, dynamic hypotonia and dynamic static hypotonia with hyperreflexia and pathological reflexes. However his examination reveals multiple congenital anomalies which together with the neuroimaging findings suggest that Jordan's neurological deficits were most likely acquired prior to birth. As such, it is my opinion that there is no evidence from his postnatal course or from his present physical findings to indicate that Jordan Gonzalez sustained an hypoxic or ischemic insults in the course of labor, delivery or the immediate neonatal period. I therefore am not recommending Jordan for inclusion into the NICA program. A review of the file does not show any contrary opinions to those of Dr. Willis and Dr. Duchowny. The opinions of Dr. Willis and Dr. Duchowny that Jordan did not suffer a neurological injury due to oxygen deprivation or mechanical trauma during labor, delivery, or resuscitation in the immediate postdelivery period are credited.
Findings Of Fact Calise L. Muniz was born on May 2, 2015, at Holmes Regional Medical Center, located in Melbourne, Florida. Calise 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 Calise. In a medical report dated January 24, 2017, Dr. Willis opined in pertinent part as follows: In summary, the mother apparently became hypotensive after placement of epidural anesthesia with resulting fetal distress. The baby was depressed at birth. The initial ABG was consistent with metabolic acidosis. Cooling protocol was initiated for HIE. EEG was normal for age. No MRI or CT scan was done during the newborn hospital course. There was an apparent obstetrical event that resulted in loss of oxygen during labor and delivery. However, there was no documentation of actual brain injury. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Calise and to review her medical records. Dr. Sigurdardottir examined Calise on February 1, 2017. In a medical report dated February 1, 2017, Dr. Sigurdardottir summarized her examination of Calise and opined in pertinent part as follows: Summary: Calise is a 21-month-old female who was born via emergency cesarean section after nonreassuring fetal heart rate tracings were noted after a high spinal anesthesia. She had poor Apgars of 2, 4 and 5 after 1, 5 and 10 minutes, and was treated with cooling protocol. She did not have any neonatal seizures and the only neuroimaging available is a head ultrasound on day of life 1 that was normal. On neurologic exam today she is normal, both with her motor skills and cognition and language development. There are no signs of autistic features. Results as to question 1: Calise is not found to have substantial physical or mental impairment at this time. Results as to question 2: In review of available documents, she does have the clinical picture of an acute birth-related hypoxic injury. Results as to question 3: The prognosis for full motor and mental recovery is excellent and her life expectancy is full. In light of the normal cognitive abilities and normal neurologic exam, I do not feel that Calise should be included in the NICA program. If needed, I will be happy to answer additional questions. 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 while there was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor and delivery, there was no documentation of actual brain injury. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Calise does not have a substantial physical or mental impairment. Dr. Sigurdardottir’s opinion is credited.
