Findings Of Fact Maliyah Jones was born on May 28, 2013, at North Florida Regional Medical Center located in Gainesville, Florida. Maliyah weighed 3,870 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Maliyah. In a medical report dated September 15, 2015, Dr. Willis opined as follows: In summary, delivery was complicated by a shoulder dystocia, which resulted in an Erb’s palsy. Although depressed at birth, the baby had a good response to resuscitation (bag and mask ventilation) with an Apgar score of 9 at five minutes. The baby’s condition was stated to be stable on admission to the NICU. The newborn hospital course was complicated only by the Erb’s palsy. Discharge was on DOL 2. 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 Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Maliyah and to review her medical records. Dr. Sigurdardottir examined Maliyah on October 28, 2015. In a medical report regarding her independent medical examination of Maliyah, Dr. Sigurdardottir opined as follows: Summary: Maliyah is a 2-1/2 year-old born at term after an uncomplicated pregnancy with shoulder dystocia resulting in a near complete Erb’s palsy. She has required 2 surgical procedures and does have significant disability as per the Mallet scale and is likely to need more surgical procedures to enhance her functional abilities in her right upper extremity. She is, however, functioning well from a cognitive level and her gross motor skills are otherwise intact. In review of the medical records available, it seems clear that her right brachial plexopathy did occur at birth due to mechanical injury. In light of her favorable cognitive and language development our findings are the following: Result as to question 1: The patient is found to have a permanent physical impairment, but to have none or mild delays in language development. She is therefore not found to have a substantial mental and physical impairment at this time. * * * In light of the above-mentioned details, Maliyah’s restricted motor disability and near normal cognitive development, I do not recommend Maliyah to be included into the Neurologic Injury Compensation Association Program and would be happy to answer additional questions or review further medical records. In light of her favorable mental and developmental state it is doubtful that additional records would alter the outcome of our review. She is not felt to have a substantial mental impairment at this time. 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 or spinal cord 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. Sigurdardottir’s opinion that Maliyah is not found to have a substantial mental impairment at this time. Dr. Sigurdardottir’s opinion is credited.
Findings Of Fact Landon Pillow was born on November 29, 2010, at North Florida Regional Medical Center in Gainesville, Florida. Landon weighed 3,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Landon, 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 summary, there was a non-reassuring FHR pattern during labor. It is unlikely this resulted in any significant oxygen deprivation to the fetus, based on a cord blood gas pH > 7.0 and a normal newborn hospital course. Babies with birth related hypoxic brain injury will generally have multi-organ failures during the newborn period. 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 reviewed additional medical records on January 16, 2014, and, based on his review of those records, opined as follows: The additional records do not change any of my opinions concerning this case. The child suffered a brain injury, but the etiology is still undetermined. Based on the cord blood gas pH > 7 and a normal newborn hospital course after delivery, it does not seem reasonable to time the brain insult as birth related. NICA retained Michael S. Duchowny, M.D., to examine Landon and to review his medical records. Dr. Duchowny examined Landon on April 30, 2014, and gave the following opinion: In summary, Landon’s neurological examination today was extremely limited because of his postictal state. However, there were no specific focal or lateralizing findings despite the history of a left hemisphere infarct and porencephalic cavity. A review of medical records sent on February 26, 2014 confirms the history obtained today which revealed no evidence of a neurological injury to the brain or spinal cord due to oxygen deprivation or mechanical injury in the course of labor, delivery, or the immediate postnatal period. Landon’s cord blood pH was 7.25 and the base excess was -4. Both values are near-normal. Although the neurological examination was suboptimal, the history obtained today from the family and from medical records indicate that Landon’s neurological impairment was acquired prenatally. I therefore believe that he should not be considered for compensation 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 opinions of Dr. Willis and Dr. Duchowny that there was no obstetrical event that resulted in injury to the brain or spinal cord due to oxygen deprivation or mechanical injury during labor, delivery or the immediate post-delivery period. Their opinions are credited.
The Issue The issue to be determined is whether Aiyanna suffered a “birth-related neurological injury,” as defined in section 766.302, Florida Statutes (2015).
Findings Of Fact On March 20, 2016, the Hospital admitted Shawntel Gordon and she gave birth to a baby girl named Aiyanna on March 21, 2016. As stipulated by the parties, the medical records demonstrate that Amy Jo Gabriel, M.D. provided obstetric services relative to the birth of Aiyanna. Based on the affidavit of NICA’s records custodian, Tim Daughtry, and the official payment history attached thereto, Dr. Gabriel never paid the annual $5,000 assessment required by physicians who elect to participate in the Plan to NICA. NICA lacked any documentation from Dr. Gabriel that she was exempt from paying the $5,000 assessment as a resident physician, assistant resident physician, or intern. Rather, Dr. Gabriel paid $250 to NICA in 2016—the annual assessment for physicians who do not qualify for an exemption and nevertheless elect not to participate in the Plan.
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.
