Findings Of Fact Mia Rodriguez was born on September 29, 2008, at Jackson South Community Hospital in Miami, Florida. Mia weighed 3,230 grams at birth. Donald Willis, M.D. (Dr. Willis), an obstetrician specializing in maternal-fetal medicine, was requested by NICA to review the medical records for Mia. In an affidavit dated August 24, 2012, Dr. Willis described his findings as follows: [L]abor was complicated by infection, chorioamnionitis. Fetal heart rate monitoring during labor did not suggest any significant fetal distress. The baby was not depressed at birth. Apgar scores were 9/9. Newborn hospital course was uneventful. Within one year of age the child demonstrated neurologic abnormalities and was diagnosed with cerebral palsy. MRI showed a porencephalic cyst. This child has clinical and MRI evidence of brain injury. However, review of the medical records does not suggest the brain injury was the result of oxygen deprivation or mechanical trauma during labor, delivery of [sic] the immediate post-delivery period. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during delivery or the immediate post delivery period. In his affidavit, Dr. Willis summarized his opinion as follows: [I]t is my opinion that there was no oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post- delivery in the Hospital. Further, in that there was no oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediately post-delivery period in the Hospital, then accordingly, there was no causal event which would have rendered MIA RODRIGUEZ permanently and substantially mentally and physically impaired as a result of same. NICA retained Michael S. Duchowny, a pediatric neurologist, to examine Mia and to review the medical records of Mia and her mother, Ms. Calderon, to determine whether Mia suffers from an injury which rendered her permanently and substantially mentally and physically impaired and whether such injury is consistent with an injury caused by oxygen deprivation or mechanical injury occurring during the course of labor, delivery, or the immediate post-delivery period in the hospital. In an affidavit dated August 27, 2012, Dr. Duchowny stated: I evaluated MIA RODRIGUEZ on July 25, 2012. . . . In SUMMARY, Mia's neurological examination is significant for a mild to moderate left spastic hemiparesis affecting the arm greater than the leg. There is no evidence of a visual field deficit and her higher cognitive function is assessed at age level. The medical records sent on June 19, 2012 revel that the mother was febrile in labor and diagnosed with chorioamnionitis. She was placed on triple intravenous antibiotics at Jackson South Hospital. Apgar scores were 9 and 9 at 1 and 5 minutes and there was no evidence of postnatal complication. Placental pathology reveals findings consistent with a 3rd trimester placenta but findings consistent with chorioamnionitis were not reported. I do not believe that Mia should be considered for compensation within the NICA statute. She has normal mental functions for age and there are no findings from her history to suggest that hemiparesis was a consequence of either mechanical injury or oxygen deprivation in the course of labor or delivery. More likely, Mia's hemiparesis is due to a right porencephalic cyst which was likely acquired due to cerebrovascular accident in utero prior to the onset of labor. As such, it is my opinion that MIA RODRIGUEZ'S left hemiparesis is not due to oxygen deprivation or mechanical injury occurring during the course of labor, delivery or the immediate post-delivery period in the hospital during the birth of MIA RODRIGUEZ. 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. The opinions of Dr. Willis and Dr. Duchowny that Mia did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or immediate post-delivery period are credited.
Findings Of Fact Jayden was born on September 20, 2011, at Jackson North Medical Center. The subject Petition was filed on June 25, 2018, which is more than five years after Jayden’s birth. Dr. Vaunrance Benjamin was the physician providing obstetric services and who was present at Jayden’s birth. Attached to Respondent’s Motion is the affidavit of Respondent’s Record’s Custodian, Tim Daughtry. Mr. Daughtry attests in his affidavit that, in 2011, Dr. Benjamin did not pay the five thousand dollar ($5,000.00) assessment prescribed in section 766.314(4)(c), Florida Statutes, required for participation in the Plan. Mr. Daughtry’s affidavit further provides that Respondent has no records to suggest that Dr. Benjamin is otherwise exempt from payment. To the contrary, Dr. Benjamin paid the two hundred fifty dollar ($250.00) assessment required by section 766.314(4)(b)1. for non- participating, non-exempt licensed physicians. Dr. Benjamin was not a participating physician in the Plan at the time of Jayden’s birth.
Findings Of Fact Petitioners are the parents and legal guardians of Adaline. On November 22, 2018, Ms. Comeau gave birth to Adaline, a single gestation of 39 weeks, at the Hospital. Adaline was delivered by cesarean section and weighed 3,883 grams. Marian A. Sampson, M.D., provided obstetrical services and delivered Adaline. The undisputed record evidence consists of affidavits and reports of two physicians—Donald Willis, M.D., a board-certified obstetrician, and Luis Bello-Espinosa, M.D., a board-certified pediatric neurologist who conducted an IME of Adaline. Dr. Willis reviewed the medical records and summarized his opinions about Adaline’s delivery and the attendant complications in a report dated October 12, 2020. Dr. Willis noted that Ms. Comeau’s prenatal course was uncomplicated and she was admitted to the Hospital at 39 weeks gestational labor. Although Adaline’s fetal heart rate (“FHR”) was appropriate upon admission, fetal tachycardia and variable decelerations occurred about one hour prior to delivery. Dr. Sampson applied a vacuum extractor to assist delivery due to the non-reassuring FHR pattern, but ultimately performed a cesarean section due to arrest of decent. At birth, Adaline was depressed, floppy, and cyanotic. The Hospital administered bag and mask ventilation and intubation was required. Adaline’s trachea had copious amounts of meconium consistent with meconium aspiration syndrome (“MAS”). Her APGAR scores were three at one minute, five at five minutes, and seven at ten minutes. Adaline was transferred to the NICU with respiratory distress and was intubated for seven days. During that period, continuous EEG showed no seizure activity. A head ultrasound on day one was normal and an MRI on day seven showed no ischemia or hemorrhage. Based on the medical records, Dr. Willis opined to a reasonable degree of medical probability that an obstetrical event resulting in oxygen deprivation to the brain occurred during the birth, but fortunately it did not cause any identifiable brain injury. Dr. Bello-Espinosa reviewed the medical records, conducted an IME on Adaline, and summarized his opinions in a report dated October 9, 2020, as to whether Adaline suffers from permanent and substantial mental and physical impairment caused by an oxygen deprivation event. After being diagnosed with moderate neonatal hypoxic-ischemic encephalopathy, Adaline underwent therapeutic hypothermal treatment at All Children’s Hospital for 72 hours. During her course at the NICU, there were no electro-clinical or electrographic seizures, and her MRI was normal. Dr. Bello-Espinosa conducted an IME on October 9, 2020. Adaline’s neurological examination was normal except for mild left-sided facial asymmetric smile, which Dr. Bello-Espinosa believed was a congenital condition that was not caused by brain or nerve damage. Adaline exhibited neither indications of any residual encephalopathy or brain dysfunction nor upper or lower motor signs. Her development was normal for her age. Based on the medical records and his IME, Dr. Bello-Espinosa opined to a reasonable degree of medical probability that Adaline does not suffer from permanent and substantial mental and physical impairment.
Findings Of Fact Adrian was born on January 23, 2017, at Tampa General located in Tampa, Florida. The Petition alleges that Sarah Obican, M.D., and Pamela Kelly, C.N.M., were the medical professionals who participated in Adrian’s birth.1 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 Adrian’s medical records and condition. NICA sought to determine whether Adrian suffered a “birth-related neurological injury” as defined in section 766.302(2). Specifically, NICA requested its medical consultants opine whether Adrian 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 Adrian permanently and substantially mentally and physically impaired. Dr. Willis reviewed Adrian’s medical records and noted, within a reasonable degree of medical probability: In summary, there was an abnormal FHR pattern at time of repeat Cesarean section. The mother was not in labor. Delivery was atraumatic and resuscitation described as uneventful. … Cyanosis occurred when the baby was placed on the mother’s abdomen after delivery. Newborn hospital course was complicated by multisystem organ failures. EEG was consistent with seizures. … There was no apparent oxygen deprivation and or mechanical trauma to the brain of [sic] spinal cord during labor or delivery. Due to the complexity of the newborn hospital course, I do not have an opinion concerning any oxygen deprivation that 1 No evidence was presented to the ALJ establishing whether Dr. Obican or Ms. Kelly were “participating physicians” under the Plan at the time Adrian was born. See §§ 766.302(7) and 766.314(4), Fla. Stat. could have occurred during the immediate post- delivery period. Dr. Bella-Espinosa, on the other hand, did comment on whether Adrian’s injuries occurred during the immediate post-delivery period. Dr. Bella-Espinosa reviewed Adrian’s medical records, as well as conducted an independent medical examination (“IME”) of Adrian on August 28, 2020. Dr. Bella-Espinosa opined, within a reasonable degree of medical probability: The [mother] underwent a cesarean section without complication. * * * The infant was initially placed skin to skin and the mother attempted to breastfeed during which the infant turned cyanotic. During the IME, Dr. Bella-Espinosa observed that: Adrian is a 3-year 7-month-old boy with a history of fetal macrosomia, born to an insulin diabetic mother, who after having … minimal variability with late decelerations before delivery, at birth had a normal APGAR score with no evidence of acidosis, who in the immediate period however developed recurrent hypoglycemia despite glucose supplementation. … [O]ver the past three years, he remains to have drug-resistant daily seizures. * * * Adrian has … signs of severe intellectual disability, severe developmental language, and motor delays, severe autistic behavior, as well as an abnormal neurological examination … . His clinical presentation at this time is indicative of a severe developmental epileptic encephalopathy as could be seen in children due to multiple etiologies such as acquired neonatal metabolic, vascular, ischemic, inflammatory or infectious processes, as well as potential additional structural, genetic, or chromosomal etiologies. … His epilepsy is severe. Dr. Bella-Espinosa concluded his report stating that “Adrian suffers from substantial permanent mental impairment and substantial physical impairment.” However, Dr. Bella-Espinosa explained that: The impairments are not consistent with an injury to the brain or spinal cord that may have occurred due to oxygen deprivation, or mechanical injury occurring during labor, or the immediate post- delivery period. … Adrian’s substantial physical and mental impairment appears to have not occurred during the immediate post-delivery period. A review of the file reveals no evidence directly disputing the findings and opinions of Dr. Willis and Dr. Bella-Espinosa that Adrian’s “impairments are not consistent” with injuries that occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital.2 Their opinions are credible and persuasive. Based on the statements from Dr. Willis and Dr. Bella-Espinosa, NICA determined that Petitioner’s claim was not compensable. NICA subsequently filed a Motion for Partial Summary Final Order asserting that Adrian did not suffered a “birth-related neurological injury” as defined by section 766.302(2). Petitioners submitted a motion opposing NICA’s Motion for Partial Summary Final Order. Petitioners, however, do not disagree with NICA’s position that Petitioners’ claim is not compensable under the Plan. Instead, Petitioners assert that the NICA statutes (section 766.301, et seq.) violate the Florida Constitution; therefore, the undersigned does not have the authority to determine whether Adrian should be included in the NICA Plan. It must 2 Petitioners, with their motion opposing NICA’s Motion for Partial Summary Final Order, submitted affidavits from several medical professionals addressing the level of care Adrian received from the treating medical staff. These opinions support a finding that Adrian currently suffers from permanent injury to his brain, as well as experienced respiratory distress following his birth. However, the affidavits do not substantiate the argument that Adrian’s injuries actually occurred during Adrian’s birth, delivery, or in the immediate post- delivery period. Accordingly, Dr. Willis's and Dr. Bella-Espinosa’s opinions are persuasive on this issue. be noted, however, that an ALJ is without authority to rule on the facial constitutionality of a statute authorizing agency action. See Key Haven Assoc. Enterprises, Inc. v. Bd. of Trs. of the Int. Imp. Trust Fund, 427 So. 2d 153, 157 (Fla. 1982); Communications Workers of Am., Local 3170 v. City of Gainesville, 697 So. 2d 167, 170 (Fla. 1st DCA 1997)(“The Administrative Procedure Act does not purport to confer authority on administrative law judges or other executive branch officers to invalidate statutes on constitutional or any other grounds.”).
