Findings Of Fact Josue A. Solis was born on December 12, 2013, at Plantation General Hospital in Plantation, Florida. Josue weighed in excess of 2,500 grams at birth. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Josue’s medical records. In a medical report dated August 17, 2016, Dr. Willis made the following findings and expressed the following opinion: In summary, labor was induced at 39 weeks. There was no fetal distress during labor. The baby was delivered by spontaneous vaginal birth without complications. The baby was not depressed and had normal Apgar scores of 9/9. 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 ultimate opinion in an affidavit dated February 24, 2017. Dr. Willis’ opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical injury to the baby’s brain during labor, delivery or the immediate post-delivery period is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate Josue. Dr. Duchowny reviewed Josue’s medical records and performed an Independent Medical Evaluation on him on February 1, 2017. In a medical report dated February 7, 2017, Dr. Duchowny made the following findings and summarized his evaluation as follows: IN SUMMARY Josue’s physical examination reveals evidence of hypotonia and ataxia with delayed language development. I believe his presentation is most consistent with ataxic hypotonic cerebral palsy. I believe his motor skills will improve in the future and it is unlikely that he will ultimately have a substantial motor impairment. In all likelihood, Josue will continue to have a delayed language development. Ataxic cerebral palsy is a prenatally acquired syndrome and there is no evidence from the records that Josue’s neurological difficulties were acquired in the course of labor or delivery. Furthermore, there is no support for either mechanical injury or oxygen deprivation as contributing factors. I am therefore not recommending Josue for inclusion in the NICA program. Dr. Duchowny reaffirmed his ultimate opinion in an affidavit dated February 27, 2017, in which he opined, “it is my opinion that IME and record review do not provide a basis to find that Josue’s neurological difficulties were acquired in the course of labor, delivery or resuscitation in the immediate postdelivery period. I therefore do not recommend consideration for inclusion within the NICA program.” Dr. Duchowny’s opinion that ataxic cerebral palsy is a prenatally acquired syndrome and that there was no basis found in the records or in his Independent Medical Evaluation that Josue’s neurological difficulties were acquired in the course of labor, delivery or resuscitation in the immediate post-delivery period 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. 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. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that ataxic cerebral palsy is a prenatally acquired syndrome and that there is no indication that Josue’s neurological difficulties were acquired in the course of labor, delivery or resuscitation in the immediate post- delivery period.
The Issue At issue in this proceeding is whether Michael Aaron Saul, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Lisa L. Saul and Craig Saul are the parents and natural guardians of Michael Aaron Saul (Michael), a minor. Michael was born a live infant on May 5, 1997, at Leesburg Regional Medical Center, hospital located in Leesburg, Florida and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Michael was Shivakumar S. Hanubal, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Also present at some point during the course of Michael's birth was Manuel Alvarado, M.D., who was also, at the time, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimant demonstrates, more likely than not, that the infant suffered 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." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, Michael's neurologic presentation is dispositive of the claim. Michael's neurologic status On January 6, 2000, following the filing of the claim for compensation, Michael was examined by Michael Duchowny, M.D., a board-certified pediatric neurologist. The results of Dr. Duchowny's examination were reported as follows: HISTORY ACCORDING TO MRS. SAUL: Michael's mother began by explaining that Michael is a 2 1/2 year old boy who has a left Erb's palsy [damage to the upper brachial plexus]. She attributes his weakness to complications of a large birth weight and shoulder dystocia. He was delivered at Leesburg Regional Medical Center after a 9 1/2 hour labor. His birth weight was 10-pounds, 7- ounces and he remained in the nursery for 6 days for an evaluation of the upper extremity weakness. Michael has gone on to have significant problems with the left Erb's palsy. He ultimately had serial nerve graphs performed at ages 3 months and 21 months. Michael also has had a muscle transplant. The first procedure was felt to be successful, but there was no benefit from the second. He continues to be disabled, in that he postures his arm and hands. He can not fully supinate the left hand. Michael had cognitive testing at age 1 1/2 years at Shan's Hospital. This apparently revealed "mild cognitive delays". Michael has a history of breath-holding spells and has been worked up with a CT scan which apparently was normal. He is scheduled to have an EEG and cardiogram. Michael receives speech, physical and occupational therapy on a weekly basis. Michael's health is otherwise intact. He is an active boy who is on no medications and is not being followed for other chronic intercurrent illnesses. Michael walked at the usual time. He apparently is quite verbal with a good lexicon and an ability to speak in full sentences. He is not yet toilet trained. Michael is fully immunized and has no known allergies. FAMILY HISTORY: The father is 30; the mother is a 31 year old, gravida 10, para 3, AB7. Two brothers ages 8 and 4 are both healthy. There are no other family members with brachial plexus problems. There is a history of epilepsy in the mother as a child. No family members have neurodegenerative illnesses, mental retardation or cerebral palsy. PHYSICAL EXAMINATION reveals an alert, cooperative and socially appropriate 3 1/2 year old boy. The skin is warm and moist. There are no neurocutaneous stigmata. The hair is blonde and of normal texture. There are no cranial or facial anomalies or asymmetries. The pigmentation of the iris is symmetric. The tongue movements are full and symmetric. The uvula is midline. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. Michael's NEUROLOGIC EXAMINATION reveals him to have fluent speech and an age appropriate stream of attention. He has good central gaze fixation with conjugate following movements and the ocular fundi are normal. The pupils are 3 mm and briskly reactive to direct and consensually presented light. There is no ptosis and no evidence of myosis. No skin anhidrosis is noted. The motor examination is significant for evidence of a left Erb's palsy with internal rotation, flexion and adduction of the left shoulder with some flexion at the left elbow and wrist and slight ulnar deviation of the hands. Michael does have good individual finger dexterity in both hands, although he tends to prefer the right. He can oppose the thumb and first finger of both hands. Michael can not fully supinate the left hand and clearly has a right hand preference. He is unable to fully elevate the left shoulder and there is mild scapular winging. The deep tendon reflexes are diminished in the left upper extremities and at the biceps, brachial radialis and triceps jerks where they are literally absent in comparison to 1+ on the right. The knee jerks are 2+ and the ankle jerks are 2+ with flexor plantar responses. His station and gait are age appropriate with symmetric arm swing. He is able to hold his hands in a steady fashion and his rapid alternating movement sequences are age appropriate. Neurovascular examination reveals no cervical, cranial or ocular bruits and there are no temperature or pulse asymmetries. The sensory examination is deferred. In SUMMARY, Michael's neurologic examination reveals evidence of a left Erb's palsy with 2 serial nerve graphs. I should also mention that he has long linear scars in the posterior aspects of both legs in the sites of nerve graph donation. Otherwise his neurologic examination is unremarkable. He has no focal or lateralizing features to suggest structural brain damage. A brachial plexus injury, such as that suffered by Michael during the course of his birth, is not, anatomically, a brain or spinal cord injury, and does not affect his mental status, which Doctor Duchowny observed to be essentially normal. Moreover, no other physical impairments of neurological origin were observed. Consequently, while Michael has been shown to have suffered a permanent injury (to his left brachial plexus) during the course of birth, it is Dr. Duchowny's opinion, which is credited, that such injury is not related to the brain or spinal cord and, moreover, that he has not been rendered permanently and substantially mentally and physically impaired.
The Issue At issue in this proceeding is whether Wilgen Wandique, Jr., a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Wilgen Wandique and Concepcion Wandique, are the parents and natural guardians of Wilgen Wandique, Jr. (Wilgen), a minor. He was born a live infant on August 21, 1996, at Hialeah Hospital, a hospital located in Dade County, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Wilgen was Gustavo Ruiz, M.D., who was at all times material hereto, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Wilgen's delivery at Hialeah Hospital on August 21, 1996, was apparently difficult due to his large birth weight, and was complicated by a shoulder dystocia. Following delivery, Wilgen was noted having evidence of a mild to moderate compromise of the upper right brachial plexus, an Erb's palsy, which affected the range of motion on the upper right extremity, including the arm, forearm, and hand. Otherwise, Wilgen's presentation was unremarkable, and he evidenced no abnormalities with regard to his mental status and, as hereafter noted, no motor abnormalities of central nervous system origin. A brachial plexus injury, such as that suffered by Wilgen during the course of his birth, is not, anatomically, a brain or spinal cord injury, and does not affect his mental abilities. Moreover, as heretofore noted, apart from the brachial plexus injury, Wilgen was not shown to suffer any other injury during the course of his birth. Consequently, the proof fails to demonstrate that Wilgen suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during the course of labor or delivery, and further fails to demonstrate he is presently permanently and substantially, mentally and physically impaired.
The Issue The issue in this case is whether Daquan T. Smith, Jr. (Daquan) suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan).
Findings Of Fact Daquan was born on November 22, 2015, at Florida Hospital, 601 East Altamonte Drive, Altamonte Springs, Florida. The pregnancy, labor, and delivery of his mother, Verdale T. Robinson, were managed by employees of Florida Hospital and Dr. Norma Waite. At all times material, both Florida Hospital and Dr. Waite were active members under NICA pursuant to sections 766.302(6) and (7). Daquan was born a live infant on November 22, 2015. Daquan was a single gestation, weighing 2,730 grams at birth. Daquan was delivered by Dr. Waite, who was a NICA participating physician on November 22, 2015. Petitioners contend that Daquan suffered a birth- related neurological injury and seek compensation under the NICA Plan. Respondent contends that Daquan has not suffered a birth- related neurological injury as defined by section 766.302(2). The medical records reviewed by Dr. Willis reflect that Daquan’s mother was admitted to the hospital at 36 6/7 weeks gestational age with vomiting, pain, and blood in the urine. She was started on antibiotics for a suspected UTI and observed. Her blood pressure began to elevate, and she was transferred to Florida Hospital for high-risk consultation. Labor was induced for suspected preeclampsia. The fetal heart rate (FHR) monitor during labor was reviewed. The initial FHR pattern showed a normal baseline rate and normal FHR variability. Variable decelerations with decreased variability developed about 30 minutes prior to delivery. Daquan’s delivery was by spontaneous vaginal birth. Daquan was initially depressed with Apgar scores 5/7/9. At birth, there was no respiratory effort, but heart rate was stated to be good. Bag and Mask ventilation was started without improvement. Daquan required intubation for respiratory distress and quickly improved, allowing extubation to nasal CPAP. Daquan started crying and his muscle tone improved. At this point Daquan was transferred to the NICU. The initial blood gas was a venous gas done about 15 minutes after birth and the pH level was 7.23, with a normal base excess. The initial arterial blood gas was done 90 minutes after birth, again with a normal pH level of 7.4. Apnea and bradycardia occurred with onset of seizure activity about 14 hours after birth. Oxygen desaturations were in the ‘70s. Bag and mask ventilation was required for a short period of time, followed by nasal oxygen. Phenobarb was started to control seizure activity. Daquan’s EEG readings were abnormal, confirming seizure activity. Head Ultrasound was normal. CT scan on DOL 2 showed minimal acute intraventricular hemorrhage and a subdural hemorrhage. MRI at seven weeks showed evidence of brain injury with volume loss. At the request of NICA, Dr. Willis, who is board- certified in obstetrics and gynecology and maternal-fetal medicine, reviewed the medical records relating to Daquan’s birth. In his report dated June 21, 2017, Dr. Willis opined that, [t]here was no apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery or the immediate post delivery period. At the request of NICA, Laufey Y. Sigurdardottir, M.D., who is board-certified in neurology, reviewed Daquan’s medical records and performed an independent medical examination of Daquan on May 17, 2017. Dr. Sigurdardottir opined, in pertinent part, that: Daquan is a 17 month old with history of neonatal seizures, after induced labor for maternal hypertension and pyelonephritis. No evidence of acute hypoxic episode during active labor and blood gas within hour after birth did not indicate significant asphyxia. MRI performed at 6 weeks of age does have some findings consistent with hypoxic ischemic injury but timing is hard to determine as being within active labor and delivery. Patient has delays in his development but as he is able to walk unassisted (short distances) at 17 months and is using gestures for yes and no, I do not feel that he has established permanent substantial motor and mental disability at this time. Result of question 1 [Does the child suffer from a permanent and substantial mental and physical impairment?]: Daquan is found to have delays in motor and language development but is making progress and is walking independently at this time therefore a permanent and substantial physical and mental impairment cannot be determined at this juncture. Result of question 2 [If so, was such an impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury? If so, is injury felt to be labor and birth related?]: In review of available documents, although having respiratory distress shortly after birth, there is no clear acute hypoxic event during labor and/or delivery, and fetal heart rate strips were benign. Laboratory tests were not indicative of an acute hypoxic injury. Neonatal seizures were seen but this does not give us a clear timeframe for timing of injury. Result as to question 3 [What is the prognosis and estimate of life expectancy?]: The prognosis for full motor and mental recovery is guarded but his life expectancy is full. Dr. Sigurdardottir's Affidavit reflects her ultimate opinion that "the IME and record review do not support a finding that Daquan suffered a 'birth-related neurological injury.'” Dr. Willis's and Dr. Sigurdardottir's opinions both support a finding that there was no injury to the brain or spinal cord of the infant caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period, which rendered the infant permanently and substantially mentally and physically impaired. Petitioners did not submit or introduce into evidence any expert reports rebutting the opinions of Dr. Willis or Dr. Sigurdardottir.
The Issue At issue in this proceeding is whether Brenay Janelle Jackson, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Petitioners, Bridget Jackson and Horace Jackson, are the parents and natural guardians of Brenay Janelle Jackson (Brenay), a minor. Brenay was born a live infant on January 11, 2002, at Palmetto General Hospital, a hospital located in Hialeah, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Brenay was Ignacio Alfredo Ramirez, M.D., who was, at all times material hereto, 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 under the Plan when the claimants demonstrate, more likely than not, that the infant suffered 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." Brenay's presentation On August 15, 2002, following the filing of the claim for compensation, Brenay was examined by Michael S. Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. Dr. Duchowny reported the results of that neurology evaluation, as follows: HISTORY ACCORDING TO MR. & MRS. JACKSON: The parents began by explaining that Brenay is seven months old and has a "weak left arm." They indicated that Brenay's arm has been in this condition since birth and has "not improved very much." They believe that Brenay's left arm has limited mobility despite physical therapy provided on a routine basis. She additionally receives direct electrical stimulation to the muscles of the upper extremity. They noted that Brenay's "thumb turns in" and that she "cannot get her palm up." However, there is certainly a dexterity in the hand and she is able to use both hands in a cooperative fashion. There are more problems at the shoulder in that she is unable to raise her left arm as high as the right. Brenay underwent surgical reconstruction of the left brachial plexus three weeks ago. Surgery was performed by Dr. John Grossman and included a transplant of the left sural nerve. The procedure was uncomplicated. Brenay is also followed by Dr. Michael Tidwell in the Orthopedics department at Miami Children's Hospital. Brenay's right arm has full function and there are no problems with regard to her lower extremities. She rolled over at six months and is now sitting on her own. Her head and neck have a slight tilt to the right, but this does not compromise Brenay functionally. Brenay's hearing and vision are said to be adequate and there have been no changes in her appetite. She sleeps through the night. Brenay is on no intercurrent medications. There has been no recent exposure to toxic or infectious agents and no significant postnatal injuries. FAMILY HISTORY: Brenay's mother and father are both 36 years old. Two brothers, ages eight and seven are healthy. No family members have paralysis, mental retardation, epilepsy or developmental delay. PRE and PERINATAL HISTORY: Brenay was born at term at Palmetto General Hospital. She weighed 8-pounds, 15-ounces and was delivered vaginally. She remained in the hospital for two days. The parents stated that she breathed well at birth and did not have postnatal jaundice. Brenay's immunizations have been proceeding on schedule and she has no known drug allergies. Brenay's PHYSICAL EXAMINATION reveals an alert and playful seven month-old, well- developed, well-nourished black female. Brenay weighs 18-pounds. Her skin is warm and moist and there are no neurocataneous stigmata. There are no digital, skeletal, or palmar abnormalities and no dysmorphic features. The cranial contour appears normal and the head circumference measures 43.4 cm, placing Brenay in the 60th percentile for age-matched controls. The anterior and posterior fontanelles are both patent and flat. There are no significant facial asymmetries. Tongue thrusting is noted intermittently and there is some drooling. The head has a very slight tilt to the right side. The neck is supple without masses, thyromegaly or adenopathy, and the cardiovascular, respiratory and abdominal examinations are normal. There are healed linear scars over the left calf and left lower lateral cervical region. Brenay's NEUROLOGIC EXAMINATION reveals an alert infant sitting in her mother's lap. She is extremely engaging and smiles frequently. Brenay makes frequent cooing noises and appears extremely interested in objects and people in her immediate surround. Her cranial nerve examination reveals full visual fields to confrontation testing. The extraocular eye movements are full and conjugate and the pupils are 3 mm and briskly reactive to direct and consensually presented light. There is no ptosis. Fundoscopic examination reveals appropriately demarcated disc margins without pallor and no evidence of retinopathy. The facial movements are symmetric and the tongue moves well. The uvula is midline. Motor examination reveals a functional asymmetry of the upper extremities. Brenay tends to move her right arm much more actively, and in contrast, the left shoulder mobility is diminished. There are no fixed contractures. The shoulder is held in a position of mild internal rotation and adduction. The elbow is flexed and the wrist is pronated. There is full range of motion at the wrist and finger joints and Brenay demonstrates good individual finger dexterity. There were no asymmetries of motor bulk in the forearm compartments, but the arm showed a slightly greater ridging over the lateral surface on the left. There is no asymmetry of the dorsal musculature and the shape and slope of the shoulders appeared symmetric and normal. I was unable to accurately assess sensory function in the upper extremities. The deep tendon reflexes are 2+ at the knees and ankles and 1+ to 2+ in the right biceps and brachial radialis. The right triceps is trace. In contrast, the left biceps and brachial radialis are trace and there is no evidence of a left triceps jerk. Brenay is able to sit with good head control and has a good grasping bilaterally. There are no pathologic reflexes. She stands with support. The NEUROVASCULAR EXAMINATION reveals no cervical, cranial or ocular bruits, and no temperature or pulse asymmetries. Brenay is able to grasp objects with either hand, and she demonstrates reasonably well-developed pincer grasp with both the right and left fingers. She does not yet transfer. IN SUMMARY, Brenay's neurologic examination reveals evidence of a mild left Erb's palsy, affecting the fifth, sixth, and seventh cervical roots. The lower brachial plexus appears preserved, and there are no other neurologic abnormalities. Brenay's Erb's palsy appears to be improving slightly, but it is as yet too early to know how well she will do subsequent to her surgical repair. In contrast, the neurologic examination demonstrates no evidence of mental or motor impairment referable to the central nervous system. An Erb's palsy, such as that evidenced by Brenay, is a weakness of an upper extremity due to damage of the nerve roots of the upper brachial plexus,2 and does not involve the brain or spinal cord.3 Moreover, the impairment Brenay suffers is mild, as opposed to substantial, and there is no evidence of mental impairment. Consequently, while Brenay may have suffered a mechanical injury, permanent in nature (to her left brachial plexus) during the course of birth, she does not (for reasons appearing more fully in the Conclusions of Law) qualify for coverage under the Plan.
The Issue Whether Emmanuel Jared Marinez, a deceased minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, the amount and manner of payment of the parental award, the death benefit, the amount owing for attorney's fees and costs, and the amount owing for past expenses.
Findings Of Fact Findings related to compensability Magaly N. Marinez is the natural mother of Emmanuel Jared Marinez, a deceased minor. Emmanuel was born a live infant on December 26, 2001, at Orlando Regional South Seminole Hospital, a hospital located in Longwood, Florida, and his birth weight exceeded 2,500 grams. Emmanuel expired January 6, 2002, following removal from life support. The physician providing obstetrical services at Emmanuel's birth was Stephen Phillips, 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.1 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 . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, the parties have stipulated, and the proof is otherwise compelling, that Emmanuel suffered a severe brain injury caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital that rendered him permanently and substantially mentally and physically impaired and which, following removal from life support, resulted in death. Consequently, the proof demonstrates that Emmanuel suffered a "birth-related neurological injury" and, since obstetrical services were provided by a participating physician at birth, the claim is compensable. §§ 766.309(1) and 766.31(1), Fla. Stat. Findings related to the award Where, as here, it has been resolved that a claim qualifies for coverage under the Plan, the administrative law judge is required to make a determination of how much compensation should be awarded. § 766.31(1), Fla. Stat. Pertinent to this case, Section 766.31 provides for an award providing compensation for the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, family residential or custodial care, professional residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel. However, such expenses shall not include: Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. * * * 1. Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum. Death benefit for the infant in an amount of $10,000. Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge . . . . At hearing, the parties agreed that Petitioner receive a parental award of $100,000.00, to be paid in lump sum; a death benefit for the infant of $10,000.00; an award of $10,500.00 for attorney's fees ($10,000.00) and other expenses ($500.00) incurred in connection with the filing of the claim; and no award for past expenses, since any such expenses have been paid by a collateral source. Such agreement is reasonable, and is approved.
The Issue The issue in this case is whether Landon Ibasfalean suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Jessica and Cody Ibasfalean are the natural parents of Landon Ibasfalean. Landon was born a live infant at Lakewood Ranch Medical Center, a licensed hospital in Bradenton, Florida, on November 21, 2011. The physician providing obstetrical services at the time of Landon’s birth was Jennifer Swanson, M.D. At all material times, Dr. Swanson was a participating physician in the Florida Birth-Related Neurological Compensation Plan. NICA notice is not at issue as to Dr. Swanson or Lakewood Ranch Medical Center in this proceeding. Landon weighed in excess of 2,500 grams at birth. The parties are in agreement that Landon suffered an injury to his brain. The parties, however, disagree as to the timing and cause of that injury, and, specifically, whether such injury was caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period. The Petitioners and Intervenors take the position that Landon’s brain injury was caused by oxygen deprivation occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period. Respondent contends that Landon’s brain injury was more likely than not prenatally acquired. Petitioner Jessica Ibasfalean was admitted to Lakewood Ranch Medical Center on November 21, 2011. Her labor began around 0635 and her membranes were artificially ruptured at 0715. Mrs. Ibasfalean labored from 0700 to 1708 when the decision was made to perform a C-Section. Landon was born via C-Section at 1757. Cephalopelvic disproportion and tachycardia occurred during labor. Intervenor, Dr. Swanson, performed a C-Section. During the C-Section, Landon’s head was stuck in his mother’s “very narrow pelvis” and meconium stained amniotic fluid was noted. Dr. Swanson’s operative note stated that the C-Section events lasted approximately nine minutes. Landon’s APGAR scores were 2 (one minute), 5 (five minutes), and 7 (ten minutes). The cord pH was 6.9. Landon was intubated upon delivery, suctioned, and bagged with 100% bag mask valve. Landon was admitted to the NICU immediately after delivery for perinatal distress. He was observed at 0658 on November 22, 2011, to have seizure activity. Landon was then transferred to All Children’s Hospital. His discharge diagnoses from Lakewood Ranch Medical Center were hypovolemia (resolved), metabolic acidosis (resolved), respiratory distress (resolved), meconium stained amniotic fluid, sepsis, perinatal asphyxia, and at risk for seizures. Landon was treated at All Children’s Hospital where he was treated from November 22, 2011, through December 5, 2011. While at All Children’s Hospital, Landon received a cranial CT scan, a video EEG, and a brain MRI. Landon’s Discharge Summary from All Children’s Hospital lists the following: hypoxic ischemic encephalopathy, history of seizures, anemia, patent foramen ovale, and subgaleal bleed under the category of “Active Diagnoses at Time of Discharge.” Landon was discharged from All Children’s Hospital on December 5, 2011, with prescriptions for Phenobarbital 6.5 mg PO twice daily and Poly-vi-sol with iron 1 ml PO once daily. Landon is no longer on these medications. NICA retained Donald C. Willis, M.D.,1/ to review Landon’s medical records. Dr. Willis made the following findings and expressed the following opinion: I have reviewed the medical records for the above individual. The mother, Jessica Lynn Ibasfalean was a 26 year old GI with an uncomplicated prenatal course. She was admitted to the hospital at 39 weeks for induction of labor due to advanced cervical dilation at term. Her cervix dialated 6 cms at the time of hospital admission. The fetal heart rate (FHR) monitor tracing during labor was reviewed. The baseline FHR was 150 bpm on admission with normal heart rate variability. Variable FHR decelerations with uterine contractions began about 4 hours after admission. The FHR dropped to about 90 bpm with contractions. The decelerations became more prolonged with a slow recovery to baseline about 2 hour[s] prior to delivery. A baseline tachycardia of 180 bpm was present when the FHR monitor was removed for delivery. Delivery occurred about 30 minutes after the FHR monitor was removed. After being complete and pushing for two hours, Cesarean section delivery was done for failure to progress and a non-reassuring FHR pattern. Birth weight was 3,202 grams (7 lbs 1 oz). The baby was depressed at birth. Apgar scores were 2/5/7. Cord blood gas was consistent with acidosis with a pH of 6.9. The newborn had no respiratory effort, no tone and poor color. Intubation was done for meconium with meconium present below the vocal cords. This was suctioned. Bag and mask ventilation was given for 4 minutes, followed with blow-by oxygen. The baby’s first cry was at 7 minutes. The baby’s condition was considered unstable upon arrival at the NICU. Color remained pale or cyanotic and muscle tone was poor. The baby was immediately intubated. Chest X-Ray was clear. Respiratory effort improved and the baby remained intubated only 30 minutes. Seizure activity was noted at 13 hours after birth. The baby was transferred from Lakewood Medical Center to All Children’s Hospital for evaluation and management. The baby was diagnosed with hypoxic ischemic encephalopathy at All Children’s Hospital. The initial platelet count was low at 95,000. Platelet transfusions were given. Liver function studies were also elevated. MRI of the brain DOL 7 identified focal areas of ischemia. In summary, an abnormal FHR pattern developed during labor and resulted in delivery of a depressed newborn. The umbilical cord blood pH was 6.9, consistent with acidosis. Seizure activity was noted at 13 hours of life. MRI was consistent with hypoxic ischemic encephalopathy. There was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery, and continuing into the immediate post delivery period. The oxygen deprivation resulted in brain injury. I am not able to comment about the severity of the brain injury. Dr. Willis’ opinion that there was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery, and continuing into the immediate post-delivery period which resulted in brain injury is credited. When Landon was four weeks old, he was seen by Dr. Joseph Casadonte, a pediatric neurologist. Dr. Casadonte also saw Landon when he was three months, three weeks old. According to Dr. Casadonte’s notes from an assessment on March 14, 2011, Landon did not have any further seizure or seizure-like activity and had been weaned off phenobarbital. Dr. Casadonte examined Landon again on January 27, 2014. Dr. Casadonte’s notes reflect that he informed Landon’s parents that Landon has a mild form of cerebral palsy, and that he is doing very well cognitively. Dr. Casadonte noted that Landon’s gait is normal. On May 22, 2014, at Landon’s 2 1/2 year well-child visit, his pediatrician, Dr. Federico Frias, noted that Landon’s fine motor skills and his gross motor skills were abnormal. Dr. Frias also noted that Landon’s language development was normal. Dr. Frias’ notes indicate that he recommended continuation of physical and occupational therapy which, according to Dr. Frias’ notes, he had been receiving once a week. At her deposition on August 27, 2014, Mrs. Ibasfalean confirmed that Landon was receiving OT once a week for one hour and PT once a week for one-half hour. He has the ability to feed himself, can use a spoon, and can drink from a sippy cup, as long as it has a straw. She testified that Landon does fall but it has become “less and less.” Landon is an active child and enjoys throwing balls for the family dog to catch. He can put his arms inside his sleeves when he is being dressed. He can pull off his socks and shoes. When asked whether any physician had ever told her that in the future it is more likely than not that he will have any mental impairment or cognitive delays, Mrs. Ibasfalean replied, “They never told me that, no.” At his deposition also taken on August 27, 2014, Mr. Ibasfalean was asked if he had observed any cognitive deficit or shortcomings regarding Landon. Mr. Ibasfalean replied “No. Cognitive is pretty appropriate.” Respondent retained Michael Duchowny, M.D., to evaluate Landon. Dr. Duchowny is board-certified in pediatrics, neurology with special qualification in child neurology, and in clinical neurophysiology. He is a senior staff attending in neurology at Miami Children’s Hospital where he directs the Comprehensive Epilepsy Center and neurology training programs. Dr. Duchowny holds the position of professor, clinical professor of neurology and pediatrics at the University of Miami School of Medicine and clinical professor of neurology at the FIU College of Medicine. Dr. Duchowny reviewed Landon’s medical records and performed an independent medical examination on Landon on April 9, 2014. Dr. Duchowny made the following findings and summarized his evaluation as follows: MEDICAL HISTORY: Landon is a 2-year-old boy who, according to his parents, has been diagnosed with “mild cerebral palsy.” They noted that Landon has left-sided weakness affecting both arm and leg and this affects both his gait and left hand and arm movement. However, despite his weakness, Landon runs and walks on his own, and his parents are “teaching him to jump.” Landon has been fitted with a left ankle brace which he wears throughout the day. He has intermittently worn a left hand splint to “keep his left thumb out.” Landon has always been a right-hander but can use his left hand to manipulate objects. In terms of motor development, Landon walked independently at age 13 months, crawled at 10 months and stood at 11-12 months. His gait is now stable and he does not fall excessively, although he is slightly clumsy. His parents have noted that Landon’s hips move “from side-to-side” and that he prefers sitting in a “W” position. There has been no motor regression and he continues to make solid progress. Landon’s speech has been exemplary. He began speaking independently with single words at age 6-7 months and he is now able to speak in short sentences. Landon knows his letters, colors, and shapes and has a good understanding of spoken language. His parents believe he “can recognize some words.” He has never had speech therapy. Landon receives both physical therapy and occupational therapy once weekly for a 90- minute session. This is administered at the Brandon Outpatient Center of All Children’s Hospital. Landon’s vision and hearing are good. He has had hearing testing on two occasions with normal results. His appetite is stable and he is a good eater. Landon sleeps through the night and gets approximately 10-12 hours per sleep nightly with an additional nap daily. Landon is on no intercurrent medications. He experienced seizures 12 hours after birth in the Newborn Intensive Care Unit (NICU) treated with Ativan, phenobarbital and phenytoin. Phenobarbital was discontinued at age three months and phenytoin was discontinued at time of hospital discharge. He has never had subsequent seizures. He does have allergies to both food and environmental factors. * * * NEUROLOGIC EXAMINATION reveals Landon to be alert, pleasant and cooperative. He is somewhat overactive and socially inattentive but participates fully in the examination. He smiles frequently and is playful. Landon maintains an age appropriate stream of attention and answers questions with 2-3 word phrases. He appeared to appreciate all social interactions. The speech sounds are fluent and well articulated. There is no drooling. Motor examination reveals evidence of an asymmetry of movement characterized by diminished left-sided movement, primarily in the upper extremity. There is diminished arm swing when walking but a full passive range of motion without contractures or atrophy. There are no fasciculations or adventitious movements. Landon grasps an object with his right hand easily and has good fine motor coordination and thumb-finger opposition. In contrast, he prefers grasping with the right hand but easily grasps with the left and performs individual finger movements. When he grasps an object, he tends to transfer readily to the right side. He crosses the midline with his right hand unless an object is moved laterally to the left side. * * * In summary, Landon’s neurologic examination reveals mild left hemiparesis with relatively preserved functionality and range of motion. He ambulates well, is motorically stable and evidences no obvious weakness. His cognitive level of functioning is at age level without evidence of mental impairment. I had an opportunity to review records which were sent on February 5, 2014. They confirm the parent’s history of perinatal problems but provide no clear history of a hypoxic insult. Landon’s CT scan of the brain on November 22nd revealed only extra-axial hemorrhage (outside brain tissue) and an MRI obtained on November 28, 2011 revealed multiple small areas of signal abnormality on diffusion weighted images consistent with focal ischemic events. These findings are inconsistent with a hypoxic ischemic event and do not suggest a mechanical injury. I therefore do not believe that Landon should be considered for compensation within the NICA program. He does not have a substantial mental or motor impairment and his perinatal course is inconsistent with neurological injury to the brain or spinal cord resulting from oxygen deprivation or mechanical injury. He further noted in his report that Landon’s gait is stable and explained further in his deposition taken on September 23, 2014: “when I looked at him walking, I thought he walked in a stable fashion, but there was a tendency, when he started running, to position the ball of his foot down, and that is slightly clumsy, yes. . . . But he certainly didn’t fall, and he wasn’t—he could certainly ambulate quite well despite this.” Dr. Duchowny was asked if his independent medical examination of Landon supported the parents’ statements that Landon had mild CP. He replied, “I would say, not really, no. I guess I would just say it would be very mild CP. I guess I would put it that way. He does have some motor findings. If you had to classify it, I think it ultimately would come under the heading of CP, but it would be very, very mild.” When asked during his deposition about the parents’ disclosure that Landon crawled at 10 months, stood at around 11, and walked at 13 months, Dr. Duchowny opined that, “these are normal milestones.” When asked during his deposition if he found no evidence of mental impairment, Dr. Duchowny replied, “That’s correct.” Dr. Duchowny’s opinion that Landon does not have a substantial, permanent physical and mental impairment is credited. Dr. Duchowny’s opinion that Landon’s injury is inconsistent with a hypoxic ischemic event and is inconsistent with neurological injury to the brain or spinal cord resulting from oxygen deprivation is at odds with Dr. Willis’ opinion regarding the same issue.2/ Dr. Willis’ opinion that Landon’s injury was consistent with hypoxic ischemic encephalopathy is consistent with the diagnosis at Landon’s discharge from All Children’s Hospital where he received a CT scan, a video EEG, and an MRI. The greater weight of the evidence establishes that that there was an apparent obstetrical event that resulted in loss of oxygen to Landon’s brain during labor, delivery and continuing into the post-delivery period that resulted in brain injury. Here, the stipulated record demonstrates, along with Dr. Duchowny’s expert opinion, that Landon is not permanently and substantially mentally impaired. While Landon has some motor deficits, these deficits do not render him permanently and substantially physically impaired.
