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 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 Charles Caleb Padgett, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Initial observations As observed in the preliminary statement, neither petitioner nor anyone on her behalf appeared at hearing, and no proof was offered to support her claim. Ordinarily, such failing would be dispositive of the case; however, notwithstanding petitioner's failure of proof, respondent elected to offer into evidence the medical records filed with DOAH on February 8, 1995, which relate to Sandra Padgett's prenatal care, the birth of Charles Caleb Padgett (Caleb) and Caleb's subsequent development, as well as the opinions of Charles Kalstone, M.D., a board certified obstetrician, and Michael Duchowny, M.D., a board certified pediatric neurologist, to affirmatively resolve the issue as to whether Caleb had suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. Ms. Padgett's antepartum course and Caleb's birth The records relating to Ms. Padgett's antepartum course fail to demonstrate any complication other than polyhydramnios (an abnormal collection of amniotic fluid). Such complication did, however, place her pregnancy at risk, and she was routinely the subject of non-stress testing to assess the well being of the fetus, and periodic ultrasounds. On November 10, 1992, with an estimated date of confinement of November 19, 1992, Ms. Padgett underwent a routine non-stress test and ultrasound. The non-stress test was reactive, a positive sign of fetal well-being; however, the ultrasound suggested that the infant was macrosomic, with an estimated fetal weight of over nine pounds. 1/ Based on the ultrasound results, and considering that Ms. Padgett had previously undergone a cesarean section at term, her physician decided against a trial of labor and recommended that she be admitted for a repeat cesarean delivery. At or about 10:55 a.m., November 11, 1992, Ms. Padgett was admitted to Lawnwood Regional Medical Center, Fort Pierce, Florida, for the repeat cesarean section heretofore noted. At the time, Ms. Padgett was not in labor, and was not thereafter noted to have entered labor. At 3:50 p.m., November 11, 1992, Caleb was delivered by cesarean section. Upon delivery, copious clear fluid was aspirated from his oropharynx and stomach, and resuscitation was noted to consist of tactile stimulation, suctioning, and oxygen blow-by. Apgars were noted as 7 and 8, at 1 and 5 minutes respectively. Notwithstanding resuscitation, Caleb was noted to become dusky (pale) each time oxygen was withdrawn, and developed grunting and retractions. Consequently, Caleb was transferred to the nursery where he was initially placed on a 50 percent oxyhood. Subsequent assessment revealed transient tachypnea of the newborn (TTN), and chest x-ray revealed bilateral haziness of the lungs. Therefore, Caleb was intubated and, over the course of the next 10 hours, weaned well and was extubated to room air without further respiratory complications. Neurologically, Caleb was noted to have decreased tone since birth, with some arching, and small fontanelle. The arching resolved within the first 48 hours, but the hypotomia persisted. A CT study of the brain at 48 hours of age was noted to be within normal limits. In this regard, it is observed that there was no demonstrated evidence of intracranial hemorrhage, significant mass effect or shift to the midline structures. The ventricular system appeared patent and normal for age, and there was no evidence of extra axial fluid collections. There were, however, diffuse low attenuation changes throughout the white matter which was thought to represent immature white matter, normal for age, but other etiologies could not be entirely excluded. Caleb's hospital course was otherwise uneventful, and he was discharged to his mother's care on November 15, 1992. Caleb's development Subsequent to discharge, Caleb was followed medically, and ultimately diagnosed with a very mild right hemiparesis and developmental disorder, probably mild cerebral palsy. In an effort to identify the cause of Caleb's disorder, a number of radiological studies were performed. A CT of the brain taken on July 13, 1993, revealed: . . . encephalomalacia immediately lateral to the left caudate nucleus, manifested by linear low attenuation in the white matter and compensatory dilation of the frontal horn of the left lateral ventricle. This indicates an old unilateral vascular insult, which may well have occurred in utero. The remainder of the brain including the right hemisphere is within normal limits. There is no hydrocephalus, intracranial hemorrhage nor intracranial calcification. An MRI of the brain on November 29, 1993, revealed the following: The cerebellum and brain stem appeared normal in configuration. There is altered contour in the left basal ganglia and internal, external capsular region suggestive of an old infarct with signal changes in this region compensatory. There are areas of gliosis as well as porencephalic changes in the frontal horn and body of the lateral ventricle on the left compensatory to the infarct. There is some thickening of the ethmoid and maxillary sinus regions notable. IMPRESSION: Abnormal MRI of the brain as noted by the changes suggestive of old left basal ganglia, internal capsule and external capsular region infarct with compensatory ventricular changes of the frontal horn and body of the lateral ventricle of porencephalic nature with gliottic changes throughout this region. . . . Electroencephalograms of January 5, 1994, and May 3, 1994, were essentially normal, with no evidence of seizure activity. Although the medical records indicate that Caleb suffered some oxygen deprivation at birth, the proof fails to support the conclusion that such event caused the injury to his brain which resulted in his neurological impairment. Rather, the proof, as demonstrated by Caleb's presentation at birth, hospital course, and radiological studies, indicates that Caleb's neurological impairments, more likely than not, derive from an intra-uterine stroke which significantly predated his mother's admission to the hospital or his birth. In so concluding, it is first observed that the radiological studies do not demonstrate evidence of a brain injury at or about the time of birth but, rather, prenatally. Second, the focal nature of Caleb's brain injury, with resultant right-sided hemiparesis, is not generally associated with hypoxic insult. Rather, hypoxic insult generally evidences as a global injury to the brain, as opposed to the focal injury Caleb suffered. Finally, Caleb presented with dysmorphic features, an abnormality suggesting Caleb did not develop appropriately in utero. Such developmental abnormality is a risk factor, and can lead to developmental problems with motor function, language function and cerebral palsy. Turning now to the significance of Caleb's neurologic impairments, it must be concluded that the proof fails to demonstrate that Caleb is permanently and substantially, mentally and physically impaired. Rather, the proof demonstrates that Caleb's physical impairment can best be described as mild, as opposed to substantial, and there is no evidence that he suffered any loss of cognitive function.
The Issue At issue in this proceeding is whether Morgan Wilson, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Petitioners, Tracie Wilson and James Ray Wilson, are the natural parents and guardians of Morgan Wilson. Morgan was born a live infant on December 12, 2000, at Baptist Medical Center, a hospital located in Jacksonville, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Morgan's birth was Martin Garcia, 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. Morgan's birth At or about 7:29 a.m., December 12, 2000, Mrs. Wilson (with an estimated date of delivery of December 23, 2000, and the fetus at 38 3/7 weeks gestation) presented to Baptist Medical Center, in labor. At the time, Mrs. Wilson's membranes were noted as intact, and mild to moderate uterine contractions were noted at a frequency of 2-4 minutes. Fetal monitoring revealed a reassuring fetal heart rate, with a baseline of 150-160 beats per minute, and the presence of fetal movement. At 9:45 a.m., Mrs. Wilson's membranes were artificially ruptured, with meconium stained amniotic fluid noted. At the time, vaginal examination revealed the cervix at 4 centimeters, effacement complete, and the fetus at 0 station. Mrs. Wilson's labor progressed, and at 7:29 p.m., Morgan was delivered, with vacuum assistance. According to the Admission Summary, Morgan was suctioned on the perineum, and, before she could be moved to the warmer, the "[c]ord clamp loosened with small amount of blood loss prior to reclamping." The Admission Summary further reveals that Morgan was "floppy and required bag mask ventilation x3 minutes, then blowby oxygen for 3 minutes." Apgar scores were noted as 1 and 8, at one and five minutes,2 and umbilical cord pH was reported as normal (7.28). Morgan was transferred to the neonatal intensive care unit (NICU) for "eval[uation] after blood loss." There, her blood count (with a hematocrit of 46 percent) was reported as normal or, stated otherwise, without evidence of a clinically significant blood loss due to the loosening of the clamp. Following two hours of observation, Morgan was transferred to the normal newborn nursery; however, at 4:20 p.m., December 13, 2000, she was readmitted to the neonatal intensive care unit. The reason for admission was stated in the Admission Summary, as follows: . . . Indications for transfer included 38 week WF with renal vein thrombosis and left middle cerebral artery stroke. Neonatology consulted midafternoon today secondary to hematuria. On exam, Dr. Cuevas noted asymmetry of pupils, with right more dilated and less responsive then left. Also noted to have torticollis, preferring to keep head turned to left. Also noted to have palpable mass in left abdomen. Renal ultrasound revealed renal vein thrombosis. HUS showed some echogenecity so Head CT done revealing left middle cerebral artery stroke. Hct this am 41. Baby then admitted to NICU for further care. Neurology and hematology consulted as well as nephrology. Impressions on admission included: possible coaguloathy; left middle cerebral artery stroke; renal vein thrombosis; and torticollis. Morgan remained at Baptist Medical Center until December 29, 2000, when she was discharged to her parents' care. Morgan's Discharge Summary noted the following active diagnoses: possible coagulopathy; anemia; left middle cerebral artery stroke; renal vein thrombosis; and torticollis. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . 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, indisputably, the record demonstrates that Morgan suffered an injury to the brain (following a stroke in the territory of the left middle cerebral artery, likely due to arterial occlusion or superior saggital sinus thrombosis). What is disputed, is whether the proof demonstrates, more likely than not, that such injury occurred "in the course of labor, delivery, or resuscitation," and whether any such injury rendered Morgan "permanently and substantially mentally and physically impaired." The timing of, and the neurologic consequences that followed, Morgan's brain injury To address whether Morgan's brain injury occurred "in the course of labor, delivery, or resuscitation," and whether such injury rendered Morgan "permanently and substantially mentally and physically impaired," Petitioners offered medical records relating to Mrs. Wilson's antepartum course, as well as those associated with Morgan's birth and subsequent development. Additionally, Mrs. Wilson testified on her own behalf, and Respondent offered the deposition testimony of Dr. Donald Willis, a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine, and Dr. Michael Duchowny, a physician board-certified in pediatrics, neurology with special competence in child neurology, electroencephalography, and neurophysiology.3 As for the timing of Morgan's injury, it was Dr. Willis' opinion that the medical records did not reveal any obstetrical event that would account for Morgan's injury. In so concluding, Dr. Willis noted that fetal monitoring (which began on admission and continued until 7:28 p.m., one minute prior to delivery) did not reveal evidence of fetal compromise or a clinically significant event that would account for Morgan's injury, that Morgan's 5-minute Apgar score was normal, her umbilical cord pH was normal, and her hematocrit on initial admission to the neonatal intensive care unit was normal. Consequently, Dr. Willis concluded that Morgan's injury did not occur during labor, delivery, or resuscitation. Also speaking to the timing of Morgan's injury was Dr. Duchowny who, based on his review of the medical records, shared Dr. Willis' opinion that there was no evident problem during labor and delivery, and further opined that Morgan's injury likely occurred prior to labor. In concluding that Morgan's injury likely predated the onset of labor, Dr. Duchowny noted that Morgan's CT scan on the day after birth clearly revealed a stroke in the territory of the left middle cerebral artery, and that it would take at least 72 hours for a stroke to be revealed so clearly on a CT scan. Apart from the timing of Morgan's brain injury, Dr. Duchowny also expressed his opinions, based on his examination of November 6, 2001, regarding the neurologic consequences that followed Morgan's injury. Dr. Duchowny reported the results of Morgan's neurology evaluation, as follows: PHYSICAL EXAMINATION reveals an alert, well developed and well nourished 10 1/2 month old white female. The skin is warm and moist. There are no cutaneous stigmata or dysmorphic features. The hair is light blonde, fine and of normal texture. Morgan weighs 18-pounds, 10-ounces. Her head circumference measures 45.6 cm, which is at the 60th percentile for age matched controls. There are no dysraphic features. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. NEUROLOGIC EXAMINATION reveals an alert infant who is socially oriented. She has good central gaze fixation, conjugate following and normal ocular fundi. The pupils are 3 mm and react briskly to direct and consensually presented light. There is blink to threat from both directions. There are no facial asymmetries. The tongue and palate move well, and there is no drooling. Motor examination reveals an obvious asymmetry of posturing and movement. The left side is positioned normally and tends to grasp for objects. The right upper and lower extremity have diminished movement in comparison to the left and there is a tendency for the left hand to cross the midline for all manual tasks. She will not grasp for an offered cube with her right hand. In contrast, the left hand will grasp for a cube and display the beginnings of individual finger movements. The thumb on the right hand is fisted. The muscle, bulk and tone appears symmetric. Deep tendon reflexes are 2+ at the biceps and knees. Both plantare responses are mildly extensor. On pull-to-sit there is an asymmetry of the upper extremity, with relatively greater pull on the left side. The neck tone is good. There are no adventitious movements. Sensory examination is intact to withdrawal of all extremities to touch. The neurovascular examination via the anterior fontanelle is unremarkable. In SUMMARY, Morgan's neurologic examination reveals a mild to moderate motor asymmetry of the right side affecting primarily upper extremity, but with some lower extremity involvement as well. In contrast, Morgan's cognitive status appeared well preserved for age and she is certainly developing on schedule with regard to her linguistic milestones. I suspect that Morgan's motor function will continue to improve, as she is working actively in therapy. In sum, it was Dr. Duchowny's opinion that Morgan evidenced neither a permanent and substantial physical impairment nor a permanent and substantial mental impairment. In contrast to the proof offered by Respondent, Petitioners offered the lay testimony of Mrs. Wilson, which was legally insufficient to support a finding regarding the timing of Morgan's brain injury, and which failed to support a conclusion that Morgan was permanently and substantially mentally and physically impaired. See, e.g., Vero Beach Care Center v. Ricks, 476 So. 2d 262, 264 (Fla. 1st DCA 1985)("[L]ay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observable.") Consequently, since the opinions of Dr. Willis and Dr. Duchowny are logical, and consistent with the medical records, it must be resolved that, more likely than not, Morgan's brain injury did not occur "in the course of labor, delivery, or resuscitation," and that Morgan's injury did not render her "permanently and substantially mentally and physically impaired." Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation.")
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 10
The Issue At issue is weather Tyler Anthony Carter, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Victoria Knight Carter and Roy Carter are the natural parents of Tyler Anthony Carter, a minor. Tyler was born a live infant on February 7, 2005, at North Shore Medical Center, a licensed hospital located in Miami, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were delivered at Tyler's birth by Ramon Hechavarria, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. Here, the proof demonstrated that Tyler's delivery was complicated by a shoulder dystocia, which caused a brachial plexus injury, that resulted in a weakness (an Erb's palsy) in the left upper extremity. Otherwise, Tyler was not shown to suffer any injury at birth. To address the nature and significance of Tyler's injury, NICA offered the testimony of Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology.1 (Respondent's Exhibit 1, deposition of Dr. Duchowny). Dr. Duchowny evaluated Tyler on October 17, 2007, and reported the results of his physical and neurological evaluation, as follows: PHYSICAL EXAMINATION reveals an alert, cooperative 2 1/2-year-old, well-developed and well-nourished toddler. Tyler[] weighs 29 pounds. His skin is warm and moist. There are no dysmorphic features or neurocutaneous stigmata. Head circumference measures 49.2 centimeters, which is within standard percentiles for age. The fontanels are closed. There are no cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory, and abdominal examinations are unremarkable. Tyler's NEUROLOGICAL EXAMINATION reveals an alert and sociable toddler. His speech is fluent and appropriately articulated. He maintains an age appropriate stream of attention. His social skills are appropriately developed for age. Cranial nerve examination is unremarkable. The extraocular movements are fully conjugate in all planes and the pupils are 3 mm and briskly reactive to direct and consensually presented light. A brief funduscopic examination is unremarkable. There are no significant facial asymmetries. The uvula is midline and the pharyngeal folds are symmetric. The tongue is moist and papillated. Motor examination reveals an asymmetry of the upper extremities. There is slightly diminished muscle bulk in the distal left upper extremity. Tyler is unable to raise the left arm past neutrality. He tends to posture the left arm with flexion at the elbow and wrist. Tyler cannot fully supinate the left hand. He can build a tower with using either hand and has bimanual dexterity. However, he demonstrates a consistent right hand preference. There are no fixed contractures. The deep tendon reflexes are 2+ in the lower extremities and the right upper extremity but 1+ at the [left] biceps. The sensory examination is intact to withdrawal of all extremities to stimulation. The neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Tyler's neurological examination reveals a mild left Erb's palsy, which was likely acquired during delivery due to traction on the brachial plexus. In contrast, there are no abnormalities referable to the right upper extremity or the lower extremities. Tyler's mental functioning is appropriate for age level. (Joint Exhibit 1, Report of Dr. Duchowny, dated October 17, 2007; Respondent's Exhibit 1, pp. 15 and 16). An Erb's palsy, as evidenced by Tyler, is a weakness of an upper extremity due to damage to the nerve roots of the left brachial plexus, a peripheral nerve injury, and does not represent an injury to the brain or spinal cord (the central nervous system). (Respondent's Exhibit 1, pp. 10 and 11).2 Moreover, the physical impairment Tyler suffers is mild, as opposed to substantial, and there is no compelling evidence of mental impairment, much less substantial mental impairment. (Respondent's Exhibit 1, pp. 8-10). Ackley v. General Parcel Service, 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The determination of the cause of a non-observable medical condition, such as a psychiatric illness, is essentially a medical question."); Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation."). Consequently, while Tyler may have suffered a mechanical injury, permanent in nature (to his left brachial plexus) during the course of birth, he does not qualify for coverage under the Plan.
