The Issue The issue in this case is whether Oliver Bender has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Tyler Dyal is the natural mother of Oliver Bender. Oliver was born a live infant at Orange Park Medical Center in Orange Park, Florida, on September 26, 2011. Orange Park Medical Center was a hospital licensed in Florida on September 26, 2011. The physician providing obstetrical services at the time of Oliver’s birth was Dr. Edelenbos. At all material times, Dr. Eric Edelenbos, North Florida Obstetrical and Gynecological Associates, P.A., was a participating physician in the Plan. Oliver weighed in excess of 2,500 grams at birth. None of the parties dispute that Oliver sustained an injury to the brain caused by oxygen deprivation during resuscitation in the immediate post-delivery period. Donald C. Willis, M.D., NICA's expert, opined: In summary, labor was complicated by an abnormal FHR pattern and resulted in a depressed newborn. Umbilical cord blood gas was consistent with birth hypoxic with a pH of 6.87. The newborn hospital course was complicated by respiratory depression, apnea episodes and seizures. MRI identified 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 extent of the brain injury. At the time of Oliver’s birth, his Apgar scores were 3 at one minute, 6 at five minutes, and 8 at ten minutes, and he required resuscitation in the delivery room. His arterial cord gas pH was 6.872 with a base deficit of over 20, indicating that he had metabolic acidosis and had experienced hypoxia during labor and delivery. Intubation was attempted but was not successful; however, Oliver improved and did not require intubation thereafter. Oliver began having dusky spells around 24 hours of age with reported “staring” and tight tone. He also demonstrated jitteriness and irritability. By September 28, 2011, Oliver had begun to have seizures, which were treated with Phenobarbital. Oliver was transferred to Wolfson’s Children’s Hospital, where he continued to have stiffening of his extremities with arching and eye staring. On September 29, 2011, Oliver had an MRI which showed the following: FINDINGS: There are felt to be diffusion abnormalities present. These are more conspicuous on the B200 (more heavily diffusion weighted) images. These involve predominantly the gray matter involving the left frontoparietal region and the left MCA distribution. In addition there is slight restricted diffusion in the basal ganglia bilaterally. There is restricted diffusion along the calcarine fissures greater on the right than the left. There is a small amount of restricted diffusion in the right frontal lobe along the inferior aspect of the sylvian fissure and extending slightly superiorly. There is also slight restricted diffusion bilaterally felt to localize to the gray matter along in the gray matter of the occipital tips. The cerebellum appears preserved. These diffusion abnormalities are accompanied by subtle T2 prolongation of FLAIR images as well. There is otherwise no space-occupying lesion, mass effect or midline shift. There is no hydrocephalus. The corpus callosum appears well formed. The intracerebral flow voids on the T2 cube images appear preserved and symmetric. The patient appears to have a complete circle of Willis. IMPRESSION Areas of restricted diffusion in distribution as described above. The study discussed with Dr. Driscoll and overall the findings are felt to be consistent with hypoxic ischemic encephalopathy. No obvious focal vascular abnormalities are seen on the T2 cube images. As such this is likely secondary to somewhat global ischemic etiology rather than embolic phenomenon. There is no evidence of hemorrhage. Oliver was discharged from Wolfson’s Children’s Hospital on October 5, 2011, with no further seizure activity being noted. He was continued with Phenobarbital and still remains on the medication. When Oliver was five weeks old, he was seen by Dr. Alana Salvucci at Nemours. Dr. Salvucci’s assessment of Oliver revealed the following: Since Oliver has been at home, he has made good developmental progress. He is making eye contact and tracks. He startles to loud sounds. He moves both of his extremities equally and spontaneously. He smiles. Overall, his grandmother describes him as stiff, tending to hold his hands in a fisted position, but will open and grasp objects. He is on phenobarbital 2 mL twice a day, which is approximately 3.5 mg/kg per day. He has had no further events of stiffening concerning for seizure. However, he does have episodes where he stares off, typically to the right with no change in tone, lasting 1 to 2 minutes, occurs at least once a day. There are several times where caretakers can get his attention; however, most of the time, he will not respond to tactile or verbal stimuli. There are no associated oral automatisms or eye flutter. * * * Oliver has overall been doing well with no stiffening or jerking episodes, he has been smiling, and tracking and milestones have been appropriate for his age. Dr. Salvucci recommended that Oliver’s mother and grandmother videotape Oliver’s episodes of staring off and send the tape to Nemours for review. She arranged for a prolonged, at least four-hour, video EEG in hopes of capturing the staring episodes described by Oliver’s mother and grandmother. On December 29, 2011, Oliver had a four-hour, sleep-deprived EEG, which was normal with no clinical events during the EEG recording. No evidence was presented that established Oliver’s mother followed Dr. Salvucci’s recommendation to videotape one of Oliver’s staring episodes. On March 22, 2012, Oliver returned to Nemours and was seen by Dr. Harry Abrams. Dr. Abrams noted that Oliver had made good developmental progress since his discharge from Wolfson’s Children’s Hospital. Oliver had begun sitting up in a tripod position. He used both hands equally, reaching for objects and transferring objects. According to his mother, Oliver’s stiffness had significantly improved, but Oliver still had tight heel cords, making him tend to stand on his toes when bearing weight. Although not babbling, Oliver was making good eye contact, smiling, and tracking. During the visit, Oliver’s mother reported that at least twice a day Oliver had episodes where his arms stiffened and flexed at the elbow and that he was having jerking movements. She indicated that Oliver had been staring off, and there appeared to be transient episodes of unresponsiveness that lasted several seconds. Dr. Abrams recommended that an eight-hour video EEG be done in hopes of capturing one of the events with the upper extremity jerking. This recommendation was not followed. On January 17, 2013, Oliver was admitted to Wolfson’s Children’s Hospital for seizures accompanying a fever and cough. The seizure was a single episode in which Oliver was unresponsive for one minute and nonresponsive to verbal or tactile stimulation. The seizure caused grogginess, and Oliver slept afterwards. The seizure was characterized as generalized and staring. The postical symptom was confusion. His mother reported that this was the first seizure that Oliver had had since he was an infant. Oliver was treated with Klonopin and discharged the next day in stable condition. Oliver visited Dr. Abrams on April 16, 2013. Dr. Abrams noted that Oliver was doing well. Oliver had no significant evidence of delay. Oliver’s family advised that Oliver had done well, but at times Oliver would stare off and at other times, when he was drowsy or sleepy, he would put his fingers in his ears and shake his head back and forth. Dr. Abrams recommended that Oliver’s dosage of Phenobarbital begin to be tapered. In May 2013, Oliver had another seizure. Again, this seizure was accompanied by a high fever. His mother was about to give him Tylenol when Oliver suddenly stiffened and jerked for several minutes. The episode stopped spontaneously. As a result, Oliver’s dosage of Phenobarbital was increased. Oliver has not had another episode similar to the one he had in May 2013. His mother and grandmother report that he continues to have episodes in which he stares off and becomes confused. However, he returns to baselines after the staring episodes. Oliver is an active child; he can run, walk, and play. He is able to throw a ball and can drive a power-wheel car by pushing the pedal to drive it. He plays with other children. Oliver likes to play with his Hot Wheels cars. He can pull off his hats, socks, and clothes. He is able to turn pages in a book, and he can stack blocks. Oliver scribbles on paper with pens, pencils, and crayons. He can feed himself with utensils and drinks from a sippy cup. He can also drink from a straw. He can put his arms inside his sleeves when he is being dressed. When asked to point to his body parts, including his eyes, ears, hair, feet, hands, and belly button, he is able to do so. As of October 15, 2013, Oliver could speak approximately eight single words meaningfully and had not spoken any two-word phrases. His speech development at that time was not age appropriate. However, Oliver is able to use nonverbal communications effectively. When he is hungry, he smacks his lips and holds out his hands, indicating that he wants something to eat. He is able to understand and carry out verbal requests. He makes good eye contact. He can identify objects in pictures such as a ball, airplane, and ice cream cone by pointing to the objects. He is not receiving any type of therapy, such as physical, occupational, or speech therapy. Respondent retained Raymond Fernandez, M.D., to evaluate Oliver. Dr. Fernandez is board-certified in pediatrics and neurology together with child neurology and has been practicing pediatric neurology for 37 years. Dr. Fernandez reviewed Oliver’s medical records and performed independent medical examinations on Oliver on September 25, 2012, and October 15, 2013. After Dr. Fernandez’s examination on September 25, 2012, he felt that it would be appropriate to reexamine Oliver in six to nine months in order to track his developmental progress before coming to a final conclusion. After his second evaluation, Dr. Fernandez summarized his evaluation as follows: There is no evidence at this time, of substantial mental and motor impairment due to oxygen deprivation sustained during labor and delivery. Oliver has made good progress with his fine and gross motor skills and at this time, there is no convincing evidence for spasticity or cerebral palsy that was noted earlier. There is no reason to anticipate any reversal or regression in his motor skills, strength, or coordination. Expressive speech development has been delayed, but he is improving at a steady pace and this trend should continue. Receptive language skills are also improving steadily. Delay in speech and language skills, even when improving, is sometimes an early indicator of later learning difficulty in the classroom setting. Whether or not this will prove to be a problem for Oliver remains to be determined. It is a potential problem that should not be insurmountable with appropriate input from his teachers. At the time of Dr. Fernandez’s examination on October 15, 2013, Oliver was able to run without falling and had no abnormality in his gait. Intervenor, Orange Park Medical Center, retained Trevor Resnick, M.D., to evaluate Oliver. He is board-certified in pediatrics and neurology with a special competence in child neurology. Dr. Resnick reviewed Oliver’s medical records and examined Oliver. He opined Oliver’s staring spells and resulting confusion were partial complex seizures. These seizures have not been confirmed with a video EEG and have been witnessed only by his family. However, given the long history of these episodes, more likely than not, the episodes are partial complex seizures. When Oliver experiences a staring episode and resulting confusion, he will return to his baseline condition and is able to carry on with the activities previously described. The episodes are transient in nature; thus, any physical or mental impairment that occurs during the episode is not permanent. Dr. Fernandez’s opinion that Oliver does not have a substantial, permanent physical and mental impairment is credited.
The Issue At issue in the proceeding is whether Demetrios Robertson, 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 Petitioner, Carmina Gilliam, is the mother and natural guardian of Demetrios Robertson, a minor. Demetrios was born a live infant on August 4, 1996, at University Medical Center, a hospital located in Jacksonville, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services during the birth of Demetrios was Michael T. Valley, 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 when the claimant demonstrates, more likely than not, that the infant suffered 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." Section 766.302(2), Florida Statutes. Here, the proof failed to demonstrate that Demetrios suffered a permanent and substantial mental and physical impairment. Consequently, it is unnecessary to address whether he suffered an injury to the brain caused by oxygen deprivation or mechanical injury and, if so, whether such injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Demetrios' current mental and physical presentation To address the character of Demetrios' neurologic presentation, Petitioner offered selected medical records relating to Demetrios' birth and subsequent development, as well as the opinions of Demetrios' treating pediatric neurologist, Daniel E. Shanks, M.D. In turn, Respondent offered the opinions of Michael Duchowny, M.D., a pediatric neurologist who examined Demetrios on January 17, 2001. As noted, on January 17, 2001, following the filing of the claim for compensation, Demetrios was examined by Dr. Duchowny. Pertinent to this case, the results of that evaluation were reported as follows: PHYSICAL EXAMINATION reveals Dem[e]trios to be alert, pleasant and cooperative. His weight is 55 pounds and height 32 inches. There is a single cafe-au-lait spot over the left midabdominal region. There are no dysmorphic features and no other cutaneous stigmata. The spine is straight without dysraphism. The head circumference measures 50.4 cm and there are no craniofacial anomalies or asymmetries. The fontanelles are closed. The neck is supple, without masses, thyromegaly or adenopathy and the cardiovascular, respiratory and abdominal examinations are unremarkable. Peripheral pulses are 2+ and symmetric. NEUROLOGICAL EXAMINATION: Dem[e]trios' neurological examination reveals him to be quiet but cooperative. He does have a short attention span but he is easily engaged and tends to complete requests without flinching. His speech output is noticeably diminished and he tends to speak in short phrases with poorly articulated words. He does not know primary or secondary colors and has a limited command of knowing the names of animals. He does identify body parts well. There is no evidence of overactivity. Cranial nerve examination reveals full visual fields to direct confrontation testing and normal ocular fundi. The pupils are 4 mm, react briskly to direct and consensually presented light. The optic disc margins are well- marginated with normal coloring. The tongue and palate move well and there is no drooling. Medical examination reveals mild spasticity of the lower extremities with some tightening of the heel cords. Dem[e]trios barely dorsiflexes the feet past neutrality and he has slight Babinski attitudes of the big toes. In contrast, the tone in the upper extremities is relatively normal. He has trouble with rapid alternating movement sequences and demonstrates mild decomposition. There is no focal weakness or atrophy. Dem[e]trios walks in a single fashion although there is eversion of his feet. The deep tendon reflexes are brisk and 2+ at the knees, brachioradialis and biceps. There are one or two beats or reduplication at the ankles and quite positive Babinski signs. There is no abductor spasticity. His gait is stable but he tends to posture both arms. He has difficulty walking on tip toes or heels. Romberg sign is absent. The neurovascular examination reveals no cervical, cranial, ocular bruits and no temperature or pulse asymmetries. Sensory examination was deferred. IN SUMMARY, Dem[e]trios' neurologic examination reveals evidence of moderate developmental delay, particularly in the area of language functioning. He additionally has evidence of mild lower extremity spasticity indicating a mild spastic diparesis. At a deposition held August 28, 2001, and received in evidence as Respondent's Exhibit 1, Dr. Duchowny expanded on the results of his examination and conclusions regarding the character of Demetrios' presentation, as follows: BY MR. CULPEPPER: * * * Q. . . . What were your conclusions regarding Demetrios' neurological condition? A. Having performed the evaluation and reviewing the medical records, I felt that Demetrios has neither a substantial mental nor motor impairment. Q. . . . Is Demetrios impaired? A. I believe that he does have evidence of impairment, yes. * * * Q. . . . Does Demetrios have a permanent injury? A. Yes, I believe he does. Q. Is he mentally impaired? A. I think he has developmental delay. I am using the term to distinguish it from brain damage. I think his language is behind age level, but will probably progress and continue to improve. Q. I will focus on the context of NICA. How would you quantify the seriousness of Demetrios' mental impairment? A. I would call it mild to moderate. Q. Okay. So you would not consider Demetrios' mental impairment, quote, unquote, "significant" in terms of NICA? A. That's correct. Q. Why not? A. Because he probably functions within a high -- in the high end of kids with disabilities. He basically would be mild to moderately impaired by school standards, and he is not mentally retarded. Q. To follow up, describe what you would consider a, quote, unquote, "significant" mental impairment in terms of the NICA statute? A. Well, he would have to be -- function within the mentally retarded range, and I regard him more as having evidence of language delay. Otherwise, he seems socially intact and he does well. Q. Now I'll turn to Demetrios' physical condition. Is Demetrios suffering from a physical impairment? A. Yes. Q. In the context of NICA, how would you quantify the seriousness of Demetrios' physical impairment? A. I believe he has a mild physical impairment of his legs. Q. Again, in the context of the NICA statute, would you consider Demetrios' physical impairment, quote, unquote, "significant" MR. SCHACK: Let me object to the language and the form of the question. You keep using the word "significant," and I think the language is "substantial." MR. CULPEPPER: I apologize, and thank you for pointing that out. Let me switch the words then. Q. (By Mr. Culpepper) Do you consider his impairment substantial in terms of NICA? A. No. Q. And why not? A. Because in the spectrum of what we see of motor impairment, this is simply not a substantial motor impairment. He would have to be more spastic, more involved with greater compromise of his functionality. Q. And then to clean up my error, going back to mental impairment, would you consider Demetrios' mental impairment "substantial," quote, unquote, in terms of the NICA statute? A. No, I would not. BY MR. SCHACK: * * * * * * Q. . . . When you use the terms mild, moderate, and severe, is that medical terminology? A. Well, it's not a medical dictionary word, but I think it is a modifier that tries to categorize a patient within the scope of disability that we see. Q. Well, Doctor, if this was your patient, would you just describe the neurological findings and the problems the child had rather than trying to modify it by an adjective? A. No. We always modify with an adjective. Q. Okay. A. Apart from NICA, we do that. * * * Q. It appears in this case to me, correct me if I am wrong, that regardless of whether you describe it as mild, moderate, or severe, that Demetrios has some motor difficulties that might impact on his ability to live a normal life. A. You mean lifespan or just life functions? Q. That was a -- life function. A. They might, yes. Q. Okay. He at the present time has lower motor problems, lower extremity motor problems; is that correct? A. Yes. Q. And exactly what is his problem? A. He has spasticity, mild, of his legs. Q. What does that prevent him from doing? A. Being agile, running fast, being a competitive athlete. Q. Okay. Does it give him difficulty walking? A. Yes. Q. Okay. And he can't stand straight? A. Right. Q. All right. Would you say that is a substantial problem for a child such as Demetrios? A. I think he's going to get better with time. I think he's going to be able to do most of the things he wants to do. Q. But at the present time he's unable to do things he wants to do; is that correct? A. I'm sure that's true . . . . Demetrios was last examined by his pediatric neurologist, Dr. Shanks, on October 18, 2001. Dr. Shanks reported the results of that evaluation, as follows: . . . [Demetrios] has always had a tendency to walk up on his toes since he began walking at approximately 14 months of age. It has not progressed over time. He may be a little tighter in the right than the left and he did go through physical therapy during earlier years. * * * On physical examination, height 105 cm (10th to 25th %); weight 22 kg (75th to 90th %); head circumference 51 cm (50th %). Generally, he is a well-appearing, alert youngster who is generally cooperative. There are no cranial or carotid bruits noted. Neck is supple with full range of motion. He has full primary dentition. There are no chest deformities other than a well-healed scar on his left infrascapular region inside. Abdomen is mildly obese. Extremities have full range of motion with the exception of ankles that have slight restriction in dorsiflexion, right slightly more so than the left, and there is a little bit of tightness in hip adductors. There are no asymmetries of his extremities. Back is without midline lesions. He has two hyperpigmented macular lesions, one of his abdomen and one on his back. NEUROLOGIC EXAM: Speech is fluent but mostly just one to two-word utterances. He does follow simple commands readily. Cranial nerves pupils equal, round and reactive to light; discs are sharp with normal appearing vessels. Extraocular movements are full and conjugate. Facial muscle movements full and asymmetric. Hearing is normal to low-level stimulation bilaterally. Palate elevates symmetrically; sternomastoids are strong and tongue is midline. Motor exam shows normal tone with the exception of his distal lower extremities and a possible slight spastic catch in his hip adductors. Upper extremity tone feels relatively normal. Deep tendon reflexes are 2+ in the upper extremities, 3- 4+ lower extremities with crossed adductors. Ankle jerks are 1+ and toes are upgoing bilaterally, more strongly on the right than the left. With gait, he does have a tendency to get up on his toes slightly but is very functionally mobile. Sensory exam is intact to touch, cold and vibration. He has no cerebellar signs or adventitial movements. IMPRESSION: Likely mild spastic diplegia with overall relatively good prognosis for functional capabilities. He also seems to have significant cognitive delays . . . . Considering the proof, it must be resolved that Petitioner has failed to demonstrate, more likely than not, that Demetrios is permanently and substantially mentally and physically impaired.1 Notably, Doctors Duchowny and Shanks share strikingly similar views regarding the characterization of Demetrios' physical presentation, and concur that his physical impairment can best be described as mild. With regard to Demetrios' mental impairment, Dr. Duchowny was of the view that Demetrios was developmentally delayed, but would likely improve, and that his impairment could best be described as mild to moderate. In contrast, Dr. Shank's was of the view that Demetrios "seems to have significant cognative delays"; but did not otherwise characterize Demetrios' impairment. Stated otherwise, Dr. Shank's did not express an opinion as to whether Demetrios' mental impairment could best be described as mild, moderate, or severe, and expressed no opinion as to whether Demetrios' impairment was or was not likely to improve.
The Issue Whether Shannon Gillis has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.
Findings Of Fact 1. Shannon Gillis (Shannon) is the natural daughter of Robert Gillis and Josephine Gillis. She was born on January 1, 1991, at Mount Sinai Medical Center, Miami Beach, Florida, and her birth weight was in excess of 2500 grams. 3 2. The physician delivering obstetrical services during the birth of Shannon was Ellen Lebow, D.O., 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. 3. Shannon Gillis was delivered vaginally, and the extraction was quite difficult. She suffered a fractured right humerus (an arm bone) and a right Erb’s palsy, related directly to an injury to the right brachial plexus she suffered during the course of delivery. Shannon had an orthopedic consultation within the first few days of life, and her arm was casted until six weeks of age. 4. The brachial plexus injury Shannon suffered during the course of delivery was caused by a stretching of the brachial plexus nerve. The brachial plexus nerve network extends from the lower part of the neck and provides nerve distribution to the arm, forearm and hands. The brachial plexus is not, however, a part of the brain or spinal cord and, consequently, an injury to the brachial plexus is not an injury to the brain or spinal cord. Moreover, the physical impairment from which she suffers, while permanent, is not substantial in nature, and Shannon suffers no mental impairment.
Conclusions For Petitioner: Mark Greenberg, Esquire Stephen N. Zack, Esquire Suite 2800, International Place 100 Southeast Second Street Miami, Florida 33131 For Respondent: W. Douglas Moody, Jr., Esquire Taylor, Brion, Buker & Greene Suite 250 225 South Adams Street Tallahassee, Florida 32302-3189 For Intervenor, Scott Lundeen, Esquire Ellen Lebow, George, Hartz, Lundeen, D.O.: Flagg & Fulmer 4800 LeJune Road Coral Gables, Florida 33146 For Intervenor, John D. Kelner, Esquire Mount Sinai 1200 Courthouse Tower Medical Center 44 West Flagler Street of Greater Miami, Florida 33130 Miami, Inc.: For Intervenors, Ilisa Hoffman, Esquire Charles Stephens, Lynn, Klein, Goldsmith, & McNicholas M.D. and Craig One Datran Center, Suite 1500 Woodard, M.D.: 9100 South Dadeland Boulevard Miami, Florida 33156
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 one copy of a notice of appeal with the Agency Clerk Of The Division Of Administrative Hearings and a_ second copy, accompanied by filing fees prescribed by law, with the District Court Of Appeal, First District, or with the District Court Of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 10
Findings Of Fact Bentley Bragg was born on May 9, 2013, at Winnie Palmer Hospital located in Orlando, Florida. Bentley weighed 4,233 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Bentley. In a medical report dated July 23, 2015, Dr. Willis opined as follows: Delivery was complicated by a shoulder dystocia, resulting in about a one minute delay in delivery. The baby was eventually delivered after extension of an episiotomy and rotation of the posterior arm. Birth weight was 4,233 grams (9 lbs 5 oz’s). This would be large-for-gestational age (LGA). Apgar scores were 3/8. Bag and mask ventilation was given for about 80 seconds. The baby had no movement of the left arm. Left brachial plexus injury was diagnosed. Newborn exam and hospital course were otherwise benign. The baby had significant bruising and was evaluated by Hematology and monitored for bilirubin levels. There were not EEG’s or imaging studies of the brain. In summary, delivery of the LGA baby was complicated by a shoulder dystocia which resulted in a brachial plexus injury. Hospital and medical records did not suggest oxygen deprivation or brain injury. MRI of the cervical spine after hospital discharge was reported as a “normal cervical spine.” There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Bentley and to review his medical records. Dr. Sigurdardottir examined Bentley on September 2, 2015. In a medical report regarding her independent medical examination of Bentley, Dr. Sigurdardottir opined as follows: Overall assessment, here we have a 2-year 4- month-old male with a severe upper brachial plexus injury, which has required muscle and tendon transfer surgery because of an increasing deformity of shoulder and shoulder contraction. He does have fairly sustained functional abilities, although not complete. Bentley also has an expressive language delay that is not felt to relate to his physical brachial plexus injury which definitely is birth related. Mild depression at birth with an Apgar score of 3 did show prompt recovery and a cord pH that was within normal limits. Result as to question 1: The child is found to have a permanent physical impairment, but no obvious mental impairment. His mild expressive language delay does not substantiate a profound mental impairment. * * * Due to the fact that Bentley’s disability only relates to physical impairment and no clear mental impairment related to birth- related neurologic injury can be found, I am not recommending Bentley to be included into the Neurologic Injury Compensation Association (NICA) program and would be happy to answer additional questions. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain or spinal cord during labor, delivery or the immediate post-delivery period. Dr. Willis’ opinion is credited. There have been no expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Bentley is not found to have a substantial mental impairment. Dr. Sigurdardottir’s opinion is credited. Moreover, in response to an interrogatory served to Petitioner by NICA, Petitioner acknowledged that she does not contend that Bentley suffers from a permanent and substantial mental impairment.
Findings Of Fact Jamerious was born on January 1, 2014, at Winnie Palmer Hospital in Orlando, Florida. Attached to Respondent’s Motion for Summary Final Order is a certification of medical records from Dean Richey, Registered Health Information Administrator for Orlando Health, Inc., d/b/a Winnie Palmer Hospital. Said certification avers that the copies of the records attached to the certificate are true and accurate copies of the original records from Winnie Palmer Hospital related to Jamerious and Petitioner Terrese Franklin. The Discharge Summary from Winnie Palmer Hospital, dated February 14, 2014, documents that Jamerious’s birth weight was 1,152 grams. A Coding Summary from Winnie Palmer Hospital, concerning Petitioner Terrese Franklin, dated February 19, 2014, documents “Neonate bwt 1000-1249g w resp dist synd/oth maj resp or maj anom.” A review of the file reveals that no contrary evidence was presented to dispute the medical records from Winnie Palmer Hospital showing that Jamerious’s birth weight was less than 2,500 grams.
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.
Findings Of Fact Christian was born on February 24, 2009, at Mease Countryside located in Safety Harbor, Florida. Christian, who was born a twin, weighed in excess of 2,000 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Christian. In a medical report dated August 7, 2014, Dr. Willis opined as follows: Christine [sic] was delivered by Cesarean section for twins. Christine was designated as fetus A in the hospital records. Birth weight was 2,395 grams. Apgar scores were 9/9. The baby had mild respiratory distress and required nasal oxygen for <24 hours and then weaned to room air. NICU admission exam noted the baby to be alert and active with normal muscle tone. After weaning off oxygen, the baby remained stable until about one week of age when fever and seizure activity developed. E. coli meningitis was diagnosed. The baby subsequently developed hydrocephalus as a result of the meningitis. The child was subsequently diagnosed with cerebral palsy and developmental delay. Based on limited medical records, there does not apparent [sic] to be any 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. The baby had mild respiratory distress for less than 24 hours. The baby was stable until seizures developed at about one week age. Bacterial meningitis was diagnosed and resulted in hydrocephalus and brain injury. Dr. Willis reaffirmed his opinion in an affidavit dated April 27, 2014. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Christian and to review his medical records. Dr. Duchowny examined Christian on January 14, 2015. In an affidavit dated April 29, 2015, regarding his independent medical examination of Christian, Dr. Duchowny opined as follows: In summary, Christian’s evaluation today reveals findings consistent with a substantial mental and physical impairment. Christian has a right hemiparesis with greater involvement of the upper extremity, absence of meaningful communication skills, repetitive self-stimulatory behavior, cortical visual impairment, microcephaly, and static hydrocephalus with a functioning left ventriculoperitoneal shunt. His developmental level is between 9-12 months of age which is significantly delayed. A review of Christian’s medical records confirms his mother’s impression of meningitis. Christian was diagnosed with Citrobacter meningitis in the Newborn Nursery. The records indicate that Christian was born at 33 weeks gestation and weighed 5 pounds 4 ounces at birth and had Apgar scores of 9 & 9 at 1 and 5 minutes. He was delivered by non-emergent repeat elective cesarean section. Citrobacter meningitis was confirmed on cerebrospinal fluid examination on March 3, 2009. Gram negative rods were noted in the fluid which revealed a protein of 248 with 2830 white blood cells. He was treated aggressively with antibiotics but developed obstructive hydrocephalus necessitating his ventriculoperitoneal shunting. Although Christian has a permanent and substantial mental and motor impairment, the etiology would appear to be postnatal- acquired Citrobacter meningitis and hydrocephalus. The medical records do not substantiate that Christian’s neurologic impairment resulted from either oxygen deprivation or mechanical injury in the course of labor or delivery. For this reason, I am not recommending Christian for inclusion within the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor, delivery, or the immediate post- delivery period. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that although Christian’s examination reveals findings consistent with a substantial mental and motor impairment, his neurological problems did not result from either oxygen deprivation or mechanical injury acquired in the course of labor or delivery. Dr. Duchowny’s opinion is credited.
