The Issue At issue in this proceeding is whether Cortina Fountain, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Ann Williams' prenatal course and the birth of Cortina Fountain Due to a paucity of proof, little is known of Ann Williams' prenatal care except that at or about 6:10 a.m., August 3, 1992, she was seen at Waterman Medical Center, Eustis, Florida, for a prenatal progress check. 1/ At the time, Ms. Williams complained of contractions at 15 minute intervals, dilation was noted to be "1-2, thick, high;" and fetal heart tone was noted to be in the 130 beat per minute range. The midwife was called, and upon receipt of her orders Ms. Williams was discharged home with instructions "to call Tavares Clinic today to be seen." At 12:15 p.m. that day, Ms. Williams, while at home, precipitously delivered her child, Cortina Fountain (Cortina), in the toilet. Emergency medical services were called, and Ms. Williams and Cortina were taken by ambulance to Waterman Medical Center, where they were admitted at 1:10 p.m. that day. 2/ Upon admission to the hospital, physical examination revealed Cortina to be a viable female infant, with normal activity and no overt abnormalities. No evidence of trauma, cyanosis or poor oxygenation function, or cardiac function was observed, and Cortina exhibited all normal neurologic reflexes, such as Moro, suck, and grasp. Moreover, no abnormality of the anterior fontanel of the infant was noted. Cortina remained in the hospital until August 5, 1992, when she was discharged to the care of her mother. During her two day residence in the hospital, Cortina did not evidence any abnormalities. Rather, she fed well and gained weight, did not demonstrate any bruising or trauma, and did not demonstrate any neurologic changes or other abnormalities. Cortina's subsequent development and readmission to the hospital Cortina was readmitted to Waterman Medical Center, through the emergency room, at or about 6:35 p.m., September 11, 1992. At the time, history reflected that her development was apparently uneventful until one or two days prior to admission. During that time, Cortina stopped taking her formula, became progressively lethargic, vomited, and experienced episodes of diarrhea. For the twenty four hour period prior to her admission, Cortina was noted to be febrile. Upon admission, Cortina was noted to be extremely emaciated, having a weight of 4 pounds 3 ounces compared to her birth weight of 5 pounds 12 ounces. She was also noted to be listless, markedly dehydrated, and with bulging anterior fontanelle and a temperature of 104 degrees Farenheit. Testing revealed electrolyte imbalance and metabolic acidosis. Such symptomology was consistent with central nervous system infection, and Cortina was started on oxygen, intravenous fluids, including dextrose, and Rocephin. At or about 10:35 p.m., September 11, 1992, she was transferred by helicopter to the neonatal intensive care unit at Florida Hospital Medical Center (Florida Hospital) in Orlando, Florida. Cortina remained at Florida Hospital until October 2, 1992, when she was discharged to the care of her mother. Her course at Florida Hospital was adequately set forth in her discharge summary as follows: PHYSICAL EXAMINATION: Physical examination on arrival at Florida Hospital Medical Center, pediatric intensive care unit, revealed a marasmic, somewhat listless, black female who was markedly dehydrated. Temperature was 103 degrees Fahrenheit. Heart rate ranged between 170 and 190, and blood pressure was 83/53. She was intubated, and the anterior fontanelle was somewhat sunken at this time. IMPRESSION ON ADMISSION: FEVER WITH A POSSIBILITY OF SEPSIS. BORDERLINE HYPOGLYCEMIA. SEVERE DEHYDRATION. MARASMUS. RULE OUT A METABOLIC DISORDER OR A VIRAL ENCEPHALOPATHY. HOSPITAL COURSE: Upon admission, a central line was placed, and patient was placed on assisted ventilation. The fontanelle was initially sunken but after adequate hydration was noted to be bulging during the night. A computerized axial tomo- graphy scan of the brain was obtained on an emergency basis, and this revealed diffuse brain swelling. The patient was started on hyperventilation with the addition of intravenous mannitol. Additional laboratory data that was obtained included a liver profile which showed her albumin to be 2.0, SGPT was 52, SGOT 39, GGT 350, serum ammonia 161 which is increased, serum lactase was 6.5 which is also increased. Reticulocyte count was 3.7 [percent] and hemoglobin and hematocrit were decreased to 5.8 and 18.0 respectively. Endotracheal tube aspirate that was sent for respiratory syncytial virus came back negative. Hospital course will be further discussed on the problem list. PROBLEM [NO.] 1: ENCEPHALOPATHY WITH BRAIN SWELLING AND SEIZURE DISORDER. After the initial presentation and the finding of cerebral swelling, the patient was started on hyperventilation with intravenous mannitol. She was noted to have fisting of the hands and occasional jerky movements that were associated with bradycardia, and an electroencephalogram that was done revealed seizure activity. Hence, she was started on intravenous phenobarbital which was slowly increased over 24 hours until clinical control of the seizures was obtained. Subsequent electroencephalograms that were done on September 14, 1992, still showed frequent multifocal epileptiform discharges, although there was no clinical evidence of seizure disorder. In light of this, her dose of phenobarbital was increased after an initial minibolus. A pheno- barbital level in the upper 20s to lower 30s was maintained with a dose of phenobarbital 6 mg b.i.d. Repeat electroencephalograms done on September 17, 1992, and September 25, 1992, were abnormal, as manifested by diffuse sharp and slow wave discharges in the waking state which got accentuated by sleep. . . . on September 12, 1992, the patient was also started on intravenous acyclovir because of the possibility of herpes encephalitis. A lumbar puncture was not repeated for further cerebrospinal fluid studies because of the presence of the cerebral swelling, but an attempt to obtain cerebrospinal fluid via a subdural tap was futile. The patient was slowly weaned off the ventilator and finally extubated on September 17, 1992. The mannitol was weaned off over the next four days and discontinued on September 20, 1992. The Rocephin was continued for a total of 10 days and the acyclovir for a total of 14 days. At the time of discharge and for at least one week prior to discharge, she was able to track very well, was feeding well, and had essentially a normal neurologic examination. Auditory brain stem evoked response studies that were done revealed normal hearing in both ears. A computerized axial tomography scan of the brain that was done on September 22, 1992, showed diffuse, decreased density within the cerebral hemispheres bilaterally with preservation of the basal ganglia and thalamus. There was interval volume loss in the cerebral hemispheres which was felt to be consistent with resolution of the cerebral edema. PROBLEM [NO.] 2: DEHYDRATION AND ELECTROLYTE ANOMALIES. On the day of admission, the patient had a BUN of 38 with a creatinine of 1.2 and a glucose of 60. She was placed on D10 one-quarter normal saline and the dehydration was corrected slowly over 48 hours. Over the ensuing week, she developed anasarca, mostly due to hypoalbuminemic state, but this resolved at least one to two weeks prior to discharge. A Chem-21 that was done on September 29, 1992, showed a sodium of 137, potassium 5.2, chloride 106, CO2 20.6, glucose 96, creatinine 0.5, BUN 13. The rest of the Chem-21 profile was essentially with normal limits. Specifically, the albumin had risen to 3.5 on September 29, 1992. PROBLEM [NO.] 3: ANEMIA. At the time of her admission, the patient's hematrocrit was 22 [percent] but this dropped to 18 [percent] after she was rehydrated. She was transfused on two occasions, and after this she maintained a reasonable hematocrit until the time of discharge. A complete blood count that was done on September 29, 1992, showed a white blood cell count of 13,800, hemoglobin 14.0, hematocrit 40.8, platelet count 151,000. There were 41 segs, 1 band, 43 lymphs, 13 monos and 2 eosinophils. * * * PROBLEM [NO.] 4: HEPATOPATHY WITH HYPERLACTASEMIA AND HYPERAMMONEMIA. It was felt that the patient's hepatopathy and abnormal laboratory data related to the liver function was probably due to a viral or metabolic problem. Urine for amino acid screen was essen- tially negative, and urine for organic acid screen came back showing an abnormal peak with octeny- lsuccinic acid. It was felt by Dr. McReynolds that this is an emulsifier that is used in certain infant formulas, and repeat testing for this purpose has been scheduled on an outpatient basis. The metabolic studies that are pending at the time of discharge include blood amino acid profile and also serum isocarnitine profile. PROBLEM [NO.] 5: MALNUTRITION. Patient looked significant marasmic on the date of admission and had an admission weight of 4 lb. 3 oz. At the time of discharge, she was toler- ating full-strength Pregestimil and was gaining weight daily. Her discharge weight is 6 lb. 7 oz. (2.9 kg). Her head circumference was 35.5 cm at the time of discharge. PROBLEM [NO.] 6: INFECTIOUS DISEASE. In spite of the septic workup, there was no identifiable causative organism, although a viral etiology could not be totally ruled out. Blood for herpes simplex IgM titers was un- revealing. In spite of the negative studies, the patient was given the benefit of the doubt and treated with meningitic doses of Rocephin for 10 days and meningitic doses of acyclovir for 14 days. . . . Cortina's discharge diagnoses were "severe encephalopathy with cerebral edema and epilepticus," "ongoing seizure disorder," and "anemia with abnormal peripheral smear." The cause and severity of Cortina's neurologic injury Although the proof demonstrates that Cortina suffered some neurologic impairment, as a consequence of events at or about the time of her readmission to the hospital on September 11, 1992, it is quite unrevealing as to the severity of that impairment. Consequently, the proof fails to support the conclusion that any neurologic injury Cortina suffered rendered her permanently and substantially mentally and physically impaired. Regarding the timing and cause of Cortina's neurologic injury, the proof is compelling that, notwithstanding the circumstances of her delivery, Cortina was, at birth, a normal, vigorous infant, with no apparent abnormalities. Her development thereafter was likewise uneventful, until one to two days prior to September 11, 1992, when she was readmitted to the hospital, at approximately five weeks of age. In the opinion of Lance Wyble, M.D., a board certified neonatologist, Cortina's presentation on September 11, 1992, was most consistent with a viral etiology which, given her history, had its genesis within the 24 to 48 hour period immediately preceding her admission on September 11, 1992. It was further Dr. Wyble's opinion that such was the most likely cause of any neurologic injury Cortina suffered, and that any injury she suffered was wholly unrelated to the birthing process or her delivery. Of a similar opinion was Charles Kalstone, M.D., a board certified obstetrician. The opinions of Doctors Wyble and Kalstone are grossly consistent with the proof of record regarding Cortina's birth and her subsequent readmission to the hospital on September 11, 1992, and are credited.
Findings Of Fact On March 31, 2021, Petitioners filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. for benefits pursuant to sections 766.301-766.316, otherwise known as the Plan. The baby was born on May 5, 2020, at North Florida Regional Medical Center (Hospital), located in Gainesville, Florida. The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records provided by NICA in response to the Petition. In the instant case, NICA has retained Donald C. Willis, M.D., as its medical expert specializing in maternal-fetal medicine. Dr. Willis’s medical report was filed with the Division of Administrative Hearings (DOAH) on June 4, 2021. Upon examination of the pertinent medical records, Dr. Willis opined: In summary, labor was complicated by a non- reassuring FHR pattern prior to birth. However, the baby was not depressed at birth with Apgar scores of 7/8. Umbilical cord blood pH was >7.0 and base excess was <12. Resuscitation included stimulation and CPAP supplemental oxygen. The baby was transferred from delivery to the Well Baby Nursery. Seizure activity was observed on DOL 2, but may have been present since birth according to mother’s observations. EEG was consistent with encephalopathy and MRI findings concerning for hypoxic brain injury. Multi-system organ failures are generally seen with birth-related hypoxic injuries. However, this child did not suffer multi-system organ failures, suggesting the brain injury was not related [or] due to oxygen deprivation at birth. There was no apparent obstetrical event that resulted in brain injury due to loss of oxygen or mechanical trauma during labor, delivery or the immediate post-delivery period. Additionally, NICA retained Raj D. Sheth, M.D., as its medical expert specializing in Pediatric Neurology. Dr. Sheth’s medical report was also filed with DOAH on June 4, 2021. Upon examination of the pertinent medical records and performance of an independent medical examination, Dr. Sheth opined: In SUMMARY, Joseph’s neurological examination reflected mild delays in gross motor with scooting with left leg underneath him. He had no evidence of spasticity. His history and neonatal records indicated seizures and evidence of hypoxic ischemic encephalopathy, although the cause does not appear to be related to oxygen deprivation or mechanical injury occurring during labor, delivery or immediate post-delivery period. At the time of this examination and evaluation Joseph’s case indicates that he does not have substantial and permanent mental impairment and does not have substantial physical impairment. As such, Joseph Gibson would not qualify for compensation under the NICA program. The medical reports of Dr. Willis and Dr. Sheth are the only evidence of record relating to the issue of whether the subject claim is compensable as defined by the statute. The Petition, along with the unrebutted medical reports of Dr. Willis and Dr. Sheth, establishes that there are no genuine issues of material fact regarding the compensability of this claim.
Other Judicial Opinions Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).
Findings Of Fact Ky'Mon Travis was delivered on July 12, 2012, at Jackson Hospital in Marianna, Florida. Ky'Mon weighed 4,735 grams at delivery. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Ky'Mon. In an affidavit dated September 16, 2014, Dr. Willis opined in pertinent part: I have reviewed the medical records for the above individual. The mother, Kikilia Snell was a 35 year old G3 P2002 with a history of Diabetes managed with diet. Maternal weight was > 300 lbs. Diabetes was poorly controlled. Her HbA1C was significantly elevated at 8.7% at her initial prenatal visit. Normal would be < 6%. HbA1C is a reflection of blood glucose levels over the past several weeks. I did not see any medical records concerning further management of the Diabetes during pregnancy. The mother presented to her physician at 38 weeks gestational age with the complaint of not feeling the baby move for one day. She was sent to the hospital for delivery. Hydramnios was diagnosed at time of rupture of the membranes. The fetal heart rate (FHR) monitor during labor was reviewed. The FHR tracing was abnormal on admission to the hospital and progressively worsened during labor. The initial FHR pattern showed a normal baseline heart rate, but markedly reduced variability. Variable FHR decelerations began about three hours after admission with FHR variability essentially absent. The abnormal FHR pattern progressed to terminal bradycardia with a heart rate of about 40 bpm when the monitor was removed for delivery. Emergency Cesarean section was done for the abnormal FHR pattern. Birth weight was 4,735 grams. There was no heart rate detected at birth. Apgar scores were 0/0. Resuscitation was unsuccessful and death was pronounced. A heart rate was never obtained after birth or during resuscitation. Autopsy found a thin subdural hemorrhage and enlarged fetal organs. In summary, the mother was a poorly controlled diabetic that presented at 38 weeks with no fetal movement for one day. FHR monitoring during labor was consistent with severe fetal distress. Emergency Cesarean section delivery resulted in a still birth. There was no heart rate at delivery and no heart rate was obtained during resuscitation. Resuscitation was stopped and the baby pronounced dead shortly after birth. There was an apparent obstetrical [sic] even that resulted in loss of oxygen to the fetus during labor and delivery. The oxygen deprivation resulted in demise stillbirth. The baby could not be resuscitated and pronounced dead shortly after birth. This was not a live birth. A review of the file in this case reveals that there has been no expert opinion filed that is contrary to the opinion of Dr. Willis. The opinion of Dr. Willis that there was an apparent obstetrical event that resulted in loss of oxygen to the fetus during labor and delivery which resulted in demise stillbirth, that the baby could not be resuscitated and was pronounced dead shortly after birth, is credited.
Findings Of Fact Harmony Donaldson was born on February 22, 2016, at Bethesda Memorial Hospital in Boynton Beach, Florida. Harmony weighed in excess of 2,500 grams at birth. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Harmony’s medical records. In an affidavit dated September 16, 2016, Dr. Willis made the following findings and expressed the following opinion: In summary, this child was delivered by what appears to be an uncomplicated vaginal birth. The baby was not depressed at birth. Apgar scores were 9/9. Mother and baby were stated to be stable in the delivery room and the baby was taken to the well nursery. However, the baby did suffer an intracranial hemorrhage, which became clinically apparent about 8 hours after birth. The brain does not appear to be a birth related hypoxic or traumatic event. 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 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 Harmony. Dr. Duchowny reviewed Harmony’s medical records and performed an independent medical examination on her on August 17, 2016. Dr. Duchowny made the following findings and summarized his evaluation as follows: IN SUMMARY Harmony’s neurological examination today reveals no specific focal or lateralizing findings. She appeared cognitively intact and her motor development is proceeding at age level. There is no evidence of oromotor dysfunction and her clavicular fracture has obviously healed well. I have not yet had an opportunity to review medical records and I will issue a final report once the review process is complete. After reviewing Harmony’s medical records, Dr. Duchowny wrote an addendum to his earlier report in which he stated: ADDENDUM: Review of medical records reveals that Harmony was born at term and had 1 and 5 minute Apgar scores of 9 and 9. Desaturations thought to be seizures (accompanied by right arm and leg jerking) occurred at 8 hours of age. Her PTT was slightly prolonged but INR and fibrinogen was normal, and there was no evidence clinically of DIC. Factors 7, 10 and 13 levels were normal. A head ultrasound on March 5, 2016 revealed haziness of the thalami which was not observed on an MRI scan after the transfer to NCH. This later study did however reveal bilateral parietal intraparenchymal hemorrhage, hemorrhage in the frontal gray-white interface and punctate hemorrhage in the sylvian aqueduct. The basal ganglia were normal; MRA and MRV were likewise WNL. Based on review of the medical records and the neurological evaluation, I do not believe that Harmony has a substantial mental or motor impairment, and did not suffer from substantial intrapartum oxygen deprivation or mechanical injury. I am therefore not recommending Harmony for inclusion in the NICA program. Dr. Duchowny stated his ultimate opinion in an affidavit dated September 7, 2016, in which he opined, “I do not believe that HARMONY has a substantial mental or motor impairment and did not suffer from substantial intrapartum oxygen deprivation or mechanical injury.” Dr. Duchowny’s opinion that Harmony does not have a substantial mental or motor impairment and did not suffer from substantial intrapartum oxygen deprivation or mechanical injury 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 Harmony does not have a substantial mental or motor impairment.
Findings Of Fact Adalynn was born on April 24, 2018, at Sarasota Memorial Hospital, located in Sarasota County, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Adalynn. In a medical report dated September 5, 2019, Dr. Willis summarized his findings and opined in pertinent part as follows: In summary, labor was complicated by FHR decelerations requiring Cesarean delivery. Umbilical artery cord pH was 7.12 with a base excess of -7.8, suggesting a significant oxygen deprivation did not occur during labor or delivery. Apgar scores were 3/9. The baby was stabilized in the delivery room on room air and transferred to the MBU. The baby apparently remained stable until about 7 to 12 hours after birth when the baby was noted to be fussy, poor feeding and with increased muscle tone. Seizure activity was noted on the EEG and MRI was consistent with HIE. There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery or the immediate post-delivery period that would have resulted in brain injury. Brain injury did occur as some time after birth, as documented by EEG and MRI. However, medical records do not suggest the brain injury was birth related. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a Board- certified pediatric neurologist, to examine Adalynn and to review her medical records. Dr. Duchowny examined Adalynn on September 24, 2019. In a medical report dated September 27, 2019, Dr. Duchowny summarized his examination of Adalynn and opined in pertinent part as follows: In SUMMARY, Adalynn’s neurological examination reveals global delay. She has four-limb static hypotonia and dynamic hypertonia with spasticity, hyperreflexia, left exotropia, microcephaly, absent communication, pseudobulbar affect and an in- dwelling gastrostomy. There is a history of seizures that are presently controlled on two anti-seizure medication[s]. A review of medical records further reveals that Adalynn was the product of a term pregnancy and delivery by urgent caesarian section. Her Apgar scores were 3 and 9 at 1 and 5 minutes. Venous umbilical cord blood gases were pH of 7.21 and base excess of - 7.4. She did not require resuscitation and was stable on room air. Liver function tests were elevated but there were no other indications of systemic organ involvement. Seizures commenced at 12 hours of age and were treated with phenobarbital and phytoin. Increased lactic acid was noted. Adalynn was noted to be hypertonic at birth. MR imaging performed on April 27th (DOL#3) revealed increased signal in the bi-occiptal regions and cerebral peducles. A subsequent MRI performed on May 3rd demonstrated increased signal in sensorimotor cortex, centrum semiovale, symmetric globus pallidus, putamen and occipital cortex as well as the pons and cerebral peduncles. MR spectroscopy revealed widespread signal increases in hemispheric grey and white matter. Based on the imaging findings, microcephaly, developmental delay and increased lactate, metabolic and genetic studies were undertaken and revealed multiple abnormalities. Although a definitive diagnosis has not yet been obtained, the genetic abnormalities in Adalynn’s mitochondrial genome are the most likely explanation for her neurological disability, imaging and laboratory values and clinical presentation. Based on today’s evaluation and medical record review, I am not recommending that Adalynn be considered for inclusion in the NICA program. On February 14, 2020, Dr. Duchowny provided an addendum to his prior opinion, following the review of additional medical records provided by Petitioners, which included the results of genetic testing. Dr. Duchowny opined that this additional information “further supports the original recommendation that Adalynn should not be considered for inclusion into NICA.” 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 to Adalynn's brain during labor, delivery, and the post-delivery period which resulted in brain injury. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that Adalynn should not be considered for inclusion in the NICA program. Dr. Duchowny’s opinion is credited. Dr. Willis reaffirmed his opinions in an affidavit, dated March 20, 2020. Dr. Duchowny reaffirmed his opinions in an affidavit dated April 17, 2020.
The Issue The issue in this case is whether Kayla Mackenzie Stowers sustained a birth-related neurological injury.
Findings Of Fact Tatiana C. Stowers and Robert M. Stowers are the natural parents of Kayla Mackenzie Stowers, a minor. Kayla was born a live infant on October 12, 2009, at Orange Park Medical Center, a licensed hospital located in Orange Park Florida. Eric J. Edelenbos, M.D., provided obstetric services at the birth of Kayla, and at all times material to this proceeding, was a “participating physician” as defined in section 766.302(7), Florida Statutes. Kayla weighed 3,078 grams at birth. On October 12, 2009, Mrs. Stowers, who was at full term, was admitted to Orange Park Medical Center at 6:28 a.m., for induction of labor. Her prenatal course had been uneventful. The baby?s baseline fetal heart rate on admission was 150 bpm, and the fetal heart rate monitor did not show any fetal distress during labor or delivery. At 8:05 a.m., Pitocin was administered to augment Mrs. Stowers? labor. During her labor, the dosage of Pitocin was increased. At 1:48 p.m., Dr. Edelenbos ruptured Mrs. Stowers? membranes, and the medical records indicate that the amniotic fluid was clear and odorless. At 9:40 p.m., Mrs. Stowers delivered Kayla by normal spontaneous vaginal delivery. At birth, Kayla?s mouth and nose were suctioned, but no other resuscitative measures were needed or administered in the delivery room. No complications were noted at her birth, and she was in stable condition. Kayla?s Apgar scores at one and five minutes were eight and nine respectively. At 10:30 p.m., Kayla was noted to have respiratory distress. Her left nasal passage was tight and her right nare was patent. She was transferred to the hospital?s neonatal intensive care unit. On October 13, 2009, at 12:05 a.m., Kayla was placed on a nasal cannula and an IV was started. Antibiotics were given at 12:20 p.m., and Neo-Synephrine was administered for nasal stuffiness. By 3:45 p.m., on October 13, 2009, Kayla had increased retractions and grunting and was placed on neonatal CPAP at 100% oxygen. During the evening of October 13, 2009, Kayla experienced two apneic episodes with jerking movements of her arms and leg. On October 14, 2009, Kayla was on CPAP for four hours and then intubated due to the apneic episodes the previous evening. A chest X-ray taken of Kayla on October 13, 2009, was within normal limits. On October 14, 2009, Kayla had a normal neonatal head ultrasound. On October 15, 2009, it was noted that Kayla had not experienced any abnormal movements for 24 hours. At 6:00 p.m., on October 17, 2009, Kayla experienced periodic episodes of jerking of hands and legs, in addition to the arching of her back. On October 18, 2009, Kayla had jerky movements of all extremities, including her eyes rolling back. The movements stopped with restraint, but were not typical seizure-like movements. On October 19, 2009, due to suspected seizures, respiratory distress, and suspected sepsis, Kayla was transferred from Orange Park Medical Center to Wolfson Children?s Hospital for further workup. An EEG performed on Kayla on October 20, 2009, was within normal limits. A follow-up video EEG on November 4, 2009, was normal. An MRI was done on Kayla on October 21, 2009, and the followings findings were reported: Moderate image degradation secondary to patient?s motions. Normal variant cavum septus pellucidum and cavas vergae. Prominent extra-axial fluid at the anterior aspect of both middle fossae, and with „apparent? suboptimal opoerculation of the Sylvian fissures ? clinical signicance. Followup US may be helpful for further evaluation. Remainder of the examination appears otherwise unremarkable. Kayla?s attending physician at Wolfson Children?s Hospital indicated in her discharge summary dated November 10, 2009, that the MRI was normal. On December 9, 2009, Kayla was taken to the emergency room at Wolfson Children?s Hospital. While in the emergency room, Kayla experienced apneic episodes that required intubation. She was admitted to Wolfson Children?s Hospital. While admitted to Wolfson Children's Hospital, Kayla had abnormal movements that were nonspecific and not due to seizures. Kayla was discharged on December 22, 2009. In his discharge summary, Clifford David, M.D., summarized the hospital course as it related to the seizure-like activities. Neurology-wise, the patient was again worked up for this possible seizure-like activity, which was possibly due to reflux. This workup included another EEG and MRI. The CT of the head that was done on admission was reported as positive for a remote area of ischemia involving the basal ganglia but repeat MRI on admission showed no area of acute ischemia. The patient was witnessed to have back arching and head extension with some clenching of the arms and chest, again unsure whether this was seizure versus reflux versus obstructive airway. Neurology examined the patient and EEG showed no epileptiform discharges although was limited secondary to movement artifact. The repeat MRI referenced in Dr. David?s discharge summary was done on December 12, 2009. The findings of this MRI indicated that there was no acute ischemic event. Respondent retained Donald C. Willis, M.D., to review the medical records for Kayla. Dr. Willis reviewed the fetal heart rates of Kayla as recorded by the fetal heart rate monitor during labor. It is Dr. Willis? opinion that the fetal heart rate monitor did not show any fetal distress during labor. On the issue of whether there was an obstetrical event which resulted in loss of oxygen or mechanical trauma to Kayla during labor or delivery, Dr. Willis opined: In summary, there was no fetal distress during labor. The baby was not in distress at birth. Apgar scores were 8/9. Immediately after delivery, the baby was placed on the mother?s abdomen for bonding. The newborn course was complicated by a complex history of apnea episodes, respiratory distress and possible seizures. EEG?s and MRI studies were normal. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby?s brain during labor or delivery. Raymond J. Fernandez, M.D., a pediatric neurologist, reviewed Kayla?s medical records and examined Kayla on April 30, 2013. He opined as follows: There is ample evidence for substantial mental and motor impairment, but this is of unknown etiology. There is no evidence in the medical record for oxygen deprivation or mechanical injury of brain or spinal cord during labor, delivery, or the immediate post delivery period that explains Kayla?s substantial and global impairment. Petitioners have presented no expert opinions that refute the opinions of Dr. Willis and Dr. Fernandez. The opinions of Dr. Willis and Dr. Fernandez that Kayla?s mental and motor impairments are not due to oxygen deprivation or mechanical injury of the brain or spinal cord during labor, delivery, or the immediate post delivery period are credited.
Findings Of Fact Princess was born on April 27, 2018, at St. Mary’s Medical Center in West Palm Beach, Florida. Princess was a single gestation and her weight at birth exceeded 2500 grams. As set forth in greater detail below, the unrefuted evidence establishes that Princess did not sustain a “birth-related neurological injury,” as defined by section 766.302(2). Donald Willis, M.D., a board certified obstetrician specializing in maternal-fetal medicine, was retained by Respondent to review the pertinent medical records of Ms. Saulsberry and Princess and opine as to whether Princess sustained an injury to her brain or spinal cord caused by oxygen deprivation or mechanical injury that occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital. On November 22, 2019, Dr. Willis authored a report that included his findings and opinions. The report provides, in pertinent part, as follows: I have reviewed the medical records, pages 1-1,361, regarding [Princess Smith]. The mother was a 30 year old G4 P3003 with “scant” prenatal care. Medical history was positive [f]or Hypertension, Gestational Diabetes and a drug screen positive for THC. Two prior deliveries were by Cesarean section. She presented to the hospital at 38 6/7 weeks gestational age with uterine contractions and bleeding. Cervical dilation was 3 cm at 70% effaced. Placenta abruption was suspected and repeat Cesarean section was done. Operative not [sic] describes presence of blood clots in the uterine cavity, consistent with placental abruption. Birth weight was 3,095 grams. The newborn was not depressed. Apgar scores were 9/9. No resuscitation was required. Newborn hospital course was benign. The baby was breastfeeding shortly after birth. The child was in Foster Care at some point after birth. Physical Therapy appointments were made for uncoordinated movement, avoiding movement on the left side. At 7-months of age, Developmental delay was noted. In summary, the mother presented at term with placental abruption in labor. Repeat Cesarean section resulted in delivery of a newborn with Apgar scores of 9/9. No resuscitation was required after birth. Newborn hospital course was benign. There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery or the immediate post-delivery period. In his affidavit dated October 2, 2020, Dr. Willis affirmed that the statements and opinions contained in the above-quoted report were true and correct and all within a reasonable degree of medical probability. The undisputed findings and opinions of Dr. Willis are credited. The undersigned finds that Princess did not sustain 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 rendered her permanently and substantially mentally and physically impaired.
Findings Of Fact On July 13, 2011, a "Petition Under Protest" styled "Milvia Najera and Marvin Chavarria, on behalf of and as parents and natural guardians of Marvin Chavarria, a minor v. Florida Birth-Related Neurological Injury Compensation Association," was filed with the Division of Administrative Hearings (DOAH). Pertinent to the pending motions are the allegations of paragraphs 3, 4, 5, 6, and 7 of the petition: * * * Name and Address of Physician The physicians providing obstetrical services who were present at the birth are Resident Lucia Gaitan, M.D. and Attending Samir N. Beydoun, M.D. . . . Description of Disability It is alleged that Marvin Chavarria currently suffers from developmental delay. Time and Place of Birth Jackson Memorial Hospital,[2/] 1611 N.W. 12th Avenue, Miami, FL 33136 on February 5, 2005. Time and Place of Injury Jackson Memorial Hospital, 1611 N.W. 12th Avenue, Miami, FL 33136 on February 5, 2005. Statement of the Facts This claim is not compensable under NICA as Marvin Chavarria's injury does not meet the definition of a birth-related neurological injury as defined in Florida Statute 766.302(2). The reasons for non- compensability are as follows: The child does not have substantial physical and mental impairments as defined by Florida Statutes 766.302(2). * * * The Petition does not allege a lack of notice by the healthcare providers.3/ DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on July 5, 2011; served Dr. Beydoun and Jackson Memorial Hospital, respectively, on July 16, 2011; and served Dr. Gaitan on or about July 21, 2011. Upon appropriate petition and an August 16, 2011 Order, Samir Beydoun, M.D., was granted Intervenor status. On October 13, 2011, after one extension of time in which to do so, NICA filed its response required by section 766.305(4), titled "Notice of Non-Compensability and Request for Evidentiary Hearing." On October 24, 2011, Respondent NICA filed its Motion for Summary Final Order, with supporting affidavits. The thrust of Respondent's motion is that the petition for benefits was filed with DOAH on July 13, 2011, which is more than five years past the birth of the child, Marvin Chavarria, who was born on February 5, 2005. The motion states, "Accordingly, the claim is barred as a matter of law, and cannot qualify for an Award under the NICA Plan. . . . Notwithstanding, the issue of compensability must be addressed." Respondent also submitted, with its Motion for Summary Final Order, two medical affidavits to the effect that the claim is not compensable. On October 24, 2011, Petitioners filed a Notice of Joinder in Respondent's Motion for Summary Final Order. On October 27, 2011, Intervenor Samir Beydoun, M.D., filed a Response in Opposition to Respondent's Motion for Summary Final Order. On October 26, 2011, Intervenor Samir Beydoun, M.D., also filed a Motion for Summary Final Order, asserting that the Administrative Law Judge has jurisdiction to enter a summary final order solely determining that Petitioners' claim is barred by section 766.313, the statute of limitations for NICA claims. On October 28, 2011, Petitioners filed a Response and Objection to Intervenor's [Beydoun's] Motion for Summary Final Order, to which Response and Objection, Intervenor Beydoun filed an unauthorized Reply, on November 8, 2011. By Order of November 18, 2011, a pending Petition to Intervene, filed on October 24, 2011, by Public Health Trust of Miami was granted,4/ and, in an abundance of caution, this new Intervenor was given until November 30, 2011, to file a response to the two pending motions for summary final order. Public Health Trust of Miami filed no timely response(s), but joined in Dr. Beydoun's Motion by an untimely and unauthorized "Notice of Joinder" filed December 13, 2011; a Response Opposing [NICA's] Motion for Summary Final Order, filed December 13, 2011; and an "Amended" Motion for Summary Final Order filed December 14, 2011. All of the pleadings have been considered. NICA's Motion for Summary Final Order alleged that the claim against NICA is barred by the statute of limitations for NICA claims.5/ The birth certificate, which was filed with the Petition, confirms Marvin's date of birth as alleged in the Petition as February 5, 2005. No party has asserted otherwise. There also is no dispute that the Petition (claim) was filed on July 13, 2011. Therefore, there can be no reasonable debate that the NICA claim was filed more than five years beyond Marvin's birth date, and so, the claim is barred as a matter of law, and cannot qualify for an award under the NICA Plan. NICA's Motion for Summary Final Order further alleged that Marvin's claim is not compensable because he did not suffer a "birth-related neurological injury" as defined in section 766.302(2), first, because 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 postdelivery period, and secondly, because Marvin does not suffer from a substantial motor (physical) impairment, both of which are elements of the definition of a compensable injury, at section 766.302(2). (See Conclusion of Law 32). Attached to NICA's Motion for Summary Final Order was an affidavit by Donald C. Willis, M.D., a board-certified obstetrician with special competence in maternal-fetal medicine. Dr. Willis rendered the following opinion within a reasonable degree of medical probability: * * * In summary, baby was delivered with some mild respiratory distress that required bag and mask ventilation for about 30 seconds. Arterial blood gas was normal. The respiratory distress resolved without the need for intubation or mechanical ventilation. A tight Nuchal cord was present at birth, but did not result in oxygen deprivation. 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. As such, it is my opinion that there was no oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post- delivery [sic] in the Hospital that resulted in loss of oxygen or mechanical trauma to the baby's brain or spinal cord. Accordingly, there was no causal event which would have rendered MARVIN CHAVARRIA permanently and substantially mentally and physically impaired as a result of same. (emphasis added). Also attached to NICA's Motion for Summary Final Order was the affidavit of Michael S. Duchowny, M.D., a board- certified pediatric neurologist, who rendered the following opinion within a reasonable degree of medical probability: * * * The Florida Birth-Related Neurological Injury Compensation Association retained me as its expert in pediatric neurology in the above-styled matter to examine the minor child, MARVIN CHAVARRIA, and review the medical records from both MARVIN CHAVARRIA and his mother, MILVIA NOTERA. [sic] The purpose of my review of the medical records and evaluation of MARVIN CHAVARRIA was to determine whether he suffers from an injury which rendered him permanently and substantially mentally and physically impaired, and whether such injury is consistent with an injury caused by oxygen deprivation or mechanical injury occurring during the course of labor, delivery, or the immediate post-delivery period in the hospital. I evaluated MARVIN CHAVARRIA on October 5, 2011. A true and accurate copy of my Evaluation and Opinion is attached hereto as Exhibit 1. . . . My Opinion is reflected in my Report and is as follows: In SUMMARY, Marvin's neurological examination today reveals findings consistent with autism and pervasive developmental disorder (PDD). He has severe social and behavioral problems and also manifests expressive language delay, generalized hypotonia and has a history of a sleep disorder. There are no focal or lateralizing findings noted. I reviewed medical records that were sent on August 16, 2011. The records do not contain information that points to either an hypoxic event or mechanical injury in the course of labor or delivery. Marvin was born at term at Jackson Memorial Hospital and had Apgar scores of 9, 9 and 9 at 1, 5 and 10 minutes. Although he did have a tight nuchal cord, it was removed immediately. The postnatal course was unremarkable. Marvin's diagnostic studies further confirm that his neurological disabilities are developmentally based and likely the result of problems in brain maturation which began in utero. The physical examination today provides additional confirmation that Marvin does not suffer from a substantial motor impairment. For the above reasons, I do not believe that Marvin should be considered for compensation under the NICA statute. [6/] (emphasis added). Intervenor Beydoun's Response to NICA's Motion for Summary Final Order urges the granting of NICA's motion to the extent the claim is barred by the statute of limitations, but also urges denial of NICA's motion "because the ALJ cannot reach the question of compensability where, as here, the claim is barred by the statute of limitations.7/ Intervenor Beydoun has also filed a Motion for Summary Final Order asserting the same arguments in favor of dismissal under the statute of limitations and against dismissal upon grounds of non-compensability, because, he argues, once the statute has run, the Administrative Law Judge is without jurisdiction to determine either compensability or notice. Intervenor Public Health Trust has joined in Dr. Beydoun's Motion for Summary Final Order, and filed a Response to Motion for Summary Judgment and an Amended [sic] Motion for Summary Final Order.8/ Petitioners joined in NICA's Motion for Summary Final Order and oppose Intervenor Beydoun's Motion for Summary Final Order. It may be assumed they also oppose the Public Health Trust's late-filed items. Despite both Intervenors' opposition upon the issue of the Administrative Law Judge's jurisdiction to enter a summary final order regarding compensability where the statute of limitations for the filing of a NICA claim has run, no one has posed a challenge concerning the sufficiency of NICA's Motion for Summary Final Order's factual allegations or supporting affidavits. Given the record and the medical affidavits, there is no genuine issue of material fact that Marvin, the child named in the Petition, did not suffer a birth-related neurological injury as defined in section 766.302(2). Accordingly, NICA's Motion for Summary Final Order is, for reasons appearing more fully in the Conclusions of Law, well- founded.9/
