The Issue At issue is whether Daniel Irchai, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Stipulated facts Petitioners, Arnold Irchai and Irina Irchai, are the natural parents and guardians of Daniel Irchai, a minor. Daniel was born a live infant on February 14, 2003, at North Florida Regional Medical Center, a licensed hospital located in Gainesville, Alachua County, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Daniel's birth was Richard Brazzel, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. In this case, Petitioners are of the view that Daniel suffered a "birth-related neurological injury," as defined by the Plan. In contrast, NICA is of the view that Daniel did not suffer a "birth-related neurological injury" since the proof failed to support the conclusion that, more likely than not, Daniel suffered a brain injury "caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period" in the hospital and, regardless of the etiology of Daniel's brain injury, he was not rendered "permanently and substantially mentally and physically impaired." Daniel's birth and postnatal course At approximately 10:00 a.m., February 14, 2003, Mrs. Irchai was admitted to North Florida Regional Medical Center for an elective repeat cesarean section. According to the hospital records, pre op was complete at 11:00 a.m., Mrs. Irchai was moved to the operating room at 11:45 a.m., anesthesia was started at 11:50 a.m., surgery was started at 12:14 p.m., and Daniel was delivered, with vacuum assist, at 12:26 p.m. Of note, the records reveal maternal hypotension after the spinal anesthesia, with some fetal bradycardia before delivery, and at least three attempts with the vacuum extractor before Daniel was delivered. Following delivery, Daniel was slow to respond, and was "vigorus[ly]" stimulated and administered blow-by oxygen for 15 minutes. Apgar scores were recorded as 6 and 8, at one and five minutes, respectively,3 and cord pH was recorded as 6.89. Physical examination by Dr. Burchfield, the neonatalogist present at delivery, noted breath sounds with fine crackles, as well as intermittent grunting. At 12:41 p.m., Daniel was transported to the special care nursery where, at 12:45 p.m., he was assessed for abnormalities. Admission assessment was grossly normal, except for apparent respiratory problems, with evidence of slight nasal flaring, grunting, mild subcostal retractions, and diminished breath sounds. A cephalhematoma was also noted.4 Daniel initially responded well to blow-by oxygen, but grunting worsened and a stat consultation by neonatology was requested. On arrival at 1:50 p.m., Dr. Burchfield's physical examination revealed retractions, grunting, rales bilaterally, good skin perfusion, and open and flat fontanelle. Dr. Burchfield's impression was probable transitory tachypnea of the newborn (TTN), and his treatment plan included hood oxygen, IV fluids, blood cultures, and antibiotics (Ampicillin and Gentamicin). The nurses' progress notes reveal that between 3:00 p.m., and 3:40 p.m., Daniel continued under the oxygen hood, but was very fussy, and on one occasion was noted to secrete approximately 5 cc of blood from his mouth. The progress notes further reveal that between 3:40 p.m., and 3:50 p.m., when Dr. Burchfield was paged, Daniel was placed on NCPAP, and blood secretions from his mouth continued. Dr. Burchfield described the events in his progress notes, as follows: I was paged at 3:50 p.m. to say that this baby had vomited bright red blood [BRB] - baby's respiratory distress worsened & NCPAP started. OG placed & copious BRB came up. Baby had an estimate of 10-15 cc of blood. Upon arrival [at approximately 4:20 p.m.] baby was on NCPAP . . . . I intubated [with] 3.5 ET - initially no blood in ET. Attempt to place UAC unsuccessful. During this attempt, blood came up ET tube requiring suction. UVC placed & VBG sent, Coags sent (no heparin in line) & emergent T&C . . . . Imp[ression] - UGI bleed [hemorrhage] - ? sepsis . . . . P[lan] - Transfer to Shands UF Peds. Surgery Consult (already contacted ) ? Coags (pending) Stat T&C for transfusion Daniel was transferred to Shands at the University of Florida, where he was admitted at approximately 6:30 p.m. Following admission, the neonatalogist admission note, prepared by Dr. Burchfield, documented the presence of fresh blood in the ET tube and that "a subgaleal hemorrhage was becoming evident." Dr. Burchfield's impression was diffuse hemorrhagic disease of the newborn5; coagulopathy6; respiratory distress; pulmonary hemorrhage; suspect sepsis; and fetal distress. Dr. Burchfield's treatment plan was FFP 10 cc/kg; blood transfusion; NPO/IVF; antibiotics; and follow up with coagulation studies "to see if FFP corrects, [and] if it does, consider further deficiency." At 11:45 p.m., Dr. Burchfield made the following progress note: Baby is critically ill [with] evidence of bleeding diathesis —bleeding from GI track, lung, scalp. Emergency head US showed no bleed earlier this evening, but fontanelle is more tense now, so will repeat in a.m. Fibrinogen[7] was very low -26. This improved to 90 [with] FFP. Coags improved somewhat [with] FFP also . . . . Baby is having frequent desats and some posturing -its unclear if this is occluded ET and he's fighting, or if he is having seizures. We have given a dose of Ativan. This severe hypofibrinogenemia may be due to Liver disease 2) Congenital deficiency of Factor I 3) DIC [disseminated intravascular coagulation].[8] We have sent LFT's to rule out #1). Platelet count is not extremely low, as one would see [with] DIC. Now that FFP is given, we can't accurately obtain other factor levels to study DIC (Factors V, VIII). We will give some cryoprecipitate to bring fibrinogen higher. On February 15, 2003, David Suhrbier, D.O., a pediatric neurologist, examined Daniel. Dr. Suhrbier summarized Daniel's history and his impressions, as follows: CHIEF COMPLAINT: Seizure activity and abnormal CT of the brain. HISTORY OF PRESENT ILLNESS: Baby boy Irchai is a one-day-old Caucasian male who was referred from North Florida Regional Medical Center due to respiratory distress requiring intubation and the development of hematemesis[9] and hemoptysis.[10] Upon arrival the infant demonstrated evidence of disseminated hemorrhage disorder of the newborn manifested by a subgaleal hematoma, continued hemoptysis from the ET tube, hematemesis from the OG tube and coagulopathy evaluation demonstrating thrombocytopenia,[11] decreased fibrinogen and prolonged PT measurement. The infant received fresh frozen plasma and red blood cells. Ampicillin and Gentamycin were initiated for potential septic etiology. Chest x-ray demonstrated evidence of bilateral "ground glass" appearance consistent with respiratory distress syndrome. Initial head ultrasound was unremarkable for intraventricular hemorrhage. Infant shortly after arrival . . . began to manifest paroxysmal spells of desaturation associated with tonic posturing of the extremity which was presumed to be seizure activity. The infant was treated with two doses of IV Ativan. Head CT demonstrated evidence of both intra-axial as well as extra-axial blood products. Review of the study demonstrates the presence of a cerebellar hematoma with mass-effect upon the fourth ventricle resulting in ventriculomegaly of the third and lateral ventricles. Subarachnoid blood is also noted along both tentorial planes. Intraparenchymal hemorrhages are noted, as well as a large subgaleal hemorrhage. The infant received a 10 mg/kg bolus of IV Phenobarbital. No further seizure activity has been witnessed since the administration of the Phenobarbital. * * * OBJECTIVE: . . . HEENT: No dysmorphic features, large right parietal cephalohematoma, anterior fontanel elevated, pulsatile. Sutures minimally displayed. OFC 37 cm. Pulmonary: Breath sounds equal bilaterally. Lung fields clear to auscultation . . . . . Neurologic: Mental status: Infant somnolent (however the infant has received two doses of Ativan and loading dose of Phenobarbital). Cranial nerves: Pupils equal, round, and reactive to light. Infant attempted to squeeze eyes shut in response to light stimulus. Deep tendon reflexes 2+ in the upper and lower extremities. Motor: Minimal spontaneous movement of the extremities upon stimulation. With cotton tip applicator the infant demonstrated the ability to flex arms against gravity. Withdrew lower extremities. IMPRESSION: Neonatal seizures. Cerebellar hematoma, subarachnoid hemorrhage, and intraparenchymal hemorrhage. Obstructive Hydrocephalus due to cerebellar hematoma. RECOMMENDATIONS: Follow OFC measurements on a daily basis. Carefully monitor infant for symptoms of Cushing's triad. Repeat CT of the brain in 24 hours. Maintain Phenobarbital on minimal maintenance dosing 3 mg/kg/day. Electroencephalogram on Monday. Should Phenobarbital fail, consider adjunctive Fosphenytoin. During the course of his admission at Shands, Daniel underwent multiple radiological studies, with the last study, a cerebral CT, performed February 25, 2003, approximately 10 days prior to his discharge. That study, performed to evaluate for interval changes from the previous study of February 17, 2003, was read as follows: The previous study demonstrated hemorrhage in the fourth ventricle, paramesencephalic cisterns, and right cerebellum with subarachnoid blood in the right sylvian region. A large cephalohematoma over the right posterior scalp at the high convexity was also present. The current exam demonstrates expected evolutionary changes of blood products. The region of hemorrhage shows decreased density from prior in the paramesencephalic cisterns and the right cerebellum. The subarachnoid blood at the right sylvian fissure is also decreased in density. The scalp hematoma also is decreased in density. There are no new regions of hemorrhage. The ventricles remain midline. They are enlarged but unchanged from prior. Again noted is transependymal fluid migration that is similar when compared to prior study. No new regions of hemorrhage are seen. IMPRESSION: Expected evolution of blood products in the previous regions of intracranial hemorrhage and scalp hematoma. Persistent hydrocephalus that is unchanged from the prior exam. No new regions of hemorrhage are seen. On March 6, 2003, Daniel's condition was stable, and he was discharged to his parents' care. Primary diagnosis on discharge was consumptive coagulopathy (DIC), and secondary diagnoses and complications were noted as ventriculomegaly/hydrocephalus, seizures, cerebellar hemorrhage, intracranial hemorrhage, and extracranial hemorrhage. Follow-up appointments were scheduled or recommended with Pediatric Neurosurgery, Pediatric Neurology, and Daniel's pediatrician (John Hellrung, M.D.). Daniel's subsequent development Following discharge, Daniel did follow-up with Pediatric Neurosurgery, with his last visit on April 9, 2003. At that time a CT scan was performed, which showed decreased ventricular size and resolution of the intracranial hemorrhage. Pediatric Neurology recommended monitoring of head circumference, and Daniel was placed on an as needed status for return to the clinic. Following discharge, Daniel also followed-up with Pediatric Neurology, with his first visit on May 15, 2003. At that time, Daniel was examined by Paul Carney, M.D., a pediatric neurologist, who reported the results of his evaluation to Daniel's pediatrician (Dr. Hellrung), by letter of the same date, as follows: Daniel Irchai was seen in the Pediatric Neurology Clinic this morning accompanied by his parents. As you know, he is a three- month-old who had an intracranial hemorrhage at birth, as well as a large right parietal cephalohematoma. He was last seen as an inpatient during his stay in the NICU. Pediatric Neurology was initially consulted as he experienced some abnormal posturing and possible seizure activity during his first week of life. He was loaded with Phenobarbital and has been maintained on Phenobarbital routine dose since that time . . . . Since his discharge, the Irchais have not noticed any seizure activity, no episodes of loss of tone, abnormal posturing, eye deviation or tonic/clonic activity. They are very eager to see if Phenobarbital can be weaned off as they are concerned how this is impacting his development. It is for this reason that they present in clinic today. * * * Developmental History: Now at three months, Daniel is noted to be awake and alert. He has had no difficulty tolerating the Phenobarbital therapy. He smiles, he is not a fuzzy [sic] baby, no irritability noted. He does respond to mom. What mom does report is that he, if looking straight on him, Daniel will smile, coo and interact. However, if she is away from him and she calls to him no matter what method she uses, he will not turn his head to find her. He has never done this. She does report that he is trying to hold his head up, has not rolled over completely yet, he does [12] with kicking and moving all extremities equally. When placed on his stomach, he will make attempts to lift his head up but does not get it completely up, will remain with his cheeks to the side, does appear to bring his knees up to try to move and will attempt to push up lifting the chest but does not completely make it. His appetite is good, he is breast-fed. He does not have any problems with choking, spitting up, drooling or controlling his secretions. * * * Review of Systems: Negative for nausea, vomiting, diarrhea, no fever, no seizures noted, no change in tone, no altered level of consciousness, staring or deviations of the eyes and generalized tonic/clonic activity. Appetite is good. He is breast- fed only, has been growing well. No recent colds, no past infections. Physical Exam: On exam today, . . . height was 61.5 cm, weight was 6.11 kg, head circumference 39.5 cm. Today he was plotted out compared to birth at two months and at three months and he is following a nice curve right below the 50th percentile for age . . . . Neurologically, Daniel was awake and alert. He had a social smile, would seem to track but would not turn his head to voice. He was examined initially supine. Anterior fontanel open, flat, soft. Face was symmetric. His tongue was midline, palate was symmetric. He had a good suck. Pupils were equal, round and reactive to light with accommodation. A red reflex was noted on funduscopic exam. He did have moderate head lag when raised to the seated position. He had strong finger grasps bilaterally. Supine, he was moving all extremities vigorously. Reflexes were 2+ on bilateral upper extremities, 3+ bilateral lower extremities but he did have a plantar grasp when toes were downgoing. He had a positive Moro. He did have decreased central tone, increased ventral suspension but otherwise had a nonfocal exam. No clonus was noted, no tremor was noted. * * * Plan: Today we have spent a great deal of time with the Irchais going over all the scans that have been done, his head plot and his neurological exam of today. We feel optimistic that Daniel will do well overall. We have reviewed the EEG that was completed as an inpatient with them. In light of the fact that he has not had any other further clinical events and has continued to make some strides despite having some of the motor that we are noting today, we feel it is reasonable to begin a slow Phenobarbital taper. It may be that the hypotonic features we are seen in his exam may be related to Phenobarbital therapy. We have given them instructions to wean by half a cc every week until he is off, this will take approximately seven weeks. If after his Phenobarbital has been tapered to off, Daniel continues to show some hypotonicity, it would be reasonable to start occupational and physical therapy at that time. We would like him to have a followup head MRI to be completed in the next three to four months to give them a better idea as to if any scarring or atrophy remains from his initial bleed . . . . As requested, Daniel had a follow-up head MRI on September 8, 2003. The results of that study were reported by the attending radiologist, as follows: Encephalomalacic changes with almost complete destruction of the upper vermis is present. Old blood products are present as well at this site which are also seen on diffusion weighted imaging as dark signal in the poster fossa. There is no evidence of vascular malformations. Otherwise, the brain density is appropriate for a young child. Brain formation is normal. Myelination is appropriate for age with evidence of myelination in corticospinal tracts, visual pathways and corpus callosum. Ventricular size and sulcal pattern are within normal limits. No evidence of acute hemorrhage. IMPRESSION: Encephalomalacia changes with old blood products in the posterior fossa as above. No evidence of vascular malformation. Daniel's next evaluation by Dr. Carney, and his most recent, was on September 18, 2003. Dr. Carney reported the results of that evaluation, as follows: I had the pleasure of seeing Daniel today in the Pediatric Neurology on followup. As you know, he is a 7-month-old boy who has a history of neonatal seizures secondary to a cerebellar hematoma with intracranial bleed and cephalohematoma[.] [W]hen I last saw him on 05/18/03 [sic] . . . [h]e was doing quite well. He had no recurrent seizures at that time therefore, the Phenobarbital was tapered and discontinued. At today's visit, his parents report that he is doing quite well. He has good head control if sitting with minimal support. His tracking laterally and vertically to mom's voice, dad's voice as well as to face and object recognition. He is cooing. They are concerned that he has had some head bobbing which on further questioning sounds like mild titubation. He has had no developmental regression. No seizures since I last saw him. He underwent a followup brain MRI which demonstrated a superior vermis encephalomalacic abnormality secondary to his neonatal intracranial hemorrhage. Ventricular sizes were not dilated nor were the basilar cisterns, and the third and fourth ventricles appeared open and patent. There were no recurrent bleeds, nor was there brain atrophy or cerebellar hemispheric atrophy. * * * Physical Examination: Weight 8.19 kg, head circumference 43 cm (50th percentile), height 73 cm, . . . . He was awake, alert, tracked laterally to moving object. He had good neck tone. When placed on his abdomen, he lifted his head and held it in a erect position for more than two minutes. He would sit with minimal support. He had no axial slippage. Resistance to passive manipulation was normal in both upper and lower extremities. Deep tendon reflexes were 2+ at the biceps, triceps, brachioradialis, knees and ankles. Optic discs were pink and flat. I saw no retinal abnormalities. No drooling. Tongue at the midline, palate rose symmetrically, cooed throughout the examination. General physical examination no adenopathy or thyromegaly. Chest clear to auscultation. Heart sounds were regular rate and rhythm without murmurs. Abdomen soft without signs of hepatosplenomegaly, abdominal masses, no skin rashes were noted. Genitalia - normal male. Assessment and Plan: A 7-month-old boy with neonatal cerebellar hemorrhage as outlined above and post hemorrhage encephalomalacic defect. Developmentally he has made good progress. For the most part, he is on track with the exception of some head titubation. His parents are very much interested in pursuing physical therapy and therefore, I am recommending this at this time. He will have a followup brain MRI in six months and will see me in clinic thereafter . . . . Following discharge from Shands, Daniel received routine care from his pediatrician, Dr. Hellrung, with his first visit on March 10, 2003, at 3 weeks of age, and his last visit on May 12, 2004, at 15 months of age. Dr. Hellrung's records do not reveal any significant findings or observations that are pertinent to this case, but do document, as noted by Petitioners in their proposed final order, "tremor of head," and that as of May 12, 2004, Daniel showed evidence of a delay in gross motor development, since he did not yet "Walk[] alone, stoop[], recover[]," and a delay in language development, since he was "not [yet] talking." On June 2, 2004, following the filing of the claim in this case, Daniel was, at Respondent's request, examined by Michael Duchowny, M.D., a pediatric neurologist. Dr. Duchowny reported the results of his neurologic examination, as well as his review of Daniel's medical records, as follows: I evaluated Daniel Irchai on June 02, 2004. The evaluation was performed at Miami Children's Hospital. Both parents were in attendance and supplied historical information. HISTORY ACCORDING TO MR. AND MRS. IRCHAI: Daniel is a 15-month-old boy who suffers from developmental delay. The parents indicated that Daniel is not yet walking or talking and has very poor balance. He has just started to stand while holding on but seems "wobbly." He is unable to walk independently. They note no present changes in his muscle tone, although his mother felt that he may have been excessively loose several months ago. Parents also indicated that Daniel's head may shake in a side-to- side manner when he is in the sitting position. This is particularly evident when he is reaching. They believe that these movements have diminished somewhat over the last several months. * * * Daniel is sociable and plays well with his older brother. He does not drool except while teething. There has been no behavioral regression. Daniel has recently been evaluated for physical therapy at the "Kids on the Move" Program. He has not yet been scheduled for a routine physical therapy exercise regime. Daniel's health is otherwise good. His vision is normal, although the left eye will occasionally "move up under the eyelid" on directed right gaze.[13] Daniel's hearing is good and his appetite has been stable. He is on no intercurrent medications but did take phenobarbital for the first five-months of life. * * * Daniel rolled over at four-months and sat at eight-months. He began standing with support at thirteen-months but cannot walk independently or talk in words. He is not yet toilet trained. Daniel is fully immunized and has no known allergies. He has never undergone surgery or been hospitalized after the neonatal period. * * * PHYSICAL EXAMINATION reveals an alert, well- developed and well-nourished 15-month-old boy. Daniel weighs 23 pounds. The hair is blond and of normal texture. The eyes are blue. There is a nevus flammeus below the occipital hairline. There are no other cutaneous markings and no dysmorphic features. The head circumference measures 46.1 centimeters, which approximates the 20th percentile for age. The fontanels are closed. There are no cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular examination reveals normal heart sounds and the lung fields are clear. The abdomen is soft and non-tender. There is no palpable organomegaly. Peripheral pulses are 2+ and symmetric. NEUROLOGICAL EXAMINATION reveals an initially quiet infant sitting in his father's lap. However, Daniel is quite fearful and defensive and began crying inconsolably when approached. He did not speak in words at anytime during the evaluation but at least initially followed simple commands. Cranial nerve examination reveals full visual fields to direct confrontation testing and normal ocular fundi, which were seen only briefly. The pupils are 3 mm and react briskly to direct and consensually presented light. No facial asymmetries. The tongue and palate move well. The uvula is midline. Motor examination reveals mild generalized hypotonia for both axial and appendicular musculature. There were no tremors or evidence of adventitious movements. Daniel's head control was stable. Daniel is able to stand with minimal support but is unable to take steps independently. He did not fall. The deep tendon reflexes are slightly exaggerated at 2-3+ bilaterally. Plantar responses are downgoing. There are no pathological reflexes. Sensory examination is intact to withdrawal of all extremities to stimulation. Neurovascular examination reveals no cervical, cranial, or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Daniel's neurologic examination reveals very slight delays in motor and language development with excessive behavioral irritability. He demonstrates no findings to suggest structural brain damage and his seizures are in complete remission. A review of Daniel's medical records further indicates that Daniel's postnatal circumstances did not result from intrapartum oxygen deprivation or mechanical injury . . . . The cause and timing of Daniel's brain injury, as well as the significance of Daniel's impairment Given Dr. Duchowny's opinion that "Daniel's neurologic evaluation reveals very slight delays in motor and language development," and the absence of any contrary opinion or facts of record that would compel a contrary conclusion, it must be resolved that Daniel suffers neither a substantial mental impairment nor a substantial physical impairment, much less a permanent and substantial mental and physical impairment as required for coverage under the Plan. See Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation.") Moreover, given Dr. Duchowny's opinion "that Daniel's postnatal circumstances did not result from intrapartum oxygen deprivation or mechanical injury," and the absence of any contrary opinion or facts of record that would compel a contrary conclusion, it must be resolved that the proof fails to support the conclusion that Daniel's deficits resulted from a brain injury that occurred during labor, delivery, or resuscitation, as opposed to some other etiology (i.e.: the bleeding he experienced postdelivery). See Thomas v. Salvation Army, supra; Wausau Insurance Company v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obliged to present expert medical evidence establishing that causal connection."); Nagy v. Florida Birth-Related Neurological Injury Compensation Association, 813 So. 2d 155, 160 (Fla. 4th DCA 2002)("[T]he oxygen deprivation or mechanical injury to the brain must take place during labor or delivery, or immediately afterward . . . . The fact that a brain injury from oxygen deprivation could be traced back to a mechanical injury outside the brain resulting in subgaleal hemorrhaging does not satisfy the requirement that the oxygen deprivation or mechanical injury to the brain occur during labor or delivery.") Consequently, the proof failed to support the conclusion that, more likely than not, Daniel suffered a "birth- related neurological injury," as defined by the Plan.
Findings Of Fact Alexander Soriano born on July 3, 2011, at Winnie Palmer Hospital in Orlando, Florida. Alexander weighed 3,442 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Alexander. In a medical report dated March 28, 2013, Dr. Willis opined the following: In summary, the mother presented at term with decreased fetal movement and an abnormal FHR pattern. There was no mention of the mother being in labor. Her cervix was not dilated and consistent with no active labor. Cesarean section delivery was required. The baby was severely depressed and had no detectable cardiac activity at birth. The hospital course was consistent with hypoxic ischemic brain injury with multisystem dysfunction, EEG and MRI studies should [sic] brain injury. Available information suggests the patient was not in labor. Oxygen deprivation and brain injury most likely occurred at some time prior to delivery. Although the hypoxia and brain injury may have continued during delivery and into the post-delivery period, the initial brain injury and substantial damage were most likely already present prior to birth. NICA retained Michael S. Duchowny, M.D., a Florida board-certified pediatric neurologist to review the instant claim and to conduct an examination of Alexander, and render an opinion whether a birth-related neurological injury occurred. In a report dated January 23, 2013, Dr. Duchowny opined: While Alexander's birth history documents severe problems resulting from his meconium aspiration syndrome, his present neurological examination reveals neither a permanent nor substantial mental or physical impairment. Essentially Alexander has done remarkably well despite his neonatal course, and I would anticipate continued improvement in the future. I regard his developmental abnormalities as unrelated to the perinatal circumstances and therefore not recommend Alexander for inclusion in the NICA program. A review of the file does not show any contrary opinions, and Petitioners and Intervenors have no objection to the issuance of a summary final order finding that the injury is not compensable under Plan. The opinion of Dr. Willis that Alexander did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period is credited. Dr. Duchowny's opinion that Alexander does not have a permanent and substantial mental and physical impairment is credited.
The Issue At issue in this proceeding is whether Tony Howarth, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Initial observations As observed in the preliminary statement, neither petitioners nor anyone on their behalf appeared at hearing, and no proof was offered to support their claim. Ordinarily, such failing would be dispositive of the case; however, notwithstanding petitioners' failure of proof, respondent elected to offer into evidence the medical records filed with DOAH on June 26, 1996, which relate to the birth of Tony Howarth (Tony) as well as the opinion of Charles Kalstone, M.D., a board certified obstetrician, to affirmatively resolve the issue as to whether Tony had suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. Mrs. Howarth's antepartum course and Tony's birth The records reflect that Mrs. Howarth was a 28-year-old gavida 5, para 3, aborthion 2, female, whose antepartum course was relatively uncomplicated. On September 5, 1995, with an estimated date of confinement of November 7, 1995, Mrs. Howarth was seen by her obstetrician, and no problems were noted. Routine ultrasound on September 20, 1995, was likewise unremarkable, and revealed good growth with normal amniotic fluid volume. On October 5, 1995, Mrs. Howarth presented at the offices of her obstetrician for a routine appointment. At the time, her physician was unable to obtain an adequate fetal heart tone, and ultrasound reflected a fetal heart rate of 50 to 60 beats per minute. Consequently, emergency medical services (911) was called, and Mrs. Howarth was transported to Bayfront Medical Center, St. Petersburg, Florida, for immediate evaluation. Mrs. Howarth arrived at Bayfront Medical Center at or about 11:30 a.m., October 5, 1995, and, while still on the ambulance stretcher, examination with ultrasound revealed an absence of any fetal heart rate. Consequently, an emergency cesarean section was proposed. Mrs. Howarth was immediately transported to the operating room on the stretcher, where she was admitted at 11:33 a.m., and placed on the operating room table. At the time, a sonogram was placed on her abdomen, which revealed a vertex- presenting fetus with no visible heart rate. Once general endotracheal anesthesia was induced, the initial incision was made. When entered, the uterine cavity delivered clear amniotic fluid, and Tony was delivered at 11:39 a.m. There was no evidence of nuchal cord or prolapsed cord. Tony present with Apgars of 0 at one minute, 3 at five minutes, and 3 at ten minutes, with a cord pH of 7.10. Tony underwent immediate resuscitation by the neonatal intensive care unit specialist and, following resuscitation, was transferred to the neonatal intensive care unit at All Children's Hospital where, following the discontinuance of life support, he expired on October 6, 1995. Tony's injury and its timing Here, the proof demonstrates that Tony suffered severe bradycardia, resulting in severe hypoxic encephalopathy, which ultimately culminated in his death when life-support was discontinued. However, the proof further demonstrates that the severe oxygen deprivation he suffered, and resultant injury to his brain at 35 weeks gestation, occurred without the onset or presence of labor and prior to Mrs. Howarth's presentation to her obstetrician's offices on October 5, 1995. Consequently, the injury Tony received to his brain, caused by oxygen deprivation, did not occur "in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital," as required for coverage under the Plan. Section 766.302(2), Florida Statutes.
Findings Of Fact Ryan was born on September 4, 2015, at Central Florida Regional Hospital, in Sanford, Florida. The physician providing obstetric services and who was present at Ryan’s birth was Dr. David Teitelbaum. At the time of Ryan’s birth, Dr. Teitelbaum was a NICA participating physician. Respondent retained Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, to review Ryan’s medical records and opine as to whether there was an injury to his brain or spinal cord that occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period due to oxygen deprivation or mechanical injury. In a report dated April 5, 2018, Dr. Willis concluded the following: In summary, labor was complicated by a non- reassuring FHR pattern requiring emergency Cesarean section delivery. The baby was depressed at birth with Apgar scores of 2/2/4. Resuscitation included chest compressions for 2 minutes, intubation and intravenous fluid bolus. Cooling protocol was initiated. The newborn hospital course was complicated by multi-system organ failures, including respiratory distress, hypotension, coagulopathy and elevated liver function studies. Despite the clinical findings of birth related hypoxia, only the initial EEG showed mild encephalopathy, which normalized. No abnormalities were reported on brain MRI’s after birth and at 6 months of age. There was a clinically apparent obstetrical event that resulted in oxygen deprivation during labor, delivery and continuing into the immediate post-delivery period. The oxygen deprivation would have been expected to result in some degree of brain injury. Attached to Respondent’s Unopposed Motion for Summary Final Order is the affidavit of Dr. Willis, dated June 27, 2018. In his affidavit, Dr. Willis opines, based on his education, training, and experience, and within a reasonable degree of medical probability, that there was a clinically apparent obstetrical event that resulted in oxygen deprivation during labor, delivery, and continuing into the post-delivery period. Respondent also retained Laufey Y. Sigurdardottir, M.D., a pediatric neurologist, to review Ryan’s medical records, conduct an Independent Medical Examination (IME), and opine as to whether he suffers from a permanent and substantial mental and physical impairment as a result of a birth-related neurological injury. Dr. Sigurdardottir reviewed the available medical records, obtained a full historical account from Ryan’s father and family members, and conducted an IME of Ryan on November 22, 2017. Dr. Sigurdardottir’s IME report provides, in part, as follows: Summary: Patient is a 2-year-old male with history of being born via an emergency C- section after normal uncomplicated pregnancy. Apgar scores were low: 2 whole body cooling was performed at Florida Hospital at 1 minute, 2 at 5 minutes, 4 at 10 minutes and 6 at 15 minutes. And patient had neurologic sequelae including a cognitive impairment autistic features. Despite having early motor delays, he is currently ambulatory. Result as to question 1: Ryan is found to have substantial delays in mental abilities but mild delays in motor abilities at this time. Result as to question 2: In review of available documents there is evidence of impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation. Result as to question 3: The prognosis for full motor recovery is good but mental recovery is unlikely and need for vast therapies to improve his language development and decrease autistic features is needed. His life expectancy is excellent. In light of evidence presented, I believe Ryan does not fulfill criteria of both substantial and mental and physical impairments at this time. I do not feel that Ryan should be included in the NICA program for that reason. Respondent’s Unopposed Motion for Summary Final Order also relies upon the attached affidavit of Dr. Sigurdardottir, dated June 25, 2018. In her affidavit, she opines, based upon her education, training and experience, and to a reasonable degree of medical probability, that Ryan “has substantial delays in mental abilities,” however, “he has only mild delays in motor abilities.” A review of the file reveals no contrary evidence was presented to refute the findings and opinions of Dr. Willis and Dr. Sigurdardottir. Their unrefuted opinions are credited.
Findings Of Fact Christian Scott was born on August 2, 2011, at Homestead Hospital located in Homestead, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Christian. In a report dated December 19, 2014, Dr. Willis described his findings as follows: The mother was admitted to the hospital at 40 5/7 weeks in labor. The fetal heart rate (FHR) tracing during labor was reviewed. There was a normal baseline FHR on admission of 150 bpm. The pattern was reactive and did not suggest any fetal distress. Fetal tachycardia developed shortly after hospital admission with a FHR of 160 bpm. The pattern continued to be reactive. A brief episode of later FHR decelerations occurred about two hours prior to birth. The baseline FHR was 180 bpm when the monitor was removed about twenty-five minutes before delivery. Cesarean section delivery was done for a non- reassuring FHR pattern, which appears to be primarily fetal tachycardia. Amniotic fluid was clear when membranes were ruptured at time of delivery. Birth weight was 3,475 grams or 7 lbs 10 oz’s. Delivery was described as uncomplicated. The baby was not depressed at birth. Apgar scores were 9/9. No resuscitation was required. The baby was noted to have a fever and apparently the mother was also febrile. Antibiotics were started. The baby was transferred to another facility due to persistent vomiting. No medical records were available from the second hospital. The baby was delivered at Homestead Hospital. No dictated admission or discharge note from the nursery was available for review. Doctor’s hand written notes were included in the medical records. Some of these notes were difficult to read. Medical records for a subsequent twin pregnancy in 2014 for the mother, Christina Dunbar, were also included. In summary: the mother was admitted to the hospital at term in labor. Cesarean section was done for a non-reassuring FHR pattern, which was primarily fetal tachycardia. The baby was not depressed at birth and required no resuscitation. Apgar scores were 9/9. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. In an affidavit dated January 7, 2015, Dr. Willis confirmed his opinion as stated in his medical report and opined as follows: It is my opinion that the mother was admitted to the hospital at term in labor. Cesarean section was done for a non- reassuring FHR pattern, which was primarily fetal tachycardia. The baby was not depressed at birth and required no resuscitation. Apgar scores were 9/9. As such, it is my opinion 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. A review of the file in this case reveals that there have been no 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, and Petitioners have filed their Petition under Protest, stating that they are not claimants. Dr. Willis’ opinion is credited.
Findings Of Fact Jinger-Anne Nobles was born on February 14, 2011, at Leesburg Regional Medical Center located in Leesburg, Florida. Jinger-Anne weighed in excess of 2,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Jinger-Anne. In a medical report dated July 14, 2014, Dr. Willis opined as follows: I have reviewed the medical records for the above individual. The mother, Katherine Johnson, was a 26 year old G4 P2 with no significant prenatal problems. The mother presented to the hospital in early labor at 38 weeks gestational age. Antibiotics were given during labor for a positive vaginal culture for Group B Streptococcus. Amniotic membranes were ruptured with clear fluid. Fetal heart rate (FHR) monitor tracing during labor was reviewed. Baseline heart rate was 135 bpm with normal variability. There was no fetal distress during labor. Spontaneous vaginal delivery was uncomplicated. Birth weight was 2,890 grams. Apgar scores were 8/9. The newborn was not depressed. No resuscitation was required. The baby was taken to the nursery and stated to be in stable condition. Newborn hospital course was uncomplicated. The baby was re-admitted to the hospital twice during the first two weeks after birth. The first was two days after newborn hospital discharge. This admission was for elevated bilirubin level. The second was for choking and vomiting with possible cyanosis. No etiology was discovered and the baby was discharged home. In summary, the baby was delivered at term by spontaneous and uncomplicated vaginal birth. There was no fetal distress during labor. The newborn was not depressed and had a normal hospital course. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery, or the immediate post delivery period. Dr. Willis reaffirmed his opinion in an affidavit dated December 29, 2014. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Jinger-Anne and to review her medical records. Dr. Duchowny examined Jinger-Anne on October 1, 2014. In an affidavit dated December 22, 2014, regarding his independent medical examination of Jinger-Anne, Dr. Duchowny opined as follows: In summary, Jinger-Anne’s examination reveals findings consistent with a substantial mental and motor impairment. She evidences spastic quadriparesis, microcephaly, cortical visual impairment, optic nerve atrophy, no evidence of receptive or expressive language development, and generalized hyperreflexia. I have had an opportunity to review medical records sent on May 21, 2014. They document the pre and perinatal history and provide evidence of hyperbilirubinemia, but only to a level of 15. Jinger-Anne’s mother had presented to the hospital in early labor and had artificial rupture of membranes. Her mother had a postpartum tubal ligation. Jinger-Anne’s Apgar scores were 8 and 9 at 1 and 5 minutes and her birth weight was 6 pounds 6 ounces. Cord blood gases were not drawn and apart from hyperbilirubinemia, her postnatal course was uncomplicated. Her readmission on February 18 documented a rapid rise in bilirubin, reaching a peak level of 15.4. She was also diagnosed with an acute life-threatening event which after evaluation was believed to be caused by gastro esophageal reflux. I have not yet received either of the MRI scans. Although Jinger-Anne’s course would be extremely atypical of kernicterus as most affected individuals have normal cognitive status and present with findings consistent with athetotic cerebral palsy, I believe it is prudent to review the MR images in this case before making a final recommendation with regard to consideration for acceptance into the NICA program. ADDENDUM: I have reviewed the brain MR images obtained on July 8, 2011. The study reveals no significant abnormalities. Of note, the basal ganglia and thalami are normal. The study findings support my initial impression that Jinger-Anne’s neurological problems did not result from hyperbilirubinemia, mechanical injury or oxygen deprivation acquired in the course of labor, delivery or the immediate post- delivery period. 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 Jinger-Anne’s examination reveals findings consistent with a substantial mental and motor impairment, her neurological problems did not result from hyperbilirubinemia, mechanical injury or oxygen deprivation acquired in the course of labor, delivery or the immediate post-delivery period. Dr. Duchowny’s opinion is credited.
Findings Of Fact Sh’myia McBean was born on February 11 2011, at Halifax Medical Center located in Daytona Beach, Florida. Sh’myia weighed 3,288 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Sh’myia, to determine whether an injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital due to oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Dr. Willis described his findings as follows in his medical report: In summary, there was no significant fetal distress during labor. However, delivery was complicated by several failed attempts for vaginal delivery by vacuum and some delay in starting the Cesarean delivery due to problems with inadequate levels with a labor epidural. The baby was severely depressed at birth due to the difficult delivery. Full resuscitation was required. Cord blood gas was consistent with acidosis (pH 6.78). Seizure activity developed within 24 hours of birth and MRI on the day of birth confirmed cerebral ischemia. There was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during delivery and continuing into the immediate postdelivery period. The oxygen deprivation resulted in brain injury. I am unable to comment about the severity of the brain injury. NICA retained Michael S. Duchowny, M.D., a pediatric neurologist, to examine Sh’myia and to review her medical records. Dr. Duchowny examined Sh’myia on July 16, 2014, and opined as follows in his medical report: In SUMMARY, Sh’myia’s neurological examination is significant for a left lower extremity monoparesis. In contrast, her other three limbs are well preserved and her overall mental functioning is clearly at or above age level. A review of Sh'myia's medical records confirms the family's impression that she had difficulties at birth. Of note, her mother was febrile to 101 degrees at time of delivery and Sh'myia was delivered by urgent cesarean section after four failed attempts at vaginal delivery with vacuum assistance. Sh'myia was born cyanotic, floppy, and apneic and required intubation in the delivery room. However, she was weaned from mechanical ventilation at 12 hours of age. Seizures were noted at 20 hours of age. Her Apgar scores were 0, 0, 3, and 4 at 1, 5, 10, and 20 minutes respectively. The cord pH was 6.78. Her white blood cell count showed a left shift and she was treated aggressively with antibiotics for 4 days until blood cultures came back normal. Hypocalcemia with a value of 6.7 was also treated immediately. Sh'myia weighed 7 pounds 4 ounces at birth and was 41 weeks gestation. An MRI scan the next day revealed edema consistent with diffuse changes and an EEG performed on February 15 revealed high voltage discharges but no evidence of birth suppression pattern. Although Sh'myia did have birth-related difficulties, she has done remarkedly well and she does not presently show a significant mental impairment. Her motor impairment in the left lower extremity is significant but she is undergoing therapy and I suspect that she will ultimately regain a more normal range of motion through either her present therapies or possibly future surgery to lengthen her Achilles tendon. In view of Sh'myia's good overall current neurologic status, I am not recommending her for compensation 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 an obstetrical event that resulted in loss of oxygen to the brain. Dr. Willis’ opinion is credited. There are no contrary expert opinions filed that are contrary to Dr. Duchowny’s opinion that Sh’myia does not presently show a significant mental impairment or that any physical impairment is permanent. Dr. Duchowny’s opinion is credited.
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.
