Findings Of Fact Colin Trust was delivered on September 14, 2011, at Boca Raton Regional Hospital in Boca Raton, Florida. Colin weighed 3,370 grams at delivery. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Colin. In an affidavit dated January 8, 2015, Dr. Willis opined in pertinent part: In summary, there was no fetal distress during labor and the baby was not depressed at birth and had a normal newborn hospital course. Essentially, there was nothing to suggest oxygen deprivation during labor or delivery. The “previously healthy baby” was noted to have lack of head growth at two months of age and MRI evaluation found a large brain infarct, which did not appear to be recent. It is most likely the cerebral infarct occurred at some time during pregnancy and prior to labor and delivery. Newborn depression and a complicated newborn hospital course would have been expected if the oxygen deprivation would have occurred during labor or delivery. Colin Trust did suffer a stroke. A mechanical injury during labor and delivery or the immediate post-delivery period could not cause a stroke. Further, there was no mechanical injury that occurred here. The delivery was by C-section, no forceps were used and there was not a vacuum extraction; accordingly, there is no basis that could have been any mechanical trauma. While oxygen deprivation can result in a stroke, as reflected by my Report, there was no evidence of any oxygen deprivation that occurred during labor, delivery or the immediate post-delivery period. Further, if there had been a stroke during this period of time, you would expect to see different symptoms once the child was born; there were no such symptoms. There is no medical basis to opine that Colin Trust suffered a stroke during the course of labor, delivery or the immediate post-delivery period as a result of either oxygen deprivation or mechanical injuries (neither of which even occurred here). Accordingly, 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. The child has documented brain injury that most likely occurred at some time during pregnancy and before labor and delivery. 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 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 is credited.
Findings Of Fact O’uri Lawrence was born on February 18, 2012, at Tampa General Hospital located in Tampa, Florida. O’uri weighed 4,520 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for O’uri, to determine whether an injury occurred 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 medical report dated November 4, 2014, Dr. Willis described his findings in part as follows: Vaginal delivery was complicated by a shoulder dystocia. Birth weight was 4,520 grams. Despite the shoulder dystocia, the baby was not depressed at birth. Apgar scores were 8/9. Cord blood gas had a normal pH of 7.26 and a normal base of 2. Evaluation in the nursery indicated the baby was in no acute distress and was alert. Decreased movement of the left arm was noted. X-Ray did not identify any bone fractures. Other than the Erb’s palsy, the baby had a relatively normal hospital course. In summary, delivery was complicated by a shoulder dystocia and resulting Erb’s palsy. There was no fetal distress during labor. The newborn was not depressed at birth. The newborn hospital course did not suggest hypoxic ischemic injury. Follow-up care after hospital discharge primarily concerned evaluation and management of the Erb’s palsy. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spine during labor, delivery or the immediate post delivery period. Dr. Willis reaffirmed his opinion in an affidavit dated April 7, 2015. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine O’uri and to review his medical records. Dr. Duchowny examined O’uri on January 28, 2015. In an affidavit dated April 7, 2015, Dr. Duchowny opined as follows: In summary, O’uri’s neurological examination today reveals findings consistent with a left Erb’s palsy affecting the C5/C6 musculature. He has preserved fine motor coordination of his distal extremity but supination is limited at the wrist and he does not consistently fully extend the left elbow. In contrast, there are no findings on today’s evaluation that indicate injury to either the brain or spinal cord. Mechanical injury was therefore sustained outside the central nervous system and for this reason, I am not recommending O’uri for compensation within the NICA program. Various medical records of O’uri were fax-filed with DOAH following the entry of the Order to Show Cause. However, as further addressed in the Conclusions of Law, whether or not these documents would be admissible in a formal hearing, they would not affect the ultimate conclusion reached in this case. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain or spine during labor, delivery or the immediate post-delivery period. Dr. Willis’ opinion is credited. There are no contrary expert opinions filed that are contrary to Dr. Duchowny’s opinion that there are no findings that indicate injury to the brain or spinal cord, and that mechanical injury was therefore sustained outside the central nervous system. Dr. Duchowny’s opinion is credited.
The Issue At issue in this proceeding is whether Frannie Lasher, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Initial observations As observed in the preliminary statement, neither petitioner nor anyone on her behalf appeared at hearing, and no proof was offered to support her claim. Ordinarily, such failing would be dispositive of the case; however, notwithstanding petitioner's failure of proof, respondent elected to offer certain evidence to affirmatively resolve the issue as to whether Frannie Lasher (Frannie), suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. Frannie's neurologic condition Pertinent to the resolution of the subject claim, the proof demonstrates that Frannie was the product of a normal pregnancy, and was delivered at term on May 4, 1993, at Hollywood Memorial Hospital, Hollywood, Florida, by repeat cesarean section. At birth, Frannie weighed 7 pounds, 5 ounces, had an Apgar score of 8 at one minute and 9 at five minutes, and had a normal newborn course. In sum, the delivery and newborn records fail to demonstrate that Frannie was compromised by oxygen deprivation, mechanical injury or otherwise, during the birth-process. On February 15, 1995, Frannie was referred to Melvin Grossman, M.D., a child neurologist, who observed some delay in her developmental speech and motor milestones. At the time, Dr. Grossman recommended an MRI scan of the brain to make sure there were no structural lesions, although he did not believe that Frannie had any evidence to suggest a neuromuscular disorder. The MRI scan of the brain was normal. Approximately two years after birth, Frannie was diagnosed as severely autistic, which accounts for her impaired development, communication, motor coordination and balance. Autism is not, however, a condition related to the birthing or resuscitative process, and there is no evidence that Frannie suffered an injury to her brain due to hypoxia or mechanical trauma during such period.
Findings Of Fact Addyson Tilka was born on June 22, 2012, at Bayfront Medical Center, Inc., located in St. Petersburg, Florida. Addyson 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 Addyson. In an affidavit dated August 3, 2016, Dr. Willis opined as follows: In summary, the baby was delivered prematurely at 34 weeks due to premature rupture of the membranes. Apgar scores were 5/8. The baby had respiratory distress syndrome of prematurity. Oxygen and ventilation support was required for respiratory distress. Neurologic exam was appropriate for gestational age. The baby did not have seizures. No head imaging studies were done during the newborn hospital course. There was no apparent obstetrical event that resulted in loss of oxygen deprivation or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Addyson and to review her medical records. Dr. Sigurdardottir examined Addyson on January 20, 2016. In an affidavit dated August 5, 2016, Dr. Sigurdardottir summarized her examination of Addyson and opined as follows: NEUROLOGICAL EXAM: Mental status: Addyson is a beautiful, interactive girl who speaks in full sentences with minor pronunciation difficulties. She has no autistic features and seems age appropriate in all aspects. Cranial nerves are intact. Pupils are equal and reactive to light. Visual fields are full. There is nystagmus, no amblyopia, no strabismus. Her facial expressions are symmetric. There is no hearing abnormality noted. Her motor exam reveals normal muscle tone, motor strength, symmetric reflexes are present. Balance and coordination seems grossly intact for age. ASSESSMENT AND PLAN: In summary, here we have a 3 year 6 month old girl who was born premature at 34 weeks and needed a neonatal intensive care unit (NICU) stay due to respiratory compromise. There are, however, no clear concerns of her development at this time. No suggestions of physical impairment. There is nothing on history or record review that suggests neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury. Results as to question 1: The patient is found to have no substantial physical or mental impairment. Results as to question 2: there is no evidence of perinatal neurologic depression and no evidence of ischemic injury at birth or in the immediate postnatal period. Results as to question 3: We would expect full life expectancy as no noted abnormalities are found on exam. In light of the above-mentioned details, I do not recommend Addyson to be included in the Neurologic Injury Compensation Association program and will be happy to answer additional questions. All of my opinions are within a reasonable degree of medical probability. 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. Sigurdardottir’s opinion that Addyson does not have a substantial physical or mental impairment. Dr. Sigurdardottir’s opinion is credited.
Findings Of Fact Kaden Lenard McWhite was born on March 17, 2011, at Sacred Heart Hospital in Pensacola, Florida. He weighed 3,715 grams at birth. NICA requested Michael S. Duchowny, M.D. (Dr. Duchowny), a certified pediatric neurologist, to review the medical records for Kaden and to conduct an independent medical examination of Kaden. Dr. Duchowny examined Kaden on January 18, 2012. In a report dated January 23, 2012, Dr. Duchowny summarized Kaden's medical history as follows: Kaden is 10 months old and was born at term at Sacred Heart Hospital, Pensacola, Florida. He suffered severe meconium aspiration syndrome and was evacuated to Shands Hospital on the lst day of life. Kaden was placed on the cooling protocol for 72 hours; ECMO was planned but ultimately was not initiated as his pulmonary function improved. However, Kaden's course was compromised by hypertension and shock with DIC. Hypoglycemia was treated with D-10 boluses. Prior to transfer, Kaden received a packed red blood cell transfusion, fresh frozen plasma and cryoprecipate at Sacred Heart. He was documented to have both cardiac and renal dysfunction. Kaden remained hospitalized in the Newborn Intensive Care Unit for approximately one month. Upon discharge, he was clinically stable and on no medications. Kaden has done remarkably well since coming home. He has not had additional medical complications and his milestones have all been acquired on time. In fact, Kaden sat at six months and now at age 10 months is beginning to stand without support. He is enrolled in the Early Steps program essentially to monitor his progress and ascertain that he is reaching his milestones. The only supervening problem is that Kaden tends to be a head banger and a rocker. He will both bang his head against the wall and will hit his head repetitively. These behaviors occur when he does not get his way. Otherwise, there are no complaints. His vision and hearing are good and his appetite is stable. He had gained weight steadily. He sleeps through the night on most occasions but may awaken for a bottle. There have been no developmental regression and no weakness. He has never experienced seizures. Dr. Duchowny opined that Kaden does not have a substantial and permanent physical and mental injury. He summarized his findings as follows: In summary, Kaden's neurological examination in detail reveals no significant focal or lateralizing findings and is entirely normal. Given his stormy neonatal course, Kaden's outcome is truly remarkable. In retrospect, the cooling protocol may have played a decisive role in Kaden's remarkable recovery. Given his current normal neurological status, I believe that he would not be eligible for compensation within the NICA program. His future prognosis is excellent. 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. Duchowny. The opinion of Dr. Duchowny that Kaden is not substantially and permanently mentally and physically impaired is credited.
Findings Of Fact Adrian was born on January 23, 2017, at Tampa General located in Tampa, Florida. The Petition alleges that Sarah Obican, M.D., and Pamela Kelly, C.N.M., were the medical professionals who participated in Adrian’s birth.1 Upon receiving the Petition, NICA retained Donald Willis, M.D., a board-certified obstetrician/gynecologist specializing in maternal-fetal medicine, as well as Luis E. Bello-Espinosa, M.D., a pediatric neurologist, to review Adrian’s medical records and condition. NICA sought to determine whether Adrian suffered a “birth-related neurological injury” as defined in section 766.302(2). Specifically, NICA requested its medical consultants opine whether Adrian experienced an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury which occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period. And, if so, whether this injury rendered Adrian permanently and substantially mentally and physically impaired. Dr. Willis reviewed Adrian’s medical records and noted, within a reasonable degree of medical probability: In summary, there was an abnormal FHR pattern at time of repeat Cesarean section. The mother was not in labor. Delivery was atraumatic and resuscitation described as uneventful. … Cyanosis occurred when the baby was placed on the mother’s abdomen after delivery. Newborn hospital course was complicated by multisystem organ failures. EEG was consistent with seizures. … There was no apparent oxygen deprivation and or mechanical trauma to the brain of [sic] spinal cord during labor or delivery. Due to the complexity of the newborn hospital course, I do not have an opinion concerning any oxygen deprivation that 1 No evidence was presented to the ALJ establishing whether Dr. Obican or Ms. Kelly were “participating physicians” under the Plan at the time Adrian was born. See §§ 766.302(7) and 766.314(4), Fla. Stat. could have occurred during the immediate post- delivery period. Dr. Bella-Espinosa, on the other hand, did comment on whether Adrian’s injuries occurred during the immediate post-delivery period. Dr. Bella-Espinosa reviewed Adrian’s medical records, as well as conducted an independent medical examination (“IME”) of Adrian on August 28, 2020. Dr. Bella-Espinosa opined, within a reasonable degree of medical probability: The [mother] underwent a cesarean section without complication. * * * The infant was initially placed skin to skin and the mother attempted to breastfeed during which the infant turned cyanotic. During the IME, Dr. Bella-Espinosa observed that: Adrian is a 3-year 7-month-old boy with a history of fetal macrosomia, born to an insulin diabetic mother, who after having … minimal variability with late decelerations before delivery, at birth had a normal APGAR score with no evidence of acidosis, who in the immediate period however developed recurrent hypoglycemia despite glucose supplementation. … [O]ver the past three years, he remains to have drug-resistant daily seizures. * * * Adrian has … signs of severe intellectual disability, severe developmental language, and motor delays, severe autistic behavior, as well as an abnormal neurological examination … . His clinical presentation at this time is indicative of a severe developmental epileptic encephalopathy as could be seen in children due to multiple etiologies such as acquired neonatal metabolic, vascular, ischemic, inflammatory or infectious processes, as well as potential additional structural, genetic, or chromosomal etiologies. … His epilepsy is severe. Dr. Bella-Espinosa concluded his report stating that “Adrian suffers from substantial permanent mental impairment and substantial physical impairment.” However, Dr. Bella-Espinosa explained that: The impairments are not consistent with an injury to the brain or spinal cord that may have occurred due to oxygen deprivation, or mechanical injury occurring during labor, or the immediate post- delivery period. … Adrian’s substantial physical and mental impairment appears to have not occurred during the immediate post-delivery period. A review of the file reveals no evidence directly disputing the findings and opinions of Dr. Willis and Dr. Bella-Espinosa that Adrian’s “impairments are not consistent” with injuries that occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital.2 Their opinions are credible and persuasive. Based on the statements from Dr. Willis and Dr. Bella-Espinosa, NICA determined that Petitioner’s claim was not compensable. NICA subsequently filed a Motion for Partial Summary Final Order asserting that Adrian did not suffered a “birth-related neurological injury” as defined by section 766.302(2). Petitioners submitted a motion opposing NICA’s Motion for Partial Summary Final Order. Petitioners, however, do not disagree with NICA’s position that Petitioners’ claim is not compensable under the Plan. Instead, Petitioners assert that the NICA statutes (section 766.301, et seq.) violate the Florida Constitution; therefore, the undersigned does not have the authority to determine whether Adrian should be included in the NICA Plan. It must 2 Petitioners, with their motion opposing NICA’s Motion for Partial Summary Final Order, submitted affidavits from several medical professionals addressing the level of care Adrian received from the treating medical staff. These opinions support a finding that Adrian currently suffers from permanent injury to his brain, as well as experienced respiratory distress following his birth. However, the affidavits do not substantiate the argument that Adrian’s injuries actually occurred during Adrian’s birth, delivery, or in the immediate post- delivery period. Accordingly, Dr. Willis's and Dr. Bella-Espinosa’s opinions are persuasive on this issue. be noted, however, that an ALJ is without authority to rule on the facial constitutionality of a statute authorizing agency action. See Key Haven Assoc. Enterprises, Inc. v. Bd. of Trs. of the Int. Imp. Trust Fund, 427 So. 2d 153, 157 (Fla. 1982); Communications Workers of Am., Local 3170 v. City of Gainesville, 697 So. 2d 167, 170 (Fla. 1st DCA 1997)(“The Administrative Procedure Act does not purport to confer authority on administrative law judges or other executive branch officers to invalidate statutes on constitutional or any other grounds.”).
The Issue At issue is whether Christopher White-Maldonado, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Petitioner, Susanna Maldonado, is the natural mother and guardian of Christopher White-Maldonado, a minor. Christopher was born a live infant on January 1, 2000, at Orlando Regional Healthcare System, Inc., d/b/a Arnold Palmer Hospital, a hospital located in Orlando, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Christopher's birth was Virgil Davila, 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. Here, the medical records and the results of a neurological examination by Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology, demonstrate, and Petitioner agrees, that Christopher does not suffer from a substantial mental or physical impairment, much less a permanent and substantial mental and physical impairment, as required for coverage under the Plan.1 (Respondent's Exhibits 1-7, Transcript page 10 and 11). Consequently, the claim is not compensable, and it is unnecessary to resolve whether Christopher's impairments resulted from brain injury caused by birth trauma (oxygen deprivation or mechanical injury), as advocated by Petitioner, or whether they are developmentally based, as advocated by Respondent.
Findings Of Fact Alyssa York was born on June 11, 2014, at Baptist Medical Center South located in Jacksonville, Florida. Alyssa weighed 4,026 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Alyssa. In a medical report dated December 8, 2016, Dr. Willis opined as follows: In summary, delivery was complicated by a shoulder dystocia. The newborn was not depressed with a 5 minute Apgar score of 8. Resuscitation after delivery required only tactile stimulation and blow-by oxygen. The baby had an Erb’s palsy, but otherwise an uncomplicated newborn hospital course. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Alyssa and to review her medical records. Dr. Sigurdardottir examined Alyssa on December 2, 2016. In a medical report regarding her independent medical examination of Alyssa, Dr. Sigurdardottir opined as follows: Summary: Alyssa is a 2-1/2 year-old who suffered a brachial plexus injury during a vaginal delivery complicated by a 1 minute shoulder dystocia. At the current age of 2 years 5 months she has a functional deficit that seems relatively mild and has not needed surgical intervention at this time. Her cognition, mental abilities seem age appropriate. In light of the above, my results are the following: Result as to question 1: Alyssa is found to have a mild physical impairment, but no noted mental impairment at this time. Result as to question 2: The brachial plexopathy is most likely due to injury sustained during the birthing process. Results as to question 3: The prognosis for full recovery is regarded [sic] as she continues to have functional limitations in her right arm. She however has normal abilities in other areas and her cognition is completely normal. In light of this, I do not recommend Alyssa to be included in the NICA program. I will be happy to answer additional questions. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain or spinal cord during labor, delivery or the immediate post-delivery period. Dr. Willis’ opinion is credited. There are no contrary expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Alyssa has a mild physical impairment but is not found to have a mental impairment at this time. Dr. Sigurdardottir’s opinion is credited.
