Findings Of Fact Tristan N. Thomas was born on August 12, 2009, at Baptist Medical Center in Jacksonville, Florida. Tristan weighed in excess of 2,500 grams. Donald Willis, M.D., was requested by NICA to review the medical records of Tristan. Based on his review of the medical records, Dr. Willis opined as follows: In summary, labor was complicated by hypertension and a placental abruption. This resulted in a depressed baby at birth. Full resuscitation was required. The initial blood gas after birth was consistent with severe acidosis with a pH of 6.6. Seizures developed shortly after birth. EEG and MRI were consistent with HIE. There was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery, and continuing into the immediate post delivery period. This oxygen deprivation resulted in brain injury. I am not able to comment about the severity of the brain injury. Michael S. Duchowny, M.D., was requested by NICA to perform an independent medical evaluation of Tristan. The evaluation was done on January 22, 2014. Based on his evaluation, Dr. Duchowny opined as follows: In summary, Tristan’s neurologic examination reveals evidence of multiple developmental delays in the social, communication and behavioral domains. His findings are consistent with a clinical diagnosis of autism spectrum disorder and there are no specific focal or lateralizing findings to suggest structural brain damage. I had an opportunity to review medical records supplied to me which confirmed the history obtained from Tristan’s mother. Tristan was delivered at term at Baptist Medical Center. His mother suffered from preeclampsia and was treated with magnesium sulfate. Tristan was delivered by emergency cesarean section due to placental abruption, required resuscitation at birth and had Apgar scores of 0, 3, and 7 at 1, 5, and 10 minutes. His cord blood gases revealed severe acidosis and he was placed in a head cooling protocol for 72 hours following stabilization. However, an ultrasound of the brain on August 17, 2009 was negative as was an MRI scan performed on August 18, 2009. In summary, the findings on examination today together with the medical history did not provide evidence of significant brain damage and Tristan does not suffer from a substantial motor impairment. Furthermore, his neurological problems did not, in my opinion result from either mechanical injury or oxygen deprivation acquired in the course of labor and delivery. His autism spectrum disorder is a primary developmental disability of prenatal origin. I, therefore, believe that Tristan should not be considered for admission into the NICA program. A review of the file does not show any contrary opinion to Dr. Willis’ opinion that Tristan did sustain oxygen deprivation during labor, delivery, and resuscitation in the immediate post-delivery period Plan. Dr. Willis could not comment on the extent of any brain injury that resulted from the oxygen deprivation. Dr. Duchowny opines that Tristan does not suffer from significant brain damage and that Tristan does not have a substantial motor impairment. These opinions are not disputed and are credited.
The Issue The issue in this case is whether Jacob McGowan (Jacob) suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Jacob was born on July 2, 2015, at Shands at the University of Florida (Shands), Gainesville, Alachua County, Florida. The pregnancy, labor, and delivery of his mother, Christy Gonzalez, were managed by employees of UF Health Physicians and employees of Shands. At all times material, both the hospital and the physicians group were active members under NICA pursuant to sections 766.302(6) and (7). Christy Gonzalez, age 32, presented to Shands on July 1, 2015. This was her second pregnancy. Ms. Gonzalez's prior pregnancy resulted in an emergency cesarean section at 37 weeks after a failed induction/arrest of labor due to gestational hypertension. Based on orders given by OBGYN Georgia Graham, M.D., Christy Gonzalez was admitted to the Labor and Delivery Suite at approximately 12:05 p.m. Ms. Gonzalez was started on Pitocin at 2:47 p.m. for induction/augmentation. Labor progressed slowly over the next approximate 30 hours during which time Ms. Gonzalez continued on Pitocin and exhibited several periods of ongoing and apparent uncontrolled maternal hypertension. Fetal heart monitoring started at 8:13 a.m. on July 1, 2015, and, as labor progressed, the fetal heart rate pattern demonstrated accelerations, and late and early/variable decelerations. The fetal heart rate reached 90 and below at numerous points throughout the day on July 1, 2015, including at 9:34 a.m., 9:54 a.m., 11:04 a.m., 11:10 a.m., 1:05-1:48 p.m. (multiple decelerations), 2:11-2:15 p.m., 2:16-2:18 p.m., 2:31 p.m., and 9:36-9:38 p.m. On July 2, 2015, the fetal heart rate continued to demonstrate accelerations and decelerations with "High FHR" noted at 8:56 p.m. (156/67), as well as 9:15 p.m. and 9:21 p.m. The fetal monitor strips indicate prolonged periods of fetal distress throughout this long period of labor. At approximately 11:00 p.m. on July 2, 2015, Ms. Gonzalez was taken into the operating room for emergency cesarean section due to decreased variability and repetitive decelerations in the fetal heart rate. Jacob was born a live infant at 11:42 p.m. on July 2, 2015. Jacob was a single gestation, weighing 4,366 grams at birth. Jacob was delivered by Dr. Anushka Chelliah, who was a NICA participating physician on July 2, 2015. Petitioner contends that Jacob suffered a birth-related neurological injury and seeks compensation under the NICA Plan. Respondent contends that Jacob has not suffered a birth-related neurological injury as defined by section 766.302(2). Jacob was born via cesarean section secondary to failed induction and vaginal birth after cesarean section, and non- reassuring fetal heart rate tracing and nuchal cord. Jacob was delivered with no respiratory effort and a heart rate less than 60. Post-birth resuscitation included tactile stimulation, intubation, suctioning, and positive pressure ventilation. His Apgar scores were 1 at one minute, 3 at five minutes and 4 at 10 minutes. Physical examination at birth revealed he was pale, had poor tone and negative grasp, and poor moro and suck reflexes. Following color change and rise in his heart rate and increasing oxygen saturations, Jacob was transferred to the neonatal intensive care unit (NICU) for further management. Initial assessment of Jacob included intrapartum fetal asphyxia, chorioamnionitis affecting fetus or newborn, meconium aspiration, injury to scalp secondary to birth trauma, respiratory failure of newborn, and HIE (hypoxic-ischemic encephalopathy) for which HIE protocol for cooling was initiated. Upon arrival to the NICU, Jacob was initially placed on a conventional ventilator with oxygen saturations in the upper 80s. He was quickly transitioned to a high frequency ventilator/oscillator with excellent response. Jacob’s initial blood gas showed good ventilation and medical personnel were able to sequentially wean his amplitude, and he was started on 100-percent oxygen. He was passively cooled until three hours of life when active cooling was started. By 12:46 a.m., physical examination showed a more reassuring neurological examination, although high risk for seizures and neurologic sequelae was noted. Physical examination at four hours of life revealed Jacob was pink, alert, reacting appropriately to stimulation, reactive to light, had a positive suck reflex, gag reflex, mildly increased tone in all extremities, reflexes of 3+ in his lower extremities, 2+ in his upper extremities, slow grasp in feet and brisk grasp in hands. Jacob was discharged from the hospital on August 10, 2015 (day of life 39). His hospital course was complicated by glucose and electrolyte derangements, adrenal hemorrhage, seizures, hypotension, coagulopathy, E coli sepsis with presumed meningitis and poor feeding. The hospital discharge summary reflects that he was actively moving all extremities, had received antibiotics secondary to E coli sepsis and suspect meningitis, was weaned from the ventilator to a continuous positive airway pressure machine (CPAP) at five days of life and had been stable on room air since July 11, 2015, was discharged with 10 mg of phenobarbital every 12 hours, that a physical exam revealed a mildly hypotonic normal male and that he had been on full oral feeding since August 3, 2015, with an appropriate weight gain pattern at discharge. The neurological status section of the hospital discharge summary reflects that Jacob's initial MRI on July 6, 2015, showed evidence of frontal and occipital cortical and subcortical injury globally. A repeat MRI on July 12, 2015, showed improvement in cortical injury with some evidence of injury over the head of the left caudate. He initially had seizure activity on EEG and was loaded with phenobarbital. The last two continuous EEGs on July 11, 2015, and July 16, 2015, however, showed no seizure activity, and the plan was to allow him to outgrow his phenobarbital dose. On August 12, 2015, Jacob presented to his pediatrician for a well child visit. At this time difficulty breast feeding was reported by the mother. The pediatrician noted "no obvious developmental delays or difficulties" and "great tone." Counseling was given on breast feeding and feeding, and orders were given for evaluation and treatment by ophthalmology and occupational therapy. On August 24, 2015, Jacob presented to his pediatrician for sores in his mouth and feeding problems, and fussiness with spit up and vomiting in preceding days. He was on no medications at this time. His physical exam was normal. Neurological exam was also normal with present and normal newborn reflexes noted. "Great weight gain" was noted. Counseling was given concerning gastroesophageal reflux disease (GERD) and feeding. On September 3, 2015, Jacob presented to his pediatrician for a well child visit. At this time, his mother was curious as to whether he needed therapy for motor development. He was noted to be feeding well and complete resolution of his GERD symptoms was noted. Medications at that time included only ranitidine syrup (a stomach acid reducer). All areas of development were noted to be normal for his age and a physical examination, including neurological examination, were also normal. The pediatrician noted in assessment that although the mother reported a diagnosis of brain damage, her concerns regarding motor skills were not apparent, as Jacob was noted to be moving well, trying to roll, could lift his head, and was grasping a rattle in his stroller--all of which were noted to be "very impressive for 2 months." On October 29, 2015, Jacob presented to his pediatrician with complaints of right ear pain and discharge, low-grade fever, tugging at his ear, and fussiness. Medications at this time included only ranitidine syrup. A physical exam was normal with the exception of crusty discharge noted in his ears. He was prescribed antibiotics and ranitidine was refilled. On November 10, 2015, Jacob presented to his pediatrician with complaints of congestion and ear drainage. There were no concerns with Jacob's feeding at this time, and he was noted to eat baby food and use a bottle. Medications at this time included only ranitidine syrup. His physical exam was normal with the exception of erythematous noted in both ears. Antibiotics were prescribed. On November 23, 2015, Jacob presented to his pediatrician for a well child visit. At this time Jacob was taking ranitidine daily for GERD and was in physical therapy/occupational therapy for delayed milestones and trouble sucking. He was noted to be eating solid foods since three months of age, eating baby food, and using a bottle. Ranitidine was refilled. "All areas of development are appropriate for age" was noted. A physical exam was normal. Plans for future care included continued use of ranitidine for GERD, continued therapies for delayed milestones, and a referral to otolaryngology for audiometry. On January 6, 2016, Jacob presented to his pediatrician for a six-month follow-up visit. At this time it was noted that he was getting occupational and physical therapy weekly. It was also noted that he had been diagnosed with hand, foot, and mouth disease and had spots in his throat and discharge from his right ear. The only medication at this time was ranitidine, which was refilled. No concerns with his nutrition were noted. Developmental history testing revealed a “pass” in all areas, except difficulty rolling left to right and sitting alone. Allergic rhinitis symptoms were noted, however, a physical exam was normal. Plans for future care on this visit included referral for a failed hearing screening, continued ranitidine, and continued occupational therapy. At the request of NICA, Donald C. Willis, M.D., who is board-certified in obstetrics and gynecology and maternal-fetal medicine, reviewed the medical records included in the Stipulated Record as Joint Exhibits A through E. In his report dated August 10, 2016, Dr. Willis opined that, [t]here was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery and continuing into the immediate post delivery period. The oxygen deprivation resulted in brain injury. I am unable to comment about the severity of the brain injury. At the request of NICA, Laufey Y. Sigurdardottir, M.D., who is board-certified in neurology, reviewed the medical records included in the Stipulated Record as Joint Exhibits A through E, and performed a thorough examination of Jacob on August 31, 2016. Dr. Sigurdardottir's report, dated August 31, 2016, reveals that Jacob's mother gave an "excellent history and timeline of the pregnancy with Jacob, his birth, and aftermath." Jacob's developmental history is reported by Dr. Sigurdardottir to include walking independently between 11 and 12 months of age; speaking five words; and report by mother of some hand tremors when reaching for objects. Jacob is noted to have been weaned from phenobarbital at six months of age and he has had no further seizure activity. Dr. Sigurdardottir's neurological exam revealed a pleasant and interactive boy interested in his surroundings. His motor exam revealed symmetric, normal muscle tone and equal use of both extremities. His gait was symmetric and seemed age appropriate. His reflexes were present and at times slightly increased, but never spread from right to left. Balance and coordination were noted to be difficult to fully assess, but seemed to be within normal limits for his age. He manipulated toys in a conventional manner with no autistic characteristics or repetitive behaviors seen. Dr. Sigurdardottir noted that Jacob had made a remarkable recovery and that there were no obvious abnormalities noted upon neurologic exam. Dr. Sigurdardottir concluded her report with her opinions that, The patient is found to have no substantial physical and/or mental impairment at this time. Jacob did have a neurological injury to the brain due to oxygen deprivation, and his hypoxic ischemic encephalopathy is felt to be birth related. At this time, Jacob's prognosis for life expectancy and full recovery is good. Petitioner did not submit or introduce into evidence any expert reports rebutting the opinions of Dr. Willis or Dr. Sigurdardottir.
Findings Of Fact Uzziah Walker was born on November 23, 2012, at Sacred Heart Hospital located in Pensacola, Florida. Uzziah 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 Uzziah. In an affidavit dated May 24, 2015, Dr. Willis described his findings in pertinent part as follows: In summary, there was no apparent fetal distress during labor. Spontaneous vaginal delivery resulted in a large subgaleal hemorrhage with blood loss and poor perfusion. The baby was not hypoxic at birth. Cord blood gas was normal (pH 7.25). However, blood loss from the scalp hemorrhage and poor perfusion resulted in intraventricular hemorrhage during the immediate post delivery period. There was an apparent obstetrical event that resulted in scalp hemorrhage and poor perfusion with loss of oxygen to the baby’s brain during the immediate post delivery period. The poor perfusion resulted in brain injury. I am unable to comment about the severity of the brain injury. NICA retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Uzziah and to review his medical records. Dr. Duchowny examined Uzziah on March 11, 2015. In an affidavit dated May 29, 2015, Dr. Duchowny opined in pertinent part as follows: Review of medical records and imaging studies sent on February 4 and 6, 2015 was performed. They detail Uzziah’s birth at Baptist Hospital Health System in Pensacola with a forceps assisted delivery after a rapid decent. Uzziah evidenced tachycardia and some retractions at the time of delivery but his Apgar scores were 7 and 8. He was observed to have a subgaleal hematoma; a CT scan of the brain on November 23 revealed a large soft tissue hematoma and a small collection of subdural blood over the right cerebellar tent with a small amount of right ventricular hemorrhage. Of note, there was no cerebral edema or ventricular compression. No skull fractures were noted despite bilateral subgaleal hematomas. The neonatal course was otherwise uncomplicated. In summary, Uzziah’s neurological examination today reveals normal findings. He does not exhibit either mental or physical impairment and his overall development has caught up and is proceeding in an age appropriate fashion. I believe that Uzziah’s perinatal hematomas were resorbed without residual brain injury and his future prognosis is excellent. I explained to his family that Uzziah is doing very well and that his future is favorable from a prognostic standpoint. Given Uzziah’s normal neurological status today, I am not recommending compensation with the NICA program. 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 an apparent obstetrical event that resulted in scalp hemorrhage and poor perfusion with loss of oxygen to the baby's brain during the immediate post-delivery period, and that the poor perfusion resulted in brain injury. Dr. Willis’ opinion is credited. There are no opinions filed that are contrary to Dr. Duchowny’s opinion that Uzziah’s overall development is proceeding in an age appropriate fashion and does not exhibit either mental or physical impairment. Dr. Duchowny’s opinion is credited.
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 Michael was born on June 27, 2014, at Jackson Memorial Hospital. Michael was a twin, a multiple gestation, weighing over 2,000 grams at birth. Respondent retained Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, to review the medical records of Michael and his mother, Petitioner Maria Jose Morales Cannon, 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 postdelivery period due to oxygen deprivation or mechanical injury. In his report, dated September 10, 2018, Dr. Willis set forth the following, in pertinent part: The mother was admitted to the hospital at about 32 weeks gestational age for steroids to enhance fetal lung maturity and intravenous MgSO4 as neuroprotection to help reduce the risk for intracranial bleed. Her cervix was dilated one centimeter, 20% effaced and posterior, consistent with an unlabored cervix. Primary Cesarean section was done at 32 weeks as pre management plan for TTTS.[2/] Biophysical profiles (BPP) were 8/8 for both fetuses prior to delivery, indicating neither fetus was in distress. Fetal heart rate tracing was stated to be reactive, again suggesting no distress prior to delivery. Michael Cannon was the larger of the twins, designated as twin A. Cesarean delivery was apparently uncomplicated. Birth weight was 2,090 grams. The baby was not depressed at birth. Apgar scores were 9/9/9. Essentially no resuscitation was required with only tactile stimulation and oral suctioning done after birth. * * * In summary, this child was born as twin A at 32 weeks gestational age. Delivery was by elective Cesarean selection. Birth weight was 2,090 grams. The mother was not in labor. Delivery was uncomplicated. The baby was not depressed at birth. Apgar scores were 9/9. No resuscitation was required. The initial platelet count was decreased at 96,000. However, Intracranial hemorrhage would be unlikely with this platelet count. Head ultrasound and MRI were consistent with periventricular leukomalacia. Brain injury was most likely related to prematurity and not oxygen deprivation or trauma at birth. There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma during labor, delivery or the immediate post-delivery period. Brain injury identified by head Ultrasound and MRI was more likely related to prematurity and not oxygen deprivation at birth. In his affidavit, dated November 30, 2018, Dr. Willis affirms, to a reasonable degree of medical probability, the above-quoted findings and opinions from his report. Respondent also retained Michael S. Duchowny, M.D., a pediatric neurologist, to review the pertinent medical records, conduct an Independent Medical Examination (IME) of Michael, and opine as to whether Michael suffers from a permanent and substantial mental and physical impairment as a result of a birth-related neurological injury. Dr. Duchowny reviewed the medical records, obtained historical information from Michael’s mother and aunt, and performed an IME on November 14, 2018. Respondent’s Motion for Partial Summary Final Order also relies upon the attached affidavit from Dr. Duchowny, dated November 28, 2018. In his affidavit, Dr. Duchowny testifies, in pertinent part, as follows: In summary, MICHAEL’s examination reveals neurological findings consistent with spastic diparetic cerebral palsy. He evidences dysarthic speech and refractory strabismus. Impairment primarily affecting his right upper extremity. In contrast, Michael has preserved cognitive function and social awareness. Review of MICHAEL’s medical records reveals that his mother’s twin pregnancy was complicated by intrauterine growth retardation and polyhdramnious. Corner over absent diastolic blood flow in MICHAEL’s twin brother prompted decision to deliver both twins at 32 weeks gestation. MICHAEL’s APGAR scores were 9, 9, and 9 at 1, 5 and 10 minutes. MICHAEL remained in the Jackson Memorial Hospital NICU for 28 days and was treated for apnea of prematurity and retinopathy of prematurity. Hyperechoic periventricular regions were noted on head ultrasound studies in the NICU, and a follow-up MR imaging study on January 7, 2015, revealed findings compatible with periventricular leukomalacia. Although MICHAEL has a substantial motor impairment, he is not currently evidencing a substantial cognitive impairment. I further believe that his neurological deficits are a consequence of prematurity and not acquired in the course of labor and delivery. I am therefore not recommending MICHAEL for consideration by the NICA program. In his affidavit, Dr. Duchowny testifies that his opinions are to a reasonable degree of medical probability. A review of the file reveals that no contrary evidence was presented to dispute the findings and opinions of Drs. Willis and Duchowny. Their opinions are credited.
Findings Of Fact Xavier Concepcion was born on September 16, 2014, at Memorial Hospital West in Pembroke Pines, Florida. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Xavier’s medical records. In a medical report dated January 20, 2016, Dr. Willis made the following findings and expressed the following opinion: In summary, labor was complicated by maternal infection (chorioamnionitis) and a non- reassuring FHR pattern prior to birth. The baby was depressed at birth with a cord blood pH of <6.9. Seizure activity developed shortly after birth. MRI was consistent with acute brain infarction. There was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and continuing into the immediate post delivery period. It is possible the brain injury from oxygen deprivation was worsened by infection. I am unable to comment about the severity of the brain injury. Dr. Willis’ opinion that there was an obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and continuing into the immediate post delivery period is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate Xavier. Dr. Duchowny reviewed Xavier’s medical records, and performed an independent medical examination on him on May 25, 2016. Dr. Duchowny made the following findings and summarized his evaluation as follows: Motor examination reveals symmetric muscle strength, bulk and tone. There are no adventitious movements and no focal weakness or atrophy. Xavier does not evidence dystonic postures or hypertonicity. He has full range of motion at all joints. Coordination: Xavier walks in a stable fashion and does not fall. He can arise from the floor without difficulty. His balance is good and he has well-developed axial and peripheral balance. He grasps with both hand[s] and moved objects between hands without difficulty. He did not fall and his head control is good. * * * In Summary, Xavier’s neurological examination discloses no significant findings. He is developmentally appropriate with no focal or lateralizing features to suggest a structural brain abnormality. Review of the medical records reveals that Xavier was born at Memorial West Hospital at term and transferred to Joe DiMaggio Children’s Hospital. Maternal membranes were ruptured 30 hours prior to delivery, and maternal chorioamnionitis and fever were treated with penicillin. Xavier was born vaginally and was pale, cyanotic, flaccid and unresponsive. A tight nuchal cord was removed. He weighed 7 pounds 7 ounces and his Apgar scores were 1, 5 and 7 at one, five, and ten minutes. The records indicated that an initial arterial pH was 6.95 but the base excess was unknown. Xavier was intubated at 3 minutes of age, established spontaneous respiration at 25 minutes of age and was subsequently extubated. His CBC revealed a bandemia of 22 on September 22nd. Seizures were noted on the first day of life and there was evidence of a mild coagulopathy. The placenta was positive for E.coli. An MRI scan of the brain revealed multiple acute infarcts in the left temporal, occipital and superior parietal regions and right thalamus and putamen, and a small subdural hematoma. Despite Xavier’s difficulties at birth, he has developed well and does not evidence neurodevelopmental delay. I am therefore not recommending Xavier for compensation within the NICA program. In order for a birth-related injury to be compensable under the Plan, the injury must meet the definition of a birth- related neurological injury and the injury must have caused both permanent and substantial mental and physical impairment. Dr. Duchowny’s opinion that Xavier has developed well and does not evidence neurodevelopmental delay 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. Duchowny that Xavier has developed well and does not evidence neurodevelopmental delay. There is nothing in Dr. Duchowny’s report that indicates that Xavier has either a substantial mental or physical impairment. Thus, Xavier does not meet the requirement of having a substantial physical or mental impairment.
Findings Of Fact Trinity Kouame was born on January 31, 2012, at Tampa General Hospital in Tampa, Florida. She weighed 2,955 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records of Trinity. In a report dated November 18, 2013, Dr. Willis set forth his findings as follows: The fetal heart rate (FHR) monitor tracing on admission to the hospital showed a fetal tachycardia of 180 bpm and decreased FHR variability. Regular uterine contractions were present every 2 to 3 minutes, consistent with labor. A FHR deceleration occurred about one hour after hospital admission with FHR dropping to 95 bpm. A persistent irregular FHR pattern continued with the FHR remaining below 120 bpm until the monitor was removed, which was about 40 minutes after the FHR deceleration. Emergency Cesarean section was done for an abnormal FHR pattern. Birth weight was 2,995 grams. The newborn was depressed at birth. Apgar scores were 0/3/5. Umbilical cord blood gas was abnormal and consistent with acidosis with a pH of 6.86 and a base excess of -14. The baby was limp at birth with spontaneous respiratory effort. Bag and mask ventilation was started. No heart rate could be identified at 30 seconds after birth. Chest compressions began at 60 seconds after birth. At 90 seconds the baby was intubated. A heart rate of >100 bpm was noted at 3 minutes of life. Respiratory distress worsened. At 7 minutes after birth the oxygen saturation was only 65%. The baby was transported to NICU. Hypoxic ischemic encephalopathy was clinically suspected. The baby was managed with controlled hypothermia. Seizure activity was present a <12 hours of life. EEG on DOL 2 confirmed seizure activity. The baby was not extubated until DOL 7. MRI on DOL 11 showed cerebral infarcts, consistent with global hypoxia. In an affidavit dated December 5, 2013, Dr. Willis opined as follows: It is my opinion that in summary, labor was complicated by an abnormal FHR pattern. Emergency Cesarean section delivery was done with a depressed newborn. Umbilical cord pH was only 6.86. Resuscitation was required, including intubation and chest compressions. Seizure activity was present by 12 hours of life. MRI on DOL 11 was consistent with global hypoxia. As such, it is my opinion that there was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and continued into the immediate post delivery period. The oxygen resulted in brain injury. NICA retained Michael S. Duchowny, a pediatric neurologist, to review Trinity’s medical records and to examine her. He performed a neurological evaluation on Trinity on November 20, 2013. On December 5, 2013, Dr. Duchowny executed an affidavit which stated: It is my opinion that TRINITY’s neurological examination reveals evidence of substantial mental and motor impairment consistent with global developmental delay. Trinity’s examination demonstrates spastic quadriparesis, microcephaly, cortical visual impairment, and absence of communication or socialization skills. She additionally has a long standing history of medical resistant seizures. A review of medical records sent on November 7, 2013 confirms her mother’s recall of a with cerclage problem prenatally. The cerclage was removed on January 26, but a stitch was left in place and the pregnancy was complicated by significant hemorrhage. Apgar scores were 0, 3, & 5 at 1, 5, and 10 minutes and a cord arterial pH was measured at 6.86. Trinity was delivered at Tampa General Hospital and immediately placed in a hypothermia protocol for 72 hours. Seizures were noted after the day of birth. An ultrasound of the brain performed on February 3rd was normal but an MRI scan on February 12th revealed multiple areas of infarction involving the corpus callosum, basal ganglia, internal capsule and periventricular white matter with widespread diffusion abnormalities in the cerebral hemispheres. These findings are consistent with hypoxic ischemic damage. As such, it is my opinion that based on the neurological examination and record review, I believe that TRINITY should be considered for compensation with the NICA program as she has a substantial mental and motor impairment resulting from a brain injury due to oxygen deprivation in the course of labor and delivery. Her findings are in all likelihood permanent and her prognosis is extremely guarded. Should she be accepted into the NICA program, I believe that her lifespan prognosis includes another 20 years. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinions of either Dr. Willis or Dr. Duchowny. The opinions of Dr. Willis and Dr. Duchowny that Trinity did suffer a neurological injury due to oxygen deprivation during labor and delivery are credited. Additionally, Dr. Duchowny’s opinion that Trinity has both a substantial mental and motor impairment is also credited.
