The Issue At issue in this proceeding is whether Hawke Carter, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact 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. Contrasted with the dearth of proof offered by Petitioner, Respondent offered the opinions of Michael S. Duchowny, M.D., a physician board-certified in pediatric neurology, and Charles Kalstone, M.D., a physician board- certified in obstetrics and gynecology. It was Dr. Duchowny's opinion, based on his neurological evaluation of Hawke on July 26, 2000 (at 2 1/2 years of age) and his review of the medical records regarding Hawke's birth, as well as the opinion of Dr. Kalstone, based on his review of the medical records, that Hawke's current neurological condition (which reveals evidence of severe motor and cognitive deficits) did not result from oxygen deprivation, mechanical trauma or any other event occurring during the course of labor, delivery, or resuscitation in the immediate post-delivery period. Rather, it was their opinion that Hawke's disabilities are developmentally based and associated with a congenital syndrome, genetic in origin. Given Hawke's immediate perinatal history, which evidences an uncomplicated labor, delivery, and immediate post-partum period, as well as evidence of congenital heart disease, a diagnose of DiGeorge syndrome (confirmed by positive FISH analysis) and dysmorphic (malformed) features, the opinions of Doctors Duchowny and Kalstone are rationally based and supported by the record. Consequently, their opinions are credited, and it must be resolved that Hawkes' disability is associated with genetic or congenital abnormality, and is not related to any event which may have occurred during the course of his birth.
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.
