The Issue At issue is whether Chandler Jachimiak, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Charil Rodriguez is the natural mother and guardian of Chandler Jachimiak (Chandler), a minor. Chandler was born a live infant on May 26, 1999, at Baptist Hospital of Miami (Baptist Hospital), a hospital located in Miami, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Chandler's birth was Pablo Delgado, 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, Petitioner is of the view that Chandler suffered a "birth-related neurological injury," as defined by the Plan. In contrast, NICA is of the view that Chandler did not suffer a "birth-related neurological injury" since the proof failed to support the conclusion that, more likely than not, Chandler's brain injury was "caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital." § 766.302(2), Fla. Stat. Chandler's birth and postnatal course at Baptist Hospital The medical records related to Chandler's birth reveal that at or about 10:25 a.m., May 25, 1999, Ms. Rodriguez, with an estimated delivery date of May 22, 1999, and the fetus at 40+ weeks gestation, was admitted to Baptist Hospital, for induction of labor. At the time, Ms. Rodriguez's temperature was 98.5°F, her membranes were intact, and vaginal examination revealed the cervix at 1 centimeter dilation, effacement at 50 percent, and the fetus at station -3. Following admission, Petocin induction was started, but was discontinued at 9:30 p.m., to allow Ms. Rodriguez to rest overnight. Then, at 8:20 a.m., May 26, 1999, Ms. Rodriguez's membranes were artificially ruptured, with thick meconium noted, and at 8:30 a.m., Petocin induction resumed. Ms. Rodriguez's labor progressed slowly, with complete dilation noted at 8:40 p.m., and Chandler was delivered at 10:10 p.m. Of note, but for a slight increase in heart rate (tachycardia), continuous fetal monitoring was reassuring. Also of note, Ms. Rodriguez's temperature was 101.2°F, at 7:15 p.m., for which she received penicillin, and at delivery her temperature was 99.4°F. At delivery, Chandler was depressed, without respiratory effort and a heart rate in the 60-beat-per-minute range, and he was immediately suctioned, with no evidence of meconium below the cords; mask-bagged for a few seconds, without evidence of respiratory effort; and orally intubated without difficulty, and hand bagged with good response at about one minute. Notably, Chandler's arterial blood gases were within the normal range, and his Apgar scores were recorded as 4, 6, and 9, at one, five, and ten minutes, respectively.2 At 10:28 p.m., following stabilization, Chandler was transported to the special care nursery (SCN) for further observation and management. There, on admission, Chandler's temperature was 100.4°F, and physical examination noted mild respiratory distress, but was otherwise unrevealing. Admitting impressions were newborn depression, suspected meconium aspiration, suspected sepsis,3 and suspected pneumothorax (right). Plan included sepsis workup, antibiotics pending culture results, oxyhood 100 percent for nitrogen washout and chest x-ray. Chandler remained hospitalized until June 26, 1999, when he was discharged to his mother's care. In the interim, Chandler received respiratory support for 2-3 days; antibiotics for suspected sepsis; support due to poor feeding and failure to thrive; and Phenobartital for 10 days, following the onset of seizure activity. Notably, a head ultrasound at 8:33 p.m., May 27, 1999, about two hours after the onset of seizure activity, revealed the following: Bilateral lateral ventricles are small in size, but are felt to be within the normal range. There is no evidence of subependymal or intraventricular hemorrhage. The ventricles are normal in configuration. No periventricular leukomalacia is seen. There is no mass effect of midline shift. There is limited evaluation of the midline structures on this examination. The posterior fossa is intact. IMPRESSION: No evidence of intracranial hemorrhage. A follow-up CT of the brain on May 31, 1999, revealed: CT brain reveals diffuse lucency throughout the hemisphere bilaterally. The basoganglia and cerebellum are somewhat spared. The possibility that this [is] secondary to diffuse ischemic process is difficult to exclude. No evidence of hemorrhage is identified. There is soft tissue swelling over the left parietal and occipital scalp. IMPRESSION: Diffuse lucency throughout the white matter in the hemispheres, bilaterally, suggestive of a edema. This may be secondary to diffuse ischemia. Cerebellar hemispheres and basoganglia are somewhat spared. No evidence of hemorrhage is identified. Follow-up is suggested. And, a brain MRI on June 6, 1999, was read as follows: Magnetic resonance imaging of the brain is compared with prior CT scan dated 05/31/99 Again noted is the presence of extensive abnormalities throughout the white matter in the supratentorial compartment. Now noted is prominent cortical sulci consistent with probable moderate volume loss which was not seen on the previous study. The sulci may have been effaced on the prior examination secondary to brain swelling. There is scalp soft tissue swelling in the right posterofrontal parietal convexity. There is no evidence of mass or hemorrhage. IMPRESSION: Extensive abnormalities throughout the supratentorium and white matter consistent with increased brain water without evidence of associated mass effect. Prominent cortical sulci are noted which may be secondary to loss of volume. There is no evidence of hemorrhage. Serial electroencephalograms (EEGs) on May 27, May 29, June 3, and June 8, 1999, were abnormal and consistent with a mild diffuse encephalopathy and a lowered seizure threshold. Chandler's subsequent development The medical records related to Chandler's subsequent development reflect that on August 6, 1999, Chandler presented at Miami Children's Hospital for a follow-up neurology examination. At the time, a CT scan of the brain revealed "extensive bilateral cerebral encephalomalacia with associated brain atrophy," and "bilateral chronic subdural hematomas, more pronounced on the left." Chandler was admitted for further evaluation, and a brain MRI of August 12, 1999, revealed: There are bilateral chronic subdural hematomas with the left much larger than the right. The left subdural collection extends into the interhemispheric fissure. The findings could be consistent with nonaccidental trauma, and clinical correlation is needed in this regard. There is bilateral cerebral atrophy and multifocal cystic encephalomalacia. There is mass effect upon the left cerebral hemisphere, related to the subdural collection but there is no midline shift. There is generalized ventriculomegaly that appears predominantly related to central atrophy. Chandler was discharged by Miami Children's Hospital on August 30, 1999. Chandler's hospital course was briefly described in his discharge summary, as follows: HOSPITAL COURSE: An ENT consult was placed. A bone survey was shown to be normal. Because of the persistent inspiratory and expiratory stridor, bronchoscopy was done by Pulmonary which showed a laryngomalacia. Tracheostomy tube was placed and the patient was transferred to Pediatric Intensive Care Unit for observation. Post operation day #6, the patient was transferred back from Pediatric Intensive Care Unit to 3 South. A chest xray done on 8/25 showed no significant change in the lung fields as compared to previous xray The patient was also followed by Neurology. The magnetic resonance scan done on 8/12 showed a mass effect of the left cerebral hemisphere with mucocystic encephalomalacia or chronic subarachnoid hemorrhage. Neurology's plan was to repeat CT prior to discharge home . . . . CT scan was done on 8/29/99 which was read as brain atrophy encephalomalacia with decrease in subdural hematoma. As compared to previous film, there was no brain edema . . . . On April 21, 2004, following the filing of the claim in this case, Chandler was examined by Michael Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital. Dr. Duchowny reported the results of his neurology evaluation, as follows: I evaluated Chandler Jachimiak on April 21, 2004. The evaluation was conducted in my office at Miami Children's Hospital with history provided by Chandler's mother.[4] History according to Ms. Jachimiak. The mother began by explaining that Chandler "was in the birth canal too long" when he was born and "had a lack oxygen in his blood." He was delivered at term at Baptist Hospital and remained in the newborn nursery for approximately one month due to poor feeding and failure to thrive. He was discharged in stable condition, but was admitted to Miami Children's Hospital three weeks later when a CT scan of the brain revealed a fluid collection over the convexities. The purpose of admission was to rule out possible child abuse, but Chandler ultimately remained hospitalized for approximately six weeks because of chronic feeding and breathing difficulties. He eventually had a tracheostomy, gastrostomy and Nissan fundoplication performed. The tracheostomy and g-tube were both removed last summer. Apparently, a diagnosis of Pierre-Robin Syndrome was entertained, but was never formally diagnosed. Chandler's growth and development have subsequently been quite slow. He has been followed by Dr. Oscar Papazian and was initially diagnosed with cerebral palsy and spasticity. He received Botox injections to the lower extremities until two years ago. His mother now feels that "he doesn't need it." Chandler is still not speaking. He has no verbal communication. He receives physical, speech and occupational therapy at the Neva King Cooper School. Chandler's social skills and behavior is another area of difficulty. He does not play well with other children and tends to be a loner. He likes playing with his toys. He is easily frustrated and will bite himself or other children. He tends to be "in his own little world" and his mother has noted poor eye contact. He frequently claps his hands repetitively and enjoys listening to music. Chandler's health is otherwise good. He has never had seizures and is on no intercurrent medications. He is scheduled for strabismus surgery in early May. His vision is otherwise intact. His hearing has been screened and is normal. Chandler sleeps through the night and his appetite has been stable, although he continues to be slow to gain weight. * * * FAMILY HISTORY: Chandler's father is absent from the family. His mother is 33 and is healthy. Multiple maternal brothers have learning disabilities and a maternal grandmother suffers from migraines. An 8- year-old sister is healthy. There are no family members with degenerative illnesses, mental retardation, epilepsy or cerebral palsy. PHYSICAL EXAMINATION reveals a small, but appropriately proportioned 4-year-old boy. The skin is warm and moist without cutaneous stigmata. The hair is brown and of normal texture. His weight is 32 pounds and his height is 40 inches. Head circumference measures 44.1 cm, which is well below the second percentile for age. There are no cranial or facial anomalies or asymmetries and the fontanels are closed. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are unremarkable. The healed tracheostomy and gastrostomy sights are noted. Peripheral pulses are 2+ and symmetric. NEUROLOGIC EXAMINATION was difficult to complete because of oppositional and defiant behavior. Chandler was restrained by his mother and intermittently sucked on his left thumb. Frequent tongue protrusions were noted and he drooled intermittently. He did not speak in words at any time during the examination. He could not name body parts or colors. He could not follow simple commands. He frequently waved his hands and clapped them. The two upper incisors are absent due to trauma. Cranial nerve examination reveals bilateral blink to threat. A funduscopic examination could not be performed. The pupils are 3 mm and react briskly to direct and consensually presented light. The extraocular movements demonstrate alternating exotropia. There are no facial asymmetries. The tongue movements are poorly coordinated. The uvula is midline. Motor examination reveals a generalized static hypotonia with a dynamic increase in tone. There is full range of motion in all joints. There are no adventitious movements and no focal weakness or atrophy. The deep tendon reflexes are slightly brisk and 2+ to 3+ bilaterally, but plantar responses are downgoing. Sensory examination is intact to withdrawal of all extremities to stimulation. Coordination could not be performed. The neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Chandler's neurologic examination does not reveal focal or lateralizing features, but does demonstrate significant delays in multiple domains consistent with a pervasive developmental disorder. He is clearly behind with regard to his receptive and expressive language development, but also has short attention span, high activity level, immature social skills with poor eye contact and a behavior disorder. He is also microcephalic and has short stature. I believe that Chandler is at significant risk for fitting within the low functioning autistic spectrum. I have not yet received medical records regarding Chandler's background and will issue a final report once the records have been received and reviewed. The cause and timing of Chandler's brain injury Dr. Duchowny ultimately reviewed Chandler's medical records and, as revealed by his deposition (Respondent's Exhibit 4), was of the opinion, based on that review and his neurologic evaluation, that the most likely cause of Chandler's brain injury was an infection, and that such injury occurred prior the onset of labor, as opposed to having been caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation. Notably, the opinions of Dr. Duchowny are consistent with the record and otherwise uncontroverted. Consequently, it must be resolved that Chandler's brain injury was not caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period, as required for coverage under the Plan. . See Wausau Insurance Company v. Tillman, 765 So. 2d 123 (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."); Ackley v. General Parcel Service, 646 So. 2d 242 (Fla. 1st DCA 1995)(determining cause of psychiatric illness is essentially a medical question, requiring expert medical evidence); 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.").
The Issue At issue in this proceeding is whether Jonathan Trujillo, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Jonathan Trujillo (Jonathan) is the natural son of Odalis Merida and Antonio Trujillo. He was born a live infant on December 31, 1993, at Jackson Memorial Hospital, a teaching hospital located in Miami, Dade County, Florida, and his birth weight was in excess of 2500 grams. The physicians providing obstetrical services during the birth of Jonathan were Doctors Oliva and McGare, resident physicians in an approved training program, who were supervised by Gene Burkett, M.D., a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan (the "Plan"). Consequently, each physician who provided obstetrical services during the birth of Jonathan was a "participating physician" in the Plan. Sections 766.302(7) and 766.314(4)(c), Florida Statutes. The birth of Jonathan Trujillo At or about 5:20 p.m., December 31, 1993, Odalis Merida (Ms. Merida) was admitted to Jackson Memorial Hospital in active labor. Notably, Ms. Merida's prenatal course had been complicated by the development of Class B gestational diabetes, requiring insulin during the course of her pregnancy, and the development of severe preeclampsia, characterized by hypertension. Consequently, Ms. Merida's pregnancy was rated high risk. To address Ms. Merida's diabetes during labor and delivery, she was maintained on drip insulin, and to address her hypertension, she was administered magnesium sulfate. Ms. Merida's condition and the substances administered to address her condition, although apparently necessary and appropriate, were not without risk or side effect to the fetus. Notably, magnesium sulfate is a muscle relaxant which can induce "floppiness" in a new born, as well as respiratory distress. 1/ The presence of maternal diabetes portends the risk of infantile hypoglycemia, which occurred in the instant case. A clinical symptom of hypoglycemia is "floppiness" in the new born, which may be exaggerated when, as here, it is found in conjunction with ploycythemia, discussed infra. Upon admission, Jonathan was at term, with a gestational age of 41 weeks, and fetal heart monitoring, commenced at or about 5:25 p.m., revealed good fetal heart tone. A physical examination at 6:00 p.m. noted the cervix to be at 7 centimeters, effacement complete, and the fetus at station 0. Contractions were regular at 2 minutes, and when the membrane was ruptured clear amniotic fluid was observed. Ms. Merida progressed through labor without incident until approximately 8:45 p.m., following the administration of an epidural anesthesia, when late decelerations of the fetal heart beat with bradycardia were noted, as a consequence of epidural hypertension. More specifically, Ms. Merida's blood pressure was observed to drop from a base line rate of 200/150 to 98/45, and a few late decelerations of the infant's heart rate were observed from a baseline rate of 120 to 130 beats per minute to 80 beats per minute. Ms. Merida was repositioned to her left side, the infant's heart rate promptly recovered, and no further unusual incidents were observed during the course of her labor or delivery. Given the limited duration and isolated nature of the late decelerations and bradycardia, it was the opinion of the physicians who testified in this proceeding that such anomaly did not adversely affect the infant's oxygenation or, stated differently, did not result in a hypoxic/ischemic insult to the infant's brain. Such opinions are credited. At 9:40 p.m., December 31, 1993, Ms. Merida, as she had with her first child, spontaneously delivered Jonathan vaginally, without apparent complication. Notably, Jonathan was vigorous on delivery, breathed spontaneously, did not require resuscitation, and his apgar scores were 9 at one minute, five minutes and ten minutes. In all, Jonathan's presentation was reflective of a healthy, vigorous infant. 2/ Jonathan was admitted to the newborn nursery at 10:00 p.m. Physical assessment upon admission revealed a large infant, at 4040 grams, with a large head (above the 90th percentile), who was crying spontaneously, alert, pink in color, but with a "slight floppiness" in the extremities. Jonathan was noted to breath spontaneously, without flaring or grunting; heart rate was noted at 160 beats per minute, with regular rhythm; fontanel were soft and flat; and reflexes were present. In brief, Jonathan's presentation in the newborn nursery was that of a healthy, vigorous infant, with the only negative observation being a "slight floppiness" in his extremities. Such "floppiness" was, however, more likely than not, related to the magnesium sulfate administered to Ms. Merida during labor and delivery, the hypoglycemia Jonathan was subsequently diagnosed to have acquired, or a combination of the two, and does not detract from the conclusion that Jonathan had no apparent signs of distress at birth. Later in the day, following testing, Jonathan was diagnosed with moderate to severe hypoglycemia, polycythemia, and moderate thrombocytopenia. Such conditions, singularly, or in combination, placed the infant at risk. Hypoglycemia, low blood sugar, may place the infant at risk of seizures and, pertinent to this case, resultant brain hemorrhage. Here, the moderate to severe hypoglycemia that Jonathan suffered was apparently recurrent, although it did resolve over time, and was addressed each time it presented through the administration of glucose. Polycythemia is a disorder whereby the number of red blood cells are abnormally high, making the blood thicker (hyperviscous) than normal. Apparently, brain hemorrhage is often related to decreased blood flow on the venus side of the brain, and where the blood is hyperviscous it could help or contribute to a brain hemorrhage. Here, with a hematocrit of 64, Jonathan's condition met the definition of polycythemia, which is a hematocrit over 60; however, such condition was not, or was not shown to be, significant in the instant case. Thrombocytopenia is a disorder resulting in an abnormally low platelet count which could affect clotting and therefore predispose the infant to bleeding through, among other things, trauma. Here, Jonathan's thrombocytopenia, more likely than not isoimmune thrombocytopenia, was considered moderate, as opposed to severe, and serial testing reported his platelet count as follows for the date and time indicated: DATE TIME 3/ PLATELET COUNT 1/1/94 07:00 Platelet estimate 40,000-80,000 1/2/94 03:47 Platelet estimate 80,000-100,000 1/3/94 07:57 Platelet estimate 40,000-80,000 1/3/94 15:08 Platelet estimate 40,000-80,000 1/4/94 05:04 Platelet count 49,000 1/5/94 06:46 Platelet estimate 40,000-80,000 1/6/94 12:50 Platelet estimate 40,000-80,000 1/8/94 21:12 Platelet count 182,000 1/10/94 03:52 Platelet count 263,000 1/12/94 06:00 Platelet count 357,000 The normal platelet count for newborns, as with adults, is 150,000 to 400,000, and, as may be observed from the serial testing, Jonathan's thrombocytopenia resolved over time. While at risk, Jonathan's neonatal course in the nursery was uneventful until 26 hours of life when he was noted to have suffered a generalized seizure characterized by cyanosis, severe bradycardia (heart beat in the range of 40 beats per minute), and respiratory arrest (apnea), requiring intubation. At or about 1:00 a.m., January 1, 1994, Jonathan was transferred to the neonatal intensive care unit, where he was maintained on positive ventilation until approximately January 6, 1994. Examination, through EEG's and CT and MRI scans of the brain, revealed that Jonathan had suffered an intraventricular hemorrhage, Grade IV, characterized by a massive bleed, with dilation of the ventricles. 4/ Thereafter residual hypodensity of the white matter of the brain was observed, consistent with degeneration of the hemorrhage and, ultimately, hypodensity compatable with evolving encephalomalacia (swelling of the brain.) Subsequently, on February 2, 1994, developing hydrocephalus required the placement of an intraventricular shunt to relieve intracranial pressure. Currently, in the opinions of Dr. Robert Roth and Dr. Michael Duchowny, whose opinions are credited, Jonathan is permanently and substantially mentally and physically impaired. Such impairment is evidenced by, inter alia, cortical blindness, hypotonia and, more likely than not, mental retardation. It is further the opinion of such physicians, which is again credited, that the cause of Jonathan's neurologic impairment is the injury to the brain he suffered as a consequence of the Grade IV intraventricular hemorrhage. Given the foregoing, resolution of this claim resolves itself to an identification of the genesis of Jonathan's Grade IV intraventricular hemorrhage or, stated otherwise, whether the proof demonstrates, more likely than not, that the hemorrhage, which resulted in injury to Jonathan's brain and the ensuing neurological injuries, resulted from "oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period" in the hospital. Sections 766.302(2) and 766.309(1)(a), Florida Statutes. The cause of Jonathan's Grade IV intraventricular hemorrhage A Grade IV intraventricular hemorrhage in a term infant, such as Jonathan, is a rare occurrence, and its cause frequently cannot be identified. Notwithstanding, Jonathan did suffer such a hemorrhage, and he was shown to suffer from two conditions, isoimmune thrombocytopenia and hypoglycemia, which could offer some explanation for the hemorrhage. Here, petitioner contends that Jonathan, due to his large head, received an injury to his brain occasioned by the "mechanical" forces of labor and delivery, and that such injury resulted in a slow bleed which, because of his thrombocytopenia, progressed over the next 26 hours and ultimately manifested as a generalized seizure characterized by cyanosis, severe bradycardia and respiratory arrest. In support of such contention, petitioner offered the testimony of Robert S. Roth, M.D., a physician board certified in pediatrics and neonatal/perinatal medicine. Pertinent to this case, Dr. Roth observed that infants born with thrombocytopenia are at increased risk of suffering an intraventricular brain hemorrhage if subjected to the trauma occasioned by the mechanical forces of labor and vaginal delivery. In his opinion, Jonathan's medical records reveal a classic case of neonatal brain hemorrhage resulting from the mechanical forces of labor and vaginal delivery that occurred because of Jonathan's large head and thrombocytopenia. Those conditions, affected by the forces of labor and delivery, combined to "start the process of hemorrhage in the brain," resulting in "tissue changes and cell death and vascular pressure changes" over time, and culminating when it progressed to the "centers that control breathing," manifested by apnea or seizure- like activity that led to apnea. Notably, it was Dr. Roth's opinion that it was not Jonathan's large head alone or his thrombocytopenia alone, apparently because of its moderate nature, which occasioned the initial bleed and resulting hemorrhage but, rather, the two conditions acting in consort. There was, however, no injury to Jonathan's scalp or skull noted at delivery, nor any molding of his head consequent to the delivery. It is of further note, in evaluating Dr. Roth's opinion, that he also observed that, had Jonathan been delivered by cesarean section before the onset of labor, he would have had a "lower probability" of having a hemorrhage than had he undergone active labor and vaginal delivery. Such observation clearly implies that factors other than labor and delivery could have operated to induce Jonathan's hemorrhage. Finally, in considering Dr. Roth's opinion of progressive deterioration, it is worthy of note that, apart from the "slight floppiness" observed shortly after birth, Jonathan evidenced no symptoms of neurologic injury until 26 hours of life. As heretofore noted, the "slight floppiness" exhibited by Jonathan was reasonably attributed to the magnesium sulfate administered to Ms. Merida during labor and delivery, the hypoglycemia Jonathan was shown to have developed, or a combination of the two, as opposed to a symptom of neurologic injury. Consequently, there is no objective evidence or symptom, that one would otherwise expect to observe, to support Dr. Roth's opinion of progressive deterioration. Contrasted with the opinions of Dr. Roth, regarding the genesis of Jonathan's hemorrhage, are the opinions offered on behalf of NICA through Michael S. Duchowny, M.D., a physician board certified in pediatric neurology. Dr. Duchowny, although acknowledging that thrombocytopenia offered an increased risk of intraventricular hemorrhage to an infant through the forces of labor and delivery, was of the opinion that Jonathan's hemorrhage at 26 hours of life was a spontaneous event, unrelated to labor and delivery, and that the cause of that hemorrhage could not be identified with any reasonable degree of medical certainty or, stated differently, that any attempt to attribute a cause for Jonathan's hemorrhage was, at best, speculative. 5/ In reaching his conclusion, Dr. Duchowny observed that there was no objective evidence or symptom of trauma or oxygen deprivation at birth, as one would expect had there been a neurologic insult during the course of labor and delivery, and that there was likewise no objective evidence or symptom of neurologic injury over the course of Jonathan's first 26 hours of life, as one would expect to observe were he suffering a progressive disorder, as opined by Dr. Roth. Dr. Duchowny was further of the opinion that, although moderately thrombocytopenic, Jonathan's platelet count was not sufficiently low, a level he described as 20,000 or less, to increase the likelihood that Jonathan would suffer a bleed. Resolving the conflict between the opinions of Doctors Roth and Duchowny is not an easy or lightly undertaken effort. Each physician is eminently qualified and the genuineness of the opinions they expressed is apparent. The seriousness of the resolution is further intensified by the obvious needs of a severely impaired infant; however, while such needs are significant, it cannot be overlooked that where, as here, responsibility for the care of the infant is sought to be imposed on the Plan, the proof must be compelling that, more likely than not, the infant suffered a "birth-related neurological injury" as defined by law. In this case, the proof falls short of meeting such standard. 6/ As heretofore noted, the labor and delivery of Jonathan was essentially normal and there was no obstetrical incident or identifiable event during labor and delivery that would evidence that he had suffered a hypoxic insult, mechanical injury or traumatic event. Indeed, although Jonathan did have a large head (above the 90th percentile), there was no cephalopelvic disproportion noted, no arrest of labor, no protracted labor, and no use of forceps or vacuum extraction in delivery. Upon delivery, no apparent cranial injuries were observed, no molding of the head was noted, and Jonathan presented as a vigorous infant with normal Apgars. In summary, there was no identifiable incident during the course of labor or delivery, or thereafter during Jonathan's first 26 hours of life, evidencing oxygen deprivation, mechanical injury, or other insult, that would account for the hemorrhage he suffered. In reaching the foregoing conclusion, it has not been overlooked that an infant suffering from thrombocytopenia is at increased risk of intraventricular hemorrhage through the forces of labor and delivery. Here, however, it was not suggested or shown that Jonathan's mild thrombocytopenia would, itself, foster a hemorrhage of the nature he suffered, rather petitioner's proof suggested that his large head and thrombocytopenic condition combined, when subjected to the trauma of labor and delivery, to precipitate a bleed that slowly progressed to a Grade IV intraventricular hemorrhage or precipitated a seizure that resulted in such a hemorrhage. Given the nature of the proffer, there being no apparent complication during labor and delivery, no objective sign of head trauma at birth, no symptoms of neurologic insult at birth, and no symptom of neurologic insult over the 26 hours prior to Jonathan's acute compromise, it must be concluded, as suggested by Dr. Duchowny, that any conclusion timing the genesis of Jonathan's hemorrhage to the events of labor and delivery is not supported by reasonable medical probability but is, at best, speculative. Consequently, it must be concluded, that petitioners have failed to demonstrate that Jonathan's hemorrhage was related to trauma, oxygen deprivation or mechanical injury occurring during the course of labor and delivery, as opposed to a spontaneous event, of unknown origin, occurring at Jonathan's twenty-sixth hour of life. 7/
Findings Of Fact Zoe was born on May 21, 2019, at St. Mary’s Medical Center, a hospital, in West Palm Beach, Florida. Zoe was a single gestation and her weight at birth exceeded 2,500 grams. As set forth in greater detail below, the unrefuted evidence establishes that Zoe did not sustain a “birth-related neurological injury,” as defined by section 766.302(2). Donald Willis, M.D., a board-certified obstetrician specializing in maternal-fetal medicine, was retained by Respondent to review the pertinent medical records of Zoya Jones and Zoe and opine as to whether Zoe sustained an injury to her brain or spinal cord caused by oxygen deprivation or mechanical injury that occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital. In his report, dated September 14, 2020, Dr. Willis summarized his findings and opinions as follows: In summary, the mother presented in labor at term. There was no apparent fetal distress during labor. Spontaneous vaginal delivery resulted in a vigorous newborn with Apgar scores of 9/9. Newborn hospital course was complicated only by the somewhat confusing history for syphilis . . . The baby suffered a brain injury at some time remote from the CT scan at 2 months of age. The baby as not depressed at birth and the newborn hospital course was not complicated by multi- system organ failures. The brain injury does not appear to be birth related. * * * There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or in the immediate post delivery period. In his supporting affidavit, Dr. Willis opines, to a reasonable degree of medical probability, 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 in the immediate post-delivery period.” Respondent also retained Michael S. Duchowny, M.D., a pediatric neurologist, to review the medical records of Zoya Jones and Zoe, and to conduct an Independent Medical Examination (IME) of Zoe. The purpose of his review and IME was to determine whether Zoe suffered from a permanent and substantial mental and physical impairment as a result of an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery, or resuscitation in the immediate post- delivery period. Dr. Duchowny reviewed the pertinent medical records and, on October 15, 2020, conducted the IME remotely via Zoom teleconference. In his report, prepared November 6, 2020, he summarized his findings and opinions as follows: In summary, Zoe’s neurological evaluation reveals findings consistent with a substantial mental and motor impairment. She has spastic quadriplegic (double hemiparetic) cerebral palsy, oromotor incoordination, microcephaly, absence of receptive and expressive communication, sensorineural hearing loss in the left ear and pathologic developmental reflexes. Her level of development approximates that of a 3-6 month-old infant. Review of the medical records reveals that Zoe was born at 40 2/7 weeks gestation at St. Mary’s Hospital and weighed 6’12” [sic]. Pregnancy was complicated by several sexually transmitted diseases including a positive RPR that was treated with penicillin but secondarily increased near term. Pregnancy was also complicated by Type 2 HSV genital infection and trichomonas infection treated with metronidazole. Zoe was delivered vaginally with Apgar scores of 9 and 9 at 1 and 5 minutes. Cord blood gases were not requested and there was no evidence of systemic organ dysfunction. Zoe was discharged from the nursery on the third day of life. * * * Based on today’s neurological evaluation and medical records review, I believe that while Zoe’s neurological impairments and permanent and substantial, they were most likely acquired in utero. The records do not provide support for intrapartum oxygen deprivation or mechanical injury, and the brain imaging findings are more consistent with a prenatally-acquired infections process that affected the brain. For these reasons, I am not recommending that consideration be given for Zoe’s inclusion in the NICA program. In his supporting affidavit, Dr. Duchowny opines, to a reasonable degree of medical probability, that Zoe did not suffer an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period which rendered her permanently and substantially mentally and physically impaired. The undisputed and unopposed findings and opinions of Drs. Willis and Duchowny are credited. The undersigned finds that Zoe did not sustain an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which rendered her permanently and substantially mentally and physical impaired.
The Issue Whether Isaac Castro and David Castro, deceased minors, qualify for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Milagros Magaly Castro and William Marcelo Castro are the natural parents of Isaac Castro and David Castro, deceased minors, and the Personal Representatives of their deceased sons' estates. Isaac and David were the product of a multiple (twin) gestation, and were born live infants on November 25, 2004, at Palmetto General Hospital, a hospital located in Hialeah, Florida, each with a birth weight exceeding 2,000 grams. David died December 7, 2004, and Isaac died January 12, 2005. The physician providing obstetrical services at Isaac's and David's birth was Monica Daniel, 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. Isaac's and David's birth At or about 1:50 p.m., October 11, 2004, Mrs. Castro, aged 40, with an estimated delivery date of December 30, 2004, and the twins at 28+ weeks' gestation, presented to Palmetto General Hospital on referral from her perinatologist for inpatient management, with concerns of elevated blood pressure (suspected pregnancy induced hypertension), and increased creatinine levels. At the time, Mrs. Castro's pregnancy was considered high risk, with advanced maternal age and twin gestation, and was further complicated by insulin dependent gestational diabetes and hypothyroidism. Nevertheless, numerous assessments during the term of her pregnancy were reassuring for fetal well-being, as was her initial assessment at Palmetto General Hospital. Mrs. Castro was admitted to the hospital at 3:00 p.m., that day, and her pregnancy was managed without apparent adverse incident until November 24, 2004, when, with the twins at 34 6/7 weeks' gestation, Mrs. Castro demonstrated severe preeclampsia, with increasing creatinine levels (worsening renal status). Notably, however, fetal monitoring between 1:01 p.m., and approximately 4:07 p.m., that afternoon,5 provided reassuring evidence of continued fetal well-being.6 Given her condition, Dr. Daniel ordered Mrs. Castro admitted to labor and delivery, where she was received at 9:10 p.m., for cesarean section delivery. Notably, Dr. Daniel's admission orders included a requirement for external fetal monitoring. However, that order was not followed, and no fetal monitor strips exist that would aid in assessing fetal status subsequent to 4:07 p.m., November 24, 2004. The progress notes do, however, include a few entries that bear on the issue. At 9:10 p.m., on admission to labor and delivery, the nurse noted that Mrs. Castro reported normal fetal movement, and denied pain, vaginal discharge, or blurred vision. Thereafter, at 10:30 p.m., the nurse noted that Mrs. Castro showed abnormal lung sounds, with crackles bilaterally to the bases, and dyspnea (difficult or labored breathing). Mrs. Castro was provided supplemental oxygen by nasal cannula (NC). At 1:00 a.m., November 25, 2004, while being prepared for surgery, the nurse noted that Mrs. Castro was slightly dyspneic and still receiving supplemental oxygen, NC at 2 liters. Assessment revealed reassuring fetal heart tones, with "FHT's via US on right upper quadrant in the 130's [and] FHT's via US on lower left upper quadrant in the 120's." Otherwise, the records provide no information regarding fetal status until the twins were delivered.7 At 1:35 a.m., Mrs. Castro was noted in the operating room, with an oxygen saturation level of 92 percent. She was given oxygen by mask, and by 1:45 a.m., her saturation levels were at 100 percent. No fetal heart tones were obtained "due to maternal instability," and, at 1:56 a.m., the incision was made (delivery began), and at 2:01 a.m., Isaac (identified as Twin A in the medical records) and at 2:02 a.m., David (identified as Twin B in the medical records) were delivered, severely depressed. Isaac's Apgar scores were noted as 1, 2, 2, 2, 2, 2, and 5, at one, five, ten, fifteen, twenty, twenty-five, and twenty-eight minutes, respectively.8 David's Apgar scores were noted as 3, 5, and 6, at one, five, and ten minutes, respectively.9 Isaac's delivery and hospital course are documented in his Death Summary, as follows: BIRTH DATE: 11/25/2004 [TIME 02:01 hours] WEIGHT: 2.275kg GEST AGE: 35 weeks GROWTH: AGA Amniotic fluid was meconium stained. Presentation was vertex. The patient was born in the delivery room by emergent cesarean section under spinal anesthesia for maternal hypertension and increasing creatinine. The patient was born first of twins. Apgar scores were 1 at 1 minute, 2 at 5 minutes and 2 at 10 minutes. At delivery, the patient was cyanotic, floppy, apneic and bradycardic. Treatment at delivery included oxygen, stimulation, oral suctioning, bag and mask ventilation, endotrachcal tube ventilation, epinephrine and cardiac compression. At birth baby was cyanotic, absent breathing effort, bradycardic (in the 20's-30's). Baby noticed to have particulate meconium. Oropharynx was suctioned by wall upon head delivery. Bag mask ventilation was started with no improvement in respiratory effort. Baby was intubated and epinephrine was given x 3 by EET but still no improvement in heart rate (in the 20's-30's). UAC line was placed while baby continued being bagged, and epinephrine was given IV x 2. Also 6 Meq of sodium bicarbonate was given x 2 plus one bolus of 4.5 Meq. Saline solution bolus of 20cc was given x1 . . . . On minute number 28-29 of life an adequate heart beat was finally noticed with improvement in color. Tone and activity still poor and no response to pain stimuli. ABG form UAC showed a pH=6.7 PCO2=47 PO2-380 BE=-31 HC03=5.6 . . . . ADMISSION DATE: 11/25/04 The patient was admitted immediately following delivery. Indications for admission included metabolic acidosis, possible sepsis, respiratory distress, prematurity and perinatal depression. Upon admission to NICU mechanical ventilation was started. Chest XR compatible with HMD vs. pneumonia. No air leak. Infasurf was given x 1 with good response, and several HCO3 corrections were needed. ADMISSION PHYSICAL EXAM . . . OVERALL STATUS: Critical - initial NICU day. BED: Radiant warmer. TEMP: Stable. HR: Stable. RR: Unstable. BP: Stable . . . . CONDITION: Acrocyanotic and depressed, intubated, hypertonic extremities. HEENT: Soft fontanelles, sluggish pupil reaction to light, ETT in place. RESPIRATORY: Minimally depressed air exchange and decreased breath sounds bilaterally (improved after surfactant administration). CARDIAC: Normal sinus rhythm . . . . NEUROLOGIC: Depressed mental status. Severely decreased muscle tone initially and hypertonicity noticed after NICU admission. Seizures noticed (lip smacking and tonic- clonic seizures on all 4 extremities > on the R hand) . . . . * * * RESOLVED DIAGNOSES DIAGNOSIS #1: RESPIRATORY DISTRESS ONSET: 11/25/2004 RESOLVED: 1/12/2005 * * * COMMENTS: Developed respiratory distress at birth. Chest Xrays compatible with HMD vs pneumonia. Initially severe respiratory acidosis. Improved with Infasurf x 1. On vent since birth, self-extubated during nursing touch-time on 12/5, was extubated for 19 hrs on nasal cannula but was reintubated on 12/6 for PC02 70 felt to be secondary to mucous plug. He has no gag reflex and has poor control of respiratory secretions reason why he has been kept on mechanical ventilation. He is still ventilator dependent, was on ETT CPAP+5 and after an extubation attempt on 1/2 he failed oxyhood and was reintubated on 1/3/05. now extubated to nasal cannula. * * * DIAGNOSIS #3: POSSIBLE SEPSIS ONSET: 11/25/2004 RESOLVED: 12/6/2004 * * * COMMENTS: Completed a 10 day course of antibiotics for suspect sepsis due to unknown GBS, respiratory distress, and severe metabolic and respiratory acidosis. There is no clinical evidence of sepsis at this time. * * * DIAGNOSIS #10: SEVERE HYPOXIC-ISCHEMIC BRAIN INJURY ONSET: 11/25/2004 RESOLVED: 1/12/2005 PROCEDURES: cranial ultrasound on 11/25/2004 (unofficially no bleed); MRI scan on 12/3/2004 (findings suggesting ischemic encephalopathy, normal size ventricles, no mass effects or midline shift) COMMENTS: Adequate heart rate not obtained till 28-29 minutes of life. He presented with seizures and an abnormal neurologic exam and abnormal EEG findings. The pediatric neurologist impression was of a severe hypoxic ischemic encephalopathy with multifocal seizures. No clinical neurologic deterioration has been noted recently. The MRI was compatible with ischemic encephalopathy. Ped neurologist has been following the baby with us. No neurological improvement has been noted recently. . . . Baby remains unresponsive, fixed pupils, minimal spontaneous breathing, does not have any spontaneous movement. No new changes noted recently. The baby has been unstable and recommended MRI of the brain was able to be done due to the critical condition of the infant. DIAGNOSIS #11: SEIZURES ONSET: 11/25/2004 RESOLVED: 1/12/2005 * * * COMMENTS: The pediatric neurologist impression is of a severe hypoxic ischemic encephalopathy with multifocal seizures. Baby was initially noted to be lip-smacking shortly after admission to NICU then started with tonic-clonic movement of all four extremities > on the R hand. Initially treated with phenobarbital and Versed. Phenobarb discontinued 11/26. No clinical seizure activity on PE but on 11/29 EEG showed diffuse electrical sz. Phenobarb and Cerebryx started. EEG on 12/1 was unchanged but occasional correlation with subtle finger movement. 12/2 with decerebrate posturing of UE to deep painful stimuli. EEG from 12/3 showed seizure activity but some improvement was reported. Phenobarbital given x1 then held 2nd level elevated Cerebryx continued till 12/9 discontinued per pedi-neuro. Depacon added on 12/6 as recommended by pediatric neurologist no change before discontinued 12/10. Phenobarb was resumed on 12/8. level 42.3 on 12/11. The dose has been adjusted as per neurologist. No recent new neurological changes or improvement noted. He continues on phenobarb w/occasional clinical seizure noted . . . . * * * DIAGNOSIS #13: SEVERE METABOLIC ACIDOSIS ONSET: 11/25/2004 RESOLVED: 12/2/2004 COMMENTS: Severe metabolic acidosis at birth pH 6.7 HCO3=5.6. Baby received HCO3 bolus x 3 in the OR and several corrections upon admission to NICU. * * * DEATH INFORMATION DISPOSITION: The patient died on 1/12/2005 at 00:52 hours. The cause of death was Cardio-respiratory arrest. Baby Boy "A" Castro is an 48 d/o w/Hypoxic- ischemic-encephalopathy, seizures, s/p 28-29 min full resuscitation, initially w/o a heart rate; who has been in a vegetative neurological state, w/intractable seizures since birth 11/25/04. Baby never tolerated any feeds and remained in TPN, was extubated to n/c w/(+) spontaneous breathing but NO gag and unable to clear secretions since baby never had any spontaneous voluntary movement. Tonight while parents visited baby was having desaturations and bradycardia that required IPPB, to improve heart rate and O2 sats. Parents requested to stop the IPPB, and requested to hold baby w/O2 N/C. Baby expired almost immediately of cardiorespiratory arrest at 12:52 a.m. . . . . David's delivery and hospital course are documented in his Death Summary, as follows: BIRTH DATE: 11/25/2004 TIME: 02:02 hours WEIGHT: 2.150kg GEST AGE: 35 weeks GROWTH: AGA RUPTURE OF MEMBRANES: At delivery. AMNIOTIC FLUID: Clear. PRESENTATION: Vertex. DELIVERY: Born in the delivery room by emergent cesarean section under spinal anesthesia for maternal hypertension with increasing creatinine. BIRTH ORDER: Second of twins. APGARS: 3 at 1 minute, 5 at 5 minutes and 6 at 10 minutes. CONDITION AT DELIVERY: Cyanotic and floppy. TREATMENT AT DELIVERY: Stimulation, oxygen, oral suctioning, bag and mask ventilation and endotrachael tube ventilation. At birth baby was cyanotic, no respiratory effort, floppy, bradycardic in the 50's. Mouth was suctioned with bulb, and bag mask ventilation was started for about 5 minutes before improvement in color and activity were seen. Baby was intubated aprox on min of life 4-5 by pediatrician Dr. Torres. No medication was needed during intervention, and baby responded well to intubation, oxygen and ambu bag ventilation. Baby noticed to be floppy despite color and heart rate improvement. Transferred stable to NICU. Initial ABG's showed severe metabolic acidosis pH=6.9 HCO3=7.4 BE=-25. ADMISSION DATE: 11/25/2004 ADMISSION TYPE: Immediately following delivery. ADMISSION INDICATIONS: Metabolic acidosis, respiratory distress, possible sepsis, prematurity and perinatal depression. Upon admission to NICU mechanical ventilation was stated. Chest XR showed reticulogranular pattern and air bronchograms compatible with HMD vs. pneumonia. No air leak. Infasurf was given x 1 with good response. Na bicarbonate corrections were needed x 3. ADMISSION PHYSICAL EXAM OVERALL STATUS: Critical - initial NICU day. BED: Radiant warmer. TEMP: Stable. HR: Stable. RR: Unstable: BP: Stable. URINE OUTPUT: Stable. CONDITION: on PRVC, breathing above the ventilator (tachypneic), pink color, mild acrocyanosis. HEENT: Pupils reactive to light, soft fontanelles, no bulging. RESPIRATORY: Minimally decreased air exchange, initially decreased breath sounds, improved after Infasurf and mechanical ventilator sounds heard equally bilaterally. CARDIAC: Normal sinus rhythm . . . . NEUROLOGIC: Depressed mental status and decreased muscle tone. * * * RESOLVED DIAGNOSES DIAGNOSIS #1: SEVERE RESPIRATORY DISTRESS ONSET: 11/25/2004 RESOLVED: 12/7/2004 * * * COMMENTS: Respiratory distress at birth. Chest XR compatible with HMD vs pneumonia. Received Infasurf x 1 with adequate response. In room air but requiring vent support due to no spontaneous respirations breathing with the vent. Poor respiratory effort more likely due to hypoxic ischemic encephalopathy but no deterioration in respiratory status. He remains critically ill and on high ventilatory support, unstable and deteriorating due to DIC and sepsis. During the course of the day the baby continued to deteriorate clinically and presented episodes of bradycardia and decreased SAO2 requiring higher ventilatory support and multiple doses of epinephrine. Later in the afternoon he became bradycardic and did not respond to resuscitative measures and was declared dead at 3:25 PM. . . . DIAGNOSIS #2: METABOLIC ACIDOSIS ONSET: 11/25/2004 RESOLVED: 11/29/2004 MEDICATIONS: Sodium bicarbonate on 11/25/2004. COMMENTS: Upon admission required Na bicarbonate corrections x3. Initial ABG's showed a pH=6.9 HCO3=7.4 BE=-25, currently stable. * * * DIAGNOSIS #6: POSSIBLE SEPSIS ONSET: 11/25/2004 RESOLVED: 12/5/2004 * * * COMMENTS: Completing a 10 day course of antibiotics for suspect sepsis secondary to maternal GBS unknown, respiratory distress at birth, severe metabolic acidosis. The blood culture was negative and there is no clinical evidence of sepsis at this time. * * * DIAGNOSIS #10: HYPOXIC-ISCHEMIC BRAIN INJURY ONSET: 11/25/2004 RESOLVED: 12/7/2004 PROCEDURES: cranial ultrasound from 11/25/2004 till 12/7/2004(normal) COMMENTS: Perinatal depression, required bag mask ventilation, intubation and oxygen in order to improve. Apgar scores were 3/5/6. The baby had presented seizures and systemic failure and the assessment of the pediatric neurologist was of severe hypoxic and ischemic encephalopathy. Neurologically he has not changed recently and continues with an abnormal neurological exam and no improvement in neuro condition. DIAGNOSIS #11: SEIZURES ONSET: 11/25/2004 RESOLVED: 12/7/2004 * * * COMMENTS: Shortly after admission to NICU he started with generalized tonic-clonic seizures. Persistent Sz activity on phenobarb and Cerebryx correlates with independent clonic movements of UE, extensor posturing of UE R>L and gaze deviation per neurologist Dr. Bustamante. Last EEG from 12/3 showed worsening EEG with seizure activity and burst suppression. The pediatric neurologist impression was of a severe hypoxic ischemic encephalopathy with multifocal seizures. Phenobarbital on hold since 12/1 for level 61.8 down to 29.5 will not resume per neuro and phosphenytoin level 18.8 on maintenance dose 2.5 mg/kg q 12. An MRI was not done due to the critical and unstable condition of the infant. * * * DEATH INFORMATION DISCHARGE TYPE: Died. DATE OF DEATH: 12/7/2004. TIME OF DEATH: 15:25 hours. CAUSE OF DEATH: Respiratory failure, sepsis and multisystemic failure . . . . 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 . . . 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, it is undisputed that Isaac and David suffered an injury to the brain caused by oxygen deprivation, which rendered them permanently and substantially mentally and physically impaired. What is disputed is whether the injury occurred "in the course of labor, delivery, or resuscitation in the immediate postdelivery period," as required for coverage under the Plan. § 766.302(2), Fla. Stat.; Nagy v. Florida Birth-Related Neurological Injury Compensation Association, 813 So. 2d 155 (Fla. 4th DCA 2002). As to that issue, Petitioners are of the view that the brain injury occurred before delivery, and since it is undisputed that Mrs. Castro was never in labor the injury is not covered by the Plan. In contrast, NICA and the hospital are of the view that the injury either occurred during, or continued through, delivery and resuscitation, and is therefore compensable. As an aid to resolving such issue, Section 766.309(1)(a), Florida Statutes, provides that when, as here, the proof demonstrates "that the infant has sustained a brain . . . injury caused by oxygen deprivation . . . and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption . . . [arises] that the injury is a birth-related neurological injury, as defined [by the Plan]." Here, since Mrs. Castro was never in labor, the presumption is that Isaac's and David's brain injury occurred in the course of delivery or resuscitation in the immediate postdelivery period. See Orlando Regional Healthcare Systems, Inc. v. Alexander, 909 So. 2d 582 (Fla. 5th DCA 2005). Consequently, to be resolved is whether there was credible evidence produced to support a contrary conclusion and, if so, whether, absent the presumption, the record demonstrates, more likely than not, that Isaac's and David's brain injury occurred during delivery or resuscitation in the immediate postdelivery period.10 The timing of the twins' brain injury To address the timing of the twins' brain injury, the parties offered the medical records relating to Mrs. Castro's antepartal course, as well as those associated with the twins' birth and subsequent development. (Petitioners' Exhibit A, tabs 8-11, and Exhibit B). Additionally, the parties offered the deposition testimony of Dr. Daniel, a physician board-certified in obstetrics and gynecology; Adré du Plessis, M.D., a physician board-certified in pediatrics, and neurology with special competence in child neurology; Steven Chavoustie, M.D., a physician board-certified in obstetrics and gynecology; Michael Katz, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine; and Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine. (Petitioners' Exhibit A, tabs 3-7) The testimony of Doctors Daniel, du Plessis, and Chavoustie was supportive of Petitioners' view, and the testimony of Doctors Katz and Willis was supportive of the views of NICA and the hospital. The medical records and the testimony of the parties' experts have been carefully considered. So considered, it must be resolved that there was credible evidence (through the testimony of Doctors Daniel, du Plessis, and Chavoustie) to rebut the presumption established by Section 766.309(1)(a), Florida Statutes, and that, absent the presumption, the record failed to demonstrate, more likely than not, that any injury the twins may have suffered during delivery or immediate postdelivery resuscitation contributed significantly to the profound neurologic impairment they suffered. Indeed, the more compelling proof supports a contrary conclusion. In so concluding, it is notable that the twins' brain injury started sometime after 4:07 p.m., November 24, 2004, when fetal reserves were lost, and the twins ability to compensate for a lack of oxygen failed, and that, given the severe depression the twins demonstrated at birth (cyanotic, apneic, floppy, and profoundly bradycardic), consistent with injury to the brain stem, the more robust level of a newborn brain; the need for intensive delivery room resuscitation (with intubation and, in the case of Isaac, advanced CPR), likewise consistent with injury to the brain stem; and the profound acidotic state in which they presented, it is likely, more so than not, that the twins suffered profound brain damage well prior to delivery (which was quick and without complication), that accounts for the severe neurological impairment (mental and physical) they demonstrated at birth. Consequently, since Mrs. Castro was not in labor when the profound brain injury most likely occurred, the twins were not shown to have suffered a "birth-related neurological injury," as defined by the Plan.
Findings Of Fact Neha was born on May 15, 2012, at Broward General Medical Center, located in Fort Lauderdale, Florida. Neha weighed six pounds nine ounces at birth. NICA retained Michael S. Duchowny, M.D., as its medical expert in pediatric neurology. Dr. Duchowny examined Neha on March 20, 2013, and reviewed her medical records. In an affidavit dated April 24, 2013, Dr. Duchowny opined as follows: Neha’s neurological examination is significant only for a mild degree of hypontia coupled with very slight motor development delay. In other regards, she seems to be developing quite well and I suspect that her language development will progress on schedule. There are no focal or lateralizing findings to suggest structural brain damage. A review of medical records reveals that Neha was born by stat cesarean section at Broward General Hospital due to fetal bradycardia. She was delivered with a full body nuchal cord and a true knot that was removed at birth. There was evidence of severe metabolic acidosis-arterial blood gases drawn 11 minutes after birth revealed a pH of 6.66, PC02 of 162, P02 of 11, and base excess of -32. These values were improved on a repeat series drawn at 12:27 PM. Thick meconium was suctioned below the vocal cords and Neha was diagnosed with meconium aspiration syndrome. Seizures occurred several after birth and were treated with phenobarbital and phenytoin. As previously stated by the family, Neha was immediately enrolled in a general hypothermia protocol. Of significance, a brain ultrasound exam obtained on May 15 at 6:46 PM, was normal and an MRI scan of the brain obtained on May 23 (DOL #8) was also within normal limits. Neha’s examination today does not reveal either a substantial mental or motor impairment, findings are consistent with the lack of significant MRI findings. I believe that the hypothermia protocol in all likelihood was neuro-protective and more likely than not, contributed to Neha’s positive outcome. Given Neha’s favorable outcome, I believe that she should not be considered for inclusion within the NICA program. As such, it is my opinion that Neha Kannikal is not permanently and substantially mentally impaired nor is she permanently and substantially physically impaired due to oxygen deprivation or mechanical injury occurring during the course of labor, delivery or the immediate post-delivery period in the hospital during the birth of Neha Kannikal. A review of the file does not show any opinion contrary to Dr. Duchowny's opinion that Neha does not have a substantial and permanent mental and physical impairment due to lack of oxygen or mechanical trauma is credited.
The Issue At issue in this proceeding is whether Emmanuel Hooks, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Petitioner, Brianna Denise Davidson, is the mother and natural guardian of Emmanuel Hooks, a minor. Emmanuel was born a live infant on July 26, 1999, at Gulf Coast Medical Center, a hospital located in Panama City, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Emmanuel's birth was Steven G. Smith, 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. Emmanuel's birth At or about 9:10 p.m., July 25, 1999, Ms. Davidson (with an estimated date of delivery of July 26, 1999, and the fetus at 40 weeks gestation) presented to Gulf Coast Medical Center in labor. Initial vaginal examination revealed the cervix at 2-3 centimeters dilation, effacement as "thin," and the fetus at station -3. External fetal monitoring revealed a reassuring fetal heart rate (of 140-150 beats per minute), with accelerations. Ms. Davidson was continually monitored, and at 11:00 p.m., she was admitted to labor and delivery. At the time, uterine contractions were noted at 3-5 minute intervals, and vaginal examination revealed the cervix at 3 centimeters, effacement at 90 percent, and the fetus at station -3. Ms. Davidson's labor apparently did not progress, and at 2:49 a.m., July 26, 1999, she was started on Pitocin. Thereafter, Ms. Davidson's labor progressed slowly, and at 6:45 a.m., vaginal examination revealed the cervix at 5 centimeters, effacement at 90 percent, and the fetus at station -1. In the interim, external fetal monitoring continued to reveal a reassuring fetal heart rate. Ms. Davidson's labor continued to slowly progress, and by 9:00 a.m., vaginal examination revealed the cervix at 8 centimeters, effacement at 100 percent, and the fetus at station -1. In the interim, at 8:48 a.m., Ms. Davidson's membranes spontaneously ruptured, with clear fluid noted. Thereafter, variable decelerations were noted with each contraction, consistent with umbilical cord compression, and fetal heart base line remained reassuring (in the 140-beat minute range). From 9:00 a.m. to 11:45 a.m., Ms. Davidson's labor failed to progress (with the cervix at 8 centimeters, effacement at 100 percent, and the fetus at station -1), and at 11:45 a.m., Ms. Davidson was transported to the operating room for delivery by caesarean section. Notably, between 9:00 a.m., and 11:45 a.m., while variable decelerations continued, the fetal heart rate base line remained in the 140-beat per minute range, and fetal electrode revealed the presence of short term variability. According to the records, Ms. Davidson was in the operating room at 11:45 a.m., anesthesia started at 11:45 a.m., surgery started at 12:32 p.m., and Emmanuel was delivered at 12:35 p.m. Of note, the "nucal cord x 1" observed during delivery was described as "loose," and fetal heart monitoring in the operating room and immediately prior to the caesarean section revealed a reassuring fetal heart rate. On delivery, Emmanuel was bulb-suctioned, but did not require resuscitation. Initial newborn assessment noted no apparent abnormalities, and Apgar scores were recorded as 8 at one minute and 9 at 5 minutes. The Apgar scores assigned to Emmanuel are a numeric expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex response, and color, with each category being assigned a score ranging from the lowest score of 0 through maximum score of 2. As noted, at one minute, Emmanuel's Apgar score totaled 8, with heart rate, respiratory effort, muscle tone, and reflect response being graded at 2 each, and color being graded a 0. At five minutes, Emmanuel's Apgar score totaled 9, with heart rate, respiratory effort, muscle tone, and reflex response again graded at 2 each, and color now graded at 1. Such scores are considered normal, and inconsistent with recent hypoxic insult or trauma. Following the initial newborn assessment, Emmanuel was transported to the regular nursery, where he remained until he was discharged with his mother on July 29, 1999. Notably, the newborn nursery admission assessment was grossly normal, and there is no evidence of any complication during Emmanuel's stay. Emmanuel's subsequent development On December 10, 2001, following the filing of the subject claim, Emmanuel was examined by Dr. Michael Duchowny, a physician board-certified in pediatrics, neurology with special competence in child neurology, electroencephalography, and clinical neurophysiology. Dr. Duchowny reported the results of his neurology evaluation, as well as the history he obtained from the parents, as follows: HISTORY ACCORDING TO MR. AND MRS. HOOKS: Emmanuel is a 2 1/2 year old boy who the parents indicated suffers from cerebral palsy and brain injury. They began by explaining that Emmanuel suffered brain injury at birth due to a cord being wrapped around his neck. He was delivered by emergency caesarean section. They noted that Emmanuel's MRI has shown periventricular leukomalacia and furnished a copy of the MRI report. Emmanuel's growth and developmental milestones have been slow. He did not rollover until 9 months, nor did he sit until a year of age. He stood at 14 months, walked at 18 months and said his first word at age 2. He now has a lexicon of only one word ("ma-ma"). Emmanuel is not toilet trained. He is described as being extremely active. He does not sit still at anytime during the day and it is difficult to examine him or provide therapy. He attends a wellness center where he receives physical, speech and occupational therapy on a twice weekly basis. Communication is a particular problem area for him. Emmanuel's appetite has also been diminished and he is now "only starting to eat". His mother indicated that Emmanuel suffers from "low muscle tone" and that he drools frequently. She also mentioned that he wakes up frequently at night and is just beginning to sleep more consistently. Emmanuel does not play with other children at school. His activity level and intrusiveness have precluded meaningful peer interactions. The parents are aware that his eye contact is poor. The parents stated that Emmanuel "had seizures", but then went on to explain that 2 EEG's were normal and he was never placed on medication. The events were described as "getting into a trance". He has not had motor convulsions. FAMILY HISTORY: Both parents are healthy. A 4 year brother had no medical problems and there are no family members with degenerative illnesses, mental retardation or cerebral palsy. Emmanuel was born at Gulf Coast Medical after a 39 week gestation. He weighed 8-pounds, 9- ounces at birth and breathed well. He was discharged from the nursery at 3 days of age. Emmanuel is fully immunized, has no significant drug allergies and never been hospitalized or undergone surgery. His vision and hearing are said to be excellent. PHYSICAL EXAMINATION reveals an alert, but extremely active and well developed 2 1/2 year old toddler. Emmanuel weighs 39-pounds. His head circumference measures 50.2 cm and there are no cranial or facial anomalies or asymmetries. Emmanuel's neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. Emmanuel's NEUROLOGIC EXAMINATION is difficult to complete, as he is constantly in motion. The physical examination requires restraint from his father, as he continually tries to touch things and pull items off the desktop and shelves. Emanuel has very poor eye contact and did not communicate in words at anytime during the session. It was difficult for him to follow commands as well, as his attention span constantly shifted. He drooled intermittently. The tongue movements are poorly coordinated. Cranial nerve examination reveals full visual fields to direct confrontation testing. There is blink to threat from either direction. I could not perform a fundoscopic examination. There are no facial asymmetries. Motor examination reveals mild generalized hypotonia with full range of motion. There are no adventitious movements, aside from the high activity level and no evidence of focal weakness or atrophy. Emmanuel's gait is stable, but slightly wide- based and he has generalized hypotonia. The deep tendon reflexes are 2+ bilaterally and plantar responses are in flexion. There is withdrawal of all extremities to touch. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. Cerebellar testing could not be completed due to poor cooperation. In SUMMARY, Emmanuel's neurologic examination is significant for multiple areas of developmental delay. He is extremely overactive and inattentive, and has a significant behavior and communication problem. He additionally demonstrates poor eye contact and has a significant social disability. There are no specific focal or lateralizing findings to suggest a structural brain lesion. The findings on Emmanuel's neurologic examination suggests a diagnosis of a pervasive developmental disorder. Emmanuel fits within the autistic spectrum and this was communicated to the family . . . . The cause and timing of Emmanuel's neurological impairment To address the issue of whether Emmanuel's impairments were associated with an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital," as required for coverage under the Plan, Petitioner offered selected medical records relating to Ms. Davidson's antepartum course, as well as those associated with Emmanuel's birth and subsequent development. Additionally, Emmanuel's parents testified on their own behalf, and Respondent offered the deposition testimony of Dr. Duchowny, whose qualifications were previously noted, and the deposition testimony of Dr. Donald Willis, a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine. As for the cause and timing of Emmanuel's impairments, it was Dr. Duchowny's opinion, based on the results of his neurology evaluation and review of the medical records, that Emmanuel's impairments are not related to perinatal asphyxia or trauma. More particularly, Dr. Duchowny expressed his views, as follows: Q. Based on your review of the records and your evaluation of Emmanuel Hooks, can you give us an overview of his condition? A. Yes. I thought that Emmanuel's neurologic examination revealed evidence of developmental neurologic impairment. He was hyperactive and had an attention deficit disorder and additionally had significant behavior, social and communication problems. All of this suggested he had developmental problems in multiple areas, consistent with a diagnosis of pervasive developmental disorder. Many of the children with pervasive developmental disorder go on to develop childhood autism as they get older. * * * Q. In this particular case, do you believe that Emmanuel's condition was acquired during the course of labor-delivery in the immediate post-delivery period? A. No, I do not. Q. What is the basis for that opinion? A. The basis for my opinion is that autism is a developmental disorder which results from unknown factors operating in utero prior to the onset of labor and delivery and is not a recognized complication of birth asphysia or birth trauma. Q. I take it your opinion is that Emmanuel Hooks did not acquire whatever neurological deficits he had as a result of any oxygen deprivation or mechanical injury occurring during labor-delivery or the immediate post- delivery period? A. That's correct. Q. In fact, was there any evidence in the medical records of any oxygen deprivation that occurred during the course of labor- delivery or resuscitation during the immediate post-delivery period? A. No. Q. Was there any evidence of mechanical injury occurring during the course of labor- delivery or the immediate post-delivery resuscitative period? A. No, there was not? Q. In your opinion, were Emmanuel's problems acquired prior to the course of labor- delivery? A. Yes. As for Dr. Willis, he was also of the opinion that the medical records revealed no evidence of oxygen deprivation or other trauma associated with Emmanuel's birth. The medical records, as well as the testimony of the physicians and the parents, have been carefully considered. So considered, it must be concluded that the proof failed to demonstrate that any impairment Emmanuel suffers was occasioned by an injury to the brain or spinal cord injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period.
The Issue At issue in this proceeding is whether Aubreigh Kathryne Delisle, 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 Petitioners nor anyone on their behalf appeared at hearing, and no proof was offered to support their claim. Contrasted with the dearth of proof offered by Petitioners, Respondent offered the opinions of Michael Duchowny, M.D., a physician board certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. It was Dr. Duchowny's opinion, based on his neurological evaluation of Aubreigh on December 3, 1998 (at 7 years of age) and his review of Aubreigh's medical records, that Aubreigh's current neurological condition did not result from oxygen deprivation or mechanical trauma occurring during the course of labor, delivery, or resuscitation in the immediate post-delivery period. Rather, it was Dr. Duchowny's opinion that Aubreigh's neurological presentation was most consistent with "abnormal brain maturation" or, stated differently, "there was no brain damage whatsoever, but rather her brain was not developing normally." (Transcript, page 9.) Given the proof, it must be resolved that Petitioners have failed to demonstrate that Aubreigh suffered a "birth- related neurological injury" as alleged in the claim for benefits.
The Issue Whether Jasmine Mack has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.
Findings Of Fact 1. Jasmine Mack (Jasmine) is the daughter of Joel Mack and Lynette Anderson Mack. She was born a live infant, on July 27, 1990, at University Medical Center, Jacksonville, Florida, and her birth weight was in excess of 2500 grams. 2. The physician delivering obstetrical services during the birth of Jasmine was Patrick Conner, M.D., who was, at all times material hereto, a participating physician in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. 3. Jasmine Mack was delivered vaginally, with a forceps assist. The delivery was without complications and Jasmine presented with Apgar scores of 8 at one minute and 9 at five minutes. No evidence of fetal distress or of an hypoxic ischemic event occurring during labor or delivery is apparent from the labor and delivery records. 4. After birth, Jasmine was transported to the hospital nursery where she remained until she was discharged in the custody of her mother one day after her birth. 5. For at least a six month period after birth, Jasmine Mack experienced no medical problems; however, at approximately 3 six months of age, Jasmine’s mother observed Jasmine’s fingers "trembling" on various occasions and noted that Jasmine appeared to be experiencing some night-time trauma. Jasmine was seen at various hospital emergency rooms and was discharged on each occasion as an otherwise healthy infant without any discernible medical problems. 6. At approximately eighteen months of age, Jasmine was referred to the Nemours Children’s Clinic for evaluation. On March 12, 1992, Jasmine was administered an electroencephalogram (EEG) which was interpreted by William R. Turk, M.D. The EEG was administered for the purpose of determining whether Jasmine was undergoing "night terrors" versus "nocturnal seizures." The EEG demonstrated recurrent left central-midtemporal spike discharges which suggested Rolandic discharges. 7. On March 19, 1992, Jasmine was evaluated at the Nemours Children’s Clinic by William E. Zinser, M.D., for the purpose of distinguishing between "night terrors" and possible seizures. Upon examination, Dr. Zinser observed that Jasmine’s "mental status is normal and appropriate for her age. She interacted well with the examiner, was playful and smiling... General exam is unremarkable." Dr. Zinser concluded that the "daytime episodes" described by Lynette Mack were probably "partial complex seizures" and the night-time episodes were probably “night terrors." Tegretol was prescribed to control the seizures. 8. Jasmine was next seen at the Nemours Children’s Clinic by Dr. Zinser for a follow-up visit on April 21, 1992. Since her last visit, Jasmine was reported to have had one seizure where she bit her lip and was staggering, as well as crying out as in fear. At the time she was receiving a dosage of only 50 mg. of Tegretol. Upon examination, Dr. Zinser noted that Jasmine, "is alert and active. She interacts well with the examiner and with other family members in the room. . . Motor tone and strength are normal in upper and lower extremities as well as the trunk. Gait testing is normal and appropriate for her age." Dr. Zinser concluded that Jasmine suffered “partial complex seizures with a recent break through seizure [which] could have been due to the fact that her Tegretol dosage is somewhat low." Jasmine’s Tegretol dosage was therefore increased to control her seizures. 9. During the April 21, 1992 visit, Dr. Zinser also discussed with Jasmine’s parents an MRI which had been done after the last visit and in which there appeared several areas of bright signal in the periventricular white matter of Jasmine’s brain. Dr. Zinser concluded that, "The significance of this is not clear, but it appears to be related to some perinatal ischemia." 10. Dr. Zinser next saw Jasmine on June 16, 1992, at the Nemours Children's Clinic. In his June 16, 1992 report, Dr. Zinser noted that: An M.R.I. from a prior visit shows two areas of bright signal in the periventricular white matter of unclear significance. She is coming today for follow-up with her father and mother. The mother expresses some concern over the MRI findings and is requesting some additional explanation. She was informed that these type of lesions may occur occasionally from periventricular ischemia such as what occurs in pre-mature infants. However, we are not sure this is the only reason in Jasmine’s case. She has not presented any further seizures and has tolerated her medication quite well... The night-time waking episodes appear to be related first of all to the fact that she sleeps in her parents bedroom in bed, secondly because she always gets some attention when she wakes up. ll. In the June 16, 1992 examination, Dr. Zinser further observed that Jasmine: Has general normal developmental screening for her age. She is using sentences of 2 and 3 words and she appears to have an extensive vocabulary. Her speech is at least 75% intelligible . . . Motor tone and strength are normal in the upper and lower extremities. Gait testing is normal and appropriate for her age... Her general examination is unremarkable. There are no significant changes from her previous visits. 12. Jasmine was next seen by Dr. Zinser on August 3, 1992, at the Nemours Children’s Clinic. At that time, Dr. Zinser observed that: She has not presented any seizures since her last visit from a month and a half ago. She has done well at home and her development continues to progress in a normal fashion + Motor tone and strength are normal in the upper and lower extremities. There is no ataxia and there is no dysmetria ..., Sensory exam is grossly normal. General examination is unremarkable. 13. Jasmine next visited the “Neurology Clinic" at the Nemours Children’s Clinic on October 14, 1992. On this occasion, she was seen by Daniel L. Bluestone, M.D. Dr. Bluestone noted that Dr. William Zinser had been previously following Jasmine’s “complex partial epilepsy of the left temporal origin," and that, "the mother informs me that the last seizure reportedly occurred four months ago, and that the patient has been seizure-free since that time. She is experiencing no side effects of the Tegretol, and continues to achieve all developmental milestones at appropriate times." 14. Upon examination, Dr. Bluestone observed that Jasmine’s "[mjotor examination revels (sic) normal muscle bulk, tone, and power. The patient's gait is age appropriate, but she will dystonically posture her left arm ina flex position when she walks or runs. She will spontaneously use both hands, though a clear right-hand preference is present... . Testing of primary sensory modalities reveals normal responses throughout.” 15. Dr. Bluestone concluded, following his examination, that "Presumably, she suffered some antenatal or perinatal hypoxic ischemic event, giving rise both to the motor and MRI findings, and the subsequent partial epilepsy. Her motor findings are minimal at this time, and require no intervention. Her seizures are currently well-controlled on Tegretol monotherapy . . . Should the patient continue to do well, then the next follow-up appointment will be made in six months time." 16. The final neurological examination given to Jasmine at the Nemours Children’s Clinic occurred on May 3, 1993. On this occasion she was again examined by Dr. Bluestone who noted that "The patient has remained seizure free since her last clinic visit. At the present time, she is experiencing no side effects with Tegretol therapy. She continues to achieve all developmental milestones at appropriate times." Dr. Bluestone did, however, note a “subtle left upper motor neuron facial weakness" but concluded that the "motor examination reveals normal muscle bulk, tone, and power, although she will dystonically posture the left arm in a flexed position when she runs." Dr. Bluestone concluded his examination by noting that: . again, given the absence of a clear neonatal syndrome of hypoxic ischemic encephalopathy, I must conclude that this patient suffered an antinatal (sic) hypoxic ischemic event, giving rise to both her left hemiparesis and her subsequent partial epilepsy. Her seizures are currently well controlled on Tegretol monotherapy ... ." 17. On July 20, 1993, Jasmine was evaluated by Michael s. Duchowny, M.D., at the request of NICA. opr. Duchowny is Board- certified in pediatrics and pediatric neurology and is a staff neurologist in the Department of Neurology at Miami Children’s Hospital. 18. Contrary to the reports as to a complete cessation of seizure activity as set forth in the neurological evaluations done at Nemours Children’s Clinic, Lynette Mack related to Dr. Duchowny that Jasmine was experiencing a seizure approximately once a week. Furthermore, Mrs. Mack related to Dr. Duchowny that Jasmine "Falls often and her body gyrates when she walks." Given the dichotomy between such revelations and the observations recorded at the Nemours Children’s Clinic that the seizures were under long-term control with Tegretol, Mrs. Mack’s statements to Dr. Duchowny are of dubious credibility. 19. Dr. Duchowny performed a complete neurological examination of Jasmine and concluded that Jasmine was "an alert, well-developed and well proportioned, cooperative, three-year old black female." Dr. Duchowny further noted that Jasmine had an appropriate attention span for age and interacted well during the neurological evaluation. Dr. Duchowny noted that Jasmine could identify pictures of animals as well as body parts and that her speech was fluent and well articulated. Furthermore, Dr. Duchowny noted that Jasmine’s motor examination was normal with the exception of a mild asymmetry of posture with the right arm being subtly postured and straightened compared to the left, but that she could walk and run quite well for her age. Dr. Duchowny concluded: In SUMMARY, Jasmine’s neurologic examination reveals only a mild posture asymmetry of the upper extremity but no other significant lateralizing findings. I did not find her attention span or cognitive status to be diminished for age and she seems to be developing quite well. In my opinion, Jasmine’s seizure disorder is not a birth- related neurologic injury nor was it acquired in the course of labor delivery or resuscitation in the immediate post-delivery period. I believe that her seizure disorder is substantial. She is likely in fact to be experiencing nocturnal seizures as well. However, she is not suffering from a physical impairment. Her care has been quite appropriate and I would agree with her physician’s decision to continue treatment with carbamazepine although the issue of nocturnal seizures versus night terrors needs to be sorted out. 20. Based on the proof of record, it must be concluded that petitioners have failed to demonstrate that Jasmine suffered any substantial mental or physical impairment, or that she sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury that was related to any event that occurred during labor, delivery or resuscitation in the immediate post- delivery period. Rather, the record compels the conclusion that Jasmine's disorder was related to some antenatal (prenatal) event of unknown origin.
Conclusions For Petitioner: J. Richard Moore, Jr., Esquire 500 North Ocean Street Jacksonville, Florida 32202 For Respondent: W. Douglas Moody, Jr., Esquire Taylor, Brion, Buker & Green Suite 250 225 South Adams Street Tallahassee, Florida 32302
