Findings Of Fact Adam was born on June 11, 2018, at HealthPark Medical Center, in Fort Myers, Florida. Adam was a single gestation and his weight at birth exceeded 2500 grams. Obstetrical services were delivered by a participating physician, Jane A. Daniel, M.D., in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, HealthPark Medical Center. As set forth in greater detail below, the unrefuted evidence establishes that Adam 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 Ms. Johnson and Adam and opine as to whether Adam sustained an injury to his 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 affidavit, dated December 11, 2020, Dr. Willis summarized his opinions as follows: In summary, an abnormal FHR pattern developed during labor and resulted in a depressed newborn. Cord blood pH was 6.9 with a base excess of -18.6. Seizures began shortly after birth. The newborn hospital course was complicated by multi-system organ failures, consistent with birth-related oxygen deprivation. MRI on DOL 4 was suggestive of HIE, but findings improved with follow-up MRI. There was an apparent obstetrical event that resulted in oxygen deprivation to the brain during labor, delivery and continuing into the immediate post-delivery period. The oxygen deprivation resulted [in] a potential for brain injury, but the follow-up normal MRI suggests that no actual brain injury occurred. Respondent also retained Michael S. Duchowny, M.D., a pediatric neurologist, to review the medical records of Ms. Johnson and Adam, and to conduct an Independent Medical Examination (IME) of Adam. The purpose of his review and IME was to determine whether Adam 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 20, 2020, conducted the IME. In his affidavit, dated December 16, 2020, Dr. Duchowny summarized his opinions as follows: In summary, Adam’s evaluation reveals findings consistent with a substantial motor but not mental impairment. He evidences a spastic diplegia, but with relative preservation of motor milestones, and age-appropriate receptive and expressive communication. Adam additionally has a severe behavior disorder, and has a sleep disorder and attentional impairment. His seizures are in remission. Review of the medical records reveals that Adam was the product of a 40 week gestation and was delivered vaginally with Apgar scores of 3, 6, 7 and 6 at one, five and 10 minutes. Terminal meconium was noted at delivery. Adam initially required positive pressure ventilation until his respirations were subsequently managed with nasal CPAP. His cord gas pH was 6.917 with a base excess of – 18.6. Adam developed seizures in the NICU and was intubated on the first day of life for apnea. Multiple seizures were documented on video/EEG monitoring. He was oliguric on the first day of life and had elevated liver function studies. An elevated lactic acid level was noted and there was a borderline elevation of DIC parameters. Adam was enrolled in a body hypothermia protocol on the first day of life. His blood pressure was maintained with dopamine. A head ultrasound on June 11 at 22:23 (DOL#2) was unremarkable. A brain MR imaging study performed on June 15, (DOL#5) revealed multifocal areas of restricted diffusion. Follow-up brain MR imaging study on July 5th revealed near-complete resolution of the previously observed diffusion abnormalities. A third MR imaging study obtained one month ago confirms the resolution of the DWI findings noted on the first brain MR imaging study. In conclusion, Dr. Duchowny opined that Adam does not have a substantial mental impairment, and, therefore, did not recommend that Adam be considered for inclusion in the Plan. The undisputed findings and opinions of Drs. Willis and Duchowny are credited. The undersigned finds that Adam 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 him permanently and substantially mentally and physical impaired.
Findings Of Fact Ja’quaylin K. Lewis was born on September 29, 2009, at Holy Cross Hospital in Ft. Lauderdale, Florida. Ja’quaylin weighed in excess of 2,500 grams at birth. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Ja’quaylin’s medical records. In a medical report dated April 24, 2015, Dr. Willis made the following findings and expressed the following opinion: In summary, there was an episode of FHR tachycardia during labor, but overally (sic) the FHR tracing during labor did not suggest any significant fetal distress. The newborn was not severely depressed at birth (Apgar 7/8), but did have respiratory distress that required oxygen. Hypovolemin and intracranial hemorrhage were suspected at time of NICU admission. CT scan of the head within hours of birth identified bilateral acute IVH. I can’t identify the exact time the IVH occurred. However, the IVH was identified by CT scan within hours of birth and must have occurred at some time during labor, delivery or the immediate post delivery period. There was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during (sic) at some time during labor, delivery, or the immediate post delivery period. The oxygen deprivation resulted in bilateral IVH and brain injury. I am not able to comment about the severity of the brain injury. Dr. Willis affirmed his opinion in an affidavit dated May 28, 2015. Dr. Willis’ opinion that there was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery, or the immediate post-delivery period which resulted in brain injury is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate Ja’quaylin. Dr. Duchowny reviewed Ja’quaylin’s medical records and performed an independent medical examination on her on April 8, 2015. Dr. Duchowny made the following findings and summarized his evaluation as follows: NEUROLOGIC EXAMINATION reveals a quiet and attentive child sitting in her mother’s lap who does not communicate well. Ja’Quaylin speaks in single words which are often repetitive. I did not hear her put 2 words together. She does not make emotional responses to social introductions but does fondle a stuffed animal and enjoyed playing (sic) it. There was no drooling. Her attention span appeared appropriate for age and there are no behavioral abnormalities. * * * Motor examination reveals symmetric muscle strength, bulk and tone in the upper extremities. There are no adventitious movements and no focal weakness or atrophy. Full range of motion is also noted in the lower extremities and I was able to dorsiflex both ankles to several degrees above neutrality. Similarly, there is no focal weakness or atrophy in the lower extremities. Coordination and gait: Ja’Quaylin walks in a stable fashion and has bilateral heel strikes. She turns reasonably crisply without ataxia or lateralized instability. She could perform finger-to-nose maneuvers without difficulty. * * * In SUMMARY, Ja’Quaylin’s neurologic examination reveals evidence of a substantial mental impairment with a cognitive level approximating 18-24 months in development. In contrast, motor development has progressed satisfactorily and there is no evidence of a substantial motor impairment. I had an opportunity to review medical records which detailed Ja’Quaylin’s birth at Holy Cross Hospital. She was born with Apgar scores of 7 and 8 at 1 & 5 minutes and had atrial blood gases that were near-normal. Her pulse oximetry levels were between 99 and 100. She was transferred to the Neonatal Intensive Care Unit (NICU) and given supplemental oxygen. There was no evidence of neonatal encephalopathy or multi-organ failure. She evidenced mild hypovolemia with normal liver and renal function tests. Suspected sepsis was treated prophylactically. A head CT scan apparently revealed acute bilateral intraventricular hemorrhage and a small subdural and subarchnoid hemorrhage. The hemorrhagic regions have completely resorbed and follow up MR imaging is unremarkable. Ja’Quaylin thus has a mild spastic diplegia which has responded well to a combination of Achilles heel cord lengthening procedures, physical and occupational therapy. Today’s physical examination and record review did not document a substantial motor impairment nor is there evidence that she sustained neurological injury to her brain or spinal cord due to oxygen deprivation or mechanical injury during labor, delivery or the immediate post-delivery period. For these reasons, I am not recommending Ja’Quaylin for inclusion within the NICA program. Dr. Duchowny’s opinion that Ja’quaylin does not have a substantial, permanent motor impairment is credited. Dr. Duchowny’s opinion that Ja’quaylin’s injury is inconsistent with an injury to her brain or spinal cord due to oxygen deprivation or mechanical injury during labor, delivery or the immediate post-delivery period is at odds with Dr. Willis’ opinion regarding the same issue. However, in order for a birth-related injury to be compensable under the Plan, the injury must meet the definition of a birth-related neurological injury and the injury must have caused both permanent and substantial mental and physical impairment. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Duchowny that Ja’quaylin does not have a substantial motor impairment. While Ja’quaylin has a mild spastic diplegia, these deficits do not render her permanently and substantially physically impaired.
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.
