Findings Of Fact Miracle Termidor was born on September 6, 2012, at Northwest Medical Center located in Margate, Florida. Miracle weighed 3,550 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Miracle, to determine whether an injury occurred to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. In a medical report dated July 7, 2016, Dr. Willis described his findings in part as follows: Vaginal delivery was complicated by a shoulder dystocia. There was only a 20 second delay from delivery of the head until delivery was completed. Birth weight was 7 pounds 13 oz’s or 3,550 grams. The baby was not depressed at birth. Apgar scores were 9/9. The baby’s left arm had decreased movement. Erb’s palsy was diagnosed. X-Rays showed no bone fractures. The newborn course was complicated only by the Erb’s palsy. Discharge was on DOL 2. No EEG’s or head imaging studies were done. In summary, delivery was complicated by a mild shoulder dystocia with only a 20 second delay in delivery. The baby was not depressed, but did suffer an Erb’s palsy. The newborn hospital course was otherwise uncomplicated. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period. Dr. Willis reaffirmed his opinion in an affidavit dated August 5, 2016. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Miracle and to review his medical records. Dr. Duchowny examined Miracle on June 15, 2016. In an affidavit dated August 8, 2016, Dr. Duchowny opined as follows: It is my opinion that Miracle’s neurological examination is significant for findings consistent with a left Erb’s palsy affecting the 5th and 6th cervical dermatomes. There is, however, no evidence of central nervous system involvement of the brain or spinal cord as the remainder of her neurological examination is within normal limits. Based on these findings, I am not recommending Miracle for compensation within the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain or spinal cord during labor, delivery or the immediate post-delivery period. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that while Miracle’s examination is consistent with a left Erb’s palsy, there is no evidence of central nervous system involvement of the brain or spinal cord, and that the remainder of Miracle’s neurological exam is within normal limits. Dr. Duchowny’s opinion is credited.
Findings Of Fact By stipulation filed December 27, 1993, petitioners and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Fla. Stat., a claim was filed on behalf of the above-styled infant against NICA on behalf of GEANCARLO RODRIGUEZ, PATRICIA RODRIGUEZ and GUSTAVO RODRIGUEZ (the "Petitioners") for benefits under Chapter 766.301-766.316 Fla. Stat. That a timely filed Claim for benefits complying with the requirements of Section 766.305, Fla. Stat., was filed by the Petitioners and a timely Notice of Non- Compensability Setting forth that NICA denied the claim was filed on behalf of NICA. That the infant, GEANCARLO RODRIGUEZ, was born at Hialeah Hospital on August 22, 1991, and Hialeah Hospital was a licensed Florida Hospital and the attending physician, Dr. Laida N. Casanova was a participating physician within the meaning of Chapter 766, Fla. Stat. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. Section 766.302(2), Fla. Stat. states that "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 grams at birth 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 renders the infant permanently and substantially mentally and physically impaired. The parties agree that GEANCARLO RODRIGUEZ suffers from a right brachial plexus injury. A brachial plexus palsy injury is not an injury to the brain or spinal cord and further, does not result in any mental injury. The parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., including in particular his reports dated April 28, 1993, and November 15, 1993. Copies of these reports have been attached hereto and incorporated herein respectively as Exhibits 1 and 2. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply. Based upon this stipulation, the parties request the hearing officer to rule on Petitioners' claim based upon this Stipulation, and the attached medical records. The neurological examinations of Geancarlo reveal that he suffered a right Erb's palsy directly related to the right brachial plexus injury he received at birth. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury and, further, does not result in mental injury. Moreover, Geancarlo's mental functioning is normal and not impaired due to any birth related complications.
Findings Of Fact Based upon Petitioner and Respondent’s stipulation, the following facts are found: Elicia Barber (Petitioner) is the parent and legal guardian of Levi Harper (Levi), and is the “Claimant” as defined by section 766.302(2). On or about May 11, 2019, Levi incurred a “birth- related neurological injury” as that term is defined in section 766.302(2), which was the sole and proximate cause of Levi’s birth-related injury. At birth, Levi weighed 2,940 grams. Fernando Moreno, M.D., David Miller, M.D., and Daina Green, M.D., rendered obstetrical services in the delivery of Levi and, at all times material to this proceeding, were “participating physicians” as that term is defined in section 766.302(7). St. Vincent’s Medical Center is a hospital located in Jacksonville, Florida, and is the “hospital” as that term is defined in section 766.302(6), where Levi was born. Petitioner filed a petition pursuant to section 766.305, seeking compensation from NICA, and that Petition is incorporated by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (the Plan).
Findings Of Fact Based upon Petitioners and Respondent’s stipulation, the following facts are found: Kieara Johnson and Joshua Maier (Petitioners) are the parents and legal guardians of Kayden Maier (Kayden), and are the “Claimants” as defined by section 766.302(3), Florida Statutes. Kayden incurred a birth-related neurological injury as that term is defined in section 766.302(2), which was the sole and proximate cause of Kayden’s injury. At birth, Kayden weighed 3,830 grams. Jose Llinas Messeguer, M.D., and Richard Strathmann, M.D., rendered obstetrical services in the delivery of Kayden, and at all times material to these proceedings, were “participating physicians” as defined in section 766.302(7). Brandon Regional Hospital is a hospital located in Brandon, Florida, and is the “hospital” as that term is defined in section 766.302(6), where Kayden was born. Petitioners filed a petition pursuant to section 766.305, seeking compensation from NICA, and that Petition is incorporated by reference in its entirety, including any attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
The Issue The issue to be determined is whether Aiyanna suffered a “birth-related neurological injury,” as defined in section 766.302, Florida Statutes (2015).
Findings Of Fact On March 20, 2016, the Hospital admitted Shawntel Gordon and she gave birth to a baby girl named Aiyanna on March 21, 2016. As stipulated by the parties, the medical records demonstrate that Amy Jo Gabriel, M.D. provided obstetric services relative to the birth of Aiyanna. Based on the affidavit of NICA’s records custodian, Tim Daughtry, and the official payment history attached thereto, Dr. Gabriel never paid the annual $5,000 assessment required by physicians who elect to participate in the Plan to NICA. NICA lacked any documentation from Dr. Gabriel that she was exempt from paying the $5,000 assessment as a resident physician, assistant resident physician, or intern. Rather, Dr. Gabriel paid $250 to NICA in 2016—the annual assessment for physicians who do not qualify for an exemption and nevertheless elect not to participate in the Plan.
Findings Of Fact Adalynn was born on April 24, 2018, at Sarasota Memorial Hospital, located in Sarasota County, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Adalynn. In a medical report dated September 5, 2019, Dr. Willis summarized his findings and opined in pertinent part as follows: In summary, labor was complicated by FHR decelerations requiring Cesarean delivery. Umbilical artery cord pH was 7.12 with a base excess of -7.8, suggesting a significant oxygen deprivation did not occur during labor or delivery. Apgar scores were 3/9. The baby was stabilized in the delivery room on room air and transferred to the MBU. The baby apparently remained stable until about 7 to 12 hours after birth when the baby was noted to be fussy, poor feeding and with increased muscle tone. Seizure activity was noted on the EEG and MRI was consistent with HIE. There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery or the immediate post-delivery period that would have resulted in brain injury. Brain injury did occur as some time after birth, as documented by EEG and MRI. However, medical records do not suggest the brain injury was birth related. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a Board- certified pediatric neurologist, to examine Adalynn and to review her medical records. Dr. Duchowny examined Adalynn on September 24, 2019. In a medical report dated September 27, 2019, Dr. Duchowny summarized his examination of Adalynn and opined in pertinent part as follows: In SUMMARY, Adalynn’s neurological examination reveals global delay. She has four-limb static hypotonia and dynamic hypertonia with spasticity, hyperreflexia, left exotropia, microcephaly, absent communication, pseudobulbar affect and an in- dwelling gastrostomy. There is a history of seizures that are presently controlled on two anti-seizure medication[s]. A review of medical records further reveals that Adalynn was the product of a term pregnancy and delivery by urgent caesarian section. Her Apgar scores were 3 and 9 at 1 and 5 minutes. Venous umbilical cord blood gases were pH of 7.21 and base excess of - 7.4. She did not require resuscitation and was stable on room air. Liver function tests were elevated but there were no other indications of systemic organ involvement. Seizures commenced at 12 hours of age and were treated with phenobarbital and phytoin. Increased lactic acid was noted. Adalynn was noted to be hypertonic at birth. MR imaging performed on April 27th (DOL#3) revealed increased signal in the bi-occiptal regions and cerebral peducles. A subsequent MRI performed on May 3rd demonstrated increased signal in sensorimotor cortex, centrum semiovale, symmetric globus pallidus, putamen and occipital cortex as well as the pons and cerebral peduncles. MR spectroscopy revealed widespread signal increases in hemispheric grey and white matter. Based on the imaging findings, microcephaly, developmental delay and increased lactate, metabolic and genetic studies were undertaken and revealed multiple abnormalities. Although a definitive diagnosis has not yet been obtained, the genetic abnormalities in Adalynn’s mitochondrial genome are the most likely explanation for her neurological disability, imaging and laboratory values and clinical presentation. Based on today’s evaluation and medical record review, I am not recommending that Adalynn be considered for inclusion in the NICA program. On February 14, 2020, Dr. Duchowny provided an addendum to his prior opinion, following the review of additional medical records provided by Petitioners, which included the results of genetic testing. Dr. Duchowny opined that this additional information “further supports the original recommendation that Adalynn should not be considered for inclusion into NICA.” A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen to Adalynn's brain during labor, delivery, and the post-delivery period which resulted in brain injury. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that Adalynn should not be considered for inclusion in the NICA program. Dr. Duchowny’s opinion is credited. Dr. Willis reaffirmed his opinions in an affidavit, dated March 20, 2020. Dr. Duchowny reaffirmed his opinions in an affidavit dated April 17, 2020.
Findings Of Fact Zackary K. Farnum was born on August 11, 2008, at North Florida Regional Medical Center in Gainesville, Florida. Zackary weighed 3,620 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Zackary to determine whether an injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital due to oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Dr. Willis described his findings as follows in his medical report: In summary, labor was induced at term due to rupture of the membranes. A prolonged FHR deceleration, lasting about 4 minutes occurred at about five hours prior to birth. However, the baby was not depressed after birth with a normal Apgar score of 8 by five minutes and a normal cord blood pH of 7.29. The newborn hospital course was not complicated by multisystem organ failure, which is commonly seen with birth asphyxia. The baby had some initial difficult feeding and one episode of arching of the back was noted. Clinical findings were no [sic] substantial enough to require further evaluation, such as EEG or MRI. Overall, review of the medical records does not clearly identify a hypoxic event during labor or delivery that would have resulted in substantial brain injury. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor, delivery or the immediate post delivery period. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Zackary and to review his medical records. Dr. Duchowny examined Zackary on May 21, 2014, and opined as follows in his medical report: In summary, Zackary's neurological examination reveals evidence of left-sided motor findings including left hemihypotrophy, left mild spastic weakness, and left hyperreflexia with a left Babinski sign. Despite these findings, he is able to accomplish most tasks reasonably well and is well-adjusted to his motor deficits. His cognitive functioning is appropriate for age, although he is behaviorally overactive and impulsive. His speech dysarthria is likely developmentally based. Medical records confirm the parental history of a difficult delivery. Zack's Apgar scores were 2 and 8 at 1 and 5 minutes and there was evidence of thick meconium. A tight nuchal cord was removed at birth. The neonatal course was subsequently benign. I am familiar with the Florida Birth-Related Neurological Injury Compensation Plan (the "Plan") and the standards imposed by the Plan for compensability of potential claims. Based upon my review of the medical records as described herein and in my report, and further based upon my evaluation of ZACKARY FARNUM, I have formed an opinion as to whether ZACKARY FARNUM qualifies for compensation under the plan. I regard Zack's motor difficulties as mild to moderate and his evaluation today does not provide evidence for a substantial mental impairment. I suspect that his right hemisphere stroke was acquired in utero but I have not had an opportunity to personally review the MR images. However, Zackary does not have a substantial mental impairment. I therefore believe that he should not be considered for inclusion within the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. Dr. Willis’ opinion is credited. There are no contrary expert opinions filed that are contrary to Dr. Duchowny’s opinion that Zackary does not have a substantial mental or physical impairment. Dr. Duchowny’s opinion is credited.
Findings Of Fact Abel was born on September 23, 2009, at South Miami Hospital in Miami, Florida. Dr. Martinez-Marquez was the physician providing obstetric services and who was present at Abel’s birth. Attached to Respondent’s Motion is the affidavit of Respondent’s Record’s Custodian, Tim Daughtry. Mr. Daughtry attests in his affidavit that, in 2009, Dr. Martinez-Marquez did not pay the five thousand dollar ($5,000.00) assessment prescribed in section 766.314(4)(c), Florida Statutes, required for participation in the Plan. Mr. Daughtry’s affidavit further provides that NICA has no records to suggest that Dr. Martinez- Marquez is otherwise exempt from payment. Dr. Martinez-Marquez was not a participating physician in the Plan at the time of Abel’s birth.
